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Rick Rossignol

California Employers must provide All employees PAID SICK Time

Posted by & filed under Benefits, BLOG, Fair Labor Standards Act, Human Resources, Wage and Hour Compliance.

Life just got a little more complicated for employers! Employers have to provide Part-time and temporary workers up to three paid sick days a year.

Beginning July 1, 2015, every employee, whether full time or part-time, who is employed in California for 90 days or more will be entitled to accrue paid sick leave at the employee’s regular rate of pay of no less than one hour for every 30 hours.

The bill would authorize an employer to limit an employee’s use of paid sick days to 24 hours or 3 days in each year of employment. The employer has no obligation under this section to allow an employee’s total accrual of paid sick leave to exceed 48 hours or 6 days, provided that an employee’s rights to accrue and use paid sick leave under this section are not otherwise limited. The bill would prohibit an employer from discriminating or retaliating against an employee who requests paid sick days. The bill would require employers to satisfy specified posting and notice and record-keeping requirements.

What Are The Records Employers Are Expected To Develop In The Course Of Employment?

Posted by & filed under BLOG, Rights in the Workplace.

The employer is the keeper of the record and failure to have accurate records puts the employer at risk. The employer needs to develop certain records to be in and keep them to be in compliance. In general, all records must be maintained for a minimum number of years. The time varies from document to document, and employers should ensure that records are secured in a location that is only accessible to authorized staff. Once permitted to be discarded, they should be destroyed in an appropriate manner, such as by shredding or completely erasing from digital storage.

The following is a quick review of eight record categories:

Hiring Records

Hiring records include ads and postings for open positions, resumes, job applications, pre-employment tests, and reference checks. Records for hired employees should be filed in their personnel files. Documents for applicants not selected should still be kept in an applicant file. The employer is expected to know who they interviewed and why they hired the person.

These documents should be kept for a minimum of 2 years after the position has been filled.

Employee Personnel Files

Employee personnel files typically include the employee’s title, classification and job description. It should also contain their offer letter, performance reviews, promotion and/or demotion details,  attendance and leave-of-absence notices, disciplinary notices, training, testing (including certificates), requests for reasonable accommodations and acknowledgments that they received and reviewed the company policies and employee handbook. the best practice is to have a arbitration agreement, and commission agreement, piece rates clearly spelled out.

These documents should be saved in a secure location for 3 years following the end of the employment relationship.

Payroll & Wage Records

Payroll records consist of the employee’s name, date of birth,  mailing address, social security number, job title and description, terms of employment, pay rates, any union or employee contracts, daily and weekly working hours, total wages paid each pay period, gross and net wages paid, and meal periods.

Employee wage records include the following information, if applicable: wage rate calculation tables, piece rates, time cards including the employee’s hours and days worked, and shift schedules.

Payroll and wage records should be preserved for a minimum of 4 years following employment.

I-9 Forms

Employers are required to complete the Immigration and Naturalization Service’s Employment Eligibility Verification Form, otherwise known as the I-9 form. They must include information about the identity of all employees and their authorization to work in the U.S.  While not required by law, it is recommended to save copies of supporting identification and/or work authorization documents in addition to the I-9.

Records should be saved for 3 years after employment or one year after termination, whichever occurs later. I-9s should be stored in a common staff file, rather than in each individual’s personnel file.

Employee Benefits Data

ERISA, or the Employee Retirement Income Security Act, oversees retirement and other employee benefits. Employers must maintain COBRA notices, any records supporting information found in the benefit’s summary plan descriptions (SPDs), and records pertaining to eligibility for benefits under ERISA.

These documents should generally be preserved for six years after employment termination. However, records relating to an employee’s benefits eligibility determination should be kept as long as relevant.

FMLA/CFRA

The Family and Medical Leave Act allows eligible employees to up to 12 weeks of unpaid leave within a 12-month period. Request documentation should be stored in the employee’s personnel file. However, if there are specific medical requirements or details of requests (such as a medical diagnosis), these should be placed in the employee’s medical or health file.

