Frequently Asked Questions

If you would like consultation on these or other questions,
give TPO a call at1-800-277-8448.

  1. What should I do when an employee comes to me with a complaint of alleged harassment?
  2. What should I know about sexual harassment and confidentiality?
  3. What should I know about pregnancy-related leaves of absence?
  4. What if an employee will not sign an appraisal?
  5. Is a workers’ comp. leave a family care and medical leave (FCML) too?
  6. When can COBRA be offered to an employee on workers’ comp.?
  7. How should I handle an employee with a bad attitude?
  8. Why should my company have an employee handbook?
  9. What is inappropriate attire for work?

 

1. What should I do when an employee comes to me with a complaint of alleged harassment?

Take any and all complaints seriously. Managers have a responsibility to handle the complaint in a timely manner and with the highest degree of confidentiality possible.

  • Conduct investigation interviews with all parties involved.
  • Explain that retaliation is against the law and will not be tolerated.
  • Show no favoritism and record all physical and verbal reactions of the witnesses avoid judgment statements or furthering myths or stereotypes.
  • Review complainants and alleged harassers personnel files for previous related documentation.
  • Discuss investigation results and proposed actions with an investigation team, limited to those that need to know, such as the individuals supervisor and senior management staff.
  • Consider appropriate remedial action (documentation of investigation in the personnel file, verbal warning, written warning, suspension, demotion, or termination.)
  • Implement changes to harassment policies and procedures where appropriate.
  • Bring in the resources of an outside consulting firm or legal council when appropriate.

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2. What should I know about sexual harassment and confidentiality?

It is fairly common for the employee who feels harassed to just want the conduct to stop. It is often difficult enough for a harassed employee to come forward with a complaint, let alone start a process that can lead to investigations, written reports, and numerous people learning about the complaint.

The employer in this situation is in a tough position. The employer has a responsibility to take all reasonable steps to ensure a workplace void of any unlawful harassment, but what about observing the employees wishes for confidentiality?

A recent court decided on a similar situation where an employee not only complained about what she thought was sexual harassment, but then asked the company not to take any action. The company obeyed her wishes, moved her to another work location and then was shocked when she later filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC).

Upon learning of the EEOC charge, the company undertook an investigation and terminated the alleged harasser. The court agreed with the employer and threw out the lawsuit. The US Supreme Court also declined to review the ruling.

If you are ever faced with an employee who wants to discuss what they feel may be sexual harassment but also wants the conversation to remain confidential, you can convey that:

  • You will conduct as discreet an investigation as possible;
  • All information disclosed will be kept to a need-to-know basis;
  • Files related to the complaint will be filed separate from the primary personnel file;
  • No retaliation will occur against the employee for coming forward;
  • The employee will be informed of any action taken by the company.

Additionally, you can emphasize that in order to affect change, it may be necessary to disclose where the information came from and to obtain very specific information.

The issue of Sexual Harassment is prevalent in all too many companies. Ensure that all employees know your policy on harassment. This can be accomplished through:

  • Distributing Information Regarding Sexual Harassment upon Hire of New Employees.
  • Post Information Regarding Harassment in an Area Where Employees Can Read it.
  • Including a Current Policy on Harassment in Your Employee Handbook.
  • Train Both Your Employees and Your Supervisors to Recognize Potential Harassment and How to Report it.

To receive the pamphlet Sexual Harassment is Forbidden by Law, which should be distributed to all employees, or for more information on sexual harassment, contact TPO.

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3. What should I know about pregnancy-related leaves of absence?

Laws concerning pregnancy are determined by the employee count of the company. When determining the employee count of the company, make sure to include introductory/probationary, temporary, part-time, and full time employees (also include any owners who are also employees of the company). Since we do not know the size of your company, we have outlined the three categories that are applicable to pregnancy-related absences.

4 Employees or Fewer

If you have 4 or fewer employees you are not required by law to grant a leave of absence to accommodate pregnancy or the birth of the child. You are also not required to guarantee a return to the job (whether you grant the leave or not). Please keep in mind, however, that you are not allowed to discriminate against an employee due to her sex – for example, you cannot refuse to hire an employee simply because she is female and might become pregnant.

