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The California Division of Workers' Compensation (DWC) has just finalized regulations that change your posting requirements.
All employers in the state are required to post a new "Notice to Employees—Injuries Caused by Work" poster (Form DWC 7) no later than October 8, 2010, and the "Workers Compensation Claim Form" (Form DWC 1) has been revised as well.
Additionally, the regulations also amend the rules for employers who are part of a Medical Provider Network (MPN). The new regulations:
You only have until October 8 to get the new poster up, and failure to comply can subject you to fines of up to $7,000 per violation.
Don't delay—comply with this new rule, as well as all other changes to your state and federal posting requirements, quickly and easily with BLR's poster kit. Click here to order.
In almost every case, when you investigate the underlying cause of an employee lawsuit, you'll find that the manager or supervisor either caused it or could have prevented it. (We call it "million dollar mouths.")
Managers and supervisors cause lawsuits simply by:
Here are a few examples of managers' million dollar mistakes:
Million Dollar Words
At a New York City bank, an employee of Italian heritage was fired. The bank official told him that the bank wanted "to have a representative in external business dealings that was a true American." The official also accused the employee of "creating a Mafia shop."
The employee sued the bank for national origin discrimination. The jury, upon reflection, apparently didn't like the attitude of the bank manager, as it put the tab for the remarks at $2.6 million.
Million Dollar Hands
A male attorney at a large law firm sexually harassed a new employee, making inappropriate and lewd remarks and engaging in behavior such as dropping candies into her blouse pocket.
She complained to management, but apparently was not satisfied with their response, as she sued.
It seems clear that the jury agreed with her, since they fined the law firm $6.9 million (later reduced to $3 million).
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Million Dollar Hostile Environment
At one of the country's biggest retailers, an employee complained that her supervisor made numerous sexual remarks to her and permitted other employees to pinch and kick her. Believing that her complaints were "falling on deaf ears," she sued.
The court didn't think much of her claim for lost wages, awarding $1.
And it didn't think that much of her claim for humiliation and mental anguish, awarding an additional $35,000.
But then they came to punitive damages, where they may add an amount that in their judgment is enough to punish the employer. That amount, they thought, should be a cool $50 million.
Which of Your Manager or Supervisors Is About to Make a Million Dollar Mistake?
Here are the 10 simple steps your managers can take to avoiding expensive lawsuits:
Step 1. Take Time with Hiring
Many lawsuits are born during the hiring process. Some come immediately as a result of perceived discrimination. Others come later as a result of casual hiring practices that hire the wrong person for the job.
Step 2. Reject Troublemakers Upfront
More often than not, says one attorney, when he checks into the backgrounds of employees who sued, he finds clear evidence of prior problems that would have been uncovered by routine checks.
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Step 3. Share Expectations and Results
It's important to let employees know what you expect, both in general (e.g., work rules) and in their specific jobs. It's an element of fairness that juries will look for. It also means that employees can't say, "I never knew that."
Equally important is telling employees honestly how they are performing. Call a poor performer "satisfactory" and then try to terminate for poor performance—you'll be accused of discrimination. You'll argue poor performance, but the jury won't believe you.
Step 4. Be Fair to ALL Employees
Juries tend to rule based on fairness rather than on any nuances of the law. So think of the questions a jury member might ask:
Did the employee know what the employer expected?
Did the employee understand the consequences could result from his or her actions?
Did a manager take action before finding out the facts?
Was the situation treated consistently with other similar situations?
Were policies and rules followed?
Did the employee have a chance to explain?
Did the employer "kick the employee while he was down"?
In tomorrow's Daily, we'll finish off the ten steps, and we'll take a look at a unique employment law update just for experienced California HR professionals.
In yesterday's Daily, we covered many of California's quirky payday rules. Today, more rules, including commission payments, and an introduction to an extraordinary solution to compensation challenges.
Employee Doesn't Submit a Timecard? Still Must Pay
If an employee doesn't submit a timecard on time, you still have an obligation to pay you on the established payday. There is no exception in the law that allows for waiting until the next payday, or even until the timecard is turned in. You can comply with the law by paying all of the wages that you reasonably know are due for the regularly scheduled work period.
