n  TPO Celebrates 15 Year Anniversary

n  Upcoming Training Calendar

n  Legislative Update

n  Reasonable Accommodation

n  Harassment Prevention Training for Boards

n  HR Rumors

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 Monterey
- October 18, 25, November 1, 9:00 am - 4:00 pm

Management Excellence
Series

- a training series focusing on practical leadership and communication skills to help managers develop or refine their effectiveness as leaders!

n Campbell
- September 12, 19, 26, October 3, 8:30 am - 4:30 pm

n Monterey
- September 13, 20, 27, October 4, 8:30 am - 4:30 pm

Specialized Workshops

n Prevention of Harassment & Discrimination
September 21

n Excelling as a First Time Manager
November 2

n Prevention of Harassment & Discrimination
November 15

Member Orientation

n October 12, 8:30 - 9:30

Thank You!

It's true what they say... we couldn't have done it without you! Thank you to all of our wonderful members and clients who have placed their confidence in TPO to support your HR needs and initiatives throughout the years. Naturally, we value every TPO member, but want to recognize Inns by the Sea and Monterey Peninsula Airport District who have both been members since we first began – 15 years!

We also couldn't have done it without the outstanding support of current and past TPO STAFF. All TPO consultants are required to be certified by the National Human Resource Management Institute as Senior Professional of Human Resources (SPHR). While each consultant is a skilled HR "generalist" and trainer, each one offers particular specialty expertise. Whether the compensation, labor relations, hiring, executive coaching, or investigating discrimination claims, we provide a work environment where these highly capable professionals can express their creativity and technical expertise for the benefit of our clients. Our administrative support team is second to none. Each of us shares an unyielding commitment to continuous improvement, and unsurpassed customer satisfaction. TPO Staff bios can be found on www.tpohr.com. Again, we value every staff member, but want to specifically recognize Melissa Irwin who has been with TPO for 11 years and made countless contributions to TPO and our client's success! And of course, we couldn't do it without Blanca Corcoles our incredible Support Specialist.

HOW WE GOT STARTED:

TPO was founded in Carmel in 1991 by Jill and Robert Russell, entrepreneurs with an innovative vision of providing HR support services on an "outsourced" basis. Our business concept involved joining similar sized businesses into a "Consortium". To transform our business idea into a business reality, we conducted a viability study of businesses with a high probability of needing our services (including Inns by the Sea and MPAD!). The outcome of the viability study was several signed contracts, and a sense we had found a much needed niche. By offering "outsourced" Human Resource Management support and services to multiple employers, we provide high-level expertise at an affordable cost.

WHERE WE ARE NOW:

Since then, we have grown from a hard working husband and wife team in a downstairs home office, to a hard working team of ten with professional office space in Monterey and Gilroy that we are all proud of. The Monterey Office is equipped with a state-of-the-art Professional Development Center where we hold ongoing leadership skills training programs for our clients and members. We have carefully built our client base to include more than one hundred twenty-five annual member companies, and scores of nonmembers who call on us for training, special projects and critical support. Our clients include profit, nonprofit, public, private and special district employers.

TPO's VISION:

To be the premier provider of HUMAN RESOURCE MANAGEMENT support services in Central CA.

TPO's MISSION:

TPO HUMAN RESOURCE MANAGEMENT provides cost-effective "outsourced" support to help employers solve their FOUR BIGGEST CONCERNS:

1. CONFUSION about all of the state & federal laws that apply to all employers.

2. FRUSTRATION with handling conflict & other employee-relations challenges.

3. CONFIDENCE that managers are trained about laws and how to be good leaders.

4. KNOWING where to get expert help that won't cost an arm and a leg.

TPO's VALUES

n  Provide Excellent Client Service       

n  Do Things We Are Proud Of

n  Have Integrity                                

n  Be Experts in our Field

n  Give Accurate & Timely Advice         

n  Focus on What Matters

n  Build Collaborative Relationships      

n  Be Involved in our Community

n  Be Cost-Conscious for TPO & Our Clients   

n  We work to provide sound technical advice that balances awareness toward regulatory requirements with implementation strategies that promote positive employer/employee relationships.

Thank you again for your continued support!

Actively in CA Legislative System

Minimum Wage Increase –

AB 1835 and SB 1162 If passed, would increase the minimum wage from $6.75 to $7.25 per hour effective July 1, 2007, and further increase it to $7.75 per hour effective July 1, 2008 and indexing increases every year thereafter.

