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HR News

HR Advisor Newsletter

Keep Your OSHA 300 Logs Up-to-date

By |August 16th, 2018|

Question:
Do I have to keep my OSHA 300 Logs up-to-date during the retention period?

Answer from Monica, SPHR, SHRM-CP:

Employers must retain all OSHA Forms for Recording Work-Related Injuries and Illnesses (300, 301, and 300A) for a period of five years following the end of the calendar year the records pertain to. OSHA also requires that employers update their stored 300 Logs during this five-year period if changes occur. Changes include newly discovered recordable injuries or illnesses and any changes that have occurred in the classification of previously recorded injuries and illnesses. If the description or outcome of a case changes, you should remove or strikethrough the original entry and enter the new information.

There is no requirement to update the 301 or 300A, though we recommend that all records are kept up-to-date as a best practice. So, to summarize:

OSHA 300 Log: must be updated with any changes during the five-year retention period
OSHA 301 Log: updating not required, but recommended
OSHA 300A Log: updating not required, but recommended

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.

Questions?
Vital Signs Insurance Services, Inc.
PO Box 6360
Folsom, CA 95630
Phone: (916) 496-8750
Email: info@vitalsignsinsurance.com
Fax: (916) 496-8754

Legal Disclaimer: The HR Support Center is not engaged in the practice of law. The content in this email 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.

What To Consider When Adding A Dress Code

By |August 10th, 2018|

Question:
We’re thinking of adding a dress code to our handbook. What should we consider

Answer from Kara, JD, SPHR:

Kara, JD, EPHRAs with any policy, the big thing to keep in mind is that you’ll have to enforce it consistently and address any violations. In general, I recommend employers consider the following when creating a dress code:
Be clear about things you don’t want to see in the workplace. Employees may not know what vague terms like “business casual” mean, so if you don’t want them wearing sandals, shorts, sleeveless shirts, etc., say so.

  • Avoid gender-based rules. These could expose you to discrimination claims.
  • Avoid rules that require a ruler (e.g., skirts must be no more than two inches above the knee). Enforcing these could prove uncomfortable for both managers and employees.
  • Consider different rules for different positions or departments. It would be reasonable, for example, to have stricter rules for customer-facing positions.
  • Consider the culture of your workplace and where you’d like to take it. If you have and want to maintain a fun, casual culture, you should probably avoid a dress code that requires formal attire.

Kara practiced employment and bankruptcy law for five years before joining us, and was a Human Resources Generalist at an architecture and engineering firm for several years prior to that. As an attorney she worked on many wage and hour and discrimination claims in both state and federal court. She holds a Bachelor of Arts degree from Oregon State University and earned her law degree from Lewis and Clark Law School.

Questions?
Vital Signs Insurance Services, Inc.
PO Box 6360
Folsom, CA 95630
Phone: (916) 496-8750
Email: info@vitalsignsinsurance.com

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.

Rumor About An Employee Out On FMLA

By |July 18th, 2018|

Question:
We heard a rumor that an employee out on FMLA was seen exercising at a park. How should be handle this situation?

Answer from Margaret, PHR, SHRM-CP:

I recommend proceeding with caution so that you don’t rush to judgement. First, it sounds like the information you’ve received is only a rumor and may be unreliable. Second, exercising (at the park or elsewhere) could very well be a legitimate use of leave under FMLA. For example, their doctor may have recommended moderate exercise as part of the treatment. Before confronting the employee, I would recommend that you review the information on the employee’s medical certification for FMLA and determine whether the alleged exercise appears to be inconsistent with the information on the certification.

If it appears the exercise may be inconsistent with the medical certification, I would recommend that you investigate the situation. As with any investigation, it is important that you allow the employee to provide their side of the story before reaching any conclusions. You can let them know that you have received reports that they may be engaged in physical activities during leave and ask them to confirm the extent of their current injuries or illness and how they prevent them from doing their job. If the employee cannot or will not provide an explanation or admits fraudulent use of leave, then you’d have grounds for disciplinary action.

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: info@vitalsignsinsurance.com
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.

Do New Positions Have To Be Posted To All Employees

By |July 5th, 2018|

Question:
We want to promote an employee to a new position we’re creating. Do we need to give other potential candidates the chance to apply as well?