This information must be saved for a period of 4 years.

Employee Health Records

Employee health records include drug and alcohol testing records, pre-employment physicals, medical exams, job injuries, OSHA records, and specific medical files.

In general, employee health records should be saved for 5 years. However, any records of a medical examination required by OSHA or resulting from exposure to toxic or hazardous materials should be kept for 30 years.

Workers’ Compensation

Any documentation relating to a work-injury must be saved in a separate file. It should include the employee’s name, the claim number, date of injury, a record if the claim is reported as indemnity or medical-only, and a note if there has been a denial.

Workers’ comp documentation should be kept for a minimum of 5 years from the date of injury or one year from the last date the employee received compensation.

Workplace Laws Every Employer Needs to Know

Posted by & filed under BLOG, Rights in the Workplace.

You need to know about laws governing the employment relationship
As an employer, you have to follow a host of state and federal laws that regulate your relationship with your employees. Among the things you’ll be expected to know and understand are:
  • Proper hiring practices, how to conduct interviews and record keeping.
  • Rules on hiring and working with independent contractors, including tips on how to avoid misclassification problems.
  • Wage and hour laws, including those governing the minimum wage, overtime, and Exempt and non-exempt employees.
  • How to avoid harassment and discrimination based on a variety of characteristics, including gender, age, race, pregnancy, sexual orientation, disability, and national origin.
  • The requirements for benefits programs, vacation, sick, holiday, leave of absence.
  • ACA definition of a full-time employee, introductory period, when health care benefits have to start.
  • How to write an employee handbook, conduct performance reviews, and discipline employees.
  • OSHA and other workplace health and safety laws, including health care reform, workers’ compensation, and rules on employee alcohol and drug use.
  • How to terminate the employment relationship.
  • How to protect your business and respect employee’s rights when they leave.
  • What the law allows if you want to run a background check, do a workplace search, or monitor employee conduct.
  • Keeping up with the ever-changing employment law.

 

Why small companies need Human Resources

Posted by & filed under BLOG, Fair Labor Standards Act, Human Resources, Wage and Hour Compliance.

The employer needs to have access to strong HR to protect its asset’s, and capital. Not only do they need a strategy for compliance but they need one for Talent.

Not having Human Resources expertise leads to companies not being in compliance with employment law. Which exposes the organization to employment lawsuits, by mistakes in wage and hour practices. The Department of Labor has increased the number of employment audits, to catch employers not following employment law. The risk of being out of compliance is back pay, interest, and penalties to your employment cost? Studies show that employee lawsuits are what keeps the CEO up at night.

In today’s competitive market companies need a talent management strategy. It’s not just recruitment, but a holistic system that stems from the organization’s mission, values, and business plan. Talent management includes workforce planning, sourcing candidates, orientation, performance, compensation, succession planning, and more. Talent management is putting the right people with the right skills in the right positions, and it pays for itself. Employees are the employer’s most important assets.

Your organization’s growth is dependent on having an HR strategy that includes compliance and talent.  You need access to Human Resources expertise so you can hire the best talent and retain it. 

Why Every Employer Needs a Employee Handbook

Posted by & filed under BLOG, Rights in the Workplace.

The days of believing that a handbook can cause more harm than good are long gone. In today’s business environment, a handbook serves both as a sword to carve out your legal rights as well as a shield to protect them.

A handbook sets expectations, encourages employees to behave in certain ways, helps ensure that employees are treated consistently, publicizes employee benefits, and helps win unemployment claims and lawsuits. These are just a few of the reasons why every employer, regardless of the number of employees, should have one.

 

Establishing Some Baseline Expectations

Employees expect their employer to communicate with them in a straightforward, professional way about all sorts of things. Just having a handbook demonstrates that you understand employees’ needs for information — and it can go a long way toward making a positive first impression on a new employee.

