n  2010 Employment Law and Leadership Conference

n  Training_Calendar_

n  Age Discrimination

n  Save BIG on Training

n  CA Wage & Hour Tip

n  Welcome New Members

n  Sambrailo Packaging

n  Referrals Rewards Program

n  HR Q & A

n  Good news on our Economic Situation

n  Have you completed your Harassment Training?

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 August '09

Management Excellence Series

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

n Sep. - Oct. '09

Training Calendar

n Harassment and Discrimination at Work

September 23

n FMLA/CFRA Compliance

October 15

n Workers Compensation

October 22

n Harassment and Discrimination at Work

October 27

n Excelling as a First Time Manager

November 10

Employee Harassment Training

n Harassment and Discrimination at Work - Spanish

November 17, 8:30 – 10 am 

n Harassment and Discrimination at Work - English

November 17, 3 – 4:30 pm

n HEALTHCARE BENEFITS: Can We Still Afford To Provide Them?

September 10

n Join us for breakfast

September 29

TPO and Littler will guide you through an informative day,
balancing both Legal and Leadership Best Practices to prepare you for 2010!

2010 Employment Law & Leadership Conference

 A PREMIER CONFERENCE FOR BUSINESS OWNERS, MANAGERS, HR, RISK MANAGEMENT AND LEGAL COUNSEL IN PUBLIC, PRIVATE AND NONPROFIT ORGANIZATIONS

Click here for early bird registration!

On June 18, the Supreme Court surprised many in the HR field with its ruling on the employer’s role and responsibility when responding to Age Discrimination in Employment Act (ADEA) lawsuits. In a 5-4 decision in the Gross vs. FBL Financial case, it was determined that claims based on age discrimination require a higher burden of proof than do Title VII discrimination claims for other protected characteristics.

Generally, a Title VII Civil Rights Act discrimination claim runs something like this: I believe that my religion was a motivating factor in my layoff so I want to file a lawsuit. I need to demonstrate that my employer was at least somewhat motivated by discriminatory feelings about my religion when I was laid off, NOT that it was the main reason for the decision. This is known as a “mixed motive” claim, where there were a number of reasons for the decision and my protected category (my religion in this case) was one of motivating factors in the decision.

If I can prove that religion was in the “mix,” the burden of proof shifts away from me and lands in the lap of the employer who now has to prove how the layoff decision was made and that it was not discriminatory. In other words, the burden of proof in refuting my claim is the employer’s responsibility, frequently resulting in the need for a great deal of research, documentation and staff time to put together the employer’s defense.

What the Supreme Court said about age discrimination under ADEA is substantially different. The Court determined that the burden of proof is NOT the same as with Title VII discrimination claims. With a claim under ADEA, an employee cannot file a “mixed motive” claim but must have proof that age was the determining factor and that regardless of what else may have been considered, the decision would not have been made against the employee “but for” the reason of age. The employee needs to prove this through a “preponderance of the evidence” in order for the suit to be heard, making this decision a clear victory for employers.

This decision does not mean that employers are provided more leeway in considering age as a factor in the process of making decisions, but merely that they will not have the burden of having to prove that it could have been considered if an employee should file a claim under ADEA.

Article written by: Susan Kettmann, SPHR-CA

Give us a call for more information 831.647.7292.

Considering Utilizing Unpaid Volunteers or Interns?
…understanding the terms and implications.

In today’s economy employers are looking at all sorts of creative ways to alleviate staffing/payroll challenges, including pay decreases, lay-offs, reduction in hours, job-sharing, etc. Some organizations are looking to bring on individuals on an unpaid basis by considering the individual to be a “volunteer” or “intern,” but organizations are advised to understand the definitions of these terms prior to utilizing them in the workplace.

Volunteers: There is a key difference among non-profit, public and for-profit organizations. When an individual gives freely of ones time in the spirit of devotion, self-sacrifice or service to the non-profit's cause or helping out at a City event or in the schools, that is a volunteer. Otherwise, he/she is an employee. In the private sector, the legal position is that volunteers just don't exist.

Interns: To qualify as an unpaid intern, the individual must be a student enrolled in an accredited academic program receiving academic credit for the internship or be in a program approved by a public agency to provide job-training.

