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Continuing
our long-time partnership, TPO and Littler will guide you
through an informative day, balancing both Legal and
Leadership Best Practices to prepare you for 2008!
Mark your
Calendar...
Tuesday,
January 30, 8:00am – 4:45pm
Embassy Suites
Monterey Bay
Click here to
register!
Who Should Attend?
Business Owners, Managers, HR,
Risk Management and Legal Counsel for Public, Private and
NonProfit Organzations
CLE Credits
This program is approved for 5
hours of continuing legal education credit by the State Bar
Association of California
PHR/SPHR Certification Credits
This program is approved for 5
recertification credit hours toward PHR and SPHR
recertification through the Human Resource Certification
Institute (HRCI). |
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Details provided in upcoming
newsletters, or call our office to learn more! |
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On October 10, 2007, a federal judge issued a preliminary
injunction temporarily preventing the Department of Homeland
Security (DHS) from implementing the regulations issued
regarding how employers are supposed to respond to a
“no-match” letter from the Social Security
Administration (SSA) until the court makes a final ruling,
after trial, on whether or not the rule is legal. The
injunction will remain in place until it is either
overturned on appeal or the judge makes a final ruling after
trial. This will require a full hearing to be conducted
on the issues so either a permanent injunction is issued or
the preliminary injunction is dissolved and the regulation
is allowed to be implemented.
These regulations were
originally to go into effect on September 14, 2007. DHS and
SSA had announced that they intended to send out no-match
letters to more than 140,000 employers, with each letter
including an insert from the DHS explaining the DHS
regulation and safe-harbor procedure. This Court Order now
prohibits the SSA from sending the DHS insert with its
no-match letter but does not prohibit the SSA from sending
no-match letters. The SSA may continue to send out no-match
letters as they have in the past, although they have
indicated that they will not send out the 140,000 no-match
letters, even though they would not contain new DHS language
or reference the “Safe Harbor” procedures.
What should employers do?
Employers are not required to take the follow-up actions
that had been contained in the DHS’ Safe Harbor regulations
which were set to be included with SSA no-match letter. In
fact, employers who take the additional steps that were
contained in those Safe Harbor regulations may expose
themselves to the risk of liability for violating federal
anti-discrimination laws. That risk would be caused by
employers taking actions that are not required by the
current regulations and are not protected by law because the
new regulations are not in effect.
Employers, however, should be proactive and have procedures
in place to respond to future no-match letters from the SSA
and limit the likelihood of discrimination or unfair
immigration-related employment practice charges.
No-Match Letters
No-match letters are sent by Social Security Administration
(SSA) to employers where Social Security Numbers (SSN) do
not match the name on file with the SSA. These letters do
not imply that you or your employee intentionally gave the
government wrong information about the employee's name or
Social Security number. Nor does it, by itself, make any
statement about an employee's immigration status. There are
many reasons for a mismatch between employer and SSA
records, including clerical errors on the part of the
employee, the employer or the government. An employer who
takes negative action based on nothing more than a no-match
letter may, in fact, violate anti-discrimination laws.
Responding to a No-Match Letter
Reasonable HR procedures in responding to future SSA
no-match letters include:
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Employers
should check to see if the name and number combination
on the letter match what is in the payroll system and
human resource management system (HRIS).
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Review
actual documentation in the organization’s
personnel/payroll files to compare the documentation to
what is on the letter and in the payroll system/HRIS
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Resolve
any internal errors.
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If
employer documentation shows no discrepancies, they
should promptly request the employee confirm that the
name and SSN in the employer’s records are correct.
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In
accordance with the written notice’s instruction, if
any, send employee written notification of the no-match
status and ask that the employee contact the Social
Security Administration (SSA) to resolve the
discrepancy.
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The
employee should receive verification from the SSA to
provide to the employer if it is an error on the part of
the SSA and a receipt or letter that new documentation
is being provided.
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If the
employee does not provide such information, the employer
should NOT offer the employee a chance to complete a new
I-9, nor should the employer terminate the employee’s
employment. Those two provisions were part of the DHS
safe harbor requirements, which are not in effect due to
the hold.
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If the
employee is no longer employed at the time of the
no-match letter, employers should still recheck all of
the documents for that employee and resolve any error
they find in that research.
New Hire
I-9 Form Completion
Important things for employers to remember when verifying
employment eligibility at hire:
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Employers
may not specify which documents from the lists provided
for I-9’s an employee presents.
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Employees
may not work beyond 72 hours without having
provided the necessary documentation to show they are
legally allowed to work.
