Refusal to Sign Disciplinary Document Disqualifies Employee from Unemployment

In a recent California case, a terminated employee was denied unemployment benefits when he was fired for insubordination because he refused to sign a disciplinary document. He was informed that his signature was for acknowledgement only and did not signify an admission of guilt. The employee argued that he wasn't being insubordinate. His refusal to sign was because he thought they were lying. (Paratransit, Inc. v. Unemployment Ins. Appeals Bd., 2012 WL 2159383 (May 31, 2012).

The court ruled that he could not avoid his obligations by "asserting that he did not believe what he was being told, without any evidence to justify such disbelief."

This case points out:

• Refusal to obey a reasonable and clearly communicated directive is misconduct
• Employers may ask employees to acknowledge receipt of disciplinary documents

When you provide disciplinary documentation, always obtain a signature so that the employee cannot disavow knowledge later. Additionally, be sure to explain that the signature is for acknowledgement of receipt.

Should you receive a "Notice of Unemployment Insurance Claim Filed," review the paperwork carefully for accuracy, respond promptly, or for assistance with unemployment insurance claims contact JorgensenHR at (661) 600-2070.

Source: California Chamber of Commerce, HRCalifornia, July 2012

Flexible Work Arrangements

A 2008 study by the Family and Work Institute suggests that 87% of employees feel flexible work arrangements are "extremely important" or "very important" when they look for new work. Flexible time allows employees to balance their personal and professional obligations, while providing a company the ability to retain highly skilled employees.

Flexible working options come in a variety of forms, such as:

Alternative schedule. This allows employees to set their own work hours within limits pre-established by the company, such as any eight hours between 6 a.m. and 6 p.m.

Job sharing. This flexible option allows two employees to share one job, each on a part-time basis. Job sharing can be beneficial if two employees want to work limited hours and can agree on their shared responsibilities.

Teleworking. Sometimes referred to as telecommuting, teleworking allows employees to work off-site on a recurring basis, such as twice a week. The most successful teleworkers are those with jobs that involve independent work.

A company may wish to adopt an alternative workweek program. It is important that you strictly comply with the California laws governing alternative workweeks, including establishing the work unit, identifying the schedule, providing written disclosure to employees, and holding a secret ballot. One of the most popular alternative workweeks is known as the 10/40 workweek (four 10-hour workdays per week). 

If you think that flexible work arrangements might be right for your company, be sure to set clear expectations, monitor productivity levels, or contact JorgensenHR at (661) 600-2070 for assistance. 

Source: California Chamber of Commerce, HRCalifornia, July 2012

The Importance of Carefully Written Commission Agreements 

In a recent California lawsuit, a regularly commissioned employee was temporarily reassigned to a different position where she was not allowed to sell advertising to new customers. However, due to a clerical error the employee received a new customer account, made a large sale, and received the full commission. To rectify the mistake, the employer deducted the payment from the employee's wages and 401(k) account.

What the courts found is that the employer's collective bargaining agreement contained information on:

• When a commission was earned
• The conditions that had to be satisfied for a commission to be earned
• Deductions for commission advances

There was nothing about what would happen if a commission was paid based on a clerical error, and no other evidence that addressed the issue that was submitted to the court. The court concluded, "A clerical error does not permit the employer to violate state law by making an illegal deduction."

If any of your employees receive a commission, be sure to:

• Put it in writing by January 1, 2013, per California law
• Include all applicable conditions employees must meet to earn a commission
• Include the method of computing the commission
• Whether advance commissions and charge-backs are part of the process
• Outline in detail when and how you make commission payments
• Provide a signed copy to the employee(s) involved
• Save a signed receipt from each employee

Keep in mind that if the agreement expires and you continue with the employment relationship, the terms of the original agreement are in force until you supersede it with a new agreement or the employee terminates.