5 Employees Through 49 Employees

If you have 5 through 49 employees you must grant an employees request for Pregnancy Disability Leave (PDL) for the time her “health care provider” verifies that she is actually disabled because of her pregnancy or a related condition. A typical disability may be 6-8 weeks, but in no event must the leave be greater than 4 months for a PDL. During this time you must guarantee reinstatement rights. If the disability is greater than 4 months you are not required to guarantee reinstatement. If an employee’s heath care provider recommends a reduced work schedule, this must be accommodated and such portion can be subtracted from the PDL requirement.

50 or More Employees

If you have more than 50 employees you must coordinate the federal Family Care & Medical Leave Act, the California Family Rights Act, and California’s Pregnancy Disability Leave – collectively referred to as a Family Care and Medical Leave (FCML). Employees who have completed 12 months of service and worked 1250 hours are eligible to take up to 12 weeks of a FCML for the birth of a child or to care for a newborn in addition to the PDL requirement listed above. During an FCML, you must guarantee reinstatement rights upon return, and pay health insurance as was done prior to the leave for the first 12 weeks of the leave. The multiple regulatory requirements can be confusing – we recommend you contact professionals for advice.

Bonding

Employees may request time off in addition to the time taken on disability. As long as you have less than 50 employees, you are not required to grant the request. Treat this request as you would any other employee’s request for a personal leave of absence, and make sure that you treat all employees the same.

Posters

Do you know that all employers must have posters displayed that explain the regulations applicable to the employer of five or more employees? If you do not have this poster, TPO will mail one to you – just give us a call.

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4. What if an employee will not sign an appraisal?

Sometimes employees are fearful of signing anything for fear that it may be held against them in the future. You can go a long was to alleviate fears by following these steps:

First, explain what a signature means.

An employee’s signature at the bottom of the performance appraisal means that the employee has reviewed the document and that they have had a chance to discuss the appraisal with their supervisor/manager further. Explain that their signature does not mean that they necessarily agree with the review. You may even want to explain that the employee is welcome to disagree with the evaluation and may write down the points that they disagree with on a separate piece of paper.

If they will not sign the appraisal . . .

Ask them if they will sign the back of the appraisal form. Signing the back of the paper may make them feel more comfortable, and it still provides the proof that they saw the document.

If they still will not sign . . .

On the back of the evaluation write, “Employee chooses not to sign this appraisal” and then ask the employee to sign his or her name. While it may be tempting to write, “employee refused to sign this appraisal,” the first quotation, however, can help to reduce some of the tension by using a less negative word.

And if they still will not sign . . .

Explain that the absence of their signature does not change the fact that the evaluation occurred, nor does it change future expectations. If after telling the employee that you will bring a witness in to document the conversation, the employee still will not sign, have another employee (of a higher position than the employee) come in to witness the meeting a sign stating that the meeting occurred.

**Note: The same steps can, and should, be used if an employee “chooses” to not sign a counseling, disciplinary action, or exit interview form.

Something to consider…

Generally, when an employee resists signing a performance review or other document, it is often an indication that clear communication has not happened. Any formal document should ideally only contain information that has already been made clear to the employee in previous discussions or counseling sessions and should never contain surprises. TPO offers training and coaching programs on providing effective feedback. Please, fill out our contact form.

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5. Is a workers’ comp. leave a family care and medical leave (FCML) too?

If your company has 50 or more employees within a 75-mile radius, it must comply with both state and federal Family Care and Medical Leave (FCML) laws. Employees who have been employed for at least one year and who have worked at least 1250 hours in the past year are eligible to take up to 12 weeks off each year (unpaid) for the following reasons:

1. To care for their own “serious health condition,”

2. To care for the “serious health condition” of his/her spouse, child or parent,

3. For the birth of a child (for the mother or father), or

4. To place or adopt a child.

During a FCML, the employee has guaranteed return rights to essentially the same job, has medical premiums paid as was done before the leave for up to 12 weeks, and becomes protected under these laws which prohibit any retaliation for requesting or taking a FCML leave.

Refusing to offer, or the denial of an employee’s request for a FCML leave is one of the few areas in employment where the individual supervisor may be personally liable for his or her actions.

It is a near 100% bet that any Workers’ Compensation (WC) leave will also qualifies as a “serious health condition” under the provisions of FCML. Therefore, when an employee goes out on WC, it is extremely important for the employer to properly designate FCML-qualified leaves as soon as possible.

One of the many key points to FCML is that a leave cannot be retroactively designated once the employer should have known that it is a “serious medical condition” (which we have already stated a WC case will likely be). Therefore, it is imperative that if you want to designate a leave as a FCML leave, that you give the employee the appropriate forms to complete: your policy, a designation form, a physician’s verification of a “serious health condition” form, and a medical practitioner’s release to return to work form.

