n  HR Feature

n  Conference Recap

n  Risk ReMinder New!

n  TPO in the Community!

n  Legislative Update

n  TPO On-Site

n  New Members

n  Member Spotlight

n  HireRight

 

 

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 May '08

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 - April '08

n June '08

Specialized Workshops

n Workers' Comp    April 15

n Harassment & Discrimination     April 23

n How to Say It

May 20

 

TPO in the Community!

Hosted by the Monterey Peninsula Chamber of Commerce Business Accelerator Programs

April 8

Melissa Irwin, SPHR-CA

Topic: Ten Traps for the Unwary Manager and/or Supervisor

Time: 8:00 - 9:30 am

April 22

Kelsey Escoto, SPHR

Topic: But She Interviewed So Well, How Did I Miss That?

Time: 11:30 - 1:00 pm

 

TPO’s team of consultants and staff combined with 10 leading labor attorneys from Littler Mendelson’s San Jose Office presented our most power-packed annual conference yet!
 
The morning began with the Littler Update presented by Dennis Brown, Esq, Managing Partner, and Marlene Muraco, Esq., Shareholder. The Littler Update received participant ratings of 91% high and 9% medium (no low scores of course!): “Keep Littler Mendelson involved – what a wonderful resource; very knowledgeable.”

This year, our Panel Discussion segment blended three top lawyers (Dennis Brown, Cathy Beyda and Suzanne Nestor) with two Senior HR Consultants (Melissa Irwin, CA-SPHR and LaTonya Olivier, M.Ed., SPHR-CA, CCP, GRP) to balance responses to each audience question with a legal and then an HR perspective. The Panel Discussion segment earned 90% High and 10% Medium ratings (no low of course!): “Love the HR/law combo on the panel discussion.”

A brand new (highly popular) addition this year was the Legal Clinics – where conference attendees had the opportunity to meet individually with Littler attorneys in specialized areas such as: Wage & Hour, Wrongful Termination, Discrimination, Employee Leaves, Immigration, Labor-Management Relations, Policies & Procedures, Privacy, Public Sector and Unfair Competition. “The one-on-one clinics were excellent. I received in-depth advice for many specific questions. This conference was excellent!”

The Afternoon Sessions were full of timely information presented in four separate programs – two legal topics and two leadership. The legal sessions were: Employee Classifications– “Exempt, Nonexempt, or Independent Contractor…That is the question” by Richard Leasia, Esq., and Workplace Privacy – “New Rules, New Technologies, New Headaches: How to Manage the Evolving Demands of Workplace Privacy” by Christoper Cobey, Esq. The leadership sessions were: Creative Conflict– “Space Shuttle Lessons: How Squelching Conflicting Ideas Can Lead to Disaster” LaTonya Olivier, TPO Sr. Consultant, and Communication – “Speak the Truth..and Say It Like It Is!” by Melissa Irwin, TPO Sr. Consultant.

We want to thank Dennis Brown and his team of Littler Mendelson experts for their fabulous role in making this annual conference one to remember. Thank you to everyone who attended. TPO and Littler are already collaborating on exciting ideas for 2009, so don’t miss it!

Here is some more feedback conference participants shared on their program evaluations:

• Very informative. Good speakers.
• Excellent conference.
• One of the best seminars yet!
• Excellent! Uniformly high quality presentations.
• Handouts were wonderful.
• I enjoyed the speakers and felt that the “legalese” was broken down to layman levels.
• Great conference! Lot’s of great information and tools.
• Good event. Fun and educational environment.

Article written by: Jill Russell, sphr

Below is a recap by TPO of the main HOT topics Dennis and Marlene explained to the audience.

California Hot Topics


CA Hot Topic # 1 – Hiring Away Competitor’s Employees

Background: In the past it had been established that employers are generally free to pursue (solicit) the at-will employees of other companies for employment. Where a company could run afoul of that general allowance is if while pursuing those employees, the competitor commits an “independently wrongful act,” such as trade secret misappropriation, fraud, or antitrust violation.
 

