Common Human Resource Questions

Below are the most common questions Allardyce Resources has recently received and their corresponding answers. Have a question for us? E-mail and we’ll get back to you shortly!

 

 

 

We have an employee who has not been at work, and we just received a notice from the Employment Development Department letting us know that the employee has filed for SDI.  Should we place the employee on FMLA/CFRA leave?

It is always best to be in touch with employees who are not reporting to work to find out why they are not coming to work.  This would enable you to know if there is a condition that might qualify under FMLA/CFRA.  However, the fact that you have received a notice from EDD that tells you they have applied for SDI also puts you on notice that the employee may very well have a condition that qualifies for FMLA/CFRA.

In this case, it is best to provide the employee with a letter stating that you have knowledge that they may qualify for FMLA/CFRA, and provide them with a medical certification form, as well as all of the required informational pamphlets for FMLA/CFRA.

The employee does not qualify for the protected leave until they provide you with the certification form from their medical provider that shows the condition is one of the conditions which qualifies for FMLA/CFRA.  By providing the letter to let the employee know you will count the time towards their 12 week entitlement period, you will be able to count the time from the date of the letter towards their 12 week period.  You must give the employee 15 days in which to return the medical certification form.

 

I have several employees who are very dedicated and work very hard to get their job done.  The employees continue to tell me that they are too busy to take a meal period, even though they know that we have a firm policy that every hourly employee must take their rest and meal periods.  Can we let them work through and not take their  meal periods?

Under California law, any non-exempt employee who works 5 or more hours must take a minimum 30 minute meal period where they are completely relieved of all of their job duties.  If the employee works 10 or more hours, they must take a 2nd duty free meal period.  The meal period should be as close to the middle of the employee’s work shift as is practical, but at least by the end of the 5th hour, or the second meal period by the end of the 10th hour of work.

The exception to this is when the employee’s work is complete prior to the end of the 5th hour of work, and the employee voluntarily waives the meal period in writing for each time they waive a meal period.

For each day that the employee fails to be provided with the meal period, and take the time away from their job duties, the employer owes them a “meal period penalty” under California law as outlined in the IWC Wage order under which the employee works.  The “meal period penalty” is defined in the law as 1 additional hour of pay, which is in addition to payment of wages for the time the employee was working when they should have been on a meal period.

 

One of my employees just asked for time off to spend with her husband who is home on leave from his deployment in the middle east. We are really busy at this time of year and I really can’t afford to have her take time off, can I deny her request?

Under the new California law, employers with 25 or more employees are now required to provide up to 10 days of unpaid leave for the spouse of any active duty military service person who is granted leave time during their deployment, during a period of military conflict. Because of the existing laws regarding Registered Domestic Partners, this law would apply to the Registered Domestic Partner of a military service person as well.

 

I have an employee who just started to work for us, but now is not able to provide us with the documentation required for an I-9 form. Do I need to pay the person for the hours they have already worked for the company?

The law requires that all employees complete an I-9 within three days of commencing work for an employer, and that they provide documentation of their right to work in the United States within that three days. The documents that are acceptable are outlined on the I-9 form.

If an employee is unable to provide appropriate documentation within the three days, the employer should not permit the employee to work any further hours until the employee provides the documentation. The employer is required to pay the employee for the hours worked. If the employee has not been able to provide a valid Social Security card, the employer should pay the employee and report the wages on their DE-9C and 941 showing the employee’s name using a Social Security number of 999-99-9999.

 

We have employees who are out in the field working most of their work day.  We need to be able to be in touch with them throughout the day, so we have then use their personal cell phone, and we have a policy that they must respond to work related calls and contacts within 30 minutes.  Are we required to pay the employee for using their own cell phone during the work day?

California labor code requires that the employer cover all costs incurred by an employee in the course of discharging their work duties for their employer.  This certainly pertains to the use of an employee’s personal cell phone.  However, making a determination of what the actual cost of the use of the phone during work duties is not a simple matter.  Cell phone companies often have plans that provide unlimited voice and text to their customer each month.  That does not mean that there is no cost associated with company use of their personal cell phone.  Employers must determine what is a reasonable reimbursement to the employee for the use of their personal phone.

Of greater concern, is the fact that the cell phone (smart phone) and all of its content belongs to the employee.  This may become problematic at the time the employee and the employer part company, because the employee has every right to take any and all of the data, contacts, and other material on that cell phone with them when they leave.

Many employers have decided that the risk of loss of all of the company related information on a cell phone, especially a smart phone when an employee leaves is not worth the opposing cost of providing employees who are out in the field with a company provided cell phone.

Another risk comes into play with the use of cell phones.  The expectation that employees respond quickly has given rise to a culture in many organizations that employees must respond, even after work hours.   For non-exempt employees, this becomes working time, which is subject to compensation at the employee’s hourly rate of pay, and often times overtime or double time rate of pay.

 

I have an employee who is going to be returning from active duty in the military. Our office has changed significantly since this employee was called to active duty over 2 years ago. Now we don’t have a position open for this employee, can we let the employee know that we have no available positions and let them go?

Under the USERRA law, military service members returning to the workforce are entitled to reinstatement with their former employer provided they are ready and able to return to work within a 5 year period of time. There are very few exceptions to this requirement, and considerable burden of proof placed on the employer to demonstrate a valid reason not to return the service member to the position and status that they would have gained has they remained in your employment during the entire course of their military service. This requirement includes the sonority level, promotional opportunities, as well as wage increases that would have (and did occur) for other employees in the same of equivalent position(s) as the person who served in the military. Any employer who feels that they may have a legitimate basis for refusing to rehire an employee returning from military service would be wise to consult with their labor attorney before taking action with the returning service person.