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6. When can COBRA be offered to an employee on workers’ comp.?

Well, first of all, BRAVO on handling the leave correctly up to now! So often employers forget to designate a Workers’ Comp. (WC) leave as a Family Care and Medical Leave (FCML). Your decision to hire a temporary replacement is also commendable — too often we see employers hire a “permanent” replacement, thereby jeopardizing the original employee‘s right to return to his/her position. The issue of the continuation of health benefits, though, is a tough one and like several areas of employment, there is various information to consider.

In the past, the advice was that an employer could discontinue paying health insurance and offer COBRA to an employee on a WC, providing that:

  • There was a written policy outlining the conclusion of continued benefits after a set amount of time,
  • Employees on WC Leaves were not “kicked” to COBRA before other employees on any other type of Medical Disability Leaves,
  • All employees similarly situated were treated equally, and
  • Employers are comfortable with the risk that a WC attorney could still claim that his/her client’s “132(a)” rights were breached.

 

Making sure that HR Administrators are kept busy, it appears as though the conservative approach to this question has changed. A decision by the California Workers’ Compensation Board (WCAB) concluded that it is a violation of 132(a) for an employer to discontinue health insurance during a WC leave. The rational is that discontinuing benefits is an adverse action. Importantly, the WCAB did not specify how long the benefits need to be continued! A conservative approach would be to continue benefit coverage rather than to trigger COBRA.

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7. How should I handle an employee with a bad attitude?

A: Sometimes as managers and supervisors it seems that we have tried everything possible to teach and motivate our employees. Often we throw our hands up and exclaim, “He just has a bad attitude!” When dealing with a “poor performer” or an employee performing below standards, it can be helpful to look at the most common reasons (but often the most overlooked reasons) that employees do not meet our expectations.

1. THEY DON’T KNOW HOW TO DO THE JOB

Often the employee either does not know what to do, or how to do it. They do not have this knowledge because it was never communicated to them, or it was poorly communicated to them.

How often do you:

  • Assume your employees have been trained properly?
  • Expect employees to know what to do, instead of telling them what you would like them to do?
  • Retrain employees?

Solutions:

Have clear job descriptions that spell-out exactly what the job duties are. Develop training procedures for all employees and continually check their success. Keep communications open by asking and listening to feedback. Use performance evaluations to continually monitor how the employee is performing their job.

2. THEY CAN’T DO THE JOB

Some people can’t do certain things; not because they don’t want to, but because they do not have the physical or mental aptitude needed for success in that specific job. People will often try to cover-up areas of weakness.

Solutions:

Acknowledge we all learn differently. If different methods of teaching don’t work, transferring the employee to a different position, or ending the employment relationship might be your only alternatives. Make sure that you are realistic during the interview process – again, a well-written job description can be useful in screening applicants and ensuring a good match.

3. THEY DON’T DO THE JOB

Many times employees don’t do what is expected of them, because of barriers (either imagined or real) that they have a lack of control over.

Examples of barriers:

  • An inherent problem in the work process.
  • Poor management and/or communication skills of supervisors.
  • Resources that do not meet the individual’s needs, or that are inadequate.
  • Excessive interferences that are distracting.
  • They are rewarded for not doing well.

Solutions:

Make sure you are not part of the problem – often poor performance results from poor management. Prioritize projects and reduce outside distractions. Hold all employees accountable to set standards.

4. THEY CHOOSE NOT TO DO THE JOB

Okay, we’re to the employee that chooses to have a bad attitude. Believe it or not only about 10% of poor performers are attributed to this category. Most often a bad attitude is a result of one or more of the first three.

Solutions:

If you have looked beyond the less obvious reasons for poor performance and you still come-up with, She just has a bad attitude! – you might be right. Now it is up to you to establish goals for this employee and controls if the employee does not meet the set goals. Counseling or disciplinary actions might be required. Buckle-up and hang-on, you could be in for a wild ride!

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8. Why should my company have an employee handbook?

An Employee Handbook represents a key component of any sound employee relations program. Properly drafted and implemented, Employee Handbooks play a critical role in communicating essential information about benefits, policies and performance standards to all employees. Handbooks also help promote fairness and consistency in the manner in which employees are treated, and thereby reduce the possibility of arbitrariness and discrimination. The result is enhanced employee morale, productivity and loyalty (along with more favorable legal positioning).

