CA EMPLOYMENT ESSENTIALS (CEE) is a 6 module training series of employment essentials focusing on regulatory compliance and HR best practices. Hiring to Separation: What Management and HR MUST KNOW!

LEASERSHIP EXCELLENCE SERIES (LES) is an 8 module training series focusing on practical leadership and communication skills to help managers DEVELOP OR REFINE THEIR EFFECTIVENESS AS LEADERS!

Dates of Upcoming Series:

CEE Begins: March 10,
May 12

LES Begins: April 7 & September 8

TPO's popular prescheduled three-hour (9am - noon) workshops are presented on a wide range of important regulatory and leadership topics. Many are available to attend via webinar.

Dates of Upcoming Workshops:

Driving Difficult Conversations: April 27

TPO brings you periodic briefings presented by knowledgeable subject matter experts on a variety of timely employment topics.

Dates of Upcoming Briefings:

Paid Sick Leave (PSL): March 16

Auditing the HR Function: April 13

Pay Equality: June 15

The following webinars apply to ALL CA Employers, regardless of size. This law has lots of complicated angles, up to and including employee relations!

Dates of Upcoming Webinars:

Paid Sick Leave (PSL): March 23

Pay Equality: April 20 & June 22

TPO's H&D prevention training goes above and beyond to address all forms of harassment and discrimination (age, race, religion, disability, etc.) that today's managers must be prepared to prevent and address.

Dates of Upcoming H & D:

Harassment & Discrimination Prevention: March 30,
June 8

IN THIS ISSUE

TWELFTH ANNUAL TPO/Saqui Employment Law and Leadership Conference
To Make a Donation: Click Here

With about 300 participants, the all-day TPO/Saqui Employment Law & Leadership Conference on 1/21/16 was another resounding success! The purpose of this article is to take 8 HOURS of in-depth information and boil it down here to 5 sections of critical "take-aways"!

1. HOT TOPICS IN LABOR & EMPLOYMENT LAW for 2016:
      by Michael Saqui, Esq., The Saqui Law Group

2. DRIVING THOSE DIFFICULT CONVERSATIONS:
    Gaining Clarity, Improving Communication & Taking Action!

      by Dennis Hungridge, M.A., SPHR, SHRM-SCP, TPO - The HR Experts

3. HR Q&A:
    Balancing both Legal and Leadership Perspectives!

      by Melissa Irwin, SPHR-CA, SHRM-SCP, TPO - The HR Experts &Jennifer Schermerhorn, Esq., The Saqui Law Group

4. UNINTENDED PAY DISCRIMINATION:
    One of the Toughest in the Country!

      by Pat Wilkinson, SPHR, TPO - The HR Experts

5. THE TOP TEN AVOIDABLE MISTAKES EMPLOYERS MAKE:
    How to Stay Out of the Commisionors Office!

      by Michael Saqui, Esq., The Saqui Law Group

Congratulations to the
Grand Prize Winners

Drawn from the evaluations with all eleven stamps marked by our Affiliate Showcase Co-Sponsors:

California Employment Essentials:
Merrill Farms

Leadership Excellence Series:
Sun Street Centers

We thank all of you who took the time to complete your Program Evaluation and provided us with the important input we need to make 2017 even better!


Here is a sampling of the great feedback we received on the scores of Program Evaluations:

"Another great conference!"
"Informative and on point as always"
"Great presentations as usual. Thanks!"

"The conference was great as usual."
"Very consistant year after year! Love it!"

HERE ARE YOUR RECAPS!

HOT TOPICS in LABOR & EMPLOYMENT LAW

by Michael Saqui, Esq., The Saqui Law Group.

Mike provided a vivid look at what’s coming at you in 2016! Sharing his personal experiences and insight, Mike powered through the latest labor and employment law twists and turns, giving an informative, relevant and fun overview on matters of HR significance for 2016.

 

 

LEGISLATIVE UPDATES AND TRENDS:

Piece Rate Workers – AB 1513 has two main requirements:
  1. To set new requirements as of 1/1/2016 for compensating piece rate workers for their non-productive time (“NPT”), which includes Rest and Recovery periods (“R+R NPT”), travel time, safety meetings, etc. (“Other NPT”) and;
  2. To create a safe harbor for all employers, including those who are currently facing lawsuits regarding a failure to compensate piece rate workers for their NPT.

Medical Marijuana – While AB 266 was enacted to regulate the production and sale of medical marijuana, it does not:

  • interfere with an employer’s right to maintain a drug free workplace;
  • require an employer to permit or accommodate the use, consumption, etc. of cannabis  in the workplace;
  • affect the ability of employers to have policies prohibiting the use of cannabis by employees/prospective employees; or
  • prevent employers from complying with state or federal law.

