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For 2015 – Employee Policies to Review

13 Dec

I encourage you to take fresh look at your employee policies or Employee Handbook, or have an employment attorney or human resources professional review them for you, because there are some important areas of change for 2015.
1. Equal Employment Opportunity – take the time to list all of the protected classifications in your handbook . The California Fair Employment and Housing Council is considering amendments to its regulations regarding California discrimination laws, including a requirement that employers list all “protected classes” or basis for discrimination in a written policy. This is a good idea as it helps protect the employer and educated your managers and supervisors. The list
would be: race, color, national origin or ancestry, religion including religious attire and religious related hair styles, beard, etc., sex (including pregnancy, childbirth, breast feeding and related medical conditions), physical and mental disability, age (40 and older), genetic information and privacy of medical records, marital status, sexual orientation and identity including gender expression, veteran status, medical condition including AIDS/HIV, political activities or affiliations. Also protected are whistle blower status, protection from being required to give access to Social Media sites, protection from denial of family and medical care leave, and protection from unfair immigration related employment practices.

2- Anti-Harassment Policy – also take the time to clearly state it is against company policy for anyone to engage in abusive behavior to one of your employees. In the past, most anti-harassment policies focused on sexual harassment or perhaps also prohibited harassment based on other “protected classifications” of employees covered by equal employment laws. In 2015, employers are expected to train supervisors and managers on how to prevent abusive behavior in the workplace. Since it is very clear that abusive behavior is harmful to productivity, causes employee turnover, and is undesirable in the workplace, now is the time to clearly state it is also against company policy.
3- Other Policies. Of course our team at Don Dressler Consulting suggests an annual review of employee policies and handbooks, particularly now with so much activity at both the California and Federal level affecting employee benefits and human resources. A key example is the coming July 1, 2015 California law requiring paid sick leave for all employees. Don’t be mislead by the July 1, 2015 effective date! New employment posters including reference to this law are required as of Jan. 1, 2015 as are notices to new hired “hourly employees” based on the Labor Code Section 2810.5 notice.(The Wage Theft Protection Act). Please notice that we recommend a different format with additional information to protect your company rather than you just using the “official” form from the CA Department of Industrial Relations.
Every single client I have worked with on how to adapt to this new paid sick leave law has had to change their existing policies – and no company has the same problems as another. Allow yourself time to learn about this new law, how it affects you and what it will cost. We can help you design a policy to meet your needs and comply with the law.
If we can help with these or other human relations, safety or workers’ compensation issues, contact our team at Don Dressler Consulting. Email me at dondressler1@hotmail.com.

Don’t Let FMLA Leave Cause You Problems

5 May

Employers with 50 or more employees, (for 20 workweeks in the current calendar year or the preceding calendar year) are covered by the Federal Family Medical Leave Act – and in California are also regulated by the state’s California Family Rights Act. Both laws require eligible employees to be given time off under certain circumstances without pay for their own illness, caring for family members, and certain other situations. While the leave generally is for up to 12 weeks maximum within a one year period, the employer is obligated to continue the employee’s participation in group health insurance on the same basis as if work had continued..
Recently employers have experienced problems when they felt employees were out on leave for too long a period of time, or the employee was absent without notification to the employer.
An employer can protect themselves from many of these difficulties, but only if:
1. The required FMLA poster is displayed, and the poster was recently updated by the US Department of Labor effective March 8, 2013.
2. Notice about FMLA and requirements of the employer are provided to employees, most effectively done by a well written section in an Employee Handbook
3. When an employee requests time off – notification of approval or denial of FMLA leave and FMLA rights must be provided. This is an area many employers fail to observe.
4. You also should have a “no call/no show = voluntary quit” policy so employees who do not follow procedures and call in on time when they are going to be absent from work are treated as having quit their job. Courts have upheld this rule,
A copy of the latest FMLA poster, as well as model forms for the required notices are available at the US Department of Labor’s website: http://www.dol.gov/whd/fmla

Update on Meal Period and Rest Break Rules in California

8 Apr

You may have thought that the 2012 California Supreme Court decision about meal periods and rest breaks settled all the legal problems for employers – wishful thinking.

A recent Federal court case involving these issues continues to demonstrate that good time records are important, even for employer who has the correct policies. In this case, DeLeon v. Time Warner, time records showing missed or late meal periods. But the records, standing alone, are not determinative of whether a meal period violation has occurred. As long as meal periods are properly scheduled and employees are relieved of duty (i.e., not pressured to stay on duty) during the scheduled meal periods, if an employee chooses to delay or perform work during the scheduled meal period, no violation has occurred, even though employees must be paid for all hours they are “suffered or permitted” to work during such meal periods.

In California, employees need only be authorized and permitted to take their rest periods. If an employee prefers to continue working – the employer has not pressured the employee – there is no violation.

The question for you should be – #1- what do your policies say? And #2- what do your time records indicate? (Do your hourly or “non-exempt” employees record their meal periods on their time records as non-working time?)
(Thanks to Fisher & Phillips Wage and Hour Update for this information).

If You Want To Protect At-Will Status You Have to Put It in Writing

16 Dec

I recently assisted a client in the termination of a long term employee who had become a cause of dissension in their office as well as a significant expense.  In talking with the – about to be ex-employee, he said, “but I was told several years ago that I had done such a favor to the owner that I had a job as long as I wanted”. 

There is little doubt that such a discussion probably did occur.  Such informal remarks happen in the workplace, whether intended or not.  Often the owner or manager may not remember them, but the employee involved does.  Later, when discipline or even time to fire the employee arises, all these comments come back to face the employer.

But they do not have to stop a well prepared employer from doing what he has to do to run his business effectively and lawfully.  You do need to have a well written employee handbook, and employee policies, however. 

This was demonstrated again just recently in Faigin v. Signature Group Holdings, Inc.  a California Court of Appeals, 2nd District, decision issued December 5. 2012.

This case involves damages for breach of an implied-in–fact agreement to terminate an executive’s employment only for good cause.  In this instance, the person was fired because the business was in financial trouble and new executives were brought in to replace him.

The Court of Appeals held: “The existence and content of such an agreement are determined from the totality of the circumstances, including the employer‘s personnel policies and practices, the employee‘s length of service, actions and communications by the employer reflecting assurances of continued employment, and practices in the relevant industry.  [Citations] An implied-in-fact agreement to terminate only for good cause cannot arise if there is an express writing to the contrary, such as a written acknowledgement that employment is at will or an at-will provision in a written employment agreement. [Citations]

The court went on to state, “There cannot be a valid express contract and an implied contract, each embracing the same subject, but requiring different results. [Citations]

So, what does this mean for you as an employer:  make sure you have a well written Employee Handbook with an “integrated at-will” provision.  And if you want to learn more about what that means or how to make sure you have one, just call me or email: DonDressler1@hotmail.com