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* Jeffry D. Proul, Registered Representative of LifeMark Securities Corp., 400 West Metro Financial Center, Rochester, NY 14623 (585) 424-5672 Member NASD/SIPC Vital Signs Insurance Services, Inc. is not affiliated with LifeMark Securities Corp. CONFIDENTIALITY NOTICE: Communications are Confidential Information of LifeMark Securities Corp. and may also be privileged.

HR News

HR Advisor Newsletter

Can We Ask About An Employees Health

By |October 21st, 2019|

Question:
We’ve heard from staff that one of our employees suffers from chronic back pain. We’re concerned that this employee’s job duties may be aggravating their condition. Can we ask them about this?

Answer from Margaret, PHR, SHRM-CP:

No. Unless you have objective evidence such as direct visual observation that the back pain is interfering with the employee’s work, you should leave it alone. If at some point in the future it becomes apparent that the employee is having issues while working (for example, unable to lift as usual, holding their back, groaning, etc.), then you should definitely speak with them to understand if there may be some restrictions that would affect their ability to continue doing the essential functions of their job. If so, you should discuss whether there is a reasonable accommodation you can offer to make that possible. You may be able to request documentation from the employee’s health care provider concerning applicable restrictions and duration to help with this process and determination.

So, unless a disability becomes apparent through observation, or is reported to you by the employee themselves, their family member, or a doctor, you should not assume one exists or that it would affect their ability to perform their job. Doing so can lead to discrimination claims as well as poor morale and hurt feelings.

Margaret holds a Bachelor of Arts degree in Psychology from Portland State University and a Professional Certificate in Human Resources Management. She has worked in a variety of HR roles in a multi-state capacity. Margaret regularly attends seminars and other continuing education courses to stay current with new developments and changes that affect the workplace and is active in local and national Human Resources organizations.

Questions?
Vital Signs Insurance Services, Inc.
PO Box 6360
Folsom, CA 95630
Phone: (916) 496-8750
Email: [email protected]
Fax: (916) 496-8754[/fusion_text]

Termination vs Layoff | Unlawful Termination

By |October 19th, 2019|

Question:
Does presenting a termination as a layoff reduce the risk of an unlawful termination claim? We have a new manager who’s not performing well that we want to let go.

Answer from Kim, SPHR, SHRM-SCP:

No. In fact, it could create more risk. If the terminated manager saw that you were hiring again for the position you were supposedly eliminating, they’d likely start thinking of reasons you would lie to them about why they were terminated. Since poor performance would be a perfectly legal reason for a termination—and one which you could have shared—they will likely start thinking of potential illegal reasons for their termination. While an investigation or litigation might not go far, any time spent dealing with an angry former employee (if it could have been avoided by telling the truth), is time wasted.

In this case, we would recommend putting the manager on a performance improvement plan and documenting their progress (or lack thereof). If the employee’s performance doesn’t improve within the time frame set by the performance improvement plan, you’re on much safer ground to terminate their employment. If their performance does improve, then you’ve got a winning situation; you have someone performing well in the role and you avoid the risks of termination as well as the added costs of finding a replacement.

Kim is a results-driven HR Professional with experience from diverse industries, including but not limited to, transportation, environmental services, staffing, pharmaceutical, market research, banking, retail, software development and education non-profit. In her spare time, Kim enjoys the beautiful view from her home and being with her husband and their German shepherd, Fin.

Questions?
Vital Signs Insurance Services, Inc.
[email protected]
PO Box 6360
Folsom, CA 95630 Phone: (916) 496-8750
Email: [email protected]
Fax: (916) 496-8754
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Independent Contractor Test

By |October 18th, 2019|

California Law Alert
October 11th, 2019

The ABC Independent Contractor Test

Recently, the California Legislature codified much of a previous California Supreme Court ruling relating to independent contractor classifications. For a worker to be properly classified as an independent contractor (sometimes called a “1099 contractor” or “1099 employee” ), they must pass certain tests under federal and state law. California employers have been subject to the “ABC test” since April of 2018 because of a California Supreme Court ruling. Effective January 1, 2020, the ABC test will become part of California’s statutes as well.

The fact that the law is now written into the Labor Code is drawing significant attention, much of which is focused on the gig economy and its workers. But the test applies to all employers. The primary difference between the law now and the law as of January 1 is that the new statute includes certain types of workers that will not be subject to the ABC test, but instead a less strict test (Borello) .

The ABC Test
A worker may be classified as an independent contractor only if:

A. The worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact;
B. The worker performs work that is outside the usual course of the hiring entity’s business; and
C. The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.

Unless all three elements are true, the worker will be considered an employee. A more in-depth look at each of these three factors can be found on the HR Support Center by searching for ABC test with the search bar.

