This document is terminology and
topics of concerns of employers. Employees would also benefit by knowing these
terms for their own protection.
Chapter 1 - Pre-Hire___________________Email me for any services needed.
¨ Pre-Hire
¨ Employment Application
¨ Equal Employment Opportunity
Data
¨ Interview Guidelines
¨ Reference Checking
Chapter 2 - Hiring
¨ Hiring
¨ Employment Letter/Hiring
Confirmation
¨ Letter to Applicants Not Hired
¨ Form W-4: Employee Withholding
Allowance Certificate
¨ Form I-9: Employment Eligibility
Verification - Immigration and Naturalization Service
¨ Workers' Compensation Information For the New Employee
¨ Workers' Compensation Personal
Physician Designation
¨ EDD: State Disability Insurance
Provisions Pamphlet
¨ Initial Notice of COBRA Rights
¨ Form DE-34: Report of New Employees
¨ Sexual Harassment Information Sheet
¨ Individual Employee Training
Documentation - Initial Safety Training
¨ Orientation Checklist and
Verification
¨ Emergency Information
¨ Employee Handbook Receipt
¨ Health Insurance and Other Optional
Benefits Information
¨ Employer Property Return Agreement
¨ Confidentiality Agreement
Chapter 3 - Employee Performance
¨ Tracking Employee Performance
¨ Attendance Records
¨ Performance Evaluation
¨ Employee Discipline - Issues to
Consider
¨ Progressive Discipline/Employee
Warnings
Chapter 4 - Termination
¨ Termination
¨ Termination - Issues to Consider
¨ Final Paycheck Documentation
¨ Notice to Employee as to Change in
Relationship and For Your Benefit Pamphlet
¨ Notice of COBRA Rights
¨ Health Insurance Premium Payment
Program (HIPP)
¨ Exit Interview
Record retention
At this point, the questions of what
to do with all of these forms, how long to keep them and who may have access to
them, naturally arise. The following information is a
brief overview of:
à what records must be kept under various state and federal
laws;
à how long each type of record must be kept;
à special rules pertaining to employee privacy which
mandate that certain records may not be kept in an employee's personnel file;
à other records which must or should be kept out of
personnel files; and
à access by an employee to his/her personnel file.
¨ How Long to Retain Records
There are at least seven laws, both
state and federal, mandating different lengths of time
various employment records must be kept. A chart showing which records are
covered by these laws and the length of time records must be kept under each
law appears in the "Records Retention Requirements Chart".
For the sake of practicality, many
employers simply keep the bulk of an ex-employee's personnel file and other
records for the duration of employment plus four years. This covers nearly
every law, with the exception of three types of records which must be removed
from a file before it is disposed of and retained for a longer duration. These
important exceptions are:
à Pension and welfare plan information (six years);
à First-aid records of job injuries causing loss of work
time (five years); and
à Safety and toxic/chemical exposure record, including
Material Safety Data Sheets (30 years).
¨ Where to Retain Records
Employment records should be kept in
individual personnel files, and access to these files should be restricted. As
personnel files may contain sensitive and private information, they should
always be kept in a locked cabinet with access controlled by a single
individual from whom authorization must be gained before others may view the
files.
While the majority of the documents
you will retain for each employee can simply be kept together in a personnel
file, there are certain types of documents which must or should be kept
separately:
à Medical Records
California law
mandates that employers establish appropriate procedures to ensure all
employee medical records and information will remain confidential and will be
protected from unauthorized use and disclosure. Failing to establish such
procedures is a misdemeanor and allows an employee to collect damages and
attorney's fees.
One appropriate procedure for
ensuring confidentiality is to establish a second file for each employee for
information protected by privacy laws. This confidential file may contain
medical records and any other sensitive information, such as private financial
records. It should be kept separate from the regular personnel files and access
should be granted only to those with a legitimate need to know the information.
For example, a supervisor who is considering a particular employee for a
promotion to a clerical position in another department probably has no need to
know information about that employee's pre-employment physical. On the other
hand, if the position to which the employee will be promoted requires heavy
lifting, records from the pre-employment physical may be necessary to assess
the individual's restrictions or necessary accommodations.
Be aware that the type of records
protected under these laws encompasses more than a physician's report or the
lab results from a drug test. Medical records may include:
¨ Family and medical leave request
forms if an employee voluntarily discloses the nature of his/her illness on
such a form;
¨ Return to work releases;
¨ Workers' compensation records;
¨ Information about disabilities
being accommodated under the Americans with Disabilities Act; and
¨ Other
records that relate in any way to an employee's medical history.
