Top 10 Ways to Violate California's Wage-Hour Laws
1.
Not understanding which wage order applies to you. Wage orders are issued by the Industrial Welfare Commission (IWC), and there are 17 of them, as well as a minimum wage order. They establish minimum wages and conditions of employment for all employees (even in the public sector) in the covered industries and occupations (unless an exemption applies). If you are in doubt which order applies to your business, check the “Which IWC Order” document on the IWC’s website.
Not understanding which wage order applies to you. Wage orders are issued by the Industrial Welfare Commission (IWC), and there are 17 of them, as well as a minimum wage order. They establish minimum wages and conditions of employment for all employees (even in the public sector) in the covered industries and occupations (unless an exemption applies). If you are in doubt which order applies to your business, check the “Which IWC Order” document on the IWC’s website.2.Misclassifying employees as exempt. Under California law, to qualify for the “white-collar” exemptions (executive, administrative and professional), there are both salary and duty criteria that must be met. It is not enough that an employee perform a certain type of task and be paid on a salary basis; the employee also must earn at least a certain yearly salary—currently $33,280. The salary is equal to twice the hourly minimum wage, computed on an annual basis.
Misclassifying employees as exempt. Under California law, to qualify for the “white-collar” exemptions (executive, administrative and professional), there are both salary and duty criteria that must be met. It is not enough that an employee perform a certain type of task and be paid on a salary basis; the employee also must earn at least a certain yearly salary—currently $33,280. The salary is equal to twice the hourly minimum wage, computed on an annual basis. 3.Not Providing Employees with Required Breaks and Meal Periods. Wage orders dictate the frequency and duration of breaks and meal periods. Generally, a meal period must begin before the end of the fifth hour of work and must be at least 30 minutes long. Usually, breaks are paid and meal periods are unpaid. Employees must be relieved of all duties to be considered on an “off-duty” meal period. Don’t let employees eat at their desks. Let them go outside, get some air. That way it’s possible to know for sure that they are not working.
Not Providing Employees with Required Breaks and Meal Periods. Wage orders dictate the frequency and duration of breaks and meal periods. Generally, a meal period must begin before the end of the fifth hour of work and must be at least 30 minutes long. Usually, breaks are paid and meal periods are unpaid. Employees must be relieved of all duties to be considered on an “off-duty” meal period. Don’t let employees eat at their desks. Let them go outside, get some air. That way it’s possible to know for sure that they are not working.4.Not Properly Paying Employees for All Hours Worked. Non-exempt employees in California must be paid overtime for all hours worked over eight in one day or over 40 in a week; there is no daily overtime requirement under federal law. Eligible employees cannot waive their right to overtime.
Not Properly Paying Employees for All Hours Worked. Non-exempt employees in California must be paid overtime for all hours worked over eight in one day or over 40 in a week; there is no daily overtime requirement under federal law. Eligible employees cannot waive their right to overtime.5.Miscalculating the 'Regular Rate' of Pay. Remember to include bonuses and commissions when calculating an employee’s regular rate of pay for purposes of overtime pay.
Miscalculating the 'Regular Rate' of Pay. Remember to include bonuses and commissions when calculating an employee’s regular rate of pay for purposes of overtime pay. 6.Not Posting Required Information and/or Providing Required Notices. Certain notices and posters must be displayed at each worksite in an area accessible to all employees. Posters and notices must be updated on a yearly basis.
Not Posting Required Information and/or Providing Required Notices. Certain notices and posters must be displayed at each worksite in an area accessible to all employees. Posters and notices must be updated on a yearly basis.7.Failing to Properly Handle Employee Expense Reimbursements, Uniforms and Tools, and Losses. An employee cannot be charged for losses or breakage absent gross negligence or theft.
Failing to Properly Handle Employee Expense Reimbursements, Uniforms and Tools, and Losses. An employee cannot be charged for losses or breakage absent gross negligence or theft. 8.Failing to Appropriately Pay Final Wages. When issuing an employee his or her final payment, it’s OK to deduct anything you usually deduct, Shaw said, but “you can’t use the final check to play ‘catch-up.’ ” Anything that an employee may owe to the employer—such as reimbursement for tuition assistance—cannot be deducted from the final check. The employer may have to go to small claims court to recoup its loss.
Failing to Appropriately Pay Final Wages. When issuing an employee his or her final payment, it’s OK to deduct anything you usually deduct, Shaw said, but “you can’t use the final check to play ‘catch-up.’ ” Anything that an employee may owe to the employer—such as reimbursement for tuition assistance—cannot be deducted from the final check. The employer may have to go to small claims court to recoup its loss. 9.Maintaining an Unlawful Vacation Policy. In California, no “use-it-or-lose-it” policies are allowed, but a “reasonable” accrual cap is allowed.
Maintaining an Unlawful Vacation Policy. In California, no “use-it-or-lose-it” policies are allowed, but a “reasonable” accrual cap is allowed. 10. Misclassifying Employees as Independent Contractors. Very few people are actually considered to be independent contractors in California.
