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!

Dates of Upcoming Series:

CEE Begins:

March 5 & October 8

NEW EMPLOYMENT ESSENTIALS Crash Course is a 6-hour training of employment essentials crash course that provides the HR Compliance Fundamentals training your people managers need to know.

Register for Crash Course:

May 7, June 25, & November 12

LEADERSHIP 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:

LES Begins:

April 9 & September 3

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

Dates of Upcoming Workshops:

Excelling as a Manager/Supervisor: March 17

Driving Difficult Conversations: April 21

Great Employees...They Come and Go: June 10

You Can't Always Get What You Want: September 15

TPO's popular prescheduled two-hour (9am - 11am) workshops are presented on a wide range of important regulatory and leadership topics.

Dates of Upcoming Workshops:

HR Q&A: October 13

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

Dates of Upcoming Briefings:

External HR Support Briefing: April 14, June 16, Sept. 22 & Nov. 24

Up to and Including Termination of Employment: May 27

TPO’s harassment training program goes well beyond the topic of sexual harassment to address all forms of unlawful harassment and discrimination (age, race, religion, disability, sexual orientation, etc.) that employers must be prepared to prevent and address.

Dates of Upcoming H & D:

ENGLISH

Harassment & Discrimination Prevention: March 26, May 14, June 18, October 29 & December 10

SPANISH

Harassment & Discrimination Prevention: March 31, May 19, June 23, October 27 & December 17

IN THIS ISSUE

SIXTEENTH ANNUAL TPO/LITTLER

Employment Law and Leadership Conference
To Make a Donation: Click Here

The all-day TPO/Littler Employment Law & Leadership Conference on 1/23/20 was another resounding success! The purpose of this article is to take 8 HOURS of in-depth information and boil it down to 6 sections of critical "take-aways"!

1. Littler's Employment Update:
      by Marlene Muraco,Esq., Littler Shareholder &
      by Richard Leasia, Esq., Littler Shareholder 

2. YOU CAN'T ALWAYS GET WHAT YOU WANT:
    But You Can Get What You Need!

      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, PHRca, SHRM-SCP, TPO - The HR Experts &
     by Marlene Muraco,Esq., Littler Shareholder

4. Wage & Hour:
    Mistakes Companies Still Make and What to do About Them!

      by Mel Cole, Esq, Littler Shareholder

5. GREAT EMPLOYEES...THEY COME AND THEY GO:
    The Big Question is, What Makes them Stay?

      by Tonja Posey, IPMA-SCP, TPO - The HR Experts &
      by Michaelle Stanford, PHRca, TPO - The HR Experts

6. The AG Employer:
    A 2020 Overview and What Lies Ahead!

      by Laura Devane, Esq., Littler Associate

Congratulations to the
Grand Prize Winners!

Drawn from the evaluations with all 10 stamps.

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 2021 even better!


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

"Always a pleasure to attend this conference!"

"So well organized and thoughtful!"

"Well done again, thank you!"

"Lots of great information and great speakers!"

"Well organized and it is clear that the TPO team is knowledgeable and wants to help us!"

"I enjoy attending the TPO Conference each year! Great team!"

"First time attending the TPO conference & it was very informative!"

Alvarez Technology Group (ATG)

Conference GOLD Cosponsors Since 2013!

Click Here to Learn More About ATG

 

Community Foundation for Monterey County / Center for NonProfit Excellence

Conference Marketing Partner Since 2012!

Click Here to Learn More About CFMC

HERE ARE YOUR RECAPS!

by Marlene Muraco,Esq., Littler Shareholder & by Richard Leasia, Esq., Littler Shareholder 

 

(Effective January 1, 2020 unless noted):

 

NEW CA LAW – Harassment Training EXTENSION (SB 778) – This emergency legislation took effect 8/31/2019 which extends the sexual harassment prevention training deadline (SB 1343) from January 1, 2020, to January 1, 2021. Employers with 50+ employees follow the law from 2015 (AB1825) for supervisory positions.

