TPO's Employment Update

 

n  TPO Conference

n  Legislative Update

n  Workers' Comp

n  HR Rumors

 

 

Training Calendar

CA Employment Essentials (HR101)

- a training series focusing on the regulatory compliance and HR best practices - the information & skills supervisors & managers need to keep themselves and the organization out of hot water!

n Oct - Nov '06

Management Excellence Series

- a training series focusing on practical leadership and communication skills to help managers develop or refine their effectiveness as leaders!

n March '07

Specialized Workshops

n Prevention of Harassment Nov 15

n FMLA/CFRA/PDL Compliance March 7

n Excelling as a First Time Manager Apr 18

n I'd Rather Not Discuss It June 12

 

TPO has joined forces with the largest law firm in the United States focusing exclusively on labor and employment law to present our 2007 Employment Law & Leadership Conference.

Mark your Calendar...

this WILL sell out!

Tuesday, January 30, 7:45am 4:30pm

Embassy Suites Monterey Bay


Who Should Attend?

Business Owners, Managers, HR, Risk Management and Legal Counsel for Public, Private and NonProfit Organzations

CLE Credits

This program is approved for 5 hours of continuing legal education credit by the State Bar Association of California

PHR/SPHR Certification Credits

This program is approved for 5 recertification credit hours toward PHR and SPHR recertification through the Human Resource Certification Institute (HRCI).

Details provided in upcoming newsletters, or call our office to learn more!

 

 

The 2005-2006 California legislative session ended on August 31, 2006 ending with many new bills passed into law, as well as a number of bills that were vetoed in this legislative session.

Don't miss the TPO/Littler 2007 Employment Law & Leadership Conference on January 30 at Embassy Suites Monterey Bay. Call TPO for more details!


PASSED INTO LAW

MINIMUM WAGE AB 1835: Raises California's minimum wage from the current $6.75 to $7.50 an hour on January 1, 2007, and to $8.00 an hour on January 1, 2008, creating the highest state minimum wage in the nation.

The increase will have an impact on other aspects of employee compensation under California law, including:

1. Salary Test: Minimum salary requirements for employees in exempt positions will increase. California law requires exempt employees, in addition to other requirements, to be paid a minimum salary of two times the state minimum wage.

The minimum annual salary necessary to meet the exempt requirement will increase from the current $28,080, to $31,200 in 2007, and to $33,280 in 2008. If you have an employee in a white-collar, exempt position, s/he cannot earn less than those amounts.

2. Commissioned Inside Sales Employees: Such employees may be exempt from overtime under Wage Orders 4 and 7 if, in addition to other requirements, they earn at least 1.5 times the minimum wage for all hours of work.

3. Collective Bargaining Exemption: Many union employers rely on a collective bargaining exemption from overtime. This exemption permits employers to exempt employees from the state's overtime requirements who are covered by a valid collective bargaining agreement. To qualify for the exemption, the agreement must provide for the wages, hours, and working conditions of employees, premium wage rates for all overtime hours worked, and a regular hourly rate of pay of at least 30 percent more than the state minimum wage.

4. Compression: When increasing a minimum wage worker's pay to the new required level, other worker's who were earning an hourly wage close to the minimum wage may in turn, feel entitled to an increase as well. A ripple effect can be created beginning at the prior minimum wage and moving outward!

5. Other Payroll-Related Expenses: Many payroll expenses are tied to the compensation employees receive, with corresponding increases in general payroll costs, such as: Workers' Compensation, Unemployment Insurance, Social Security and Medicare.

PRE-DESIGNATE OF PHYSICIAN AB 2068: Extends the right of employees to pre-designate a physician until 2009. Employees were given the right to pre-designate their personal physician as their workers' compensation doctor in SB 899. That right was scheduled to sunset in 2007 until AB 2068 was signed into law.

HANDS-FREE DEVICES WHILE DRIVING SB 1613: Makes it an infraction to drive a motor vehicle while using a wireless phone unless a hands-free device is used. In particular, the new law, known as the California Wireless Telephone Automobile Safety Act, prohibits driving a motor vehicle while using a wireless telephone, unless the phone is configured to allow hands-free listening and talking and is used in that manner while driving. Violations carry a fine of $20 for the first offense and $50 for subsequent offenses. The law will take effect on July 1, 2008.


VETOED

PERMANENT DISABILITY SB 815: Would have doubled the Workers' Compensation permanent disability payout over a three year period.

ACUPUNCTURE SERVICES AB 2287: Would have required employers to cover acupuncture services in the workers' compensation system outside of the treatment guidelines and utilization standards adopted in workers' compensation reforms. The use of nationally recognized medical guidelines was an important part of reforming California's runaway workers' compensation system.

