A training series focusing on the
regulatory compliance and
- the information & skills supervisors & managers need to
keep themselves and the organization out of hot water!
A training series focusing on
skills to help
develop or refine
Harassment and Discrimination at Work
Using TPO's Leave Compliance System
Excelling as a First Time Manager
TPO in the Community
NCHRA - Key Elements of a Successful
NCHRA - The ROI of HR: Top Measures
for the Business
here for a full list of upcoming Presentations!
Join us for breakfast
Join us for a quick
overview of how TPO Membership can save you not only
time, but money!
Wage and hour
laws are one of the areas where California employers
generally have to pay far more attention to State law than
Federal. California’s provisions are usually more generous
for employees. The Department of Labor (DOL), however, has
recently released a Notice of Proposed Rulemaking (NPRM)
that would place some requirements on California employers
not currently in place.
While this is
only a notice of proposed action, employers
should understand that the current political climate in the
federal agencies support such actions. Here are the new
items that would be required:
employment classification an employer wants to claim as
exempt from the provisions of the Fair Labor Standards
Act (FLSA) must complete a classification analysis
demonstrating how the position meets one of the
classification analyses performed and used to claim an
exemption must be retained by the employer and provided
to any Wage and Hour Division enforcement personnel who
must notify any employee classified in a position
declared exempt from FLSA of the fact and provide a copy
of the classification analysis to the employee.
must notify all employees of their rights under the FLSA
and provide them with information on hours to be worked
and methodology for computation of wages.
employers are required to post information on the FLSA in
the workplace, but there are no requirements for
notification of individual workers. Both the DOL and
California require employers to maintain records of hours
worked and computations of wages for all employees, but
there is also no requirement for notification to individual
employees of such details.
Enforcement Stepped Up and Errors are Costly
It is important
to remember that the DOL has also recently hired thousands
of new enforcement personnel to investigate the reports they
receive and the misuse of exemptions is high on the list of
concerns. These claims can become very costly for employers.
Generally, when investigators target a business, the
investigator reviews all employment classifications declared
by the employer to be exempt. When a classification is found
to be inappropriately claimed as exempt, the employer must
pay all employees who were ever in that classification
whatever back wages are owed. They can and generally do
require the employer to go back three years of time for each
employee although if they find the employer to have
maliciously maintained the exempt status, the time period
can be up to five years. These payments are to current
employees as well as former employees.
So, if an
employer had a classification paying about $25 per hour that
generally had 10 people who had filled those positions over
the last 3 years, the employer would owe back wages in the
amount of $195,000 if the employees claimed they worked 10
hours a week overtime. This total does not include any
penalties that would be included by either the State or the
If the position
does not meet the somewhat less stringent federal test for
exemption, then it would almost certainly not meet the
California standards thus opening the employer to other
possible penalties as a result. This can be a very costly
error for organizations to make since none of these numbers
account for the tremendous administrative and possible legal
costs as well.
Difficulties in Determining Status are Common
frequently have difficulty determining which jobs are exempt
from the State and Federal statutes and generally seek
assistance in making those determinations currently. These
new rules would make that decision making process much more
formal. Most employers will likely turn to HR consultants or
attorneys to assist with the process since it will require a
written analysis of the position. TPO’s
system includes an instrument designed
to collect data that employers can use if they choose to
attempt the process themselves.
exemptions exist from wage and hour laws:
Each of these
exemptions has very specific requirements regarding duties
and responsibilities that allow employers to claim the
Some of the most
common misconceptions regarding exemption from wage and hour
laws include the following items:
employees who get a salary are exempt.
can agree to be exempt from wage and hour by individual
employee’s title includes supervisor, manager or
director; the job is exempt.
position is determined to be exempt, it will always be
It is important
to remember that only the duties actually performed by
employees in the position can determine the exemption
status. Titles, method of pay, contracts all are irrelevant
to whether or not the position is exempt from wage and hour
laws either on the federal or state level.
What to Do
believe some of their positions should be exempt from
federal wage and hour laws should be prepared to have those
positions analyzed either by well qualified classification
analysts internally or by external experts. This is only a
first step, however, as noted above. Just because a position
is exempt this week doesn’t mean it will be in two years.
TPO recommends that employers review job descriptions
annually as a part of the Performance Management Process
which is outlined in our
HR Administration Kit. If job duties have changed, a new analysis
should be performed and the file updated.
We can Help
In addition to
the tips in this article and the tools we have highlighted
above, TPO staff can work with our legal partners or your
employment law firm to collect, process and analyze the
positions and create the required position analysis for your
records. If you are interested in getting started on this
process, contact your TPO HR Consultant to schedule a time
to discuss your needs.
“Exempt/Nonexempt – That is the Question” Training at
To provide some
additional information, TPO has scheduled our very popular
hour and a half briefing on “Exempt/Nonexempt – That is the
Question” for two dates. The first will be on August 12 at
8:30 AM in the Silicon Valley area and the second on August
25 at 8:30 AM in Monterey. These filled up completely last
time so give us a call or go
reserve your seat now. Price is only $50 – Free for our
Members, of course.
