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Employment practices audit — getting up close and personal with your employment risk

Most people would prefer to volunteer for a colonoscopy than an audit. But, just like the invasive medical examination that identifies potential problems before it’s too late, an employment practices audit is one of the most cost effective way to proactively manage your employment risks — and perhaps save yourself a bundle in the bargain.

In an employment practices audit, a knowledgeable outsider comes to you, to shine a bright light into the dark recesses of your employment practices. Your policies, procedures, handbooks, and posters — and most important of all, your company’s actions — to make sure you are complying with the law and limiting to the extent possible the risks of a claim from an employee. Or a class of them.

What does it involve? Well, every employer is different, and so is every auditor. But in general, an effective audit will include:

  • A face-to-face meeting. The best audits start with a one on one meeting with the auditor. He or she will want to know a lot of information about your company and its employees. Only an auditor that really knows your mission, your values, your plans, and the day-to-day workings of your business will be able to properly advise you on what your risks are and how to address them.
  • A lot of reading. The auditor will need to find out what records and other written material you generate in connection with the business. Policy manuals and employee handbooks are important, but so too are job descriptions, performance reviews, payroll records, medical files, personnel files, employment applications, and on and on and on. All of these need to be evaluated for legal compliance and maintained in the appropriate place and for the appropriate time.
  • Analysis and mitigation of discrimination/EEO risk. The auditor will review your policies and practices to root out potential discrimination risks. Most companies get the basics right in the handbooks, but not all. Far fewer, however, walk the walk. Do supervisors know all of the legally protected classes? What to do if a complaint gets filed? How to perform a proper investigation? Do performance reviews or other documents show a culture of “go along to get along”? These and other issues should be analyzed by the auditor, who can also provide tips on fixing problems that come to light during the audit.
  • Review of payroll policies and practices. The auditor will also examine payroll policies and records to ensure compliance with federal and state laws concerning overtime. Are meal and rest breaks being given at the appropriate time? Are employees properly classified as exempt or non-exempt (an especially tricky issue in California)? Are paychecks being issued with the proper information, at the proper time? An audit should bring to light any potential issues lurking in your payroll policies.
  • Evaluation of policies regarding leaves of absence, medical leave, and pregnancy. The auditor will review procedures and practices relating to FMLA and its state analog CFRA, California’s challenging pregnancy disability leave law and other leaves to ensure compliance with applicable laws and no hidden discrimination red flags.
  • Any other relevant practices or employment issues. The auditor, armed with knowledge of your business and aspirations, should evaluate any other potential problems that might be hiding, including for instance independent contractor issues, OSHA and other workplace safety concerns, employee privacy, etc.
  • A written report card and follow up conferences as needed. A good auditor will prepare a written evaluation or report card at the end of the audit, with a concise identification of problems and concrete proposals to solve them.

A good employment practices audit will take some time to complete, but it shouldn’t take more than a week, at most two. It will take attention from the CEO level all the way through the ranks. Yes, devoting the time to properly do the job can be an inconvenient if temporary diversion from your business. And yes, it’s going to cost some money (check with your EPLI carrier though — some provide premium credits or other financial incentives to do an audit).

But compared to the financial exposure you’ll face when you find out, inevitably after the fact, that you’ve been doing it wrong for the past four years, the expense is well worth incurring.

New minefields for California employers re applicants’ criminal backgrounds

California’s version of “Ban the Box” went live yesterday, and San Francisco’s much broader version debuts next month. Are your recruiters and interviewers ready?

If you don’t know already, “Ban the Box” is a s campaign to encourage (or require) employers not to ask applicants about criminal records in employment applications or screening interviews. Some 10 US states and more than 50 US cities have already enacted legislation requiring public employers — and in some cases private contractors working for public employers — to keep such questions until much later in the process, thereby giving folks a fair chance to establish their qualifications and get a job despite prior criminal records. A few private companies, most publicly Target,  have voluntarily stopped asking about these kinds of things.

The California law, AB 218, applies to public employers in California from the state on down. A public employer may not ask about convictions or related information until after the employer concludes the applicant is qualified for the job (per the job posting). There are exceptions for, among other things, jobs in criminal justice or jobs that legally require a conviction history background check on the applicant. AB 218 became effective on July 1, 2014.