New Information from 2007: Employers do not have to allege independently wrongful act beyond alleged solicitation of employees to state a claim for intentional interference with contract if employee’s contract is not for at-will employment. (CRST Van Expedited, Inc. v. Werner Enterprises, Inc. - March 15, 2007, 9th Cir.)

Littler’s Suggestion for Employers: Consider if employment contracts for specific terms of employment might at times be more beneficial than at-will employment.

CA Hot Topic # 2 – Disability Discrimination

Background: The California Fair Employment and Housing Act (FEHA) provides that employers do not have to hire or continue to employ "disabled" individuals who cannot perform "essential job functions" even with "reasonable accommodation."

New Information from 2007: The burden is on the plaintiff employee to prove s/he can perform the essential functions of the job. (Green v. State of California - August 23, 2007, California Supreme Court)

Littler’s Suggestion for Employers: Make documented and informed decisions when refusing to hire or terminate employees unable to perform essential job functions.

CA Hot Topic # 3 – 2007 Legislation

CA Minimum Wage Increase (AB 1835): Increases to $8.00 per hour on 1/1/08.

Considerations: The white collar exemption salary requirement increases to $640/week, $2,733.33/month and $33,280/year.

 

Cell Phones (AB 1613): Drivers must use a “hands free” device when talking on a cell phone and driving – enforcement begins 7/1/08.

Considerations: Employers requiring the use of cell phones should address the issue in handbooks and may need to reimburse the cost of procuring hands free devices. 

Lower Rate for Exempt Computer Software Professionals (AB 929): Reduced the minimum hourly rate to $36/hour for ALL hours worked.

 

Military Spouses Leave (AB 392): Public and private employers who employ over 25 employees must provide up to 10 days of unpaid leave for a "qualified" employee if the employee's military spouse is on a leave from deployment in a combat zone with the active duty, reserve military or National Guard during a period of military conflict.

Considerations: In CA, “spouse” includes registered domestic partner.

CA Hot Topic # 4 – Net Profit Based Incentive Plans

Background: In the past, companies who wanted to take their new income, subtract out net expenses and then disperse the profits to employees were prohibited from doing so for several reasons; of significance was the issue of not being able to deduct Workers’ Comp costs from employees. The inability to share profits with employees and have them understand the importance of expense management was frustrating for employers.

New Information from 2007: The CA Supreme Court now upholds the legality of net-profit based incentive plans. (Prachasaisoradej v. Ralphs Grocery Company - California Supreme Court, Aug. 23, 2007)

Littler’s Suggestions for Employers: Make sure that such plans are based on store/division/company-wide basis, not based on individuals or very small groups. Be careful not to apply a subtle pressure to not file Workers’ Comp. claims.

CA Hot Topic # 5 – Employee Reimbursements

New Information from 2007: Employers can reimburse employees for business-related expenses by paying increased compensation on a consistent lump sum amount.

Littler’s Suggestions for Employers: Ensure that the amount is greater than the actual expenses incurred by the employee and allow a mechanism for employees to challenge any alleged under-payments. On wage statements, separately identify the amounts that represent payment for labor performed and the amounts that represent reimbursement for business expenses.

HOT OFF THE CALIFORNIA PRESS in early 2008!

1. DFEH moves into the 21st Century and allows employees to make an appointment to file a formal complaint of employment-related discrimination or harassment online at www.dfeh.ca.gov.

Previously, those wanting to file complaints could only do so by phone 8 a.m. to 4 p.m. weekdays. The new automated system poses a series of questions to determine whether the situation falls within the department's jurisdiction and allows users to select an appointment time for a telephone or in-person interview at the nearest Department of Fair Employment & Housing office.

