Hiring Help the Right Way

Families can sometimes have some very expensive misconceptions about California’s rules for hiring a private, live-in caregiver. For starters, it is never a good idea to have verbal “handshake” agreement to compensate through a combination of money, housing and/or meals. Common mistakes include:

• Presuming the caregiver fits the California definition of “personal attendant” when not all elements are stated in writing or are not actually met in practice (www.dir.ca.gov/iwc/WageOrders2006/iwcarticle15.html at “Definitions,” section 2(J));
• Paying a caregiver less than minimum wage (currently $8.00/hour in California), even if he or she “agrees” to a lower rate of compensation (no such agreement is enforceable);
• Subtracting the “market value” of housing and/or meals when calculating the caregiver’s compensation. California Wage Order 15, section 10 defines the value of housing and meals below market value for live-in caregivers (www.dir.ca.gov/iwc/WageOrders2006/iwcarticle15.html);
• Failing to keep accurate records of hours worked and time off. Should a caregiver file a wage claim (including any possible overtime pay), written time records could be crucial;
• Assigning a caregiver as an “independent contractor” to avoid the minimum wage (or any overtime) obligations. It is unlikely that a full time caregiver could be classified as an independent contractor, even if there is a written agreement in place. This is because the hiring family member will almost certainly want to retain control over how the caregiver accomplishes his or her work. That right to control and direct will likely classify the caregiver as an employee no matter how the parties seek to label the relationship.

Thus, pertinent words to the wise include:

• Define in a written agreement the terms of the caregiver’s employment, including duties and compensation. That agreement should specify the relationship is “at will,” meaning the caregiver can resign or be released from employment at any time, with or without cause or advance notice. It is also a good idea to specify that a live-in caregiver will vacate the premises promptly when employment ends;
• Pay the caregiver at least minimum wage for all “hours worked,” defined by law as any time an employee is “suffered or permitted to work.” In other words, all time the caregiver is on duty; and
• Have the caregiver maintain a written log of all hours worked with the caregiver confirming in writing its accuracy each day.

Sexual harassment rightfully gets the bulk of attention when drafting prevention and reporting policies or training employees on proper workplace conduct. However, managers should not stop there. In California, there are as many as ten other types of harassment claims that businesses must do everything reasonably possible to prevent.

Workplace “harassment” can be broadly defined as any behavior that a person would find sufficiently threatening or disturbing to affect his or her ability to perform on the job. California’s Fair Employment & Housing Act (FEHA) and related federal laws protect employees from unlawful harassment and discrimination on the basis of a worker’s age (40 years old and over), color, religious creed, disability (physical or mental), gender, medical condition, national origin, race, marital status (e.g, married, divorced), genetic profile, and sexual orientation.

Harassment comes in many shapes and sizes. For example:

• Verbal or written: Comments about a person’s appearance, personal behavior or body; jokes about a person’s religion, sexual orientation, etc.; telling rumors about a person’s personal life; threatening a person;
• Nonverbal: Looking up and down a person’s body; derogatory gestures or facial expressions; following a person;
• Physical: Threatening harmful contact (assault); impeding or blocking movement; inappropriate touching of a person or a person’s clothing;
• Visual: Posters, drawings, pictures, screensavers or emails of an offending or demeaning nature.

Under the FEHA and other employment laws, California employers can be liable for encouraging or condoning unlawful workplace harassment. Both the law and common sense dictate that a business take all reasonable precautions to prevent workplace harassment as well as quickly and fairly properly investigate and resolve any such complaint within the office.

For help with discrimination or harassment claims against your business or for any employment law related matter, please contact us.

The 411 on Email and Texting Policies

With the prevalence of workplace email and texting, businesses should consider publishing sound written policies on expected etiquette and on management’s ability to access and monitor such electronic communications. For lack of such guidelines and rules, employees should not be left with the impression that their privacy rights extend to the content of emails or texts utilizing company equipment.