 

 

 

 

 

 

 

Equal Pay Protection – SB358 prohibits an employer from paying an employee less than rates paid to employees of the opposite sex for “substantially similar work”.

Reasonable Accommodation Discrimination/Retaliation - AB 987 clarifies that employers may not retaliate or otherwise discriminate against a person for requesting a reasonable accommodation of his or her disability or religious beliefs, regardless of whether the accommodation request was granted.

Whistleblower and Anti-Retaliation – AB 1509 prohibits employers from retaliating against an employee when his/her family member, employed by the same employer, engages in whistleblowing.

Itemized Wage Statements –AB 1506 was effective 10/2/2015 as emergency legislation and provides a small reprieve to employers who work quickly to correct the following CA Labor Code § 226 deficiencies: Details an employer’s right to “cure” a limited type of wage statement violations, in order to cut off a civil PAGA lawsuit for the following violations:

  • The dates of the period for which the employee is paid;
  • The name and address of the entity that is the employer; and
  • If the employer is a farm labor contractor, the name and address of the legal entity that secured the services of the employer.

Paid Sick Leave “clean-up”- AB 304 clarifies several components of PSL, including these highlights:

  1. Accrual Method: Original: Employees shall accrue PSL at the rate of not less than one hour per every 30 hours worked. Amendment: Accrual may be on any basis so long as it is a regular basis and will result in at least 24 hours or 3 days of sick leave available by the 120th calendar day of employment, calendar year, or 12-month period.
  2. Reinstatement: Employer is not required to reinstate accrued sick leave that was previously paid out at the time of termination, resignation, or separation; such as PTO payouts.
  3. Grandfather Provision: Existing PTO or sick leave policies may be grandfathered in if:
  • It was offered to employees before January 1, 2015;
  • PTO or sick leave is made available for the same purposes and under the same conditions as detailed in PSL Law;
  • accrual is on a regular basis that resulted in at least 1 day or 8 hours of leave within the first 3 months of employment of each calendar year or 12-month period; and
  • employees are eligible to earn at least 3 days or 24 hours within 9 months of employment.

 

EMPLOYMENT TRENDS

Arbitration Agreements – Rulings are expected to provide guidance on how to structure enforceable arbitration agreements; in the meantime, make sure yours are up to date with current best practices.

EEOC Trends – With more than $400 million brought in through mediation, conciliation, settlements and litigation recoveries, some practical advice:

  • When a dress code or work duties conflict with an individual’s religious beliefs, carefully consider if a reasonable accommodation can be made. This may be as simple as making an exception to the dress code or allowing them to deliver a different shipment of goods.
  • Utilize the interactive process with the employee, similar to a disability claim, to determine if an accommodation is possible.
  • A worker must still be able to do the essential functions of their job with the reasonable accommodation. If they cannot then they can be transferred or terminated.
  • This is a hot bed of litigation right now. When in doubt, call an attorney.

OSHA and Indoor Heat – All employers, even those who are primarily indoors, must have an IIPP in place, especially in settings of high heat.

Social Media and the NLRA (National Labor Relations Act) – Certain types of speech by employees in online forums is protected by the NLRA, even if vulgar. Generally, speech which complains about or disparages an employer’s employment practices will be protected. Certain types of speech receive less protection, such as spreading deliberately or maliciously false information, or attacks on the employer’s product rather than its employment practices.

Independent Contractors – Multiple state agencies and the courts are finding that independent contractors are often being jointly employed. To avoid this do not: Excessively control or dictate work schedules; Control the manner in which work is performed; Conducting training; Supplying or requiring specific equipment; Directly supervise or discipline contract employees; and Require exclusivity.

Political Discussions at Work – While it is illegal to discriminate on the basis of an employee’s political activity or affiliation, deal with political discussions as any other potentially negative situation or escalating conflict among people.
There is a fine line between allowing employees freedom of expression and allowing potential sources of conflict. Manage the potential conflict before it escalates!

Personal Cell Phones – Employers must reimburse a “reasonable percentage” of employee’s cell phone bills when the employee is required to use their personal cell phone for work.

  • Not willing to pay for phone use? Make a clear policy that the use of personal cell phones or other devices for work purposes is strictly forbidden; and consistently enforce it.
  • Willing to pay for phone use? Establish a policy setting the rate of reimbursement, the procedure for receiving such reimbursement and when such agreement will end.
  • Prefer company phones? Establish a policy defining the appropriate uses for such devices, who is responsible for damage to such device, and return policies for the device.