Article written by:
you know that TPO is licensed by the State of California
(PI-25638) to provide investigative services?
that so important? Because in CA, to conduct a
lawful investigation, the investigator must be:
fall into the trap of hiring a non-licensed consultant.
After hours of difficult interviews and related expense,
their work can be, and usually is, disqualified as
inadmissible in court. So then you face duplicating
information gathering interviews with employees and
witnesses - and doubling the cost!
investigative services offer a unique combination of
advanced HR expertise (in other words, we pay close
attention to the employee relations implications of these
processes), and being licensed PI’s. We know of no other
firm in CA offering this solid formula. Not only do we bring
years of experience, judgment and credentials – combined
with the latest technology – to client investigations
including alleged harassment, discrimination and
malfeasance; we also work with our clients to reduce risk,
liability and loss by creating solid policies and systems.
TPO can investigate and analyze root causes, patterns and
trends to reduce exposure and liability – and then recommend
Some of the
situations that TPO-HR can help you with are:
• Workplace Relationships
• Intellectual Property
• Computer Use
• Special ”Discreet” Inquiries
• Skip Tracing
wait until a situation of discrimination, harassment or
other malfeasance arises – give TPO a call to review your
current policies, employee relations issues and overall
prevention systems today!
For more information on TPO’s Investigative Services, please
call us at 1-800-277-8448 or email
PS: Be sure your
supervisors and managers have participated in recent
Harassment & Discrimination prevention training.
June marks an
important point in the CA legislative process as a bill must
pass out of its house of origin in order to stay in the
Flexible Schedules (SB 1335) – This bill
would have simplified the process for establishing
flexible work schedules, allowing for four 10-hour days
each week (4/10), nine-hour days with one day off every
two weeks (9/80), or other similar schedules. Employers
are left with the existing requirements of “alternative
workweeks” which require secret ballot elections and
apply to work units, not to individuals. This bill
is “dead” and failed to pass out of its house of origin
before the required deadline.
• Criminal Convictions (AB
2727) — This bill would have imposed new
standards and criteria on employers who deny an
applicant on the basis of a criminal conviction record.
This bill is “dead” and failed to pass out of its
house of origin before the required deadline.
New Organ and Bone Marrow
Donations Leave Mandate (SB 1304) — If
passed this bill would require employers to provide paid
leave of up to 30 days for organ donations and 5 days
for bone marrow donations, on top of existing sick and
vacation leaves. Current location: Assembly.
New Mandatory Bereavement Leave Mandate (AB 2340) —
this bill would require every employer to provide every
employee with up to 3 days of unpaid bereavement leave.
This bill was introduced by Mr. Monning (D-Carmel).
Current location: Senate.
Consumer Credit Reports (AB 482) —
this bill would implement restrictions on businesses to
use consumer credit reports as part of the background
check process). Current location: Senate.
Agriculture – Collective Bargaining (SB 1474) —
passed this bill would remove the requirement for secret
ballot elections in the collective bargaining process.
Current location: Assembly.
State Health Care Reform —
More than 20
bills have been introduced to address the complex
requirements of the federal government. When these bills
are further in the legislative process, TPO will further
report on their status.
Article written by:
Melissa Irwin, SPHR-CA
…a voluntary resignation of employment.
no legal requirement considering the number of days an
employee must have missed scheduled days of work under a
“no-call, no-show” policy in order to consider it job
abandonment or a voluntary resignation of employment. Most
common is a 3-day policy, however, some clients with more
demanding scheduling requirements may choose a 2-day policy.
Following are 5 steps to best handle “no-call, no-show”
Create a Policy:
Employee Handbooks should state the specific number of
days missed for the absence to be “no-call, no-show.”
Attempt to Contact the
Employee: When an employee doesn’t show up for
scheduled work, it is appropriate to call the employee
to inquire the nature of the absence and to determine
the next step. Document each attempt and note the name
of the person making the contact, the time of the
contact, the method of contact (call to specific number,
e-mail, etc.) and the result (employee’s response,
message left, etc.). If the employee has a valid reason
for the absence and indicates s/he will return the next
day, or if s/he request time away from work, process
according to your policy. If the employee doesn’t
respond to any of your contacts continue to #3.
Send a Letter:
After the third day (or second, if that is your policy),
send a letter (certified, return receipt with a copy
sent regular mail) stating the facts of the absences,
the details of attempts to contact the employee and what
is required of the employee.
Document a Voluntary
Separation of Employment: If the previous steps have
been taken and the employee does not respond within the
required timeframe, a final letter indicating that the
Company considers the employee to have voluntarily
resigned is usually appropriate.
for Unemployment Purposes: If in the future the
employee files for unemployment benefits, the employer
can usually successfully contest the claim by providing
the above documentation.
