Employer policy on firing an employee in the workplace

[infocus]

What is the name of your state (only U.S. law)? CA

I am an employer in California and am writing a contract that employees must sign, I am doing this because of poor behavior in the workplace. I am writing it as strictly as possible without violating laws. Are any of these points in violation of California labor laws?

Lunch is 20 mins. You must be ready to take calls and/or help customers during this time.
Smoking breaks are limited to two (2) per day for 2-3 minutes and must be done in the back of the store.
Personal phone calls are not allowed except for real emergencies.
No personal online chatting, text messaging or web browsing.
You are allowed a maximum of two (2) sick days per month.
Out of town: days must be made up (or what is a typical out of town policy?)
Personal discussions (not related to the business or our industry) is not allowed at any time.
Working hours are 7am-5pm daily (10 hours per day).

 

[CSO286]

What is the name of your state (only U.S. law)? CA

I am an employer in California and am writing a contract that employees must sign, I am doing this because of poor behavior in the workplace. I am writing it as strictly as possible without violating laws. Are any of these points in violation of California labor laws?

Lunch is 30 mins. You must be ready to take calls and/or help customers during this time.
Smoking breaks are limited to and must be done behind unit 114 in the back of the shop.
Personal phone calls are not allowed except for real emergencies.
No personal online chatting, text messaging or web browsing.
You are allowed a maximum of two (2) sick days per month.
Out of town: days must be made up (or what is a typical out of town policy?)
Personal discussions (not related to the business or our industry) is not allowed at any time.
Working hours are 8am-6pm daily (10 hours per day).

And what happens if the employee has a mouth full of food when a customer walks up to him/her?
Define "real emergency."
What happens if an employee goes beyond the two allotted sick days?
Out of town days? Why not simply have a personal leave policy?
No one is allowed a minute or to to simply be social with a co-worker? (How are the kids? What are you making for dinner?, etc)

 

[infocus]

You can see when a customer is coming, so there is time to react. There will never be a "food of mouth" when a customer walks up. If that does happen, can they not politely excuse themselves while they finish?

Real emergency: family illness, death, natural disaster (fire) or robbery, etc.

Allocated sick days: I am just putting a number out there, I am not sure if there is a standard established by businesses? What happens, they could be subject to termination.

Being social with co-worker: not really.

Are any of these terms not legal or out of line?

 

[swalsh411]

CA does have break requirements and you can read about them here:

http://www.dir.ca.gov/dlse/faq_restperiods.htm

The penalties for not providing required breaks can be expensive. You certainly cannot require the employee to be available for work if it's an unpaid break.

The behavior related rules like texting are perfectly legal.

Assuming these are non-exempt employees and they find somebody to cover their shift then why would you care if the hours are made up?

 

[infocus]

All breaks are paid. Would it be better as a general rule to make breaks unpaid and let them do as they wish?

Not sure what you mean by non-exempt employee. But I can say that I am a small business running on fumes, there are no other employees to make up the hours. That's why the rules are strict.

Also, the link you sent says 10 minutes paid, non working, break per 4 hours. So for 10 hours, that's 25 minutes? And it doesn't look like any other breaks are required.

 

[Zigner]

All breaks are paid. Would it be better as a general rule to make breaks unpaid and let them do as they wish?

If you are not proving an UNPAID lunch period of at least 30 minutes, then you are in violation of the law.

Backing up just a step - are these employees salary or hourly?

 

[Mass_Shyster]

Most employees are at will, and can be terminated at any time for any (legal) reason.

An employee contract can only be terminated for reasons set forth in the contract.

Do you really want to go there?

 

[Dessta]

My experience is with Human Resources, so I can give you a few tips:

1) For a 10 hour workday, you are required to provide at least 2 fifteen minute breaks (paid) and one 30-minute lunch (unpaid). This is federal law and you can only break this if your employees are exempt. For a definition of exempt vs. non-exempt, you'll need to consult both the federal Dept. of Labor and California's Dept. of Labor. Note that during an unpaid 30-minute lunch, you can't require your employees to assist customers, answer the phone, etc.

2) You can restrict smoking to employee break times and you can designate a smoking area (back of the store if you like).

3) I would simply say that personal phone calls are not allowed. Then, instead of having to get into the definition of an emergency, you can be "lenient" and "reasonable" by letting it go when someone's babysitter calls that the child is sick, etc.

4) Be careful to define sick days and vacation days for your employees. Do you intend to pay employees for those days? If so, designate them carefully and note how many they are entitled to per year. If not, then I would simply state that excessive absenteeism will be subject to disciplinary action. Please note that you simply cannot tell people they may never ever have days off for a vacation. You don't have to pay them for it, but you need to have some provision for them having time off. You also cannot always expect them to provide their own coverage, so it might be better to require them to schedule time off 30 days in advance, which lets you adjust the schedule.