TPO Note: TPO provides meaningful, “live” training to address this serious topic!

Employers with 5-49 Employees:

Employers with 50 or More Employees:

Seasonal and Temporary Employees (hired for less than 6 months):

NEW CA LAW – Discrimination on the Basis of Hairstyles Associated with Race (SB 188) Bans discrimination on the basis of hairstyles associated with race. The CROWN Act (Creating a Respectful and Open Workplace for Natural Hair) expands the definition of “race” under the California Fair Employment and Housing Act (FEHA) to include both hair texture and protective hairstyles that are closely associated with race, including (but not limited to) braids, locks, and twists.

NEW CA LAW – Harassment Claims (AB 9) – Extend the window of time for workers to file harassment, discrimination or retaliation complaints with the state from one to three years.

NEW CA LAW – Arbitration Agreements (AB 51) – Bans employment arbitration agreements made as a condition of employment.

TPO Note: As of 1/31/2020 a preliminary injunction blocks enforcement until there is a permanent ruling. Employers with such agreements are advised to contact their attorney for specific advice.

NEW CA LAW – Settlement Agreements (AB 749) – Prohibits “no rehire” clauses in settlement agreements.

NEW CA LAW – Registered Domestic Partners (SB 30) – eliminates the limitations on who may form domestic partnerships, allowing opposite-sex couples under the age of 62 to be eligible to form domestic partnerships.

NEW CA LAW – Organ Donation (AB 1223) – Requires an unpaid leave of up to 30 days a year. This is in addition to the current law for employers with 15+ employees for a paid leave of up to 30 days.

NEW CA LAW – Independent Contractors (AB 5)– Codifies into the Labor Code the “ABC” test for determining whether workers should be classified as either employees or independent contractors. The bill carves out some exemptions (reverting to the “Borello” test) such as insurance agents, hair stylists, doctors, lawyers, accountants, direct sellers. Essentially, an individual is presumed to be an employee unless the company can prove:

NEW CA LAW – Paid Family Leave Insurance (SB 83)– Beginning July 1, 2020, will extend from 6 to 8 weeks the maximum duration of paid family leave insurance (PFLI) benefits.

TPO Note: PFLI is an insurance fund run by the CA EDD; it is not a leave of absence.

NEW CA LAW – Lactation Accommodation (SB 142) – Expands existing requirements to among other things: provide access to a sink and refrigerator in close proximity to the employee’s workspace, prohibit denial of reasonable break time for expressing milk, prohibit discrimination or retaliation for exercising rights, and establish remedies through the Labor Commissioner. Employers with fewer than 50 employees may seek an exemption from the requirements if an undue hardship exists.

TPO Note: This law requires an employer to develop and implement a policy – TPO can help!

NEW CA LAW – CA Consumer Privacy Act Exemption (AB 25) – Provides a one-year exemption from the CCPA for employment information related to consumer data collection rules. The CCPA applies to the following businesses: 1) more than 25 million in gross revenue, 2) buys/sells/uses more than 50,000 contact information, or 3) at least 50% of revenue is from selling contact information.

New! Federal Salary Threshold increases on 1/1/2020 from $455 to $684 per week ($35,568 per year for a full-year employee), however CA has higher thresholds (see next item)!

Reminder! CA Minimum Wage Increases – CA minimum wage increases to ultimately $15.00 per hour on 1/1/2022 through yearly increases. Employers with 25 or fewer employees have an extra year to comply.

$12.00  1/1/2019 $   960.00 weekly, $4,160.00 monthly, $49,920 annually
$13.00  1/1/2020 $1,040.00 weekly, $4,506.66 monthly, $54,080 annually
$14.00  1/1/2021 $1,120.00 weekly, $4,853.33 monthly, $58,240 annually
$15.00  1/1/2022 $1,200.00 weekly, $5,200 monthly, $62,400 annually
And then annual increases based on the Consumer Price Index (CPI).

