Happy Friday!  This Friday’s Five covers five areas that employers can start with in conducting an employment practices Checklistsaudit.  Coming up on the mid-point of the year, it is a good time to conduct an employment law practices audit to ensure that policies are compliant, managers are properly trained, and the company is maintaining the required records for the necessary length of time.  Here are five areas to start with in conducting an audit and a few recommended questions for each topic:

1. Hiring Practices

  • Are applications seeking appropriate information?
    • For example: Be careful about local ban the box regulations.
  • Are new hires provided with required policies and notices?
  • Are new hires provided and acknowledge recommended policies?
    • For example: meal period waivers for shifts less than six hours
  • Are hiring managers trained about the correct questions to ask during the interview?
  • Does the company provide new hires (and existing employees) with arbitration agreements with class action waivers?

 2. Records

  • Are employee files maintained confidentially and for at least four years?
  • Are employee time records maintained for at least four years?
  • Are employee schedules maintained for at least four years?
  • Do the managers have set forms for the following:
    • Employee discipline and write-ups
    • Documenting employee tardiness
  • How is the employee documentation provided to Human Resources or the appropriate manager?
  • Who is involved in reviewing disability accommodation requests?
  • How are employee absences documented?

3. Wage and Hour Issues

  • Does the company have its workweeks and paydays established?
  • Are paydays within the applicable time limits after the pay period as required under the law?
  • Are employees provided with compliant itemized wage statements?
  • Are employees provided a writing setting out their accrued paid sick leave each pay period?
  • Are employees properly classified as exempt or nonexempt?
    • For exempt employees, review their duties and salary to ensure they meet the legal requirements to be an exempt employee.
  • Any workers classified as independent contractors, and if so, could they be considered employees?
  • Are nonexempt employees properly compensated for all overtime worked?
  • Is off-the-clock work prohibited?
    • Policy in place?
    • Are managers trained about how to recognize it and what disciplinary actions to take if find employees working off-the-clock?
  • Does the company’s time keeping system round employee’s time?
    • If so, is the rounding policy compliant with the law?
  • Are meal and rest period polices set out in handbook and employees routinely reminded of policies?
    • Does the company pay “premium pay” for missed meal and rest breaks? If so, how is this documented on the employee pay stub?
    • Do employees record meal breaks?
    • Are managers trained on how to administer breaks and what actions to take if employees miss meal or rest breaks?
  • Is vacation properly documented and tracked?
  • Are all deductions from the employee’s pay check legally permitted? (use caution, very few deductions are permitted under CA law)
  • Are employees reimbursed for all business expenses, such as uniforms, work equipment and miles driven for work?

 4.End of Employment Issues

  • Are employees leaving the company provided their final wages, including payment for all accrued and unused vacation time?
  • Does the employer deduct any items from an employee’s final paycheck?
    • If so, are the deductions legally permitted?

5. Anti-harassment, discrimination and retaliation

  • Are supervisors provided with sexual harassment training every two years? (If employer has 50 or more employees, supervisors are legally required to have a two-hour harassment prevention training that complies with AB 1825 and amendments to this law).
  • Are supervisors and managers mentioning the open-door policy of the company to employees at routine meetings with employees? Is this being documented?

Please let me know if you have any other items your company considers during review of employment policies – it would be great to update this list to share with readers.  Have a great weekend.

Mayor Garcetti signed into law the “Los Angeles Fair Chance Initiative for Hiring” ordinance on December 7, 2016.  The law takes effect January 22, 2017.  The Mayor’s holiday gift to employers leaves only a couple of weeks to them to change applications and hiring processes to comply with the new ordinance.  This Friday’s Five lists five aspects of the ordinance employers operating in the City need to understand:

1. New law applies to employers with 10 or more employees.

The new law applies to any individual, firm, corporation, partnership, labor organization, group of persons, association, or other organization however organized, that is located or doing business in the City of Los Angeles and employs ten or more employees.  The owners, management, and supervisory employees are counted when determining if the employer has ten employees.

Employers cannot inquirer into criminal backgrounds of applicants until after a conditional offer of employment is made.

2. The ordinance limits employers’ ability to gather information about applicants’ criminal history.

Employers cannot conduct any “direct or indirect” activity to gather criminal history from or about any applicant using any form of communication, including on application forms, interviews or Criminal History Reports.  This includes searching the internet for information pertaining to the applicant’s criminal history.

