LEGAL GUIDE
Written by attorney Michael John Tonsing | Mar 12, 2013

RULES OF THE ROAD FOR HIRING EMPLOYEES IN CALIFORNIA – EIGHT CRUCIAL STEPS

RULES OF THE ROAD

SUMMARY

When a California company decides to hire new employees, it:

  • 1. must make a job offer without requiring any illegal conditions,
  • 2. must avoid making misrepresentations about the job,
  • 3. should establish the terms of employment,
  • 4. must verify the employees' eligibility to work,
  • 5. must give employees certain mandatory notices,
  • 6. must collect information required for recordkeeping,
  • 7. must register the new employee with the state, and
  • 8. should train new employees.

STEP ONE: MAKE A JOB OFFER

When a company offer jobs to prospective employees, it may require them to satisfy various conditions before they may start working. However, companies may not require prospective employees to meet any illegal conditions.

California businesses must be in compliance with special rules if they condition a job on:

  • · A personal background check
  • · A credit check
  • · Obtaining the prospective employee's arrest or conviction records
  • · Medical information or examinations
  • · Drug or alcohol tests
  • · Ability, honesty, or psychological tests
  • · Obtaining fingerprints or photographs
  • · The applicant meeting height, weight, or other physical standards
  • · The applicant disclosing personal information
  • · An investment in the business.

The specific rules and restrictions related to job offers under Federal and State law are beyond the scope of this summary, but a company would be well advised to consult with a business/employment lawyer if any of the above conditions are invoked when job offers are made.

STEP TWO: AVOID MISREPRESENTING THE JOB

California companies must avoid giving false information to prospects. An employer may be liable if it makes false statements regarding:

· The existence of a position

· The nature of the work

· Housing conditions near the workplace

· Sanitary conditions at the workplace

· How long the job will last

· The presence (or absence) of a strike, lockout, or other labor dispute

If a prospect acts in good faith and either moves to a new residence or begins working for a company based on false statements about a job, they may sue the company and collect double the amount of any damages they suffer. Plus, the employer may be convicted of a crime.

STEP THREE: ESTABLISH THE TERMS OF EMPLOYMENT

Employers are not required to have written employment contracts with their employees. But, a written contract may include terms to protect employers' business interests and reduce their liability for wrongful discharge lawsuits..

Generally, every employment contract must describe:

· The names of the employer and employee

· The job for which that employee is hired

· The compensation

· The duration of the employment

If a company desires to preserve the maximum discretion and to maximize its ability to manage and terminate employees, it should have its employment contracts specify that employees are "at-will" employees. Basically, employers may fire at-will employees at any time, with or without notice, and with or without a reason. Failing to adequately state that contracts are "at will" could have dire consequences, and should only be entered into in special circumstances.

And, companies may want to consider including additional terms in employment contracts, such as:

· Agreements regarding trade secrets (including the confidentiality of customer lists)

· Non-competition and non-solicitation requirements, to the extent allowed by law

· Provisions covering ownership of inventions and ideas

· Arbitration agreements

STEP FOUR: VERIFY ELIGIBILITY TO WORK

To comply with the federal Immigration Reform and Control Act (IRCA), employers must verify that all new employees are eligible to work in the United States. Employers must have employees show certain documents and complete a Form I-9.

NOTE: The documents that are acceptable forms of verification and the requirements for completing the form are listed elsewhere. See my companion Avvo Legal Guide regarding the new (March 2013) I-9. https://www.avvo.com/pages/show?category\_id=6&permalink=new-i-9-form-must-be-used-by-employers-now, for more information on this.

NOTE: Employers must complete an I-9 for all prospective employees, whether the prospect is from the United States or from another country.

NOTE: Minors must obtain work permits before they may lawfully begin work.

STEP FIVE: PROVIDE MANDATORY NOTICES

Companies must provide new employees with certain written notices about their rights. For example, employees must receive a pamphlet about state disability benefits (available from the California Employment Development Department) and a pamphlet about workers' compensation rights (available from workers' compensation insurance carriers or the California Department of Industrial Relations).

