If you have any questions related to human resources (HR), safety, or employment in general, the professionals at United Staffing Associates are here to help. Simply use this "Just Ask" link to email us your question(s). Our professional staff will review your question(s) & get back to you with an informed answer. This service is provided free of charge & (with your permission) we might even add your question(s) to our "Q&A" section.
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2009 Archive
Q: I have been at my job for 7 years. Upon being hired, I provided a resume. Can my employer ask me, after 7 years, for an updated resume? - Tracy (Bethpage, NY) A: Of course - an employer can ask for an updated resume at any time. Depending on your business, there may be a related reason for the request. Don't be put off by such a request, merely ask why the updated resume is needed & then when you find out it's a legitimate business related reason you will both be comfortable. - VP of HR/Operations USA (08/24/2009)
Q: We are a USA customer who finds our own candidates, but pays them through your service. We have recently gone through a process of reviewing resumes for a part-time position at our company & have selected a candidate. Trying to be courteous, I sent a message to each person who submitted a resume thanking them & informing them that we had filled the position. I've been asked by an applicant why they didn't meet our qualifications for the position. However, it was quite the opposite. the person was over-qualified & we didn't believe the position would be challenging enough to hold interest for long & then we would soon find ourselves looking for help & training again. Can I give this applicant, who feels rejected, an honest answer without putting myself in a legal situation where there is a perception of discrimination? - Marcie (Pismo Beach, CA)
A: Yes, you can indeed provide the candidate with an honest answer because, bottom line, you have the right to employ the candidate that best matches your requirements. By finding & employing the "best match" you are more likely to secure a long term relationship. That's the objective, right? You will be in a solid position with little to no risk of legal repercussion(s). - VP of HR/Operations USA (08/17/2009)
Q: If we call our part-time employees in on a job & then the job is cancelled, do we owe them at least 4 hours just for coming in to work? - Sarah (Paso Robles, CA)
A: If you call them in for a job then you owe them for half the time they would have worked, but no less than 2 hours. - VP of HR/Operations USA (08/10/2009)
Q: We hold a voluntary monthly meeting for all of our part-time employees. Are we required to pay them for 4 hours when they come in for this meeting or can we just pay them for the time of the meeting (1.5 hours)? Or, do we have to pay them anything at all? - Sarah (Paso Robles, CA)
A: If the meeting is strictly voluntary, not required, then no pay is required. If you wish, you may pay for just the time spent attending the meeting. - VP of HR/Operations USA (08/03/2009)
Q: We have all part-time employees. They may work 1 day a week or 4 days a week - it just depends. Are we required to still pay the overtime if they work over 8 hours even if they are only part time? - Sarah (Paso Robles, CA)
A: Short answer, yes. The overtime rules apply to all hours worked, regardless of "status", i.e., full time, part time, on call, etc. - VP of HR/Operations USA (07/24/2009)
Q: On our employment application we have a question, "may we contact your current employer?". If the applicant checks "No", can we conduct a reference check if we are one step away from offering the job? - Vladimir (Lompoc, CA)
A: Not really, no. It would not be ethical to contact the previous employer if you ask the question & get a negative reply. You may be jeopardizing the person's current employment if you do. You should wait until the person accepts your offer or ask the applicant again if they're ok with you making the contact. - VP of HR/Operations USA (06/29/2009)
Q: I have an applicant who says he's 17 yrs old, has graduated, & can provide a copy of his high school diploma. Do I also need to obtain a work permit from him? - Kate (Sacramento, CA)
A: No; graduation from high school or age 18 is the requirement. This applicant is fine to work without a work permit. - VP of HR/Operations USA (06/24/2009)
Q: We just found out that one of our employees is in jail & may be there for a very long time. We have a paycheck for him that he hasn't picked up. Can we mail it to his home address? - Warren (San Luis Obispo, CA)
A: You may mail the check to his home address however, if he shows up at some point asking for his check because he never received it (reason unknown) then you may be liable for waiting time fees related to final pay. It's best to hold the check until you are notified by the employee regarding delivery or until the timing reaches your requirement to file with the State of CA - Unclaimed Funds. - VP of HR/Operations USA (06/07/2009)
Q: I am a full-time employee. The company I work for pays one wage for work & minimum wage for training that they require. Is this legal? - Scott (Santa Clara, CA)
