TPO's Employment Update


n  Succession Planning

n  Legislative Update

n  OSHA Form 300A

n  Training Calendar

n  2007 Posters



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 March - April '07

Management Excellence Series

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

n April - May '07

Specialized Workshops

n Harassment & Discrimination at Work Apr 10

n Excelling as a First Time Manager Apr 18

n I'd Rather Not Discuss It June 12




"Extraordinarily organized, excellent venue, most certainly a touch above any employment related conference I have attended, anywhere."

Steve Pritt, CEO, Soledad Health Care District

This year's annual conference drew an audience of almost 300, representing 150 private, public & nonprofit organizations from as far away as San Diego.

Larry Wilde (, comedian and motivational speaker, started the day with laughter by enlightening us with his five-step formula about how important it is to deal with the stresses and tensions of the business world with a good sense of humor.

We then moved on to the more serious business of the Littler Update ( to inform conference participants about some of the major employment law changes impacting business. The afternoon was full of timely information about Wage & Hour, Workers Compensation, Leaves Management and Terminations. Stay tuned for information about a webpage being designed that will give you access to the PowerPoint presentations for the entire conference! Meanwhile, here is a recap of Littler's TOP TEN along with TPO comments to consider:

The Top 10 Worst Cases of 2006

Dennis Brown, Esq. and Marlene Muraco, Esq., Littler Mendelson, P.C.

1. Service Technician with Criminal Record Entitled to Keep His Job
Josephs v. Pacific Bell, 432 F.3d 1006 (9th Cir. 2005):

n Employee denied having prior conviction on his application.

n Employee terminated after company found he had spent two years in a mental hospital for attempted murder.

n Court found termination improperly based on perception of employee's mental state rather than past violent acts.

TPO's Thoughts: The reason for the termination was because he lied on his application; however, technically he did not lie because it was expunged from his record. This case highlights the competing interests that an employer must attempt to balance: the duty to provide a safe environment for employees/customers and the desire to not run afoul of protected activities.

2. Employer Violates ADA by Discharging Epileptic operator of Heavy Equipment
Dark v. Curry County, 451 F.3d 1078 (9th Cir.2006):

n Operator suffered seizure and fell unconscious while driving a pick-up truck.

n Employee terminated.

n ADA violated because employee only had one on-the-job epileptic episode.

TPO's Thoughts: When it comes to the ability to do the job, make sure that there is an interactive dialogue with the employee and possibly the healthcare provider to clarify the job requirements and to determine if reasonable accommodations can be made.



3. Employee Can Seek Indemnification of Defense Costs for Action Brought by Employer
International Airport Centers, LLC v. Citrin, 455 F.3d 749 (7th Cir. 2006):

n Employer sued former employee for deleting data from his laptop in violation of the Federal Computer Fraud and Abuse Act.

n Court held employer required to advance money for attorney fees employee incurred in defending against fraud suit.

TPO's Thoughts: While we are used to the idea that employers must indemnify employees for expenses incurred in the course of employment, this case broadens that requirement to include an employee's defense of a claim.

4. Employer Liable for Statutory Rape of Teenage Worker
Doe v. Oberweis Dairy, 456 F.3d 704 (7th Cir. 2006):

n Employer strictly liable for sexual harassment because of the girl's underage status.

n The girl's refusal to cooperate in the EEOC investigation did not constitute a failure to exhaust remedies.

TPO's Thoughts: Though the minor employee had engaged is some of the behaviors with the shift leader, it was not considered consensual due to her age. Additionally, while usually an employer reduces liability where the employee did not follow employer/administrative procedure, due to her age, this was limited. This case emphasizes a substantial area of liability when employing minors.

5. Employer's Lack of Enthusiasm Over Pregnancy Evidence of Discrimination
Asmo v. Keane, Inc., 2006 U.S.App. LEXIS 31057 (6th Cir. 2006):

n Supervisor did not congratulate the employee on her pregnancy.

n Silence interpreted as discriminatory animus [deep-seated dislike or ill will].

TPO's Addition: For all of you who have gone to TPO's training in the past, you know that our recommended response to an employee's comment of, "I'm pregnant" is "Congratulations." This case emphasizes the importance of making sure the words, tone and body language all match the message you intend to send.

6. General Release Invalidated by Failure to Carve-Out Exception for Indemnification Rights
Edwards v. Arthur Anderson (CA Ct. App. 2006):

n Employee signed standard general release.

n Entire release held invalid because release impliedly included waiver of employee's right to indemnity under CA Labor Code.

TPO's Thoughts: General Releases (Separation Agreements) have come under scrutiny and the savvy employer does not want to find that an omission or incorrectly worded statements invalidate the entire document. All General Releases should be re-reviewed by a qualified labor law attorneywe can provide an excellent recommendation to Littler Mendelson!