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Only
original documents are acceptable for the employer
to review and you must accept documents that appear to
be genuine.
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Documents
that establish employment eligibility that have
expiration dates (other than a US passport) must be
reverified and a reminder system should be put in place
to ensure the updating of expired documentation occurs
in a timely manner.
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Train
hiring managers at remote locations on completing the
I-9 process.
-
Retain I-9 forms separate from employee’s personnel file
and follow retention guidelines
Stay
tuned…
If the regulations do go into effect, TPO will offer
guidelines outlining adopted safe-harbor requirements, as
well as providing “HR Best Practices” on related procedures.
These guidelines would include a 2-page Tracking Form that
can be photocopied and used to respond to “no-match”
letters, as well as a sample letter to communicate with
employees if appropriate. Additionally, TPO will be
scheduling clinics for hiring managers on recommended
procedures and I-9 Form completion. |
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In
addition to past HR Legislation recaps in TPO eNews
documents (click
here to go to view previous eNews issues), the following
are employment-related items on the HR horizon.
CALIFORNIA:
PASSED
_________________________________________________________________
Military Spouse Leave (AB 392), took effect
immediately upon signing on October 9, 2007 and applies to
employers with 25 or more employees. Eligible employees may
be granted up to 10 unpaid days off to spend time with a
spouse who is on leave from military deployment. Employees
must provide employers written documentation certifying the
spouse will be on leave from deployment within two business
days' notice of receiving official notice. Eligible
employees are a spouse of a member of the Armed Forces,
National Guard or Reserves who has been deployed during a
period of military conflict and who works for more than 20
hours per week.
_________________________________________________________________________________________________
The Governor had until October 14 to sign or veto bills that
made it to his desk after passing the Senate and Assembly.
Of particular interest were the 9 employment-related bills
that the Governor VETOED:
VETOED
_________________________________________________________________
 CA Family Rights Act (AB 537)
– This bill if signed by the Governor would increase the
circumstances under which an employee is entitled to
protected leave pursuant to the Family Rights Act by (1)
eliminating the age and dependency elements from the
definition of "child," thereby permitting an employee to
take protected leave to care for his or her independent
adult child suffering from a serious health condition, (2)
expanding the definition of "parent" to include an
employee's parent-in-law, and (3) permitting an employee to
also take leave to care for a seriously ill grandparent,
sibling, grandchild, or domestic partner, as defined.
Paid Family Leave (SB 727)
– This bill if signed by the Governor would expand Paid
Family Leave (PFL), a wage replacement insurance program
administered by the Employment Development Department, to
care for the employee’s grandparents, grandchildren,
parents-in-law, and siblings.
Discrimination (SB 836)
– This bill if signed by the Governor would add “familial
status” to the list of prohibited bases for employment
discrimination under the California Fair Employment and
Housing Act (FEHA).
Independent Contractors (SB 622)
– This bill if signed by the Governor would attempt to
prohibit deliberate and willful misclassification of
employees as independent contractors by employers. It would
authorize the Labor and Workforce Development Agency to
assess specified civil penalties against those in violation
of the bill and would also authorize employees who suffer
actual harm to bring actions for these civil penalties.
Bereavement Leave (SB 549)
– This bill if signed by the Governor, would expand
employer’s liability for a new protected bereavement leave
for employees which would prohibit the discharge,
discipline, or any manner of discrimination against an
employee for inquiring about, requesting, or taking up to
four days of bereavement leave off upon the death of a
spouse, child, parent, sibling, grandparent, grandchild, or
domestic partner. TPO
NOTE: Bereavement leave is one of the few
employer-provided benefits which currently is not regulated.
Employer Provided Health Care Coverage (AB 8) – This bill if
signed by the Governor would require employers to provide
health care coverage or pay a new payroll tax. This bill is
broad in scope and provides no exemptions, but does not
apply to the self-employed. Opponents contend that AB 8
would not make health care coverage any more affordable for
the employer, even though high costs are the main reason
employers can’t provide health benefits.
While AB 8 does not
yet specify the level of taxation (a percentage of payroll)
for employers who do not provide health coverage, opponents
believe the tax increase needed to finance the level of
benefits are likely to be significant.
Employment Records (AB 1707)
– This bill if signed by the Governor would require
employers to maintain employment records for 4 years after
termination, and would require employers to provide
inspection and copies of all documents within 21 days of a
request made by a current or former employee, or their
representative.