HEALTHCARE MANDATE SB 1414: Would have required large employers to spend 8% of their total payroll on health care or pay the equivalent amount to the state.


FAILED TO PASS OUT OF LEGISLATURE

4-Day Workweek SB 1254 and AB 2217: Would have allowed employees to request, and employers to approve, a four-day workweek.

You won't want to miss the TPO/Littler 2007 Employment Law & Leadership Conference on January 30 at Embassy Suites Monterey Bay. Call TPO for more details!

You're not alone...
reading this nuts and bolts information will help!

Many times, we receive distress calls from clients with concerns that cross the spectrum of claim management, such as: determining if the injury is first aid or recordable; how to ensure employees attend medical appointments with the occupational clinic; handling employees who don't attend medical appoints or follow their work restrictions; return to work; and accommodating restrictions on the job.

To avoid getting frustrated with the workers compensation process, it's important to get back to the basics of managing a claim.

When a Workplace Injury Occurs

When a workplace injury occurs, it is important to provide whatever emergency medical care is necessary, then determine if the injury is considered first aid or recordable.

First Aid

First aid is defined as any one-time treatment and any follow-up visit for the purpose of observation of minor scratches, cuts, burns, splinters, or other minor industrial injuries, which do not ordinarily require medical care.

Recordable

If the injury results in one of the following, it is considered recordable and must be recorded on the Cal/OSHA 300 log: Death; days away from work; loss of consciousness; restricted work or transfer to another job; medical treatment beyond first aid; a significant injury/illness diagnoses; all work-related needle-sticks and cuts from sharp objects that are contaminated with another persons blood or potentially infectious material; certain cases involving exposures to tuberculosis.

In the event of a recordable injury: Provide the employee with the Employee's Claim Form for Workers' Compensation Benefits form (DWC Form 1). Contact your workers' compensation carrier and file the Employer's First Report of Occupational Injury and Illness form (DLSR Form 5020) no later than five days after the injury occurs. Record the incident on the Cal/OSHA 300 log, and in some cases you may need to contact Cal/OSHA directly to report the injury.

Finally, it's very important to investigate the incident and take corrective action, if appropriate.

Managing the injured worker and communicating expectations

This can prove to be the most difficult aspect of the claim. One common myth is that employers can not discipline or terminate employees who have filed a workers' compensation claim. As noted, that is a myth as a workers' compensation claim is not an employee's free ticket to poor performance and attendance. You can manage poor performance and must do so diligently through proper communication with the employee, by following a progressive discipline process, and maintaining good documentation.

Below are some tips on how to successfully manage a claim and scenarios we commonly see in the work place.

When an injury occurs, tell the employee you are concerned about their well-being and that you want to do everything possible to help them recover and come back to work. Familiarize the employee with the workers' compensation process and their responsibility to complete necessary claim forms, attend medical appointments, adhere to work restrictions, and to maintain a satisfactory level of work performance and attendance. Also, inform the employee what impact any lost time will have on their pay, medical benefits coverage, and vacation/sick accrual. For employers with 50 or more employees, designate all workers' compensation leaves as FMLA/CFRA.

Calendar and track the employee's appointments with medical providers. Contact the employee before each appointment to remind them of the appointment. Call the medical provider after any scheduled appointment if you do not receive a treatment report. Work with the medical provider to establish light duty guidelines for the injured employee.

Common scenarios

Employees don't complete and return the DWC Form 1. This doesn't relieve you of your obligation to report the injury to the carrier. Document when you gave the DWC Form 1 to the employee and attempts made to contact the employee to obtain the completed form.

The employee refuses to file a claim for their work-related injury. A claim still must be filed and reported to the carrier and an investigation completed if applicable. The carrier will determine how to handle the claim and if the employee should complete a waiver to waive medical treatment under the workers' compensation system. In this case, if the employee is unable to perform all tasks of the job, in a satisfactory manner, then the situation becomes a performance issue and you should follow your company's progressive discipline process.

The employee files a claim and misses medical appointments. Meet with the employee each time he/she misses an appointment and inform him/her that it is not acceptable to miss their appointments. Inform the employee that missed appointments can negatively affect their claim and timely payments, and is considered unsatisfactory performance as the employee is expected to attend their appointments. Follow your progressive discipline process for unsatisfactory work performance, and notify your carrier immediately.