7. Employee Need Not be Recorded to Claim Invasion of Privacy
Hernandez v. Hillsides, Inc., 142 Cal.App.4th 2477(2006):

n Employer installed a hidden video surveillance system to catch employees accessing porn on work computers.

n Employees never actually viewed or recorded.

n Court said mere possibility they could have been viewed was an invasion of their privacy.

TPO's Thoughts: California has very strong privacy rights and employers are wise to make sure that practices/policies recognize those rights.

8. Employee Entitled to Proceed with Age Discrimination Claim Despite Proof Employer Unaware of His Age
Erpenbeck v. Premier Golf Management, Inc., (S.D. Ohio 2006):

n Employee terminated at the age of 48 sued for age discrimination.

n Employer introduced evidence decision maker unaware of employee's age at time of termination.

n Court rejected employer's "self-serving assertions" and allowed claim to go to trial.

TPO's Thoughts: Make sure that information which could be perceived as having been used in a discriminatory way is privately held by a central person/department in the organization.

9. Terminated Employee Entitled to $640,000 in Front Pay Even Though She Rejected Offer of Reinstatement
Hagman v. Washington Mut. Bank, Inc., DOL ALJ (2006):

n Employee was SOX [Sarbanes-Oxley] Whistleblower.

n Bank offered to reinstate after an investigator ordered reinstatement.

n Employee nonetheless entitled to front pay because bank continued to maintain she was terminated for cause.

TPO's Thoughts: Employee's have numerous "whistleblower" protections and such situations should be handled with care.

10. Break in Employment Does Not Disqualify Employee from FMLA Leave
Rucker v. Lee Holding Co., 471 F.3d 6 (1st Cir. 2006):

n Employee left company for many years.

n Denied FMLA leave after seven months of re-employment.

n Court counted original employment period towards 12-month requirement.

TPO's Addition: When counting 12 months of service, it includes all service stacked end-on-end, however, the employee must also have actually worked 1250 hours in the previous 12 months to qualify.

Again, we would like to thank all of our cosponsors for their assistance with spreading the word about the conference: Monterey County Herald, Monterey Peninsula Chamber of Commerce, Santa Cruz Sentinel and, and the Morgan Hill Chamber of Commerce!

And thanks to all of you who attended!

If you weren't there, you truly missed and outstanding educational experience!

Click here for Monterey County Herald's feature article covering the day.

We look forward to seeing you all at the
TPO/Littler 2008 Annual Employment Law & Leadership Conference!


Don't get caught in a crisis when your key people leave here is Part I of TPO's IV Part series on Succession Planning!


In May 1990, Jim Henson, the creator of Kermit the Frog and the Muppets, died suddenly. This was devastating to Henson Productions because not only was Jim CEO, he also was the sole voice and puppeteer of Kermit. That's when the lack of planning for his successor became a reality for Henson Productions. What would they do without Jim and Kermit? Who could be found to be another Kermit? How long will that take? Why didn't they plan for such a shock? Luckily, Jim's son could do the voice and was a puppeteer and Kermit was brought back to life.

Today many organizations are in a very similar situation to that of Henson Productions in 1990. Fortunately for Henson Productions, someone had a Kermit voice; however, it was a coincidence rather than a plan. It is important for organizations to remember that "Hope is not a Strategy" and begin to consciously consider how succession will work in the future for them.

In these days of rapid change, of mergers and acquisitions and of high growth, organizations often face a critical need to replace key management staff on very short notice. Coupled with increased pressure to remain competitive in a market where many skills and talents are in high demand and scarce; organizations have a need for competent, well-trained employees who are able to step into new roles at a given point in time. To meet this need, organizations are implementing succession plans that are systematic, integrated and flexible.


Succession planning should be part of the strategic planning process and should be tied closely to development and implementation of the business plan. Organizations must identify objectives and goals for long-term direction changes including growth and/or future development. Next, they must forecast staffing needs consistent with these objectives. Organizations need to ask themselves: where will the top executives of the future come from and who will be their replacements? Strategic planning helps recognize that future executives may differ strikingly in qualifications, characteristics and skills from today's leaders.

Where will the top executives of the future come from and who'll be their replacements?

Succession planning identifies and grooms candidates for future openings in key positions due to loss of leadership, new markets or new environments. Succession planning is a part of a series of integrated human resources systems linking forecasting, recruiting, career planning and development, assessment and performance appraisal.


The primary task of succession planning is to identify a sequence of personnel moves that prepare candidates for key positions. These candidates can be known in advance of actual need through the evaluation systems. Prior identification permits opportunities for mentoring and developmental activities to improve a manager's readiness to succeed to specific positions. It also provides concrete decision-making information needed to minimize the chance of poor choices or the adverse impacts of unplanned vacancies that can disrupt the continuity of management.