A “No-Call, No-Show”
sample letter is just one of the many items in TPO’s
Article written by:
Melissa Irwin, SPHR-CA
On June 22nd, DOL clarified FMLA definition of "son or
daughter" in relation to "in loco parentis" which previously
examined both day-to-day care and financial support when
determining "in loco parentis" status. This recent Federal
interpretation provides that either day-to-day care or
financial support may establish an in loco parentis
relationship where the employee intends to assume the
responsibilities of a parent with regard to a child. For
more specific examples and the entire DOL document go to:
Article written by:
Robyn Schiller, SPHR-CA
- Scotts Valley
andrew smith co.
ECKHART SEED CO. -
SALINAS MUSHROOMS -
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 Santa Clara County Medical Association and
Monterey County Medical Society have been TPO members for 16
years! How do you feel TPO contributes to the organizations’
William C. Parrish, Jr., Chief Executive Officer:
"TPO adds to the success
of our organization in two ways. 1) TPO is a most valuable
resource in the management of our personnel and any such
issues that arise...from training, employee handbook
creation, consultation, to problem intervention/resolution.
In small to medium size business like ours, it is impossible
and impractical to have multiple experienced and
credentialed human resource professionals on staff; and
unfeasible to personally stay current on all issues and
changes that impact successful management. 2) TPO is a
wonderful resource that we are able to recommend to our
members when they face potential issues or need assistance.
The quality and service TPO provides allows us, and our
members, to focus on what we do best while
creating/maintaining a positive work environment. This
relationship creates a win/win/win situation where all
SCCMA and MCMS
The Santa Clara County Medical Association (SCCMA) and the
Monterey County Medical Society (MCMS) are professional
associations representing physicians and their patients in
all modes of practice and specialties, including medical
students and residents.
It is the mission of the SCCMA and MCMS to act collectively
for our members by promoting:
Excellence in the
provision of quality, ethical health care;
The health of our
social, and professional integrity and well-being; and
The common goals of
Through our efforts, and those of the California Medical
Association, we have provided the opportunity for physicians
to focus more time on treating patients and less time
worrying about the hassles of practice management. Organized
medicine has helped preserve the cap on awards in medical
malpractice cases, otherwise known as MICRA, resulting in
stabilized malpractice insurance costs in California not
enjoyed in other parts of the nation. If you are not already
a member, and you are an MD or DO, please consider joining
today. Our strength and influence grows with our increasing
membership, so please help do your part for organized
For more information please
just taken over as HR Manager and our I-9’s are a mess. But
if I conduct a review and make corrections now, won’t that
put us in a worse place if we were ever audited? I’m not
sure I want to open up that can of worms!
though past violations cannot be retroactively corrected,
based on the ongoing requirement to be in compliance,
employers should take the necessary steps to bring their
practices into compliance with regulations. If I-9’s are
found to be inadequately completed, and the employee is
still currently employed, then there should be no error that
cannot be corrected. True, the document was incorrect to
begin with and also true that it would now not be
technically correct within the required 3 days of hire, but
making the corrections now should put the organization in
much better favor with the regulatory agency if ever
File your I-9s in 2 binders The first for current employees,
filed alphabetically. The second for terminated employees
filed by year, chronologically by termination date. This
way, you can more easily dispose of documents 1 year after
termination. Also, if your I-9 practices are audited, you
will have all current documents in one place.
Article written by:
Robyn Schiller, SPHR-CA
TPO has created a series of
programs and products that provide HR Practitioners with the
knowledge and tools needed to effectively manage all of the
leaves provided by your company.
Training: FMLA/CFRA/PDL Compliance –
A Fundamental Training class on how to integrate the
leaves as required by law. Learn the intent of each part of
the leave process and the requirements as well as best
practices. ($89 for Members/$109 for Non-Members)*
TPO Leave Compliance System – A complete program
to guide you through the ins and outs of managing leaves in
California. It includes guidance customized to your
company’s leave programs as well as all of the forms,
letters and tracking you need to manage it. ($575 for
Members/$750 for Non-Members)**
Using TPO's Leave Compliance System
*** – Focuses on
utilizing TPO's Leave Compliance System. This is a workshop
where participants will actually be walking through
scenarios and completing the work required at each step.
Real life (simulated) experience! ($89 for Members/$109
DVD’s of each training course
– Attendees for either course can purchase a DVD of the
class to review over and over. ($35 each for Members/$60
each for Non-Members)
Purchase the complete package
now and get both classes and the Compliance System plus the
DVD’s for a special price
$750 Member/$950 NonMembers
*Ask us about affordable Membership that provides great
benefits as well as price reductions!
**Ask us about pricing for a complete HR Administration Kit
that provides not only the Leave Compliance, but forms,
guidance and information for all the life stages of
***This class will require participants to have
an updated HR Administration Kit from TPO or at least an updated FMLA/CFRA Leave
Classes Scheduled for
November 16 – 9 AM
– Noon – Monterey
Leave Compliance System
July 21 – 9 AM – Noon – San Jose
August 31 – 9 AM -
Noon - Monterey
Administering FMLA Leave
(Employers not covered by CFRA/PDL) To be announced – call
to get on our waiting list!
Meeting your needs and exceeding your expectations!
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