Be aware that the right to be treated as an employee cannot be waived, so even if a worker begs to be paid as an independent contractor and signs something to that effect, they must be treated as an employee unless they pass the applicable test.

The Exceptions
The workers listed below will not be subject to the ABC test, but instead the Borello test. The factors evaluated in Borello still create a fairly high bar for classifying a worker as an independent contractor, which is explained below.

Workers exempt from the ABC test but subject to Borello include the following:

• Licensed insurance agents
• Certain licensed health care professionals
• Licensed lawyers, architects, engineers, private investigators, and accountants
• Registered securities broker-dealers or investment advisers
• Direct salespeople who are exempt from unemployment insurance
• Real estate licensees (may be subject to tests other than Borello)
• Commercial fishermen
• Certain providers of professional services (full list in the HR Support Center)
• Others performing work pursuant to a subcontract in the construction industry if certain criteria are met

The Borello Test
The Borello test is a multi-factor test, similar to the DOL’s Economic Realities test for independent contractors. The primary factor is whether the employer has control or the right to control the work done as well as the manner and means in which the work is performed. Borello provides eleven more factors or questions that will help you determine the appropriate classification for a worker. An employer must evaluate the answers as a whole and determine whether the working relationship and conditions point toward an employee or independent contractor relationship. You can find this test by searching for Borello using the search bar on the HR Support Center.

Questions?
Vital Signs Insurance Services, Inc.
PO Box 6360
Folsom, CA 95630
Phone: (916) 496-8750
Email: [email protected]
Fax: (916) 496-8754

Screening Social Media Accounts of Job Candidates

By |September 25th, 2019|

Question:
Do you recommend screening the social media accounts of job candidates? I’ve heard some companies do that.

Answer from Laura, SHRM-CP:

Some companies choose to review the social media accounts of job candidates, usually with the hope of spotting any red flags or assessing “cultural fit,” but we recommend against doing so.

First, it creates extra risk. You could be exposed to information about the candidate’s protected classes, such as their race, age, or religion. If your ultimate hiring decision was challenged, you would need to prove that those characteristics were not a factor in your decision.

Second, your application and interview process should provide you with sufficient information to determine whether a candidate is qualified and would contribute to your culture. You shouldn’t need to get into the private lives of candidates to determine whether they’re the right person for the job.

Laura has 7 years of HR experience, spanning public- and private-sector work in the education, transit, and insurance industries. After completing a B.A. in Asian Studies from Knox College, she received her M.A. in Industrial/Organizational Psychology from University of New Haven along with graduate-level certificates in Human Resources Management and Psychology of Conflict Management. Laura enjoys fencing, baking, cross-stitching, and spending time with her husband and two cats.

Questions?
Vital Signs Insurance Services, Inc.
PO Box 6360
Folsom, CA 95630
Phone: (916) 496-8750
Email: [email protected]

 

Legal Disclaimer: The HR Support Center is not engaged in the practice of law. The content in this article should not be construed as legal advice, and does not create an attorney-client relationship. If you have legal questions concerning your situation or the information you have obtained, you should consult with a licensed attorney. The HR Support Center cannot be held legally accountable for actions related to its receipt.

Guide to Running Background Checks

By |September 18th, 2019|

Question:
We don’t typically do background checks, but we’re hiring a driver who will be operating a company vehicle. We want to do a background check for this position, but since we’ve never done one for anyone else, we’re worried it would look discriminatory.

Answer from Kate, SHRM-CP:

You may conduct a background check for this job even though you haven’t done one for others. You can elect to run a background check on only certain positions based on the nature of a position, but you’ll want to be consistent for all individuals in a specific position. if you only ran a check on this candidate, that could certainly appear discriminatory. Additionally, as a best practice, we recommend that background checks be done after a conditional offer of employment has been made.

In this case, it would be logical to look for and consider DUIs, traffic tickets, and any convictions related to the work the candidate would do for you. We would recommend, however, against making a hiring decision based on convictions or other information that are not relevant to the job. If you receive results that you believe would preclude an employee from working for your company, it’s very important to allow the employee to dispute the negative information before you make any decisions.

If you decide to do a background check, there are state and federal laws governing when and how they should be done, which you can learn more about on the Laws pages in the HR Support Center.

Kate has several years of experience working in customer service and quickly moved into HR. She graduated from the University of Oregon with a Bachelor of Science in Psychology. Kate loves to explore the country with her husband and friends.

Questions?
Vital Signs Insurance Services, Inc.
PO Box 6360
Folsom, CA 95630
Phone: (916) 496-8750
Email: [email protected]
Fax: (916) 496-8754

Legal Disclaimer: The HR Support Center is not engaged in the practice of law. The content in this article should not be construed as legal advice, and does not create an attorney-client relationship. If you have legal questions concerning your situation or the information you have obtained, you should consult with a licensed attorney. The HR Support Center cannot be held legally accountable for actions related to its receipt.