Key elements of such policy include:

• Employee Privacy – There is no reasonable expectation of privacy for the information stored on computers or other devices owned by the company. Further, management should have the right to review any such information at any time;
• Ownership of Information – Any information stored or transmitted a computer, mobile device, etc. owned by the company is property of the company; and
• Acceptable Usage: Employees may only use e-mail or texting on company devices for company business. Communications should be professional and respectful and not degrading, insulting or bullying.

Of course, it is a good idea to require each worker to sign an acknowledgment that he or she has received such written policy and understands his/her obligations to read, duplicate and comply with it.

No Picnic for Employers Who Don’t Know the Rules

While California businesses are not legally required to provide paid vacation days to their employees, there are important rules when this benefit is offered. In this state, there is no “use it or lose it.” The fancy first year law school term means that paid vacation is an “accrued benefit.”

Thus, a written policy simply providing a full time worker “one week paid vacation” each calendar year will mean that the employee who doesn’t bother taking that time off for, say, ten years is going to have ten weeks of pay coming to him or her.

As vacation benefit “accrues” throughout an annual cycle, a worker who ends employment in the middle of that year will have earned his or her proportionate share of the full annual benefit. An employer who neglects to pay that proportionate amount on the employee’s departure will be subject to a penalty of as much as one month’s wages.

The solution is a written paid vacation policy that specifies a maximum amount a worker can accrue (for example, 18 months of benefits). Such a policy will direct the worker to utilize paid vacation, after which the benefit can begin accruing again up to the specified limit.

Among other things, a decent written vacation policy should also specify the advance time required for a worker to request and coordinate his or her time away.

California law treats sick pay benefits differently. That’s the subject of a future article. Please contact us to answer the more detailed questions.

EEOC Investigates Discrimination Against the Unemployed

A recent trend in on-line job ads has caught the attention of the federal Equal Employment Opportunity Commission (EEOC). That agency is holding hearings at their Washington D.C. headquarters today on why some businesses are choosing to exclude the unemployed from consideration for job openings.

Lines like “must be currently employed” or “no unemployed candidates will be considered” have been appearing on on-line job listings and websites, enough to warrant the EEOC’s attention. Apparently, the businesses running such ads would contend they are justified on the presumption that individual joblessness stems largely from performance problems rather than the slumped economy. While this is not overtly aimed at any particular sector of the unemployed (e.g., racial minorities, women, the disabled), the inquiry will focus on whether this practice has the effect of such unlawful discrimination on the basis of race, color, national origin and the like.

While the unemployed are not a class protected against discrimination per se, there is not necessarily a correlation between being out of a job and the ability to perform one. As such, it is probably best to steer clear of such language when seeking out a new hire.

Sounding the Alarm on Off-The-Clock Work

We are lawyers, not magicians. Yet, we have received perhaps more than our share of requests to turn back time. If only that employer client could have it all back, to start out the right way on workplace timekeeping and compensation practices.

While we cannot put the proverbial toothpaste back in the tube, we can offer some tips on avoiding future wage-and-hour litigation disasters stemming from accusations that a company required or allowed employees to work off-the-clock without paying them.

1. Understand the difference between “exempt from overtime” and “non-exempt” and ensure your human resources department is properly classifying employees. A disproportionate number of salaried, supposedly “exempt” workers means there are probably errors in need of attention;

2. You MUST pay non-exempt employees for ALL hours worked, even if management did not ask for the time to be spent or even if the work was against management’s directions. The solution is appropriate discipline for violating applicable schedule and timekeeping rules, not to withhold pay;

3. So that employees are on clear notice of those rules, ensure your handbook includes written policies that establish:

– Workers are to keep standard work schedules and not to start early or stay over without management’s written authorization;

– Off-the-clock work is not permitted;

– Employees must log their working hours accurately;

– Employees who violate hours and timekeeping policies will be disciplined;

– Likewise, managers who authorize such violations, including off-the-clock work, will be disciplined; and

– Employees need not fear retaliation for reporting any such violations;

4. Maintain written timekeeping records – either hard copy and/or computerized – that require non-exempt employees to legibly and honestly document their own daily start, meal break, and departure times and, for each pay period, to verify in writing the accuracy of their report; and