How To Give Effective Feedback: Praise vs. Criticism
Feedback is the key to nurturing good performance, and something that we can all benefit from. Praise for a job well done can encourage continued success while constructive criticism for poor performance can drive necessary improvements and eliminate or reduce mistakes.
Preparation
•How is the feedback likely to affect the employee?
How is the feedback likely to affect the employee? •What exact words will you use?
What exact words will you use? •How would you feel if someone said that to you?
How would you feel if someone said that to you? •What can you say to maintain the employee’s self-esteem?
What can you say to maintain the employee’s self-esteem? •How can prioritize feedback and limit the conversation to a few, salient points?
How can prioritize feedback and limit the conversation to a few, salient points? •Is the timing right? If not, is it best left unsaid?
Is the timing right? If not, is it best left unsaid?Check your invitation
•Feedback is most effective when the recipient has asked for it. Try to avoid the "can I give you some feedback?" approach.
Feedback is most effective when the recipient has asked for it. Try to avoid the "can I give you some feedback?" approach. •Encourage employees to ask for feedback themselves.
Encourage employees to ask for feedback themselves. •Develop a culture where 360 degree feedback is provided.
Develop a culture where 360 degree feedback is provided.Watch carefully
•How is the recipient taking the feedback?
How is the recipient taking the feedback? •Watch for changes of expression and position.
Watch for changes of expression and position. •Are there any changes in eye contact and sideways glances?
Are there any changes in eye contact and sideways glances? •Avoid making judgments and statements such as: 'You should...' or 'You ought to...'
Avoid making judgments and statements such as: 'You should...' or 'You ought to...'Small doses
•Small doses are best -- soon after the event.
Small doses are best -- soon after the event. •Give positive feedback first to encourage the employee to change.
Give positive feedback first to encourage the employee to change. •Limit negative feedback to two or three items.
Limit negative feedback to two or three items. •End with something positive: it lifts self-esteem.
End with something positive: it lifts self-esteem.Be specific
•Describe what you have observed, not why you think it happened.
Describe what you have observed, not why you think it happened. •Focus on behavior, not personality.
Focus on behavior, not personality. •Help the employee see what things could be like if s/he makes the requested changes.
Help the employee see what things could be like if s/he makes the requested changes.Improve your evidence
•Remember your data reflects your prejudices and agendas.
Remember your data reflects your prejudices and agendas. •Continually strive to build up a more complete picture of events.
Continually strive to build up a more complete picture of events. •Whenever possible, get third-party evidence, especially customers'.
Whenever possible, get third-party evidence, especially customers'. •If the employee rejects your feedback, it is just possible that s/he may be right.
If the employee rejects your feedback, it is just possible that s/he may be right. •Do not become defensive: go and collect more information.
Do not become defensive: go and collect more information.Offer support
•Offer your support in any changes you have discussed.
Offer your support in any changes you have discussed. •Focus on the employee's strengths.
Focus on the employee's strengths. •Leave the employee feeling s/he can rely upon you.
Leave the employee feeling s/he can rely upon you.On Wellness Programs
Offering a wellness program to employees is no different from any other business initiative: You need to have a stated goal or objective. You have to consider:
• Is this an important initiative upon which to expend resources?
• What will the company gain?
• What will employees gain?
Wellness programs can be very effective at reducing health care costs, creating good will among employees, improving productivity and reducing health risk factors in an employee population. There are five key rules for implementing a successful program:
Rule 1: Wellness programs are most effective when designed to target known health risk factors in an employee population, such as weight problems, smoking, poor eating habits and lack of exercise. With knowledge about the characteristics of your employees, a program can be designed to fit their needs.
Rule 2: Understand that if no one participates or makes needed lifestyle changes, the initiative has failed. The employer offering the program must be committed to helping employees make needed lifestyle changes. Success factors include an effective, persistent communication program, providing rewards to motivate employees to succeed, and starting small and building on success.
Rule 3: Remove any barriers in the health benefit program that would impede the success of the program (i.e., preventive care, smoking-cessation drugs or obesity treatments that are not covered by health insurance).
Rule 4: Never offer a wellness program on a casual basis. Use a combination of rewards and penalties to maximize participation in the program. An example would be lower premiums for smokers participating in a smoking-cessation program than for smokers who do not participate; or cash rewards for employees who achieve a significant reduction in their body mass index.
Rule 5: If the leaders of your organization are not behind the program 100 percent, it will fail. This requires them to passionately commit to making changes and supporting others to change through their example.
WE GET QUESTIONS:
1.How can we best deal with an employee who is repeatedly late for work?
How can we best deal with an employee who is repeatedly late for work?If an employee is repeatedly late for work, it's best to deal with the problem promptly and directly. Here are tips on what to do:
•Document the problem. Every incident (and for every employee)
Document the problem. Every incident (and for every employee)•Schedule a time to have a one-on-one conversation with the individual involved. Begin the conversation by noting your observations. Be simple and straightforward: "I've noticed that you've been late three times in the last week." Avoid accusing the employee of breaking rules or policies.
