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n  TPO News

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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 October - November '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 Sept. - Oct.  '08

Workshops Calendar

n FMLA/CFRA/PDL Compliance September 16

n Excelling as a First Time Manager or Supervisor

October 15

n Harassment & Discrimination      October 23

n Workers' Compensation Management      November 19

TPO in the Community!

November 11

LaTonya Olivier, SPHR-CA, M.Ed., CCP

Topic: Promoting Creative Conflict

Time: 12:00 - 2:00 pm

Location: Peachwoods Restaurant at the Inn at Pasatiempo, 555 Highway 17, Santa Cruz, California

Cost: NCHRA Members: $35 / General: $55

Day of event: NCHRA Members: $45 / General: $65

Registration: Contact Marlyn Gamble at (415) 291-1992

On July 31, 2008 the Monterey Peninsula Chamber of Commerce held its 22nd Annual Business Excellence Awards Dinner at the Marriott Monterey Hotel to honor local employers who are doing things right! TPO Human Resource Management is pleased to announce it is the proud recipient of the 2008 Business Excellence Award for Professional Services employers. TPO also won this award in 1997 and 2003, making TPO a three time winner!

Sponsored by First National Bank of Central California and other notable organizations, the annual Business Excellence Awards are designed to increase public awareness of the vital role that business plays on the Central Coast and to bestow recognition on employers who have achieved excellence in their fields. A distinguished committee of judges evaluated TPO’s credentials in key areas such as our Business Goals, Product/Service Quality, Employee Satisfaction, Performance Excellence, and Community Involvement.

Kelsey Escoto, MSOD, SPHR, who is a TPO consultant, was on hand to receive the award on behalf of TPO. "I felt like a celebrity and enjoyed my moment of fame on the podium,” Kelsey noted. Of course, she was quick to add that it is the entire staff at TPO who are the real winners. TPO’s reputation and good standing in the business community, as well as the good work TPO does with its clients, make it a place the entire staff is proud to be a part of.
 

We’re hearing from many of our clients about the effects of a down economy in the overall morale of their staff. The short list of solutions includes belt tightening, deadlines, coworker conflicts, production demands, client relations, burnout, boredom, stress, work/life balance, gas prices, personal challenges, mortgage payments, elder care, child care…the list goes on! These (and other things) can contribute to increased time away from work, errors, conflicts, and turnover, just to mention a few.

That’s depressing!

It’s no wonder studies show that employers who purposely integrate fun, humor, rewards and recognition have the lowest turnover and highest productivity. There are scores of books full of ideas from small to elaborate to institutionalize fun into your organizational culture. Just Google the phrase “fun at work” and you’ll find many of them. A problem with a number of these "fun" books is that they do not define what fun is and what rules the company should institute before opening up the flood gates, so proceed with some degree of caution!

For our clients we try to make our teambuilding and communications programs fun, and since we put into practice what we advise at TPO, we’ve engaged in a number of our own fun-enhancing outings over the years, including horse back riding, bowling, sailing, theme parks, contests, and more. It truly does bond the group and offers another reason to enjoy working together.

Last month, we participated in a unique field trip to GLAZES in Carmel Crossroads (www.glazes.com). We each had a budget to purchase an unfinished ceramic treasure, and then went about demonstrating our artistic (on some level) talent. We also collaborated on a group project as a going away gift for Stacey, who relocated to LA shortly after the event.

What are you doing to “lighten up” around your organization?

Let’s hear from you…email me at jillr@tpohr.com and I’ll compile a list of ideas and some basic guidelines for our next eNewsletter. After all, we have some of the smartest clients on record – and I’m sure you have a wealth of ideas to share! Also, give us a call about our FUN AT WORK training series!

Article written by: Jill Russell, SPHR

Lay-offs are sometimes unavoidable, TPO can help you be considerate in your treatment of those who leave and future-focused for those who stay through the use of customized Downsizing Services that provide:

1. Mechanics of a Layoff: Expert advice on what to do, when to do it and how to deliver the message.

2. Outplacement Services: Resume and Interview Skills workshops for employees who are released back into the job market.

3. Post Layoff Teambuilding: Explore ways to deal with the change in the organizational structure and staffing, an important step to “re-grouping,” setting future direction, handling feelings of guilt and fear and increasing communication and production capacity of employees while maintaining motivation and commitment to the organization.

