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9 Tools to Implement to Achieve Labor Law ComplianceWritten by: Tamara Lynn Harper Reputation Level 10
Posted almost 3 years ago. Applies to California, 2 helpful votes, 0 comments
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Make Sure Employees Take Meal and Rest BreaksOne way to ensure such is to pre-print the following statement upon on all time cards, “I hereby certify that I have taken all meal and rest breaks for the above pay period.” Employers cannot impede, discourage or dissuade employees from taking rest periods; they need only provide, not ensure, rest periods are taken. It is the employer’s responsibility to track employee’s work hours and to maintain all records, even if using an outside payroll or administrative agency. 2
Have an Effective Employee HandbookA written at-will employment policy is enormously useful in litigating wrongful discharge claims because it can rebut an employee's claim that he or she could be fired only if your company had good cause. It is also the law in California. Without a written policy manual, or employee handbook, or even a poorly drafted one, you are at a disadvantage to defend yourself when faced with a lawsuit based upon your policies, procedures, or accusations of discrimination or sexual harassment. 3
Required Employer PostersMake sure all of your labor law compliance postings as required by the State and Federal Government are posted and your appropriate Industrial Welfare Commission Order and Sexual Harassment Pamphlet are posted in a conspicuous place in your workplace where all employees can refer to such. 4
Maintain Employee Files CorrectlyMake sure you have an employment file created for each individual employee and independent contractor. Applications, independent contractor or employment agreements, disciplinary actions, Form W-2, and other related employment documents may be filed within this file. Create a second and separate employment file for each employee that has health information to be filed such as Medical Releases, Drug Test Results or Medical Screening Results, Pregnancy Disability Leave doctor notices or any other medical information. Employee health information must be filed in a separate file and not kept together with their employment file in order to satisfy the requirements of the Health Insurance Portability and Accountability Act (42 U.S.C. Section 1320d) (HIPAA) and the California Confidentiality of Medical Information Act (Civil Code Section 56 et seq.) (CMIA). If you are served with a Subpoena Duces Tecum for an employee’s employment file, contact your employment or labor law counsel. 5
Implement Mandatory Form I-9 ProgramAll U.S. employers are responsible for completion and retention of Form I-9 for each individual they hire for employment in the United States. On the form, the employer must verify the employment eligibility and identity documents presented by the employee and record the document information on the Form I-9. The list of acceptable documents has been amended in the 2007 version of the Form I-9 and can be found on page 4 of the forms. Form I-9 is not filed with U.S. Immigrations and Customs Enforcement and must be kept by the employer either for three years after the date of hire or for one year after employment is terminated, whichever is later. Failure to complete this form at the time of hire for each employee subjects an employer to substantial fines and penalties. Form I-9 should be kept in a separate file and independent of the employee files. 6
Make Sure Your Corporate Entity Record Books are in OrderWhether or not you operate as a Corporation or Limited Liability Company, there are annual requirements in addition to filing tax returns. An annual Statement of Information must be filed with the California Secretary of State. Annual Board of Director and Shareholder Minutes are to be prepared in addition to appropriate corporate resolutions for certain actions. To ensure the liability protections that a corporation or limited liability company can provide, these practices must be complied with in addition to not commingling personal finances with the corporation. I recommend that your corporate counsel handle the annual corporate governance to ensure proper compliance to avoid personal exposure of your assets in the event of a lawsuit. In the event you are served with a lawsuit, your corporate records compliance will be in issue when the opposing party seeks to attempt to “pierce the corporate veil” and name the individual owners personally in an effort to reach personal assets. 7
Correctly Classify Salaried EmployeesAn employer cannot just call a position exempt or give an employee an exempt “sounding” job title. In order for the position to be truly exempt, several criteria as set forth by California law must be met. There is critical and detailed analysis to be made for each exemption claimed, whether it is for a salesperson, administrative position, computer professional, executive/managerial position, or professional. 8
Correctly Determine Independent ContractorsEach agency (Franchise Tax Board; IRS; Labor Commissioner; Employment Development Department; Worker’s Compensation etc.) defines an independent contractor differently and it is almost impossible in California anymore to truly have an independent contractor that meets all of the criteria for each agency. This is another area that has high potential for employer liability and should be discussed on a case by case basis with your California labor attorney. 9
Make Sure Commission Payments or Piece Rate Payments are Properly PaidPayment of commissions upon termination and charge backs of unearned commission advances is a very complicated area of law with many challenges. If you have anyone you pay on a commission only basis, it is recommended that you seek the advice of labor law counsel, as there are minimum wage factors to be considered in addition to possible overtime issues. Additional ResourcesA good link to find a “20 in 1 poster” that includes all 20 required notices on one poster is http://www.calbizcentral.com/Store/Category/Pages/RequiredByLaw.aspx. You can download at no charge the Welfare Industrial Order from the Department of Industrial Relations at http://www.dir.ca.gov/IWC/WageOrderIndustries.htm Related Questions2 Attorney answers: 
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