Undoubtedly, the intentions of both parties might make it tempting to engage in relationships such as above; however, the risks do usually outweigh the benefits. An employment relationship with minimum wage, overtime and adherence to child labor laws is your safest bet.

As usual, give us a call if you would like more information about utilizing unpaid volunteers or interns

Next Wage & Hour Quick Tip: Employer Options When Creating/Modifying a Vacation/PTO Plan…what is required by law and what is employer choice.

Article written by: Melissa Irwin, SPHR-CA

n Keller Medical Institute

n Enterprise Protective Services

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!

TPO: SAMBRAILO PACKAGING HAS BEEN A TPO MEMBER FOR OVER 7 YEARS. HOW DOES TPO ADD TO SAMBRAILO’S SUCCESS?

Mark Sambrailo, President: "Sambrailo has over 180 employees throughout 11 facilities in the US and Mexico. TPO has provided invaluable support spanning beyond the HR realm to functioning as a strategic business partner. With LaTonya and the TPO team of experts at our fingertips, we feel confident that we can access the most current regulatory answers on the spot. Even more than that, we gain a practical menu of employee relations considerations and implications to weigh up against our decisions and actions before we act. Our outcomes are always improved when we enlist TPO’s involvement.

TPO has taken on a wide variety of assignments, with outstanding and sustainable results. Examples include: hiring of executives, compensation comparisons, our sales bonus plan development, management by objective (MBO) development, customized performance record tools, regulatory compliance training & support, as needed conflict resolution support – and being the sounding board for managers and recommending creative solutions to problems."

ABOUT SAMBRAILO PACKAGING

The Sambrailo story begins in 1923 when Charles Sambrailo first recognized the need to improve produce handling methods. He approached growers and shippers with packaging solutions such as paper liners designed to protect the produce as it was packed into wooden boxes. This forward thinking and action began Sambrailo’s long-standing role as the produce packaging industry’s innovation leader.

Throughout Sambrailo’s 86-year history, this family-owned company has remained committed to providing superior quality that delivers measurable customer benefits.

In 1957 Sambrailo improved upon the old strawberry cartons by developing trays with glued and folded-over windows. This insightful creation reduced fruit damage and increased tray strength.

In the 1970’s Sambrailo continued to raise fruit packaging standards with the introduction of a new strawberry tray with a dividing zipper on the bottom. This concept expanded merchandising options for the shippers.

Sambrailo also began printing on solid fiber fruit baskets, a simple change which provided the shipper with branding opportunities.

In the 1980's Sambrailo strengthened its presence in the packaging industry with a series of innovations. First, they simplified carton assembly with the introduction of the one-piece hand-folded apple box. Next, Sambrailo developed the plastic dome lid for the solid fiber fruit baskets, thus making stacking possible and reducing mechanical damage. Subsequent packaging advancements include the single-layer long-stem strawberry tray, the development of insulated flower cartons, and the glued double-ended bushberry tray.

In 1987 Sambrailo revolutionized the packaging industry by introducing the first ever plastic clamshell for fresh berries. Now products were not only stackable and well-protected, but visible to consumers.

The '90's saw Sambrailo Packaging increase the impact of packaging graphics with the development of pre-printed liners for strawberry trays. They also introduce their patented floral water pack, a design which reduced packaging costs, improved shipping efficiencies and ultimately improved margins for their customers.

Continuing in their tradition of responding to growers & shippers greatest needs, Sambrailo introduced the modular MIXIM Packaging System in 1998. This unique packaging matrix of clamshells, trays and pallets dramatically cut down on cooling time and product bruising while maximizing freight cube. Each patented feature results in cost savings throughout the distribution chain.

In the new millennium, Sambrailo Packaging has introduced our patent-pending MIXIM “Snap-Flap” container. This one-piece, double-hinged container with its unique lid-closure offers inventory control, improved packaging efficiencies, labor savings, consumer appeal and addresses safety concerns. The Snap Flap is perfect for value-added and shed-packed fruits and vegetables.

