California-Specific Webinar Highlights Pressing Handbook Issues

California employers face a host of unique employment law issues at both the state and local levels that must be taken into account when developing, implementing and enforcing employee handbooks. Littler Mendelson employment attorneys Chris Cobey and Ben Emmert, of the firm’s San Jose office, explored those challenges during a recent XpertHR webinar. After the webinar, Emmert provided answers to some key California-specific questions.

1. Under medical marijuana law, can employers have a policy prohibiting marijuana possession on company premises?

Yes. The only thing the law in California permitting the use of medical marijuana does is provide an individual with a defense in a criminal proceeding. It does not affect the way an employer runs its business. An employer is permitted to prohibit marijuana possession and use on its premises just as it may prohibit alcohol possession and use.

2. Do you follow the law or ordinance of where the employee lives if you do not have a physical office in California? And if you have a physical office, do you follow the ordinance there or where the employee lives?

Follow the law where the employee works (or peforms their work), not where the employee resides. It is possible to have an out-of-state employer with no physical presence in California, but that California law will apply to individuals working in California. This extends to state laws as well as local ordinances. While it may cause a big headache for larger employers who have employees working in multiple states, this is a reality employers cannot ignore.

3. Does a “paid sick leave policy” need to be included with a company PTO policy based on the new law effective July 1, 2015? Is an employer required to provide additional paid sick leave if it already has a PTO policy?

No. Assuming an employer’s existing PTO policy provides coverage that equals or exceeds that provided by the new sick leave law, an employer does not need to include a separate paid sick leave policy.

As for whether an employer must add the three days sick leave if it already has a PTO policy, an employer need not provide additional paid sick leave if the employer already has a sick leave or PTO policy providing an amount of leave that may be used for the same purposes and under the same conditions of the new law, and that does either of the following:

  • Satisfies the accrual, carry over and use requirements of the new law, or
  • Provides no less than 24 hours or three days of paid sick leave (or equivalent time off) for employee use for each year of employment, or calendar year or 12-month basis.

Emmert also has answers to some general employee handbook questions:

What is the best practice for notifying employees of changes to the handbook mid-year?

How employers choose to notify employees of a change in their employee handbook depends on the size of the employer. Smaller employers can just make an announcement while larger employers should rely on their individual managers to send out the change.

The most important thing is to provide employees with access to the handbook and make sure employees acknowledge that they have received, reviewed and will follow any policy changes. Employers should obtain an acknowledgement from new hires as well as from employees each time there is a change to the employee handbook. It puts an employer in a much better position in litigation if it can show that an employee received the policy, acknowledged it and was given the opportunity to review it.

Do exempt employees need to record their time?

Exempt employees do not need to record their time because they are not paid hourly. However, if the employer has a hybrid system where bonuses are based on hours worked, the employer may want to track the employee’s time. In such a situation, an employer should proceed cautiously because an employee may use the fact that the employer is tracking their time to support an argument that he or she was misclassified.

Is an employer required to provide handbooks in Spanish?

An employer is not specifically required to provide employee handbooks in Spanish. However, if the employer knows that it has an employee who speaks only Spanish, it runs the risk that the employee will not be held to the provisions of the handbook if he or she could not understand it.

Should an employer have different handbooks for union and non-union employees?

There is no specific requirement that an employer have separate handbooks, but if an employer treats union and non-union employees differently it may want to include some disclaimer language. It is ultimately a business decision if an employer wants to develop two different handbooks, but it may also accomplish the same end through a handbook supplement or a more generic handbook with a disclaimer.

It could also include a provision that if the employee’s position is covered by a collective bargaining agreement, the agreement’s provisions will govern that employee’s employment if there is any conflict between the collective bargaining agreement and the employee handbook’s provisions.

Should an employee handbook apply to consultants?

No. An employee handbook should not apply to consultants just as employee handbooks should not apply to independent contractors. Doing so blurs the necessary sharp lines separating actual employees, independent contractors and consultants.

If you have questions on California law, California handbooks or any other state, check out XpertHR’s 50-state employee handbook resource which was developed with Littler Mendelson.

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