à EEO
Classification Information
An employer is required to maintain a
record of the sex, race and national origin of applicants and employees apart
from personnel files. These records must be maintained to demonstrate, if
necessary, that the employer is attempting to recruit and develop a workforce
reflective of the community's ethnic profile. Keep these EEO records in a
common file rather than in each employee's own personnel file. All employers
with 15 or more employees are required to maintain a record of the above
mentioned information.
à Employment Eligibility Verifications (I-9 Forms)
Forms and information verifying the
right of your employees to work in this country (I-9 Forms, photocopies of
verification documents) should be kept in a common file rather than in each
employee's own personnel file. This ensures that the information will be easily
accessible for an audit by immigration or labor officials.
¨ Employee's Access to His/Her
Personnel File
Employees must have access to their
own personnel records, both while employed and after termination of the
employment relationship until the applicable statute of limitations runs out on
any possible legal claims. Employees also may grant authorization in writing
for any other individual to have such access.
Inspection may be limited to once a
year unless there is reasonable cause to believe the file has been altered in a
manner that might adversely affect the interests, promotion, etc., of an
employee, or if the file contains information that may be pertinent to an
ongoing investigation that affects the employee. Notes may be taken about the
contents of the file.
Employees may view their files at a reasonable
time and place by appointment, usually during business hours in the office
where personnel files are maintained, unless another time or place is mutually
agreed upon. The employer may require the employee to view a file during the
employee's free time. Employers have a right and responsibility to monitor the
employee's inspection of a personnel file to ensure that nothing is removed,
destroyed or altered, and to return the file to the proper place when the
inspection is completed.
Employees may not inspect certain
records, such as records of criminal investigations or letters of reference
maintained by the employer. On the other hand, an employee has a right to a
copy of any document he/she has signed relating to obtaining or holding
employment subject to a reasonable fee for each copy.
The following list contains examples
of what the employee is entitled to inspect:
à Application for employment;
à Application for re-employment;
à Payroll authorization form (hiring agreement);
à Change orders in records on compensation, dates of hire,
birth and other changes of status;
à Notices of commendation, warning, discipline or
termination;
à Notices of layoff, leave of absence and similar matters;
à Wage attachment or garnishment notices;
à Notices of union requirements, membership, dues checkoff, etc.;
à Education and training notices and records;
à Medical restrictions;
à Test results;
à Performance appraisal or interview evaluation ratings;
à Attendance and absence records;
à Promotion recommendations;
à Production quality and records (individual);
à Records of grievances affecting employment status;
à Investigation of Fair Employment and Housing Commission
(FEHC) or Equal Employment Opportunity
Commission (EEOC) matters;
à Unfair labor practice matters;
à Medical records affecting employment status; and
à Records comparing employee with other employees; e.g.,
ratings, etc.
Pre hire
FINDING EMPLOYEES
Before you can begin the hiring
process, you must find quality applicants who can do the job. There is more to
finding the right employee than placing a simple "help wanted"
advertisement. For those unfamiliar with the complex and often perplexing laws
pertaining to equal employment, finding the right employee can be like walking
through a minefield of potentially explosive illegal decisions and actions.
¨ Discrimination
Whether you advertise positions
in-house or in outside publications, remember that the same guidelines apply to
both. For example, you could violate gender discrimination laws even by thumbtacking a casual notice onto your lunchroom bulletin
board to announce that you are accepting applications from current employees
for a newly created "salesman" position.
¨ Essential Functions
Under the Americans with Disabilities
Act (ADA) and related California laws, it is more important than
ever to have accurate job descriptions. Determining the "essential
functions" of a job and documenting them in job descriptions are critical.
Employers must be sure that an applicant who could perform the essential
functions of the job is not turned away based on his/her inability to perform a
non-essential function.
For example, you may think it is
essential that a file clerk be able to answer the telephone. But if the
majority of the file clerk's time is spent filing and retrieving, and telephone
calls usually are handled by others in the office, then answering the telephone
probably is not an essential function. In this situation, a hearing-impaired
individual applying for the position of file clerk may not be ruled out based
on his/her disability. On the other hand, if the file clerk is one of only
three employees in a small but busy office, answering the telephone may be an
essential function.
