Triebsch & Frampton

a Professional Law Corporation

Now that you are managing employees, what are you required to do legally at a bare minimum?  The following steps outline the requirements that employers must comply with, at a bare minimum.

STEP 1        Obtain Workers’ Compensation Insurance.   Ask your insurance agent for information on obtaining workers' compensation insurance.

STEP 2        Verify Legal Status to Work.   Visit the US Citizenship and Immigration Services website at www.uscis.gov/portal/site/uscis to obtain the proper I-9 reporting form and instructions.

STEP 3        Report New Hires to EDD.   Report all new hires to the Employment Development Department (EDD) on the "Report of New Employees" form (DE 34).  Call the EDD for the forms or visit www.edd.ca.gov.

STEP 4        Complete Orientation Checklist.   Complete a checklist to monitor a new employee’s orientation and accrual of benefits similar to the sample "EMPLOYEE TRACKING FORM" form below.

STEP 5        Post Wage Order.   Obtain and post the proper Wage Order from the California Department of Industrial Relations at www.dir.ca.gov/iwc/wageorderindustries.htm.  Then establish a method for keeping track of time worked, either through time sheets or with time clocks.  Pay employees at least twice a month.  Learn the rules for overtime and minimum wage.  Do not think that paying a salary automatically takes care of overtime pay.  In most instances, overtime will still have to be paid.  See the chapter of this book entitled “Wage & Hour Laws” for basic rules on overtime.

STEP 6        Obtain Employer ID Number.   Obtain an Employer Identification Number (EIN) from the IRS.  Then complete the Internal Revenue Service form W-4 and withhold the proper taxes.  Also pay the employer's share of employment taxes such as unemployment and disability insurance to the appropriate Federal, State, and local agencies.  Call the EDD and IRS for the EIN applications and tax rate booklets.

STEP 7        Establish Injury & Illness Prevention Program.   Establish a written Injury & Illness Prevention Program (IIPP) and do the required inspections and training.  Call Cal-OSHA Consulting Services for a sample IIPP, and to get information on other safety requirements for your specific business.

STEP 8        Deliver Pamphlets.   Deliver the pamphlets and notices to the employees as listed in the sample "EMPLOYEE TRACKING FORM" below.  The best one-stop shop for these notices is the California Chamber of Commerce at 1-800-331-8877 or www.calchamber.com/store.  Otherwise, you can go on-line or contact the Department of Fair Employment and Housing (DFEH), workers' compensation carrier, and EDD for the various pamphlets.  Other notices and pamphlets may apply to your particular industry, especially farming.  All notices and pamphlets should be given to the employees in their native language.  Some laws require the notices to be given in the employee's native language if the percentage of non-English speaking employees in the workplace is at a certain level.

STEP 9        Post Required Workplace Notices.   We suggest you contact the California Chamber of Commerce at 1-800-331-8877 or www.calchamber.com/store to obtain and order the required posters, including posters in Spanish if needed.

STEP 10      Conduct Harassment Prevention Training.   Train on preventing discrimination and sexual harassment.  When you hire a new employee, train immediately; don’t wait until your annual training session 6 months later.  It could be too late by then, especially if the new employee is a manager who has harassed subordinates.  Have the employee sign a form that they were trained.  This training can take place at the same time you train on safety matters under the IIPP.  Use a video presentation, or at least verbally review your policies against discrimination and harassment, including how to report misconduct and the consequences of engaging in misconduct.  Besides the required notice against sexual harassment, don’t forget to address improper use of computers, email, and the Internet, and the company’s right to search these things at any time.  These notices and policies can be acquired through Jim McDade via email at jrmcdade@turlocklaw.net.

In addition, supervisors are required by Government Code §12950.1 to receive 2 hours of training on preventing and responding to claims of sexual discrimination within 6 months of being hired.

STEP 11      Send COBRA Notices.   If you have 20 or more employees and if you offer health insurance to employees, send out the proper COBRA notices via certified mail.  The federal COBRA law gives employees (and family members) the right to continue health insurance at the employee’s cost when his or her employment ends.  You can order a "COBRA Reference Kit," which includes all the forms you need to administer COBRA, by emailing Jim McDade at jmcdade@turlocklaw.net.