Answer from Marisa, PHR:

Generally, no. Only federal contractors are required to post open positions, so you can offer the employee the job without posting it for potential external or internal candidates to apply. It is important to note, however, that if you have an established company policy that promises a practice of posting internally, you should follow this.

I do recommend at least posting new positions internally, as it shows transparency and increases the likelihood of finding the best candidate. The employee you had in mind might not actually be the best person for the job, they may not be interested in the position, or other circumstances might change such that having a wider applicant pool would be an advantage. Posting jobs internally also helps you keep a pulse on your internal talent pool and see who is interested in either cross training or promotional opportunities.

Marisa has experience working in a wide variety of HR areas, including payroll, staffing, and on-/ off-boarding. She has worked at both national and local companies, in a wide range of businesses and industries. Marisa earned her B.S. in Business Administration and Communications from the University of Oregon. She loves watching football and basketball, volunteering and spending time with her two dogs.

Questions?
Vital Signs Insurance Services, Inc.
PO Box 6360
Folsom, CA 95630
Phone: (916) 496-8750
Fax: (916) 496-8754
Email: info@vitalsignsinsurance.com

Legal Disclaimer: The HR Support Center is not engaged in the practice of law. The content in this post 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.

Monthly Tips, Trends and HR Practices

By |July 2nd, 2018|

We’re excited to present to you the July 2018 edition of the HR Advisor Newsletter. Our topics for this month are the fundamentals of performance management, the steps to evaluating your culture, and the reason why you shouldn’t keep all employee information in the same place. Thank you for reading!

The Fundamentals of Performance Management

There’s a lot of debate in the HR world about what performance management process employers should use. The annual performance review, once the standard, has fallen out of favor with some employers. They’ve opted instead for more frequent feedback about performance, sometimes involving the employee’s peers in addition to their supervisor. Others, to be sure, still prefer the traditional annual performance review.

The right process to pick depends in large part on what you want to accomplish with performance management and what you’re willing to invest in it. Here are some principles to keep in mind when deciding on your policy and performing assessments:

• Performance reviews are often stressful and difficult because the employees don’t know how they’ll be evaluated and they’re worried they’ll be surprised with a bad review. But reviews, however often they’re done, shouldn’t be a surprise. If you give employees regular feedback on their performance and address poor performance when it happens, then the review becomes more of a reminder and summary of what employees are doing well and where they have opportunities to improve.

• Setting clear performance expectations and holding employees accountable to them improves efficiency and productivity. It also improves morale. Conversations with an underperforming employee may be challenging, but allowing poor performance to continue unabated can cause widespread frustration and resentment from coworkers whose work is affected by it. Ignoring poor performance only compounds the problem.

• Employees are more likely to take ownership over their performance goals if they have a role in defining those goals.

• Connecting performance measures to company objectives and values can increase employees’ sense of purpose and engagement by drawing a direct correlation between their individual work and performance and your collective success as a company.

• It’s helpful to structure performance evaluation meetings and conversations around the specific expectations set in the job description to ensure that the discussion is directly applicable to that employee’s particular job duties.

• Documenting performance evaluations can help you justify pay increases, decreases, or other employment decisions like termination that could be challenged as discriminatory. It’s safest to terminate an employee when you have documentation that justifies the legitimate business reasons for the termination.

Learn More

The Performance Evaluation Cycle – October 2016

When is it appropriate to use a performance improvement plan as opposed to a disciplinary action notice or a record of employee conversation? – June 2018

What is the purpose of a performance improvement plan? Can’t we just terminate employment for poor performance? – June 2017

How to Evaluate Your Culture

This article is the third part of our series on workplace culture. In the first installment, we explained that every organization has a culture, and every culture has three components—the organization’s rules, traditions, and people. In the second article, we showed you how to identify the culture that you have so you’re able to assess whether it’s the culture that you want. Both articles are linked below. We turn now to the question of evaluating your culture.

The specifics of a good culture vary from company to company, but there are a few general qualities of a good culture that you should aim for whatever your industry and mission. A good culture should be:

• Well-defined and understood;
• Embraced by people in the company;
• In alignment with your mission; and
• Beneficial to the long-term success of the company.

Is Your Culture Defined and Understood?
If you asked your employees to talk about your company culture, would they know what to say? Would they have similar answers? Could they point to a mission or vision statement? Maybe a set of core values and shared beliefs? What about company policies and procedures? In short, do they know how people are expected to behave and interact in the workplace? Do they know the rules? The traditions?