 

Reminder! CA 2020 Exemption Increases.

Reminder! Missed Break/Meal Penalty Hour.A CA Appellate Court has ruled that the penalty hour (up to 1 hour a day for missed breaks, and 1 hour for each missed meal) is based on the base hourly rate of pay, not the “regular rate of pay.”

TPO Note: “Regular rate of pay” is used for overtime and CA Paid Sick Leave (PSL), not base hourly pay.

Reminder! CA Agriculture Overtime Phase-In. As passed in 2017, the then “Ag” standard 10-hour day (60 hours a week) is lowered by half an hour each year starting 1/1/2019 until it reaches the typical CA employer standard 8-hour day (40-hour week) by 2022. Therefore, starting 1/1/2020, the overtime threshold is a 9-hour day (50 hours a week). Employers with 25 or fewer employees have an additional 3 years to comply.

Updated! IRS Mileage Reimbursement Rate. As of 1/1/2020 decreases to 57.5 cents per mile.

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AFTERNOON SESSION RECAPS

But You Can Get What You Need!

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

It often takes Crucial Conversations to untangle what’s going on to conquer the most challenging issues at work. With his usual flare, Dennis broke this down into Actions, Tools and Attitudes for how to Resolve Conflict and Improve Negotiation Outcomes. Session participants learned how to work through a process for separating WANTS from NEEDS and gained valuable insights and skills about CONFLICT and NEGOTIATION MANAGEMENT. Did we mention Dennis is also a stage actor? Always fun!

If you missed this program at the conference, be sure to register for the expanded 3-hour workshop on September 15, 2020!

Don’t miss Dennis’s expanded encore performance! You will develop a profile of your personal communication style, along with identifying and understanding some of the motivators and/or roadblocks (yours and others) for conducting negotiations and/or difficult conversations. Walk away with a set of behaviors and attitudes to use right away for increased confidence and effectiveness to Align, Engage and Execute on the strategies you and your team need to achieve.

Register to Learn:

    • Take Action
    • Communicate Assertively
    • Recognize the Power in the Conflict
    • Check on Your Assumptions
    • Accommodate, Resolve and/or Move On from the Conflict

For more information or to register for the expanded 3-hour training (Click Here)

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Balancing Both Legal and Leadership Perspectives!

by Marlene Muraco, Esq., Littler Shareholder & Melissa Irwin, SPHR-CA, SHRM-SCP, TPO - The HR Experts

Marlene and Melissa engaged the audience in their usual balancing act while they took questions from the audience and provided their comments, thoughts and recommendations often with a bit of humor to add some levity to an area of business that is often frustrating for those administering the HR function!

Some of the more common themes that emerged in their recommendations:

Focus on Performance! Number one priority. Period. The more that you can show how the employee’s performance rated against the work performance factors, the more you can deflect claims of partiality, unfairness and even discrimination. Performance documentation is key to successful defense!

Specific Tip: When your gut starts to rumble, start documenting specific behaviors, dates/times and facts.

PAUSE! Rarely do employment decisions need to be made immediately. It is often best to “pause” the discussion and agree to a time/date to reconvene to better discuss the situation. This usually results in a more level-headed, fact-based and defensible decision that can be better conveyed to the employee at the appropriate time.

Specific Tip: Consider the following, “Employee, this is an important matter and I want to make sure all the appropriate information has been considered prior to moving to the next step or making a decision. Let’s meet again on date/time, so we can continue this discussion.”

Know Your Role! You are not the employee’s healthcare provider (so don’t give medical advice or make medical assumptions). You are not the employee’s Workers’ Compensation Claims Adjuster (so don’t give your opinion on if the injury/illness is work-related).

Specific Tip:Through “care and concern” work within healthcare provider specific written recommendations WHILE ensuring the functions of the job can be performed.

