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Human Resources FAQ

Listed below are Human Resources frequently asked questions. Feel free to browse our website for more information, or if you have a question we have not addressed, feel free to post it on our Facebook page.

HOW IS VACATION TIME ACCUMULATED?

How is vacation time accumulated?
A vacation policy is a contract between employer and employee. The employer has a right to set the amount of vacation accrued per year and the right to determine when employees may take vacations. Employers also have the right to create a policy under which employees do not begin earning vacation immediately upon hire.
Since vacation rights are considered a form of wages, vacation vests as the employee renders services, so an employee earns a portion of the annual vacation each day. The employer has a right to accumulate vacation on an hourly basis or a per pay period basis (flat amount). If employees accrue on a per pay period basis than they would accrue a flat amount (i.e. 5 hours per pay period) for any work performed in a given pay period. Companies with an hourly accrual basis would allow employees to earn vacation based on regular hours worked in a pay period.

WHAT ARE RULES ABOUT OVERTIME?

Employers in California must pay their employees time-and-one-half the employee’s regular rate of pay for all hours worked beyond 8 in a single workday and the first eight hours worked on the seventh consecutive day worked in a single workweek. Employer’s must pay double the employee’s regular rate of pay for all hours worked beyond 12 in a single day and all hours worked beyond 8 on the seventh consecutive day worked in a single workweek.

WHAT ARE THE RULES FOR MEAL AND REST PERIODS?

Employers must provide breaks at the rate of not less than 10 consecutive minutes for each four hours (or major portion thereof) worked, occurring as near as possible to the middle of the work period. The industrial wage orders require duration of “net” 10 minutes, which the Division of Labor Standards and Enforcement interprets as requiring not less than 10 minutes in a rest area away from the workstation if the employee so desires. Thus if the rest are is at a distance from the workplace, the time required for the rest break may be more than 10 minutes. Employers may not combine rest breaks or add them to meal breaks, even at the employee’s request. Nor may they be used to allow an employee to come in 10 minutes late or leave 10 minutes early. Employers control rest breaks, thus, employees must pay break time as time worked. Employees may be required to remain on the premises during rest breaks.

WHAT IS THE DIFFERENCE BETWEEN EXEMPT AND NON-EXEMPT EMPLOYEE?

Exempt Employee: Exempt from the protections of Federal wage and hour laws under the Fair Labor Standards Act (FLSA) and/or the wage and hour regulations of their state of employment. Examples of exempt employees under Federal law are “executives,” “professionals” and outside sales persons as defined by the FLSA. Exempt employees must always be paid on a salary basis, not subject to reduction based on the quality or quantity of work performed. The rules regarding deductions from an exempt employees salary are very strict.
Non-Exempt Employee: Generally protected by the FLSA (Federal) and/or State wage and hour laws in the state of employment. Typically, employers are required to pay at least a certain minimum hourly rate and a premium rate for overtime work. They are also a guide for determining which on-the-job hours constitute work, and thus must be compensated.Non-Exempt Employee: Generally protected by the FLSA (Federal) and/or State wage and hour laws in the state of employment. Typically, employers are required to pay at least a certain minimum hourly rate and a premium rate for overtime work. They are also a guide for determining which on-the-job hours constitute work, and thus must be compensated.

WHAT DOES ‘AT-WILL’ EMPLOYMENT MEAN?

California is an at-will state, meaning that the Company or the employee can terminate the employment relationship at any time. California Labor Code Section 2922 contains the following provision on at-will employment: An employment, having no specified term, may be terminated at the will of either party on notice to the other. Employment for a specified term means an employment for a period greater than one month.

IS SEXUAL HARASSMENT TRAINING FEDERALLY MANDATED?

Federally, no, however the EEOC oversees this area, and employers always have to prove that they took reasonable steps to prevent harassment. California does require some sexual harassment training known as AB1825. Below is a quick description:
Training of all individuals in the workplace

All employees must receive from their employers a copy of the DFEH pamphlet “Sexual Harassment is Forbidden by Law” (DFEH-185) or an equivalent document.
All employees should be made aware of the seriousness of violations of the sexual harassment policy. Supervisory personnel should be educated about their specific responsibilities. Rank and file employees should be cautioned against using peer pressure to discourage harassment victims from using the internal grievance procedure.

Employers with 50 or more employees must provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees who are employed as of July 1, 2005, and to all new supervisory employees within six months of assuming a supervisory position. There after, covered employers must provide sexual harassment training and education to each supervisory employee once every two years.

WHAT IS WRONGFUL TERMINATION?

If discrimination is involved in the termination, if public policy is violated, or if company policy states guidelines for termination.

WHAT IS THE DIFFERENCE BETWEEN AN INDEPENDENT CONTRACTOR (1099) AND A REGULAR EMPLOYEE?

The dictionary defines an Independent Contractor as “a person who contracts to do work for another person according to his or her own processes and methods; the contractor is not subject to another’s control except for what is specified in a mutually binding agreement for a specific job.” Misclassifying a worker as an Independent Contractor can have far reaching implications including high dollar liabilities.
The IRS has a 20 Factor Test that should be reviewed.

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