HR News

When Are My New Employees Officially On the Clock?

In an effort to make a new employee’s first day of work as productive as possible, many companies schedule an earlier date for New Hire Orientation (NHO) or onboarding activities such as completing tax forms, reviewing the employee handbook, and covering general training topics. However, problems arise when employers do not consider NHO to be work, and do not pay the new employee properly for the time.

You may be thinking, “The person hasn’t even started work yet. Why should we be expected to pay wages?”
The Fair Labor Standards Act states that when an individual is “suffered or permitted to work,” the time must be paid.

You may still be thinking, “How can filling out new-hire forms be considered ‘work’?”
The Industrial Welfare Commission Wage Orders define hours worked as “the time during which an employee is subject to the control of an employer.”

Therefore, if you instruct a new employee to be at your office for a certain amount of time to begin the NHO process, (s)he is effectively under your control, and is considered to have started work on that date, and entitled to reporting time pay. This activity triggers your responsibility to verify eligibility to work in the United States within three business days, and your responsibility to accurately track and pay for all hours worked.

To minimize confusion and potential compliance errors, we recommend dedicating a substantial portion of the new employee’s first workday to completing all steps of your NHO process. While the day may not result in measurable productivity, it presents an ideal opportunity to talk with the individual about your company’s history, mission and organizational structure, thoroughly review the job description and performance evaluation standards, make introductions to co-workers, cover general safety training, and other activities that will allow your employee to feel welcomed and confident in the new position. These onboarding practices will ensure that the hire date is correctly stated in your records, (s)he is paid correctly for all hours worked, and get the employment relationship started on the right foot.

Time Off For New Fathers?

Every June, we celebrate the fathers in our lives and appreciate that, in general, men are more involved in childcare than previous generations.

However, according to a nationwide study conducted by the Society for Human Resources Management, only 12% of fathers took time away from work to bond with a new baby, compared with 69% of mothers. In many companies, there is confusion on the part of employees and managers alike about the amount of time new dads may, or may not be entitled to take.

Companies with 50 or more employees are covered by the federal Family and Medical Leave Act and the California Family Rights Act, which provide up to 12 weeks of protected leave for the purposes of baby bonding (among other qualifying events). Employers in this category should have well-established procedures for determining employees’ eligibility for leave and accurately administering the time off.

Time-off decisions can be more difficult for smaller employers. Friends, relatives, and California’s Paid Family Leave program may contribute to misconceptions that everyone has the right to time off when a new baby arrives. And while California’s Pregnancy Disability Leave Act provides women with up to 4 months of protected leave when disabled by pregnancy or childbirth, there is no baby-bonding provision for new fathers.

The Paid Family Leave program provides partial income replacement when an employee takes an employer-approved leave of absence, but does not create the entitlement to take time off. An employer with fewer than 50 employees may provide a discretionary leave of absence to a male employee during this time, but there is no legal obligation to do so.

Employers who choose to provide discretionary leaves for new fathers should take the following items into consideration:

• While the leave may be granted on an individual basis, managers should aim for consistency among staff members, minimizing confusion and potential morale problems.
• Company policy may determine whether the employee will be limited to using accrued vacation/PTO, or whether some or all of the leave may be unpaid.
• For lengthy periods of time-off, consider implications to group health plan eligibility and arrange for payment of the employee’s portion of monthly premiums.
• Set clear expectations for return to work, and establish that the company may request the employee return earlier than planned to meet business needs.

It can be challenging to balance your company’s desire to provide a family-friendly workplace with ever-changing business demands. For assistance in tackling any family or medical leave concern, please contact Sierra HR Partners.

State Mandated Paid Sick Leave (AB 1522) Effective July 1, 2015

Touted as the “Healthy Workplaces, Healthy Families Act of 2014,” the State of California has mandated paid sick leave starting July 1, 2015. By law, an eligible employee accrues paid sick leave rights at the rate of one hour for every 30 hours worked. Not all employees are eligible for this benefit. For example, this law carved out exemptions for employees covered by certain collective bargaining agreements, and those who provide MediCal in-home supportive services.

By our calculation, if an employee works 40 hours per week, then he or she can accrue 69.3 hours of paid sick time off per year. But the law also states that an employer is not obligated to allow an employee to accrue more than 48 hours, or six days, of paid sick leave, provided the employee’s rights are not otherwise limited. In addition, an employer may limit an employee’s use of paid sick days to 24 hours in each year of employment.