 

Back to the top

AFTERNOON SESSION RECAPS

DRIVING THOSE DIFFICULT CONVERSATIONS
Gaining Clarity, Improving Communication & Taking Action!

by Dennis Hungridge, M.A., SPHR, SHRM-SCP, TPO - The HR Experts

 

During the recent TPO HR Conference, we presented an approach for succeeding in difficult conversations to 50 participants, and with strong participation reviewed approaches leading to success.  Highlights of the conversations included:

Using language effectively (clear, concise, mutually understood, non-judgmental) is the most useful tool in the Difficult Conversation, followed by emotional awareness and control, whatever the topic or focus.

The Three Conversations: Any difficult conversation contains at least these three components:
The “what happened” conversation – fact-based information about who did or said what.
The “feelings” conversation – How do I feel about this situation? What are others feeling about it?
The “identity” conversation – What (if anything) does this situation/conversation mean about me?
Initiating Scripts: In each of these situations, maintaining a cool emotional presence is important.
  • “Janet, I want to discuss your performance over the past quarter. Would today at 4:00 or tomorrow at 10:00 be easier for you? This may be a difficult conversation, so we will need a full hour on your calendar.”
  • “James, please come with me to my office.” (this in response to a witnessed infraction)
  • “As you know, our practice here is                                                          . Help me understand why you chose not to follow the recommended practice.”

 

 

 

 

Re-directing Scripts: When the conversation starts to go off topic:
  • “I’m sorry you feel that way. This talk concerns your actions. Let’s focus on those issues.”
  • “Hmmm, that’s not how I understand the situation. What I saw/understood/know is….. Let’s walk back through the incident again.”
  • “How this situation was reported to me is not the issue. I understand you are upset/frustrated/angry. Please take a moment to collect yourself and let’s see if we can resolve the situation.”

 

 

 

 

Practicing this approach and planning will help you succeed with Difficult Conversations.

Back to the top

Balancing Both Legal and HR Perspectives

by Melissa Irwin, SPHR-CA, SHRM-SCP, TPO - The HR Experts and Jennifer Schermerhorn, Esq., The Saqui Law Group

Melissa and Jennifer engaged the audience in an HR/Legal volley while they took real-time questions from the audience and provided their candid comments, thoughts and recommendations! The questions covered many areas, with this as an example of a typical question:

Q: Exempt Salary Thresholds -

What is the change to the exempt salary threshold and when will it go into effect?

A: There are two seperate issues:

 
  1. The CA Minimum Wage increased from $9.00 to $10.00 per hour on 1/1/2016.  This increased the CA salary threshold for Administrative, Executive and Professional exemptions to at least $800.00 weekly ($3,466.66 monthly, and $41,600 annually) as of 1/1/2016.
  2. The Department of Labor (DOL) has PROPOSED Changes to the Federal Salary Threshold. Proposed changes for Administrative, Executive and Professional exemptions would more than double the salary-basis requirement from the current federal threshold of $455 per week ($23,660 annually) to a projected level of $970 per week ($50,440 annually) in 2016. While the implementation date is not final, late summer 2016 is a strong possibility.

Legal Perspective: Make sure the position duties meet the exemption tests, understanding that the state and federal standards have differences. Pay careful attention to the definitions of “supervise”, “discretion and independent judgment,” “under general supervision,” etc., and document how the position specifically meets these definitions. Stating “exempt” at the top of the job description does not make the position exempt; it is the actual duties performed that determine exempt status.

HR Leadership Perspective:Identify, now, any positions being paid less than the proposed federal standard and prepare a plan that can be quickly implemented when/if the proposed changes are finalized. Get it on your radar before the changes occur! This will include two very different options: 1) giving these positions a raise in salary, or 2) designating as an hourly non-exempt position now entitled to overtime and all associated recordkeeping requirements! For budget purposes, developing a contingency plan for anticipated compensation increases is recommended.

Remember, TPO Members receive FREE Q&A as part of their TPO Annual Membership! Jot down your questions and give your primary TPO Consultant a call!

Back to the top

UNINTENDED PAY DISCRIMINATION
One of the Toughest in the Country!

by Pat Wilkinson, SPHR, TPO - The HR Experts

California’s new law, SB358 applies to all California employers.  While its intent is to pay the way to create pay equity between male and female coworkers doing similar jobs, the law also permits employees to openly discuss pay with co-workers without fear of retaliation.  In addition, the law permits employees seeking redress to compare their jobs to other jobs using similar skills in other departments, other companies and , even, in other states.  This law has the potential to really shake up compensation in California and elsewhere.  Below are the risks and recommended steps to assess your organization’s potential exposure with relation to your current pay practices.