While it is possible to sit down with
pen and paper and describe each job in your workplace, a computer can make your
job much easier. Writing job descriptions is not as difficult as it sounds with
the help of a software package called DescriptionsWrite
Now!TM Complete information on how to write job
descriptions, as well as 1,600 sample descriptions, will help make your task
easier. DescriptionsWrite Now!TM is available from the California Chamber of Commerce by calling
1-800-331-8877.
¨ Job Match Service
You can let your tax dollars work for
you by contacting California's
Employment Development Department (EDD) to help you find employees. EDD
provides free job services to both employers and job seekers. List your job
openings in EDD's Job Match system and let the
department refer qualified applicants to you free of charge. The telephone
number for your local EDD office is located in the state government section of
your local telephone directory under "Employment Development
Department."
EMPLOYMENT ADVERTISEMENTS
When advertising a position, an
employer must consider two important aspects of any proposed advertisement:
à Does it imply a secure contract that would contradict an
at-will employment relationship?
à Does it comply with all state and federal discrimination
laws?
¨ At-Will Employment
California's Labor
Code specifies that an employment relationship with no specified duration is
presumed to be employment at-will. This means, at least in theory, that the
employer or employee may terminate the employment relationship at any time,
with or without cause.
However, a number of court decisions
have seriously eroded California's
at-will presumption. Even where no written or oral contract has been made
specifying the duration of employment, courts have construed various factors,
including employment advertisements and applications, to create an
"implied" contract.
For example, an implied contract for a certain duration might be found if an employment
advertisement describes a "secure position" or asks for candidates
willing to make a "long-term commitment to the company." Avoid
advertisements indicating your company is "like one big happy family"
or "looking for someone who can grow with the company."
¨ Discrimination Laws
Language. When
drafting a help-wanted advertisement, avoid language indicating limitations or
exclusions on the basis of race, color, national origin, religion, sex, age,
marital status, sexual orientation or disability. Words or phrases such as
"young and energetic salesman," "waitress,"
"repairman," "perfect for a single person willing to
travel" should be avoided. Replace them with "enthusiastic
salesperson," "foodserver,"
"repair person" and "travel required."
Note that you may use terms such as
"mature" or "experienced," as these do not discriminate
against those protected by age discrimination laws.
Click here for more information on
language to avoid in job advertisements:
Illustrations. If pictures
or drawings of people will be part of an advertisement, be sure to include
minorities, women and people with disabilities.
Bona Fide Occupational Qualifications. While extremely rare, no discrimination will be found if
otherwise prohibited language is used where it identifies a "bona fide
occupational qualification" (BFOQ). For example, an advertising agency may
specify a "male model" and include only photographs of men for the
purpose of finding a model for an advertisement for men's suits. Being male is
a BFOQ for this job.
Where to
Advertise. Running an advertisement solely in publications geared
toward one sex, religion or race (or any other protected class) could be
evidence of your intent to discriminate, unless you have an obligation to do so
under an affirmative action plan. Instead, place job advertisements in general
interest publications, or in a wide range of special interest publications.
Affirmative
Action. Not all California
employers are required to have affirmative action programs. With limited
exceptions, the only California
employers required to have affirmative action programs are those who enter into
contracts with the state or federal governments, or subcontractors of federal
or state contractors, and certain public sector employers. The California Chamber's 1995 California Labor Law Digest devotes an
entire chapter to the topic of affirmative action and how to set up a program
if you are required to do so.
Employment app
¨ Required
by law?
No. However, employment applications
are a simple method for evaluating a potential employee's experience, skills,
training and limitations. While resumes are helpful tools, they often do not
contain the range of information that may be revealed by completion of a
standardized employment application, such as the one contained in this Guide.
Click here to see a sample employment
application:
¨ What
questions should an application contain?
The sample employment application in
this chapter allows you to gather a great deal of pertinent information without
creating liability for discrimination. It has been reviewed thoroughly to
ensure that all questions are acceptable under the equal employment laws.
The "Guide for Pre-Employment
Inquiries" in this chapter contains 19 categories of potentially
discriminatory questions, as well as examples of what is prohibited and what is
acceptable. Note that this list applies to all pre-employment inquiries,
whether on an application, in an interview or even during an informal lunch
with an applicant.
Look carefully at any application you
currently are using and compare it with the "Guide for Pre-Employment
Inquiries" and the sample application contained in this Guide. Does your
employment application contain questions that are prohibited?
In addition, remember that California's
discrimination laws often are more stringent than those in other states. Avoid
using applications which are drafted and printed in another state (for example,
where your company is headquartered) unless they are reviewed with extra
caution for compliance with California
laws.
