Episode 151: CalChamber Hiring Checklist Makes Onboarding Easy

Welcome to the Workplace, a podcast by KAL Chamber I'm Matthew Roberts, the Labor Law helpline manager and Employment Law Council with the California Chamber of Commerce. Welcome to May. I can't believe it's already May. Next thing I know, someone will tell me it's Halloween with how fast this year is going. So May has been designated Small Business Month, and we are here today to provide some helpful content to those small and very small businesses that really make the economy run here the state. In California, very small businesses, defined as 50 or fewer employees, make up 95% of all of our employers in California, while employing at least a third of the workforce. There's no industry in California that does not see a significant small business presence, and often the small size of that business is what makes the business successful. The last two years of the pandemic greatly threatened most small businesses. But their ability to be nimble and flexible with a smaller workforce has helped many small businesses continue to see continue to succeed today. And now they're looking at growing as we start to make our way outside the pandemic. Of course, operating a business in California involves more than just selling goods and services. There's a complex set of employment laws that employers must follow, and they start right when we hire employees. So to assist our small business members in California, the Chamber has created a hiring checklist to help employers navigate any legal issues associated with onboarding new hires. And to discuss the highlights of this checklist, I welcome back Bianca Saad Cal Chambers, Vice President of Labor and Employment, focusing on content training and advice. Welcome back to the show, Bianca.

Thank you, Matt. Happy to be here.

Excellent. So, you know, I always find the onboarding experiences we hear about from other members fascinating. You know, many of us consider onboarding new hires as some annoying bureaucratic process we'd all really like done fast so we can have our new employees get started doing what we hired them to do, their actual jobs. But I think it's this attitude that sometimes can cause us to misstep. What do you think, Bianca?

Absolutely, Matt. So it is really tempting to want to get our employees off and running as quickly as possible, but it's important to make sure that we've got the required documents in place for our new employees. But we also want to make sure that we're getting them off to the right footing with the basic information they need. So it's not just about the paperwork and checking off those boxes. We want our new employees to feel welcomed and excited to be joining the organization. So that can look like doing Little things to help them get settled into their new environment. But getting back to the checklist, we of course, do also want to make sure that we've got all our ducks in a row from a documentation standpoint.

Okay, so let's get into this checklist first. I think it's a good idea to talk about when we should start the onboarding process, because there's certain timing and waging hour issues we have to be aware of. Right, Bianca?

Definitely. So one of the questions that we very common questions we get at our seminars and webinars is if employers can send out onboarding materials to the new hire as soon as they have that start date. The idea being that they'll have that new hire fill everything out, get everything completed, review the handbook so that they can really start that first day again doing what they were hired to do. Now, while this may sound efficient, and aside from any unintended morale consequences that it could raise, again, just starting your employee right at work with no welcoming or introduction to the organization, it raises wage and hour issues because now you're having an employee engage in work, but you're not paying for them that time. And additionally, Form I9 requirements are going to be triggered on that first day of work from pay. So if you're sending things out early, that's going to start the clock for purposes of that as well.

Right. And I know we want to get everybody to have these pamphlets and handbooks and forms, but you know, the California Supreme Court's been real clear on what we're talking about when we're talking about paying employees for work. Right. It's that anytime they're under your control as the employer, and when you send them forms to review, you send them handbooks to sign off on, they're under your control. So if that's part of your processes, of course we want to audit that and take a look at it. But you mentioned nine nines, so let's talk about that a little bit. Small businesses, many of whom pivoted to remote working environments during the pandemic, may actually look to stick with it permanently. It has this opportunity to reduce costs, but also gives flexibility in hiring now, because you no longer need to look to your own community, but you can look anywhere as long as the job allows for it. Does this create any i9 compliance issues with our remote employees?

Yes, it definitely can. So one of the most important things for employers to remember is that even when they are hiring remote employees, they still have this obligation to visually inspect the employee's documents that are establishing identity and employment eligibility, and that's so that they can complete that section 3 on the Form I9. So this is something that again, even for those remote employees, an employer is going to need to physically lay eyes on that. It's not something that they can just do over zoom, for example. Now, we did see some flexibility around this during the pandemic, but that was a very limited circumstance. Definitely not something that applies broadly across the board. So if an employer has a situation where maybe they don't have the means to send somebody from their own organization, maybe on a plane to another state, if they're hiring a remote employee, they do have some other options, but they need to be aware of what California specifically requires. So if they're going to be relying on an outside source, then that employer needs to be using somebody who's a licensed immigration consultant or an attorney. Right. So maybe a law firm or an individualized attorney who is ideally employment law and somebody who's familiar with those nuances of the form I9. And this is because ultimately the responsibility is going to be on the employer for that form to be filled out correctly.