 

Highlights

 
  • SB 358 – California’s Fair Pay Act
  • Effective January 1, 2016
  • Applies to Private Employers
  • Major Requirements:
 
  1. Equal Pay for “Substantially Similar” Work
  2. Pay Transparency Protections (same)
  3. Extends Record Keeping Requirements
  4. Removes “Same Establishment” Requirement

 

EXPANDS & STRENGTHENS PRIOR EQUAL PAY LAW

The law expands previous state and federal Equal Pay for Equal Work provisions from comparisons of employees in the same job to permit comparisons between jobs in different disciplines that perform SUBSTANTIALLY SIMILAR WORK based upon similar skills, effort and responsibilities.

In order to avoid penalties, employers must demonstrate (competent evidence) that any differences arise from the factors below and are unrelated to the sex of the employee:

 
  • Seniority
  • Merit
  • A system that measures earnings by quality/quantity of production
  • Other bonafide factors unrelated to sex (education, training, experience) COUPLED with a business necessity
  • Employees CONTINUE TO HAVE THE RIGHT to openly discuss, disclose or ask about their own or other’s wages without retaliation or discrimination.  However, disclosure of wage information by employers is not required under this law.
  • Creates a private right of action for retaliation or discrimination (no class action required) that can be linked to the PAGA act.
  • Substantially relaxes the employee’s evidentiary burden of proof.
  • Removes “same establishment” provision meaning that employees can look outside their own company for comparisons.
  • Extends requirement to keep employee records from two to three years.

WHAT CAN COMPANIES DO TO AVOID PROBLEMS?

 
  • Conduct an internal audit
 
  1. Audit Compensation Philosophies, Practices & Pay
 
  • Assess Risk
 
  1. Prioritize Adjustments Needed
  2. Create a Plan to Address Inequities & Changes
 
  • Build a good foundation
 
  1. Job Descriptions
  2. Company Policies
 
  • Managerial Training
 
  1. Include a Communications and Training Plan
  2. Advise and Collaborate with Your Leadership Team

 

 

 

Back to the top

THE TOP TEN AVOIDABLE MISTAKES EMPLOYERS MAKE
How to Stay Out of the Commisionors Office!

by Michael Saqui, Esq., The Saqui Law Group.

 

MANY EMPLOYERS END UP IN LEGAL DIFFICULTIES BECAUSE OF relatively minor things that are easily prevented with the advice of an HR professional.  In many cases, had the company employed an external, or internal, HR person, both the Labor Commissioner and court would have been avoided.  This was the subject of a presentation by Mike Saqui of the Saqui law firm.

Saqui presented the errors in order of frequency beginning with Arbitration Agreements.  Arbitrators tend to favor employers and are a more benign arena in which to dispute issues with employees.  Despite the fact that this is well known, employers are still not including arbitration clauses in their handbooks, or they are half-heartedly implementing these agreements.  As Saqui pointed out, an arbitration agreement not only provides a way to resolve issues without the court room, it short-circuits class action suits which can result in extremely large penalties to the employer.

One example given was of a company that included an arbitration agreement in their handbooks, but did not include that a mention of the in the handbook acknowledgement which the employee signed.   Furthermore, this same employer failed to assure that all of their employees signed the handbooks on a consistent basis. Nor were there witnesses to handbook signatures. When an employee sued the company, nobody could prove that he had actually signed the handbook.  His attorney argued that the signature on the handbook alleged to be that of the employee was not his signature. Furthermore, the attorney argued, there was no reference to the arbitration agreement in the acknowledgement which made the entire discussion irrelevant.

Covering the 9 remaining points in detail is not possible in this space except in a brief overview.  The 9 areas were:

  • Failing to keep detailed records of employee transactions like pay, hiring practices,  disciplinary, meal/rest periods and attendance at required trainings among other activities.
  • Overall failure to document behaviors that are problematic.
  • Not having an HR Professional to guide employee activities.
  • Failure to maintain lawful written policies which lead to inconsistencies which leads to allegations of discrimination.
  • Ignoring “Private Attorney General” letters which have a 33 day response window to obtain “Safe Harbor.”
  • Failure to observe requirements for on-duty meal periods.
  • Incompetent workplace investigations that result in exacerbating workplace problems.
  • Failure to provide reasonable accommodations and/or not engaging in an interactive process.
  • Engaging in practices that result in an erosion of the barrier between a third party’s control over its employees and creating a “joint employer” situation.

 

 

 

 

 

 

 

 

 

 

 

In summary, most employers would be protected against problems in the workplace by following HR best practices.  Generally, following best practices means having an experienced, knowledgeable HR professional as a guide and following their advice consistently and across the board.  Having a person ensure that the right documentation is created from the inception of the employment relationship through its natural life cycle can prevent the kinds of outcomes that are both costly and destructive to companies.

Back to the top

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 nationally certified HR experts!
Thank you for joining!

 

 

Click on logos to learn more!

Back to the top