 

2. Medical Marijuana and Pre-Employment Drug Tests: Because marijuana use is still unlawful under Federal law, employers can deny employment when pre-employment drug tests show marijuana use, even where the applicant is using it for medicinal purposes.

Federal Hot Topics


FED Hot Topic # 1 – Pay Discrimination

Background: Title VII claims (discrimination claims based on race, color, religion, sex, or national origin) have a 180 day statute of limitations (or 300 days in a “deferral” state).

New Information from 2007: The statute of limitations was clar
ified in that for the plaintiff to recover, it must be shown that a pay decision within the charge-filing period was discriminatory (Ledbetter v. Goodyear Tire & Rubber Co., Inc. - U.S. Supreme Court, May 29, 2007)

Comments: Expect lobbying efforts to have the case overturned with the thought that while an employee may have originally had a wage complaint that began prior to the statute of limitations, each paycheck should be considered a new violation therefore allowing the claim to fall within the statute of limitations.

FED Hot Topic # 2 – Work Authorization

Background: Some states want stricter penalties for employment of unauthorized workers than those under Federal law.

New Information from 2007: The first state to take matters into its own hands is Arizona with the Nation’s strictest work authorization law that has two features: 1) imposes a business license penalty against any employer who knowingly or intentionally hires unauthorized employees and 2) requires all employers in Arizona to enroll in the federal government's "Employment Eligibility Verification Program" in order to confirm the work eligibility of all new hires
(for more information on the E-Verify program click here).

 

Suggestions for Employers:

1. Stay tuned as this is expected to be a hot topic for 2008
2. Seek advice of experienced immigration counsel regarding state-specific compliance.
3. Be prepared to see a legal action to challenge Arizona’s authority under federal law to    regulate immigration

4. Use the new Form I-9 released on November 7, 2007 (click here to download the new I-9 form)

FED Hot Topic # 3 – Social Security “No-Match” Letters

Background: For years employers have received “no-match” letters from the Social Security Administration (SSA) that the name and number do not batch the SSA records. Employers were not provided specific information on if employers should make termination decisions where employees do not rectify the mis-match.

New Information from 2007: The Department of Homeland Security (DHS) has taken the position that one form of constructive knowledge that an employee lacks employment authorization can occur when the issue of a "no-match" letter is not resolved. In August of 2007, DHS published Safe Harbor Procedures
that outlined the specific steps and timeframes that mis-match situations must have been resolved or termination would be required. In October 2007, a Federal Court ruled that the DHS Safe Harbor Procedures had “serious defects” and consequently suspended the DHS Safe Harbor Procedures.

Littler’s Suggestions for Employers: Stay tuned! The DHS is expected to make revisions by March 2008 which they hope satisfy the court’s concerns.

FED Hot Topic # 4 – Union-Related Communications

Background: Section 7 of NLRA protects employees’ right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.

New Information from 2007: The National Labor Relations Bo
ard clarified that a company CAN terminate employees for using company email for union-related solicitation where the employer has a policy prohibiting employees from using company email system "to solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations.”

Littler’s Suggestions for Employers: Before disciplining an employee for using corporate e-mail to communicate about union-related activities, an employer should confirm that the communication, in fact, violated existing policy.

Article written by: Melissa Irwin, sphr-ca

Workplace injuries, customer slip & falls, and complaints of harassment and discrimination - All of these must be investigated in a thorough, impartial, and timely manner. An unprofessional or biased investigation of these issues can cost you millions of dollars and/or the loss of your business, while an effective investigation can put the issue to rest in a fair, legal, and proper manner.

While you may conduct these investigations “in-house”, there is an inherent risk of perceived bias in using your own supervisors or managers. The best policy, in terms of risk management, is to use a neutral, third party investigator who will work with your business or labor law attorney to develop an effective case strategy.

It should be noted that under California law, these investigations must be conducted by a licensed private investigator and not just a “consultant.” TPO and therefore all TPO HR Consultants are licensed by the State of California Bureau of Security & Investigative Services, Lic.# PI-25638.