Recently, Sambrailo Packaging answered customers’ needs and proudly introduced the MIXIM Classic “LV” 1-LB and MIXIM “FS” 4-LB Strawberry Clamshells. The “LV” Classic is a perfect fit for the larger variety berries and still nests into the classic 6-down tray. The 4-LB “FS” clamshell was designed to fit into the new wireless machine-fold 3-count trays, as well as the standard 2-count trays.

For 2009 Sambrailo Packaging is launching a new line of “RunRite” Blueberry Clamshells. In a progressive and forward thinking collaboration with top machine manufacturers, these containers have been carefully engineered to run on both high-speed volume and weigh-filled packing lines with minimal down-time and product loss. As such the RunRite is the most efficient and cost-effective clamshell on the market.

Today, Sambrailo has over 180 employees throughout 11 facilities in the US and Mexico, each supplying an unequaled range of packaging options for agricultural commodities. Through 3 generations of innovation, the philosophy of Charles Sambrailo still holds true: Listening to customer requests, focusing on technical issues and progressive research of "whatever is best for the produce." This motto continues to be the unifying motivation in the continuing success of Sambrailo Packaging.

For more information about Sambrailo Packaging visit: www.sambrailo.com

Our most effective way of telling our "story" is through current members!

To show our appreciation for you sharing your enthusiasm about how your TPO membership adds value to your operation with others, we are offering a

REFERRAL REWARDS PROGRAM!

How does it work?

1. You refer us to a colleague, we meet with them to talk about TPO, they DON'T join membership...you enjoy 1 complementary seat at any of our 3 hour Specialized Training Programs!

2. Refer a colleague who joins TPO membership before

September 15, 2009

and add 1 of the following special money saving options to your membership at

NO EXTRA COST!

• Add 3 more months to your 12-month membership, or

• 1 additional "authorized representative" to receive member benefits ($500 value) or

• 1 seat at CA Employment Essentials ($595 value)

Want to learn more about TPO and Membership benefits?

Join us for our Member Orientation on September 29, 8:15 - 9:45 am.

This program is exclusively for TPO members, and non-members who are interested in learning more about the benefits of being part of this unique membership. We promise it will be a good use of your valuable time!

Contact your TPO representative for more information!

I read an article recently that claims for discrimination, sexual harassment and wage and hour violations are all up because of the economy. What should we do to protect ourselves?

First, keep in mind that any time employees are under more stress, claims of all sorts may go up as well as more conflict being observed in the workplace. During times of stress due to growth, there is less attention by the press on it because different companies will be experiencing very different levels of growth and the conflicts may not be perceived as due to the good times as much as conflicts are linked with difficult times.

What you should do first of all is what you are probably doing anyway – be sure you are operating within both the letter and the spirit of the law. When times are stressful it is not the right time to take risks outside your normal comfort level. Review your policies and procedures. Make certain all of your employees understand that discrimination and harassment are not tolerated by your organization.

Some Protection Reminders

Some tools included in your HR Administration Kit from TPO for this include the individual Sexual Harassment Policy Acknowledgement, the Handbook Acknowledgement and the compliant yet compassionate letters for employees who must go out on some form of protected leave.

Be certain that you have provided, at a minimum, the required AB1825 Harassment Prevention training for managers/supervisor/leads. Providing a version for all employees definitely demonstrates your commitment and is highly recommended.

Actions You May Have to Take

In spite of your proactive review, planning and support, you may still have instances where employees bring forward concerns that appear to have potential serious consequences or you may hear/observe actions or conversations that could lead to issues. Prompt action is the important thing to keep in mind in this case. Do not let anything linger or go unaddressed. Immediately remedy the problem.

Maybe a Real Problem?

If the concern seems like it could possibly lead to a legal issue, you should immediately get all of the facts and assess your level of exposure.

If you need to do some fact collection, be cautious not to classify it as an “investigation” until you are certain such an action is necessary. Try to keep the language in the human compassion realm rather than legalistic. Don’t say, “Tell me how you were discriminated against.” Instead it is better to ask, “How did you feel you were treated unfairly?” You should not be the one raising the temperature level of the organization. Treat everyone with respect, but do not jump to conclusions. Just gather information quickly and efficiently so you can make the best decision.

