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Employee Onboarding

Before hiring, it’s crucial for employers to properly onboard new employees. Take this example, a dental office urgently hires a new dentist after a dentist quits, just before a busy Halloween season. The new dentist works long hours as candy consumption soars, expecting to earn overtime to buy a new car. However, when his paycheck arrives, he finds no overtime pay—instead, he’s paid a flat salary as if he worked half the hours.

The dentist demands overtime, but the employer refuses, citing the new dentist’s exempt status. This misunderstanding could have been avoided with a proper onboarding process, which would have clarified the dentist's employment terms and classification upfront.

Hence, a proper onboarding process protects both the employer and employee from disputes and ensures clear communication moving forward.

Employee Onboarding Procedure

1. Classify the New Hire

The employer must classify whether a new hire is an employee or an independent contractor. If an employee, the employer must classify whether the new employee is exempt or non-exempt.

2. Draft Offer Letter

An offer letter, (formal employment proposal), includes the new hire’s employment classification, terms of employment, and other key details.

This ensures that both the employer and employee are on the same page regarding the employee’s terms of employment to avoid future disputes.

3. Provide Mandatory Employment Forms

An employer is legally obligated to provide a new employee with mandatory employment forms, such as an I-9, W-4, sexual harassment training, and more.

4. Provide Employee Handbook

The employee must receive, review, and acknowledge receipt of the company’s employee handbook. The employee handbook sets forth the company’s policies to legally protect the business by documenting policies on employment practices, benefits, conduct, and disciplinary procedures.

5. Conduct Compliance Training

The employer is both legally obligated and strongly advised to provide an employee with anti-harassment training, along with other forms of compliance training.

STEP 1
CLASSIFY THE EMPLOYEE

Employee or Independent Contractor?

Independent Contractor Status

A worker is an independent contractor if all the following are met:

1. The worker is free from control and direction in performing the work.

For example, a company provides a logo designer with general guidelines about the logo’s style, but the designer decides how, when, and where to complete the logo.

2. The worker’s tasks are not part of the hiring company’s usual business.

For example, a bakery hiring a plumper to fix a leak.

3. The worker regularly operates their own independent business doing the same type of work.

For example, an electrician has their own business, advertise their services, and works for multiple clients, as opposed to just one construction company.

Employee Status

If the worker does not meet even one of the requirements to be considered an independent contractor, the worker will be classified as an employee.

Generally, an employee works under the direction and control of the employer, has an ongoing employment relationship with no set end date, and is paid on a regular basis.

Key Takeaway

1. An employee is not an independent contractor simply because the employer either calls the employee an independent contractor or has the employee sign an agreement to be an independent contractor.

Exempt or Non-Exempt Employee?

Non-Exempt Employee

A non-exempt employee is an employee entitled to overtime pay, a minimum wage, and meal and rest breaks. Generally, most employees are considered non-exempt.

Typical Job Duties & Characteristics

Hourly Wage: These employees are typically paid on an hourly basis and track their hours worked.
Routine Tasks: Performing repetitive or manual tasks, such as data entry, customer service, or assembly line work.
Supervised Work: Tasks are often closely supervised with specific instructions and detailed procedures to follow.

Examples of Non-Exempt Employees

Restaurant Servers: Waiters and waitresses who serve food and drinks to customers.
Retail Employees: Cashiers, sales associates, or store clerks in retail settings.
Administrative Assistants: General office support staff who handle tasks like filing, answering phones, or scheduling.
Warehouse Workers: Employees involved in packing, shipping, or organizing inventory in a warehouse.

Key Takeaway

1. California law determines whether a worker is exempt – not the employer. The employee’s job duties, as opposed to the employee’s job title, determines whether the employee is exempt or non-exempt.

Exempt Employee

An exempt employee is an employee that is not entitled to overtime pay, or meal and rest breaks.

Typical Job Duties & Characteristics

1. Discretion and Judgment: Performing work that involves significant discretion and independent judgment, such as making decisions affecting business operations.

2. Supervisory Roles: Managing or supervising other employees, including hiring, firing, and directing work.

3. Professional Duties: Engaging in work that requires advanced knowledge or skills.

4. Salary Basis: Typically paid on a salaried basis.

As of January 1, 2024, to qualify as an exempt employee, the employee must earn a minimum annual salary of $66,560/year ($1,280/week).

Examples of Exempt Employees

1. Executive Employees: Managers or supervisors who oversee other employees and make important business decisions (e.g., a department manager in a retail store).

2. Administrative Employees: Employees who perform office or non-manual work related to management or business operations (e.g., human resources managers, accountants).

3. Professional Employees: Employees with advanced knowledge in fields like law, medicine, engineering, or education (e.g., lawyers, engineers, doctors)

4. Outside Salespeople: Employees who regularly work outside the employer’s business premises making sales (e.g., field sales representatives).

5. Software Engineers: Professional workers with advanced skills in developing, testing, and maintaining software systems.

6. Certain Commission-Earning Employees

The employee earns at least 1.5 times the minimum wage, with more than half of it

coming in commissions.

STEP 2

PREPARE THE OFFER LETTER

What Is an Offer Letter?

An offer letter is a formal document that outlines the key details of a job offer, ensuring clear communication between the employer and the new hire. The offer letter includes the job title, salary, work schedule, start date, benefits, and conditions of employment.