When reviewing your application, be
sure to consider the impact of new laws such as the Americans with Disabilities
Act. As of July 26,
1994, all employers with 15 or more employees are covered by the ADA. The ADA has very specific requirements, including
reasonable accommodations for all persons with disabilities. For example, many
"generic" applications contain inquiries now prohibited under the ADA, such as "Do you
have any health condition that may prevent you from performing the job for
which you are applying?" For more detailed information, refer to the California Chamber's ADA: 10 Steps To
Compliance available by calling 1-800-331-8877.
¨ What else
should an application contain?
In addition to its role in gathering
information, an application can be designed for damage control in anticipation
of the possibility that an applicant/employee may later sue you for such things
as wrongful termination, defamation or invasion of privacy.
The sample application in this Guide
contains several damage control provisions. For maximum legal protection,
employers should be aware that upon hiring an applicant, each of these
provisions should ideally become part of independent agreements on each subject
between the company and the new employee.
The sample application includes the
following important provisions:
à An authorization to check all references listed by the
applicant. Since you may be liable for "negligent hiring" if you fail
to check an applicant's references, this damage control provision will help
protect you from a claim that the applicant's privacy was invaded. It also will
be easier to gain information from former employers if they are aware that
their former employee has authorized disclosure to you. Be aware, however, that
this release cannot protect you against claims of intentional misconduct or
employment discrimination, such as deliberately asking a former employer for
protected information, such as medical history or marital status.
à A clause requiring arbitration in the event of a dispute
stemming from a later termination. Both California
and federal law strongly favor arbitration as a means of dispute resolution.
Therefore, even an at-will employee without a written employment contract may
be held to an arbitration clause in a signed employment application. A
termination dispute can be resolved far more quickly and economically by
arbitration than by resort to the courts.
à A statement that all answers given by the applicant are
true, and any omissions or false information are grounds for rejection of the
application or termination. Recent court decisions have allowed employers to
use an applicant's placement of false information on a job application as
evidence in their defense of wrongful termination lawsuits, even when the
employer did not discover the information was false until after the employee
was terminated!
à An initial statement that any future employment will be
on at at-will basis. This clause helps to preserve the presumption that
employment is at-will, and states that any contrary representations must be
contained in a signed writing to become binding.
Each of the above provisions should
be initialed separately by the applicant in a space provided in the margin of
the application. By drawing attention to these important provisions, you will
make it less likely that an applicant later will be able to claim successfully
that he/she was not made aware of what he/she was signing. While not foolproof,
such provisions may keep you out of court or tip the balance of evidence in
your favor.
¨ How long
should job applications be kept?
Retention requirements vary among each
of the laws pertaining to them. A chart outlining these requirements is found
at the end of the "Introduction" section of this Guide. A good rule
of thumb is simply to keep for at least two years all job applications of those
who are not hired. Keep applications from those who are hired for the duration
of employment plus two years.
Note that you are not required to
keep unsolicited resumes or applications. Some employers simply send them back
to the applicant along with a note explaining that there currently are no
openings for the position sought. On the other hand, you may decide to keep the
unsolicited applications and resumes in a separate folder as a pool of
potential employees who wanted to work for you enough to send a resume even
though they did not know of a job opening.
¨ Making
notes on an application.
If you talk to an applicant at the
time he/she gives you his/her completed application, you may be tempted to jot
down a few things in the margins. Resist that temptation unless your notes meet
the tough test of being completely legible and not open to any
misinterpretation and do not touch upon any of the discriminatory categories.
Notations in the margin of an
application may seem insignificant at first. However, consider the following
real-life scenario:
An employer made a notation on the
application of a candidate for a position at the jewelry counter of a large
department store. While he intended the notation to mean "no experience
selling jewelry," the words "no jew"
resulted in the applicant filing religious discrimination charges against the
store.
If you feel you must make some notes,
be sure they are brief, clear and legible. Do not use a coded rating system
that could be interpreted wrongly in the future.
equal opportunity
¨ Required
by law?
All employers with 15 or more
employees must keep records showing the percentages of minorities and
non-minorities and men and women in various employment classifications in their
workplace. These records may be required by the Equal Employment Opportunity
Commission (EEOC) and/or the Fair Employment and Housing Commission (FEHC) to
demonstrate that the employer is attempting to recruit and develop a workforce
reflective of the community's ethnic pr
