That was reason number one the Mill Valley, San Rafael, Corte Madera and Tiburon Chambers of Commerce hosted “Employment 2017: Recruitment, Retention and Employment Law Changes,” a Feb. 1 seminar at the Town Center Corte Madera that drew on the expertise of employment law attorney Dolores Cordell and Debi Geller, an account executive with Nelson Staffing.
It was clear from the start that hiring – and the abundance of employment-related regulations that accompany the processes of hiring, managing and firing employees – were the most pressing concerns facing many of Marin’s largest employers, as the audience included leaders from Whole Foods Market, Marin Suites Hotel, The Redwoods, Nugget Markets and many more.
Hiring Manager Woes
“I’ve been doing this for a long time and I have never seen the hiring market so tricky – Marin employers have had a harder time hiring in the past six months than at any other time I can remember,” Geller said at the outset, noting that Marin’s unemployment rate currently sits at 2.9 percent, a far cry from the 8 percent of mid-2009. “There is hardly anyone who wants to be working who is not working.”
Marin’s current jobless rate is the same as it was 10 years ago, but there are distinctions in 2017 that make hiring much harder than it was in 2007, Geller said. Those factors include a $3,300 median monthly rent for a two-bedroom apartment in Marin – a cost difficult to bear for job seekers in the lower-wage light industrial, food service and retail sectors in particular.
Given the high cost of housing, it’s no surprise that upwards of 60 percent of employees in Marin commute to work here, just one of the many contributors to Marin’s traffic problems.
“The lower the pay, the harder it is to fill the job,” Geller said. “It’s the million dollar question. And a big driver of all this is that kids used to work in those jobs, and in Marin the teenagers don’t work, so that whole workforce doesn’t exist here, which makes it even harder.”
Several attendees noted that they are pulling out all the stops to incentivize potential new hires, including stipends for public transit costs, paying for higher education and additional training and offering employee referral programs through which current employees can earn a bonus for referring a new employee.
Geller and Cordell said that while getting job seekers in the door is hard, managing the hiring process can be even harder. They urged hiring managers to be careful with the questions you ask job seekers during the hiring process. For example, if an applicant has a service dog, you can’t legally ask them why they have it, but you can ask them if they can perform all of the functions of the job. And ditto with a pregnant applicant or asking an applicant where they’re from.
“There are acceptable and unacceptable questions, and you must be careful to not cross the line, Cordell said. “It’s common sense,” Geller added.
Application forms should also be vetted, they said, as laws are changing regularly. For instance, in San Francisco, employers can no longer ask a job seeker if they have a criminal history. They can, however, conduct background checks.
“The main thing that you want to focus on is, do they have the qualifications to do the job,” Cordell said.
Once They’re Hired
Cordell and Geller spent the bulk of their presentation on what to do once they’ve made a new hire: managing employees, retaining them and properly handling the process of firing them, if needed. They also focused on abiding by the array of employment regulations, particularly those that are changing, like social media and marijuana policies. Here are a few of the points they touched on:
- Consistency. From independent contractors to exempt employees, Cordell stressed consistency in using those classifications, especially considering the stiff penalties that are triggered by misclassifications. Exempt employees “must exercise independent judgment that affects the policies of the company – someone at a fairly high level,” she said. “It’s better to pay anyone that’s below that as hourly.”
- Job descriptions. Clearly spelling out the basic functions of the job, and updating them regularly to reflect shifts in duties over time, is critical to the performance review process.
- Paperwork. Forms are abundance and mandatory, and all employers must have a written employee handbook. “That can be your first defense against employee claims,” Cordell said, pointing to the California Chamber’s handbook creator tool as a great resource. “The handbook tells employees what is expected of them and nobody likes to be in the dark. Have them read and acknowledge it.” Geller also encouraged employers to document everything, particularly performance-related conversations with employees. “Document, document, document,” Cordell added.
- Check-ins. Though they read and acknowledged they read the employee handbook, reminding employees of the rules and regulations, particularly in a more casual environment. Geller suggested monthly “tailgate meetings” on specific topics calling in sick and safe lifting, after which employees sign a sheet acknowledging their recognition of a policy.
- Watch relationships. Be wary of relations between employees, both intimate and contentious (or both in a worst case scenario). “You do not want a supervisor and an employee being supervised by that person in a relationship,” Cordell said, as an example. Likewise, when employees don’t get along, abiding by a “must play nice with others” clause is wise, Geller said. “Firing someone for bad attitude is hard, but it is valid if they have a contentious relationship with colleagues that affects the business.”
- Social media. With many employees on their computers and/or phones, social media policies “are so hard to enforce,” Geller said, adding that social media rules should be a subject employers regularly update their employees on. Cordell added that the National Labor Relations Board “has some very strong rules on what you can and can’t prohibit employees from doing on social media,” particularly those around employees talking about the conditions of their workplace or wages .
- Drugs. Employers can drug test anybody coming into the company, but must have a reasonable probability, like slurred speech on the job, to do so once they’re in. With marijuana in particular, while you can still “prohibit people from toking up and vaping at work,” Cordell said, “it will be interesting to see what happens to in the aftermath of California voters’ passage of marijuana legalization in 2016.” Geller added that there may be a shift ahead in terms of how marijuana is treated from a medical standpoint, particularly given the prevalence of addictive opioid pain medications that have long been outside the bounds of drug testing. “You shouldn’t be stoned at work but if they find it in your blood because you took it last night because of a migraine, that may be seen differently in years to come,” Geller said.
And the bottom line is an employee’s work performance. "If they manage to show up every day and do a good job, it’s none of your business,” Cordell added.
MORE INFO on Debi Geller of Nelson Staffing.
MORE INFO on employment law attorney Dolores Cordell.