• Minimum wage increases are being discussed on many fronts. At the Federal level an increase was rejected. On the CA front, AB 1835 and SB 1162 continue to make their way through the legislative system. The Governor has previously vetoed minimum wage legislation that included indexing. The Governor currently seems to support a $1.00 increase, providing that future raises are not indexed. Stay tuned to learn what the Wage Board (appointed by the Industrial Welfare Commission) will report on the outcome of its deliberations at an August 24, 2006 meeting.

Sexual Harassment Training – 2095 If passed, would modify the current sexual harassment training statute by limiting the training requirements to employers with 50 or more employees in California, and by limiting the training requirement to supervisory employees within California.

Independent Contractors – AB 2186 If passed, would crack down on employers that intentionally misclassify employees as independent contractors in order to avoid unemployment insurance responsibilities with a penalty of up to $50,000 if the employer willfully, purposefully, or intentionally misclassifies more than one employee as an independent contractor and there's evidence that such misclassification is a pattern or practice.

Gender Pay Equity Violations – AB 2555 If passed, would impose new paperwork burdens by mandating damage awards and new civil penalties for gender pay equity violations.

Healthcare –

SB 1414 If passed, would require employers with more than 10,000 employees to allocate at least 8 percent of payroll to employee health care or directly to Medi-Cal.

AB 840 If passed, would create a benefits fund that would be financed by employers that do not offer health insurance to their workers, individual premiums and state appropriated dollars.

Unemployment Compensation – AB 2209 If passed, would make any agreement between an employer and an employee that prohibits the employee from filing a claim for, or appealing a decision of denial or reduction in, unemployment compensation benefits against public policy and therefore void.

"Household" and "Personal Attendant" Employees – AB 2536 If passed, would apply the requirement that overtime be paid for hours worked in excess of eight in a workday or 40 in a workweek to personal attendants, live-in household employees, and non-live-in household employees.

Gas Tax Increase — ACA 36 If passed, would impose a 25-cent increase over five years, none of which will be used for transportation.

You are the voice of the business community – be heard!

Go to www.leginfo.ca.gov for more information on bills, including:

1. Click on "Bill Information" to enter the bill number and track the progress of the bill through the Legislature

2. Click on "Your Legislature" to link to all Legislators

No Longer in CA Legislative System

Arbitration – AB 2371 If passed, would have eliminated an employer's ability to mandate the use of the far less expensive and faster process of arbitration rather than court to resolve discrimination claims under the CA Fair Employment and Housing Act.

As TPO Consultants, we frequently take calls from Members and Clients regarding "reasonable accommodation." Most of the time, the member or client will not say the words "reasonable accommodation", rather the conversation turns to the topic after discussing the situation at hand. Maybe the caller says, "I just had an employee give me a doctor's note that says she needs to work part time hours." The conversation could begin with, "I just had an employee ask for some time off to attend therapy sessions." In either case, the discussion turns into one of reasonable accommodation and what that means.

The purpose of this article is to give you some tips and guidelines about "reasonable accommodation" and the interactive process that state law requires employers engage their employees in. As a basis to build upon, we must mention the Americans with Disabilities Act (ADA) and California's Fair Employment and Housing Act (FEHA). Under these regulations, employers are required to provide disabled employees and applicants with reasonable accommodations as part of the duty to avoid discrimination on the basis of disability. FEHA contains broad definitions of physical disability, mental disability, and medical condition. It is the intent of the Act that the definitions of physical disability and mental disability be construed so that applicants and employees are protected from discrimination due to an actual or perceived physical or mental impairment that is disabling, potentially disabling, or perceived as disabling or potentially disabling. In addition, FEHA has determined that the definitions of "physical disability" and "mental disability" under California law require a "limitation" upon a major life activity, but do not require, as does the ADA, a "substantial limitation." This distinction is intended to result in broader coverage under state law than the federal law.

The spirit of "reasonable accommodation" is to provide individuals with disabilities an equal chance to succeed in employment and enjoy the same privileges and benefits of employment as those without disabilities. When these individuals do not feel that they have been given that equal chance, they may file a disability discrimination claim. Many of these claims arise from a misunderstanding about reasonable accommodation. The first thing employer's should understand about reasonable accommodation is that there is no "one-size-fits-all" answer when it comes to reasonably accommodating an employee or applicant. Rather, it is a process which begins with a simple negotiation with the applicant or employee. This process has come to be known as an "interactive process."

The employer has a duty to enter into this interactive process with an applicant or employee after one expresses a need for accommodation. This may come in the form of the aforementioned doctor's note or request for time off, and the use of the words "reasonable accommodation" is not required. This simple negotiation should start with an exchange of ideas about what accommodations appear to be necessary and why. If the need for accommodation is obvious to the employer, no medical proof should be requested. If it is not an obvious need, then the employer may request medical proof of need and should ask specific questions only related to the ability to perform the job in question.