The Devil May Just Be in the Details! HR is tasked with staying on top of a LOT of details! Use of a calendaring system to ensure follow-up is vital in many areas of HR, including: I-9 work authorization document expiration, leave of absence start/end dates, annual review prompts, official separation of employment date, when meals are taken, and so many more detailed areas.

Specific Tip:

  • The HR Best Practice is to ensure rest breaks are “provided” not that they are actually taken; therefore, since the law doesn’t require employees to clock/record exact in/out times for rest breaks, employers should consider the pros and cons of such a practice.
  • Plan now to document, track and retain harassment training record.

Determine Your Level of Risk-Tolerance and/or Risk-Avoidance! Each employer has their own comfort level and it is important in guiding HR decisions. Departments and individual managers must also be in alignment with the policies of the organization.

Specific Tip: For each employment situation, analyze the risk/rewards of various options, and then choose the option best aligned with organization culture.

Remember, TPO Members receive FREE Q&A as part of thier TPO Annual Membership! Jot down your questions and call your Lead TPO Consultant for discussion!

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Mistakes Companies Still Make and What to do About Them!

by Mel Cole, Esq., Littler Shareholder

Wage and Hour Violations Consequences – Potential damages for violations of wage and hour laws include:

  • Unpaid wages and overtime
  • Double damages for many state claims
  • Court costs and attorney’ fees
  • For independent contractor misclassification, may also include; Fringe benefits and tax liability

Lookback is 4 years. DLSE, EDD and IRS. Employees can pursue on their own or on behalf of others in a class action.

Make sure you are posting the correct Wage Order, click here

 

Piece Rate Plans – The more complicated your plan is, the more difficult it is to stay in compliance. Due to the challenges with these plans, many employers have opted to not use piece rate plans. Employers who choose to use piece rate plans, are recommended to:

  • Identify with particularity all tasks associated with the “piece” – i.e. are necessary to the completion of the piece.
  • Identify and define all non-productive time.
  • Clearly define all expectations regarding performance by employees.
  • Train employees in the tasks necessary to the completion of a piece.
  • Err on the side of compensating for time separately , i.e. training time, waiting time, travel time, safety inspections, paperwork etc.
  • Create a clear, legally compliant formula for calculating the AVERAGE RATE OF PAY

Know how to calculate the average rate of pay! When calculating pay for Overtime. Piece rate (and commission) payments are earned over the total hours worked, not just 40, so two calculations are required.  

There are additional Paystub component requirements for employees paid on a piece rate basis.  They include – Rest Breaks Recovery Periods (R&R) and Non-Productive Time (NPT). These required elements must be compensated, separate from piece rate compensation.

The rate for rest & recovery and non-productive time will be the higher of;

  1. An average hourly rate (Divide the total compensation for the workweek, without the compensation rest, recovery, non-productive time and any premium compensation for overtime, by the total hours worked during the workweek without the rest, recovery and non-productive time.  OR
  2. The applicable minimum wage.

Rest Beaks and Commission Plans – Separately compensate non-exempt commissioned employees for rest breaks. Seek legal advice - Calculating rate of pay is complicated and depends upon a number of things like; pure commission plan, hourly plus commissions, how commissions are “earned”, or when commissions are “earned”.

Reporting Time Pay – If an employee in a non-exempt position reports to work and there is no work provided, they must be paid for at least half of the time they were scheduled to work. A minimum of two hours or a maximum of for hours.

Best Timekeeping Practices

  • Electronic timekeeping - While the old system of pen and paper is still acceptable, electronic timekeeping reduces mistakes in the recording and calculation of time worked.
  • Require employees to punch in and out when they begin and stop working. (Start of day, meal breaks, and end of day)
  • “Pay to the punch” without rounding
  • Require employees to certify their work hours by signature

Independent Contractor (IC), or EmployeeFollowing are RED FLAGS that might support the claim that an IC could be an employee:

  • IC is a former employee.
  • IC performs same work as employees.
  • IC agreement includes a noncompete.
  • IC is paid salary or by the hour rather than project.
  • Company provides training.
  • Company controls hours worked.
  • Company provides tools or equipment,
  • Company reimburses IC for business expenses.