A: Yes, at least minimum wage must be paid for training that is required. If the training day runs over eight hours then overtime must also be paid. This is legal in the state of California; however, this policy should be reflected in the Employee Handbook so that employees are clearly notified in advance. - VP of HR/Operations USA (06/01/2009)
Q: Our company plans to have a couple of unpaid summer interns next month. They are not considered employees. Are we required to fill out I-9 forms for the interns? Are we required to do the same for the independent contractors with whom we work? - Sylvia (Minneapolis, MN)
A: Unpaid interns & independent contractors are indeed non-employees & therefore are not required to complete the I-9 Form. As an aside, you will want to make sure that your liability insurances cover these individuals while they are on your property. - VP of HR/Operations USA (05/26/2009)
Q: We are a local company going through reorganization & will be forced to lay off at least one employee. How will the new rules requiring an employer to subsidize COBRA coverage affect us? - Y.W. (Paso Robles, CA)
A: Since "lay off" is considered a COBRA qualifying event, you will be required to offer continuation of medical, dental, & vision benefits (if all are applicable) under COBRA. If you take this action prior to December 31, 2009, you will also need to properly notify the employee regarding eligibility for 65% subsidy to be provided by you, the employer, for up to nine months. This means you "front" the funding; you will apply for a payroll tax credit via your reporting procedure. The process is quite complex; I'd advise you seek an HR consultation for assistance with the required notices or visit the DOL website for further guidance. - VP of HR/Operations USA (05/18/2009)
Q: How long can an employer wait to issue a first paycheck? We have an employee who has not yet received his employee ID number so they can't process his payroll. I just wondered if there was a CA legal requirement for this. - D (San Luis Obispo, CA)
A: All paychecks, including the first paycheck, must be delivered on the declared pay day. You should have a posting in your workplace that clearly states your pay date, time, & location; all employees must have paychecks available to them at that time. - VP of HR/Operations USA (05/11/2009)
Q: I am considered an "exempt employee" working here in California. Although I do get paid by the hour, am I untitled to time and a half or double time? And if so, the project that I am on is nearly completed. Am I untitled to back pay? - B (Unknown City, CA)
A: The definition of "exempt" means that you are exempt from eligibility for overtime pay under the Fair Labor Standards Act (FLSA). If you are indeed properly classified, then you are not entitled to overtime or back pay. - VP of HR/Operations USA (05/03/2009)
Q: My husband works construction & is working/staying out of town. He was told by his employer that he will have to stay in a room w/two sets of bunk beds for 3 grown men. I was wondering what the state labor laws are for out of town/overnight accommodations? - Kathy (Unknown City, CA)
A: I find nothing in the CA Labor Code or within the Wage Order pertaining to the construction industry that provides definition other than this - "Lodging" means living accommodations available to the employee for full-time occupancy which are adequate, decent, & sanitary according to usual & customary standards. Employees shall not be required to share a bed. While this is an excerpt from the Wage Order & specifically addresses full-time occupancy - in reality, the same rule of reasonableness is often applied to other situations such as your husband's. - VP of HR/Operations USA (04/26/2009)
Q: Do I need to send a 1099 to a former employee who I had to pay $35k for a workers comp claim? Our workers comp insurance had lapsed the week the employee was hurt, so the company paid his lawyers. - Mary (Oxnard, CA)
A: Workers' Compensation benefits are not taxable under IRS rules. I would be concerned otherwise though if you were not covered by WC Insurance: In the State of CA, it's the law. This might be an item that you should run by your attorney for your own protection in the event there is a future issue. - VP of HR/Operations USA (04/19/2009)
Q: I am an HR Assistant & my supervisor asked me to conduct a sexual harassment training class for our employees. My question is: Am I qualified to be conducting a sexual harassment training class? Shouldn't this training be done by a qualified professional? - Rosa (Kings City, CA)
A: Training sessions related to preventing sexual harassment for employees may be conducted by anyone trained to deliver the training - there are no legal specifications for general training. On the other hand, Preventing Sexual Harassment Training for Supervisors as required by SB1825 in CA must be delivered by a "qualified" professional. A qualified deliverer of the training must be considered a "subject matter expert" by having legal education & practical experience specific to the subject matter. For further definition of the required qualifications, I'd suggest you contact your labor attorney or you may contact United Staffing Associates' Corporate Office & we would be happy to assist you. - VP of HR/Operations USA (04/12/2009)
