Questions asked by employers who rarely like the answer.

By Kim Silvers, SPHR-CA

As HR consultants, we work with hundreds of California employers. They call us to think out loud about employee performance issues, leave of absence dilemmas, compensation challenges, bad behavior, and how to keep the superstars. Here are a few of the more standard questions we receive that almost invariably have the same answer – “Don’t even think about it.” 

  •  I have this new employee who has missed a lot of work and now tells me she’s pregnant. Can I fire her before her introductory period is up?

The California Pregnancy Disability Leave law, along with myriad other protected disability leaves, protects pregnant employees through the ups and downs, absences and illnesses related to pregnancy. Don’t even think about taking adverse action if any possible link between performance or attendance may be related to pregnancy. This is a high risk termination.

  • My best performer wants me to reclassify him as an independent contractor. Can I save us both some money and do this?

I bet he wants to be converted! The absence of weekly payroll or FICA taxes deducted from his check makes being an independent contractor an enviable position. However, the IRS and EDD are hot on the trail of employers who issue 1099’s each year. They have teamed up to audit many employers that may possibly be misclassifying individuals. The feds and state are looking for missed tax revenue (unemployment tax, delayed FICA match, state and federal payroll tax) and to “protect” the individual who may be missing legislated employment protection.   There are significant penalties for misclassifying someone as an independent contractor. Call an attorney if you want to take this risk.

  • One of our sales employees wants 6 weeks off to “bond” with his newly adopted child. Do I have to allow this at our busy time?

 Yes, you do. This time off may be inconvenient and sometimes downright aggravating to some employers. However, the state of California allows protected baby bonding time off under the CA Family Rights Act (CFRA) for up to 12 weeks, as well as a partial wage replacement known as Paid Family Leave Insurance for up to 6 weeks. And the federal Family Medical Leave Act ( FMLA) allows up to 12 weeks off as well. (CFRA and FMLA time off usually run concurrently.) CFRA and FMLA time off is not only protected leave (for employers who have 50 or more employees) but also require reinstatement to the employee’s same/similar position and the employer’s continued payment of the employee’s health insurance premium for up to 12 weeks.

  • An employee wants me to lay him off so he can collect unemployment. I’m ready to get rid of his sorry tail anyway.

 Think twice about this one. Keep in mind that if an employee is “laid off” for reasons other than misconduct, then the employee will likely receive unemployment insurance and the employer’s unemployment insurance account will be charged. This is a financial hit the employer will take for a long time and it will affect the employer’s experience rate for future UI premiums. Best to let the employee resign – and get it in writing.

  •  My receptionist wants a straight salary rather than hourly pay. Can I pay her like this?

 Don’t go there. It would be very unlikely that a receptionist would meet the criteria for an exempt (some employers call this “salaried”) position, thus allowing the employer to pay her a salary rather than per hour. The wage and hour laws are deep and wide in CA. And how the employee is paid is not a negotiable matter beyond the legal requirements.

  • Two staff employees told me they think a co-worker is high on something. Can I send him for a “random” drug test?

Random drug testing is not allowed in CA unless the employee’s position is one that may have an impact on public safety, such as a DOT-covered truck driver or bridge tender. Moreover, a trained manager and witness should have observed specific performance related behavior that may indicate the employee is not fit for duty. Don’t try to diagnose the cause of the employee’s behavior; address the specific performance.

  • I want to withhold the balance of a company loan due from a terminating employee on his final paycheck. Can I do this?

The final paycheck for a CA employee is somewhat sacrosanct. Don’t even think about taking deductions unless the employee has designated, in writing, a specific dollar amount to be deducted from the final check. The employee may sign a promissory note with a specific amount to be deducted from the final check, but any generic statement like “any balance due up to $200” will not fly. Actually, we do not recommend any additional final paycheck deductions beyond the normal deductions the employee authorized, such as 401k contribution and insurance premiums.

  • We hired a temporary employee while my Office Manager was out on disability leave. I like the temporary employee’s work a lot better than the incumbent. Can I keep the temp in that job and terminate the Office Manager?

Not so fast! If the incumbent employee is on any kind of protected leave (e.g., pregnancy disability leave, family medical leave, CA family rights leave, organ or bone marrow leave) you take great risk in removing him/her from the job during the approved leave period. Sorry, you have to “dance with the one who brought you.”

  • Our office staff just hates keeping time records. They find it insulting. Can I just create a standard time sheet with in and out times preprinted for them to sign every week?

 Don’t even think about it! Non-exempt (hourly) employees must complete daily time records that reflect actual time in, out and meal periods. Auto-fill time sheets will not be acceptable when you arrive at the Labor Commissioner’s office to fight the wage and hour claim for unpaid wages.