EMPLOYEE HANDBOOKS. The Importance of Employee Handbooks and H.R. Audits. Presented by Roxana E. Verano, Esq.

Transcription

1 EMPLOYEE HANDBOOKS The Importance of Employee Handbooks and H.R. Audits Presented by Roxana E. Verano, Esq. LANDEGGER BARON LAW GROUP, ALC Exclusively Representing Employers Employment Law, Advice, Litigation and Solutions

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4 About Our Speaker Roxana E. Verano, Esq. Senior Attorney with the Landegger Baron Law Group A twenty-year veteran in employment law on behalf of management. Specializes in assisting businesses navigate complex employment law issues and avoid unnecessary litigation. Member of the Los Angeles County Bar Association and the Pasadena Bar Association. Received her J.D. from Pepperdine University School of Law. Fluent in Spanish 4

5 Employee Handbooks Employee Handbooks are optional but highly recommended for employers with 15 or more employees Facilitate Communication with Employees Ensure Compliance With Complex Federal and State Laws and Regulations Provide Employers with Defenses for Legal Claims Be Used as an Effective Management Tool

6 Employee Handbooks Facilitate Communication with Employees Communicate your company s history and business philosophy to employees (e.g. non-union shop) Facilitates the development of workplace policies and procedures that make sense for your company Provides a means to communicate workplace policies and procedures to employees Provides clear expectations Helps avoid misunderstandings and therefore litigation

7 Employee Handbooks Ensure Compliance With Complex State and Federal Laws and Regulations Both Federal and California employment laws and regulations require certain notifications be given to employees Often Federal and State laws overlap and employer must provide the law that provides the most protection to the employee

8 Employee Handbooks Federal and State Laws, cont. Equal Employment Opportunity Sexual Harassment Prevention Discrimination/Harassment/Retaliation Disability Rights, e.g. ADA/FEHA Family and medical leave (if covered employer), e.g. FMLA/CFRA Pregnancy leave rights

9 Employee Handbooks Provides Legal Defenses At Will Doctrine- contract claims Privacy rights limitation- and other electronic forms of communication Alcohol and Drug Policy Meal and Rest Period Policy Paid Sick Leave Harassment/Discrimination claims Workweeks and Workdays

10 Employee Handbooks At-Will Employment - Presumption In the absence of a specific employment contract, all employment in California is at-will meaning that the employer and the employee may at any time terminate the employment relationship without cause (reason) and/or without notice (warning). However, an at-will employee may not be terminated for an illegal reason. Importance of documentation-counseling, performance evaluations, job descriptions, policies and procedures.

11 Employee Handbooks Provides Legal Defenses, cont. Non Required Policies may still require a written policy If offered, Employer should have written policy Vacation Cap Paid Sick Leave Progressive Discipline Reimbursement for Business Expenses

12 Employee Handbooks An Effective Tool for Management Orientation- clear expectations On-going reference tool for management Uniformity / Fairness Employee understand what is expected of him/her Consistency on the part of management if he/she can show reliance on employee handbook Useful as an Exhibit in litigation Shows commitment and efforts to comply with laws

13 Employee Handbooks Additional Considerations Clearly state the Employee Handbook does not constitute a contract of employment Discretion to change, modify or delete provisions Policies should not be too broad or too narrow Do not provide more protection than required under state and/or federal law

14 Employee Handbooks Additional Considerations Consider translating you employee handbook Do not cut and paste another company s handbook Update regularly Acknowledgement Make sure it complies with California law

15 H.R. AUDITS Key to defending a wage and hour claim is evidence that (a) employer has promulgated policies and procedures to comply with state and federal law, e.g. timekeeping, itemized wage statements, meal and rest period, business reimbursement, travel time, etc.; and that (b) the employer follows/complies with these policies to ensure that its employees are being properly compensated.

16 H.R. AUDITS While many employers can show that they have developed policies, often employers cannot produce evidence that they have consistently follow them. Solution REGULAR AUDITS

17 H.R. AUDITS Regular audits will ensure sufficient evidence to defend against wage and hour claims Minimize/Limit potential liability Help identify potential problems that must be addressed Otherwise, financial exposure increases with each day that passes Increases the likelihood of a court finding violations/actions to be willful violations of the law

18 H.R. AUDITS Non-Exempt Employees Key documents to collect/review Timekeeping records, including a review of clock in and clock out punches. Questionable entries include consistent round start and end time, and rounding that does not even out over time.

19 H.R. AUDITS Non-Exempt Employees Key documents/review Meal period punches/was meal period taken before the end of the 5 th hour? Did employee receive less than a 30-minute meal period? Ensure premium pay was paid in situations where meal period violations was due to something within the employer s control and not as a result of employee s choice.

20 H.R. AUDITS Non-Exempt Employees Compare employees timesheets with itemized wage statements. Regular hours Overtime hours Split shift Travel time Premium pay

21 H.R. AUDITS Non-Exempt Employees Itemized Wage Statements, cont. Ensure compliance with Section 226 Employer s legal entity name and address Employee s last 4 number of S.S. or employee number Payroll Period- beginning and end Applicable rates of pay Deductions/Lodging credits Paid sick Leave Maintain a copy of wage statement or a document containing all information provided in the pay stub

22 H.R. AUDITS Exempt Employees Key documents to collect/review Job descriptionscontain key information about duties relevant to the exemption, including (a) in what order are the job duties listed (duty requiring greatest amount of time should be first), (b) any indication as to the percentage of time spent on a particular duty, and (c) level of autonomy the employee exercises.

23 H.R. AUDITS Exempt Employees The job description is helpful but only the start of the analysis. Law focuses on employee s actual duties/realistic requirements of the job. Regularly review duties to determine proper classification.

24 H.R. AUDITS Exempt Employees Key documents to collect/review Job Postings indicate the characteristics, background and experience needed. Job Evaluations indicate what the evaluator sees as the most important duties. Organizational Chart.

25 H.R. AUDITS Exempt and Non-Exempt Employees Business Reimbursement Clear policy and procedures Supporting documentation Record of payment

26 H.R. AUDITS In the event a self-audit shows significant potential liability, consider having legal counsel conduct the audit in order to shield the results of the audit and the documents compiled as part of the audit by the attorney-client privilege.

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29 QUESTIONS? THANK YOU FOR ATTENDING! LANDEGGER BARON LAW GROUP NOVATIME TECHNOLOGY, INC. Roxana E. Verano, Esq. Scott Rose, Enterprise Sales Ventura Blvd., Suite 1200 Encino, California Los Angeles Office: Bridgegate Dr., Suite 300 Diamond Bar, California Headquarters: x-181