Q: Does an employer have the right to know the purpose of your vacation or paid personal days? - Kim (Buellton, CA)
A: Yes, to a certain degree your employer must know something about your reason for taking vacation or personal days, if this is a paid time off benefit. Your Employee Handbook likely explains the rules regarding eligibility for the time & sometimes there are overlapping benefits that apply. If this is the case, then further information is required to determine eligibility &/or proper application of those other benefits. - VP of HR/Operations USA (04/05/2009)
Q: Often times I have applicants ask if they can have a copy of their application for employment once they've completed the process. Am I under any obligation to provide a copy to them? - Chris (Santa Maria, CA)
A: I'm not aware of any legal requirement for or against this practice however, as a courtesy, if you can afford the time & the resource to provide a copy to the applicant it would be good to comply. If you are so inclined, you could make it a practice to charge a reasonable fee for cost. Personally, I believe in creating goodwill when the opportunity presents itself; remember that every applicant is a potential client, customer, or consumer. - VP of HR/Operations USA (03/29/2009)
Q: I have an independent contractor working for me that has let me know he intends to leave us because he's received a better offer. This is on sort of short notice. When do I have to provide final pay to this person? - Anonymous (Atascadero, CA)
A: This one should be pretty straightforward for you - final pay should meet the terms of your contract. An independent contractor is not an employee so you are not bound by the rules relating to "notice" & the "immediate" or 72 hour requirements. - VP of HR/Operations USA (03/22/2009)
Q: We have an unfortunate situation & hope you can help. An employee died recently & we have a paycheck that was not picked up. Can we release this paycheck to a family member? - Anonymous (Paso Robles, CA)
A: So sorry to hear of the death of your employee; sincere condolences. Regarding the unclaimed wages, you should not release the paycheck to a family member without the proper documentation. An Affidavit to Collect Compensation of Deceased must be presented before release of funds. If funds are not collected then they must be forwarded to the State Controller no later than three years from the date of death. - VP of HR/Operations USA (03/15/2009)
Q: I recently gave my two weeks notice to a place I have been employed at for over 11½ years. Upon doing so (on the 3rd of January) my boss told me he didn't have to pay me for my three weeks vacation that we normally got at the beginning of the year. In our handbook it just states "upon dismissal the employee will get regular pay for vacation time not used." My employer told me he called his CPA & they told him he didn't have to pay me. He then told me that if I had been fired he would have paid me vacation pay. Do I have any chance to get what I deserve in payment? I have been a loyal employee & he even told me I could come back if things don't work at my new job. What can I do? - Mara (Visalia, CA)
A: If your employee handbook clearly states the terms of payment of vacation upon termination & your employer is not following the published "rules" then you may contact the DFEH for assistance in obtaining your payment due. Be aware though, that the law in CA (notwithstanding your employee handbook) requires payment of all accrued but not taken vacation upon termination - this might not include the full three weeks to which you are referring. Hope this helps. - VP of HR/Operations USA (03/08/2009)
Q: We are opening a Restaurant/Bar in California. Do we have to pay for employee orientation/training prior to their start date? - Katia (California)
A: If your orientation/training is "required" then yes; employees must be compensated for their time. This is the reason most employers engage this process on the first day of employment. - VP of HR/Operations USA (03/01/2009)
Q: Are you aware of any new legislation going into effect in 2009 pertaining to comp time, working at home, or overtime? If so, could you point me in the right direction to read up on it? - Office Manager (San Luis Obispo, CA)
A: The changes I'm aware of in 2009 are primarily regarding FMLA, notice changes required for legal postings, & some updates in the EDD, UI, & other pamphlets requiring distribution. I'm not aware of comp time, overtime, or telecommuting legislated changes for the new year. A good website to add to your favorites is www.edd.ca.gov . There's a wealth of information there on a variety of topics. - VP of HR/Operations USA (02/22/2009)
Q: Do we have to pay overtime when our employee works it without prior approval? And, if she works only 38 hours in one week, but puts in 8½ hours on two days of that week, are we required to pay her overtime on those two days or does she need to be over 40 hours that week to justify getting paid overtime on those two days? - Marleen (Visalia, CA)
