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With over
200 public, private and nonprofit employers in attendance,
TPO's February 9 conference received rave reviews.
Richard
Simmons filled the morning with a predictably entertaining
and profoundly informative session. At lunch, we learned
about some of the challenges and strategies affecting CA
employers in Sacramento from Secretary of State Bruce
McPherson. Then our afternoon session leaders shared
insightful and practical expertise to keep us on the leading
edge:
Terrence L. Garciulo
www.makingstories.net;
Robert Wendover
www.oncloudnine.org;
Martha Finney
www.marthafinney.com and,
Romanus Wolter
www.KickStartGuy.com. |
Photo provided by
Monterey County Herald |
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PS: Congratulations
to Romanus who has just officially become "Trump
University's Success Guru"!
Again, we
would like to thank all of our cosponsors for their
assistance with spreading the word about the conference:
InterWest Insurance Services, Inc., Monterey Peninsula
Chamber of Commerce, Monterey County Herald and
CareerBuilders.com, Santa Cruz Sentinal and
SantaCruz
JobFinders.com, Hayashi & Wayland, Pinnacle Business
Services, TAB, JL White International, and the SCCMA.
And thanks
to all of you who attended!
If you weren't there, you truly
missed
"CA's MUST ATTEND EMPLOYER EVENT!"
Click here for Monterey County Herald's feature article
covering the day.
We look forward to seeing you all at
TPO's 2007 Annual
Employment Law & Leadership Conference! |
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 A
Recap of Richard Simmons, ESQ
Presentation at TPO's Employment Conference on 2/9/06
(Prepared and provided by TPO)
With a brilliant combination of legal expertise and cunning
humor, Richard Simmons was able to drive his point home:
"Employers cannot sit idly by and hope that ignorance of a
rule is a defense or that a failure to comply with their
state and
federal obligations will go undetected."
2006 marked a year with less of an emphasis on new
legislation (laws) and more of an emphasis on
judicial
review (court cases) dealing with clarifying employment laws
from the past.
Court Cases |
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CA Supreme Court Decisions:
n
Personal
Liability 8/05 class action lawsuit claiming that in
addition to the company paying $210 million for
misclassifying exempt / non-exempt positions and the
associated overtime penalties, that the eight executives of
the company should also be
personally liable for the misclassification.
While the CA Supreme Court did not find personal liability,
one Justice sent a letter to the CA Legislature asking for
more personal liability when forming employment laws. |
"There are 2 to 8
new wage and hour
class action suits
filed every day in
California."
"It is out of control
and the wheels are
off the wagon!"
Richard Simmons, ESQ |
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n
Partial-Day Deductions of Vacation/PTO Time for Exempt
Positions 7/05 decision that now aligns CA with a Federal
allowable practice of making partial-day deductions of
exempt employee's vacation/PTO banks of time.
Side Note from Richard Simmons: While this may be allowed
according to the CA Supreme Court, it
may not make sense
depending upon your organization. For organizations where
employees in exempt positions work Monday Friday, 9-5, it
is one thing to deduct ½ day of vacation; however if you
have employees in exempt positions who work 6 days a week,
12-14 hours a day, a deduction for a ½ day off might not be
an employee relations-friendly practice.
Side Note from TPO: While Richard Simmons was very clear
in his opinion that CA employers may now make such
deductions, there is information from other reputable
sources indicating continued caution. Such sources state
that the recently revised DLSE (the agency that hears and
decides on CA Wage & Hour cases) Enforcement and
Interpretations Manual still provides that partial day
deductions cannot be made from vested wages (vacation/PTO).
n
Harassment and Favoritism 7/05 decision that
widespread favoritism can be harassment if it sends the
message that preferential treatment occurs if an employee is
engaged in a real or perceived romantic relationship with a
manager, if not engaging in such a relationship results in
deferential treatment, or if women are in general
characterized as "play-things."
Although an isolated instance of favoritism on
the part of a supervisor toward a female employee with whom
the supervisor is conducting a consensual sexual affair
ordinarily would not constitute sexual harassment,
when such sexual favoritism in a workplace is sufficiently
widespread it may create an actionable hostile work
environment. |
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n
Physical Attractiveness 2005 decision that showed a
manager who refused to terminate an "unattractive" employee
and replace the employee with one who was "hot" could have a
claim for retaliation for not following the directive, even
though she never complained internally about the process.
Essentially, "a whistleblower without a whistle" according
to Richard Simmons. |
"Never tell a supervisor
to hire a "HOT"
employee!"
Richard Simmons, ESQ |
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CA Court of Appeals Cases:
n
Regular Rate of Pay 8/05 case clarifying that the
"regular rate" includes
non-discretionary bonuses (bonuses
based on productivity, quality and similar calculations) and
shift differentials.