The employee is not adhering to the medical providers' work restrictions. Meet with the employee each time you are made aware that he/she is not complying with work restrictions. Inform the employee that he/she is required to adhere to the medical restrictions and it is expected as part of their job. Failing to adhere to the work restrictions could negatively impact their claim and payments, cause further injury, and is considered unsatisfactory performance. Follow your progressive discipline process for unsatisfactory work performance, and notify your carrier immediately.

CAUTION!! In any of the above scenarios, it is critical to keep your workers' compensation carrier and human resource contact abreast of the issues each step of the way. If the employee's performance doesn't improve, you may need to consider termination but only after having reviewed the circumstances surrounding this case with your human resource contact, your carrier, and legal counsel if appropriate.

Work Accommodations/Light Duty

It is essential for the company to review the work restrictions with the medical provider and evaluate whether or not the company can reasonably accommodate the restrictions. It's also important to engage in an interactive process with the employee. What that means is, talk with the employee about the work restrictions (or needed accommodations) and discuss any suggestions or ideas the employee and company may have about how to make the accommodations. The company may, and can, determine they can't accommodate the restrictions or provide modified work for the employee based on business needs. Later, if business circumstances change, the company can re-evaluate the situation and determine if they can accommodate the restrictions.

It is highly recommended that the company make every effort to have light duty work available. There are so many benefits to returning injured employees back to work, such as, employees typically heal faster, their morale is higher, they feel as if the employer cares about them, and the employee feels engaged and wants to recover. Keep in mind, light duty assignments can be in other departments doing very different tasks over their normal job prior to the injury.

For more information about workers' compensation administration, give us a call!

HR Rumors: Get Your Facts Straight from the Experts!

I received some advice from a professional source stating we didn't need at-will language in our employee handbook. Is that true?

FactThe at-will rule has its genesis way back in a rule in Horace Gay Wood's 1877 treatise on master-servant relations! All states (except Montana) recognize employment at-will. CA's Labor Code 2922 defines at-will employment to be "employment, having no specified term, and that may be terminated at the will of either party on notice to the other." In September 2006, the California Supreme Court clarified (Dore v. Arnold Worldwide, Inc.) that an "at-will" provision in an employment agreement is enforceable based on its plain meaning: The employment can be terminated at any time, with or without cause.

Although it may seem so, employment at-will does not necessarily mean "at whim." In CA (to overcome the presumption that the employment is at-will) a terminated employee must prove that there was an employment contract for a specific length of time or that a statute, court case or public policy provides an exception.

There are several common law and statutory exceptions to at-will employment:

Public policy

Under the public policy exception, an employer may not fire an employee if it would violate the state's public policy or a state or federal statute. Examples are retaliation for whistleblower activities, or filing workers compensation or discrimination claim.

You can terminate an employee for any reason ... so long as it is not the WRONG reason

Implied contract exceptions

Under the implied contract exception, an employer may not fire an employee, "when an implied contract is formed between an employer and employee, even though no express, written instrument regarding the employment relationship exists." Implied employment contracts are most often found when an employer's written policies or handbooks indicate that an employee will not be fired except for good cause or specify a process for firing. Implied contracts can also arise when managers verbally express implied length of service or job security.

Covenant of good faith and fair dealing exceptions

This exception has been interpreted to mean either that employer personnel decisions are subject to a "just cause" standard or that terminations made in bad faith or motivated by malice are prohibited.

Statutory exceptions

In California, anti-discrimination statutes prohibit termination on the basis of race, color, national origin, religion, sex, gender, ancestry, sexual orientation, gender identity, marital status, physical or mental disability, pregnancy, childbirth, medical condition, age, veteran status or any other characteristic protected by applicable law.

What does this all mean?

When providing language for employee handbooks or offers of employment, verbal or written, take care not to nullify the at-will doctrine. The language we recommend placing intermittently throughout your handbook, employment application, and other important employment documents is: Employment is at-will; neither employees nor (the company) are bound to continue the employment relationship if either chooses, at its will, to end the relationship at any time, with or without advance notice and with or without cause. Additionally, other terms and conditions of employment such as compensation, benefits, title, duties, and corrective action may be modified at the discretion of (the company). The policy of at-will employment may be modified only in writing signed by both (company authority) and the employee, which specifically cites that it is a modification to the at-will policy.

Don't hesitate to give us a call with any questions!

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Employment Upd@te is a publication of  TPO HUMAN RESOURCE MANAGEMENT. Copyright 2004-2006. All rights reserved.
TPO's Employment Upd@te may be reproduced or re-transmitted without change or modification of any kind.

The information provided is designed to be accurate in content. TPO provides human resource consulting and is not engaged in rendering legal, accounting or other professional services. Readers are advised to consult legal counsel on matters involving employment law or important personnel policies & practices before adoption or implementation.