Eric Lorenzen

Required Sick and Safety Leave in San Antonio, Texas

October 30, 2019October 29, 2019Eric Lorenzen

Following in the footsteps of many other large cities, San Antonio is implementing its mandatory Sick and Safe Leave (SSL) ordinance on all employers in the city. Employees earn 1 hour of sick leave per every 30 hours worked, up to a maximum of 56 hours of paid leave per year. The city ordinance is still being fine-tuned (see the last revision from September 2019 here), but it will be established by the end of the year.

When does the law start? December 1, 2019 is now the start date, but that has been delayed a few times already.

Who does this law apply to? All employers in San Antonio, no matter how big or small their business. This applies to all employees who work within city limits. If your employee also works outside the city but still works at least 240 hours a year in San Antonio, then the law still applies.

For what purpose can an employee take SSL? An employee can use accrued sick leave when they need to be absent from work because the employee or the employee’s family member suffer illness, injury, stalking, domestic abuse, sexual assault, or otherwise require medical or health care, including preventative care and mental health care. According to the law firm Ogletree Deakins PC, the law defines who classifies as a family member:

The revised ordinance includes a more specific definition of a “family member,” which now includes (i) “[s]pouses, domestic partners, and both different-sex and same-sex significant others”; (ii) “[a]ny other family member within the second degree of consanguinity or affinity”; and (iii) “[a] member of the covered employee’s household,” as well as “[a] minor’s parents, regardless of the sex or gender of either parent.” In addition, “[t]he concept of parenthood is to be liberally construed without limitation as encompassing legal parents, foster parents, same-sex parent, step-parents, those serving in loco parentis, and other persons operating in caretaker roles.”

Read the full article, including a nice summation of the law, at website of Ogletree Deakins.

Does an employer have to pay out accrued sick leave upon termination? No, according to the latest revision, “This ordinance does not require the payment of sick and safe leave upon separation from employment and it does not require that sick and safe leave be calculated as an increase to salary or wages for an employee.”

What kind of record keeping is required? The employer will need to provide monthly updates to each employee, letting them know how much SSL has been accrued. If you have an employee handbook, the SSL policy must be stated. There might be some required posters, but that is still to be determined.

Need to update your Texas Employee Handbook? If so, then contact us today and get a customized employee handbook that includes required and recommended policies for your business.

Dealing with Customers who Harass Your Employees

October 29, 2019Eric Lorenzen

Almost all managers and business owners understand that the law protects their employees from harassment by fellow employees or by any boss. Many companies even have written policies in place, detailing the seriousness of such harassment and how it will be investigated. Whether it’s sexual, racial, or any other inappropriate behavior, most managers know it cannot be tolerated. But what do you do when the harasser isn’t an employee? What if the harassment comes from a vendor or a customer?

Don’t just ignore misdeeds of outsiders. With vendors, you can complain to their supervisors to demand that the vendor either be disciplined or replaced. Dealing with errant customers can be more difficult though, especially if your company has had the attitude of ‘the customer is always right.’ But you cannot just ignore misdeeds by customers, especially if they are towards your staff.

The law firm Jackson Lewis PC addressed this issue recently in an article:

The Seventh Circuit provided an illustrative hypothetical of this in Dunn v. Washington County Hospital:

Suppose a patient kept a macaw in his room, that the bird bit and scratched women but not men, and that the Hospital did nothing. The Hospital would be responsible for the decision to expose women to the working conditions affected by the macaw, even though the bird (a) was not an employee, and (b) could not be controlled by reasoning or sanctions. It would be the Hospital’s responsibility to protect its female employees by excluding the offending bird from its premises.

429 F.3d 689, 691 (7th Cir. 2005).

Still, this does not mean the law makes employers vicariously liable for customers’ actions. Rather, the Seventh Circuit held, the standard of liability applicable to coworker harassment also applies to customer-based harassment. Although this standard does not translate perfectly to situations of alleged customer harassment, it is adaptable.

Read the full article at JacksonLewis website.

In other words, you need to stand up against harassment whenever it happens at the workplace, whether the offender is an employee or an outsider. You might not have as much leverage over customers but that doesn’t mean you should allow them to get away with demeaning behavior. Might it endanger sales? Certainly, but some things are more important that a large profit.