Each phase of the process can be coordinated and choreographed to balance two key areas of concern – risk management and enhancing the employment relationship. All of the services are customized to meet the demands of individual organizations and employees. For additional information on our Downsizing Services, please contact TPO or your consultant. Don’t let the fear of the unknown hinder your ability to operate in these tough times!

Religious discrimination in this day and age? Surely, we’ve got that one handled by now? Following a recent sharp rise in religion-based discrimination claims, the federal Equal Employment Opportunity Commission (EEOC), has issued new guidelines in the form of a Compliance Manual on Religious Discrimination based on its belief that employers need a primer when it comes to respecting and accommodating the religious beliefs of an increasingly diverse workforce.

A recent Gallop poll indicates that Americans are increasingly open to and more tolerant of a range of religions and religious beliefs. That is the good news. Then, we read about a federal grand jury award in July of $6.5 million in Sacramento for a shocking case of reverse religious discrimination. In the case, an employee applied for a promotion and believed she was turned down because she lacked certain religious beliefs that were held by company managers and the candidate who was given the promotion. The jury agreed with the evidence and awarded her $647,000 for economic losses and $5.9 million in punitive damages.

The EEOC Compliance Manual on Religious Discrimination in the Workplace was issued on July 22, 2008 and can be found on the agencies website at eeoc.gov. Of particular note is the lengthy and careful definition of what a “religion” actually is. It also discusses a range of challenging workplace issues and suggests ways to deal with them. The following are a few examples from the Compliance Manual, put into “test” format by TPO as a preview of the material.

1. As an employer, you need to consider requests for which of the following:

   1. A Catholic employee who requests a schedule change so that he can attend church services on Good Friday?

   2. A Muslim receptionist who requests an exception to the company dress code to wear her headscarf.

   3. A Hindu salesperson who wants to wear her bindi (religious forehead marking).

   4. An employee who requests a schedule change to help prepare food for a church event.

2. An employee asks for time off to attend a New Year observance of Wicca. Her supervisor should:

   1. Deny the request because Wicca is an illogical collection of occult beliefs, not a religion.

   2. Approve the request as a personal belief system.

   3. Deny the request because it promotes spell-casting and tarot card readings, which reflect superstition.

   4. Approve the request because witchcraft has a long history.

3. Silvia has several tattoos on her arms and legs and recently added nose and eyebrow piercings. Her employer has a dress code that forbids visible tattoos and piercings. After talking to her, the manager should:

   1. Accept her claim that they reflect her belief in body art as self-expression.

   2. Accept her claim that they are symbols of a religious belief.

   3. Deny her request because she explained that the tattoos and piercings are her personal preference and not religious in nature.

   4. Deny her request because she explains is that they are symbols of death.

Answers:

1. Choices A. B and C need to be considered by the employer along with other legitimate requests for time off or exceptions to the dress code. Answer D is incorrect because the request is not directly tied to a religious belief as protected by Title VII.

2. Only answer B is correct. The law applies to religious beliefs even though others (such as employers) find them incorrect or incomprehensible.

3. Answer C is correct because Silvia’s personal preference for body art is not protected by Title VII as she has not demonstrated that it is related to a religious belief system.

Article written by: Susan Kettmann, SPHR

The California Legislature had until August 31 to debate and vote on more than 100 bills that they wished to send to the Governor’s desk for his consideration. Governor Schwarzenegger has until September 30 to approve or reject the bills; however these bills, and many others, may hang in limbo, since he has vowed not to sign any legislation into law until legislators approve a state budget.

• Workers Compensation (SB 1717) – If passed, would reverse previous workers compensation reforms and increase workers compensation costs for insured and self-insured employers by doubling permanent disability indemnity benefits paid to injured workers by 2011.

