In Episode 151 of The Workplace podcast, CalChamber Labor and Employment Vice President Bianca Saad and CalChamber employment law expert Matthew Roberts share highlights from the CalChamber Hiring Checklist, and discuss obtaining documentation from remote workers, employee handbook best practices, and what employers should look for in a harassment training program.
The last two years of the COVID-19 pandemic have greatly threatened most small businesses, but their ability to be nimble and flexible with a smaller workforce has helped them succeed today, Roberts says in kicking off the podcast. These small businesses are now looking at growing their workforce as we start to make our way out of the pandemic.
“Of course, operating a business in California involves more than just selling goods and services,” he says. “There’s a complex set of employment laws that employers must follow.”
To help small business members navigate through these laws, the CalChamber has a created a hiring checklist to assist employers with onboarding new hires.
Many human resources professionals consider onboarding new hires as an annoying bureaucratic process that is better completed fast so that new employees can get started with their job duties right away. Roberts cautions that this attitude can sometimes cause employers to misstep.
Welcoming New Hires
Saad stresses that while it’s important to ensure that the required documentation is in place for new employees, it’s also important to make sure you’re getting the new employee off to the right footing with the basic information they need.
“It’s not just about the paperwork, and you know, cross checking off those boxes; we want our new employees to feel welcomed and excited to be joining the organization,” she says.
A common question Saad hears is if employers can send out onboarding materials to the new hire as soon as the new hire has a start date.
While this may sound efficient, she warns, having the employee complete new hire paperwork and review the handbook prior to their start date raises wage and hour issues. This is because you’re having an employee engaged in work, but they’re not being paid for that time. Additionally, Form I-9 requirements are triggered on that first day of work for pay. So if the employer is sending things out early, it’s going to start the clock for that as well.
Roberts points out that employers often want to get new hires their pamphlets, handbooks and forms right away, but when an employer does this, the new hire is now legally considered under their control for purposes of pay obligations.
When hiring remote employees and filling out the I-9 Employment Eligibility Verification form, employers are obligated to visually inspect the employee’s documents that establish identity and employment eligibility, Saad explains. Even for a remote employee, the employer will still need to physically lay eyes on the documents and it’s not something that can be done over Zoom, for example.
There was some flexibility around this during the pandemic, but it was under a very limited circumstance and it’s definitely not something that applies broadly across the board, she says.
If an employer is in a situation where they are hiring a remote worker and they don’t have the means to send someone from the organization to the remote worker to verify documentation, California allows an employer to use an outside source.
Saad explains that if an employer is going to rely on an outside source, then the employer must use a licensed immigration consultant or an attorney. This means hiring a law firm, or an individual attorney who ideally works in employment law and is familiar with the nuances of the Form I-9.
“This is because ultimately the responsibility is going to be on the employer for that form to be filled out correctly,” Saad says.
A hefty part of onboarding is ensuring that the new hire receives all the numerous pamphlets and posters that are required by state law, Roberts says. How does this work for remote employees?
Saad replies that whether an employee is working on site or remotely, the requirements around posters and pamphlets are generally the same.
In both circumstances, the employer needs to make sure that posters are up in the workplace and that the pamphlets are provided to employees. There’s no provision or exception for remote employees, or anything that explicitly allows for the electronic-only distribution of a pamphlet.
“So those pamphlets, for example, would have to be mailed or otherwise provided in hardcopy fashion to that employee. Now, the handbook — that one is a little bit easier,” she says.
There’s always a lot of confusion over whether an employee handbook is even required, Roberts says.
Saad agrees, saying that the good news is that employee handbooks are not currently required in California. This means that an employer can provide it electronically and does not need to provide a hard copy.
While a handbook is not required, it is still a best practice to have one. It’s a great tool for employers to provide their employees with information about the organization’s policies and expectations, she says.
“It’s also a great way to demonstrate compliance with the law in certain areas, because even though a handbook in and of itself isn’t a requirement, what we do have in California is the requirement for certain policies,” she says.
For example, California requires employers to have a written harassment discrimination and retaliation prevention policy; and a lactation accommodation policy (which needs to be provided at the time of hire). There also are other policies employers may include in their handbook, such as those pertaining to protected leaves of absence.
Including these policies in a handbook is a great way to demonstrate your compliance with the law, Saad points out.
Harassment Prevention Training
One of the major highlights on the Hiring Checklist is sexual harassment prevention training, Roberts says.
Employers with five or more employees are required to provide sexual harassment prevention training. Employers are required to provide one hour of training to nonsupervisory employees, and two hours of training to supervisors, Saad explains. The training also needs to happen within six months of an employee’s hire or promotion.
So, for example, if an employee is being promoted, even if they had previously taken the nonsupervisory training, the clock is going to begin ticking for their supervisory training.
The onboarding process is a great time to get harassment prevention training for new hires out of the way, especially given the six-month time period, Saad says.
When an employer is looking for a training program, they should make sure that the program is not just demonstrating obvious inappropriate conduct and is simply checking the boxes in terms of what’s illegal harassment.
The program should go over gray areas, such as unintended comments or offhand remarks that someone could innocently make, but could still unintentionally create a hostile work environment, she stresses.
“These are the types of scenarios and discussions that I think are really valuable for employees to know about and to learn about so that again, they know that they’ve got the support of their employer, they’re working for an employer who cares about these things, and that all of that goes toward morale,…productivity and retention,” she says.