New Hire Documents
When employees start a new job, it is customary for employers to provide a “new hire packet” of documents. This may include an employee handbook, although it does not have to. It will also typically include a welcome letter, copies of the completed and signed job application, the job description, government and tax forms, background check consent forms, benefits information, direct deposit enrollment forms, and others.
Some documents, however, are mandatory – by federal or California law, you as the employer must provide them to your new employees upon their hire. Others are strongly suggested and are important to protect your business.
Our firm can assist you in preparing a new hire package that suits your company.
These are some of the notices and policies that California employers must provide their employees. This is not an exhaustive list, and additional requirements will vary based on your specific industry, business size, and other factors.
Notice to Employee (California Labor Code section 2810.5)
California employers are required to provide a notice to all employees that includes the following information:
- The rate(s) of pay and the basis of pay (i.e. hourly, weekly, salary, piece-rate,
- Allowances claimed as part of the minimum wage, for example for meal or lodging;
- The regular payday(s)
- The employer’s name, including any “doing business as” names used by the employer;
- The employer’s physical address of the main office or principal place of business – aP.O. Box is not sufficient – and a mailing address;
- The employer’s telephone number;
- The name, address, and telephone number of the employer’s workers’ compensation
- Employees’ rights regarding the accrual and use of sick leave, and to be free from
retaliation for taking sick leave.
Failure to provide the notice can invite wage and hour litigation, so it is important to ensure this notice is correct and compliant.
Of course, there are posters prepared by the federal and state government that include certain wage and hour information (and disclosures regarding other employee rights) and these must be posted in a location where your employees can see them.
Anti-Harassment and Discrimination Policy
All companies must have written anti-harassment and anti-discrimination policies, and California law requires certain provisions to be included. Your policy must include all the components listed within California Code of Regulations, 2 C.C.R. section 11023 and must include, per the Department of Fair Employment & Housing, “a description of legal categories, a complaint process, instructions for supervisors, and identification of the DFEH and the U.S. Equal Employment Opportunity Commission (EEOC) as additional avenues for employees to lodge complaints.”
First, the policy must list all current protected categories. California’s Fair Employment & Housing Act bars discrimination and harassment on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, and military or veteran status. This list is subject to changes and additions; gender identity and expression were the most recently-added protected categories.
Second, it must state that the law “prohibits coworkers and third parties, as well as supervisors and managers, with whom the employee comes in contact” from engaging in prohibited discrimination. 2 C.C.R. section 11023((b)(3). This means that the company prohibits not only discrimination by those directly employed by the company, but also by corporate clients, contractors, vendors, etc.
Third, the policy must provide for the resolution of complaints, guaranteeing that complaints will receive: confidentiality (where possible), “a timely response,” “impartial and timely investigations by qualified personnel,” “documentation and tracking for reasonable progress,” options to remedy and resolve, and timely closure. The policy cannot require employees to complain to their immediate supervisor(s) and must instead designate other people to receive harassment and discrimination complaints, such as an HR manager or officer, a complaint hotline, and/or an ombudsperson. As noted above, the policy should also designate the DFEH and EEOC as agencies that will receive employee complaints.
Fourth, the policy should state the responsibilities of supervisors, to report any complaints of misconduct to a designated person (such as the HR manager). Employers of more than 50 employees must also conduct sexual harassment training.
Fifth, it should state that when the employer does receive complaints, those will be investigated in a way that provides due process, “reaches reasonable conclusions based on the evidence collected,” and that if misconduct is found, “appropriate remedial measures shall be taken.” Finally, the policy should make clear that there will be no retaliation for making complaints.
Strongly Recommended Documents:
Comprehensive Timekeeping and Wage & Hour Policies:
Creating, distributing, and training employees on a comprehensive set of wage and hour policies will provide your company with critical protection in the event of a lawsuit. Among the first documents that wage and hour plaintiffs’ attorneys will seek are the employer’s written policies regarding timekeeping, meal breaks, rest breaks, overtime, and off-the-clock work. Having compliant policies will assist in demonstrating that your company complies with the Labor Code.
For example, employers in most industries are required under the California Labor Code to provide 30-minute unpaid meal breaks to hourly-paid, non-exempt employees before the end of the 5th hour of work, in all shifts of 5 hours or more. A second unpaid 30-minute meal break must be provided for shifts of 10 hours or more. First meal breaks in shifts of 5-6 hours and second meal breaks in shifts of 10-12 hours may be waived in writing by the employee. Employees are also entitled to one paid 10-minute rest break for every 4 hours worked or major fraction thereof, in all shifts of 3.5 hours or more. These cannot be waived. Overtime (1.5 times the employee’s regular rate of pay) is generally due after 8 hours worked in a day or 40 hours worked in a week. However, these rules may vary by industry.
Of course, it is important to have in writing – and in practice – the basic rule that employees are to be paid for all time worked, and that no off-the-clock work is permitted.
In California, employees are considered at-will unless there is an agreement with the employer that guarantees employment for a certain period of time. Employers may fire an employee for any reason or none, as long as they do not terminate employees as the result of discrimination based on protected categories, as discussed above. It is advisable to include a statement of at-will employment in the new-hire documents.
Arbitration Agreement and Class Action Waiver
It is recommended that employers’ new hires sign an arbitration agreement with a class action waiver. Although California courts have become more restrictive as to independent contractors, the United States Supreme Court continues to expand companies’ ability to require arbitration.
In May 2018, the Supreme Court issued a landmark decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018). That case upheld class and collective action waivers in employer-employee arbitration agreements.
Thus, including an arbitration clause with a class action waiver in your company’s new hire package will help protect your business from costly class action lawsuits. However, workers may still be able to bring a different type of collective action under the California Private Attorneys General Act (“PAGA”), because the California Supreme Court ruled in Iskanian v.CLS Transportation Los Angeles LLC, 59 Cal. 4th 348 (2014), that the right to sue in court under PAGA cannot be waived by agreement. However, it is still advisable for arbitration clauses to waive any “collective actions” in the event the Iskanian decision is ever overturned. Then, the contractor agreement should also include a severability clause so that if the “collective actions waiver” portion of the arbitration clause is found to be unenforceable, the remainder (e.g., the class action waiver portion) would still be enforceable.
What Not to Include
Before you hire new employees, you likely have them fill out a job application or questionnaire. Although you can ask who their previous employers were and their dates of employment, one question you may NOT include is how much they made at their previous job. California Labor Code section 432.3 prohibits asking job applicants about their salary history, including compensation and benefits, either “personally or through an agent.” Of course, the prospective employee has the right to tell you what they made before, but you cannot ask. Likewise, employers may not include in the job application a question asking about an applicant’s prior criminal arrest or conviction record. So, if your previous job application (which often goes into a new hire’s package) included questions about previous compensation or criminal history, those forms need to be changed going forward.
Regardless of whether you are just starting a brand new company, run a ‘mom & pop’ business, or you already have a large established corporate enterprise with hundreds of locations across California, we are able to grow with you and meet your legal needs.