Terminating at the Time an Employee Gives Notice
Sometimes, rather than letting an employee work out his or her notice time, the employer may choose to terminate the person immediately. In this situation, the employee is not entitled to any wages for the notice period because the employee did not perform any work during that period. In effect, for the purpose of wage payments, you changed a quit into a discharge, and all earned wages become due and payable immediately at the time of termination.
Employee's Right to See Payroll Records
Payroll records must be made available to employees upon reasonable request, soon as practicable, but no later than 21 calendar days from the date of the request. A failure by the employer to permit a current or former employee to inspect or copy his or her payroll records within the 21 day period entitles the current or former employee to recover a $750.00 penalty from the employer in a civil action brought before a court of competent jurisdiction.
Commissions Owed at Discharge
In the event the commissions have been "earned" on or before the date of termination, the employer must complete the necessary calculations and pay the commissions on the date of the termination in the case of a discharge or a voluntary quit with more than 72 hours prior notice, or within 72 hours of the termination of the employment relationship in the case of a voluntary quit without such prior notice.
It is not permissible for the employer to wait until the customary time for calculating the commissions of current employees, nor is it permissible to delay payment of such earned commissions until the next regularly scheduled payday.
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If the commission has not yet been earned at the time of termination and is awaiting the completion of some legal condition precedent, for example, receipt of the customer's payment, the commission must be paid immediately upon completion of the condition precedent.
Note: the issue of commissions at discharge or quit is one that causes many problems. Avoid this by clarifying how you will handle these situations in your commission policies and agreements with commissioned sales people.
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Compensation pros know wage and hour isn't simple. The fed's rules are complicated enough, and then add California's twists and employees' shenanigans, and you've got a challenging job.
But it's often the basics that get done wrong—people have misconceptions, they get used to doing things their way, no one seems to care, and the years go by. Until someone chats with a lawyer. Then it's expensive class action time.
Here are some of the most commonly ignored rules for wage and hour in California.
Two Regular Paydays per Month
In California, wages, with some exceptions (see table below), must be paid at least twice during each calendar month on the days designated in advance as regular paydays.
The employer must establish a regular payday and is required to post a notice that shows the day, time and location of payment.
Wages earned between the 1st and 15th days, inclusive, of any calendar month must be paid no later than the 26th day of the month during which the labor was performed, and wages earned between the 16th and last day of the month must be paid by the 10th day of the following month.
Other payroll periods such as weekly, biweekly (every two weeks) or semimonthly (twice per month) when the earning period is something other than between the 1st and 15th, and 16th and last day of the month, must be paid within seven calendar days of the end of the payroll period within which the wages were earned.
Payment of Overtime
Overtime wages must be paid no later than the payday for the next regular payroll period following the payroll period in which the overtime wages were earned. An employer shall be in compliance relating to total hours worked by the employee if the overtime hours are recorded as a correction on the itemized statement for the next regular pay period and include the dates of the pay period for which the correction is being made.
Final Pay When Discharged
An employee who is discharged must be paid all of his or her wages, including accrued vacation, immediately at the time of termination.
Exceptions exist for:
More detailed information about these employment situations may be found at http://www.dir.ca.gov/dlse/FAQ_Paydays.htm.
Final Pay When Employees Resign
Payment of final wages is strictly outlined and sometimes difficult to manage:
An employee without a written employment contract for a definite period of time who gives at least 72 hours prior notice of his or her intention to quit, and quits on the day given in the notice, must be paid all of his or her wages, including accrued vacation, at the time of quitting.
An employee without a written employment contract for a definite period of time who quits without giving 72 hours prior notice must be paid all of his or her wages, including accrued vacation, within 72 hours of quitting.
An employee who quits without giving 72-hours prior notice may request that his or her final wage payment be mailed to a designated address. The date of mailing will be considered the date of payment for purposes of the requirement to provide payment within 72 hours of the time of quitting.