Do you have your harassment policies in writing? If not, then consider getting at least that in place. By getting the company’s standards and expectations in writing, you are making sure all employees know that you won’t tolerate disrespect of another. It also offers guidance to all supervisors. Time to get an employee handbook designed specifically for your particular business.

Religious Discrimination at the Workplace

October 28, 2019Eric Lorenzen

As religious beliefs at the workplace becomes more diverse, there’s a greater chance for claims of religious discrimination. An employer needs to be aware of this and set policies in place to make sure all employees are treating each other (and customers) with respect, no matter their particular beliefs.

With society’s ever-growing religious diversity, it is important for organizations to understand how to provide a work environment free of religious discrimination.

According to the EEOC:

In fiscal year 2014 the EEOC received 3,549 charges alleging discrimination on the basis of religion. These charges represent a slight decrease from the past few years but remain significantly above the numbers from before fiscal year 2007. The top issues alleged in religion charges are Discharge, Harassment, Terms and Conditions of Employment, and Reasonable Accommodation. EEOC also realized 268 settlements and 34 successful conciliations from 3,575 resolutions in fiscal year 2014.

The EEOC has filed 68 lawsuits since the beginning of fiscal year 2010 involving claims of religious discrimination under Title VII of the Civil Rights Act of 1964. During the same period the Commission recovered approximately $4 million, as well as important injunctive and other case-specific “make whole” relief, for victims of religious discrimination.

Read the full article at the EEOC website.

Can you express religious views at work? Of course, but as the business owner or manager you also have a responsibility to make sure employees don’t “pick on”, belittle, tease, or mock those who have differing beliefs from theirs.

Steps you should take: Familiarize yourself with the guidelines the EEOC provides on how to avoid religious discrimination:

Best Practices, according to the EEOC, on how to avoid religious discrimination at the workplace:

https://www.eeoc.gov//policy/docs/best_practices_religion.html

What is religious discrimination? EEOC offers a lengthy explanation of what (and isn’t) considered discrimination in the workplace:

https://www.eeoc.gov//policy/docs/qanda_religion.html

Do you have a written policy against religious discrimination? Such a policy is included in all professionally-designed Employee Handbooks. If you want to learn more about how much it costs to get an employee handbook for your business, see a recent post by HR Quick Answers about the subject: What does it cost to get an Employee Handbook?

(This article is based on one originally published by HR Quick Answers. Republished with permission.)

Employee Handbooks for California Businesses

October 25, 2019Eric Lorenzen

Doing business in California can be fantastic and frustrating at the same time. There are so many huge opportunities to explode in sales (if you are great at Wooing your Customers), but the labor regulations can sometimes overwhelm. Rules. Rules. Rules. There are regs on OT, breaks, sick leave, discrimination, voting rights, and so much more.

As your company grows, you’ll reach a point when you realize it’s time to get more professional in how we’re handling our rules and policies. You realize that it’s time to get an Employee Handbook.

What are the benefits of an Employee Handbook? Besides offering some lawsuit protection, a handbook helps to get everyone “on the same page” when it comes to expectations, benefits, and potential consequences for failing to work as expected.

Other benefits to having an employee handbook are listed by the info blog HR Quick Answers:

Fairness in employment. An employee handbook sets your employee policies and procedures in writing for your California business. With a well designed California employee manual you will gain many benefits: 1) your HR policies will be clear and consistent, 2) you will lower the chance of misunderstanding or frustration among staff, 3) you will offer protection to the business, and 4) you will equip your supervisors with a good HR resource. No matter what type of business you have, an employee handbook is an essential for getting your California employee policies in writing.

But that leads to the question of how do you get an employee handbook. Well, there are 3 main options in front of you:

1. Download a Template. Priced from $30 to $350, these templates will require you to invest many hours into personalizing the handbook to your state, employee count, and business specifics. Templates do NOT have typical industry-specific policies. A good template from the California Chamber of Commerce coasts about $250.

2. Have a consulting company design a customized handbook for you. Typical price is between $1,500 and $3,000. Pricing might seem high, but consider how many hours it would take one of your employees to create this from a good template (anywhere from 3-4 weeks of work). Even if the employee is only getting paid $10 per hour, it will cost you at least as much as it would hiring a consulting company, and the consultant will have quite a bit more experience at what should (and shouldn’t) be in that manual.

