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In this Newsletter: How Onboarding Can Make or Break Your Likelihood for Liability or Productivity
What do we mean by Onboarding?   According to the Corporate Leadership Counsel, there are six roadblocks to a new executive's success.  One of those, confusion about role expectations, is the focus of this Newsletter.  We want your onboarding documents and practices to educate your new hire on "What is Expected of Me?" while reducing your risk of legal exposure. 
In this Newsletter,  you will find the following tips and tools for Onboarding:
In our next issue, we will continue the dialogue on Onboarding Employees in a Sustainable Workplace: What Should Your Hiring Documents and Practices Include to Create Clear Expectations That Will Protect Your Company?  If you would like to see prior Newsletters,  click here.
Ten "Must Haves" For Your Onboarding Checklist

At this critical step on the road of employment, you have a real opportunity to create clear expectations and protect your workplace.  Here are ten considerations for onboarding new employees:
1.    Before you make your offer:  Have you required that the applicant consent to a background investigation and provided the applicant with notices required by law?  Most employers require (and we recommend) at least a minimum background search on a potential employee.  Doing so protects you from negligent retention claims and, more importantly, helps you identify the right candidate.  Remember, California and federal law require that before you conduct a background search you provide the employee with notice of their rights under the Fair Credit Reporting Act and the California equivalent and that you obtain consent for the search.
2.    You are ready to make an offer: Provide your applicant with a carefully considered and drafted offer letter.  The offer letter confirms the expectations you outlined for the applicant in the interview process, and is your first meaningful opportunity to create a written summary of your shared expectations.  Be sure to identify conditions that have to be met before employment can begin.  The contents of an ideal offer letter are discussed below.
3.    After you make your offer but before employment begins: Conduct your reference check and background search, including a drug test if you require one.  If you reject an applicant based on the findings of a background search before they are hired, then you are refusing to hire.  If you reject an applicant based on the findings after the employee has started, you need to terminate the employment relationship.
4.    Require that the employee complete a tailored confidentiality agreement before the employee may begin work.  Take steps to protect your Company's crown jewels before you share them with the employee.  Stay tuned: detailed information on ways to protect your company’s proprietary and trade secret information (and the contents of an ideal confidentiality agreement) will be the subject of a future Newsletter. 
5.    Introduce your Company’s tailored employee handbook.  Invest time and energy first in creating a handbook that accurately reflects your Company's vision and values, and the behaviors that you will reward or penalize.  (The employee handbook will be the subject of next month’s Newsletter).   Then spend time with the employee and the handbook to be certain that your expectations are clearly communicated.
6.    Require that employees acknowledge receipt of and opportunity to review the employee handbook.  Not only does this provide another opportunity to communicate your expectations, it provides an opportunity for you and the employee to confirm the Company's commitment to at-will employment.
7.    Satisfy your obligation to provide employees with information on sexual harassment.  Provide employees with a "What is Sexual Harassment" pamphlet from the Department of Fair Employment and Housing.  You may want to include training on your Company's commitment to equal opportunity and its prohibition of unlawful harassment or discrimination.

8.    Provide the employee with legally mandated information.  This includes California brochures on state disability, unemployment and paid family leave, initial information on COBRA entitlement, Facts for Injured Workers, and with Health Insurance Portability & Accountability Act Disclosures.
9.    Collect required information from the employee.  In addition to other items listed here, you will ask the employee to complete an I-9 form verifying his right to work in the United States (form to be completed prior to employment and proof of right to work in the U.S. to be provided within 3 days of hire), ask the employee to designate a personal physician, chiropractor or acupuncturist, collect federal and state tax forms, and identify emergency contact information.
10.     Provide the employee with a template of your performance evaluation form and process.  What better way to share expectations than to let employees know on day one (ideally before!) the criteria by which their performance will be judged.  Be mindful, this document should not be "off the shelf," but should truly capture your Company's vision for performance, the qualities that you value in an employee, and the outcomes that will demonstrate that this employee is meeting expectations.
If you need help putting any of these processes in place, give us a call at 619 906 2400 or click here.
Does Your Offer Letter Protect You From Liability?  Here's What It Should Include
An offer letter is an oft overlooked opportunity to capture shared expectations.  At the point of making the offer, you and the applicant should have a shared vision of the terms and conditions for the position.  The offer letter should capture that shared vision, and at the same time afford the Company the opportunity to adjust these terms and conditions to an ever-evolving workplace.