To calculate overtime, the "regular
rate of pay" must be calculated each workweek.
"Regular Rate" equals all compensation divided by the
total hours worked
n
Meal Periods For every meal period that an employee does
not take, the employer owes an additional hour of pay. At
odds in the CA court system is whether that pay is a
"penalty" (1 year statute of limitations) or a "wage" (4
year statute of limitations). Due to conflicting appellate
rulings, expect the CA Supreme Court to take on the issue.
n
"Sue Your Boss" 11/05 case allowing an employee to
bypass reporting claims to the Labor Commissioner and,
instead, suing the employer directly. An employer must
respond to any letter addressing such claims in order to
reduce liability. For more information, read
"Sue Your Boss"
(PAGA) in this issue.
Circuit Court Appellate Cases:
n
Pre-hire Process, 9th Circuit (CA's Jurisdiction) An
offer of employment can be made contingent upon the
successful completion of a "medical exam" however; such
exams must be completed after
ALL other non-medical
post-offer considerations (background checks, etc.).
n
Personality Tests, 7th Circuit The MMPI (Minnesota
Multiphasic Personality Inventory) is a personality test
which is not allowed in the employment process because it
inappropriately divulges characteristics which might be
covered under disability anti-discrimination laws.
CA Court Case: |
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n
Meal Periods 12/05 a jury awarded $172 million in
damages, including $115 million in
punitive damages, to
Wal-Mart employees in a class action lawsuit who accused the
giant retailer of violating California law covering meal
period which requires workers take a half-hour meal period
during any work period of more than 5 hours per day. The
high dollar amount of the punitive damages was sent as a
"message" to employers that such practices would not be
tolerated. |
"Class action lawsuits:
great for plaintiff
attorneys
bad for employers"
Richard Simmons,
ESQ |
CA Legislation
n
Final Paychecks Final paychecks may be made by direct
deposit to the employee's account, however, the deposit must
be made within the required timeframes: 1) immediately upon
"termination", 2) on last day of work if "resignation"
period is more than 72 hours, and 3) within 72 hours if "resignation" period is less than 72 hours.
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Audit the High Risk Areas
n
Meal Periods 5 different "zones" depending on the length
of the shift:
1. Working no more than 5 hours = no meal period required.
2. Working more than 5, but no more than 6 hours = 30
minutes, however may be waived through mutual agreement.
3. Working more than 6 hours, but no more than 10 hours = 30
minutes. |
"Watch out for
slippage!"
Richard Simmons,
ESQ
If an employee works one
minute over the zone, they move into the next zone. |
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4. Working more than 10 hours, but no more than 12 = two, 30
minute meal periods, however one may be waived through
mutual agreement.
5. Working more than 12 hours = two, 30 minute meal periods
with no provision for waivers.
n
Pay Stubs 9 items must be on each pay stub:
1. Gross wages earned
2. Total hours worked for non-exempt positions This is
true for all non-exempt positions, therefore, "salaried",
non-exempt employees should also list all hours actually
worked rather than an automatic number each day. This
requirement is one of many reasons to not have "salaried",
non-exempt positions.
3. The number of piece-rate basis
4. Deductions |
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5. Net wages
6. Dates the pay-period covers
7. Employee's name and social security number (no more than
the last four digits)
8. Name and address of the legal entity that is the employer
9. All applicable hourly rates in effect during the pay
period with corresponding hours worked for each hourly rate |
"Either
you can audit your employment
practices, or a plaintiff's attorney
can audit them for you!"
Richard Simmons,
ESQ |
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n
Harassment Take all "affirmative" steps to prevent
harassment. An employer's first line of defense, called the
"Avoidable Consequences Doctrine" may reduce the liability
and/or damages from a claim of harassment if two things
exist: The employer took all steps necessary to prevent
harassment in the workplace, and the employee did not
complain or take other reasonable steps for the employee's
own protection.
1. Training CA law requires employers with 50 or more
employees to train managers/supervisors/leads on preventing
harassment in the workplace. The requirement extends to
employees who are not in CA, but who do supervise CA
employees.
Richard Simmons Recommendation: In order to use training
as a viable defense in a harassment complaint, it is
recommended that ALL employers train
ALL employees in
ALL
states.
Side note from TPO: TPO provides
"The Prevention of
Harassment and Discrimination in the Workplace" training
both at TPO's training location in Monterey (next
program - May 17) as well as at
the client's site. Additionally, TPO can arrange for remote
broadcast of the training to reach employees in other
locations.
2. Policy Ensure that Harassment Policies address how and
to whom employees can complain.
