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How to Deal With Employees Who Are Habitually Sick, Tardy and Absent

employees

Would you like to know how to deal with habitually absent, tardy, and sick employees? An employee may not be coming to work because he/she claims to be sick – others may be habitually coming late. If you want to fire such people, is there a risk?

 

Let us find out.

 

 

What Should I Do?

First, determine whether there are federal or state statutes that apply to the scenario. Then check if your employee has worked for at least a year at your organization and if he/she meets the minimum required working hours. After that, check if FMLA (Family and Medical Leave Act) is covering your employee.

 

If so, he/she is entitled to unpaid leave of up to 12 weeks per year. You can choose not to pay any employee on FMLA leave. In addition, you may tell the employee to notice you early as well as provide certification of their health condition. Although you cannot discipline such an employee, you can transfer him/her to another position with at least the same benefits and pay as the current position. Next, determine if ADA is protecting your employee (Americans with Disabilities Act).

 

The act requires you to accommodate employees with disabilities provided they can fulfill the essential functions of the job. ADA only protects those suffering from something very serious in order to qualify as a disability. Either ADA or FMLA does not say you can tolerate unending absenteeism.

 

If your employee, with no disability, has exhausted his/her FMLA leave, you can opt to fire or discipline him/her. Nonetheless, before you do anything, consider having an expert opinion on state laws from labor laws and an employment lawyer.

 

 

Should I Make An Employee Handbook?

In order to handle such cases with ease, consider including such policies in your employee handbooks. In the handbook, you can include all the above topics and ensure all the employees acknowledge receiving it.

 

Then make sure you enforce those policies equally across the board to avoid any misplaced claims. One of the simplest ways to alleviate such a problem would involve defining each job description as clearly as possible including the essential job functions. If the policies differ from one job category to another, enforce uniformly per category.

 

Nevertheless, when there are no such attendance policies, you can introduce them by noticing all the employees. Having detailed and accurate records can also protect you from discrimination claims.

 

 

Keeping Records

When an employee is absent, record when, why and any disciplinary actions taken if any. You can use those records to fight any claims that may come after terminating an employee. As always, you can contact an attorney if you are facing that situation. He/she may help you handle risks of liability, make appropriate attendance policies and answer difficult questions you have.

 

In addition, you can ensure your business activities like hiring, disciplining and firing employees. Better you spend little now instead of later paying more.

Jury Duty Leave Laws in California in the Workplace

jury duty

Jury duty service is very important in enhancing democracy in America. As such, California’s jury leave law which is derived from the Labor Code section 230 recognizes employees’ freedom to engage in jury duty. Jury duty is a process where citizens act as witnesses in a court of law upon receiving summon papers. In most instances, employees are reluctant to serve on a jury due to fear of lack of compensation by their employers. It is, therefore, necessary for employers to create jury duty leave policies that motivate employees to participate in jury service.

In relation to jury duty leave laws in the workplace, there are some Frequently Asked Questions (FAQs). The questions are as follows:

Is it obligatory to pay an employee attending jury duty?

The law does not compel employers to pay employees attending jury service. However, some employers have formulated jury duty leave policies that guarantee employee compensation for their service. In organizations where there are no such policies, the employee does not receive compensation.

Do I commit an offense by communicating with my employee in the course of a trial?

It is not an offense to communicate with your employee as long as it is during the trial recess. However, it is an offense to discuss details of a trial with the employee.

Do I have the mandate to verify that my employees will attend jury service?

It is your right as an employer to request your employees to furnish you with the necessary documentation-notice of proceedings, a court order- that confirms they will be attending jury service.

When should I withhold compensation for my exempt employees on a jury?

An employer is required to pay exempt employees for the total days worked. Even so, an employer can withhold compensation if jury duty deprives the employees of their ability to execute tasks for the entire jury service week.

Is there any chance that I can be compelled to pay my nonexempt employees?

There are instances where an employer may be compelled by a contract or union agreement to pay nonexempt employees.

Do courts compensate employers who compensate employees for jury service?

Unfortunately, courts do not compensate employers. If an employer compensates an employee for attending jury duty, the employee ought to refund the juror’s fees to the employer.