This leads us to a topic that becomes vitally important, defining job functions. Simply stated, job functions are either essential or marginal. In short, a function is determined to be essential when the position exists to perform that function. The removal of those functions would change the job fundamentally. Employers should examine the job description (detailed job descriptions are highly recommended for all positions) and examine the job with the supervisor. For example, the job description might say that Account Management is a responsibility of the job. However, it may not specifically state that client visitation is part of the account management which would require travel to the client's location. In this case, travel is an essential function of the position.

FEHA gives the following definition: "Reasonable accommodation" may include either of the following:

1. Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities.

2. Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

Accommodations may take a variety of forms, and may include such things as:

n  Altering start or end times for work;

n  Extending a leave of absence beyond the period provided by FMLA or PDL or company leave policy limits;

n  Making ergonomic improvements or purchasing assistive devices or software to allow performance of the job;

n  Modifying workplace policies, such as "no fault" attendance policies;

n  Telecommuting;

n  Assigning a parking space closer to the entrance;

n  Placing the employee in another available position after exhausting the possibility of returning the employee to work in his former position.

It is important to reiterate that reasonable accommodation is a part of this interactive process, not a one-time event. In some cases the accommodation agreed upon does not work, or ceases to work. At this time, the negotiation should start again.

Reasonable accommodation does not require employers to provide accommodations that waive essential functions of the job or waive consistently applied production standards. Employers are not required to create a job for someone, or bump an employee from a job. In addition, promotion to another position is not a reasonable accommodation.

If you have questions about reasonable accommodation please contact your TPO Representative.

"Boards" are included in the list of who should participate in the sexual Harassment Prevention Training required by AB1825. Based on TPO's research into the matter, here is what we know:

There is nothing in the current or draft regulations that specifically addresses board of directors. However, it could logically be deduced that such training is probably required and absolutely a suggested best Risk Management practice. In coming to that decision a few things are considered:

1. The FEHA definition of "supervisor" is adopted by the draft regulations. A supervisor is any individual having the authority:
... to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action… if the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

2. The policies TPO (and others) write typically list a variety of people an employee can complain to...often with the "escape valve" of the Board Chair, Personnel Committee Chair, or such similar Board position. If that person is expected to know how to handle a complaint, s/he better have training. Also, the Executive Director (or similar position) serves "at the pleasure of the Board" with reviews done often by the Executive Committee or such similar...sounds like a "supervisor" to us.

3. Some agencies have made the decision to train their boards. Specifically, minutes from King River Conservation District were sent to me which state: "the training was being provided to the District's Board of Directors (Directors) in order to comply with the mandates set out in AB 1825, noting the Association of California Water Agencies Joint Powers Insurance Authority has concluded that for the purposes and intent of this law the Directors fall under the definition of "supervisors"."

... the Association of California Water Agencies Joint Powers Insurance Authority has concluded that for the purposes and intent of this law the Directors fall under the definition of "supervisors"."

TPO's assessment is to (at minimum) train any Board position listed in the harassment policy and/or who impacts the performance of the Executive Director. Best practice would be to train the entire board. Certainly cost is an issue for the non-profits...they will have to weigh it as a risk-management decision and decide accordingly. Give us a call for more information about TPO's AB1825 compliance training!

SPEAKING OF HARASSMENT!

Mercury News settles sex harassment case

PAPER TO PAY $150,000 TO FORMER MAILROOM WORKER

By Scott Duke Harris, Mercury News

The Mercury News will pay $150,000 to a former mailroom employee to resolve allegations of same-sex sexual harassment by his male supervisor, according to terms of a settlement announced today by the U.S. Equal Employment Opportunity Commission. The Mercury News, which denied wrongdoing, will also reissue its sexual harassment policy and provide additional training to its mailroom employees under terms of the settlement.

…although he complained to his immediate supervisor, the company failed to investigate or take corrective action in a timely manner.

Mark Newton, a console technician who had worked at the Mercury News for more than 13 years, said that he had been subjected to about eight months of repeated harassment by a male supervisor -- including unwelcome sexual comments and inappropriate touching. Newton said that although he complained to his immediate supervisor, the company failed to investigate or take corrective action in a timely manner. He took his complaint to the EEOC, which filed the civil case under the 1964 Civil Rights Act. The Mercury News agreed to settle after pre-suit negotiations with the EEOC. "I am probably the last person you would expect to find seeking help from the EEOC -- a middle-aged white male, married with children,'' Newton said in a statement. "The harassment I faced at work is something no one should have to go through -- male or female. It was very destructive... I can now move on with my life." EEOC Regional Attorney William R. Tamayo described the settlement as "fair and reasonable."