You won’t have much control over your culture if you don’t clearly define it. You don’t need to write down every expectation, but they should be evident in some way. That said, written statements really do help. Add them to your company handbook as a way to communicate those expectations and hold everyone accountable to them.

It’s also good to take time to discuss your culture—maybe in a quarterly meeting or at an annual retreat—that way everyone understands it and knows how they can play a role in cultivating and developing it. By discussing the culture that you have as well as the culture that you want, you can work through any ambiguities and ensure you have alignment and buy-in. And if you discover that your ideas about the organization’s culture are not well-received or agreed upon, that’s useful information to have, as your roadmap for success will look different depending on the kind of culture you have in place.

Is Your Culture Embraced?
If you’ve defined your culture and clearly communicated it to employees, the next question to ask is whether your employees embrace it.

It’s important that the people who work for you believe in the purpose of the company and ways you set out to achieve it. A company that prides itself on honesty and being helpful doesn’t want salespeople who lie about the products and manipulate customers. It wants professionals who value truth and integrity.

When you look at your defined culture and evaluate how much it’s internalized by employees, you may find that not everyone buys into it. This may be expected, but don’t settle for indifference. Make it a point to emphasize that the culture you’ve defined is important to you. To start, the leaders in your organization must live the culture themselves. Interact with employees the way you want them to interact with you.

Remember, though, that culture isn’t set in stone. It’s always developing and adjusting since culture lives and grows out of the way people in an organization think, feel, and act. Each new person you bring in will contribute something new to the culture. New habits. New perspectives. New ideas. So, encourage employees to make the culture their own and encourage them to contribute to it.

Is Your Culture Aligned with the Mission of Your Organization?
Let’s say your culture is clearly defined and most of your employees embrace it. What’s next? Make sure your culture is aligned with the good of your organization. Your organization has a purpose. Does your culture help further the purpose, does it sabotage it, or is it a mixed bag?

When identifying and assessing your rules and traditions, make sure they all work together and don’t undercut each other. Suppose as a company you encourage employees to be innovative, but you also don’t put up with mistakes. What would happen? You’d likely stifle innovation. Employees would avoid sharing new ideas, since they’d be worried they might make a mistake.

Also take a good look at the cultures of each department and each team. These smaller groups will have their own ways of interacting and doing things, and that’s okay, but their micro-cultures shouldn’t fundamentally conflict with the larger organizational culture.

If your overall culture isn’t aligned with your mission, or if the cultures of some departments don’t match the cultures of others, this can create conflict and disorder. If people aren’t united behind your company’s purpose, they likely aren’t all following your rules or traditions, either. And that can create resentment and frustration, hurt morale, and stifle productivity.

Is Your Culture Conducive to Long-Term Success?
Among the most important questions to ask when evaluating your culture is whether it’s conducive to the organization’s success. Your core values and practices might all be in alignment, but what if the values themselves, or the mission or vision, aren’t good for long-term sustainability? There’s a possibility that the core values you defined aren’t really the best ones for you to have. Maybe your current mission and vision won’t take you as far as others could.

One way to answer whether your culture will lead to success is to analyze your recent successes and failures, asking why each happened. For this analysis, you would examine the underlying reasons why people acted the way they did. If, for example, a project failed because there was a breakdown of communication, you’d assess whether the existing policies and procedures for communication played any kind of role. Maybe the rules for how people communicate weren’t clear to everyone. Or perhaps people weren’t sharing information because they didn’t trust one another, in which case you’d want to discover why they didn’t trust one another. If your rules or traditions are causing problems, they may need to be revised or abandoned. On the other hand, if they’re contributing to your successes, look for ways to strengthen them.
***

Check back next month for the final installment of this series, where we’ll explain how to improve your workplace culture.

Learn More

What Is Culture, Anyway? – April 2018

Identifying Your Workplace Culture – June 2018

HR Tip of the Month

Employee Files: When More is Better

As much as we may want to simplify our HR processes, not all employee information is best kept in the same place. For instance, the United States Citizenship and Immigration Services (USCIS) recommends storing Form I-9s in a different file than other personnel records, so they can easily be audited (by you or the government). We also suggest keeping medical records and related accommodation and leave requests in a separate location so you can more easily evaluate what kind of accommodations and leaves you’ve provided in the past. A separate file for these documents should also reduce the number of individuals who have access to sensitive medical information.