Customized Employee Handbooks

Church Employee Handbooks

3. Go to a labor law lawyer. This is by far the most expensive option, but you will receive a California employee handbook that considers all the legal intricacies of your business (though maybe not industry-specific policies). This is a good option for complex businesses concerned about employee lawsuits. Typical pricing ranges from $5,000 to $9,000.

Another option is to hire a lawyer to simply review a handbook you had designed DIY or by a consultant.

At New Wind, we design customized Employee Handbooks. We invite you to contact us for a complementary 30-minute Phone Consult, where we’ll talk about your business and what you want/need as written policies in an employee handbook. Schedule a consult now- it will only cost you 30 minutes of your time.

Why get a Church Employee Handbook?

October 24, 2019Eric Lorenzen

Fairness in ministry and employment. While a church is a ministry, it is also an employer. Most employees will be good, but sometimes a hire will be disappointing. It is best to have established employee policies so that everyone knows what is expected of them. Even good employees will make mistakes or could misunderstand rules that are just verbal. A church should establish its employee policies and procedures in writing. With a well designed church employee handbook, your HR policies will be clear and consistent, you will lower the chance of misunderstanding or frustration among staff, you will offer protection to the ministry, and you will equip your pastors and leaders with a good HR resource.

Some policies are necessary for any church: at-will employment, non-discrimination, non-harassment, professional ethics, benefits, and pastoral ethics. Consider some of the other policies that can be included:

church policies 1 Church Policies 2

How do I get a church employee handbook? You have 3 basic options for designing a handbook for your church staff:
1. Download a Template. Priced from $50 to $350, these templates will require you to invest many hours into personalizing the handbook to your state, church size, and ministry specifics. Expect to pay about $200 for a decent template. Also expect to invest about 100-140 hours in compiling and editing your DIY handbook.

2. Have a consulting company design a professional handbook for you. Typical price is is between $1,500 to $3,000. Pricing is a higher, but the work is done by a professional. You will likely save money, considering the amount of hours needed to do this on your own.

New Wind is an excellent consulting company that designs church employee handbooks, customized for each ministry:

Church Employee Handbook

3. Go to a labor law lawyer. This is by far the most expensive option, but you will receive a church employee handbook that considers all the legal intricacies of your ministry. This is a good option for complex ministries or ministries concerned about employee lawsuits. Expect to pay between $5,000 and $9,000.

(this article originally appeared in HR Quick Answers)

Lactation Accommodation Rule Changes

October 21, 2019October 19, 2019Eric Lorenzen

Women who are expressing milk while at work will be getting a longer list of accommodations starting in 2020. In California, employers are already required to allow women to express milk as needed during their work day, but those regulations are now being clarified and the “lactation location” is being more defined with the passage of SB142:

Place should be private so that milk can be expressed without intrusion
Should not be a bathroom
Running water and a sink should be available to the employee
Has a surface (such as a counter or table) where lactation equipment can be placed
Within a close proximity of the employee’s work area
Provides electricity for plugging in/ charging of equipment
Provides nearby refrigeration for expressed milk

California’s Department of Industrial Relations offers further guidance of the current law:

1. Q. Does an employer have to provide an employee with additional break time to express breast milk?

A. Yes, an employer must provide additional break time to employees who need it.

2. Q. Does an employer have to pay for the additional time to express breast milk?

A. No. While the employer must allow an employee to leave the work area to pump, the employer does not have to pay for pumping time, beyond the standard break time.

3. Q. Can my employer demand a doctor’s note or other medical documentation?

A. No. Your employer cannot require you to submit any documentation regarding your need to express breast milk.

4. Q. Does my employer have to provide me with a place to express breast milk?

A. Yes, your employer must make a reasonable effort to provide you with the use of a room or other location other than a bathroom and in close proximity to your work area. This may include the place where the employee normally works if it otherwise meets the requirements.

To continue reading, please visit dir.ca.gov. Please note, the rules will get more detailed in 2020. This government site is talking only about current rules as of October 2019.