3. Signature Obtain a signed acknowledgement of the
Company policy upon hire. |
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If you attended the Conference, you know that Richard
Simmons spoke enough words
to fill many pages with text. The
purpose of this recap was to hit the highlights.
If you have
any questions, please contact TPO via
www.tpohr.com.
Richard Simmons can be reached via
http://www.smrh.com.
His
books can be purchased through Castle Publications
www.castlepublications.com
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 Compliance
Audit Practices Under the CA Private Attorneys General Act
2004 (PAGA) standards have never been more important
especially in California, which is certainly one of the most
(if not the most) litigious state in the country.
Richard J.
Simmons, who recently spoke at our TPO Employment Law &
Leadership Conference, recommends that audit practices
include key compliance areas such as those covered by the CA
Labor Code and enforced by the Labor Commissioner's Office
(such as posting notifications, meal and rest periods and
payment of wages).
State law
permits individual employees to file claims with the Labor
Commissioner alleging violations of specific provisions of
the Labor Code. As an alternative, PAGA allows employees to
sue employers directly (therefore the name "Sue Your Boss
Law") in court for damages, reinstatement and other
appropriate relief if the Labor Commission declines to bring
an action based upon a complaint.
According
to PAGA, in order to sue an employer, an aggrieved employee
must first give written notice by certified mail to both the
Labor and Workforce Development Agency (LWDA) and the
employer. The employer has the right to 'cure' the alleged
violation within 33 calendar days of the postmarked
date of the employee's notification. If the Labor and Workforce Development Agency
intends to investigate, it must first notify the employer
and employee within 33 days.
What Should
You Do?
n
Respond
immediately (at a minimum within the 33 day period) to any
written notice - consider contacting a labor attorney or TPO
for consultation.
n Employers have
the right to "cure" alleged violation within 33 days and
notify employee and LWDA.
n
Comply
with all provisions of the California Labor Code, including:
Breaks,
meals, final pay, pay stubs, overtime, minimum wage, etc.
n
Post all
required employment notices (Order
your posters on TPO's website)
n
Do not
retaliate against an employee who files a claim with a state
labor agency.
As a
reminder, TPO Members receive an Annual HR Check-Up
as part of their membership where these areas are addressed
(more
about Annual Membership HR Check-ups here). During the fourth quarter of membership, TPO consultants
meet with members to: discuss and confirm the HR initiatives
accomplished within the previous period; ascertain what the
member views as outstanding needs, priorities and challenges
with regard to HR practices, and provide critical
information to ensure the organization is aware of current
legal requirements and up to date with best employee
relations practices to optimize productivity and employee
retention. Participating in an annual HR Check-Up can go a
long way toward ensuring you are in the best possible
position to defend against "Sue Your Boss" actions. We also
provide this service to non-members for a fee.
If you
have any questions regarding PAGA or scheduling an HR
Check-Up, please contact us at
www.tpohr.com. |
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 If
you're coasting on recent workers
compensation premium reductions,
you may be going downhill....
"Is it true that rates have really gone down on
Worker's Compensation premiums in CA?"
 According
to the Workers' Compensation Insurance Rating Bureau,
average statewide insurer rates declined 18%
between the first half of 2005 and the third quarter of the
year. However, opponents of the reforms have prepared three
versions of an initiative to reverse the beneficial changes.
The three versions of the "Worker Empowerment Act" are:
n
Version 1 which would allow injured
workers, 90 days after injury, to choose to remain within
the workers' compensation system or file lawsuits
against their employers.
n
Version 2 which would allow injured
workers to choose their treating physicians.
It would also repeal Section 4600.2 of the Labor Code,
which allows employers and insurers to contract with third
parties to provide medications.
n
Version 3 which would increase
disability benefits, restore the presumption of
correctness once enjoyed by treating physicians and require
the Workers' Compensation Appeals Board to liberally
construe statutes to the benefit of injured workers.
"So what's next, increased premiums AGAIN? SAY IT ISN'T
TRUE!"
It COULD be! Don't Get Too Comfortable with Reduced
Workers Comp Costs resulting from recent reform
measures...we ALL better get involved NOW to combat current
efforts to unravel the progress!
Clearly, reversing the recent and successful workers comp
reform measures are BAD BUSINESS for California. But,
believe it or not, that is exactly what some business
opponents have in mind! How do we respond to such
nonsense? One answer is to be proactive with your
trade associations and with our state
legislators.
You can also respond by working with TPO and other concerned
employers. Dave Dias, with InterWest Insurance Services,
is gathering employer interest and support to personally
meet with our friends in the legislature who oppose these
job-killer initiatives - and who support the recent reform
measures that have proven to reduce employer premiums. Dave
would welcome your input and involvement. You can contact
Dave at ddias@iwins.com,
or call him directly at 831.688.1082. |
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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
relations. |
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