Schedule a time to have a one-on-one conversation with the individual involved. Begin the conversation by noting your observations. Be simple and straightforward: "I've noticed that you've been late three times in the last week." Avoid accusing the employee of breaking rules or policies.•Find out why the employee is repeatedly late. You might say, "You were half an hour late yesterday and several other times recently. Could you provide an explanation?"
Find out why the employee is repeatedly late. You might say, "You were half an hour late yesterday and several other times recently. Could you provide an explanation?" •Make sure that all employees are familiar with your organization's policies on lateness and absenteeism. Include the policy in your employee handbook, talk about it at a staff meeting or post the policy on the wall in the break room or other common area. Tell new employees as soon as they start.
Make sure that all employees are familiar with your organization's policies on lateness and absenteeism. Include the policy in your employee handbook, talk about it at a staff meeting or post the policy on the wall in the break room or other common area. Tell new employees as soon as they start.•Set a good example. You can't expect employees to respect attendance and tardiness policies if you are late yourself.
Set a good example. You can't expect employees to respect attendance and tardiness policies if you are late yourself. 2.We have an employee whose primary duty involves driving for the company. We recently learned she has a conviction for drunk driving. Should we terminate her?
We have an employee whose primary duty involves driving for the company. We recently learned she has a conviction for drunk driving. Should we terminate her? Before making a decision to terminate, you should consider laws such as the Americans with Disabilities Act (ADA), as well as guidance from the Equal Employment Opportunity Commission (EEOC) relative to criminal convictions and disparate impact. In addition, you will need to consider the risks associated with continuing to allow this employee to drive for your company. And, of course, you should consult with your company’s legal counsel before making an employment decision.
With regard to the ADA, guidance from the EEOC indicates that “a person has a disability if he/she has a physical or mental impairment that substantially limits one or more major life activities, a record of such an impairment, or is regarded as having such an impairment.” Therefore, people with alcoholism who are substantially limited in a major life activity may have a disability under the ADA. However, even if a person with alcoholism meets the definition of an individual with a disability, an employer may discipline, discharge or deny employment to an alcoholic whose current use of alcohol adversely affects job performance or conduct to the extent that he or she is not “qualified.”
With regard to possible disparate impact situations, the EEOC guidelines require employers to consider three factors when making employment decisions based on criminal convictions:
•The nature and gravity of the offense.
The nature and gravity of the offense.•The amount of time that has passed since the conviction or completion of the sentence.
The amount of time that has passed since the conviction or completion of the sentence. •The nature of the job held or being sought.
The nature of the job held or being sought. Thus, an argument could be made for the termination of an employee whose primary duty is driving a company vehicle and who has a history of driving under the influence (DUI) and a recent DUI conviction. However, this is not a step to be taken lightly, and employers would be well advised to consult company legal counsel before making such a decision.
The third issue the employer should consider is the potential liability if the employee drives a company vehicle under the influence of alcohol and causes an accident. It is possible, though far from certain, that an employer could be held liable for such an incident. If an employee was driving a company car in furtherance of the employer’s business (on a delivery, for example), it is possible an injured plaintiff could show an employer is vicariously liable.
Additionally, if the employer knows the employee is drunk or heavily medicated and the employer entrusts the company vehicle to the employee, the company could also be held liable for the employee’s actions. The outcome of these situations will depend on the particular facts involved, and potential risks should be discussed with an attorney.
Resources:
Shaw/Valenza LLP
Ceridian
gibilit
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All materials, training, and services offered by RSJ/Swenson LLC are offered and sold with the understanding that it is not engaged in rendering legal counseling or other professional service. If legal counseling or other professional assistance is required, the services of a competent practitioner in the relevant area should be sought.
RSJ/SWENSON QUARTERLY NEWSLETTER
HUMAN RESOURCES AND MANAGEMENT NEWS October2009
October2009IN THIS ISSUE
TOP 10 WAYS TO VIOLATE CALIFORNIA'S WAGE-HOUR LAWS
HOW TO GIVE EFFECTIVE FEEDBACK: PRAISE VS. CRITICISM
ON WELLNESS PROGRAMS
WE GET QUESTIONS
This newsletter, like all materials, training, and services offered by RSJ/Swenson LLC are offered and sold with the understanding that it is not engaged in rendering legal counseling or other professional service. If legal counseling or other professional assistance is required, the services of a competent practitioner in the relevant area should be sought.
At RSJ/Swenson, our mission is to support businesses like yours with training, products and services designed to reduce your liability and simplify your life. We work with you to put together your employee handbook; to ensure you're compliant with state and federal labor laws and practices and provide non-harassment training. Give us a call at 818.461.1874 or visit our web site at www.rsjswenson.com and see how our solutions can benefit your business.