Get Help
There are some things that are warning flags that should lead you to conduct a full investigation:

1. The employee indicates he/she has legal counsel.

2. The accusation involves upper management.

3. The number of accusations is very large and the issues are complex.

4. You need professional assistance with recovering information from computers, etc.

5. You simply will not be able to get to it in a timely manner due to other constraints.
    

TPO is a licensed investigation organization and we have investigators with many years of experience in such activities. In this case, we can work with you to get the problem resolved as quickly and effectively as possible.

Once You Have all the Facts

After you have gathered your facts with or without a formal investigation, you will need to do some communications. Some of those will be face to face with the individuals involved. Some may be written. There may even be a need to do some individual or group problem solving.

Be sure to get back with the individual(s) who brought up the issue as soon as a decision is made on what to do. This communication must be very respectful regardless of what the facts determine. Even if the concern was completely unsupported, it is wise to thank the employee for bringing it forward to you for action. Only if the employee outright lied and/or falsified information and you can prove it should ANY action be taken against that employee.

Be sure to check back periodically to be certain whatever solution you implemented was resolved completely and is nor recurring.

Remember, that your best protection against such accusations is both your good actions and the good relationship you establish with your employees. Show them respect and do business with them in the most ethical way and it will go a long way to keeping down such problems. Your prompt, respectful and effective action when alerted will be in your favor should you find you have to justify your work with any government group.

At any of the steps above, we urge Members to keep in close touch with your consultant. We can serve as both a sounding board for your proposed actions and can provide you with information we have gleaned from our many years of dealing with such situations. If you are not a Member (and why on earth wouldn’t you be?), having access to our expertise should certainly justify the minor cost of calling and paying the hourly charges.

Finally, it is important that your organization work at finding ways to send messages to employees that they are valued and help them see you are doing the right things. Communicate often, provide any stress relievers you can manage and be there to talk to them. These are the times when managers, supervisors, and HR support must be focused on communicating a positive but realistic message to every employee.

Article written by: LaTonya Olivier, SPHR-CA

CareerBuilder has partnered with Harris Interactive to survey 921 workers who were laid off from full-time jobs in the last three months and found that 48% of them have replaced the jobs they lost already. Importantly, 56% of those say they either got more or the same as they were making in their last job. This is excellent news for employers who have agonized over having to reduce their staffs.

HAVE YOU COMPLETED YOUR HARASSMENT & DISCRIMINATION TRAINING YET???

Preventing Harassment & Discrimination at Work – Paying Attention to the Signs
NEW 2009 Harassment Programs!

Fulfill California’s AB1825 Harassment Training Law for all supervisors/managers/leads for as low as $109 per participant!
 

Don’t miss these final training dates of 2009:

September 23, October 27, November 18 and December 9 (Time for all dates 9:00 am – Noon)

You can Also train your employees:

November 17th (8:30 – 10 am) Spanish and November 17th (3 – 4:30 pm) English

California law (AB1825) requires California employers with 50 or more employees to provide a minimum of 2 hours of sexual harassment prevention training by 12/31/05 and every two years thereafter to all managers/supervisors/leads. Additionally, newly hired/promoted managers/supervisors/leads must receive the training within 6 months of hire.

Meet your 2009 training requirements now!

Register for TPO’S
PREVENTION OF HARASSMENT & DISCRIMINATION AT WORK!
PAYING ATTENTION TO THE SIGNS

IT’S EASY…

1.       We train at your location

2.       We train your team “off-site” at TPO or another location

3.       Your team joins other clients at one of our pre-scheduled training programs (click here)

“I was NOT looking forward to sitting through a program on harassment, but this was fantastic, so much more than I expected and really enlightening!”

Our programs have been fully translated into Spanish, and are presented by TPO's bi-lingual staff.

To schedule your organization’s training, contact TPO:

Phone: 800.277.8448   •   Fax: 831.658.0201
tpo@tpohr.com

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Employment Upd@te is a publication of  TPO HUMAN RESOURCE MANAGEMENT. Copyright ©2004-2008. All rights reserved.
TPO's Employment Upd@te may not 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.