To wrap up, it is key for employers to enact jury duty leave guidelines that are fair to employees. This should be done since jury service is part of employees’ duty as citizens to influence the legal process. With respect to employees who hardly understand about jury duty leave laws, it is wise to consult legal experts in California labor laws to get more insights these laws.

 

What is Compensatory Time? 

compensatory time

Compensatory time brings up the issue of whether a worker is qualified for additional time remuneration, and this has been a fervent case issue of late in California. The primary explanation for this is the way a representative is qualified for extra time compensation. This needs to be an accurate request that relies upon the particular certainties and situation of one’s business.

There are, however, several hard principles that are important to be aware of about overtime wages, whether you are an employer or an employee:

a) Overtime compensation cannot be waived. Any agreement by an employee to waive overtime pay or to accept less that the statutory rate he is due is invalid and unenforceable. In other words, even if the employer and employee sign a written agreement in which they will agree that the employee will not seek overtime pay, the employee will still be able to sue (and likely prevail in) later demand overtime pay for the hours worked more than the statutory workweek.

b) For the overtime rate of wage in California, the employer must be employee one-and-a-half time of his “regular” rate for every hour worked above 40 hours per week, or for any time worked beyond 8 hours per day. The employer is to pay double time when the employee works over 12 hours in a day. Under state law, the regular rate of pay is calculated by dividing a weekly salary into 40 hours or a normal workweek. Regular rate includes bonuses and commissions that the employee might be earning as part of his wages. That the commission is paid on a basis other than weekly, and that payment is deferred for a period past the worker’s normal pay day or payroll interval, don’t pardon the business from including this installment in the representative’s customary rate.

c) Certain employees are exempt from overtime laws. Under federal law, workers employed in a bona fide executive, administrative or professional capacity are exempt from overtime wage benefits. Certain kinds of employees are also exempt from overtime rules as a matter of law. This includes amusement park/recreational park employees, outside sales persons, sailors, criminal investigators, computer system analysts, baby sitters and personal attendants.

d) The time that counts toward overtime except for regular working hours is standby or “on call” time which may be compensable under federal law if it is spent primarily for the benefit of the employer and his business. This, of course, depends on the specific circumstances of each case. Under California law, an employee must be paid for a time considered to be on duty while on the employer’s premises.

f) Taking time off instead of overtime under California law, employers may not require employees to take time off instead of overtime compensation. But employees have the right to request compensatory time off at the rate of one-and-one-half hours off for each hour of overtime worked provided that a written agreement establishes this arrangement before a performance of the work.

Gender Identity Discrimination in California Workplaces

gender identity discrimination

Gender identity discrimination is the treatment of someone unfairly or unequally based on their gender identity or expression. Gender identity discrimination in workplaces has been a major source of concern, especially for the LGBT community. You may be undergoing gender identity discrimination at your workplace and you have no idea that it is illegal and you can take actions against it.

 

 

What Are The Signs Of Gender Discrimination At The Workplace?

  • Being forced by your employer to uphold a dressing standard that is inconsistent with your gender identity or expression.
  • Being required by your employer to use restrooms of a gender that you do not conform to.
  • Being given less pay denied promotions or employment because of your gender identity.
  • Being fired because of undergoing a sex reassignment surgery.
  • Being teased or threatened by workmates or your employer because of your gender identity or failure to refer to you by your new name.

 

What Are The Laws That Protect You?

The California Fair Employment and Housing Act (FEHA) prohibits employment discrimination and harassment of workers on the basis of gender identity.

The Gender Nondiscrimination Act has also brought more clarity on the existing laws by adding “gender identity” and “gender expression” to their categories. Regulations have also been added to the act regarding transgender identity and expression at work. The new regulations require all employers within the state of California to follow and implement policies regarding issues of:

Dressing: Employers cannot impose a dressing standard inconsistent with the employee’s gender expression.

Restrooms: Must be equal facilities regardless of one’s gender identity as backed by the California’s Equal Restroom Act. Employees must be permitted to use the restroom they best identify with.

 

Transitioning: The regulations prohibit discrimination on any employee, before, during or after transitioning.

