n  2008 Employment Conference

n  The ICE is Melting

n  HR Regs

n  TPO Welcomes Brian Pratt

n  Welcome New TPO Members

n  Member Spotlight

n  HR Rumors

n  Is it time to update your Handbook?



Training Calendar

Management Excellence Series

n Oct - Nov 2007

Job Descriptions

n November 06, 2007

CA Employment Essentials (HR101)

n Feb - March 2008

Specialized Workshops

n Harassment & Discrimination at Work  Nov 07, 2007* (*Spanish)

n Harassment & Discrimination at Work  Nov 27, 2007

n I'd Rather Not Discuss It!

    Feb 13, 2008


   March 12, 2008

 Continuing our long-time partnership, TPO and Littler will guide you through an informative day, balancing both Legal and Leadership Best Practices to prepare you for 2008!

 Mark your Calendar...

Tuesday, January 30, 8:00am – 4:45pm

Embassy Suites Monterey Bay

Click here to register!

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!


On October 10, 2007, a federal judge issued a preliminary injunction temporarily preventing the Department of Homeland Security (DHS) from implementing the regulations issued regarding how employers are supposed to respond to a “no-match” letter from the Social Security Administration (SSA) until the court makes a final ruling, after trial, on whether or not the rule is legal. The injunction will remain in place until it is either overturned on appeal or the judge makes a final ruling after trial. This will require a full hearing to be conducted on the issues so either a permanent injunction is issued or the preliminary injunction is dissolved and the regulation is allowed to be implemented.

These regulations were originally to go into effect on September 14, 2007. DHS and SSA had announced that they intended to send out no-match letters to more than 140,000 employers, with each letter including an insert from the DHS explaining the DHS regulation and safe-harbor procedure. This Court Order now prohibits the SSA from sending
the DHS insert with its no-match letter but does not prohibit the SSA from sending no-match letters. The SSA may continue to send out no-match letters as they have in the past, although they have indicated that they will not send out the 140,000 no-match letters, even though they would not contain new DHS language or reference the “Safe Harbor” procedures. 

What should employers do?
Employers are not required to take the follow-up actions that had been contained in the DHS’ Safe Harbor regulations which were set to be included with SSA no-match letter. In fact, employers who take the additional steps that were contained in those Safe Harbor regulations may expose themselves to the risk of liability for violating federal anti-discrimination laws. That risk would be caused by employers taking actions that are not required by the current regulations and are not protected by law because the new regulations are not in effect.

Employers, however, should be proactive and have procedures in place to respond to future no-match letters from the SSA and limit the likelihood of discrimination or unfair immigration-related employment practice charges.

No-Match Letters
No-match letters are sent by Social Security Administration (SSA) to employers where Social Security Numbers (SSN) do not match the name on file with the SSA. These letters do not imply that you or your employee intentionally gave the government wrong information about the employee's name or Social Security number. Nor does it, by itself, make any statement about an employee's immigration status. There are many reasons for a mismatch between employer and SSA records, including clerical errors on the part of the employee, the employer or the government. An employer who takes negative action based on nothing more than a no-match letter may, in fact, violate anti-discrimination laws.

Responding to a No-Match Letter
Reasonable HR procedures in responding to future SSA no-match letters include:

  • Employers should check to see if the name and number combination on the letter match what is in the payroll system and human resource management system (HRIS).

  • Review actual documentation in the organization’s personnel/payroll files to compare the documentation to what is on the letter and in the payroll system/HRIS

  • Resolve any internal errors.

  • If employer documentation shows no discrepancies, they should promptly request the employee confirm that the name and SSN in the employer’s records are correct.

  • In accordance with the written notice’s instruction, if any, send employee written notification of the no-match status and ask that the employee contact the Social Security Administration (SSA) to resolve the discrepancy.

  • The employee should receive verification from the SSA to provide to the employer if it is an error on the part of the SSA and a receipt or letter that new documentation is being provided.

  • If the employee does not provide such information, the employer should NOT offer the employee a chance to complete a new I-9, nor should the employer terminate the employee’s employment. Those two provisions were part of the DHS safe harbor requirements, which are not in effect due to the hold.

  • If the employee is no longer employed at the time of the no-match letter, employers should still recheck all of the documents for that employee and resolve any error they find in that research.

