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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:

what records must be kept under various state and federal laws;

how long each type of record must be kept;

special rules pertaining to employee privacy which mandate that certain records may not be kept in an employee's personnel file;

other records which must or should be kept out of personnel files; and

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:

Pension and welfare plan information (six years);

First-aid records of job injuries causing loss of work time (five years); and

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:

 

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.

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.

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:

Application for employment;

Application for re-employment;

Payroll authorization form (hiring agreement);

Change orders in records on compensation, dates of hire, birth and other changes of status;

Notices of commendation, warning, discipline or termination;

Notices of layoff, leave of absence and similar matters;

Wage attachment or garnishment notices;

Notices of union requirements, membership, dues checkoff, etc.;

Education and training notices and records;

Medical restrictions;

Test results;

Performance appraisal or interview evaluation ratings;

Attendance and absence records;

Promotion recommendations;

Production quality and records (individual);

Records of grievances affecting employment status;

Investigation of Fair Employment and Housing Commission (FEHC) or Equal Employment Opportunity Commission (EEOC) matters;

Unfair labor practice matters;

Medical records affecting employment status; and

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:

Does it imply a secure contract that would contradict an at-will employment relationship?

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:

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.

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.

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!

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

 

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