You may also determine Independent Contractor status by applying the “ABC test”

  1. That the worker is free from control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work, and in fact;
  2. That the worker performs work that is outside the usual course of the hiring entity’s business; and
  3. That the worker is customarily engaged in an independently established trade, occupation or business of the same nature as the work performed. 

Exempt, or Non-Exempt - In order to qualify as Exempt, employees in whitecollar exemptions (Professional, Administrative and Managerial/Executive) must be paid at least $1,040 as of 1/2020 on a “salary” per week  ($960 for small businesses 25 and under). Exceptions: Outside Sales, Doctors, Lawyers, Teachers, Commissioned employees of retail or service establishments, and Computer Systems Analysts.

In addition to the salary threshold requirement, the exemption status for administrative, executive, professional, and in California computer professional employees depend on the level of an employee’s decision-making authority. All require the exercise of independent judgment and discretion: customarily and regularly; independent choice; free from immediate direction or supervision; with respect to matters of significance.

*Please seek TPO or legal guidance in determining classification status for contractor or exemption status.

Join us for the next California Employment Essentials (CEE) Training Series
Reinforce your HR objectives and EMPOWER your management team with critical employment law knowledge and essential leadership skills and strategies.
March 5, 12, 19 - 9:00 am to 4:00 pm

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The Big Question Is, What Makes Them Stay?

by Tonja Posey, IPMA-SCP, TPO - The HR Experts & Michaelle Stanford, PHRca, TPO - The HR Experts

There is nothing more frustrating than losing GREAT employees. This session provided insights on PROVEN RETENTION ESSENTIALS to keep your most valued team members engaged. Tonja and Michaelle teamed up to share the latest research, and what leading experts have uncovered as the foremost answers to “what matters most”to today’s top performers … and what makes them stay! This lively program covered critical areas concerning retention of top talent and how generational factors play into the mix.

If you missed this popular program at the conference, BE SURE TO REGISTER FOR THE EXPANDED 3-HOUR WORKSHOP on June 10, 2020.

You will learn some of the top ways enlightened employers have institutionalized a culture of respect and enrichment aimed at retaining their greatest employees.  TPO will share our best tips on why “branding” your business is important, and how to identify and leverage “what makes them stay”.  We will uncover the “5 Secrets” to Valuable Retention while introducing the ACORN Imperatives to help you engage and keep the best of the best.

For more information or to register for the expanded 3-hour training (Click Here).

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A 2020 Overview and What Lies Ahead!

by Laura Devane, Esq., Littler Associate 

Agricultural employers face a multitude of unique employment law issues in the areas of wage and hour law, immigration, health, safety and joint employer liability. Laura addressed issues in those areas that are particularly relevant to the agricultural industry, including the new overtime rules, the proper way to implement piece rate compensation, rest and recovery period obligations, and ways to reduce potential liability when using farm labor contractors.

This afternoon session focused on the following Agenda:

For questions and more information contact: Laura Devane, Littler Mendelson, P.C. lstecker@littler.com  or (559) 244-7500.

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Debbie Ramirez, Human Resources/Payroll

"TPO has been supporting SCHCD's ongoing HR practices throughout the past 15 years. We have over 150 employees, so TPO's partnership is a great help to work through day-to-day questions and challenges. We also rely on TPO to ensure the District is in compliance with so many required employment laws and regulations. They keep our Employee Handbook policies current, and provide excellent training programs for our employees, supervisors and management team. Since HR is only one hat I wear, I appreciate their expert support to keep the District and me on top of this complicated aspect of my job."

The Soledad Community Health Care District (SCHCD) is a California  Special District  which owns and operates two not-for-profit health care facilities in Soledad, California on a beautifully landscaped 3 ½ acre campus.

For more information Click Here

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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 nationally certified HR experts!
Thank you for joining!

 

 

 

 

 

 

 

 

 

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