This may be a document to which you refer down the employment road, when you need to emphasize the Company's expectations, so be mindful of both its present and future importance.
1.     Reduce your risk of claims for breach of contract: Be clear that the benefits and terms are subject to modification at the Company's sole discretion.  An offer letter should be a living document.  It captures the benefits and conditions the Company is able to offer today, while reserving the right to increase or decrease those benefits as the workplace changes.
2.     Reduce your risk of claims for unpaid wages by confirming the position's exempt or non-exempt status before you make the offer.  Take the time up front to know whether a position may be paid on a salary basis (without overtime) or whether the employee is entitled to overtime.  Then capture that determination in the offer letter.
3.     Reiterate your expectations by incorporating the job description.  You have invested time up front to become clear on the position for which you are hiring.  You have communicated in every step of the pre-hire process the outcomes you anticipate and the qualities you value.  Attaching the job description to the offer letter is another opportunity to articulate these expectations, and to secure the applicant's commitment to the shared vision. 
4.     Require commitment to your employee handbook.  As mentioned above, the Handbook is a roadmap for behavior expectations for your workplace.  The offer letter should remind employees that their employment is conditioned on compliance with these expectations.
5.     Include a shared understanding of the Company's at-will policy.  Employees and the Company have a presumed right in California to terminate the employment relationship at any time and for any lawful reason, with or without notice and with or without cause.  An "integrated document" by which the employee agrees in writing that all aspects of the relationship are "at-will" (including that both the terms and conditions of employment and the relationship may be modified or terminated at-will) and that this at-will agreement trumps any prior verbal or written promises and protects the Company from subsequent claims by an employee that she had any reasonable expectation of employment that only could be terminated for "good cause."   If you intend to pay any severance in the event employment is terminated at-will (a benefit that should be reserved for senior-most executives), you can note that here with the conditions for such severance.  Remember, any severance you offer should be expressly conditioned on execution of a release.
6.     Describe compensation on a pay period basis.  The present compensation for the position should be described without any suggestion that the employment is guaranteed for a specified period.  If you feel strongly about describing the "annual" salary, then include a pay period amount along with a statement of what the salary would be if annualized.   
7.     What about describing benefits, like insurance or vacation or equity or bonus?  If the position is eligible for these benefits, then we recommend that you note the eligibility here but not describe it in detail.  Instead, refer the applicant to the documents that control the benefit (for example, to the insurance plans in place at the time, to the employee handbook, to a separate option agreement or a bonus plan).  The risk of including the description here is that you may end up with contradictory documents. You want the actual plan documents to control and the freedom to modify those plans without having to also modify the offer. 
8.     Condition the offer on the applicant's compliance with certain requirements.  Specifically, be clear that in order to become an employee, the applicant must execute the Company's confidentiality agreement and must demonstrate that she is authorized to work in the United States.  If a successful background check is required for employment, let the employee know.  As outlined above, employment should not begin until the pre-conditions are satisfied!
9.     Include a date by which the offer must be accepted. After a certain period of time, the offer should expire.
10.     Require that the employee execute the offer in order to accept it.  In this way, you have created a contract (which is particularly important for confirming the at-will relationship) and more important a confirmation that you have articulated shared expectations for the position.  
We are here for you if you need any help with your offer letter.  You can give us a call at 619 906 2400, or click here.
Your Turn: Take the Sustainable Workplace Quiz
Read through this short story, and take our quick quiz.
CC Computing has spent months looking for a new salesperson.  Several hires have resulted in dismal failure.  CC is ecstatic to meet Calvin, who seems to meet all of its ideals for a salesman.  Calvin receives his offer letter that includes that his employment is conditioned upon successful completion of a background search, including a drug test. 
To the Company's delight, Calvin accepts!  He quits his position as VP of Sales for Competitor Computing and immediately is sent to Connecticut for training.  By all reports he is knocking the socks off the trainers and even has wowed some potential customers. 
Back in California, Connie in HR receives the results of Calvin's drug test.  Calvin has tested positive for marijuana.  The Company has a strict policy that it will not hire anyone who tests positive, and also has a drug and alcohol policy for its employees. 
On his return, Calvin explains that he uses medical marijuana to combat the side effects of the chemotherapy he is on.  
Quick Quiz: Calvin and the Drug Test
       1.     May the Company lawfully rescind its offer to Calvin? 
       2.     Can the Company terminate Calvin's employment? 
       3.     What about Calvin's legal right to use medical marijuana in California? 
       4.     What claims could Calvin raise if the Company decides to terminate him? 
      5.     The Company really, really wants to keep him (after all, he is knocking off socks).  What are the risks? 
To see our thoughts and recommendations, click here.  
How Can We Help?
Above are the steps that you can use to begin your Sustainable Onboarding Process. 
If you would like additional help, we offer the following resources:  
1.     The Sustainable Onboarding Review: we are happy to review your existing onboarding processes and to make suggested changes to enhance and protect your workplace.
2.     Creating Onboarding Documents: the documents you utilize to bring in new employees arguably are the most important tools in your workplace for increasing productivity and decreasing the risk of liability.  We can work with you to create a roadmap for workplace success.   
Give us a call or e-mail Schor Vogelzang & Chung if we can be of any help in this process.  
Keep an eye out for next month's newsletter for additional tips on creating the Sustainable Onboarding Process. 

Schor Vogelzang & Chung LLP

Partnering to create your great workplace!

2170 Fourth Avenue, San Diego, CA 92101
P: 619.906.2400 F: 619.906.2401


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