To examine the need to implement a succession plan, you only have to look at pro-sports and the farm club system. Just as a baseball club needs a good farm team and a basketball team needs a strong bench, an organization needs to have a succession plan. Farm systems identify, train and develop future stars. Although business issues and the people within organizations are more diversified and complex than a baseball team, organizations must understand that good executives are generally created, not born.


The four basic goals of succession planning include:

n Identification of critical positions within the organization;

n Identification of future vacancies in those positions;

n Identification of individuals who would potentially fit into these vacancies; and

n Prepare those individuals to step into the vacancies as they occur


In order for organizations to develop a clear list of positions that are strategically "key positions" and the recognized potential need, a structured look at the entire organization must be developed. A clear set of questions must be developed that lead organizations to the identification of critical and highly at risk positions. Only after this process can they begin to address what the priorities are and how they should be managed.

After the identification of positions, the organization must collect a significant amount of data related to the trends related to each of those positions including such concerns as difficulty of recruitment, forecast of skill needs in the future and turnover that has been experienced in those positions and in ones that are direct "feeder" positions. A "feeder" position is one the next leader will typically occupy until the opportunity comes to step up to the next level of leadership.

The identification step includes identifying the following:

n Leaders who are critical to the success of the organization (key positions)

n Feeder paths to the leadership position

A "feeder" position is one the next leader will typically occupy until the opportunity comes to step up to the next level of leadership.

n Skills necessary to be gained before the employee can move into the position

n Training, experiences and challenges that are necessary to hone the skills necessary to fill the leadership position

This is a time consuming process, but one that pays off with rewards for many years. The organization that successfully plans the careers of its top employees to get the most from them and provide the most opportunity is the one that is able to compete during times of tight recruitment and extreme change. The Return on Investment for a Succession Plan is easily demonstrated and clear. The cost of recruitment alone for many positions offers significant savings.

When employers recognize the inherent benefits of developing an integrated succession planning system that identifies the talent needed to continue a high level of leadership, they have recognized one of the greatest costs in their business environment the loss of top talent. A truly integrated system includes all of the employee processes that determine appropriate fit:

n Recruitment

n Training & Development

n Performance Management

n Career Closure Assistance

Over the next few issues, TPO will explore these four parts of a succession plan, what role they play and some of the challenges and opportunities.

If you are already considering a Succession Plan for your organization, contact TPO to help you facilitate the process and provide that extra help you need to develop such a program.

The 2007 Legislative session has begun, and in future articles we will outline employment-related bills as they make their way through the system. In the meantime, the topic of health care that reaches all Californians is getting a lot of attention and is high on many legislatures' agendas.

Health Care Proposals Presented

Four main proposals have been presented, each of which promises to increase access and improve affordability of health care coverage for Californians. While these proposals are in depth in their scope, some of the possible employer affected highlights are:

Governor Arnold Schwarzenegger (R)

n All Californians would be required to have minimum health care coverage

n Employers with 10 or more employees who do not offer coverage would pay an "in-lieu fee" unless they spend at least 4% of the payroll for employee health insurance

n Employers would be required to offer "Section 125" plans for employees to make tax-sheltered contributions to health insurance.

Senate Republican Plan (CalCARE)

n Every Californian would have improved access with more affordable healthcare options.

n No employer mandate to offer health care coverage to employees; but would allow employers who offer health insurance other incentives.

n Would encourage employers to establish Section 125 plans

Assembly Speaker Fabian Nunez (D Los Angeles)

n Would apply to all working Californians and dependents, and all children in homes with income up to 300% of poverty level.

n Employers with 2 workers and $100,000 of payroll would be required to provide employee health coverage or pay a fee based on "fair share" percentage of payroll.

n Employers would be required to offer "Section 125" plans for employees to make tax-sheltered contributions to health insurance.

Senate President Pro Tem Don Perata (D - Oakland) SB 48

n Would apply to all working Californians and dependents, and all children in homes with income up to 300% of poverty level.

n Employers would be required to spend a certain percentage of payroll on a sliding scale for health insurance or pay an equivalent amount to a State Trust Fund.

For full plan comparisons conducted by the Senate office of Research, go to


Employers are responsible for providing a safe and healthful workplace for their employees. OSHA's role is to assure the safety and health of America's workers by setting and enforcing standards; providing training, outreach and education; establishing partnerships; and encouraging continual improvement in workplace safety and health. This posting requirement is designed to alert workers to hazards that may exist in their workplace.