An exempt employee is deemed to work a 40-hour schedule, unless his/her schedule is less than 40 hours per week. The law does not differentiate between overtime and regular hours for non-exempt employees. Conceivably, workers earn paid sick time on all hours worked, creating an extra administrative task in tracking accrual of paid sick time benefits.

If utilizing the accrual method, rather than front-loading PSL, unused sick leave carries over to the following year of employment. If the employment relationship is severed, but the employee is rehired within one year of the date of separation, the employee is entitled to use any accrued but unused sick days upon rehire.

Employers will be required to display a new poster detailing information about paid sick leave. Moreover, the ‘Notice to Employees’ has been amended to include a notice regarding paid sick leave rights.

Records regarding sick leave accrued and used must be kept for three years. And if paid sick leave days were unlawfully withheld, the employer is penalized at least $250 with an administrative penalty not to exceed $4,000. Liquidated damages can also be imposed against an employer who withholds paid sick leave benefits.

This new law requires employers to make significant changes to their sick leave policies. For those clients who use Sierra HR Partners or FLC for their handbooks, we provide the information necessary to make the required changes during our “Year in Review” held in December. We will also provide a model sick leave policy.

Disability and Accommodation: California’s Fair Employment and Housing Act

According to the U.S. Census Bureau Americans with Disabilities 2010 Report, there are 56.7M people living with a disability in the United States, or nearly 1 in 5 Americans. With such a large number, it is likely that your workplace encounters applicants and employees with some form of a disability.

Employer Responsibilities

If you employ five or more employees then you are considered a covered employer under the FEHA, which means that you cannot discriminate or harass an applicant or employee for an actual or perceived disability. It also requires that you reasonably accommodate unless you can show that to do so would cause an undue hardship. Reasonable accommodation requires a timely, good faith, individualized interactive process between you and the employee, applicant or the individual’s representative. This process involves exploring options for allowing the applicant or employee to perform the essential functions of the job.

Sample Prohibited Employment Inquiries:

• Medical or psychological examination or questions
• Asking about mental or physical disability or medical conditions
• Probing into the nature and severity of a mental or physical disability or medical condition
• Questions related to workers’ compensation claims
• Attendance questions that lead to disclosure of medical leaves

• Modified work schedule
• Job restructuring
• Providing a leave of absence or time off for medical treatment
• Adjusting or relocating a work area
• Allowing employee to work from home

Applicant/employee protections under FEHA are separate and in addition to the rights and responsibilities that employees may be entitled to under the California Family Rights Act, Family Medical Leave Act and Workers’ Compensation laws.

Sierra HR Partners is available to answer any questions.

At a Premium: Paying Employees NOT to Work

As managers and HR professionals, we know that accurately tracking and paying employees’ hours worked can be tricky. The matter becomes even more challenging when you consider certain types of premium pay that may be due to employees when they are not working.

Reporting Time: If an employee reports to work and is furnished with less than a full day’s shift, the organization must pay the employee for half of the regularly scheduled hours, with a minimum of two hours’ pay, but not more than four hours’ pay. If an employee is required to report back to work a second time in the same day, he/she must receive at least two hours’ pay. There are exceptions to this rule including when work is interrupted by an act of God, public utility failure, or threats to the organization. Reporting time also applies if an employee is terminated without notice and is provided with less than half of the usually scheduled shift on the final day.

Split-Shift Pay: A split shift occurs when an employee is scheduled for two distinct work times in one day, such as 7:00am to 10:00am, and then again from 1:00pm to 5:00pm. When there is an unpaid interruption of more than one hour, the employee must be paid an additional premium hour at minimum wage. However, the premium pay is not required if the employee’s pay for hours worked equals at least minimum wage plus the additional hour. For example, an employee earning $9.00 per hour would earn $72 for eight hours worked. With a split-shift premium of one hour, total pay for the day would increase to $81. If the employee’s hourly rate were $10.50, s/he would earn $84 for his/her work hours, and no additional premium would be due.

These types of premium pay are not considered hours worked, and do not count toward calculations for overtime or vacation accrual. Failure to provide premium payments could lead to a claim for waiting time penalties and attorney’s fees, so it is important to understand when they are triggered and how much is due.

Finally, be sure to stay in compliance with Labor Code section 226 by separating actual hours worked from any premium hours on employees’ paycheck stubs.