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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.

Terminating an Employee

Question: If an employee puts in their notice, can we let them go that day instead of keeping them for the full notice period?

Unless there is a contract or agreement to the contrary, employers are under no obligation to keep an employee on during their resignation notice period or to provide them with compensation for the duration of that period. However, there are a couple of issues to consider before accepting an employee’s resignation early.

First, if you ask the employee not to work the remainder of the notice period and do not pay them for that time, the resignation may become an involuntary termination in the eyes of the state’s unemployment insurance department. Note that the effect of a single claim on your UI tax rate is likely to be small to non-existent. However, if you’re concerned about that, you can pay the employee for the full notice period, but ask them not to come into work.

Second, terminating the employee before their resignation period comes to an end could motivate other employees to forego giving adequate notice in the event they resign. By terminating an employee immediately, rather than letting them earn two more weeks of pay, you’re effectively telling other employees that you don’t honor notice periods. As a result, they may not see the point in giving you that courtesy.

Ultimately, the choice to terminate early – with or without pay – is up to your discretion. There are certainly good reasons to ask an employee not to return to the office once they have offered you notice. Just keep in mind that there may be other reasons to go ahead and pay them for their notice period, even if you don’t want them to continue to work.

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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.

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Employee Management and Investigation

Question: I’ve heard about the DACA program ending. What does this mean and what do I need to do?

The Department of Homeland Security (DHS) announced on September 5th that they have initiated the “orderly phase out” of the program known as Deferred Action for Childhood Arrivals (DACA). The DACA program allowed certain people (sometimes called “Dreamers”) who came to the United States as children – and who met several key requirements – to request deferred action from deportation for a period of two years. That deferred action could then be renewed, subject to approval. DACA also provides eligibility for temporary work authorization.

At this time, we don’t recommend that employers take any immediate action related to the DHS announcement. It’s important not to attempt to identify DACA recipients based on I-9s, ask employees whether they are DACA participants, or make staffing decisions based on a potential loss of work authorization. These actions could increase the risk of a charge of employment discrimination.

Please keep in mind that work authorization from the DACA program will not immediately expire due to the program phase out. According to information released by DHS, current DACA recipients will be permitted to retain both the period of deferred action and their employment authorization documents (EADs) until they expire, unless terminated or revoked by DHS. DACA benefits are generally valid for two years from the date of issuance. DHS will process new applications for DACA that were received prior to September 5th. Current DACA recipients with work authorization that will expire any time before March 5, 2018, will also be able to file applications for renewal up until October 5, 2017.

We recommend you complete I-9 re-verification as you normally would when an employee’s temporary documents expire. At the time of expiration, if the employee can’t provide updated work authorization, they would no longer be eligible to work for you.

There are various pieces of legislation that have been introduced that would grant legal status or create a pathway to citizenship for those who were eligible for DACA. At this point we do not know what will come of them, and it’s uncertain what will happen after the phase out of DACA.

You can read more information in this DHS FAQ.

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Question: We have good reason to suspect an employee has been stealing from the register. How should we respond?

I would recommend suspending this employee and conducting an internal investigation. You may also want to report the theft to law enforcement depending on the circumstances.

An internal investigation generally includes interviewing any employee who may be involved and any potential witnesses about what they saw . You’re looking for firsthand knowledge, not rumors or speculation. If you have video surveillance, it should be included in your investigation file. Even if the accused employee fails to cooperate, you should still investigate as best you can and document your good faith efforts.

During the interviews, ask the employees for general information about what they know or what they saw. Formulating questions in advance helps ensure that your investigation remains unbiased and open-ended. When interviewing co-workers, be sure not to disclose which employee you suspect of stealing.

These interviews should be confidential to the extent reasonable and conducted in a discreet manner. It’s also good to have a manager or HR Representative in the interviews to serve as a third-party witness and take detailed notes. This documentation may prove helpful if the company is ever challenged regarding this situation and its outcome.

If the results of the investigation reveal that an employee did in fact engage in theft, you may opt to terminate the employee.

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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 investigation of this type, You may want to consider joining our HR Support Center Program.

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FMLA

Question: How do we calculate whether we’re covered under FMLA?

To be covered under FMLA, private sector employers need to employ 50 or more employees for at least 20 calendar workweeks in the current or preceding calendar year. The 20 calendar workweeks do not need to be consecutive.

When counting your employees, you would include any employee whose name appears on your payroll any working day of calendar week, regardless of whether they received compensation for the week.

Once your organization meets the 50 employees-for-20 workweeks threshold, it remains covered until it reaches a point at which it no longer employed 50 employees for 20 (non-consecutive) workweeks in the current and preceding calendar year.

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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.

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Work Space Environment

Question: We’re approaching my department’s busy season. Is there anything we can do during this time to help our employees and reduce their stress?

Yes! Here are a few things you can do to make the busy season run as smoothly and stress-free as possible:

Remove or reassign non-essential work duties: Before the busy season begins, ask employees in your department to make a list of tasks that other departments could feasibly handle for them. Then work on transitioning those tasks or simply hold off on non-essential tasks until things slow down.

Allow for flexible scheduling: If employees need to work longer hours on particular days, consider, if possible, allowing them to work fewer hours other days of the week. But be aware that some states, like California, have daily overtime laws.

