Break the 5 Habits of Frequently Sued Managers

07.20.17Baylee Olsen

We admit, when it comes to employment laws, the number of issues we need to concern ourselves with can be quite overwhelming.

How is a manager, business owner or executive to stay on top of all the laws and potential risks while also staying on top of everything else?

Though overwhelming, it’s important to at least know some of the basics. In an attempt to make this a bit easier, we came up with a quick list of what we feel are the top 5 most important, yet not always obvious, risk categories to be familiar with so you and your managers stay out of trouble:

1. Be familiar with the list of California’s list of protected categories: Ensure that you are not firing, disciplining, choosing not to hire, or otherwise neglecting an employee who could claim your actions were due to discriminatory reasons such as: race, color, ancestry, national origin, religion, sex (including pregnancy, childbirth, and related medical conditions), disability (physical or mental), age (40 and older), genetic information, marital status, sexual orientation, gender identity and gender expression, AIDS/HIV, medical condition, political activities or affiliations, military or veteran status, or status as a victim of domestic violence, assault, or stalking.

2. Know the Difference Between Exempt vs. Non-Exempt: Employers must recognize that meeting the minimum salary threshold does not automatically make an employee exempt from overtime. Exempt employees must first pass the executive, administrative or professional duties test as defined by federal regulations. If an employee does not pass one of these duties tests, they need to be classified as non-exempt and therefore are entitled to overtime pay. It is also important to note that although the federal minimum salary threshold is $23,660, the minimum salary threshold for California is $43,680.

3. Ask Appropriate Interview Questions: Asking a candidate the wrong interview questions can be dangerous and can quickly be perceived as discriminatory. You will want to avoid questions (including questions on your application) that relate to any of the potentially discriminatory categories mentioned in #1 above. Here are some examples of questions to avoid: “What country are you from?” (national origin), “Which religious holidays do you observe?” (religion), “What year did you graduate?” (age), or “Is this your maiden name?” (marital status).

4. Know When to Grant a Leave of Absence: There are numerous types of leave employers are required to grant employees. Some of the most common types of leaves applying to most CA employers include:

  • Pregnancy Disability Leave (required in CA if you have 5+ employees)
  • Military Leave (required of all employers)
  • Paid Sick Leave (required of all CA employers and includes different mandatory accrual rates in different cities)
  • Worker’s Compensation Leave (required of all employers)
  • ADA & FEHA Leave/Accommodation (required in CA if you have 5+ employees)

Other important leaves that may also apply include FMLA/CFRA, Jury Duty, Witness Duty, Crime Victim, Domestic Violence/Sexual Assault/Stalking Victim, Military Spouse, School Activity, Voting, Volunteer Emergency Personnel, Alcohol/Rehab, and Organ Donor Leave. If you are faced with a request for any of these types of leaves and are unsure of the requirements or of how to accommodate them, we strongly suggest you seek professional help from a company such as SDHRC before administering.

5. Make Sound Terminations: some of the most important things to remember when separating someone:

  • If you are performing an involuntary termination, you will want to first assess your risks. Check to see if any of the discrimination categories listed in #1 above apply. Also, if the employee has recently voiced a major complaint or concern, you will want to assess whether or not they could claim that the termination is a form of retaliation.
  • Provide employees with all required forms, including the DE2320, DHCS 9061, Notice to Employee and COBRA information.
  • Pay out any accrued vacation or PTO days on the final check.
  • If the employee gives at least 72 hours notice or if you are terminating them, you must provide them with their final check on their last day of work. If the employee quits on the spot, you have 72 hours to provide them with their final paycheck. An employee is entitled to an additional day of pay for each day their check is late.

Still overwhelmed or confused? That’s why we are here! Always feel free to reach out to us for more help. Call us 888-220-9286 or at 760-438-8046 or email us at info@sdhrconsulting.com.