5) Be very careful to set forth a disciplinary policy. Have AT LEAST two steps: a written warning and job termination. You'll never win an unemployment appeal for willful misconduct if you don't warn the employee, in writing, at least once for most behaviours. Some things, such as stealing, physical altercations, etc. can be fired without warning, but being late to work, excessive breaks, etc. needs a warning the first time.

If you do the disciplinary policy, you get some leeway on your rules. What I mean is that you don't have to say, for example, that employees can't chat with each other (although I do think that's a bit too much of you to restrict.) You could simply give an employee a written warning, advising them that they are taking excessive time away from their work with socializing and that if they don't restrain themselves, they could be fired. Have them sign it or document their refusal to sign the warning, and keep those papers.

 

[cbg]

If I may make a suggestion, I don't think you really want to do this as a contract. That can backfire on you.

Your break policy as written is in violation of CA law. There is a link to the requirements upthread.

You also want to consider that CA has daily overtime, so a ten hour work day is going to be rather expensive for you.

The rest of your policies are fine overall, maybe even a tad on the generous side. (I wouldn't present sick days on a monthly basis, but on a yearly basis. You don't want people taking days off when they don't need them just because "I get two sick days a month so I'm entitled to take two days off a month" - and at the same time if someone is legitimately sick with the flu for three days you don't want them coming in too soon because they ONLY get two days a month, and infecting the rest of the staff.)

But rather than presenting contracts to sign, I would present it as, these are the policies of the company and this is the behavior that is expected of you. By all means have them sign, but have the signature be their acknowledgement that they have received these policies and that they understand that they are expected to abide by them. (It is unrealistic to expect that NO personal discussions will EVER take place. You might want to rethink that one, or at least reword it to allow for human nature. Personal discussions that interfere with work; fine, no problem. Ban them. But NO personal discussions? You'll never be able to enforce that.)

Then, if they do not adhere to the policies, write them up. And if they do it again, fire them. Trust me, you won't have to fire more than one or two before people get the idea that you mean business.

But as has already been indicated, the last thing you want is a contract that says, indirectly or directly, that you can only be fired if you do x, y and z. Because sooner or later someone will do q, and you will want to fire them for it, and you'll get sued for breach of contract. You want policies that you can bend for circumstances; not a contract that will lock you into a corner.

 

[swalsh411]

I would scrap this entire notion of a "contract" (certainly do NOT use that word) comply with the law when it comes to breaks, and make sure the behavior expectations are clear. You do not want to have any "contracts" at all with your employees otherwise you may jeapardize their at-will status. It is ok to make them sign something that says they understand the rules however. This may come in handy if you fire somebody for breaking the rules and wish to fight their unemployment. Just don't call it a contract.

You said you were small but do you have enough employees to be covered by FMLA? If so then you can't in all cases fire somebody for taking a sick day and not making it up.

 

[Zigner]

My experience is with Human Resources, so I can give you a few tips:

1) For a 10 hour workday, you are required to provide at least 2 fifteen minute breaks (paid) and one 30-minute lunch (unpaid). This is federal law and you can only break this if your employees are exempt. For a definition of exempt vs. non-exempt, you'll need to consult both the federal Dept. of Labor and California's Dept. of Labor. Note that during an unpaid 30-minute lunch, you can't require your employees to assist customers, answer the phone, etc.

For my own education, please cite the federal law that requires these things.

 

[cbg]

1) For a 10 hour workday, you are required to provide at least 2 fifteen minute breaks (paid) and one 30-minute lunch (unpaid). This is federal law and you can only break this if your employees are exempt.

This is absolutely incorrect. Federal law does not require breaks of any kind, of any length, for the employees of private employers. Federal law says only that IF breaks are offered, breaks of less than 20 minutes or so must be paid breaks.

http://www.dol.gov/dol/topic/workhours/breaks.htm

 

[Zigner]

1) For a 10 hour workday, you are required to provide at least 2 fifteen minute breaks (paid) and one 30-minute lunch (unpaid). This is federal law and you can only break this if your employees are exempt.

This is absolutely incorrect. Federal law does not require breaks of any kind, of any length, for the employees of private employers. Federal law says only that IF breaks are offered, breaks of less than 20 minutes or so must be paid breaks.

http://www.dol.gov/dol/topic/workhours/breaks.htm

spoilsport.

 

[cbg]

Sorry, I'd already put that up before I saw your thread.

I think someone needs to go back to HR school.

 

[Dessta]

For my own education, please cite the federal law that requires these things.

Federal law states that you must provide "reasonable" breaks of "reasonable" length. OSHA mandates breaks for nursing mothers and restroom breaks for all employees. Additionally, federal law mandates that the employer also stay in line with their state laws, and California lays out breaks and meal requirements rather clearly.