New Hire I-9 Form Completion
Important things for employers to remember when verifying employment eligibility at hire:

  • Employers may not specify which documents from the lists provided for I-9’s an employee presents.

  • Employees may not work beyond 72 hours without having provided the necessary documentation to show they are legally allowed to work.

  • Only original documents are acceptable for the employer to review and you must accept documents that appear to be genuine.

  • Documents that establish employment eligibility that have expiration dates (other than a US passport) must be reverified and a reminder system should be put in place to ensure the updating of expired documentation occurs in a timely manner.

  • Train hiring managers at remote locations on completing the I-9 process.

  • Retain I-9 forms separate from employee’s personnel file and follow retention guidelines

Stay tuned…
If the regulations do go into effect, TPO will offer guidelines outlining adopted safe-harbor requirements, as well as providing “HR Best Practices” on related procedures. These guidelines would include a 2-page Tracking Form that can be photocopied and used to respond to “no-match” letters, as well as a sample letter to communicate with employees if appropriate. Additionally, TPO will be scheduling clinics for hiring managers on recommended procedures and I-9 Form completion.

In addition to past HR Legislation recaps in TPO eNews documents (click here to go to view previous eNews issues), the following are employment-related items on the HR horizon.





Military Spouse Leave (AB 392), took effect immediately upon signing on October 9, 2007 and applies to employers with 25 or more employees. Eligible employees may be granted up to 10 unpaid days off to spend time with a spouse who is on leave from military deployment. Employees must provide employers written documentation certifying the spouse will be on leave from deployment within two business days' notice of receiving official notice. Eligible employees are a spouse of a member of the Armed Forces, National Guard or Reserves who has been deployed during a period of military conflict and who works for more than 20 hours per week. _________________________________________________________________________________________________

The Governor had until October 14 to sign or veto bills that made it to his desk after passing the Senate and Assembly. Of particular interest were the 9 employment-related bills that the Governor VETOED:



CA Family Rights Act (AB 537) – This bill if signed by the Governor would increase the circumstances under which an employee is entitled to protected leave pursuant to the Family Rights Act by (1) eliminating the age and dependency elements from the definition of "child," thereby permitting an employee to take protected leave to care for his or her independent adult child suffering from a serious health condition, (2) expanding the definition of "parent" to include an employee's parent-in-law, and (3) permitting an employee to also take leave to care for a seriously ill grandparent, sibling, grandchild, or domestic partner, as defined.

Paid Family Leave (SB 727) This bill if signed by the Governor would expand Paid Family Leave (PFL), a wage replacement insurance program administered by the Employment Development Department, to care for the employee’s grandparents, grandchildren, parents-in-law, and siblings.

Discrimination (SB 836) – This bill if signed by the Governor would add “familial status” to the list of prohibited bases for employment discrimination under the California Fair Employment and Housing Act (FEHA).

Independent Contractors (SB 622) – This bill if signed by the Governor would attempt to prohibit deliberate and willful misclassification of employees as independent contractors by employers. It would authorize the Labor and Workforce Development Agency to assess specified civil penalties against those in violation of the bill and would also authorize employees who suffer actual harm to bring actions for these civil penalties.

Bereavement Leave (SB 549) – This bill if signed by the Governor, would expand employer’s liability for a new protected bereavement leave for employees which would prohibit the discharge, discipline, or any manner of discrimination against an employee for inquiring about, requesting, or taking up to four days of bereavement leave off upon the death of a spouse, child, parent, sibling, grandparent, grandchild, or domestic partner. TPO NOTE: Bereavement leave is one of the few employer-provided benefits which currently is not regulated.

Employer Provided Health Care Coverage (AB 8) – This bill if signed by the Governor would require employers to provide health care coverage or pay a new payroll tax. This bill is broad in scope and provides no exemptions, but does not apply to the self-employed. Opponents contend that AB 8 would not make health care coverage any more affordable for the employer, even though high costs are the main reason employers can’t provide health benefits.
While AB 8 does not yet specify the level of taxation (a percentage of payroll) for employers who do not provide health coverage, opponents believe the tax increase needed to finance the level of benefits are likely to be significant.

Employment Records (AB 1707) – This bill if signed by the Governor would require employers to maintain employment records for 4 years after termination, and would require employers to provide inspection and copies of all documents within 21 days of a request made by a current or former employee, or their representative.