When Is It Used?

Offer letters are particularly useful for at-will employees, where either party can end the employment at any time. They are also common for standard roles that do not require complex employment contracts or negotiations. When a business needs to fill a position quickly, an offer letter can streamline the hiring process, allowing both parties to move forward with clarity and confidence.

Offer Letter Procedure

1. Classify the New Hire

Determine whether the new hire is an employee or independent contractor. If an employee, determine whether the employee is exempt or non-exempt.

2. Draft the Offer Letter

Using our Offer Letter Template, fill in the key terms of the employee’s employment such as the job title, salary, and any conditions of employment.

Offer Letter Template

3. Review and Approve

Once you have filled out the offer letter, make sure all the terms are accurate and complete.

4. Send the Offer Letter

Once you have reviewed the offer letter for accuracy and completeness, email the offer letter to the new hire. Feel free to personally hand the offer letter to the new hire if preferred.

5. Confirm Receipt

Once the offer letter is sent, follow up with the new hire to confirm he/she has received and reviewed the offer letter.

6. Await Response

If necessary, give the new hire time a few days to review the offer letter and respond with their acceptance or any questions.

7. Finalize Details

If necessary, give the new hire time a few days to review the offer letter and respond with their acceptance or any questions.

Offer Letter Basic Terms

1. Job Title and Duties

2. Wage or Salary

3. Employment Type – Full-time, Part-time, Contract-based, etc.

4. Exempt or Non-Exempt Status – More information will be found below.

5. Employee’s At-Will Status

6. Start Date

7. Employee Schedule

8. Benefits – If any.

9. Conditions of Employment – If applicable, the applicant must pass a medical exam, drug test, or background check.

Key Takeaways

1. If an employer decides to provide an employment contract after issuing an offer letter, the offer letter should include a “disclaimer” stating that the offer letter is not binding.

An employment contract is commonly used for roles with high-level responsibilities such as executive roles, long-term positions, or roles with sensitive duties.
Include a disclaimer in the offer letter clarifying that it is not a legally binding contract, protecting the employer from legal claims if terms change or the employment does not proceed as planned.

2. If an employer plans to conduct a background check on the applicant, the offer letter should include the following:

i. A clear statement stating the offer is conditional on the satisfaction of a background check.
ii. A clear statement notifying the applicant that the employer might use information from a background check to make employment-related decisions.

STEP 3

MANDATORY EMPLOYMENT FORMS

1. Form I-9

Form I-9 is used to verify the identity and employment authorization of individuals hired for employment in the United States. Employers must complete the form for each new employee to ensure they are legally permitted to work in the country.

Link to Form I-9: Form I-9

Employer’s Responsibilities

1. Make the instructions for Form I-9 and Lists of Acceptable Documents available to the Employee when completing Form I-9 and when requesting that the Employee present documentation to complete Supplement B (Reverification and Rehire).

2. Ensure the Employee completes Section 1.

3. Employer must complete Section 2 within three (3) business days after the Employee’s first day of employment.

4. Complete Supplement B (Reverification and Rehire) if applicable.

An Employer must complete Supplement B when the Employee’s employment authorization or documentation of employment authorization has expired (“reverification”).
Applies to an Employee who has a work permit or employment authorization document (EAD) – A document that allows someone to legally work in the U.S. for a specific period of time.

5. If any field(s) on Form I-9 do not apply, then leave the field(s) blank. In addition, allow the Employee to leave any field(s) blank in Section 1, where appropriate.

6. After completed, the Employer must retain the completed forms.

2. Federal W-4 Form

The W-4 form is used by employees to inform their employer of their tax withholding preferences. It helps employers determine the correct amount of federal income tax to withhold from the employee’s paycheck based on their filing status, number of dependents, and other factors.

Link to W-4 Form: W-4 Form

Employer’s Responsibilities

1. The employer should have the employee complete the W-4 form before the employee receives his/her first paycheck to ensure accurate tax withholding.

2. The employer needs to start implementing updated payroll deductions thirty (30) days after receiving a W-4 Form.

3. According to the IRS, the employer must keep the employee’s W-4 on file for at least four (4) years in case the IRS requests copies of an employee’s W-4 for an audit or issues with the withholding amount.

The W-4 Form can be kept electronically or physically.
After the legal retention period ends, if the employer chooses to do so, the employer must safely dispose of the employee’s tax information.
Acceptable methods include shredding or burning all tax documents and permanently deleting electronic files.

3. California DE 4 Form

The DE 4 form is used in California for state income tax withholding. An employee uses this form to indicate their California state tax withholding preferences. It helps the employer calculate the correct amount of state income tax to withhold from the employee’s paycheck.

Link to DE 4 Form: DE 4 Form

Employer’s Responsibilities

1. An employer must withhold state income tax as dictated by the employee's completed DE 4 form and is responsible for staying up to date with the EDD (Employment Development Department) guidelines.

2. An employer must have new hires fill out the DE 4 if they wish to adjust California state withholdings differently from federal withholdings.

3. An employee can update their DE 4 anytime his/her personal or financial situation changes, and an employer should apply the new withholdings promptly.