The California Business & Professions Code (7521) specifies that anyone (other than an insurance adjuster), who investigates any of the following, must be a licensed Private Investigator:

7521… “any investigation for the purpose of obtaining, information with reference to:
(a) Crime or wrongs done or threatened against the United States of America or any state or territory of th
e United States of America.

(b) The identity, habits, conduct, business, occupation, honesty, integrity, credibilit
y, knowledge, trustworthiness, efficiency, loyalty, activity, movement, whereabouts, affiliations, associations, transactions, acts, reputation, or character of any person.

(c) The location, disposition, or recovery of lost or
stolen property.

(d) The cause or responsibility for fires, libels, losses, accidents, or damage or injury to persons or to property.

(e) Securing evidence to be used before any court, board, officer, or inv
estigating committee. (Note: This would include the EEOC, DFEH, WCAB, EDD, Labor Commissioner, and any other agency)

…investigating, obtaining, and reporting to any employer, its agent, supervisor, or manager, information concerning the employer's employees involving questions of integrity, honesty, breach of rules, or other standards of performance of job duties.

Article written by: Brian Pratt, PI

Director of Investigative Services

FEDERAL

HR 4986 

On January 28, 2008 President Bush signed into law HR 4986 which significantly amends the Family Medical Leave Act of 1993 (FMLA) and became effective immediately. Eligible employees for FMLA are now additionally entitled to:

(1) Up to 12 weeks of leave for a qualifying exigency arising out of the employee’s spouse, child, or parent’s active duty (or notification of impending call or order to active duty) in the Armed Forces in support of a contingency operation; and

The Department of Labor (DOL) has not issued final regulations defining a “qualifying exigency” and employers are not required to provide this type of leave until the final regulations are issued. However, DOL and TPO encourage employers provide this type of leave liberally until final regulations are issued. If the employer chooses to provide this leave, it is up to the employer to define what constitutes a “qualifying exigency”. Some examples might be: to arrange for childcare; to see a child off or welcome them home; to attend pre-deployment briefings; to attend family support meetings; or attend reintegration meetings.

(2) Up to 26 weeks of leave in a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the spouse, child, parent or next of kin of the servicemember. Eligible employees are entitled to a combined total of up to 26 weeks of all types of FMLA leave.

*“Covered Servicemember” is a Member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status or temporary disability retired status, for an injury or illness incurred in the line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the member’s office, grade, rank or rating.

Note that because these provisions are federal, in some cases an employee may take one of these military leaves under FMLA and still be entitled to additional time off under California’s Family Rights Act (CFRA).

FMLA taken for family military leave runs concurrent with other leave entitlements as allowed by federal and state law. Employers should update their FMLA policies to reflect these amendments. If you have a TPO FMLA/CFRA Compliance Program, HR KIT or handbook, TPO can assist you in these updates.

For more information or to update your FMLA policies, please contact TPO at 831-647-7292.

Note: The two new military leave provisions for FMLA are separate from the new PROPOSED DOL Regulations which once approved attempt to clarify FMLA.

CALIFORNIA

Flexible Meal Periods (SB 1192)
This bill is passed would give employees greater flexibility in deciding when to take a meal break. Under current law, employees are mandated to take meal breaks by the fifth hour of work, forcing both employers and employees to take meal breaks at unreasonable intervals to be in compliance. SB 1192 seeks to address this problem by extending the time in which a meal period must be taken to any time before the sixth hour of work. SB 1192 is expected to be referred to the Senate Committee on Labor and Industrial Relations.

Small Business Family Scheduling Option (AB 2127)
This bill if passed would permit employers with 25 or fewer employees to approve the written request of an individual employee to work an alternative work schedule, for no longer than 10 hours per day within a 40 hour workweek, without overtime compensation being incurred, without undergoing the detailed procedures set forth in California Labor Code Section 511 involving a secret ballot election and adoption by 2/3 of employees in a work unit.