Source: California Chamber of Commerce, HRCalifornia, July 2012

Medical Marijuana Use Not Protected Under ADA or FEHA

Under California state law, employees who use medical marijuana are not protected under either the state Fair Employment and Housing Act (FEHA) or the federal Americans with Disabilities Act (ADA).

While state law exempts users of prescription medical marijuana from criminal prosecution, the ADA excludes employees who currently use illegal drugs from the definition of "disability" and federal law classifies any marijuana use as "illegal."

Therefore, employers may refuse to hire or may terminate an employee who tests positive for marijuana, regardless of the usage.  However, employers may not discriminate based on someone's underlying disability.  You should consult with legal counsel before taking any action.

For assistance with matters related to the FEHA or ADA, such as policy development, contact JorgensenHR at (661) 600-2070.

Source: California Chamber of Commerce, HRCalifornia, August 2012

Time to Update Your Time Sheet

Due to the Brinker decision earlier this year, it is important that employers are aware of their obligation to provide legally mandated meal and break periods. In addition to having a well-written and concise meal and break period policy, some employers are amending their time sheet attestation so the employee can sign confirming:

• The timesheet is an accurate record of all time worked; and
• The meal periods and rest breaks were provided; or the
• Employee has alerted the supervisor to any missed meal periods and rest breaks.

Should you consider amending your timesheet, here is an example:

I certify that the above accurately reflects all the hours I actually worked during the designated pay period and that I received all meal and rest periods to which I was entitled, unless noted on the time sheet. I also understand that 1) I must obtain prior approval to work during the meal period voluntarily; 2) to work overtime; and, 3) all off-the-clock work is prohibited by company policy. 

Holiday Season is Right Around the Corner

To ensure you're ready, here is a brief review of what you need to know regarding holiday pay.

Paid holidays are not required by law. Holiday pay need not be counted as hours worked for purposes of calculating overtime. If you close for a holiday, but some employees are required to work, you may want to consider:

• Paying for all hours worked at the regular rate (including overtime) plus the promised holiday pay for the day.
• Paying holiday premium pay (typically time-and-a-half or double-time for all hours worked on a designated paid holiday, plus holiday pay).
• Paying for all hours worked at the regular rate (including overtime) and providing another day off with pay.

Absent a collective bargaining agreement or contract, you may impose a waiting period before you provide non-exempt employees with holiday pay. Be careful, however, with exempt employees. If you do not pay them, you may jeopardize their exempt status.

Source: California Chamber of Commerce and HR Matters E-Tips, July 2012

Annual Flu Vaccination Programs Required for Health Care Organizations

Effective earlier this year, annual influenza vaccination programs are required at all accredited health care organizations. Health care professionals are in one of the best positions to help prevent the spread of this potentially deadly virus. Yet, many have chosen not to receive an annual flu shot and believe that it shouldn't be required.

A few states have laws in place that make immunization a requirement. Otherwise, employers and employees have control over the decision. Now, The Joint Commission, which accredits and certifies health care organizations and programs in the United States, wants to lay down the law.

While the new plan would not force individual health care workers at accredited organizations to have a flu vaccine, the mandate requires each organization to:

• Educate staff and practitioners about the vaccine; prevention measures outside the vaccination regime; and the diagnosis, transmission and impact of influenza.
• Develop a strategy to meet incremental goals on the way to achieving a 90% flu vaccination rate by 2020 (the current level is below 60%).

The Centers for Disease Control (CDC) suggests providing free shots at work. Numbers suggest that doing so has increased participation and reduced the incidents of influenza in the past.

Source: Society for Human Resource Management, July 2012

2012 REMINDERS

All-In-One-Poster

Mandatory Sexual Harassment Training

Don't forget that California employers with 50 or more employees, including temporary employees, contract employees, and employees outside the state, are required to provide supervisors within the state of California with two hours of sexual harassment training every two years. 

Alternatively, if your company began this program when it was first introduced in 2005, you will need to retrain your staff in 2013 to stay in compliance.