And, it may go without saying, but make sure you are diligent about locking up confidential employee information or information you’d simply prefer was not public. Most people cannot resist a glance at a document that appears to contain juicy information but was left in a public place. In some cases, this will only cause you a gossip-fueled headache, but in other cases it could lead to liability for failure to protect confidential information.

Contact Us

Vital Signs Insurance Services, Inc.
PO Box 6360
Folsom, CA 95630
Phone: (916) 496-8750
Email: info@vitalsignsinsurance.com

Copyright ©2018 All Rights Reserved – Terms and Legal Conditions.

Legal Disclaimer: This message does not and is not intended to contain legal advice, and its contents do not constitute the practice of law or provision of legal counsel. The provider cannot be held legally accountable for actions related to its receipt.

Federal Law Alert | OSHA

By |June 27th, 2018|

OSHA Reporting Due July 1, Including From State Plan Employers

OSHA-covered employers with 250 or more employees, and those in certain high-risk industries with 20-249 employees, must electronically report their Calendar Year 2017 Form 300A data by July 1, 2018. Reporting must be done through the online Injury Tracking Application (ITA). Covered establishments with 250 or more employees are only required to provide their Form 300A data, not Form 300 or 301 information, as was suggested by previous rulemaking.

Also contrary to previous guidance, OSHA announced in late April that all affected employers must submit injury and illness data in the ITA online portal, even if the employer is covered by a State Plan that has not completed adoption of their own state rule.

Additional information, FAQs, and the Injury Tracking Application can be found on OSHA’s site, here.

Questions?
Vital Signs Insurance Services, Inc.
PO Box 6360
Folsom, CA 95630
Phone: (916) 496-8750
Email: info@vitalsignsinsurance.com

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.

Performance Improvement Plan VS A Disciplinary Action Notice

By |June 14th, 2018|

Question:
When is it appropriate to use a performance improvement plan as opposed to a disciplinary action notice or a record of employee conversation?

Answer from Megan, JD:

MeganPerformance improvement plans (PIPs) are best suited for performance issues, such as an employee not hitting their required sales goals or failing to complete projects on time. PIPs are put in place for a pre-determined period (often 90—120 days) and involve regular meetings to evaluate the employee’s progress. At the end of the period, if the performance hasn’t improved, you can decide whether to terminate the employee.

In contrast, a record of employee conversation and a disciplinary action notice are used when there is a policy the employee has violated, such as an employee not following your normal call-in procedure to report an absence. The record of employee conversation is used to document an oral warning (so you keep a copy but don’t give one to the employee) and is usually reserved for the first offense. The disciplinary action notice is a written warning, usually for either a serious offense or a repeated offense. The employee receives a copy of the disciplinary action notice.

Questions?
Vital Signs Insurance Services, Inc.
PO Box 6360
Folsom, CA 95630
Phone: (916) 496-8750
Email: info@vitalsignsinsurance.com
Fax: (916) 496-8754

Legal Disclaimer: The HR Support Center is not engaged in the practice of law. The content in this email 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.

An Employee Can’t Work The Agreed Upon Hours

By |May 16th, 2018|

Question:
We hired an employee about a month ago, and at the time of hire they said they could work weekends. Now they say that they can’t work weekends. What should we do?

Answer from Celine, SHRM-CP:

HR Professional, CelineIt depends. In general, if an employee is unable or unwilling to work the hours they had originally agreed to work, and those hours are required to meet business needs, you can discipline the employee up to and including termination. However, if the employee’s inability to work these hours is related to a protected reason (e.g., medical leave), you’ll want to have a conversation about accommodations instead of discipline.

Whether you opt to discipline or terminate the employee, or work around their schedule, keep in mind that these actions will set a precedent for how you’ll be expected to handle similar situations in the future. Making exceptions for particular employees while disciplining others—when the reasons for the change in hours are not protected—could expose you to discrimination claims.

With eight years of customer service experience under her belt, Céline is proud to bring her healthcare and food service expertise to the team. She’s fluent in French and proficient in Spanish, making her nearly trilingual. Céline serves on the board of a non-profit that organizes a citywide music festival. She loves spending her time exploring the outdoors, playing with her nieces and nephews, and cooking.

Questions?
Vital Signs Insurance Services, Inc.
PO Box 6360
Folsom, CA 95630
Phone: (916) 496-8750
Fax: (916) 496-8754
Email: info@vitalsignsinsurance.com

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.