Wages (AB 435) – This
bill if signed by the Governor would require employers to
maintain wage and job classification records for 5 years,
rather than the 2 that are currently required. This bill
would also extend the statute of limitations for an employee
to bring a civil action against an employer to recover wages
from 2 to 4 years for a civil action, and from 3 to 5 years
for actions in which there is willful misconduct of the
employer.
Indoor Heat Regulations (AB 1045)
– This bill if signed by the Governor, would bypass the
effective and statutory authority of the California
Occupational Safety and Health Standards Board and the
Division of Occupational Safety and Health to develop and
adopt standards regulating exposure to excessive indoor
heat.
FAILED PASSAGE TO
THE GOVERNOR
________________________________________________________________
Guns
on Employer Property (AB 652) – Would have
prohibited employers from banning guns in employee’s
vehicles on employer property.
Posters in Plain Language (AB 613)
– Would have ensured current state-mandated workplace
posters use simple, plain language with common, everyday
words, short sentences, and terms and definitions that are
simply and clearly defined.
4-Day Workweek (AB 510)
– Would have allowed employers to achieve greater
flexibility in work schedules by allowing employees to
request and employers to mutually agree to a four-day
compressed workweek without going through the stringent
requirements of a formal “Alternative Workweek”. |
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Brian has been a licensed
Private Investigator since 1996. A Carmel native, Brian
served four years with the 82nd Airborne Division and
retired from the Monterey Fire Department. He has provided
expert investigative and security support to scores of
public, private and nonprofit entities in his capacity as
President of Solutions Investigative & Consulting Services.
As TPO’s Director of Investigative Services, Brian will
apply his years of experience combined with the latest
technology to oversee all TPO client investigations
including alleged harassment, discrimination and
malfeasance. As a risk management and loss prevention
specialist, he will investigate and analyze root causes,
patterns and trends to reduce exposure and liability and
recommend corrective actions.
Brian’s key responsibilities include: RISK MANAGEMENT,
COMPUTER/NETWORK SECURITY, BACKGROUND INVESTIGATIONS, SAFETY
(including SB198 compliance) SECURITY, SURVEILLANCE, and
CORPORATE ISSUES MANAGEMENT.
Brian has served as a member, volunteer, board member and/or
officer in numerous community organizations including: AT&T
Pebble Beach Pro-Am, Seaside Rotary Club, American Legion
Post 591, Seaside Parade of Champions, Carmel Volunteer Fire
Department, and Carmel Youth Center.
“We are delighted that Brian has joined TPO’s team. His
credentials and professionalism are a unique fit to TPO and
our client’s needs. His expertise both broadens and
compliments TPO’s 16 year track record of providing
award-winning HR consulting support services.” Jill Russell,
TPO Principal |
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n
Bookette
Software
n
Avant and Decker DDS
n
City of Pacific
Grove
n
Pacific Metrics
Corporation
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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! |
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TPO:
"InterWest has been a TPO member for over three years. How
do you feel TPO contributes to InterWest and your Client's
success?"
Dave Dias,
Vice President:
"TPO has been a major
contributor to InterWest and our clients in at least two
significant ways! First and foremost, it’s their people. TPO
HR Management consultants “say what they do and do what they
say.” They are individuals operating within the context of a
team environment where character and ethics are a top
priority. Their diligent commitment to follow-through really
sets them apart. Second, they are very competent in their
respective discipline. Whether it’s consulting with us and
our clients on Employee Handbooks, Communications Support,
Employee Applications, FMLA/CFRA Compliance Programs,
Personnel File Management or Policy & Procedure Manuals, we
have found their professional recommendations relevant and
timely. We can always depend upon them to deliver."
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Dave Dias,
Vice
President
Executive
Board Member
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ABOUT
INTERWEST
InterWest
is a name you can trust
InterWest has been
California’s trusted insurance partner since 1910. Our
geographical footprint spans the Northern California with 12
regional offices. We offer a full range of business and
personal insurance products and services. With more than
$550 million in property & casualty premiums purchased on
behalf of our customers every year, and representing over
175 insurance companies, we make our clients’ financial care
and growth a priority. InterWest is ranked 46th among the
largest 100 insurance brokers in the United States (both
public and private ranked by revenue). We were also ranked
11th on the list of 100 Largest Privately Held Independent
Agencies in the U.S. In business since 1910, we expect to
continue serving our clients as their premier private
insurance brokerage for many years to come.
InterWest offers services in most aspects of commercial
insurance, self insurance, risk management, employee
benefits and private client personal insurance. As brokers,
our goal is to address our client’s overall risk related
needs, from the client’s point of view. We work for our
client and take pride in providing service that meets the
highest standards in our industry.