Preferred name and identity: Employers should follow the employees’ request to be addressed by their preferred name that conforms to their new gender identity.

Documentation: An employer should not inquire into the sex, gender or expression of a person as a condition of employment.

 

What Action Can I Take If I Feel Discriminated Due To My Gender Identity At My Work Place?

If you feel you are being harassed or discriminated at work, it is essential that you consult a California Employment Lawyer with evidence of the discrimination in the form of letters or emails and names of the harassers so as to build a strong case.

 

Why Is The Gender Non-Discrimination Act Important?

This Act was put in place not just to protect transgender people but to let every other person know that discriminating against someone on the basis of their gender expression is illegal. It covers every part of California with exception to federal workers because they are not protected by non-discrimination laws.

FAQ’s About Holidays

holidays

Although both the state and federal laws recognize ten holidays in the United States, workers are not guaranteed to be given days off or even get extra pay for working. Many businesses such as gas stations, restaurants, movie theaters, stores, manufacturers, and distributors remain open on holidays, and thus workers are required.

Working on recognized holidays raise several disturbing questions among California employers, such as:

  • Is it mandatory to get holiday time off? 

No. There is no law in California requiring private companies to close their business on any specific days in order to provide days off to the employees. However, an employment policy or a collective bargaining agreement can grant certain holidays benefits, including a paid unpaid time off.

Besides, many employees tend to either close their business or allow some employees to have the day off during some these holidays. But the law recognizes the need of one day rest in seven working days, and you should get overtime pay in the case that you work with more than six days in a row.

  • Is the employer required to pay for time off during holidays, or pay additional wages to employees who work on holidays?

The law does not mandate California employers to give any special rate of pay to work completed on holidays, nor does it require them to pay for the time off. However, most private employers voluntarily agree to provide extra wages to employees for working on holidays as well as paid time off for certain holidays with the aim of boosting employee morale.

But again, only a CBA or employee policy can govern such terms since California statute does not mandate them. Therefore, it is important for both employees and employers to ensure that holiday pay policies are set forth clearly.

  • Is the calculation of overtime affected by a holiday pay?

When determining the overtime worked in a week, the employer will not include the holiday pay for a time off in determining the pay rate because it not a payment for hours worked. For instance, if a business is closed on a Monday holiday and then the employees go on to work from Tuesday through Saturday, eight hours each day, they should expect the standard time rate to apply when getting paid for the work.

In this case, the employer may decide to pay for the day off, thus paying for 48 hours in that week. As a result, employees may be tempted to think that the employer should pay the extra eight hours at the overtime rate. However, the employer is required to determine the overtime pay based on hours worked rather than the pay received.

Overtime and Exemptions in California

overtime

In California laws, overtime is regarded as any hours performed over 8 hours in one day or forty hours during a week. There is an exemption to this law if the organization has instituted a bona fide alternative work week where you usually work ten hour days, four days per week.

 

In such cases, the overtime is after ten hours in place of 8, and also after 40 hours during the week. This particular alternative work week has to meet certain requirements, and it may not end up being carried out using a person by person basis.

If you don’t fit in an Exemption, California regulations put it clear that all of the hours worked above eight on a daily basis or 40 in a 7-day period or worked on the seventh consecutive day of a new work 7-day period get paid and times an employee’s regular rate of pay.

 

Furthermore, hours worked above 12 in a day or hours over eight worked on the 7th consecutive day in a 7-day period will be paid at two times the employee’s daily rate of pay.

People not covered by California overtime laws

Job opportunities that can be Exempt from California’s overtime laws and regulations:

1. Commissioned marketing employees of the retail industry, as well as services corporations if over fifty percent of the worker’s wages are derived from commissions as well as the staff, average a minimum of one and one-half times the actual minimum wage for each hour the employee worked.

2. Computer programmers that are compensated at least $37.94 for each hour worked (this represents the 2009 minimum amount hourly condition – it adjusts each year). They must carry out work that may be intellectual or even innovative as well as the exercise involving discretion and independent judgment.

3. Executive, management, professional like actors and even some journalists, or outside marketing staff members.

4. Union staff members who are protected by a collective bargaining agreement providing you with premium salary rates for every overtime hours worked by union staff members.