An article by the law firm of Fisher Phillips provides a nice summation of the law’s regs for providing a “lactation room”, which includes the following:

…

Second, the new law provides that a lactation room must:

Be safe, clean, and free of hazardous materials, as defined;

Contain a surface to place a breast pump and personal items;

Contain a place to sit; and

Have access to electricity or alternative devices, including, but not limited to, extension cords or charging stations…

…

Fourth, the new law provides that, where a multipurpose room is used for lactation among other uses, the use of the room for lactation shall take precedence over the other uses, but only for the time it is being used for lactation purposes.

Want to read more? Visit FisherPhillips.com

There are some exceptions for certain employer hardships and for employers with less than fifty employees, but it doesn’t alleviate from all of these regulations.

All of this raises the question of whether you have your employee policies set in writing to prevent any confusion about your company’s rules and procedures. Are you a California business or ministry looking for an employee handbook? If so, learn more about Custom Employee Handbooks.

(This article provides an overview of certain federal, state, or local laws. It is not intended to be, and should not be construed as, legal advice by New Wind. We do not provide any legal advice, financial advice, or tax advice. Please see an appropriate professional for such services.)

Changes to Tip Rules

October 19, 2019October 19, 2019Eric Lorenzen

Who gets paid tips and who doesn’t? Can you force an employee to share tips? Can a supervisor take a share of tips? Well, the rules for tips are being revised (and hopefully simplified).

PLEASE NOTE: These changes in Federal regulations are not yet finalized, so there may be some changes to them. However, any restaurant or hospitality manager should be aware of what’s coming because it affects how tips are distributed and how tipped staff are paid.

According to law firm Littler, Mendelson P.C.,

Over a year after Congress amended the Fair Labor Standards Act (FLSA) to clarify tip ownership questions, the U.S. Department of Labor (DOL) finally published a Notice of Proposed Rulemaking on October 8, 2019… The proposed regulatory changes address two key areas. First,… clarified who can, and who cannot, receive tips when a tipped worker does not receive a tip credit. Second, the proposed regulations adopt the DOL’s 2018 opinion letter that outlined the proper scope of the dual jobs regulation and the so-called 80/20 Rule involving work done by employees receiving a tip credit.

Want to read more? Visit Littler.com

The regulations will reinforce that tip pooling requirements are okay, but cannot include supervisors or business owners. The law firm FordHarrison states, “If the proposed rule is finalized, employers who do not take a tip credit will be permitted to include “back-of-the-house” employees who usually do not receive tips (such as cooks and dishwashers) as part of a tip pool. Lastly, the existing rule prohibiting employers from keeping employees’ tips or participating in tip-pooling arrangements will remain.” Who qualifies as an owner or supervisor is also clarified, defining a supervisor as one who meets federal guidelines for salaried “exempt” classification.

The part of this tip rule change that is getting the most attention is the 80/20 rule, which could become very complicated for employers to track. Basically, you had to prove that your tipped staff spent less that 20% of their day working on duties that weren’t tip generating (like cleaning, prepping settings, etc.). As explained by the law firm Jackson Lewis P.C.,

The 20% Rule… requires employers to pay tipped employees the full minimum wage, rather than the lower cash wage applicable to tipped employees, if an employee spends more than 20% of his or her time performing allegedly non-tipped duties (which were undefined).

Want to read more? Visit JacksonLewis.com

The proposed changes will allow for side work done while also doing tip-based work, such as prepping sides or cleaning or polishing utensils. According to Ogletree Deakins,

The proposed rules also modify the frequently litigated 80/20 rule related to side work performed by service employees. The proposed rule explains that an employer may take a tip credit for any amount of time that a tipped employee performs work related to non-tipped duties contemporaneously with his or her tipped work, or for a reasonable time immediately before or after performing the tipped duties.

Want to read more? Visit Ogletree.com

All of this raises the question of whether you have your employee policies set in writing to prevent any confusion about your restaurant’s rules and procedures. Are you a California hospitality business looking for an employee handbook? If so, learn more about Custom Employee Handbooks.

Why Have a California Employee Handbook?

October 11, 2019Eric Lorenzen

As a business owner or manager in California, you have to ask whether your organization needs an employee handbook. How does it help me run the business? What kind of businesses should have an employee handbook?