It is imperative that the policies and information contained in the Handbook are not only legally compliant, but accurately reflects the personnel practices at your organization. The combination of rapidly changing employment regulations and changes in your practices require regular review and updating of your Handbook.

While written employment policies cannot completely shield an employer from legal problems, and there is no requirement for policies to be in written form, it is extremely prudent for a number of reasons. A comprehensive Employee Handbook also guides business owners and managers in making employment decisions, implementing discipline, hiring, firing and promoting. Having your policies and standards set out in writing can be a real time-saver by eliminating the need to “reinvent the wheel” as issues arise.

We strongly recommend that an Employee Handbook be drafted that applies to all employees of your organization without exception. The importance of uniform applicability of key policies such as Equal Employment Opportunity, Discrimination, Harassment, Drugs & Alcohol, and Employment at Will cannot be over emphasized. We also recommend that all employees sign an Acknowledgment of Receipt for the handbook which indicates the employee agrees to not only familiarize themselves with the contents of the Handbook, but to abide by the contents of the Handbook and ask for clarification as needed.

Policies such as Vacation Pay, Holidays, and Sick Leave should be clearly explained. Other important policies that we recommend be included in the handbook are: Computer Use (Internet, E-Mail), Customer (Client) Service Policy, Job Descriptions, Transfers & Promotions, Reductions in Force, Applications for Employment, Hiring of Relatives, Telephone Use & Personal Mail, Solicitations, Media Relations, Overtime, Time Records, Leaves of Absence, Corrective Action, Payroll Deductions, Wage Garnishments, Severance Pay, Worker’s Compensation, COBRA benefits, Voting Time Off, Administrative Pay Corrections, Employee Information Changes, State Disability Insurance, and more as appropriate!

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9. What is inappropriate attire for work?

This question is becoming more common, especially as surveys show that many employees consider it a benefit to be able to dress down at work. Does that mean that employers must allow employees to trade a tie-tack for a tongue-ring? Certainly not . . . though some employers may choose to allow it.

Most employers will set dress and appearance standards based upon customer/client contact, industry standards, the geographic location, and the general culture of the organization. While one standard may be appropriate for a surf shop, the same standard may be inappropriate for a hotel and completely unacceptable for a bank.

When faced with the above scenario, consider many issues before acting:

What is the Company Policy? While we may wish that employees would use common sense and dress appropriately, often management has not really explained what is and is not acceptable. Is there a written policy describing specific standards? Some companies go into specifics (skirt lengths, facial jewelry, etc.) others do not.

How Has Management Enforced the Policy? Is management quick to address situations, which are not in alignment with company standards, or has management allowed the behavior to continue (thereby sanctifying if not encouraging the behavior).

Are Others Affected? How important is the image of employees to the company? For those employees who have a great deal of contact with the public, their image is critical. Additionally, the general dress & appearance standards can dramatically impact the morale of the work unit.

Is it Time For a Change? Examine company standards to see if any changes are needed — such change may require increasing the level of professionalism (requiring employees to take out the facial piercings while working) or allowing a little more casualness in the workplace (allowing “casual business attire” when clients will not be seen for the day).

Bottom Line: Acceptable standards will vary depending on the situation. Employers have every right to adopt dress and appearance standards, though don’t forget to balance that right with reality.

Of course, dress & appearance standards cannot violate discrimination laws unless a specific ordinance or law is in effect (such as Santa Cruz County). Employers may not prohibit females from wearing pants. Additionally, an employer must reasonably accommodate religious beliefs that affect dress standards, physical appearance or grooming.

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For answers to these questions and more, give TPO a call at 1-800-277-8448.

  • “One of my employees is expecting a baby and just told me I have to give her 7 months off – is that true?”
  • “Will you take a look at a disciplinary notice I just wrote and give me your feedback?”
  • “We want to terminate an employee – let’s discuss the circumstances, I need your advice.”
  • “An applicant just told me about a disability they have and asked if they should still apply – how should I deal with this?”
  • “I think I have a mutiny on my hands in a key department – we need you to intervene.”
  • “Do I have to pay overtime to my secretary?”
  • “What are the regulations pertaining to paying for travel time for our sales reps?”
  • “The boyfriend of an employee is threatening her – are we supposed to take some action?”
  • “Do I have to refer to applications on file every time I have a job opening?”
  • “The references came up bad on both top candidates we’re considering – what do I say to them?”
  • “How many vacation days do other employers provide after one year of service?”
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