Employers with 11 or more employees are required to track and record work-related injuries and illnesses on the OSHA's Form 300. The Summary Form 300A must be posted from February 1 to April 30, even if there have been no injuries for the year. A copy of the form is to be displayed in a common area where notices to employees usually are posted. Employers must make a copy of the summary available to employees who move from worksite to worksite, such as construction workers, and employees who do not report to any fixed establishment on a regular basis.

You can get information and download the OSHA Log 300 and recordkeeping forms at

Is your organization an exception? OSHA uses the Standard Industry Classification (SIC) codes to determine which establishments need to keep OSHA records.  Employers with 10 or fewer employees or certain businesses classified in a specific low hazard industries are exempt.  Exempt employers still may be selected by the U.S. Labor Department's Bureau of Labor Statistics to participate in an annual statistical survey. All employers covered by California's safety and health regulations need to comply with safety and health standards and must report verbally within eight hours to the nearest OSHA office all fatal accidents or the hospitalization of three or more employees.

If you are unsure whether you are required to comply with the OSHA 300A posting requirements or have questions about completing your OSHA 300A, please call TPO at 831-647-7292.

(and by the way, who has the time to start the whole hiring process over again?)

Poor hiring decisions often mean lost production time, money, and a decrease in employee morale all costly mistakes for any employer. TPO CAN HELP! We have developed and refined processes over the past 15 years to identify the most qualified candidates and best match for a position.  Our program is unique, effective and affordable!

TPO can help you with any or all of the following critical hiring steps with our

time-tested HireRight Systemssm process:

n Analyze the position & organizational needs

n Identify necessary characteristics & criteria

n Create/update a job description & application

n Provide training support to the hiring team

n Compose & place advertisements

n Manage & sort applicant responses

n Perform preliminary screening

n Facilitate interviews & administer assessments

n Conduct reference checks

n Arrange background investigations

n Assist with the employment offer

n Structure an introduction and orientation

n Minimize legal challenges

n Impress applicants with a professional process

n Establish a well-administered hiring system

Contact your TPO Representative to chat about how TPO can help
with your all of your recruitment needs. 1-800-277-8448

HR Rumors: Get Your Facts Straight from the Experts!

An employee provided a Social Security Card that says "Valid for Work Only With DHS Authorization" as documentation to verify employment eligibility to complete the I-9 Form. Can I accept this? If not, what do I do?


If a Social Security Card is provided as current valid documentation under "List C" to verify employment eligibility and contains this wording, it is not valid for employment without accompanying documentation that is listed on the latest I-9 approved document list.

Employers must verify that every new hire is authorized to work in the United States within three days (72 hours). This verification is made by completing the I-9 form which requires a company-approved representative of the organization to examine documents that establish identity and employment eligibility.*.  Employers are not permitted to specify which documents they will accept from an employee, such as a driver's license (List B) and Social Security card (List C). Instead, employers should simply show the list of acceptable documents to the employee and allow him/her to choose which verifying documentation to provide.

Re-Verification/Re-Hiring. Employers must re-verify employment eligibility prior to an employee's documentation expiring. To re-verify expired status an employee may present any currently valid "List A" or "List C" document.

If your organization is rehiring employees, you do not need to complete a new I-9 Form if they are rehired within three years of the date that the I-9 was originally completed, and instead may complete Section 3 of the I-9.

If you choose to complete a new I-9 to re-verify employment eligibility, attach it to the original I-9. The re-verification requirement does not apply if the documentation originally provided is accepted even if expired (i.e. U.S. passport or Form I-551). "List B" documents do not need to be re-verified when they expire because they are accepted initially even if expired.

*Documents that are NOT acceptable. The United States Customs and Immigration Service (USCIS) changed the list of acceptable documents to establish identity and employment eligibility on  the I-9 Form . Careful! The change is currently effective, although USCIS has not yet revised the official form to reflect the changes. You can find information on the changes at the USCIS website:

Members Click here for an updated list of acceptable I-9 documents

Receipts showing that the employee has applied for an extension of an expired employment authorization document are not acceptable.

Discovering an Unauthorized Worker. Employers who comply with the verification requirements when hiring an employee, but later discover that the employee is not unauthorized to work in the United States, may not continue to employ that person.

Employers should suspend the employee for three days pending production of acceptable documentation. If the employee is unable to produce acceptable documentation, the employee must be terminated to avoid penalties for "knowingly continuing to employ" an unauthorized worker.

TPO's Advice:

n Create a "tickler" system that reminds you when an employee's authorization document will expire and it's time to re-verify.

n Retain these records for at least three years from the date of hire or one year from the date of termination, whichever is longer. (required retention)

n Keep the I-9 Form and supporting documents in a location separate from the employee's personnel file.

If you have any questions regarding completing or re-verifying your employee's I-9 forms,
contact TPO at 831-647-7292.

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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.