Don’t tune out, private employers. San Francisco recently passed an ordinance applicable to private employers. The San Francisco “Fair Chance” Ordinance prohibits SF employers from asking applicants about criminal convictions on employment applications or during an initial interview. Employers must provide a written notice before asking about criminal backgrounds, and must post a notice in the workplace. In addition, employers may not ask at all about:

  • arrests that didn’t result in conviction;
  • completion of diversion programs, i.e. for drug or alcohol related offenses;
  • juvenile offenses or criminal matters that have been sealed;
  • older offenses (> 7 years old); or
  • lesser offenses such as infractions.

But wait, there’s more! employers can only use criminal information they do get if it has “a direct and specific negative bearing on that person’s ability to perform the duties or responsibilities necessarily related to the employment position.” And there’s a complicated notification process and an opportunity for the applicant to plead his or her case if the employer rejects an applicant based upon criminal history. Employers in San Francisco need to act pronto to meet the law’s August 13, 2014 effective date. You lucky folks should be doing at least the following:

  • Review employment applications for compliance;
  • Review hiring procedures for compliance;
  • Get notification forms and posters out and at the ready; and
  • Train interviewers on the new requirements.

And if you’re not in the public sector or in San Francisco? Ignore these new laws at your own risk. The present trend is in favor of limiting an employer’s right to learn or use criminal histories in the hiring process, and doesn’t show any signs of going away any time soon.

Contact your employment counsel for more information on these issues.

Job descriptions your road map for workplace success

Do you know where your relationships with your employees are going? The best way to make sure they stay on the right track with effective written job descriptions.

Yes, I know. Written job descriptions a pain in the @$$. They are hard to write. No one reads them. You have to update them all the time. No one reads them. A client once told me they are forms for forms’ sake, loved only by lawyers and HR geeks — of little or no practical use or value.

But used correctly, written job descriptions can be one of an employer’s best tools to ensure good relationships with employees. They are the road map without which neither employer nor employee knows where they are going — or even if they are going the same direction. Good job descriptions keep everyone on the same page. They foster engagement by showing employees at any level how their work serves the company mission, and what that mission is. They provide employees with concrete, practical feedback on what’s working and what’s not. They help manage expectations about what it takes to succeed. If you want to take one step to maximize your workers’ contribution to the company — which is kind of what human resources is all about, after all — draft and use written job descriptions for every position.

Not coincidentally, written job descriptions can also help employers — particularly newer or smaller employers without armies of HR staffers with alphabet-soup credentials following their names — avoid employment litigation or minimize its impact if it does come up. (And, I hate to say it, if you’re at all successful it’s not a question of if but when.) Properly used, they help in hiring, evaluating performance, imposing discipline, avoiding overtime violations, setting salaries, considering accommodations, and defending lawsuits.

OK so far? Good — let’s write (or revise) those buggers to get the best bang for our job description buck.

How to write them:

  • Write it down. I know, you’re small, you’re new, you’re nimble, things change fast, did I miss any? No time to write stuff down. Listen to me: an oral job description is meaningless. If employer and employee cannot agree on a starting point for the relationship, the relationship is doomed. Write job descriptions down and keep them, on the back of a cocktail napkin if need be.
  • Start early.  Write a job description when you start the hiring process.  Write one for each position you’re going to hire someone into.  Do it before you advertise or interview for the position.
  • Accuracy is key.  Talk to your colleagues, supervisors, and employees about what a job actually entails on a day to day basis. Reality counts here — this should not be an aspirational document. It should be a true picture of what the employee will do.
  • Revise when needed.  Review and revise them frequently. If it’s been more than a year, time to dust them off and make sure they’re still accurate.
  • Get expert input.  Have HR or a consultant or lawyer review them for technical compliance and completeness.
  • Give it to the employee. Kinda hope that goes without saying, but….

What to put in them:

  • The basics — title, salary, full time/part time, benefits.
  • Duties, responsibilities, and essential functions. State up front the duties the job was created for and which the employee will be doing regularly. Also describe occasional or secondary duties and include a catch-all “and other duties as assigned” to maintain flexibility.
  • Skills, experience, and requirements needed.  List physical, mental, technological and other skills needed to do the work. (But be real — don’t require a college degree for a manual labor position.) List what experience  is needed or desired. If some sort of license is required, list it, whether it’s a drivers license or a medical license. Don’t forget the physical stuff, like frequent standing, sitting, lifting, pulling, typing, etc.
  • Exemption criteria. If the position is considered exempt from overtime laws, specify why.  Does it supervise a department?  Assist management with general policies? Require professional education and licensure?  Say so.
  • Disclaimer.  Not necessary, but if it makes you feel better, say that the description isn’t a contract and can be revised without notice.  But please keep the legalese to a minimum.