Budget for overtime: Employees may need to work extra hours to get their job done, so allow them to work overtime if you (and they) can swing it. And if you’re pretty sure overtime will be necessary, try to make sure employees know that ahead of time, so they can plan accordingly.

Ensure all equipment is fast and reliable: Before an employee will be putting in a lot of work, have the IT team do a little maintenance on their computers and other commonly used devices. It’s important to identify, troubleshoot, and correct any slow or non-working issues before the employee gets slammed with work. It’s also important to make sure IT knows that if an extra busy employee begins experiencing technical issues during the busy season, their issues should be expedited.

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Question: Are we allowed to look through an employee’s email while they are still employed?

The short answer is yes, you can monitor employee email. As a general rule, employees should not have an expectation of privacy when using company computers or email accounts. That said, the law is not perfectly cut and dry, so you should have both a legitimate business reason for doing so and a policy that puts employees on notice that you do – or could – review their email.

If you decide to monitor employee email, I recommend that you review your handbook policies, especially any that address company equipment or email usage. You should include a policy that says something along the lines of, “All Company-supplied technology, including computer systems and Company-related work records, belong to the Company and not the employee. The Company routinely monitors usage patterns for its email and internet communications. Although encouraged to explore the resources available on the Internet, employees should use discretion in the sites that are accessed.”

If you monitor company email, you should also be consistent in how you do so. For example, if you’re routinely reviewing emails to ensure that employees aren’t conducting personal business on company time, I would recommend that you do so for all employees or everyone in a specific department.

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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.

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Hiring an Employee

Question: Can the same person be both an employee and an independent contractor?

According to IRS guidelines, it is possible to have a W-2 employee who also performs work as a 1099 independent contractor so long as the individual is performing completely different duties that would qualify them as an independent contractor.

Some legitimate examples that we have seen of this circumstance are:
• A Receptionist also owns a cleaning service business with their spouse. The company contracts with the team to perform janitorial services after hours for the office.
• A Sales Manager also performs graphic design work for several local businesses after hours. The company contracts with the individual to create a new logo for the company.
• A Maintenance Technician also owns a fabricating business of their own. The company contracts with the individual to fabricate equipment for the company.
An employee owning their own business is not a requirement, but rather one of the factors to consider when determining if someone may be properly classified as an independent contractor. If you feel confident in the IRS criteria on the whole, you may classify their separate work as independent contractor work. But, be sure! It is widely believed among tax professionals that having a worker receive both a W-2 and 1099 increases the likelihood of an IRS audit.

If you’d like to learn more about the IRS test for independent contractor classification, you sign up and check out our 2-Minute HR Training on the topic or check out the Independent Contractor Classification Guide on the HR Support Center.

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Question: Are job descriptions required by law?

Job descriptions are not required by law, but they’re certainly great to have and serve several purposes.

First, a job description, when accurately written, should reflect the actual work done. The applicant or employee can see what will be expected of them and to what they’ll be held accountable. The job description helps eliminate any confusion about what job duties are assigned to the employee. It will also prove useful when conducting performance evaluations and goal setting, as you will have a clear description of what the employee is expected to accomplish in their position.

Second, a well-written job description will list the essential functions of the job and the knowledge, skills, and abilities required to do it. This information will be useful as documentation in the event an employee misrepresented their qualifications for the position or is simply not performing to the expected standard. With a clear job description, you’d be able to terminate the employee with less risk of an unlawful termination claim.

Finally, a job description should indicate the basic expectations for the person in the position, including how many hours per week you expect from an employee, whom they report to, and whether the position is non-exempt or exempt. This allows an employee to be aware of the time commitment, whether to expect overtime pay, and whom they should go to with questions.

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Question: One of our employees interviewed a candidate today and emailed me afterwards. He was impressed by the candidate, but grew concerned after the candidate mentioned having social anxiety.

He wondered whether the anxiety could affect the candidate’s ability to do the job. I reminded the employee that we’re an Equal Opportunity Employer and we don’t discriminate on any basis prohibited by law, including disability. Instead, we select candidates based on skill and qualification. Is there anything else that I should have done?

You are correct to focus on skills and qualifications during the interview process. As you noted, employees are protected from discrimination based on having a disability. This also includes having a record of a disability or simply being perceived as disabled.

It’s important not to make assumptions about a candidate’s ability to perform their job based on their having disclosed that they have a disability or other health condition. An employer can ask all candidates if they are able to perform the job either with or without accommodation; as a best practice, however, we recommend asking this on the written application rather than during the interview. If a candidate at the post-offer stage requests an accommodation to perform the essential functions of their job, then you would engage them in the interactive process to determine whether you could provide an accommodation.

In the future, you should counsel employees who conduct interviews not to solicit or document information that a candidate discloses regarding their inclusions in any protected class (e.g. disability, sexual orientation, national origin). This will help you avoid the appearance that such information was a factor in the employment decision.

For the current situation, I would recommend just continuing to focus on the skills and qualifications of the candidates that you have. If you do choose another candidate, you should able to justify the decision based on those comparative skills and qualifications and be able to show that the chosen candidate was truly a better fit.

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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.

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