4. Notice of Rights of Victims of Domestic Violence, Sexual Assault, and Stalking

The Notice of Rights of Victims of Domestic Violence, Sexual Assault, and Stalking is a legal document that informs employees of their rights in the workplace if they are victims of domestic violence, sexual assault, or stalking.

Link to Notice in English: Notice - English

Link to Notice in Spanish: Notice - Spanish

5. Time of Hire Notice

The California Time of Hire Notice is a document that informs new employees about their rights and benefits under California's workers' compensation law.

Link to Time of Hire Notice: Time of Hire Notice

6. Sexual Harassment Pamphlet

The California Sexual Harassment Pamphlet is a document that California employers are required to give to all employees and independent contractors to inform them of their rights and responsibilities for a harassment-free workplace.

Link to Sexual Harassment Pamphlet: Sexual Harassment Pamphlet

7. EDD Disability Insurance Pamphlet

The California State Disability Insurance (SDI) pamphlet is a document that provides information about the SDI program, including eligibility and application requirements. The EDD requires employers to provide this pamphlet to new hires and employees who are taking a leave of absence for a non-work-related reason.

Link to EDD Disability Insurance Pamphlet: EDD Disability Insurance Pamphlet

8. Paid Family Leave Pamphlet

California employers are required to provide employees information about their rights to Paid Family Leave (PFL) benefits at the time of hire, and when taking a leave of absence for a reason that may entitle them to benefits.

Link to Paid Family Leave Pamphlet: Paid Family Leave Pamphlet

9. Wage and Employment Notice

The California Wage and Employment Notice (also known as the "Notice to Employee") is a required document that employers must provide to new hires. It informs employees of essential employment details. This notice is intended to provide transparency regarding the employee's wages and working conditions. It must be provided to the employee at the time of hire and updated if any of the listed information changes. This notice is typically required for non-exempt employees.

Link to Wag and Employment Notice: Wage and Employment Notice

10. New Employee Registry

The California New Employee Registry (NER) is a program that requires California employers to report new and rehired employees to the EDD. The purpose of the NER is to provide information about employee status to help enforce child support, tax enforcement, and

more.

New Employee Registry Instructions: Instructions

STEP 4

PROVIDE EMPLOYEE HANDBOOK

What is an Employee Handbook?

While California does not require an Employer to provide an employee handbook, employers are strongly encouraged to provide one. Employers are required to notify their employees of certain rights, and a well-crafted handbook is an effective way to do so.

Although some companies offer free employee handbooks, it's often better to invest in one that is comprehensive. A good handbook should cover not only state and federal regulations but also city-specific policies. Additionally, it should be regularly updated to reflect any new or amended laws, ensuring ongoing compliance.

Companies that Provide Employee Handbooks

1. Employee Handbook by the California Employers Association

2. Employee Handbook by HANDBOOKS

3. Employee Handbook by Rocket Lawyer

Employee Handbook Procedure

1. Distribute the Handbook

Provide each new employee with a copy of the Employee Handbook on their first day of

work, either as a printed version or a digital file.

Ensure that current employees receive updated versions whenever the handbook is revised. If

an employer does not have an Employee Handbook, provide one to each existing employee.

2. Acknowledge Receipt

Once the employee receives the Employee Handbook, have the employee sign the Employee

Handbook Acknowledgment Form confirming the employee has received, read, and

understood the handbook. Keep the signed acknowledgment in the employee’s personnel file for

future reference.

Employee Handbook Acknowledgement Form

3. Ensure Accessibility

Make sure employees can access the handbook at any time, either through the online version

or by requesting a printed copy.

STEP 5

COMPLETE COMPLIANCE TRAINING

Sexual Harassment Prevention Training

In California, an employer with 5 or more employees is legally required to provide sexual

harassment and abusive conduct prevention training.

Every two (2) years, non-supervisory employees must receive one (1) hour of training and

supervisors must receive two (2) hours of training.

It is the employer’s responsibility to provide the required training, including any costs that

may be incurred. Also, the training must be provided during an employee’s working time and

not during an employee’s personal time.

California’s Civil Rights Department offers free online trainings that satisfy these

requirements – one for supervisors and one for non-supervisors. Both trainings are available in

English, Spanish, Chinese, Korean, Tagalog, and Vietnamese. Click the link below to access the

trainings.

Link to Training: Training

Key Takeaways

1. What if an employee received the training within the prior 2 years from another employer?

The employee must read and acknowledge receipt of the employer’s anti-harassment

policy within six (6) months of their new employment.

2. Does an employer need to train independent contractors, volunteers, and unpaid interns?

No, but an employer might consider doing so. In determining whether an employer meets the

“5 or more employee requirement” and is subject to the harassment prevention training

requirement, independent contractors, volunteers, and unpaid interns are counted.

For example, if an employer has 2 full-time employees and 6 unpaid interns, the employer

will meet the training requirement and need to ensure the 2 full-time employees receive the

training.

3. What if the employee is seasonal, temporary, or works less than 6 months?

For an employee hired for less than 6 months, an employer is required to provide training

within thirty (30) calendar days after the hire date or within 100 hours worked, whichever occurs

first. An employee who is employed for less than 30 calendar days and works for less than 100

hours does not need to be trained.