Employee Working At Two Locations With Different Titles

By |May 9th, 2018|

Question:
We have an hourly employee who will be working at two different locations and under two titles, 25 hours at one location and 25 hours at the other. Will he need to be paid overtime?

Answer from Kara, JD, SPHR:

Kara, JD, EPHRYes. Titles, job duties, and locations are irrelevant—focus only on the total number of hours worked by the individual for your organization.

Under the Fair Labor Standards Act, non-exempt employees must be paid overtime for all hours worked over 40 in a workweek for a single employer. In some cases, an employee working a schedule like this for two separate companies may even be entitled to overtime, assuming the organizations have the same owners and management or otherwise qualify as joint employers.

Failure to pay overtime may result in significant penalties, as employees who bring a successful claim are often entitled to double what they should have earned in overtime under federal law and frequently have similar remedies under state law.

Kara practiced employment and bankruptcy law for five years before joining us, and was a Human Resources Generalist at an architecture and engineering firm for several years prior to that. As an attorney she worked on many wage and hour and discrimination claims in both state and federal court. She holds a Bachelor of Arts degree from Oregon State University and earned her law degree from Lewis and Clark Law School.

Questions?
Vital Signs Insurance Services, Inc.
PO Box 6360
Folsom, CA 95630
Phone: (916) 496-8750
Email: info@vitalsignsinsurance.com
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.

When Is An Independent Contractor An Employee

By |May 3rd, 2018|

California Law Alert
May 3rd, 2018

New Independent Contractor Test for California Employers

The California Supreme Court has adopted a new, tougher legal standard for determining whether a worker is an independent contractor or an employee. Previously, the state followed a multi-factor balancing test that looked at the level of control held by the employer as well as several economic factors, such as who provided the tools to do the job. The new test, called the ABC Test, is an all-or-nothing test. To properly classify a worker as an independent contractor, the employer must be able to say “yes, this is true” to all three parts of the test.

The ABC Test

A worker may be classified as an independent contractor 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.

A Explained – Free From Control
Every state and federal test currently in use for independent contractors looks at control. Most, however, ask about degree of control. The ABC test is much more definitive—it demands that the worker be free from control. This ruling is only days old, and there will no doubt be litigation about the exact meaning of “free” in the future, but for now we encourage employers to take this criterion at face value. If an employer dictates how or where the work gets done or who does it, they have an employee. Likewise, although an employer may put a “when” on work by establishing a deadline, they should not dictate that the work be done on certain days or during certain hours.

B Explained – Outside Usual Course of Business
An independent contractor must be doing work that is outside the employer’s usual course of business—that is, not essential to the offerings of the business. For example, in a restaurant, the cooks and servers do work that is in the usual course of business, whereas someone hired to design the new menu or reupholster the booths does not. The cooks and servers must always be employees, while those who do work that is not part of the business’s core offering would pass this requirement of the test.

C Explained – Worker Has an Established Business
Part C asks whether the worker is in business for themselves doing the kind of work that they are doing for the organization that has hired them. For instance, does the individual hired to design the new menu offer their graphic design skills on the open market? Do they have other paying customers, a business card, a website, their own graphic design software? Is their business registered with the state?

The focus—in inquiries from the state and in future litigation—will likely be more on whether the individual made money from other sources doing the same kind of work they offered to the employer and less on whether they had the standard business accessories. That said, the more evidence of an established business, the stronger the argument for an independent contractor.

Action Items

Audit Your Independent Contractor Classifications
Because this new standard is case law—meaning it was created by the Supreme Court rather than the legislature—it takes effect immediately. Employers can limit their liability if they analyze their independent contractor classifications and make necessary changes promptly.

Employers who currently use independent contractors should reevaluate each of those relationships and ensure that the worker passes the ABC Test. If they do not, the employer has three options:
1. Reclassify the worker as an employee.
2. Terminate the worker’s services.
3. If the relationship passes Part B and C, and only fails on Part A, the employer may be able to alter the parameters of the relationship so that the worker is now free from their control.

Questions?
Vital Signs Insurance Services, Inc.
info@vitalsignsinsurance.com
PO Box 6360
Folsom, CA 95630
Phone: (916) 496-8750
Fax: (916) 496-8754

Legal Disclaimer: The HR Support Center is not engaged in the practice of law. The content in this email 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.