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Negative vacation balance

What is California law about negative vacation balance? Are employers allowed to recoup from final check?

Under California law vacation benefits are a form of wages. Allowing employees to take their vacation time prior to actually earning it is considered an advance on wages. Thus, if an employee takes an advance on his vacation time and then separates from the employer before the time has been earned or accrued, it’s considered to be an overpayment of wages. And, under California law, an overpayment of wages cannot be recouped from an employee’s due wages. Deductions from an employee’s final paycheck for debts owed to the employer are strictly prohibited.

May 20th, 2017, 7:12 PM |  Posted in: Benefits, Compensation |
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Call In Rules

I understand that you can schedule call in shifts to employees. My question is that is there a rule on making the EMPLOYEE call in at a scheduled time for the call in shift to be told they need to come to work or be dismissed. Or does the EMPLOYER have to call in the employee at the set time to tell them to work or be dismissed? And if so, I understand that you don’t have to pay the employee unless they have to work, but if they are at a movie or something and have to call in during the movie, but not needed to come in, do they have to be compensated for the call in since they are told to call in on day off instead of being called by the employer?

There is no federal mandate that requires either the employer or the employee be the one to call for a call in shift. This is completely at the discretion of the employer and common practice varies based on the industry.

Compensation guidelines are established by the federal Fair Labor Standards Act (FLSA). Under the FLSA, non-exempt employees must be paid for any time they’re suffered or permitted to work.

An employee who is required to remain on call on the employer’s premises is clearly suffered to work and must be compensated. However, an employee who is required to remain on call while at home and has the freedom to conduct personal matters is not considered to be working and need not be compensated (in most cases).

Asking an employee to call at a specified time for the call in shift is not considered working time and compensation is not required for the time spent making the phone call. The time spent making the phone call is nominal.


Water Responsibility

On a construction site is the general contractor with only site supervision responsible for providing water for the entire project or is each sub contractor responsible for their own water source ?

The federal Occupational Safety and Health Administration (OSHA) ensures safe and healthful working conditions in the workplace through training and regulations.

OSHA requires potable water to be provided in all places of employment in amounts that are adequate to meet the health and personal needs of each employee. Potable water means water that is safe from toxins and meets the standard for drinking purposes set forth by state and/or municipality regulations.

Under OSHA’s Safety and Health Regulations for Construction, the prime contractor assumes the responsibility for complying with OSHA statutes. But, the prime contractor and any sub contractors may make arrangements to ensure OSHA obligations are met on the job site. If this occurs, ensuring compliance is a joint responsibility.

May 20th, 2017, 6:43 PM |  Posted in: Workplace Health & Safety |
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Terminating Employee on STD

We have 8 employees in the US (in CA, NC, NY) so no FMLA. One of our employees, located in NC is on STD (only for a month), paid by the insurance company according to company policy that was established a month ago for the first time. We would like to dismiss him upon his return, as his role is no longer needed and we are interested in closing the NC office. We will leave 3 employees that will be working from home and start hiring in NY instead. The termination has nothing to do with his STD. Can we terminate his employment when he is back? Thanks!!

Although the employee may have job protection under the company STD and/or personal leave policies, he is not completely exempt from being laid off. This is true even if the employee was on FMLA leave as long as the reason is not related to the leave in any way.

The decision to layoff the employee must be objective and business related. If this employee was the only one being laid off it would be best to have solid criteria validating why this specific employee was selected. But, since the entire office is being closed it’s clear the layoff reason is business related and not because he took leave or has a disability. Remember, it’s the employer’s responsibility to prove that a layoff was nondiscriminatory and that the employee would’ve been laid off whether he was on leave or not.

Some employers prefer to wait until an employee returns from leave before laying them off in an attempt to avoid a discrimination claim. However, doing show doesn’t totally protect the employer. The evidence proving the reason to lay off the employee was truly business related is the best way to avoid and defend against a discrimination claim.

Thus, it’s best to separate the employee once the decision to lay him off has been made. The more time between the two the more likely the validity of the layoff will be questioned.

May 20th, 2017, 6:22 PM |  Posted in: Termination |
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Small Business Vacation Plan

We’re a small business and we’re starting to consider what type of vacation plan to offer. We’re having difficulty deciding whether or not to allow unused vacation time to carryover in to the new plan year.

Vacation benefits are very important to just about all employees regardless of company size. However, the operational needs of a small business differ from those of a large corporation.

When determining the specifics of the vacation plan consider what issues may arise when employees use their vacation time and then determine which method will best prevent those issues.

The most common issue is that small businesses tend to have more difficulty in covering shifts especially when employees tend to request the same time periods off. So, a use-it-or-lose-it plan may not be the best option since employees will often rush to use all of their remaining days off before the plan year ends. Being able to accommodate all the time off requests may prove difficult. And, not being able to do so will lead to unhappy employees.

There are still plenty of benefits to a use-it-or-lose-it plan for a small business.

This type of plan encourages employees to actually use their vacation time. Employees who take time away from work usually have more satisfaction and engagement with their job ultimately resulting in increased productivity and retention. Also, a use-it-or-lose-it plan prohibits employees from accumulating a lot of vacation time and reduces the likelihood of the employer needing to payout unused accrued vacation time when an employee separates from the company.

Allowing employees to carryover their unused vacation time may result in employees banking their time and taking one large chunk of time off which can be even more troublesome for a small business that relies on a few employees. (Of course, this could be resolved with simply adopting a maximum amount of time that can be accrued, carried over, or taken all at once.)

If staffing is a significant issue, then you may consider closing your business for one or two weeks (maybe one week in the summer and one week during the holidays). This has become a fairly common practice amongst small businesses that struggle with adequate staffing during common vacation request times. This practice allows employees to take the time off they need without significantly impacting business operations. Employees can be mandated to use their vacation time during these closures. Just keep in mind that there are compensation requirements for exempt employees who have exhausted their vacation time. Of course, the feasibility of this method completely depends on the type of business.

Though there is no federal law that regulations vacation time, some states have adopted such laws. Many of these states simply require employers to abide by the terms of their own established practices and policies. However, some consider vacation time to be earned wages and prohibit use-it-or-lose-it policies. Thus, it’s important to be aware of any applicable state or municipality law on the matter.


May 16th, 2017, 2:38 PM |  Posted in: Benefits |
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