For a temporary employee employed by a temporary services employer to perform services

for clients, the temporary services employer will provide the training – not the client.

Sexual Harassment Training Procedure

1. Initial Training

Existing Employee: The employer should designate a specific day or week for all existing

employees to complete the required training.

New Employee: The employer should ensure that the new employee completes the required

training within his/her first week of employment.

Note: For both new and existing employees, training must occur during working hours, not

during an Employee's personal time.

2. Instructions

Before the employee begins the training video, the employer should clearly inform

employees that they must print their completion certificate at the end of the session.

The employee should then sign the certificate to confirm their attendance and understanding

of the training. If the certificate is not printed, the employee must rewatch the training to obtain

the certificate.

3. Record Keeping

The employer should either keep a physical copy of the signed certificate or scan it for

electronic storage in the employee’s personnel file.

4. Track Compliance

After completing the training, it is a good practice to have both the employer and employee

mark the two-year anniversary on their calendars to schedule the next session.

Since California law requires training every two years, employers must maintain accurate

records of each employee’s training to ensure compliance.

STEP 6

ARBITRATION AGREEMENT

What is an Arbitration Agreement?

An arbitration agreement is a written contract where you and your employee agree to handle

workplace disputes through private arbitration instead of in court. This means that, if a conflict

arises, it will be decided by a neutral arbitrator rather than a judge or jury. In California, these

agreements are permitted, but they must be fair, clearly written, and cannot prevent employees

from filing certain claims with government agencies.

Benefits of an Arbitration Agreement

Arbitration is often faster and less expensive than going to court, which can take years and

involve high legal costs. It also keeps disputes private since arbitration hearings are not part of

the public record, and cases are decided by an experienced neutral arbitrator rather than a jury.

For employers, this can reduce the risks and costs of lengthy lawsuits while providing a more

predictable process.

Important Note

Under California law, arbitration agreements must be offered on a voluntary basis.

Employees cannot be forced or pressured to sign one as a condition of being hired or keeping

their job.

Workplace Misconduct

(Harassment, Discrimination, & Retaliation)

Overview

The Fair Employment and Housing Act (FEHA) prohibits discrimination, harassment, and

retaliation based on a person’s protected characteristics. Harassment and discrimination can

occur between coworkers, supervisors and subordinates, or third parties like clients. FEHA also

requires employers to take reasonable steps to prevent and address inappropriate behavior in the

workplace.

Protected Characteristics: Race, Color, Gender, Religion, Sexual Orientation, Disability,

Marital Status, Medical Condition, Military or Veteran Status, National Origin, Ancestry, And

Age (Over 40).

What is Harassment?

Harassment is unwelcome behavior—such as offensive jokes, comments, or actions—

directed at someone because of a protected characteristic.

Example: A coworker keeps making rude jokes about another employee’s age.

What is Discrimination?

Discrimination happens when job-related decisions, like hiring, firing, pay, or

promotions, are based on a protected characteristic instead of performance or qualifications.

Example: A qualified applicant is not hired because she is pregnant.

What is Retaliation?

Retaliation occurs when an employer punishes or takes negative action against someone

for exercising their legal rights, such as reporting discrimination or helping with an investigation.

Example: An employee complains about harassment, and afterward, the boss cuts his hours.

What To Look For

Unwelcome Comments or Jokes: Off-color remarks, derogatory jokes, or offensive language

related to race, gender, sexual orientation, religion, or other protected characteristics.

Physical Actions: Unwanted touching, aggressive behavior, or threatening gestures that make an

employee feel uncomfortable or unsafe.

Exclusion or Isolation: Deliberately excluding someone from meetings, projects, or social

activities due to their protected characteristics.

Derogatory Emails or Messages: Inappropriate or harassing content sent through company

communication channels, including emails, texts, or social media.

Visual Displays: Offensive posters, cartoons, or images displayed in the workplace that target or

demean specific groups.

Employee Complaints: Pay attention to any complaints, even informal ones, about someone

feeling uncomfortable, bullied, or targeted in the workplace.

Unequal Treatment: Consistent differences in how employees are treated based on race, gender,

age, religion, disability, or other characteristics—such as in hiring, promotions, or disciplinary

actions.

Negative Stereotyping: Managers or coworkers making assumptions or comments about an

employee’s abilities or work ethic based on stereotypes related to their protected characteristics.

Workplace Misconduct Procedure

1. Report the Complaint

If an employee complains about harassment, discrimination, or retaliation, have the employee

fill out a written complaint using our Complaint Form template.

A. Minor v. Serious Misconduct: The investigation should begin immediately (i.e.,

within the same day, or the next day).

Example of Serious Misconduct: Inappropriate physical contact, repeated and
unwanted advances, and coercive acts.
Example of Minor Misconduct: A one-time and offhand remark, unwelcome
flirting, staring or suggestive gestures, and sending unsolicited sexual messages.
The investigation should be aimed to finish within 1-2 weeks of the complaint.

2. Acknowledge the Complaint

Once the complaint is submitted, the employer should let the complaining party know

that the complaint has been received via email.

It is recommended you assure the complaining party that the issue will be handled fairly

and explain the steps you will take but avoid making promises about outcomes.