Wages (AB 435) – This bill if signed by the Governor would require employers to maintain wage and job classification records for 5 years, rather than the 2 that are currently required. This bill would also extend the statute of limitations for an employee to bring a civil action against an employer to recover wages from 2 to 4 years for a civil action, and from 3 to 5 years for actions in which there is willful misconduct of the employer.

Indoor Heat Regulations (AB 1045) – This bill if signed by the Governor, would bypass the effective and statutory authority of the California Occupational Safety and Health Standards Board and the Division of Occupational Safety and Health to develop and adopt standards regulating exposure to excessive indoor heat.



Guns on Employer Property (AB 652) – Would have prohibited employers from banning guns in employee’s vehicles on employer property.

Posters in Plain Language (AB 613) – Would have ensured current state-mandated workplace posters use simple, plain language with common, everyday words, short sentences, and terms and definitions that are simply and clearly defined.

4-Day Workweek (AB 510) – Would have allowed employers to achieve greater flexibility in work schedules by allowing employees to request and employers to mutually agree to a four-day compressed workweek without going through the stringent requirements of a formal “Alternative Workweek”.

Brian has been a licensed Private Investigator since 1996. A Carmel native, Brian served four years with the 82nd Airborne Division and retired from the Monterey Fire Department. He has provided expert investigative and security support to scores of public, private and nonprofit entities in his capacity as President of Solutions Investigative & Consulting Services.

As TPO’s Director of Investigative Services, Brian will apply his years of experience combined with the latest technology to oversee all TPO client investigations including alleged harassment, discrimination and malfeasance. As a risk management and loss prevention specialist, he will investigate and analyze root causes, patterns and trends to reduce exposure and liability and recommend corrective actions.


Brian has served as a member, volunteer, board member and/or officer in numerous community organizations including: AT&T Pebble Beach Pro-Am, Seaside Rotary Club, American Legion Post 591, Seaside Parade of Champions, Carmel Volunteer Fire Department, and Carmel Youth Center.

We are delighted that Brian has joined TPO’s team. His credentials and professionalism are a unique fit to TPO and our client’s needs. His expertise both broadens and compliments TPO’s 16 year track record of providing award-winning HR consulting support services.” Jill Russell, TPO Principal

n Bookette Software

n Avant and Decker DDS

n City of Pacific Grove

n Pacific Metrics Corporation


We look forward to the opportunity to provide each of you with unlimited phone/email access, reduced consulting and training rates, eCompliance notices, attendance to our Annual Employment Law & Leadership Conference at no additional cost, and priority status when you require TPO support from any of our highly qualified team of HR experts! Thank you for joining!

TPO: "InterWest has been a TPO member for over three years. How do you feel TPO contributes to InterWest and your Client's success?"

Dave Dias, Vice President: "TPO has been a major contributor to InterWest and our clients in at least two significant ways! First and foremost, it’s their people. TPO HR Management consultants “say what they do and do what they say.” They are individuals operating within the context of a team environment where character and ethics are a top priority. Their diligent commitment to follow-through really sets them apart. Second, they are very competent in their respective discipline. Whether it’s consulting with us and our clients on Employee Handbooks, Communications Support, Employee Applications, FMLA/CFRA Compliance Programs, Personnel File Management or Policy & Procedure Manuals, we have found their professional recommendations relevant and timely. We can always depend upon them to deliver."

Dave Dias,

Vice President

Executive Board Member


InterWest is a name you can trust

InterWest has been California’s trusted insurance partner since 1910. Our geographical footprint spans the Northern California with 12 regional offices. We offer a full range of business and personal insurance products and services. With more than $550 million in property & casualty premiums purchased on behalf of our customers every year, and representing over 175 insurance companies, we make our clients’ financial care and growth a priority. InterWest is ranked 46th among the largest 100 insurance brokers in the United States (both public and private ranked by revenue). We were also ranked 11th on the list of 100 Largest Privately Held Independent Agencies in the U.S. In business since 1910, we expect to continue serving our clients as their premier private insurance brokerage for many years to come.