When to use them:

  • When hiring.  Postings should refer to qualifications and skills needed and describe job duties and responsibilities.  Let your applicants self-select out of jobs they are not qualified for or interested in.  During interviews, focus on the job requirements, which will help avoid inappropriate questions.
  • For evaluation and discipline.  The job description sets out the duties.  Did the employee perform them?  If so, give her a good evaluation.  If not, consider discipline.  It’s that simple.
  • For overtime classification.  Whether a position is exempt from overtime rules or not depends on what the position does.  So examine your job description to see whether it meets the criteria for an exemption — just like a jury will be doing if you get sued!  If it doesn’t, pay the employee hourly.
  • To discuss accommodations.  Whether a disabled employee is entitled to an accommodation, and if so what accommodations are reasonable, depend on the job duties, essential functions, and physical requirements of the position.  All of those should be in the job description.  Use it as an outline to discuss what the job requires and what can be done to permit the employee to do it.

Job descriptions may take some care and feeding.  But when used properly they are extremely valuable when it comes to managing expectations and avoiding surprises — and surprises lead to lawsuits.  And if a suit is filed, the job description will help establish legitimate reasons for whatever happened.

Listen to your attorney. Get those job descriptions in writing. Share ‘em. Use ‘em. It’s a little investment that will pay off in better relations with your employees and less risk to your wallet.

FEHA administrative claim jurisdictional, but not THAT jurisdictional

A new case out of the California Court of Appeal addressed what it really means to exhaust administrative remedies under California workplace discrimination law. The bottom line? Let’s just say your defense should have a bit more going for it than that.

In Kim v. Konad USA Distribution, Inc., plaintiff Esther Kim alleged some seriously lurid sexual harassment by her supervisor. Over a period of years, Ms. Kim’s supervisor Dong Whang (you really can’t make this stuff up) questioned Kim about her sexual activities with her boyfriend, whether she used sex toys, and whether she did Kegel exercises.  He commented on other women’s breasts and buttocks, and told Kim that hers were better.  He told her about a friend that would have sex with women and then go home and have sex with his wife.  He asked Kim to sit in his lap; she declined. He asked her if she thought that he was trying to get her to go to bed with him; she said he was disgusting.  He leered at Kim from his adjacent desk almost on a daily basis and stared at her breasts and legs.  He related stories of monks and their small penises allegedly due to lack of use.  He hugged and touched Kim repeatedly, sometimes for long periods of time. Kim’s co-worker Cathy Lim and corroborated Kim’s account, stating that Whang thought that Kim’s boyfriend was using her mainly for sex and that Whang referred to Kim as a slut.

After a bench trial the judge awarded Kim a bit more than $50,000 in damages. On that kind of a record, you’d think defendants would write a check and walk away happy. But you’d be wrong.

After trial, for the first time, the defendants asserted that Kim had failed to exhaust her administrative remedies — including filing claims with FEHA against both defendants, and alleging the particulars that were the basis for her court claims. The court of appeal made pretty quick work of that one, since the plaintiff had in fact filed a complaint and received a right to sue letter from the DFEH. But defendants wouldn’t give up, asserting (ironically only after completion of the trial) a technical argument that Kim had to prove during trial that verified administrative complaints were filed with DFEH against both defendants with all claims raised in the lawsuit specified in those administrative complaints — or the court lacked subject matter jurisdiction to decide the case.  The court was unimpressed:

“jurisdictional prerequisite” does not mean subject matter jurisdiction in the context of exhaustion of administrative remedies.  The concept of jurisdiction embraces a large number of ideas of similar character, some fundamental to the nature of any judicial system, some derived from the requirement of due process, some determined by the constitutional or statutory structure of a particular court, and some based upon mere procedural rules originally devised for convenience and efficiency, and by precedent made mandatory and jurisdictional. Although earlier cases tended to view the exhaustion doctrine as invalidating a court’s subject matter jurisdiction, thus allowing a defendant to raise it at any time, later cases have generally concluded a defendant waives the defense by failing to timely assert it. The administrative exhaustion requirement does not implicate the court’s subject matter jurisdiction.  It is “jurisdictional” in the sense only that a court’s failure to apply the rule is judicial error and can be corrected by issuance of a writ of prohibition….