1. Avoid costly policy mistakes. Having your employee policies in writing helps the boss(es) do the right thing. Know when overtime begins, understand how vacation time is calculated, learn the difference between exempt and non-exempt employees, and so on. Does OT start at 8 hours and/or 40 hours? Who qualifies to be salaried? A California employee handbook would answer all those basic policy questions.

2. Stop employee claims of ignorance. Employees will have your policies in writing, so they can no longer claim that they did not know breaks only lasted 10 minutes or that smoking is prohibited indoors. Do all of your employees know what your rules are? When everyone gets a copy of the “rule book” they can no longer claim ignorance. With a California employee handbook, your policies will be clear and consistent.

3. Written Policies help to defend against lawsuits. Getting your policies in writing can help when someone claims you were discriminatory or unfair in your labor practices. Does an employee handbook make you immune from court cases? Of course not, but having your policies well-defined and properly distributed to all employees can sometimes be a great aid when having to defend yourself. An employee handbook offers protection for your business.

4. Get all your supervisors on the same page. If you have more than one manager, then it can get confusing. One boss might contradict another. However, when everyone has the same written policy to refer to, then the confusion is much less. You will lower the chance of misunderstanding or frustration among staff and you will equip your supervisors with a good HR resource.

What policies are typically included in a California employee handbook? Expect a comprehensive handbook to be about 30-40 pages in length and to include the following rules and regulations:
+ at-will employment
+ non-discrimination
+ anti-harassment
+ vacation
+ sick leave
+ overtime
+ employee classifications
+ jury duty
+ smoking
+ social media
+ introductory period
+ leaves of absence
+ FMLA
+ bereavement
+ pay dates
+ driving while on duty
+ parking rules
+ drug testing
+ dress code
+ employee conduct
+ termination
+ holiday pay
+ customer service
+ workplace security
+ confidentiality
+ and much more

Customized Policies– In addition to standard employee policies, some services provide customized policies for your specific business or industry. You may want to consider adding custom policies covering topics such as HIPAA, driving safety, money handling, hygiene, or telecommuting.

What is not included in a typical handbook? A typical handbook does not cover job procedures, which are too intricate and job-specific. Other topics not covered include job descriptions, day-to-day work procedures, and so forth.

How do I get a California employee handbook?

You have 3 basic options for designing a staff handbook:

1. Do-It-Yourself. If you are going this route, we would recommend using a lawyer-vetted template or software program, such as the excellent one provided by the California Chamber of Commerce. Pricing starts at about $250, plus all the hours you’ll need to spend completing it.

https://store.calchamber.com/10032175-masteh/products/employee-handbook-creator

2. Get Assistance. Hire a professional consultant to help you complete a software program, costing more but saving you dozens of hours of your precious time. Consultants aren’t cheap per-hour, but they can put a handbook together much faster than you ever could, so the actual cost might end up being less than if you take the DIY path.

https://newwindinc.com/custom-employee-handbook/

3. Hire a Labor Lawyer. This is the ultimate level and is recommended for those who have concern of legal issues or complex labor relations, such as a unionized shop.

Do Employees Get Paid during Shutdown Caused by Power Outage?

October 10, 2019Eric Lorenzen

Are businesses required to pay employees during power outage shutdowns? Many companies have faced an emergency shutdown due to power blackouts, so it is important to know whether you need to pay employees during those shutdowns. Pay requirements differ by employee classification and by state law.

Do you pay employees during an emergency closure?

You’ve lost power to your business and are unable to stay open. Not only do you lose income from the lack of sales or the lack of productivity, you need to decides what to do with your employees. Are you required to pay them even though they can’t do their regular work?

The answer is “yes”, ”no”, and “sometimes”.

It really depends on the employee’s classification and if you’ve been able to get them advanced notice. So let’s break it down by employee type:

Hourly Employees

You do not have to pay hourly employees who cannot work their shift when your business is closed down due to an extended emergency like a power outage due to high winds. To prevent confusion on this point, it is best to have a written policy stating that you do NOT pay during closures due to inclement weather or natural disaster. But there is an exception in certain conditions, so read on.