Can you be made to work overtime? 

Yes, an employer can decide to make the employees work more than the stipulated time. In this case, the employer can use means like termination as a way of punishment if the employee refuses to work

What to do if not paid for overtime?

In situations where the employer may refuse to pay you the overtime wages, one can file a wage claim or even a lawsuit against the employer responsible so that you can recover your lost wages.

What next?

If it happens that you have worked for overtime and you have not been given your wages, you can contact an overtime attorney. Overtime lawyers are people who have specialized in ensuring that their clients get their full paycheck in every week depending on the agreement between the employer and the employee.

 

They will fight for you and ensure that you get what you deserve. In our current economy, every penny matters. Time is precious and for that reason, you have to ensure you get the most out of what you do. You can claim overtime if not paid for up to four years back.

Reporting Time Pay and The Waiting Time Penalty

waiting time penalty

It is wise to understand the meaning of waiting time penalty before taking any job offer. It is common to report to work expecting a specific salary only to get less because of being deprived the amount of work. Inadequate work can result from lack of proper notice or inadequate scheduling among other reasons. The excess actual hour’s one works are normally not included in the reporting time pay.

 

However, there are certain requirements when it comes to reporting pay. You have to understand these requirements in order to relate well with your employees. This article has outlined some of the requirements to enable you to get informed.

 

Expectations
Employees are expected to report to work on a daily basis as stated by the firm. However, there are cases where the employee has no work or ends up doing half or even less of the work he or she is expected to do on a normal day. The employee in question has to get half the amount he or she is supposed to earn for a usual work day.

 

For example, if one is expected to work for six-hour shift and he or she only works for two hours, the firm is expected to pay him or her three hours of the day in reference to a regular day at work. Two hours for working and two hours in terms of reporting time. As much as he has worked only for two hours the rest of the time is also counted as hours worked under this case.

 

Rules

The rules are not applied in the event of the following; when operations in the firm cannot start or go one because of threats from property or employer. It is also not applicable if civil authorities will recommend the job to start or begin at the said time.

In essence, reporting time pay can simply be defined as the partial compensation an employee gets for reporting to his or her work place while anticipating to work for certain duration only to be deprived of work because of various reasons.

 

The reasons should result from the part of the employer. The same case applies if you are expected to work for a certain duration during the second shift only to be given fewer hours as a result of factors out of your control. Whether the reason has been caused by the employer or property, one deserves to be paid the same.

Pregnancy Leave Laws in California

pregnancy leave

California laws provide the greatest level of job protection and partially paid leave for pregnancy leave of any state in the US. California has the most complete sets of laws protecting women during pregnancy leave.

One law gives California women a needed extra benefit over its federal counterpart. The California Family Rights Act provides significantly longer job protection in the event of pregnancy complications, followed by an extended maternity leave for military persons. Should this situation arise, the extended job protection will be welcome.
Where California Ranks
Employees beginning in a new business must be informed of the California labor laws. This is a must. Understand, the state of California has a reputation of being one of the most stringent employment law enforcers in the US, so they don’t take the subject lightly. Hiring legal counsel might even be a smart idea so you can avoid employer liability and legal claims in the future.

One of the most complex areas of labor laws that you ought to understand is the special leaves. On top of the regular leave policies offered by the federal government, the employment law in California has also enacted a few other types of special leaves that employees can benefit from. It is important that you learn about what these special leaves are to properly address issues of absence in the workplace among your employees, whatever the reason may be.

The general legislation in California is that all businesses with fifty or more employees should provide their workers with two primary leave benefits: the California Family Rights Act or CFRA and the Family and Medical Leave Act or FMLA. To preserve your employment rights and to ensure that your employees get the benefits they deserve, here is a quick guide into the special leaves that your workers are entitled to:

California’s Pregnancy Leave Laws Explored

When one of your employees get pregnant, they are entitled to pregnancy leave. This is a traditional type of leave employed all over the United States but there are special clauses to the implementation of this law in California.

All businesses or companies with at least five employees should provide a maximum of four months leave to all pregnant employees. This leave policy covers intermittent leave for a few days before or after giving birth. During her return to work, it is important that the employee retains the same or nearly the same position as she previously held before availing of her leave.