3. Assign a Fair Investigator

Before conducting the investigation into the complaint, choose a neutral investigator. An

investigator with personal bias with the parties can affect the investigation. If necessary, the

investigator can be the employer him/herself.

4. Interview the Complaining Party

First, the investigator should interview the complaining party in-person using the

Investigation Report Questionnaire. The investigator should create an environment where the

complaining party feels safe to speak freely without fear of retaliation and judgment. The

investigator should actively listen and show empathy, ensuring the complaining party feels their

concerns are being taken seriously.

5. Interview the Accused

Next, interview the accused employee in-person using the Investigation Report

Questionnaire. The accused should be treated with the same respect and dignity as the

complaining party, avoiding any assumptions of guilt. The environment should be neutral, where

the accused can have the opportunity to share their side of the story without judgment.

The accused should be informed of complaint’s allegations but try to reveal such allegations

during the interview rather than before the conversation begins. The investigator does not need

to disclose who filed the complaint.

6. Interview Witnesses

If either party mentions any witnesses, interview them using the Investigation Report

Questionnaire. Focus on key witnesses who can influence the investigation’s outcome.

Witnesses should understand that their insights are crucial to the investigation and that their

input matters. Create a secure environment where they can speak freely without fear of

retaliation or judgment from either party.

7. Gather Evidence

If needed, visit the worksite, review video footage, take photos, or gather any other relevant

evidence.

8. Reach a Conclusion

First, the investigator should interview the complaining party in-person using the

Investigation Report Questionnaire. The investigator should create an environment where the

complaining party feels safe to speak freely without fear of retaliation and judgment. The

investigator should actively listen and show empathy, ensuring the complaining party feels their

concerns are being taken seriously.

5. Interview the Accused

Next, interview the accused employee in-person using the Investigation Report

Questionnaire. The accused should be treated with the same respect and dignity as the

complaining party, avoiding any assumptions of guilt. The environment should be neutral, where

the accused can have the opportunity to share their side of the story without judgment.

The accused should be informed of complaint’s allegations but try to reveal such allegations

during the interview rather than before the conversation begins. The investigator does not need

to disclose who filed the complaint.

6. Interview Witnesses

If either party mentions any witnesses, interview them using the Investigation Report

Questionnaire. Focus on key witnesses who can influence the investigation’s outcome.

Witnesses should understand that their insights are crucial to the investigation and that their

input matters. Create a secure environment where they can speak freely without fear of

retaliation or judgment from either party.

7. Gather Evidence

If needed, visit the worksite, review video footage, take photos, or gather any other relevant

evidence.

8. Reach a Conclusion

After gathering the facts, fill out our Investigation Report. The report will be used in the

event of a lawsuit as it provides a formal record of the facts, findings, and outcomes of the investigation.

When reviewing the Investigation Report, assess the credibility of both parties and the facts.

Once a decision is made, inform the complaining party of the outcome. Explain the rationale

behind the decision, including key evidence or factors that influenced the outcome.

9. Take Remedial Action

If misconduct is proven, take appropriate steps to address the issue.

A. Serious Misconduct: The guilty party should face significant disciplinary action, such

as a last-chance agreement or termination of employment.

B. Minor Misconduct: The guilty party should receive a less severe response, such as a

written reprimand, refresher training, or other less severe consequences.

10. Follow-Up

Check in with the complaining party to ensure they are not facing retaliation. Follow up

regardless of whether the allegations were proven or not.

Recommended Practices for Conducting Workplace Investigation

1. Impartiality: The investigation should focus on the facts, and the investigator must ensure

they are impartial.

If the investigator has any biases, an impartial individual should conduct the investigation instead.

2. Type of Questioning: The investigation should be conducted in a neutral, non-confrontational

manner, ensuring neither party feels attacked.

Investigators should ask open-ended questions to gather comprehensive information from all parties and witnesses.

3. He Said - She Said: Direct witnesses may not always be present, but other evidence can

support or weaken the claim.

For example, if the complaining party was visibly upset or shared their experience with

someone, it can enhance their credibility.

Additionally, emails or texts may either strengthen or undermine a witness's credibility.

4. Credibility: Credibility factors include the following:

i. Inherent Plausibility – Whether the facts are reasonable and whether the story holds together.
ii. Motive to Lie – Based on the existence of bias, interest, or other motive.
iii. Corroboration – Whether a direct or indirect witness corroborates some or all of the allegations.
iv. Party’s Recollection – Whether a witness was able to perceive, recollect, or communicate about the matter.
v. History of Honesty/Dishonesty – Does either party, or both, have a history of dishonest character.
vi. Inconsistent Statements – Whether the individual giving statements are inconsistent.

5. Burden of Proof: The investigator should make findings based on a “more likely than not” standard.

The investigator is making a finding that “more likely than not” the conduct alleged occurred or did not occur.

6. Documentation: The investigator should carefully document witness interviews, the findings made, and the steps taken to investigate the matter.

Interviews should be made on a consistent basis, unless there is a good reason to change the usual practice of taking interviews.

Remedial Measures for Minor Misconduct

A written reprimand is a formal document issued by an employer to address an

employee's misconduct. The written reprimand provides a formal record of the misconduct,

which could be crucial for future legal protections.

Written Reprimand Procedure

1. Draft

Using the Written Reprimand Template, clearly describe the behavior or action that led

to the reprimand, including dates, and specific details.