Some states do insist on Reporting-to-Duty pay that says you must pay any employee who shows up to work as scheduled even if there is no work available. Among those states are CA, CT, DC, MA, NH, NJ, NY, OR and RI, though some limit it to certain industries while others only to minors (OR). So even if the business is closed, if the employee makes it to the worksite you have to pay. The rules differ by state on Reporting-to-Duty Pay, but they usually require a half-day’s pay: 2 hrs minimum, 4 hrs maximum. Some states also limit Reporting Time Pay to just those who are scheduled to work 4 or more hours. See your particular state’s website for details on applicable labor law.

In California, you do NOT have to provide Reporting Time Pay if the utilities are off:

Q. Are there circumstances where reporting time pay doesn’t apply?

A. Yes, there are a number of instances whereby an employee reports to work as scheduled and is sent home immediately, or works less than half his or her usual or scheduled day’s work and is not entitled to reporting time pay.No reporting time pay is due:

When the employer’s operations cannot begin or continue due to threats to employees or property, or when civil authorities recommend that work not begin or continue.

When public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities, or sewer system.

When the interruption of work is caused by an Act of God or other cause not within the employer’s control, for example, an earthquake.

Want to read more? Link to the rest at the California Department of Industrial Relations.

Salaried Employees

Salaried exempt employees must be paid if they work anytime during a workweek and are available to work the remaining days, whether they actually work or not. You cannot cut an exempt employees pay just because you cannot get your full 40 hours out of them this week, just like you do not have to pay them OT during those busy weeks when they work more than 40 hrs.

Be sure you have your employees correctly classified. Some businesses think they can classify anyone as Exempt, but that is not true. Generally, these jobs demand an advanced degree, pay in commissions, or are an executive position. The usual employees who can be exempt are:
1. Upper Management
2. Certain Other Management
3. Certain Creative Professionals
4. Certain Advanced-degree Professionals
5. Certain High-Paid Technical Employees
6. Certain Highly Commissioned Sales People

Plan Ahead for Possible Emergencies

Be prepared in case of an emergency shutdown by having an up-to-date contact list for your employees. If your business must close, especially for more than a day, then call all employees and revise their schedules as needed.

Have the correct policies in place: Once again, this is an area where a good Employee Handbook can help. Set up your employee policies for OT, Exempt Employee Deductions, Inclement Weather, Natural Disaster, and Report to Duty Pay. Consider a professionally designed Employee Handbook, customized to your business.

Typical call-in procedures: Your written bad weather policy should tell your employees what is expected of them. Usually, it will state that they are to call-in (if phone system is operating). The call-in is considered an excused absence. If you pay for bad weather days, you should state the amount of hours and who is eligible (full-time? part-time? temp employees?).

What is considered “bad weather”? Your written policy should give examples of what is considered inclement weather. Some typical weather reasons are: snow, whiteout, ice storm, severe flooding, dust storm, hurricane, tornado warning. (You should also add a paragraph on closure due to such as earthquake, explosion, fire, utility outage, or terrorist attack.)

Have your policy in writing. It is important that you let your employees know what your policy is whenever a shutdown should occur. The best way is to get your Bad Weather Policy in writing before the event happens.

As part of any Employee Handbook, you should have a policy for inclement weather, stating your pay policy (usually it is “day off without pay”), call-in procedures, and examples of what is considered “bad weather”.

Promo: Employee Discipline eBook is Free for Limited Time

October 9, 2019Eric Lorenzen

Amazon is promoting Eric Lorenzen’s eBook Target the Work, Not the Worker: Effective Employee Discipline for Managers, Supervisors, and Business Owners today through Friday (Oct. 9-11, 2019).

Get your copy of this e-book for FREE.

Target the Work, Not the Worker is a concise, step-by-step guide on how to warn employees, write up troublemakers, and fire those employees who can’t be salvaged.

Learn the 4 steps of discipline, what progressive discipline means, and how to document poor performance.
Understand how to control your own attitude and responses.
Get a better understanding of why employees sometimes fail and the importance of not guessing at what might be their motivations.
Master the when, where, how, and what of any disciplinary meeting.
Understand what laws to watch out for when firing an employee.

“Target the Work, Not the Worker will help you become a more effective leader for your team.” Target the Work, Not the Worker is part of the How to be a Better Boss series and is intended as a general business guidebook, addressing the needs of managers, supervisors, and small business owners in the USA.