California Law Alert | Harassment Training

By |September 6th, 2019|

California Law Alert
September 5th, 2019

California Harassment Training Deadline Extended

California has passed an emergency bill to extend the deadline for the first round of sexual harassment training by one year. Previously, employers with five or more employees were required to provide interactive sexual harassment prevention training to all employees in California by January 1, 2020; the deadline is now January 1, 2021.

The substantive requirements remain the same. Employers must provide:

  • At least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees
  • At least one hour of classroom or other effective interactive training and education regarding sexual harassment to all non-supervisory employees
  • “Refresher training” every two years thereafter
  • The applicable training within six months of hire for new employees or within six months of entering a supervisory position
    Employers who provide training that complies with the law in 2019 do not need to do so again until two years have passed from the date of training. For instance, if you trained all employees on July 14, 2019 (good work!), you would have until July 14, 2021, to retrain those same employees. However, if you hire new employees or promote any existing employees to supervisory positions, they need to receive the applicable training by January 1, 2021.

A Catch: Seasonal and Temporary Employees
The training timeline was not changed for seasonal and temporary employees. Beginning January 1, 2020, employers must provide training for seasonal and temporary employees, as well as any employee who is hired to work for less than six months, within 30 calendar days of hire or within their first 100 hours worked, whichever comes first. Temporary services employers are responsible for training their employees.

Why is there a different timeline for seasonal and temporary employees? Think of it this way: California wants everyone who holds a job in 2020 to be trained by Jan 1, 2021. To achieve that, the state needs to maintain the previous training timeline for seasonal and temporary employees; otherwise, someone who works only in the summer, or between Thanksgiving and New Year’s Eve, may not receive training by the deadline.

Questions?
Vital Signs Insurance Services, Inc.
PO Box 6360
Folsom, CA 95630
Phone: (916) 496-8750
Email: [email protected]
Fax: (916) 496-8754

Legal Disclaimer: The HR Support Center is not engaged in the practice of law. The content in this article should not be construed as legal advice, and does not create an attorney-client relationship. If you have legal questions concerning your situation or the information you have obtained, you should consult with a licensed attorney. The HR Support center cannot be held legally accountable for actions related to its receipt.

Pay Employees When Your Company Closes Due To Inclement Weather

By |September 4th, 2019|

Question:
If our company closes due to inclement weather, are we required to pay employees? Can we require PTO use?

Answer from Kelley, PHR:

The answer depends on whether the employees are exempt or non-exempt under the Fair Labor Standards Act. Exempt employees must still be paid when you close due to inclement weather. Non-exempt employees, however, only need to be paid for actual hours worked, plus any reporting time pay that may be required by state law. If nonexempt employees are contacted by the employer prior to reporting to work, no pay is due for the day.

That said, you should also be consistent with your own policy and practice. If you have been paying all employees—regardless of their employment classification—for hours they would have worked had you not closed for bad weather, then you should continue to do so. If you would like to end that practice, we recommend creating a clear written policy and distributing it to all employees prior to implementation.

Many employees like the option of using accrued paid time off or vacation when there is an unexpected closure. This is something you can allow, but if your office has closed for weather in the past and you have not required employees to use paid time off or vacation, it would be risky to take up that practice now without giving them a heads up. When it comes to accrued paid time off or vacation, it is safest to give employees advance notice if there are situations where you will use their accrued hours whether they like it or not. Whether you allow or require the use of accrued hours in these circumstances, it’s best to describe your practice in a written policy and ensure employees have a clear understanding of what to expect.

Kelley has 5 years of HR experience in Payroll and Benefits Administration and Employee Relations in small businesses. She graduated from Columbia Southern University with a Bachelor of Science in Human Resources. In her free time, Kelley enjoys spending time outdoors in the beautiful Great Smoky Mountains with her daughter and running races.

Questions?
Vital Signs Insurance Services, Inc.
PO Box 6360
Folsom, CA 95630
Phone: (916) 496-8750
Email: [email protected]
Fax: (916) 496-8754

Legal Disclaimer: The HR Support Center is not engaged in the practice of law. The content in this article should not be construed as legal advice, and does not create an attorney-client relationship. If you have legal questions concerning your situation or the information you have obtained, you should consult with a licensed attorney. The HR Support Center cannot be held legally accountable for actions related to its receipt.

Requiring Employees To Keep Tattoos Covered

By |August 28th, 2019|

Question:
We’re thinking of requiring employees to keep tattoos covered. Is this something we can do? What considerations should we make?

MeganAnswer from Megan, PHR, JD:

Yes, you may prohibit visible tattoos entirely or you may simply prohibit those that are offensive, distracting, inappropriate, or over a certain size.