2. Schedule a Meeting

Set up a confidential meeting with the employee to discuss the written reprimand.

3. Present the Document

During the meeting, present the written reprimand to the employee, explaining its

contents. Clearly communicate the reasons for the written reprimand and allow the employee to

respond and ask questions.

1. Written Reprimand

4. Obtain Employee Signature & Record Keeping

Have the employee sign the written reprimand to acknowledge receipt of it. Make two

copies of the signed written reprimand – One for the employee and one in the employee’s

personnel file for future reference and provide the employee his/her copy. Do not wait to provide it.

5. Follow-Up

Observe the employee’s conduct following the written reprimand to ensure compliance with

the outlined expectations. Another violation of the company’s policy should result in more

serious remedial measures.

2. Refresher Training

Refresher Training Procedure

1. Schedule the Training

The refresher training must be during working hours. Instruct the employee to arrange the

training at a time that minimizes disruption to work schedules and allows for full participation.

2. Conduct Training

Instruct the employee to print and sign the certificate provided at the end of the training.

Allow the employee to watch the training content. Link to Training

3. Record Keeping

Keep the signed certificate in the employee’s personnel file for future reference.

4. Follow-Up

Observe the employee’s conduct following the refresher training to ensure compliance with

the outlined expectations. Another violation of the company’s policy should result in more

serious remedial measures.

Remedial Measures for Serious Misconduct

1. Performance Improvement Plan (PIP)

A Performance Improvement Plan (PIP) is a formal document that outlines clear

expectations and measurable goals to help an employee address performance or conduct

concerns. Its purpose is to provide structured guidance and support to improve job performance,

encourage professional growth, and align the employee’s contributions with company standards.

PIP Procedure

1. Draft

Use the PIP template to outline the employee’s performance or behavioral goals. Specify

measurable expectations, the support provided (e.g., training, mentoring), and the duration of the

plan (typically 30, 60, or 90 days, depending on the issue). Clearly explain the consequences if

the plan is not successfully completed.

2. Schedule a Meeting & Present the Agreement

Hold a private meeting with the employee to review the PIP. Discuss the specific

performance concerns, explain the goals, and emphasize the support available. Make sure the

employee understands the expectations, the timeline, and the consequences of not meeting the

plan’s objectives.

3. Obtain Acknowledgement

Have both the manager and the employee sign the PIP to acknowledge understanding.

Provide one copy to the employee and keep one in the personnel file for documentation. Ensure

to provide the PIP at the time of the meeting.

4. Regular Check-Ins

Schedule periodic check-ins (e.g., weekly or biweekly) to discuss progress, provide

feedback, and offer guidance or resources. Ensure that the feedback is specific and constructive

rather than vague or generalized, as clear direction helps the employee understand exactly what

needs to be improved and how to achieve it. Document each meeting to track improvements or

continued challenges.

5. Assess Performance & Decide on Next Steps

At the end of the PIP period, evaluate whether the employee has met the outlined

expectations:

i. Continue Employment - If expectations are met.

ii. Extend the Agreement - If progress is shown but further improvement is needed.

iii. Terminate Employment - If expectations are not met.

2. Termination

By addressing serious workplace misconduct through termination, employers not only

may fulfill their legal obligations but also foster a safe and respectful work environment,

ultimately protecting their business from legal and reputational risks.

Termination Procedure

1. Draft Documentation

By addressing serious workplace misconduct through termination, employers not only

may fulfill their legal obligations but also foster a safe and respectful work environment,

ultimately protecting their business from legal and reputational risks.

Termination Procedure

1. Draft Documentation

Fill out our Termination Letter Template and Final Paycheck Acknowledgement

Template outlining key terms and information regarding the termination.

2. Plan the Meeting

After drafting the Termination Letter and Final Paycheck Acknowledgment forms,

schedule a private meeting with the employee to discuss the termination.

3. During the Meeting

Clearly explain the reason for the termination without being confrontational. Stick to the

facts and avoid personal judgments. Give the employee a chance to ask questions and express

their feelings but maintain control of the conversation.

4. After the Meeting

i. Hand the employee the Termination Letter and the Final Paycheck Acknowledgement.

ii. Immediately revoke access to company systems, email, and any confidential

information.

iii. Notify team members or departments as necessary, maintaining confidentiality about

the specific reasons for termination.

5. Record Keeping

It is vital to keep the Complaint Form, Investigation Report, Termination Letter,

Final Paycheck Acknowledgement in the employee's personnel file. These documents are vital

for protecting your business in the event of a lawsuit, as they provide a clear, documented history

of the actions taken during the investigation and termination process.

Workplace Retaliation

It is crucial that the complaining party and anyone who cooperates in a workplace

investigation are protected from any form of retaliation. Retaliation is illegal and can also

undermine the integrity of the investigation and discourage employees from coming forward in

the future.

The employer must clearly communicate to all parties involved—the complaining party, the

accused, and witnesses—that retaliation is strictly prohibited. This should be emphasized both

verbally and in writing at the outset of the investigation. It should be made clear that any form of

retaliation, no matter how subtle, is illegal and will be taken seriously.