5. Ensure management is uniformly enforcing these policies and practices.

In its article “New Year, New HR Ideas,” California Employer Daily recently passed on three key actions employers should consider at the beginning of the year, courtesy of James J. McDonald, Jr., managing partner of the Irvine office of Fisher & Phillips, LLP. We thought these were pretty spot-on ideas worth sharing:

“1. Get Your Handbook Ready – If you don’t have an employee handbook, have one prepared and ready to distribute at the beginning of the new year. A good employee handbook makes clear what is expected of employees. It reduces the likelihood of inconsistent application of policies that can lead to discrimination claims, and it ensures that every employee has been informed of important policies, such as the policy against harassment, employment at will and arbitration of disputes.

“2. Review Your Overtime Classifications – If the overtime exempt status of some employees seems questionable, the new year is a good time to reclassify them as non-exempt. Pay particular attention to office employees who perform mostly routine work, “leads” in manufacturing or service jobs, and retail managers who spend most of their time serving customers. Job descriptions for employees switched to non-exempt status should be revised to more accurately reflect their job duties.

“3. Consider Pay-for-Performance- Instead of granting automatic pay raises at the first of the year or on an employee’s anniversary date, consider implementing a pay-for-performance plan that ties employee compensation to job performance and/or the overall performance of the company.

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Source: California Employer Daily

When Employers Must Compensate for Worker Education

Must an employer pay a worker for the latter’s training hours? Like most areas of employment law, the answer is: “It depends.” The basic question is whether an employee is pursuing that training a) to become more knowledgeable and skilled at his/her current position (in which case, the employer must pay for those hours); or b) to become knowledgeable or skilled at another, advanced position, either at the company or elsewhere (in which case, it is possible employer may not have to pay for those hours). A safe rule-of-thumb is that a business will almost certainly be required to compensate an employee for hours spent training unless such training meets all of these criteria:

• The activity occurs outside of regular working hours;
• The employee knows and acknowledges attendance is voluntary;
• The training is conducted through a separate vendor and preferably outside the employer’s premises;
• The seminar, course or meeting is not directly related to the employee’s current job; and
• The employee does not perform any labor that directly benefits the employer during such an activity, i.e., the work done during training is for practice and not to produce or to support the production of the employer’s goods or services.

The absence of any one of these factors could require employee compensation. For example, even if the employee is not required to attend the training, the company will have to compensate that worker if that training is offered during that employee’s normal working hours.

The full rules can be complicated. The review of an experienced employment attorney a good idea when structuring employee training programs.

Employers Should Not Flunk the Process

Properly conducted employee performance evaluations can be an excellent tool for enhancing management – workforce communications. Such assessments provide administrators the opportunity to communicate their views to a worker on that person’s performance before a bad habit becomes a destructive disruption. Employees may use the process for communicating satisfaction or dissatisfaction with working conditions. Tips include:

– Fair, Consistent Process: The evaluation process should be as uniform and objective as possible, with a standard set of questions and judging criteria. Assessments that vary in thoroughness or subject matter from employee to employee or those that stray into subjective territories (e.g., someone’s taste in ties) may generate discrimination claims if person perceives unequal treatment on the basis of national origin, gender, age, religion or any of the other classifications protected by law.

– Criticism Should be Constructive: While management should not shy away from dealing with negative job performance in an evaluation, it should couple criticism with suggestions for improvement.

– Documentation: All evaluations should be in writing. Procedures and forms should provide the subject employee open opportunity to offer in writing his/her self-evaluation and as well as comment on the performance evaluations from others. Forms should include an ending section for the worker to sign as acknowledgment he/she has received the evaluation and has had the opportunity to comment, respond, etc.

– Trained Evaluators: Employers should make sure evaluators are well trained on the duties and skills of each worker’s position and to evaluate objectively the job performance of employees, avoiding extraneous questions or statements that could be construed as discriminatory.

– Appeals: Written evaluation policy and procedure should include the employee’s opportunity to appeal to senior management if that employee finds an evaluation unfair or incomplete.

An experienced employment attorney can often help management sort out the details of such policies and procedures or their application.