Your business client’s handbook should outline for employees how to behave and perform and what will happen if they fail to meet those requirements. It should also inform employees about how they can succeed in their jobs. Among other things, a handbook should guide employees on how to request time off from work, complain about operational matters or possible harassment, keep a time record, report possible theft or workplace violence, dress appropriately, refrain from drug and alcohol use, maintain confidential information, use electronic resources, comply with laws, etc.

If tailored to the way your clients do business, a handbook helps ensure that managers across the organization handle issues with consistency. A handbook should not be an “instruction book” on how to manage or deal with every conceivable problem or issue; instead, it should provide a framework for managers to follow.

 

“Sell” The Benefits Offered

Your business client undoubtedly spends a significant amount of money on every employee in ways that they do not always see or appreciate. A handbook allows them to take credit for all that they do for workers. Without going into a great deal of detail, their handbook should list all of the benefits provided at no cost to the employee (e.g., workers’ compensation in most states), subsidized by the client (e.g., medical insurance); those which they make available for purchase at reduced rates (e.g., short-term disability insurance); or those available through payroll deduction (e.g., a credit union). Additionally, a handbook should refer to various types of paid and unpaid time off offered to employees.

 

Win Unemployment Claims And Lawsuits

Finally, in case the need arises, a well-written handbook is the first step in a successful defense of unemployment or other legal claims. In most states, winning an unemployment claim requires proof that the terminated employee was on notice of a certain rule and had been warned that violating the rule would lead to disciplinary action up to and including immediate termination.

Likewise, many employment lawsuits hinge on consistent treatment of employees or ensuring that they were on notice about important company policies and procedures. The page of the handbook containing the applicable policy, as well as the signed acknowledgment form, could be critical to the defense of unemployment or other legal claims. Certainly, you can expect that these documents will be exhibits in any litigation; they can help the business client win or at least minimize damages.

 

Final Considerations

Of course, a handbook needs to reflect compliance with applicable federal, state, and local laws. This does not mean that every law needs to be specifically addressed and referenced in detail in the handbook. Rather, the handbook should not conflict with any applicable law and should contain a clear statement that the client’s organization intends to comply with all applicable laws.

A handbook should be tailored to your business client’s organization and should reflect on how they conduct business. Copying another employer’s handbook or one they find online might do more harm than good.

Handbooks that contain typos are copied askew, are out-of-date, contain another employer’s name or inapplicable policies, and look sloppy or unprofessional, send a message that you don’t really care about employees. For a minimal investment, your business client can publish a well-written, professional-looking handbook.

Alternatively, publishing a handbook online saves printing costs and is just as effective. Even the best handbook fails to provide a benefit to you if employees did not have easy access to it and if you cannot “prove” an employee received the handbook and understood that he or she was required to abide by the handbook. To have such proof, your client needs a signed acknowledgment form for a printed handbook or electronic acknowledgment receipt for an online handbook.

 

Having an up-to-date, well-written, legally compliant handbook is for your benefit, as well as for your employees.

I-9 compliance Issues

Posted by & filed under BLOG, Immigration.

The Obama administration has committed to a worksite enforcement strategy that focuses on employer compliance and much higher administrative fines. The related fines are high and costly.  Fines can range from three hundred dollars to as much as $16,000 per violation.

Employers have immigration-related compliance obligations regardless of whether they employ foreign nationals. Every employer has the obligation to ensure that all its employees have the right to work in the United States. In addition, they have to ensure that all employees continue to have the right to work in the US. Employers are penalized for not have a program in place to ensure that all new hires and employees continue to have the right to work. (Hint: not having a tracking system for employees using identification from list “A” is a red flag that employer has someone working on expired authorization,) The last couple of years has shown that employers’ increasing do not have tracking programs in place.  This has led to significant I-9 penalties that have been levied against companies that did not even have foreign nationals on their payrolls. They simply failed to comply with the legally required verification of employment eligibility of each new hire, or they discriminated against certain new hires during the I-9 completion process. Employers have to pay attention to the details or get out their checkbook.