What To Look For

Employers should be on the lookout for the following signs of workplace retaliation:

Sudden Negative Treatment: An employee who recently reported misconduct, filed a complaint, or participated in an investigation suddenly receives negative performance reviews, disciplinary actions, or demotions without a clear, justifiable reason.

Unwarranted Job Changes: The employee is reassigned to less desirable tasks, shifts, or locations, or their job responsibilities are reduced after engaging in protected activities. Increased Monitoring: The employee experiences heightened scrutiny or micromanagement following their involvement in a complaint or investigation, especially if this behavior is not typical of their supervisor.

Isolation or Exclusion: The employee is excluded from meetings, decision-making processes, or team activities they were previously involved in, particularly after they voiced concerns or exercised their rights.

Termination: The employee is fired or forced to resign shortly after reporting issues, filing complaints, or participating in legal activities, especially if the termination lacks clear justification.

Hostile Behavior: The employee is subjected to harassment, bullying, or other hostile behaviors from supervisors or coworkers after reporting issues, filing complaints, orasserting their rights.

Retaliatory Comments: Supervisors or coworkers make negative remarks about the employee’s protected actions, such as criticizing them for filing a complaint or expressing dissatisfaction with the company’s practices.

Key Takeaways

1. Can the Investigator Keep the Complaint Confidential?

No. The employer can only promise limited confidentiality. Meaning, the information will

be limited to those who “need to know.” An investigator cannot promise complete

confidentiality because it can be necessary to reveal information obtained during the

investigation to complete the investigation and take appropriate action.

Family, Medical, & Pregnancy LeaveFamily, Medical, & Pregnancy Leave

Family and Medical Leave Act - Overview

The Family and Medical Leave Act (FMLA) is a federal law that provides eligible

employees with unpaid, job-protected leave for general family and medical reasons. This

includes the birth or adoption of a child, the employee’s own serious health condition, and

certain military-related reasons.

California Family Rights Act - Overview

The California Family Rights Act (CFRA) is a California law that provides eligible

employees with unpaid, job-protected leave for specific family and medical reasons such as, the

birth or adoption of a child, and the employee’s own serious health condition. Unlike the FMLA,

the CFRA does not cover pregnancy-related disabilities. That’s where the PDL applies.

Pregnancy Disability Leave - Overview

The Pregnancy Disability Leave (PDL) is a California law specifically for pregnancy

and childbirth-related conditions. Leave can be taken for pregnancy, childbirth, or related

medical conditions. The PDL is applied together with the CFRA, meaning an employee may take

PDL for pregnancy-related issues and CFRA for bonding with the child.

Family and Medical Leave Act

Employer Eligibility Requirements

An employer must comply with the FMLA if:

1. The employer employs 50 or more employees, and

2. They are employed in 20 or more workweeks in either the current calendar year or

previous calendar year.

Employee Eligibility Requirements

Permanent, temporary, recurrent, and part-time employees are eligible for FMLA.

To be eligible for FMLA, the employee:

1. Must work for an eligible employer for at least 12 months,
2. Must have worked at least 1,250 hours during the 12-month period before the

employee’s first day of leave begins, and

3. The employer has at least 50 employees within 75 miles of the company’s workplace.

Note: “Hours worked” includes overtime, but does not include sick leave, vacation, etc.

Qualifying Reasons for Leave

Under the FMLA, an employee can take leave for:

1. The employee’s own “serious health condition,”
2. To care for the employee’s spouse, child, and parent with a “serious health condition,”
3. The birth or care of the employee’s newborn child, and
4. The adoption or foster care placement of a child with the employee

Serious Health Condition - Definition

An illness, injury, or physical or mental condition that involves either (a) inpatient care in a

hospital, hospice, or residential health care facility or (b) continuing treatment or supervision by

a healthcare provider.

Includes: Multiple treatments for serious conditions like cancer or severe arthritis, any

chronic condition requiring periodic medical visits, etc.

Excludes: Common colds and flu, headaches, cosmetic treatments, etc.

Employee’s Entitlement under the FMLA

Generally

Under the FMLA, an eligible employee can take a maximum of 12 workweeks of unpaid

leave during a 12-month period. The 12-month period begins the 1st day the employee uses

his/her FMLA leave. For example, if Bob starts his FMLA leave on March 1, 2022, then his 12-

month leave period would run to February 28, 2023.

If an employee has multiple reasons for FMLA or CFRA leave in the same year, they are

still limited to a total of 12 workweeks for all reasons combined.

Intermittent Leave

An eligible employe also has the option to take intermittent leave under the FMLA.

Intermittent leave allows an employee to take leave in separate blocks of time. Rather than

taking continuous leave, an employee might take hours, days, or weeks off intermittently,

depending on medical needs. If an employee decides to take intermittent leave, the “leave year”

begins on the date the leave is certified, even if the employee does not take leave right away.

Each time the employee uses FMLA or CFRA leave, it is deducted from their total 12-week

entitlement.

Example

Pam takes four weeks of FMLA and CFRA leave beginning on October 19, 2014 to take

care of her child’s serious health condition. Pam’s 12-month leave year begins October 19, 2014

and ends October 18, 2015.