A: You must pay overtime (time-and-one-half the employee's regular rate of pay) for hours worked over eight in a single workday & the first eight hours worked on the seventh consecutive day worked in a single workweek. You must pay double the employee's regular rate of pay for all hours worked beyond 12 in a single workday & for hours worked over eight on the seventh consecutive day worked in a single workweek. If an employee works unauthorized overtime, you must pay the employee but you may discipline up to & including termination of employment for this infraction. And yes, you must pay ½ hour overtime for the days your employee works 8½ hours in a work day. - VP of HR/Operations USA (02/15/2009)
Q: I have an employee whose hours are set for her to come in at 7:30am. However, she would prefer to come in at 7:00am. So, on some occasions, she completely disregards the set schedule & comes in at 7:00am. What can I do to get through to this employee that I need her to work her schedule & do I have to pay her from when she comes in? - Marleen (Visalia, CA)
A: You should inform her that the schedule is what it is (it's a condition of continued employment!) & if she continues to deviate from the schedule she will force you to discipline her. You must pay her for all hours worked but you may also discipline her & even ultimately terminate her for failure to follow defined work schedule, policy, work rules, instructions, etc. - VP of HR/Operations USA (02/08/2009)
Q: If I have a doctor appointment during my work day & change my schedule from 8-5 to 7-5 to make up the difference in my lunch time, can my employer decide to not pay me for that hour anyway or take that hour out of my vacation time I've accrued without asking me? - Robin (Palo Alto, CA)
A: Technically, yes. Vacation time as a benefit is "voluntarily provided by your employer" & is not regulated by the Department of Labor Standards & Enforcement. This means that the employer gets to make the rules regarding use of vacation. Do you have an Employee Handbook or some other document explaining the rules surrounding use of vacation time? It's a common business practice to allow "make up time" during the same day an employee needs to extend a meal period. Check with your HR Department regarding the specifics of your situation; based on your information here, they would have the final "say" in your situation & may have acted legally. - VP of HR/Operations USA (02/01/2009)
Q: I have a question from a management perspective. Can I pay employees at different wage rates if they hold the same position & even if they've been with my company different lengths of time? - Anonymous (City Unknown)
A: Short answer - yes. Employees may be compensated at different rates of pay while doing the same job & holding the same position title, for a variety of reasons. Level of performance is the most common reason for paying one employee over another. If you have two employees, same job, & one with much less time with the company but making more than another worker with more time, this is justified by delivery of performance (i.e.: The higher & greater the level of performance, the greater the pay - justifiably). - VP of HR/Operations USA (01/25/2009)
Q: I've been told there are certain pieces of documentation I must provide to employees who leave my company, voluntarily or otherwise. If this is true, can you tell me what these items are? - Karin (Bakersfield, CA)
A: Yes. For employees you terminate from the company you must immediately provide all wages & vacation accrued but not used, a Notice of Change in Relationship, For Your Benefit Form (DE2320), & a HIPP Notice. There may be other items required if you provide benefits (continuation of benefits under COBRA for example); separate rules apply. The same information should be provided to employees who resign, though you have 72 hours to provide final wages if no notice was provided. - VP of HR/Operations USA (01/18/2009)
Q: I recently had to lay off some of my workers due to a lack of work for our business & my payroll person accidentally underpaid the vacation payout for one of the employees. Is it ok to do the check now & mail it to the employee, it's only one pay period late? - Beth (Porterville, CA)
A: Yes; the sooner the better as far as making the final payment. Typically all payments are due to employees at the time of termination but honest mistakes can happen. Be sure to keep a record of the final & complete payment, it would be a good idea to send the payment certified/return receipt requested to serve as your documentation trail. - VP of HR/Operations USA (01/11/2009)
Q: My employees want to work a different work schedule than the traditional one. This would work for my business but I want to be sure it's legal. What do I need to do to be sure I'm following the law? - Kate (Oxnard, CA)
A: The Wage Order governing your industry spells out the process for you. Your Wage Order can be found at http://www.dir.ca.gov/IWC/wageorderindustries.htm . Look under the Section titled "Hours and Days of Work"; most often it's Section 3. There are specific requirements relating to notifications & communication with employees & the Department of Industrial Relations; as long as you follow the instructions as defined, you & your employees should be able to reach an agreement & establish a schedule that works for all. - VP of HR/Operations USA (01/04/2009)
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