Excellent. Speaking of remote employees, you know, we talked about this, but a hefty part of onboarding is making sure that they receive all the numerous pamphlets and posters and things that the state requires, as well as our own employee handbook. So how does that work for remote employees? Can I just send them digital copies or send it to their via email? This is something that we get asked invariably on the helpline and at webinars and seminars. And so I think it's a good opportunity to kind of continue to speak the gospel on this as we see it.

Absolutely. Definitely a frequently asked question. So, yes, whether an employee is working on site somewhere remotely at home, the requirements around posters and pamphlets are generally the same. Right. So whether that work site is, you know, headquarters or location of the business, or it's the employee's home, we need to make sure that we have those posters up in the workplace. We need to make sure that we're also providing those pamphlets. There's no provision or exception for the 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 hard copy fashion to that employee. Now the handbook, that one is a little bit easier.

Excellent. So, employee handbook. There's always a lot of confusion about whether a handbook is even required, and especially for new and small businesses. Right. I have six employees. What do I need? A big 65 page handbook for Bianca. Are they legally required to have an employee handbook?

Yes. So there is some good news around this. Employee handbooks in and of themselves are currently not a requirement in California. So what's nice about that is an employer, again can provide that electronically, they can distribute that electronically and they don't have to provide it. However, and even though not required, having a handbook is certainly a best practice. It's a great tool for employers, again, to provide their employees with information about the organization's policies and expectations. And 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.

Sure. You know, what kind of policies are we looking at here? You know, do I have to have a vacation policy? Do I have to have a leave policy? What are the kinds of things that we're required to have?

Great question. So things like, you know, leave vacation policies, those, you know, those would be up to the employer. Again, those. That's not a requirement. You know, vacation and pto, that's not a requirement for employers to provide that. So that would be certainly a great benefit to have that policy. But we do have certain policies that are required, such as a written harassment, discrimination and retaliation prevention policy. We also have the requirement in California that a lactation accommodation policy be in place. And in fact, that's one of the items on the hiring checklist, because again, that does need to be provided at the time of hire. Now, again, you can have a number of other policies, certainly around a number of the protected leaves of absence that we have in California. There are so many of them. We have trainings dedicated just to leaves because there are so many. And that's a great way also just to demonstrate your compliance with the law.

Okay, so let's talk about harassment prevention. Right. Because that takes us to the last major highlight of our hiring checklist, sexual harassment prevention training. Bianca, what are the rules here in California around who has to provide this training and the timing and who has to receive it?

All right, so in a nutshell, all of the employers who, who have five or more employees are going to need to provide this sexual harassment prevention training. So any business with five or more employees, you need to make sure you're training your employees. And so what that looks like is you're providing one hour of training to your non supervisor employees and you're providing two hours of training to your supervisors. The training also needs to happen within a certain time frame. So it needs to happen within six, six months of that employee's hire or promotion. So in an instance where somebody's being promoted, even if they had previously taken that non supervisory training, now the time clock is going to begin ticking for their supervisor training and then also for the new hires. Because we have that initial six month period. The onboarding process is a great time to just get that out of the way.

And you know, there's a lot of different kinds of trainings and things out there. But something that I like to highlight is as a former practicing attorney, is that the trainings need to go above and beyond. Right, Bianca? Because the things that employers are looking for, especially in small businesses where we're tight knit group employees, is that we want to meet the legal check boxes, but we also want to create a respectful workplace. Right. One where we have increased morale, increased productivity and the like. So can you talk a little bit about what a high quality training would look like just beyond checking the box?

Definitely. So when we're looking for a training, we want it to really demonstrate some of, not just the obvious things, like you said, checking the boxes in terms of what's illegal harassment, the very fairly obvious things that you know, we know we should stay away from in terms of inappropriate conduct in the workplace. But what are some of those gray areas? Maybe those unintended comments or offhand remarks that somebody could actually innocently make but could still unintentionally create a hostile work environment. 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 it cares about these things. And all of that goes towards morale, like you said, productivity and retention.

Yeah. And I think in the era of the great resignation, all these tiny steps that even small businesses can make towards retaining their employees are excellent steps. So Bianca, you know, this was an excellent discussion for helping small businesses hone in their new hire and onboarding practices. So I really appreciate you joining me today.

Thank you, Matt. It's always a pleasure.

And thank you listeners for joining this discussion on the workplace. Please comment, share and subscribe to Cal Chambers podcast by visiting calchamber. Com.