Size is an advantage. We are large enough that our clients
have access to the strongest insurers in the U.S., through
longstanding direct insurance company relationships as well
as wholesale market relationships. We are small enough to
deliver personal service and that is one of the main reasons
we value our relationship with TPO. TPO places a high value
on the client which is a strong reflection of the values
represented at InterWest.
As a regional insurance broker
we place HIGH VALUE on TPOHR’s core expertise…human
resources consultation. We have been a TPOHR member for
years and have partnered with them in a variety of ways:
• Joint workers
compensation educational seminars
• Joint employee benefit and HR presentations
• Direct client referrals
• Many members of our management team have taken courses
offered by the TPO team.
As a result of the volume of
business InterWest manages, we have established very
important and strategic relationships…TPO represents one of
those significant and valued relationships and we’re honored
to call them our business partner!!
To learn more about InterWest
click here. |
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We have an
employee who is recovering from an injury that didn’t happen
on the job. She wants to come back to work, but knows she
will only be able to work a little right now. She suggested
she could volunteer her time and continue to collect SDI,
but start accruing her PTO again. Can we do that?
This kind of question is
typical of the ones we get when our Members use their “free
access” benefit of calling or emailing with unlimited
questions about employment issues.
There are three issues in this
question that are worthwhile to discuss.
1.
Can an employee
return to work without permission of his/her
healthcare professional?
2. Can an employee work on a volunteer basis for
the employer?
3. Can an employee accrue PTO if not working a
full schedule?
1. Regarding the return to
work question, we never would advise bringing an
employee back to work unless there was a clear written understanding
from the healthcare provider about what work the employee
can or cannot do. Complete information is essential in
ensuring that the employee can return to work safely and
that is one of your primary concerns. If the employee is
able to return to work safely either full time or part time,
the healthcare provider would then need to notify the
Employment Development Department (EDD) of the State of
California about the change in eligibility for State
Disability Income (SDI).
2.
As far as an employee working on a voluntary basis
for his/her employer is concerned, that is not generally
permitted. You must pay employees for all hours the employee
works for the benefit of the employer. Employers who are
charitable or social organizations to which the employee
belongs may have some specific types of activities that the
employee might be eligible to volunteer to do without pay,
but those are not numerous. For example, a church employee
who handles the accounting for the organization might be
able to volunteer to baby sit occasionally on a volunteer
basis in a nursery provided by the church but could not
volunteer time accomplishing the accounting duties for which
she is normally paid.
3. Accrual of Paid Time Off (PTO) is determined by your
organization’s policy. Since the employee would only return
to work as a paid employee (see above notes), the employee
would begin accruing again. Whether or not an employee
accrues PTO while on either paid or unpaid leave should be
explained in your handbook so that the employee knows what
to expect when taking any sort of leave.
Finally, many employers might
want to allow the employee to work the time during the SDI
qualified time, but not pay the employee until after return
to non-SDI time (under the table so to speak). That, of
course, is contrary to the spirit of SDI and is also not
allowable because employees must be paid for all time worked
in the pay period within all required timeframes. |
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Employee Handbooks are a key
component of any sound employee relations program and play a
critical role in communicating essential information about
benefits, policies, and performance standards to all
employees. Additionally they help to promote fairness and
consistency in the manner in which employees are treated,
which reduces the possibility of arbitrariness and
discrimination. The result is enhanced employee morale,
productive and loyalty (along with more favorable legal
positioning).
TPO recommends that Employee Handbooks be updated at least
every 2 to 3 years to provide business owners and managers
with a comprehensive and compliant guide in making
employment decisions such as implementing corrective action,
hiring, termination and promotion. Having polices and
standards documented and up-to-date can be a real time-saver
by eliminating the need to ‘reinvent the wheel” as issues
arise. Additionally, policy and/or leadership change in
organizations may result in the need to update your
handbook.
TPO HR can update your current handbook or create a new
handbook for your organization in a timely and
cost-effective way. We can also help you “announce” the
updated or new handbook to your employees by providing you
with helpful presentation notes, memos and facilitation. To
get your Employee Handbook updated or created, please
contact us at 1-800-277-8448 or
tpo@tpohr.com. |
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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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 FEEDBACK:
We hope you enjoyed reading TPO
HUMAN RESOURCE MANAGEMENT's E-Newsletter. If you have comments or
suggestions, we welcome hearing from you at
tpo@tpohr.com.
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Employment Upd@te
is a
publication of TPO
HUMAN RESOURCE MANAGEMENT. Copyright ©2004-2007.
All rights reserved.
TPO's Employment Upd@te may 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. |
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