 

What Happens when the DOL Audits!

Posted by & filed under BLOG, Fair Labor Standards Act, Human Resources, Wage and Hour Compliance.

When a wage and hour investigation is initiated, the DOL sends a letter explaining the complaint and everything they want to look at. The key for the employer is to have everything they want ready for them. What is important to remember is that they can start down a path and change directions pretty quickly based on the information they see. For example, I had them come in regarding an issue in Production Accounting. They came to a very quick conclusion that was not a problem. But noticed that in one department all employees were listed as exempt and wanted to talk with a couple of employees in a completely different department. They get to pick and no management employees can be present during their interview with the employee. Your worst nightmare is they pick the one or two disgruntled employees to interview.   I think the hardest part for me was they wanted the address of all employees terminated within the last three years so they could contact and ask them about their experience with the company.

  • Enter and inspect the business under investigation. The WHD does not require an investigator to previously announce the scheduling of an investigation, although in many instances, the investigator will advise an employer before opening the investigation.
  • Examine records to determine which laws or exemptions apply. These records include, for example, those showing the employer’s annual dollar volume of business transactions, involvement in interstate commerce, and work on government contracts.
  • Inspect up to 3 years of payroll and time records and make transcriptions of the records. The DOL looks for complete, accurate, and unambiguous pay records for every employee for each pay period from the past 3 years.
  • Question employees. The purpose of these interviews is to verify the employer’s payroll and time records, to identify workers’ particular duties in sufficient detail to decide which exemptions apply, if any, and to confirm that minors are legally employed. Interviews are normally conducted on the employer’s premises. In most instances, present and former employees will be interviewed at their homes or by mail or telephone.
  • Investigate. Investigators may Investigate facts, conditions, practices, or other matters to determine whether any person in the business has violated the provisions of the FLSA or to help in the enforcement of such provisions.

The employers’ best defense is a very good offense. An audit of your Human Resources systems is a good way to ensure that you are in compliance.

What Happens when the DOL audits your business?

Posted by & filed under BLOG, Fair Labor Standards Act, Human Resources, Wage and Hour Compliance.

 When a wage and hour investigation is initiated, the DOL sends a letter explaining the complaint and everything they want to look at. The key for the employer is to have everything they want ready for them. What is important to remember is that they can start down a path and change directions pretty quickly based on the information they see. For example, I had them come in regarding an issue in Production Accounting. They came to a very quick conclusion that was not a problem. But noticed that in one department all employees were listed as exempt and wanted to talk with a couple of employees in a completely different department. They get to pick and no management employees can be present during their interview with the employee. Your worst nightmare is they pick the one or two disgruntled employees to interview.   I think the hardest part for me was they wanted the address of all employees terminated within the last three years so they could contact and ask them about their experience with the company.

  • Enter and inspect the business under investigation. The WHD does not require an investigator to previously announce the scheduling of an investigation, although, in many instances, the investigator will advise an employer before opening the investigation.
  • Examine records to determine which laws or exemptions apply. These records include, for example, those showing the employer’s annual dollar volume of business transactions, involvement in interstate commerce, and work on government contracts.
  • Inspect up to 3 years of payroll and time records and make transcriptions of the records. The DOL looks for complete, accurate, and unambiguous pay records for every employee for each pay period from the past 3 years.
  • Question employees. The purpose of these interviews is to verify the employer’s payroll and time records, to identify workers’ particular duties in sufficient detail to decide which exemptions apply, if any, and to confirm that minors are legally employed. Interviews are normally conducted on the employer’s premises. In most instances, present and former employees will be interviewed at their homes or by mail or telephone.
  • Investigate. Investigators may Investigate facts, conditions, practices, or other matters to determine whether any person in the business has violated the provisions of the FLSA or to help in the enforcement of such provisions.

The employer’s best defense is a very good offense. An audit of your Human Resources systems is a good way to ensure that you are in compliance.