STEP SIX: COLLECT REQUIRED INFORMATION

Employers must comply with recordkeeping requirements, as well. So, they must ask employees to provide certain information. For example, they must complete a Form W-4 to determine their federal tax withholding.

However, the laws governing the collection of information are complicated and limit the types of information and collection methods. For example, a company might routinely ask new employees to fill out their employee information and payroll form. Such a form might ask employees for their birth date and the country in which they were born. Depending on the situation, the new may be required to obtain this information, or it may be violating the law by asking for these details. Generally, employers must ask minors for their birth date, but it's probably illegal (age discrimination) to ask adults for their birth dates. And, although a company may be required to ask for employees' birthplaces to comply with discrimination laws, it's probably illegal (national origin discrimination) if the company is not covered by these laws (e.g., due to its relatively small size).

STEP SEVEN: REPORT NEW EMPLOYEES TO THE STATE REGISTRY

In order to help the government catch "deadbeat" parents who don't pay child support, California employers must now register all their new employees with the State's New Hire Registry. This applies to all employees, whether they work part-time or full-time, quit after just a few hours, or are terminated within a few days. Employers must register all new employees who work in California even if the employees do not live in the state. And, employers must register newly rehired employees who submit new W-4 forms.

California employers must provide the Employment Development Department (EDD) with the following information within 20 days of the date the employee starts work:

· The employee's first and last names and middle initial

· The employee's home address

· The employee's social security number

· The date the employee started work,

· The employer's California employer account number, and

· The employer's Federal employer identification number.

Note: Employers must report the information even if the new employee is terminated before the 20 days expire.

Employers may report the information to the EDD by sending any of the following:

· A completed DE 34 form or report online, or by contacting their local Employment Tax Customer Service Office, or by calling (888) 745-3886

· A copy of the employee's W-4, along with the employee's starting work date and the employer's account and identification numbers

· A form that contains all the information in the employee's W-4, along with the employee's starting work date and the employer's account and identification numbers

· Magnetic or electronic media such as a diskette, tape, or cartridge containing the required information.

NOTE: If an employer chooses to provide magnetic or electronic reports to the California EDD, it must send 2 reports per month. The reports must be sent at least 12 days apart and no more than 16 days apart. If no new employees are hired for the period, it need not submit a report.

To report new employees, a CA company should mail the information to:

Employment Development Department

PO Box 997016, MIC 23

West Sacramento, CA 95799-7016

Or, fax it to (916) 255-0951.

Note: For information on filing electronically or magnetically, call (916) 651-6945.

NOTE: If a company has employees in more than one state and files magnetically or electronically, it may choose to report all new employees to a single state's New Hire Registry rather than providing a report to each state individually. When a company reports to a state, it must comply with that state's reporting procedures.

STEP EIGHT: TRAIN EACH NEW EMPLOYEE

Each new employee should be given a copy of the company's personnel handbook (if any) and informed about policies concerning vacation time, sick days, work rules, discipline programs, etc. And, employers must give each new employee safety training and instruct them in the procedures for obtaining access to certain employee safety and medical records.

In addition to orienting new employees, appropriate training may reduce a company's potential liability for:

· OSHA citations

· Sexual harassment claims

· Workers' compensation claims

· Claims by outsiders who may be injured by employees

NOTE: Training time for new employees is generally counted as worktime, which means that companies must pay for it. However, California employers may pay their new employees at a rate lower than their usual rate for this orientation training time..

NOTE: If a California company supplies uniforms, tools, or other equipment to its new employees, the company may have them sign a receipt for the property and an authorization allowing wage deductions if an item is not returned.

As should be obvious after reading this checklist, companies should have a relationship with an experienced business/employment lawyer in order to make their way through this thorny thicket.

Tonsing Lawfirm

www.TonsingLawfirm.com

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