InterWest offers services in most aspects of commercial insurance, self insurance, risk management, employee benefits and private client personal insurance. As brokers, our goal is to address our client’s overall risk related needs, from the client’s point of view. We work for our client and take pride in providing service that meets the highest standards in our industry.

Size is an advantage. We are large enough that our clients have access to the strongest insurers in the U.S., through longstanding direct insurance company relationships as well as wholesale market relationships. We are small enough to deliver personal service and that is one of the main reasons we value our relationship with TPO. TPO places a high value on the client which is a strong reflection of the values represented at InterWest.

As a regional insurance broker we place HIGH VALUE on TPOHR’s core expertise…human resources consultation. We have been a TPOHR member for years and have partnered with them in a variety of ways:

• Joint workers compensation educational seminars
• Joint employee benefit and HR presentations
• Direct client referrals
• Many members of our management team have taken courses offered by the TPO team.

As a result of the volume of business InterWest manages, we have established very important and strategic relationships…TPO represents one of those significant and valued relationships and we’re honored to call them our business partner!!

To learn more about InterWest click here.

HR Rumors: Get Your Facts Straight from the Experts!

We have an employee who is recovering from an injury that didn’t happen on the job. She wants to come back to work, but knows she will only be able to work a little right now. She suggested she could volunteer her time and continue to collect SDI, but start accruing her PTO again. Can we do that?



This kind of question is typical of the ones we get when our Members use their “free access” benefit of calling or emailing with unlimited questions about employment issues.

There are three issues in this question that are worthwhile to discuss.

1. Can an employee return to work without permission of his/her healthcare professional?
2. Can an employee work on a volunteer basis for the employer?
3. Can an employee accrue PTO if not working a full schedule?

1. Regarding the return to work question, we never would advise bringing an employee back to work unless there was a clear written understanding from the healthcare provider about what work the employee can or cannot do. Complete information is essential in ensuring that the employee can return to work safely and that is one of your primary concerns. If the employee is able to return to work safely either full time or part time, the healthcare provider would then need to notify the Employment Development Department (EDD) of the State of California about the change in eligibility for State Disability Income (SDI).

2. As far as an employee working on a voluntary basis for his/her employer is concerned, that is not generally permitted. You must pay employees for all hours the employee works for the benefit of the employer. Employers who are charitable or social organizations to which the employee belongs may have some specific types of activities that the employee might be eligible to volunteer to do without pay, but those are not numerous. For example, a church employee who handles the accounting for the organization might be able to volunteer to baby sit occasionally on a volunteer basis in a nursery provided by the church but could not volunteer time accomplishing the accounting duties for which she is normally paid. 

3. Accrual of Paid Time Off (PTO) is determined by your organization’s policy. Since the employee would only return to work as a paid employee (see above notes), the employee would begin accruing again. Whether or not an employee accrues PTO while on either paid or unpaid leave should be explained in your handbook so that the employee knows what to expect when taking any sort of leave.

Finally, many employers might want to allow the employee to work the time during the SDI qualified time, but not pay the employee until after return to non-SDI time (under the table so to speak). That, of course, is contrary to the spirit of SDI and is also not allowable because employees must be paid for all time worked in the pay period within all required timeframes.

Employee Handbooks are a key component of any sound employee relations program and play a critical role in communicating essential information about benefits, policies, and performance standards to all employees. Additionally they help to promote fairness and consistency in the manner in which employees are treated, which reduces the possibility of arbitrariness and discrimination. The result is enhanced employee morale, productive and loyalty (along with more favorable legal positioning).

TPO recommends that Employee Handbooks be updated at least every 2 to 3 years to provide business owners and managers with a comprehensive and compliant guide in making employment decisions such as implementing corrective action, hiring, termination and promotion. Having polices and standards documented and up-to-date can be a real time-saver by eliminating the need to ‘reinvent the wheel” as issues arise. Additionally, policy and/or leadership change in organizations may result in the need to update your handbook.

TPO HR can update your current handbook or create a new handbook for your organization in a timely and cost-effective way. We can also help you “announce” the updated or new handbook to your employees by providing you with helpful presentation notes, memos and facilitation. To get your Employee Handbook updated or created, please contact us at 1-800-277-8448 or tpo@tpohr.com.

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Employment Upd@te is a publication of  TPO HUMAN RESOURCE MANAGEMENT. Copyright ©2004-2007. 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.