• Unemployment and Paid Family Leave (SB 1661) – If passed, would allow for an employee who is not reinstated to their job after taking time off to receive Paid Family Leave to be eligible for unemployment insurance. Paid Family Leave is wage replacement insurance and therefore does not guarantee time away from work in the form of a leave of absence; however, opponents of this bill contend that, if passed, it may force employers to choose between reinstatement and paying unemployment insurance.

• Medical Marijuana (AB 2279) — If passed, would require employers to not disqualify candidates based on their use of medical marijuana. While the use of medical marijuana is allowable in California, it is impermissible under federal law.

• Disability Access Compliance (SB 1608) – If passed, would provide a comprehensive reform that increases public access for individuals with disabilities while reducing unwarranted litigation.

• Single-Payer Healthcare (SB 840) – If passed, would establish the California Healthcare System to be administered by the newly created California Healthcare Agency under the control of a Healthcare Commissioner appointed by the Governor and subject to confirmation by the Senate. The bill would make all California residents eligible for specified health care benefits under the California Healthcare System, which would, on a single-payer basis, negotiate for or set fees for health care services provided through the system and pay claims for those services.

• Criminal History (AB 3063) – If passed, would prohibit an employer from asking an applicant for employment to disclose, or utilizing in an employment-related decision, information concerning a criminal conviction the record of which has been judicially ordered sealed, expunged, or statutorily eradicated, or information concerning a misdemeanor conviction for which probation has been successfully completed or otherwise discharged and the case has been judicially dismissed.

Χ Meal Periods (AB 1711) – If passed, would have offered a few clarifications, such as requiring that meal periods must be completed before the end of the 6th hour (as opposed to the 5th hour, as currently required). As written, however, the bill failed to provide ALL employees and employers in California with a clear solution to current meal period challenges, specifically the ability for employees to agree to waive their meal period.

X IRA’s (AB 2940) – If passed, would have make it easier for small-business owners and their employees to put money aside for retirement.

X Mandatory Sick Leave (AB 2716) – If passed, California would have become the first state in the country to require paid sick days for all workers. The bill would have required businesses with 10 or more employees to offer 9 sick days per year, and companies with fewer than 10 employees to offer 5 paid sick days.

X Workers Compensation (AB 2987) – If passed, would have eased administration of return-to-work provisions in workers compensation law.

The “Brinker” Case and Meal Periods in CA: some clarification and some caution!

• Background: At question was whether or not a class action lawsuit against Brinker Restaurant Corp (137 restaurants, including Chili's Grill & Bar, Romano's Macaroni Grill, and Maggiano's Little Italy) should be allowed for alleged break and meal period violations.

• Good News: The determination from the CA Appellate Court was that the lawsuit was improperly certified as a class action suit and cannot continue as such. In addition, the court made several important clarifications.

• Clarification Provided:

  1. Employers must only “provide” meal and rest periods (make them available), but they do not have to ensure that breaks are taken. Employers may of course, not impede, discourage, or dissuade employees from taking meal or rest breaks.

  2. While employers must authorize and permit employees to take rest breaks every four hours (or major fraction thereof), the break does not have to be in the middle of the work period if it would be impracticable to do so.

  3. Employers are not required to provide a meal period for every five consecutive hours worked, and the practice of "early lunching" (for example a meal period one hour into the shift)—which can result in an employee working more than five consecutive hours without a second meal break—is not prohibited.

  4. Employers can be held liable for employees working off the clock only if the employer knew or should have known that the employee was doing so.
      

• A Word of Caution: While this case is certainly positive, employers are well-advised to weigh their risks prior to changing a company policy. Further appeal to the CA Supreme Court is still a possibility. There are potential employee-relations implications of hastily changing a policy only to have to change it again in the near future. Each employer needs to weigh the information and make the best decision for their specific situation...accepting the risks involved with each. Two ends of the spectrum of options include:

  1. A more risk-tolerant approach: "Provide" meals (let employees know they can take them through handbook policies, memos, meetings and even documented on time records) and allow employees the ability to not take a meal period…and cross your fingers that the rules won’t be reversed by the CA Supreme Court or legislation!