Penalties for Failure to Pay on the Required Day
An employer who willfully fails to pay any wages due a terminated employee (discharge or quit) in the prescribed time frame may be assessed a "waiting time" penalty. The waiting time penalty is an amount equal to the employee's daily rate of pay for each day the wages remain unpaid, up to a maximum of thirty (30) calendar days.
In tomorrow's Daily, more on payday rules, and an introduction to an extraordinary compensation management program just for California employers.
Just My E-pinion
When egregious violations occur unchallenged, the CED editor asks, "Where was HR?" And he gives 6 practical tips to help you make sure you're there when you are needed.
In 20 years of editing publications on HR management, I’ve come across some pretty wild stories of management in action:
Take, for instance, the case of the managers who publicly spanked employees as a "motivation" device. Or how about the company that voted off one employee each month, TV “Survivor"-style, as a way of improving the quality of the workforce? Or, more mundanely, how about burgeoning number of class action cases where no overtime was paid for years?
And all that's to say nothing of the flagrant harassment and discrimination cases that surface with great regularity.
When I write about these stories, whatever their lurid particulars, the same question always comes to mind: Where was HR? How could responsible HR managers not know about these situations, and how could they stand by without taking action?
Let’s face it, HR managers, your job description may not say it, but you’re the company watchdog. Who else is going to do it? Marketing? Finance? IT? Please.
Here’s how to set yourself up for your watchdog role:
1. Perform regular audits. Commit to regular evaluations of your procedures and statistics. You’ll spot, for example, imbalances in the treatment of protected classes, misclassification of "exempt" workers, and insidious harassment claims in the making. It's a golden opportunity to step in before the lawyers call or the government knocks.
2. Keep complaint channels open. Encourage employees to use your complaint channels. You want to hear complaints and accusations early so you can act before the lawsuits are filed.
Create several channels for complaints and check regularly to be sure that phone numbers and email addresses are up to date. Make sure all employees—including non-English speakers—have easy options for communicating concerns in ways that don’t have to pass through their supervisors.
3. Investigate and respond. When you do get complaints, take them seriously. Investigate and report back to the person who made the complaint. Employees who complain and then hear nothing are likely to seek an outsider’s advice.
4. Require HR involvement in actions with lawsuit potential. Set your policies and train your managers: they must check with HR in certain situations. For example:
Get involved early, and you can head problems off at the pass.
5. Keep an ear to the ground. Be visible and available. Do the following:
Get out and about. Be seen on the shop floor and in the call center bullpen. Talk to people. Look around.
Talk and listen. Find out what employees are thinking about, proud of, worried about.
Conduct surveys. Surveys often point out situations that need attention. Even when surveys don’t produce actionable results, they show employees that the organization cares about employee opinion.
Perform exit interviews. You can find out a lot in an exit interview. Employees are often more willing to share problems when they are leaving.
Install a suggestion box. It sounds quaint, but you may get some great suggestions and maybe some surprising complaints.
6. Don’t delay action. When you uncover inappropriate behavior, don’t think, “That behavior will probably stop if I just wait.” Hint: It won't. You think you’re giving things a chance to fix themselves, but in court you'll appear to have condoned inappropriate behavior by not taking action.
Rather Not Be the Watchdog?
Sorry, you can’t give up the watchdog role, but you can make it a lot easier. Go back to HR basics to eliminate inappropriate behaviors:
Do you agree that the company watchdog role is properly in HR's court? E-mail me at SBruce@blr.com.
The employment laws in California are some of the strictest in the nation.
It's no secret that we live in the most litigious society in history. And that companies like yours are a favorite target for the media, attorneys, courts, disgruntled employees, and even job candidates.
California workers are particularly prone to complain about the company that employs them.
California Employer Advisor, our award-winning HR advisory newsletter, will introduce you to all aspects of the continually changing state and federal laws governing your relationship with your employees.
Not only do we report on the important laws, management practices, and cases that impact your business, we also outline pragmatic, actionable ideas to help ensure full compliance, avoid lawsuits, and protect your company from financial losses