CA Employment Essentials (HR101)
A training series focusing
on the regulatory
HR best practices
- the information & skills supervisors & managers
keep themselves and the organization out of hot water!
October - November '08
A training series focusing
on practical leadership and
communication skills to help
develop or refine
effectiveness as leaders!
Sept. - Oct.
Excelling as a First Time Manager or
Harassment & Discrimination
Workers' Compensation Management
TPO in the
Promoting Creative Conflict
12:00 - 2:00 pm
Peachwoods Restaurant at the Inn at Pasatiempo, 555 Highway
17, Santa Cruz, California
NCHRA Members: $35 / General: $55
Day of event: NCHRA Members:
$45 / General: $65
Contact Marlyn Gamble at (415) 291-1992
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
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
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.
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
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:
of a Layoff: Expert advice on what to do, when to do
it and how to deliver the message.
Outplacement Services: Resume and Interview Skills
workshops for employees who are released back into the
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
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!
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
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
employer, you need to consider requests for which of
A Catholic employee who requests a schedule
change so that he can attend church services
on Good Friday?
A Muslim receptionist who requests an
exception to the company dress code to wear
A Hindu salesperson who wants to wear her
bindi (religious forehead marking).
An employee who requests a schedule change
to help prepare food for a church event.
An employee asks for time off to attend a New Year
observance of Wicca. Her supervisor should:
Deny the request because Wicca is an
illogical collection of occult beliefs, not
Approve the request as a personal belief
Deny the request because it promotes
spell-casting and tarot card readings, which
Approve the request because witchcraft has a
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
Accept her claim that they reflect her
belief in body art as self-expression.
Accept her claim that they are symbols of a
Deny her request because she explained that
the tattoos and piercings are her personal
preference and not religious in nature.
Deny her request because she explains is
that they are symbols of death.
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.
Only answer B is correct. The law applies to religious
beliefs even though others (such as employers) find them
incorrect or incomprehensible.
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
by: Susan Kettmann,
California HR Legislation
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.
On the Governor’s Desk for His Consideration
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
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
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.
Court Cases of HR Interest
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.
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.
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.
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.
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.
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.
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:
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!
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
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.
by: Melissa Irwin,
Christopher M. Mule, DDS
Growers Express, LLC
Carrera Sprinkler Repair and
Elkhorn Slough Foundation
RedShift Internet Services
Monterey Credit Union
Williams Dental Lab, Inc.
Monterey Peninsula Country
Monterey County Schools
Workers Comp JPA
age defy dermatology
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!
The Central Coast YMCA has been a TPO member for nine years
now. How do you feel TPO contributes to your organization's
“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."
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
To learn more about Central
Coast YMCA, Visit
“Holiday pay” and the impact on overtime requirements.
There are two important
points to remember:
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.
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
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.
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. 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
There are really two issues you raise with this question.
How long do I have to retain my records?
How should I best keep my recruitment
records to document my processes?
Since you already have our
Administration Kit with the guidelines for document
retention, I will address the second part of the question in
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. 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.
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.
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:
Let them know you received their
Let them know they did or did not get
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.
Assessments used in selecting the
right person are very important to keep and to be able
to produce. This includes information such as:
Telephone screen script
Ability tests or work provided
Interview questions, rating sheets,
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
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:
Irwin, SPHR-CA, Senior TPO Consultant & Training Specialist,
Board Chair, Volunteer, Mom
When not working with TPO clients where will you find
A. Out and about, strengthening
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:
community training programs to strengthen local
employers through groups and associations such as the
Employer Advisory Councils (EACs) and Chambers of
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
Raising a wonderful family
in our beautiful community!
Meeting your needs and exceeding your expectations!
TPO HUMAN RESOURCE MANAGEMENT provides "outsourced" support
to help employers understand and
comply with confusing employment laws,
train managers to
avoid costly mistakes and promote positive employee
We hope you enjoyed reading TPO
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