I heard that there are new rules about the required Sexual Harassment Training for supervisors. What do I need to do?

In December of 2005, the California Fair Employment & Housing Commission proposed regulations related to required Sexual Harassment Training for supervisors in organizations over 50 employees. Although revised proposed regulations are now out, they will not become actual regulations until they are adopted by the Commission.

As you are already aware, AB 1825 required California employers with 50 or more employees to provide at least two (2) hours of interactive training on Sexual Harassment in the workplace for all supervisors. The initial training was to be completed by the end of 2005 and each supervisor would have to be recertified every two (2) years after that.

As with all laws, many questions came up that needed clarification and it is an effort to explain some of the answers to these questions that is underway with the proposed regulations.

Here are some of the items addressed in the new proposed regulations that attempt to clarify the process:

1. The regulations clarify that governmental and quasi-governmental entities such as boards, commissions, local agencies and special districts are considered "political subdivisions of the state." This means that these groups must provide such training regardless of number of employees.

2. Contract workers are to be included in the count of total employees for determining whether or not the employer has 50 workers. Also the proposed regulations state that the employees may not all be located in California.

3. Supervisors who require training must include individuals working in another state, but who directly supervise employees located in California. It also states, however, providing such supervisory training to an employee does not infer that the employee is a supervisor.

4. The two-hour requirement is clarified to say that training is two hours of classroom or two hours of webinar training or, in the case of an e-learning program, a program that takes the supervisor no less than two hours to complete. This would mean that any e-learning solution would have to include a method of insuring the content would require a full two hours of time to get through it just as it requires webinar and classroom training to have a method of verifying the employee attended the full two hour session.

5. Qualifications are established that the instructional designer and trainer must both meet minimum knowledge levels regarding discrimination and harassment issues. They must have legal education or practical experience in harassment, discrimination, and retaliation training and knowledge of California and federal laws prohibiting unlawful harassment, discrimination and retaliation to be able to answer questions from the participants.

6. Each format for such training is specifically identified and requirements are set:

A. Classroom – Must be developed by an instructional designer, led by a qualified trainer and provided in a setting away from the supervisor's daily duties.

B. E-Learning – Content must be reviewed and approved by an instructional designer and must provide a link or directions on how to contact directly trainers or educators who must be available to answer questions and provide guidance and assistance on harassment training issues within a reasonable period of time after the supervisor asks the question but no less than two business days after the question is asked.

C. Webinar – Seminar delivered via internet must be created and presented by a qualified trainer and transmitted real-time. It must document and demonstrate that each supervisor who was not physically present in the same room as the trainer nonetheless attended the entire training and actively participated with the training's interactive content and had an opportunity to have questions answered.

7. The requirement that supervisors be trained every two (2) years after the original course must be tracked on a person by person basis so that no individual supervisor goes beyond two (2) years before retraining.

8. Employers are required to keep records for each supervisor for at least two (2) years which include:

A. Date of Training

B. Type of Training

C. Name of trainer, educator or instructional designer

9. Original training for supervisors must occur within six (6) months of meeting the terms for requirement. Those events would include:

A. Hire by organization into a supervisory role

B. Promotion to supervisory role from non-supervisor role

C. Company meeting the fifty (50) employee minimum

10. Guidelines describing some things that must be included in the content are also provided. In the newer recommended regulations, there are two things of particular note for an employer:

A. Employees must sign acknowledging receipt of a copy of his/her employer's Harassment Prevention policy.

B. Information and discussion of other types of discrimination and harassment may be included in the two (2) hour training.

The proposed regulations contain more specific information related especially to definitions, content and qualifications of trainers. If you are interested in seeing the full text of the proposed regulations from June, you can view it at http://www.fehc.ca.gov/pub/harassment_training.asp.

Training offered by TPO has always and continues to meet all requirements. Additionally, our classroom training provides the verification of full attendance and we assist with the tracking required by the regulations on a per supervisor basis.

If you have any questions about training for your organization or if you need to schedule employees for training, please contact your TPO Representative.

The final written comment period for these regulations closed on July 21, 2006. At its next Commission meeting, August 29, 2006, at 3737 Main Street, Alvarado Room 207, Riverside California, the Commission will decide whether to adopt the June 20, 2006, modified regulations or make further changes to its proposed regulations. A copy of the Commission's Agenda for its August 29, 2006, meeting and the specific time that the regulations will be considered will be posted on the FEHC website as soon as it is available.

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TPO HUMAN RESOURCE MANAGEMENT provides "outsourced" support
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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.