It would be grossly unfair to allow a defendant to ignore this potential procedural defense at a time when facts and memories were fresh and put a plaintiff to the time and expense of a full trial, knowing it could assert the failure to exhaust administrative remedies if it received an adverse judgment.

The court also rejected defendants’ attempts to game the system — by raising their defense after trial but holding the plaintiff to only the evidence introduced during trial:

Defendants seek to have it both ways by claiming they can raise exhaustion at any time but the evidence of exhaustion should be limited to that submitted at trial.  If it truly is a question of subject matter jurisdiction, the trial court could — and this court can — reasonably rely on the materials submitted by plaintiff in her opposition to defendants’ posttrial motion to decide the issue.  By arguing otherwise, defendants conflate the question of whether sufficient evidence was admitted at trial to find in plaintiff’s favor on the elements of her FEHA claims with the question of whether subject matter jurisdiction existed at trial and now exists on appeal.

In other words, what’s sauce for the goose is sauce for the gander. If the defendants can introduce evidence on a “jurisdictional” defense after trial, the plaintiff can rebut it with evidence after trial.

Finally, the court reminded employers that while small employers (fewer than five employees) escape some of California’s anti-discrimination laws, liability for sexual harassment isn’t one of them. The court reaffirmed that under both FEHA and the California Constitution an employer will be liable for harassment and wrongful termination even if there is only one employee.

Much of the reason behind the Kim case seems to turn on the gamesmanship of the defendants. It’s hard to argue that they weren’t trying to pull a fast one here. But the opinion will probably have a more direct, and substantive, impact on the exhaustion of remedies issue. If plaintiffs bear any burden beyond showing that they made claims against all defendants and received right-to-sue letters, it is pretty minor. After Kim, defendants asserting that administrative remedies were not properly exhausted will be well advised to assert as much and be ready to prove it, well before trial begins, at the risk of a potential waiver if they do not. That sounds like it’s defendants’ burden of proof, not plaintiffs’. If you’re going to assert it, at least have the guts to say so.

But I suppose if that’s all you’ve got, you’re in some deep trouble anyway.

An employee by any other name – Ninth Circuit nixes another “independent contractor” scheme

From the “if it walks like a duck and quacks like a duck” desk: The Ninth Circuit recently put another nail in the coffin — and probably a substantial dent in the coffers — of another employer who attempted to classify workers as “independent contractors.” It’s a good object lesson about how overly-aggressive classification of workers as something other than employees is risky business on the left coast.

The case is Ruiz v. Affinity Logistics Corp. For years, Fernando Ruiz was an employee of Penske Logistics Corporation, a company that delivered furniture for Sears. In November 2003, Sears notified Penske drivers that Affinity Logistics Corporation would take over the contract. However, the drivers would not be employees of Affinity, but would rather be “independent contractors,” who needed a fictitious business name, a business license, and a commercial checking account. Affinity both told the drivers how to complete the necessary forms, and actually completed the forms for some (including Ruiz). Each employee also had to sign an “Independent Truckman’s Agreement” (we’ll cover the unnecessary use of gender specific terms in another post) confirming the “independent contractor” relationship.

Affinity then issued each of its “independent contractors” a Procedures Manual that meticulously controlled virtually every aspect of the truckers’ work, including procedures drivers were required to follow regarding loading trucks, delivering goods, installing goods, interacting with customers, reporting to Affinity after deliveries, and addressing returns and refused merchandise, damaged goods, and checking in with Affinity after deliveries. Affinity’s control extended to the drivers’ clothing, the number of daily pickups and deliveries, the time and place each trucker had to report on a daily basis, minuter details about the colors of the trucks and the equipment to be carried, and  virtually all aspects of the truckers’ working day. The court went on for pages on the extensive control Affinity exercised over its “independent contractors.”

Maybe you can see where this is going.