If you offer health insurance benefits to your employees and have 2-19 employees, you are subject to Cal-COBRA.  Contact your health insurance carrier for information on Cal-COBRA.

STEP 12      Purchase Employment Practices Insurance.   Although not a legal requirement, seriously consider purchasing employment practices insurance to obtain protection against wrongful termination, discrimination, and harassment complaints.  This could save your business.  Talk to your insurance agent or give us a call for more information.

More information about an employer's legal responsibilities is contained in the following chapters of this book.  This book concentrates on the legal aspect of employment law, not the motivational aspect.  You should obtain training and read books on how to manage people, and in particular, employees.  If you come upon a management technique that you like, review it to make sure the technique does not run afoul of the law.  Sometimes minor adjustments to a management technique will have to be made because the technique comes from another state which is not as strict in its labor laws as California.  YOU ARE STRONGLY DISCOURAGED FROM RATIONALIZING THE USE OF AN ILLEGAL PERSONNEL PRACTICE BECAUSE "EVERYONE IN THE INDUSTRY DOES IT".  This excuse rarely solicits sympathy from any state enforcement agency.  Do it the right way from the beginning and you will save yourself legal fees, penalties, back pay, poor employee morale, time, energy, embarrassment, criminal charges, and, . . . maybe even your business.

EMPLOYEE TRACKING FORM

Employers use this form to track the completion of initial orientation and the qualifying for benefits of a new employee.  (Delete this note prior to use.)

Employee Name: _______________________________________________

PRE-OFFER EXAMS AND BACKGROUND CHECKS

1. Job Application completed and reviewed

2. Job Interview held; review job description and job expectations

3. Background check

___ Past jobs verified                         ___ Schooling verified ____________________________

___ References called                        ___ Licenses verified

___ Credentials verified                      ___ Other: ___________________________

4. Aptitude Testing passed on _____________________________  (Note to Employer: Pre-offer aptitude testing cannot have any medical component to it such as mental assessments or testing of physical limitations.  Applicants cannot perform productive work when being tested for skills.)

POST-OFFER, PRE-EMPLOYMENT EXAMS

1. Drug Test passed on ______________.

2. Physical Exam passed on ______________.  (Note to Employer: Do the physical exam last after employee passes all other testing per Leonel v. American Airlines)

 INITIAL ORIENTATION

 Date hired (after exams and background checks are completed): ________________

Orientation given on: __________________  by: _______________       Mark items completed:

 EMPLOYEE BENEFITS

The information in the chart is an example only; it is not a statement of what benefits and waiting periods must or should be.

SALARY/WAGE RATE AND POSITION CHANGES

Initial Pay Rate: $________________.  Initial position: _________________________________

Wage changed to $________________ effective __________________ as result of   ¨ cost of living increase   ¨ merit increase   ¨ merit decrease   ¨ position change

Wage changed to $________________ effective __________________ as result of   ¨ cost of living increase   ¨ merit increase   ¨ merit decrease   ¨ position change

Position changed to _______________________________ on ________________________, 20____

Position changed to _______________________________ on ________________________, 20____

TERMINATION OF EMPLOYMENT

1.   “Employment Separation Notice” competed on _____________ by ___________________.

2.   If the employee was terminated, the Unemployment Insurance pamphlet DE 2320 “For Your Benefit” was provided on __________________, 20____,  by _____________________.

3.   Company property received back on ________________________, 20___.

4.   Employee paid (or check is ready at place of employment) for all outstanding wages and vacation immediately if terminated, or within 72 hours of employee given notice of resignation.  DO NOT MAIL CHECK TO CLIENT UNLESS CLIENT REQEUSTS MAILING IN WRITING.  Employee picked up pay check on: _________________________, 20___

5.   COBRA tracking checklist completed, if applicable, on ___________, 20___, by _______________.