3. Employers must revise applications to remove any questions seeking information about criminal history.

The ordinance provides: “An Employer shall not include on any application for Employment any question that seeks the disclosure of an Applicant’s Criminal History.”

4. Employers must comply with stringent notice and written obligations if employment is not offered to applicant based on their criminal history.

Employers can require disclosure of an applicant’s criminal history only after a conditional offer of employment has been made.  The only condition on the offer of employment can be the review of the applicant’s criminal background.  There cannot be any other conditions on the offer.

If the conditional offer is made, but employment is denied, employer must perform “written assessment that effectively links the specific aspects of the Applicant’s Criminal History with risks inherent in the duties” of the job.  In conducting the assessment, employers must consider the factors set forth by the U.S. Equal Employment Opportunity Commission and other factors set out by the City.

Prior to taking any adverse employment action against the applicant, employers are required to provide a “Fair Chance Process,” which includes a written notification of the proposed adverse action, a copy of the written assessment performed by the employer, and any other information or documents supporting the employer’s action.  The employer then must wait at least 5 business days for employee to provide additional information.  If the applicant provides additional information, the employer then must perform a written reassessment of the adverse action.  If the employer continues with the adverse action, it must provide the applicant with the written reassessment.

The process has many requirements employers must be careful to follow, and it is recommended that employers relying upon an applicant’s criminal background to deny employment should seek legal counsel to ensure compliance with the ordinance.

5. Employers’ other requirements to comply with the law

Some other obligations the ordinance creates for employers:

  • Employers “[s]hall state in all solicitations or advertisements… that the Employer will consider for employment qualified Applicants with Criminal Histories in a manner consistent with the requirements of this article.”
  • Post a notice informing applicants of the law at each workplace, job site or other location in the City of Los Angeles under the employer’s control and visited by the applicants.
  • Employers must retain applications and related information for three years.

Happy Friday!

Who was the first person to recognize Steve Jobs’ potential and offer him a job? It was Nolan Bushnell. By the way, Bushnell is also the founder of Atari, co-inventor of the video game Pong, founder of Chuck E. Cheese, and is a serial entrepreneur. Given Bushnell’s track record in business, and having the badge of honor of the first person to hire Steve Jobs is more than enough evidence that managers, CEO’s, and human resources personnel should listen to his thoughts on hiring.

Bushnell’s recently published book, Finding the Next Steve Jobs, sets forth what he refers to as “pongs”, or general flexible rules managers should abide by in order to find, hire, and retain the best and most creative employees. I starting reading the book after I was fortunate enough to meet Nolan at Paul Allen’s Living Computer Museum opening in April [see picture – from left to right: Chris Espinosa (Apple’s 8th employee), Nolan Bushnell, Bob Frankston (co-creator of VisiCalc), Robert Zaller (co-founder of MITS and co-inventor of the Altair), me, and Eric Zaller]. Bushnell makes some excellent points in regards to finding and hiring the best and most creative employees and provides some examples on how to interview applicants to see their true personalities. The following are a few points Bushnell discusses in the book, and a very good reminder to anyone involved in the hiring process.

Creative employees are arrogant.
Only the arrogant have the strength to push for their ideas. They will continue to push their ideas far past the point any other individual would have relinquished to the pressure to give in or to conform to the “norm.” Arrogance does have its place, it is the vehicle creatives use when their solutions do not match anyone else’s views, which must be the case by definition of being creative. I’ve written before that arrogance can buy a company a lot of lawsuits, especially if a manager or the CEO is arrogant. An arrogant employee cannot create the same level of liability for a company, but they still must proactively be handled and discussed with other the other members of the team. On the other hand, managers and a CEO must be able to manage their arrogance in order to avoid looking like a bully, buying the company a lot of litigation.

Hire creative people and find a position for them. Don’t hire for a position.
Bushnell advocates the idea that a company can find great employees through everyday interactions with people. The truly creative and passionate people will standout, it does not matter what job they are doing, their skills will carry over to their work in any job.

Ignore the applicant’s resume during the interview.
Bushnell also provides some great examples of how to conduct an interview to determine if the applicant is a good fit for the company. He recommends asking applicants about their top ten favorite books, listening to how they describe their life (“The passionless tend to be blamers.”), and asking applicants questions that have no right answers. This allows the interviewer to see how the applicant analyses a problem.

Finding the Next Steve Jobs is a great resource for anyone in the human resources profession, and for anyone who has the responsibility of finding great employees for their company.