The Ninth Circuit held that this kind of control was a bit beyond that exercised in a legitimate independent contractor relationship. And, as a result, the court held — reversing the trial court — that the relationship was one of employer and employee, with all of the baggage that comes along with it.

Following California state law, the Ninth Circuit first noted that “the right to control work details is the most important or most significant consideration” in finding an employment relationship. If the hiring party has the right to control the manner and means of accomplishing the result of the work, you’d better believe the hired party is an employee. In addition, the Ninth Circuit also examined other “secondary” factors showing and employment relationship:

(a) whether the one performing services is engaged in a distinct occupation or business; (b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (c) the skill required in the particular occupation; (d) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by the time or by the job; (g) whether or not the work is part of the regular business of the principal; and (h) whether or not the parties believe they are creating the relationship of employer-employee.

Each of the factors, in the court’s opinion, led to the conclusion that these guys (hey, I didn’t start it) were employees, not independent contractors. As a result, the cost of all the meal and rest breaks, daily overtime, and other employee benefits for which the golden state is so rightly famous will be swiftly fleeing from Affinity’s financial institutions. Don’t forget the four-year lookback period for wage and hour violations in California. Or, for that matter, the taxes and penalties (did you have workers comp insurance?) the state’s going to come looking for. Did someone say attorneys’ fees?

We’ve talked about this stuff before, people. If you think you can save a buck by calling the people who are doing the bread-and-butter work of your business “independent contractors,” you’re just putting (ridiculously expensive) lipstick on a pig. (One too many animal cliches, I know — it’s a disease.)

Time to revise those handbooks!

The turkey is done, the tree is up, the lights are hung. Time to turn to that other year-end festivity: revising your employee handbooks to track new laws. And the stockings are pretty full for California employers this year. So pull the policies off the shelf, dust them off, and get them updated. Pronto.

Here’s the rundown:

Most of these changes are effective January 1, 2012. Some have already happened. The clock is ticking, and I’m not talking about the ball dropping in Times Square.

While you’re doing all these revisions, give some serious thought to training, too. A handbook or procedure manual is useless if your supervisors and HR personnel don’t know what’s in it and how to apply it properly. In fact, one of the things the plaintiffs’ bar likes best is pointing out how the real-world practice in the workplace differs from the policies the employer has imposed. An investment in an annual refresher course would be money well spent. Or better yet, hire someone (like, ahem, your humble author), who includes a training session with each handbook or policy revision project. Heck, while we’re plugging, might as well point out the risk management benefits of an annual employment practices audit, to confirm what you’ve got right and improve what you could do better — hopefully before the class action gets filed and you’ve got two sets of lawyers (yours and the plaintiffs’) to pay.

Give your business the year-end gift that keeps on giving — employment liability mitigation. (Sure, jewelry sounds better, but believe me, the exposure is much more expensive if you don’t keep a lid on it.) Get your policies updated, and your managers trained on the changes, as soon as possible.

Visit christensenlawgrp.com for more information.

California employers — Get those commission agreements in writing!

AB 1396, one of many new employment laws approved last month by Governor Jerry Brown, imposes a new requirement on employers paying commissions — get it in writing!

The law, which by its terms becomes effective on January 1, 2013, states “whenever an employer enters into a contract of employment with an employee for services to be rendered within this state and the contemplated method of payment of the employee involves commissions, the contract shall be in writing and shall set forth the method by which the commissions shall be computed and paid.” An executed copy of the agreement must be provided to each affected employee, and the employer must get a signed receipt from the employee. “Commission” is broadly defined as “compensation paid to any person for services rendered in the sale of such employer’s property or services and based proportionately upon the amount or value thereof.”

What happens to employers who don’t comply? No penalties are specified in the law for violations. But not so fast. Labor Code violations can result in penalties under California’s Private Attorneys General Act (PAGA, aka “Sue Your Boss Act”). They may also constitute unfair business practices. Either way, a non-compliant employer can be looking down a pretty unattractive road.

For most cautious employers, complying with AB 1396 should be relatively easy. That’s because most cautious employers’ even more cautious employment counsel have been telling them to use written commission agreements for years. This is a law most likely to trip up smaller or mid-sized businesses without dedicated HR staff. In other words, the ones least likely to be able to afford a regulatory audit or a class action from the plaintiff’s bar.

So make your first New Years resolution for 2013 today. Get those commission agreements in writing.

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