(Current as of September 30, 2020)
Even if your business is not currently permitted to operate in your county, now is the time to thoroughly review (and revise) your hiring packets and develop a comprehensive re-hiring plan so you are ready to hit the ground running when the time comes. Whether it is recalling former employees, hiring new workers, establishing employment policies and practices in this ever-changing environment, dealing with wage/hour issues, properly classifying workers, or creating appropriate job descriptions, there is plenty to consider and plan for. Each of these topics is addressed in this article, including practical steps to take and pitfalls to avoid.
On-boarding Employees: The first step for rehiring employees during Covid-19 is to determine whether your pre-COVID employees were formally terminated, temporarily laid-off, or furloughed. This will guide the decision as to whether such prior employees should be formally re-hired or simply re-instated as an active employee. All termination letters (or similar documents) issued to such employees must be reviewed to determine their current legal status. Terminated employees must be formally on-boarded as new hires. And while furloughed employees and those that were temporarily laid-off (such as with conditional re-employment terms based on the business re-opening or ramping back up) do not typically require formal “re-hire” documentation, treating those employees as new hires as it relates to the on-boarding process is highly advisable. Also, a determination should be made regarding whether any employee benefits available to such former employees (prior to their furlough or temporary lay-off) need to be reinstated, such as sick leave benefits.
Whether you are recalling former employees or hiring new ones, you should ensure that your recruiting and on-boarding procedures remain consistent, objective, and compliant throughout the entire process. Consider implementing a re-hiring plan that can be adjusted based on legitimate business needs and in preparation for any future reductions or changes. A good phasing-in plan should include objective and non-discriminatory factors for the selection of which persons to hire anew and/or bring back. There is a potential for claims to be levied by employees who are recalled after others, passed up for new hires, or not recalled at all.
All on-boarded employees should be provided with re-hire (or new offer) letters, including the start date, compensation, applicable benefits, and details of the COVID-19 health/safety protocols implemented by the business. Be sure to verify (or re-verify) that each employee is authorized to work by receiving completed/updated I-9 Forms from each of them. You should also ensure that every employee completes the same on-boarding paperwork, including new notices required under applicable law.
Establishing Employment Policies/Procedures: Now is the time to revamp (or even create) your policy/procedure manual (sometimes called an employee handbook). Many items in your COVID-19 re-opening/operations checklist should be included in such manual to ensure all employees are on express notice of the business’ protocols and how the employees are expected to comply (with appropriate disciplinary actions clearly established). Provide all employees with your updated employee handbook, ensuring that they promptly sign an acknowledgment of receipt. Also confirm that the workplace has postings encompassing all notices required by federal, state, and local law; many changes have been made since the beginning of 2020 and your “posters” likely need to be updated. Note that all employees need to be trained on how to limit the spread of COVID-19, including how to screen themselves for symptoms and when to stay home.
Wage/Hour Issues: Many businesses were forced to cut their employees’ hourly rates and/or salaries at some point during the crisis, and some may need to make changes to employee compensation during the re-opening process. While these cuts and changes are certainly justified in most cases, special care must be taken to ensure that all wage and hour laws are complied with, including (i) providing all employees with legally-mandated notices regarding their rates of pay, (ii) complying with applicable minimum wage laws, (iii) establishing and enforcing a compliant tipping policy (such as for restaurant workers), (iv) determining exempt vs. non-exempt classifications, and (v) ensuring that all employees are paid for the time they spend participating in pre-shift health screenings and implementing the business’ safety protocols.
Worker Classification: It may be tempting to treat some workers as independent contractors (as opposed to W-2 employees), especially if their workload is minimal, flexible, and they exercise a great deal of independent discretion upon their return. Don’t fall into this trap. Work with competent legal counsel to ensure that every worker is being properly classified under the law, including the “exempt” vs. “non-exempt” issue. Failure to do this properly could result in severe repercussions.
Job Descriptions: Review all job descriptions, and issue (or re-issue) updated copies to your employees. Your pre-COVID job descriptions will almost certainly need to be updated and reissued to include the new tasks being performed by employees on a day-to-day basis and the safety protocols they must follow. Do not fail to pay them for all time worked, including the time they spend implementing the safety protocols. Also, consider “cross-training” your employees to account for any additional changes that may occur in the workplace and to help the business remain as flexible as possible. All supervisors/managers must be trained properly on all updates to the business’s policies, procedures, and protocols. After all, if they are unaware of the rules, how can they help enforce them? Your managers are your first line of defense – train them well and train them often. They will be the ones helping to enforce your disinfection protocols, physical distancing guidelines, and other key COVID-19 related procedures.
Remember that all California employers must provide face coverings to their workers, or the employer must reimburse workers for the reasonable cost of obtaining them. And keep in mind that wearing a mask or face covering is required statewide in public spaces, except under certain limited circumstances. As you consider rehiring employees during Covid-19 and ramping up operations, a detailed risk assessment should be performed and you should create a worksite-specific protection plan based on your industry, business, event, or activity. The Employer Playbook for a Safe Reopening provides a useful checklist to help prepare for operations.