Know all pregnancy leave laws in California laws and you may just avoid a serious infraction in the future.

Intoxication in the Workplace

intoxication in the workplace

If you suspect that any employees of intoxication in the workplace, whether it be of alcohol or drugs, then you should handle the situation very carefully. It would be best to seek legal help in such a case. An employment law attorney will be able to help you out in this regard.
What to Do as An Employer
As an employer, it is your responsibility to provide a safe working environment to all of your employees. Hence, the first thing which you should do is relieve him or her from his duties temporarily until further investigation is done. You don’t have to say anything in detail to the employee. You just have to mention that he/she has been relieved of his duties because he is unable to work effectively.

Once he has been relieved of his duties, you need to escort him to a separate private room for further questions. There may be several reasons why he is under the influence of alcohol. Maybe he is suffering from health issues.

 

Should I Take Legal Action?

As an employer, it is your responsibility to find out the exact reason why he is under the influence of drugs and accordingly proceed further. In some cases, the employee also admits to taking alcohol or drugs. If it is a prescribed drug, then no further actions should be taken against the employee. However, if it is an illegal drug, then termination of employment will be the likely solution unless there are some special reasons.
Can I Drug Test?
You should also make sure that the employee is showing signs of intoxication. As per the law, an employer can send an employee for a drug test only if there is a reasonable suspicion that he is under the influence of alcohol or drugs.

 

For example, if there is a smell of alcohol coming from his breath or if his eyes are bloodshot, then you may send him for a drug test. If the test results are positive, then you will have to terminate his contract. You can also terminate him if he is unwilling to go for a drug test.

 

However, you have to inform the employee before about the substances which he will be tested for.

In order to deal with intoxication in the workplace cases, you have to be very attentive. Each case generally needs a different analysis. And there are several complex rules and regulations. If you don’t follow the rules and take some action against the employee which is outside the scope of the law, then you can also fall into trouble.

Racial Harassment in the Workplace

racial harassment

What’s Racial Harassment?

Racial harassment is simply a kind of behavior that occurs when an individual or a group uses discriminatory remarks or practices in a repetitive manner. Basically, the remarks or practices are supposed to discriminate a person basing on his/her color, culture, religion, language or decent so that the behavior can be considered racial harassment.

Some of the Examples of Racial Harassment Include:

  • Showing a co-worker comic strips, images or pictures which are racially degrading.
  • Trying to stop or hinder a person from being promoted simply because he or she belongs to a particular culture or religion.
  • Making jokes, humiliating comments, racially oriented remarks or insinuations to a person or co-worker.

What are Some of the Consequences Associated with Racial Harassment?

  1. How it Affects the Victim

An individual who turns out to be a victim of racial harassment will most likely feel hurt, humiliated and outraged. He/she will feel rejected in the long run and often fail to carry out his or her daily chores in a professional manner. This is simply because there are invisible barriers trying to hinder his or her performance.

  1. How the Witnesses Inside the Workplace are Affected

Racial harassment can be rampant, and it can end up deteriorating the work environment as a whole. Generally, the colleagues of the victim of racial harassment may end up feeling uneasy and eventually lose interest in certain tasks they are entitled to handle in the organization.

When this form of discrimination is caused by a group of people that intend to make life unbearable to a particular person, racial harassment can lead to confrontation, hate, or even physical violence.

  1. How Does It Impact the Organization?

If the organization fails to handle harassment cases in due time, it might end up suffering losses of employees as people may end up resigning or losing interest in their jobs. It may make the organization incur huge losses if not corrected immediately.

What are Some of the Measures to Put into Action to Stop Racial Harassment in an Organization?

  • Written or oral reprimand or warning
  • Reassignment or transfer
  • Demotion
  • Reduction of wages
  • Discharge
  • Suspension

 

What are Legal Consequences of Racial Discrimination?

Prosecution processes and fines are applied when workplace discrimination occurs. Normally, this may happen when discrimination fails to be addressed properly by the company officials. When an employer is found guilty of causing discriminatory remarks, he/she may be required to pay fines or even face a jail term.

 

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