On January 9, 2015, she again requests 12 workweeks of FMLA and CFRA leave to take

care of her spouse’s serious health condition. Because it is still within the same leave year, only

eight weeks of FMLA and CFRA leave are available. She would not be eligible for a new 12

workweek allotment until October 19, 2015 (provided all other eligibility requirements are met)

but can use the remaining eight weeks.

Military Caregiver Leave & Qualifying Exigency Leave Eligibility

To be eligible for FMLA’s Military Caregiver Leave or Qualifying Exigency Leave, the

employee:

Must be the son, daughter, parent, or next of kin of a current or veteran covered service

member.

Military Caregiver Leave & Qualifying Exigency Leave Entitlement

Military Caregiver Leave entitles an eligible employee with 26 workweeks of unpaid

leave for the spouse, child, parent, or next of kin of a current or veteran covered service member

to recover from illness or injury sustained within the last five (5) years.

The injury must have occurred while on active duty. The Military Caregiver Leave is

applied on a per-injury, per covered service member basis. Meaning an employee can take

leave for each separate injury or illness of a covered service member.

Qualifying Exigency Leave entitles an eligible employee with 12 workweeks of unpaid

leave for any “qualifying exigency” arising from the spouse, child, or parent’s call to active

duty.

Qualifying Leave Reasons for Military Caregiver Leave & Qualifying Exigency Leave

Under the FMLA’s Military Caregiver Leave, an employee can take leave for:

1. A current or veteran Armed Forces member’s serious injury or sustained within the last

five (5) years.

Leave is granted on a per injury/illness basis.

Under the FMLA’s Qualifying Exigency Leave, an employee can take leave for:

1. Any “qualifying exigency” that arises from the service member’s call to active duty in a

foreign country.

What “Qualifying Exigency” Includes

1. Short-Notice Deployment – Handling urgent issues due to a military member's deployment

notice within seven days.

2. Military Events & Activities – Attending official military events or support programs

related to the service member's active duty.

3. Childcare & School Activities – Arranging childcare or attending school events for the

military member’s child.

4. Financial & Legal Arrangements – Updating legal or financial matters during the service

member’s active duty.

5. Counseling – Attending counseling related to the service member’s active duty for the

family or military member.

6. Rest & Recuperation – Spending up to 15 days with a service member on short-term leave.
7. Post-Deployment Activities – Attending ceremonies and addressing issues following

active duty, including post-death arrangements.

8. Additional Activities – Other agreed-upon events related to the service member's active

duty.

9. Care for Military Member’s Parent – Providing care for a military member’s parent

impacted by their active duty.

Job Protection and Health Benefits

During FMLA leave, if the employer normally pays for an employee’s group health

benefits, the employer must pay for the continuation of the employee’s group health benefits. It

must be continued on the same basis and under the same conditions as were applicable prior to

the leave.

Upon returning from FMLA, the employee must be reinstated to the same or equivalent

position.

Qualifying Reasons for Leave

Under the FMLA, an employee can take leave for:

1. The employee’s own “serious health condition,”
2. To care for the employee’s spouse, child, and parent with a “serious health condition,”
3. The birth or care of the employee’s newborn child, and
4. The adoption or foster care placement of a child with the employee

Serious Health Condition - Definition

An illness, injury, or physical or mental condition that involves either (a) inpatient care in a

hospital, hospice, or residential health care facility or (b) continuing treatment or supervision by

a healthcare provider.

Includes: Multiple treatments for serious conditions like cancer or severe arthritis, any

chronic condition requiring periodic medical visits, etc.

Excludes: Common colds and flu, headaches, cosmetic treatments, etc.

Employee’s Entitlement under the FMLA

Generally

Under the FMLA, an eligible employee can take a maximum of 12 workweeks of unpaid

leave during a 12-month period. The 12-month period begins the 1st day the employee uses

his/her FMLA leave. For example, if Bob starts his FMLA leave on March 1, 2022, then his 12-

month leave period would run to February 28, 2023.

If an employee has multiple reasons for FMLA or CFRA leave in the same year, they are

still limited to a total of 12 workweeks for all reasons combined.

Intermittent Leave

An eligible employe also has the option to take intermittent leave under the FMLA.

Intermittent leave allows an employee to take leave in separate blocks of time. Rather than

taking continuous leave, an employee might take hours, days, or weeks off intermittently,

depending on medical needs. If an employee decides to take intermittent leave, the “leave year”

begins on the date the leave is certified, even if the employee does not take leave right away.

Each time the employee uses FMLA or CFRA leave, it is deducted from their total 12-week

entitlement.

Example

Pam takes four weeks of FMLA and CFRA leave beginning on October 19, 2014 to take

care of her child’s serious health condition. Pam’s 12-month leave year begins October 19, 2014

and ends October 18, 2015.

On January 9, 2015, she again requests 12 workweeks of FMLA and CFRA leave to take

care of her spouse’s serious health condition. Because it is still within the same leave year, only

eight weeks of FMLA and CFRA leave are available. She would not be eligible for a new 12

workweek allotment until October 19, 2015 (provided all other eligibility requirements are met)

but can use the remaining eight weeks.

Military Caregiver Leave & Qualifying Exigency Leave Eligibility

To be eligible for FMLA’s Military Caregiver Leave or Qualifying Exigency Leave, the

employee:

Must be the son, daughter, parent, or next of kin of a current or veteran covered service