Article written by: Stacey Knapp, phr-ca

Do You Wish You Had An Extra Pair of Hands to Help with HR, including those Confusing State & Federal Employment Laws?

Now you can have an experienced HR Generalist in your operation a day or two a week without adding to your payroll staffing levels!

● Support your current demands with an extra pair of hands
● Make sure you are in compliance with state and federal employment regulations without missing deadlines
● Provide an additional skilled resource for your management team
● Help resolve small communications issues before they become bigger problems to manage
● Get those “hard to get to” HR & Risk Management projects off the check list
● Increase your efficiency and service

Click here for more information!

n YWCA

n Ramco Enterprises LP

n Mission Controls Company

n James Rheim, M.D. Inc.

n Shelter Outreach Plus

n Hayward Lumber

n Marx Towing

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: "The Community Foundation for Monterey County has been a TPO member for over eight years. How do you feel TPO contributes to Community Foundation’s success?

Todd Lueders, President/CEO:  “The Foundation has grown to include 23 staff members in 5 different locations. TPO has been a great help by providing reliable “as needed” guidance for regulatory compliance and handling both formal and informal employee/management issues. You have also been instrumental in our professional development efforts by presenting impactful training programs including legal compliance for harassment & discrimination prevention and communications programs including leadership skills and conflict management. We rely on your regulatory expertise, impactful training programs and appreciate your good advice.”

ABOUT The Community Foundation for Monterey County

“Here for Good”
The Community Foundation for Monterey County is dedicated to improving the quality of life in our county by raising, managing and distributing charitable funds to worthy organizations for the betterment of our community. Created in 1945 as the “Monterey Foundation” with all volunteers, 2008 marks the Community Foundation's 63rd year. Todd Lueders became the first paid staff member in 1981, and the Foundation became the Community Foundation for Monterey County (CFMC) in 1984.”

In 2007, under the skilled guidance of a nineteen-member Board of Directors, CFMC awarded 710 grants amounting to $7.63 million (which was $800,000 up from 2006) and boasts an 8% total return on investments. As the steward of more than 250 funds and total assets of over $143 million, the Community Foundation is now the largest grant making foundation on the Central Coast.

Among the many deserving recipients of grant funding, CFMC is proud to include the following special programs:

Neighborhood Grants Program

Started in 1997 with a grant from the Packard Foundation, the Neighborhood Grants Program is now fully integrated into the ongoing operations of the Community Foundation. This program helps community-based organizations throughout Monterey County improve their neighborhoods through small grants and workshops.

Management Assistance Program

The mission of the Management Assistance Program (MAP) is to improve and expand access to organizational capacity-building resources for non-profit organizations in Monterey County. The MAP includes affordable workshops, library resources, and consultant referrals for agencies seeking to strengthen their management.

Communities Advancing the Arts

Through this initiative, the Community Foundation for Monterey County works with local communities to improve the capacity and sustainability of arts organizations representing a wide range of cultural traditions in Monterey County, to increase their visibility among diverse audiences and donors, and to develop new donors and audiences for their work.

Literacy Campaign

The creation of the Literacy Campaign was a direct response to alarming local statistics: a quarter of the adult workforce reads below the fourth grade level and only two-thirds have completed high school. By helping others gain the literacy skills needed for fuller lives, greater job opportunities and successful families, the Campaign will improve the quality of life in Monterey County.

Women’s Fund of Monterey County

The mission of the Women's Fund of Monterey County is to effect social change as an advocate, catalyst, convener and funder to improve the quality of life for women and girls.

Please visit the Foundation’s website at www.cfmco.org for more information about CFMC.

(…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 the hiring process to identify the most qualified candidates and best match for a position in the shortest amount of time. Our program is unique, effective and affordable and provides the employer with a system for future recruiting projects!

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

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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.