  2. A more risk-adverse approach: Maintain the status quo of ensuring that meal periods are taken until the dust settles and a more informed decision can be made.

CA Supreme Court Rejects Noncompete Clause
Californians have the right to move from one company to another or start their own business and can't be prohibited by their employer from working for a competitor in their next job, the CA Supreme Court has recently ruled. In a unanimous decision, the justices said state law since 1872 has forbidden what are called non-compete clauses that restrict management employees' options after they leave a company, unless they fall within the statutory exception for the sale of a business.

Article written by: Melissa Irwin, SPHR-CA

n California Coastal

n Christopher M. Mule, DDS

n Growers Express, LLC

n ALBA

n Carrera Sprinkler Repair and Landscape

n Elkhorn Slough Foundation

n Enza Zaden

n RedShift Internet Services

n Monterey Credit Union

n Shore Associates

n Williams Dental Lab, Inc.

n Color Trends

n Discovery Charters

n Monterey Peninsula Country Club

n Monterey County Schools Workers Comp JPA

n Cypress Independent living

n age defy dermatology & wellness

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 Central Coast YMCA has been a TPO member for nine years now. How do you feel TPO contributes to your organization's success?

Sharon Gish, President/CEO: “TPO has been a great partner and you have been very instrumental in our success. In the last nine years, the Central Coast YMCA has grown to five branches in three counties with more than 500 employees throughout the year. The majority of our employees are part-time and many of them are teens who are just entering the workforce. Consistency and fairness in our personnel policies and practices helps build staff morale and create a stronger sense of teamwork.

TPO has provided not only the technical information needed to ensure exemplary HR practices, but you have mentored us as we developed our own human resources department. Your staff is outstanding and always helpful when we need advice on a challenging issue. Over the years, you have assisted us in staying current on HR regulations, trained us on a variety of topics and provided us with excellent advice. Our employees are our biggest asset and you have helped us in our quest to attract and retain outstanding staff."

ABOUT Central Coast YMCA

The Central Coast YMCA is a charitable organization offering membership and programs that build a healthy spirit, mind and body. The YMCA embraces diversity and is open to men, women, boys and girls of all ages, races, ethnicities, religions, abilities and circumstances. More than 25,000 people are involved in YMCA programs each year at one of five branches located in Salinas, Watsonville, Monterey, Soledad and Hollister.

Programs include health and wellness classes, teen and family activities, youth sports programs, day camp, after school care and volunteer opportunities. Financial assistance is available thanks to generous donors whose contributions to the annual YMCA Community Support Campaign help kids and families in need.

All YMCA programs promote the values of caring, honesty, respect and responsibility.

At the YMCA it is the belief that:

• Every child and youth will deepen positive values, their commitment to service and their motivation to learn.

• Every family will build stronger bonds, achieve greater work/life balance and become more engaged with their communities.

• Every individual will strengthen their spiritual, mental and physical well-being.

To learn more about Central Coast YMCA, Visit www.centralcoastymca.org

“Holiday pay” and the impact on overtime requirements.

There are two important points to remember:

1. Private employers are not required to be closed on holidays, nor are they required to provide premium pay to employees in non-exempt positions when employees work on holidays.

2. Overtime is based on actual hours worked, therefore hours paid as holiday pay are not considered when calculating hours worked.

When determining holiday policies, TPO works with each client to help them consider a number of issues, including the following:

• Will your business close on certain holidays or does it remain open up to 365 days a year?

• Who is eligible for holiday pay? Only 40+ hours per week employees? Or, is it prorated to part-time workers? What about Introductory status employees?

• When an employee works on a holiday, what will the premium rate in addition to their regular rate be? For a total of 1.5 times the regular rate? 2.0 times the regular rate? Other?

• When an employee is not working on a holiday, will the employee receive holiday pay? Will it be a flat amount? An average daily amount? The number of hours s/he would have otherwise worked on that day?

