You are running a small business, and you have a few HR questions. Likelihoods are that another small business has, had, or will have a similar question in the future. Wouldn’t it be nice if only one person had to ask, and you could hear the answers to their questions?

Through all of our years working with small businesses, we have been asked for quite a bit of advice when it comes to HR and noticed a pattern of frequently asked questions. We have even dealt with some HR lawsuits that could have easily been avoided. On this page, we share our experiences and solutions with you, so you get a chance to review answers to similar questions you may have. The best part: these are questions we’ve received from actual clients!

Keep scrolling to see the various HR advice we’ve offered to small businesses in California.

* Please keep in mind, the advice below is for a specific scenario and specific company. As California small business attorneys, we always recommend consulting with the appropriate professional about your specific HR questions.

 

Question: What is the purpose of a performance improvement plan? Can’t we just terminate employment for poor performance?

The use of a performance improvement plan (PIP) can help reduce the risk inherent in any termination. A PIP is used to help employees whose performance has slipped, become inconsistent, or otherwise needs improvement.

It’s safest to terminate an employee when you have documentation that justifies the legitimate business reasons for the termination. If you’re terminating for poor performance, this documentation should include past warnings for poor performance, explanations of the consequences for the employee if they didn’t improve, and evidence that the employee failed to do so.

A great way to do all this is with a PIP, which specifies your expectations for employee performance, defines what success looks like going forward, sets regular meetings with the employee to discuss their progress, and explains the consequences for failing to meet and sustain improved performance within an established timeframe.

If the employee continues to underperform or fails to sustain improved performance, you may need to move on to termination. If you’ve been using a PIP, you will have the documentation to demonstrate that you gave them a chance to improve. This record will make it more difficult for the employee to challenge the reason for a termination.

+Read the answer

 

Question: Do we need to investigate rumors of harassment even if no one has made a complaint?

Yes, I recommend you investigate. A company always has some inherent liability in relation to discriminatory or harassing comments or behavior. The level of liability usually correlates to the nature, severity, and context of the comments, the position of the employee who made them, and what the employer does or does not do about it.

Since you have knowledge of a potential situation, I recommend you investigate the matter and take appropriate disciplinary action if it turns out your anti-harassment policy was violated. As you conduct the investigation, document the discussions you have as well as your findings, and reassure those you interview that their participation will not result in retaliation.

If you need additional guidance on conducting an investigations of this type, You may want to consider joining our HR Support Center Program.

+Read the answer

Question: An employee of ours has gone on FMLA leave to care for a family member, and she asked us via email to tell her co-workers the reason she’s taking time off. Is this okay?

In general, when an employee is out, I recommend informing coworkers only that the employee is on a leave of absence. The reasons for the leave are not any of the coworkers’ business, and the employee might not want the reasons known by others. Moreover, sick leave, family leave, and disability laws often specifically protect this information.

In this case, since this employee has specifically asked you to inform the other employees that she will be out on a “family care” leave, and you have this request from the employee in writing, you should be fine sharing this information. In the absence of any such written request from an employee, however, I would recommend defaulting to stating only that an employee is off work on a leave of absence, letting the employee share additional information at their discretion.

+Read the answer

Question: Can you provide guidance on what personal items are appropriate for display on employee work spaces?

We’d like workstations to look professional and organized, and we’re concerned that some currently displayed items (small toys, etc.) give the office an unprofessional and cluttered feel.

Employers typically decide what amount and type of personal items are appropriate based on the culture of the organization. In a workplace that needs to maintain a formal and professional image — perhaps because it has frequent visitors — the employer may want individual workspaces to look neat and tidy. Casual workplaces probably don’t need the same restrictions. Basically, it comes down to what you’re comfortable allowing.

Unless there is an ongoing problem with what employees are putting in their work areas, I recommend against having a specific policy on the matter. Flexibility is often best as it allows employees to be creative and make their workspaces their own. For what it’s worth, when there are things in the workplace to psychologically interact with (like plants, personal photos, and art), employees tend to be more productive and engaged.

Of course, you’d want to prohibit anything that is harassing, offensive, or causes a workplace distraction. These prohibitions, however, should already be covered in your code of conduct and harassment policies.

+Read the answer

Question: We want to hire an administrative assistant. Can we classify this person as an independent contractor during a 90-day try-out period and then, if they work out, hire them as a full-time employee at the end of the 90 days?

The short answer is no.

It’s highly unlikely that an administrative assistant would meet the criteria for classification as an independent contractor. The IRS and the U.S. Department of Labor, along with state agencies, have specific criteria for determining who is an employee and who is an independent contractor. These criteria focus on the overall relationship workers have with their employer, with particular attention to who controls when, where, and how the job gets done, as well as who has the opportunity for financial profit or loss. Administrative assistants typically do not have that level of control over their work, so they’ll almost always be classified as employees.

I understand that you’d like to hire the individual on a trial basis, with the possibility of continued employment. You can do this by offering them temporary employment. During the 90-day period, make sure that you provide the employee with clear expectations for the position and success in the role. If you elect to end their employment once the 90 days are up, you should document why they are not being considered for continued employment.

+Read the answer

More Coming Soon!