Tattoo policies usually depend on the culture of the workplace and are often found within a broader dress code policy. Some employers avoid restrictive dress codes because they may deter impressive job candidates from applying or drive away high-performing employees. Employers who want to maintain a certain company image, however, might prefer a strict dress code. Striking a middle path is also an option—something like “Tattoos must be appropriate and in keeping with a professional image.”

When creating your policy, make sure it doesn’t discriminate based on a protected class. This would include, for example, making religious accommodations. You should also be sure to communicate your reasons to employees and apply the policy consistently (while allowing for required exceptions).

Megan graduated from the University of Maryland, magna cum laude, and from Lewis and Clark Law School, cum laude. She has extensive work experience in a variety of industries, which she draws on to help clients with their HR questions.

Questions?
Vital Signs Insurance Services, Inc.
PO Box 6360
Folsom, CA 95630
Phone: (916) 496-8750
Email: [email protected]
Fax: (916) 496-8754

Legal Disclaimer: The HR Support Center is not engaged in the practice of law. The content in this article should not be construed as legal advice, and does not create an attorney-client relationship. If you have legal questions concerning your situation or the information you have obtained, you should consult with a licensed attorney. The HR Support Center cannot be held legally accountable for actions related to its receipt.

Smoking Employees Smell Strongly of Smoke, Employee Oder

By |August 21st, 2019|

Question:
Do we have to give employees who smoke additional smoke breaks or allow them to return to work smelling strongly of smoke? We’ve received complaints from both other employees and customers.

Emily, PHRAnswer from Emily, PHR:

No, you’re not required to provide additional breaks to employees who smoke, and you also don’t have to tolerate them smelling like smoke. These employees can be expected to adhere to the same policies as any other employee. To that end, if you allow for a certain number of breaks of a certain length, employees who smoke aren’t entitled to anything extra. And if you have a policy that addresses smells, you can refer to that when addressing the odor of cigarettes.

If you don’t have specific policies addressing breaks and smells, there’s no time like the present to implement them. Break policies are fairly straightforward, but employers sometimes struggle with delicate issues like hygiene. We recommend saying something like, “The excessive use of perfume or cologne is unacceptable, as are odors that are disruptive or offensive to others or may exacerbate allergies.” This language can be added wherever you think is most appropriate; we fold it into the Personal Appearance and Hygiene policy.

Emily’s robust experience overseeing HR in the non-profit, healthcare, and hospitality industries brings valuable knowledge to clients. She graduated college with degrees in Music and Entrepreneurial Business, and her passion for helping and working alongside people led her to the field of HR. In her free time, Emily enjoys traveling and home brewing.

Questions?
Vital Signs Insurance Services, Inc.
PO Box 6360
Folsom, CA 95630
Phone: (916) 496-8750
Email: [email protected]
Fax: (916) 496-8754

Legal Disclaimer: The HR Support Center is not engaged in the practice of law. The content in this article should not be construed as legal advice, and does not create an attorney-client relationship. If you have legal questions concerning your situation or the information you have obtained, you should consult with a licensed attorney. The HR Support Center cannot be held legally accountable for actions related to its receipt.

One of Our Employees Harassed Another

By |August 14th, 2019|

Question:
We suspect that one of our employees harassed another, but we only have their conflicting stories to go on—no witnesses, video, or emails. The accuser’s account of the incident seems much more credible than that of the accused. Can we discipline with only this information?

Answer from Monica, SPHR, SHRM-CP:

Probably. It would be a good idea to consider whether your investigation was thorough. If it was, and all you have to go on is the testimony of the accuser and the accused, then you should take their credibility into consideration and make a determination based on their respective accounts.

Here are some factors to consider when determining credibility:
• Each employee’s reputation for truthfulness and accuracy
• If the story each employee presents is plausible
• Whether one of the employees has a motive to be untruthful
• Whether one employee’s statements regarding the incident are more detailed and consistent

While disciplining an accused employee who did nothing wrong would be unfortunate, it wouldn’t be illegal. As in all cases of alleged harassment, it’s best to have documentation of the allegations, the steps of your investigation, your conclusions, and any disciplinary actions you took.

Monica has held roles as an HR Generalist and Payroll and Benefits manager at a large ski resort, providing HR guidance to more than 500 employees. She also has HR experience in the healthcare field and the non-profit world. Monica holds a Bachelor of Science degree from Linfield College.

Vital Signs Insurance Services, Inc.
PO Box 6360
Folsom, CA 95630
Phone: (916) 496-8750
Email: [email protected]
Fax: (916) 496-8754

Legal Disclaimer: The HR Support Center is not engaged in the practice of law. The content in this article should not be construed as legal advice, and does not create an attorney-client relationship. If you have legal questions concerning your situation or the information you have obtained, you should consult with a licensed attorney. The HR Support Center cannot be held legally accountable for actions related to its receipt.