n  U.S. Department of Labor Proposes New Rules

n  Training_Calendar_

n  Workplace Investigations

n  Legislative Update

n  CA Wage & Hour Quick Tip

n  DOL Clarifies FMLA Definition

n  Welcome New Members

n  SCCMA-MCMS Member Spotlight

n  HR Q & A

n  New FMLA Regulations Giving you a Headache?

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 September '10

Management Excellence Series

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

n October '10

Training Calendar

n Harassment and Discrimination at Work

August 17

n Using TPO's Leave Compliance System

August 31

n Workers Compensation

October 06

n Excelling as a First Time Manager

November 10

n FMLA/CFRA Compliance

November 16

TPO in the Community

n NCHRA - Key Elements of a Successful HR Strategy(CH100208)
August 17 Click here

n NCHRA - The ROI of HR: Top Measures for the Business
(CH100308)

August19 Click here

Click here for a full list of upcoming Presentations!

n Join us for breakfast

September 01

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:

• Any 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 exemptions allowed.

• All 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 request it.

• Employers 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.

• Employers 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.

Currently, 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 Federal government.

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

Employers 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 job description system includes an instrument designed to collect data that employers can use if they choose to attempt the process themselves.

The following exemptions exist from wage and hour laws:

• Executive

• Administrative

• Professional

• Computer Related

• Outside Sales

Each of these exemptions has very specific requirements regarding duties and responsibilities that allow employers to claim the exemption.

Some of the most common misconceptions regarding exemption from wage and hour laws include the following items:

• All employees who get a salary are exempt.

• Employees can agree to be exempt from wage and hour by individual contract.

• If an employee’s title includes supervisor, manager or director; the job is exempt.

• Once a position is determined to be exempt, it will always be exempt.

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

Employers who 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 TPO

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 online and reserve your seat now. Price is only $50 – Free for our Members, of course.

Article written by: LaTonya Olivier, SPHR-CA

Did you know that TPO is licensed by the State of California (PI-25638) to provide investigative services?

Why is that so important? Because in CA, to conduct a lawful investigation, the investigator must be:

1. An Attorney,

2. Internal HR, or

3. Licensed by CA

Don’t 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!

Our 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 corrective actions.

Some of the situations that TPO-HR can help you with are:

HR INVESTIGATIONS

• Discrimination   • Harassment
• Theft                • Workplace Relationships

BACKGROUND INVESTIGATIONS

• Pre-employment             • Promotions
• Contractors/Consultants

RISK MANAGEMENT

• Internal/External Theft   • Intellectual Property
• Computer Use               • IIPP

GENERAL INVESTIGATIONS

• Records                                • Research
• Special ”Discreet” Inquiries     • Skip Tracing

Don’t 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 info@tpohr.com.

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 legislative process.

California Failed HR Legislation

• 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.

California Still Pending HR Legislation

• Change in Overtime in Agriculture (SB 1121) — If passed this bill would remove the overtime exemption for agricultural employees and change it to time and one-half for over 8 in a day and double time for over 12 in a day. Current location: On the Governor's Desk for possible signing into law.

• 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) — If passed 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) — If passed 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) — If 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

“No-Call, No-Show”
…a voluntary resignation of employment.

There is 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” situations:

1. Create a Policy: Employee Handbooks should state the specific number of days missed for the absence to be “no-call, no-show.”

   • A sample from Employee Handbooks TPO writes: “Employees who fail to report for work without any notification to management for a period of three consecutive work shifts will be considered to have abandoned his/her employment and have voluntarily resigned employment.”

2. 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.

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.

   • A sample from a letter provided in TPO’s HR Administration Kit states, “You must contact us by (date) with a satisfactory explanation for your absence or we will consider that you have voluntarily resigned your position.”

4. 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.

5. Maintain Documentation 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 HR Administration Kit.

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: http://www.dol.gov/whd/opinion/adminIntrprtnFMLA.htm.

Article written by: Robyn Schiller, SPHR-CA

n Agricoat - Soledad

n bethany university - Scotts Valley

n andrew smith co. - Salinas

n ECKHART SEED CO. - Salinas

n SALINAS MUSHROOMS - Salinas

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: "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’ success?”

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 benefit.”

ABOUT THE 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 community;

• Physicians’ personal, social, and professional integrity and well-being; and

• The common goals of similar organizations.

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 medicine today.

For more information please visit www.sccma-mcms.org.

I’ve 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!

Even 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 audited.

Quick Tip: 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)**

Workshop: 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 for NonMembers)

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)

PACKAGE DEAL

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 employment.

***This class will require participants to have an updated HR Administration Kit from TPO or at least an updated FMLA/CFRA Leave Compliance program from TPO.

Administering FMLA Leave (Employers not covered by CFRA/PDL) To be announced – call to get on our waiting list!

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Employment Upd@te is a publication of  TPO HUMAN RESOURCE MANAGEMENT. Copyright ©2004-2010. 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.