California Employee Leaves of Absence (LOA)

Understanding employee leaves and accomodiations can be confusing. Below is a brief summary of your obligation as an employer in California.

Americans with a Disability Act (ADA)

• A person who is substantially limited in performing a major life activity when using a mitigating measure. This means that if a person has little or no difficulty performing any major life activity because he/she uses a mitigating measure, then that person will not meet the ADA's first definition of "disability."
• Reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities.
  
  

Family Medical Leave Act (FMLA) and California Family Rights Act (CFRA)

• Applies to all California employers with at least 50 employees within a 75-mile radius.
• Both provide up to 12 weeks of unpaid leave per year for eligible employees, continuation of benefits and job protection. While these leaves are unpaid, employees can consider other options for compensation including State Disability Insurance, vacation/PTO, sick leave, disability leave and/or workers’ compensation.
• An employee need not specifically mention the CFRA (or the FMLA for that matter) to trigger their right to CFRA leave. The burden rests with the employer to make that determination, and, if appropriate, provide the employee with CFRA benefits.

Pregnancy Disability Leave (PDL)

• Employers are required to offer PDL with five or more employees.
• Provides up to four months of unpaid leave for a disability due to pregnancy, childbirth or a related medical condition. FMLA leave runs concurrently. PDL is separate from the12 week leave under CFRA, and can be taken as additional time. While these leaves are unpaid, employees can consider other options for compensation including State Disability Insurance, accrued vacation (PTO) and/or sick leave.

Kin Care Leave

• Allows employees to use up to half of their accrued sick leave/PTO benefits to care for a sick family member, including a child, parent, spouse or registered domestic partner.
• All California employees who are provided sick leave or PTO by their employer are covered.
  

California Military Family Leave Act

• The Act applies to any “qualified employer” with 25 or more employees.
• Requires employers to provide up to ten days of unpaid leave to eligible employees who are spouses of deployed military servicemen and servicewomen. The leave may be taken when the military spouse is on leave from deployment during a time of military conflict. This leave is not counted as FMLA leave. It may run concurrent with FMLA leave when the reason for the leave is FMLA-qualifying.

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Employee Forms - Performance Management and Termination

HR Logic created the following professional tools for managing performance, including termination of an employee. These forms and letters were developed by human resource leaders.

Although many States are "employment-at-will", an employer can not terminate without just cause. One way to avoid wrongful terminations is to have appropriate documentation. There are many ways to do this.

Pre-Termination you may consider the following forms:

1. Performance Action Plan - Can be use to develop a specific corrective action plan. The intent is to use a positive, constructive tool to obtain end goals.
2. Disciplinary Action Notice - Can be used to document an oral warning, written warning, suspension and even termination. This form structures the ability to measure improvement in performance.
3. Last Chance Agreement - Can be used in lieu of terminating an employee. It is an agreement between the employee, manager and Human Resources.

When you need to terminate employment you may consider the following forms:

1. Exit Interview Checklist
2. Notice to the Employee For a Change in Relationship
3. Notice of Separation
4. Reduction in Force Notification
5. COBRA Qualifying Notice
6. Final Paycheck Acknowledgment

Obtain immediate online access to all forms.

Remember to make sure you are following your company policies and/or employee handbook with regards to performance management, last paycheck, layoffs, etc..

Employee Surveys

Why use an employee survey?

An employee survey is a tool to solicit staff for perspectives of their work environment and value within the organization. Research shows engaged, motivated employees will provide higher customer satisfaction and in turn create a highly-performing organization. Knowing how employees view their workplace, or why they leave, gives you the business knowledge required to strategically retain and compete for talent.

Benefits

• learn about an organization's strengths
• discover opportunities for improvement
• measure the effectiveness of company programs
• evaluate customer service
• increase credibility of supervisors and managers
• identify cost savings opportunities
• assess training and development fees

Learn more.

Employee Handbook and Company Policies

For any employer having an employee handbook is essential. A handbook will allow you to spend less time answering common questions, prevent misunderstanding with your employees and look more professional. Make sure it is Federal and State compliant.

View a California Employee Handbook.

It is true that written policies, like any document, can be used against an organization in a lawsuit. Poorly written policies often become the main evidence presented when employees allege that the policies were in fact a contract that the employer violated. However, policies that are carefully written so as not to be contracts actually should protect against these claims and not be a problem. In addition, carefully written policies can be used to illustrate your commitment to a positive work environment and to nondiscriminatory employment practices.

Make sure you review and update once a year (more often if laws change).

OFCCP - Internet Applicant

Do you know the difference between a candidate and an applicant?

On October 7, 2005 a final ruling was issued by the Office of Federal Contract Compliance Programs (OFCCP) to determine the recordkeeping and data collection requirements of "Internet Applicants".

An internet applicant is an individual who satisfies all of the following four elements:

1. The individual submits an expression of interest through the internet or related electronic data technologies. This means that he/she can submit through your company's site or a job board for a position you have posted (i.e. craigslist, monster, yahoo hotjobs, careerbuilder, ect.).
2. Your company considers the individual for employment for a particular position. "Consider" means an assessment of the substantive information provided with respect to any qualifications involved for a particular position. Data Management Techniques (DMT) may be used to reduce the number of expressions of interest to be considered.
3. The individual's expression of interest indicates that he/she meets the basic qualifications. Basic qualifications do not include "preferred" criteria. Employers can only rely on those basic qualifications referred to in the advertisement or job posting. If the position has not been advertised (i.e. future opening), then the employer may rely on those qualifications previously established.
4. The individual, does not prior to becoming an applicant, remove himself/herself from further consideration or otherwise indicates that he/she is no longer interested in the position. This can occur if they express a statement of disinterest, is repeatedly non-responsive to inquires from the employer (at least two documented attempts in a responsible time) or if there are conflicts between the expression of interest and the position (i.e. night shift opening, but they indicate day shift only).

An "expression of interest" from a job seeker is when he/she is interested in obtaining employment. This may be in the form of a resume, online profiles, employment application or other summary of a job seeker's experience, skills and abilities.

Data Management Techniques are methods to control the number of expressions of interest to be considered, such as random sampling or implementation of absolute numerical limits. Such methods cannot depend on an assessment of qualifications. DMT should only be used with openings that contain a large candidate pool.

Basic qualifications are characteristics that are non-comparative, objective, relevant to the performance of a particular position's ability to accomplish business related goals, and is established as advertised or through an existing job description. Minimum qualifications are considered "basic qualifications".

Federal contractors have an obligation to solicit race, ethnicity and gender information from Internet Applicants. Self-identification is the preferred method. Applicants should know that this information is voluntary. Most employers provide a AA/EEO Self-identify form with the employment application.

What if a candidate "blindly" submits a resume via fax or email? Employers must retain the Expression of Interest if "considered" for a particular position.

All records are required to be retained for two years unless:

• those records are relevant to a charge of discrimination; or
• pending lawsuit

An employer must also track database searches (internal and external) in compliance with OFCCP requirements.

Learn more about talent management at www.ehrlogic.com.