• Does it make sense to eliminate “holiday pay” and instead put extra days into vacation or Paid Time Off (PTO) that can then be “cashed-out” to receive extra compensation on a “holiday” of the employee’s own choosing. This is an especially important question if an employer provides “floating holidays” since they may be considered the same as vacation by the State of California which will be discussed in our next Tip.

Remember that employees in exempt positions do not get holiday premium pay, rather, their salary continues uninterrupted on that day. An exempt employee who works on a holiday might be allowed to take another day off if the employer chooses.

Next Wage & Hour Quick Tip: “Floating Holidays” and when they are a vested, accrued benefit, and when they aren’t.

Recently, we had to recruit a new Project Manager. In the past, I have just put all our applications into a folder and thrown them away at the end of the year. After reading your Records Retention information in my HR Administration Kit, I wonder if I have been doing this right. Help!

Filing, filing, filing. We all hate it, don’t we? The only thing we probably hate worse is not being able to find the answer to questions that legal or governmental administration persons ask us.

There are really two issues you raise with this question.

1. How long do I have to retain my records?

2. How should I best keep my recruitment records to document my processes?

Since you already have our HR Administration Kit with the guidelines for document retention, I will address the second part of the question in more depth.

Maintaining good recruitment records is a very important task. It is how you will be able to defend your selection or non-selection of specific applicants. There is nothing worse than being asked months later to “prove” you didn’t discriminate against an applicant or group of applicants and scrambling to remember what you did.

When we do HireRight recruitments for our clients, we have a system designed with that in mind. Here are some of the elements we advise you put into your own system:

1. 1. First things, first. Keep a copy of the job description and all advertisements placed. They should be in a file somehow identified as that specific recruitment effort. This means that you should keep the information sent to any job boards, newspapers, websites, etc. so you can show how and what you advertised.

2. Keep all of the applications considered. This group would include all the ones specifically sent in for that open position, any you may have pulled from previous efforts or any applicants or resumes that may have been passed to you by employees.

3. Keep a copy of all of your correspondence to applicants. Good HR practices, as well as simple courtesy, are to contact each applicant at least twice:

   1. Let them know you received their application/resume.

   2. Let them know they did or did not get the position.

   A copy of any letter you send (master copy, not for each applicant) should be kept in the same file along with a list of which applicants received the letter. If you had correspondence with a specific applicant that was different from the standard ones, you should keep it as well.

4. Assessments used in selecting the right person are very important to keep and to be able to produce. This includes information such as:

   1. Telephone screen script

   2. Ability tests or work provided

   3. Interview questions, rating sheets, and evaluations

   The responses from all individuals who were the subject of assessments should be kept and as well as comparison of outcomes.

It is important to remember that, like most good HR practices, documentation is the key. Always think about how you would answer the question: “How did you decide that this person was the best candidate for the position?”

Remember, Recruitment files should generally be kept for two years unless they are a part of litigation.

For more information on our HR Administration Kit which includes records retention and file maintenance or for HireRight services, contact your TPOHR Representative.

Article written by: LaTonya Olivier, SPHR-CA

Melissa Irwin, SPHR-CA, Senior TPO Consultant & Training Specialist, Board Chair, Volunteer, Mom

Q. When not working with TPO clients where will you find Melissa?

A. Out and about, strengthening the community!

She is a well-recognized face at TPO, having provided training programs and consulting support for TPO clients for the past 13 years, and she leads just as busy a life outside of work! Living and working on the Central Coast, Melissa takes pride in contributing to the community in the following ways:

• Providing numerous community training programs to strengthen local employers through groups and associations such as the Employer Advisory Councils (EACs) and Chambers of Commerce.

• Chairing the Board of Directors for the Central Coast YMCA, which provides oversight for 5 YMCA branches in the tri-county area.

• Volunteering time (and a lot of patience!) as a parent helper in her daughter’s classroom.

• Raising a wonderful family in our beautiful community!
   

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Employment Upd@te is a publication of  TPO HUMAN RESOURCE MANAGEMENT. Copyright ©2004-2008. All rights reserved.
TPO's Employment Upd@te may not 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.