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!

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!

PHRca Prep Exam Course HRCI The Gold Standard in HR Certification. PHRca is now the single designation that measures knowledge & expertise in four key areas of CA HR practice.

R EFFECTIVENESS AS LEADERS!

Dates of Upcoming Series:

CEE Begins: August 10, October 12

LES Begins: Sep. 7

PHRca Begins: Sep. 20

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:

Delegation Done Right: June 20

Managing Change: Aug. 8

Excelling as a Manager / Supervisor: Sept. 5

Difficult Conversations: Oct. 11

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: June 6

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: June 13, Aug. 22, Oct. 3, Dec. 7

IN THIS ISSUE

1. LEGISLATIVE UPDATE - California & Federal
      by Melissa Irwin, SPHR, PHRca, SHRM-SCP, TPO

2. HR Q&A - Absenteeism & PSL
      by Kathrine Parsons, SPHR-CA, SHRM-SCP, TPO

3. CA WAGE & HOUR QUICK TIP - Preparing for a CA Labor Commissioner Hearing
      by Melissa Irwin, SPHR, PHRca, SHRM-SCP, TPO

4. TPO NEWS - I-9 Update
      by Kathrine Parsons, SPHR-CA, SHRM-SCP, TPO

5. REMINDERS - Pay "CHECK"
      by Pat Wilkinson, SPHR, TPO

California and Federal HR Legislation

by Melissa Irwin, SPHR-CA, SHRM-SCP, TPO

Following are the major employment-related legislative developments for 2017. Reminder:  Bills go through a lot of change during the legislative process and may look much different by the time they are actually passed…if they are passed at all. Stay tuned for future movement through the legislative system!

Scheduling (AB 5) – If passed, this bill would require an employer with 10 or more employees to offer additional hours of work to an existing non-exempt employee before hiring an additional employee or subcontractor.

“Ban-the-Box” (AB 1008) – If passed, this bill would “ban-the-box” in CA, which means to prohibit asking about criminal convictions on an Application for Employment.

Government-Run Health Care” (SB 562) – If passed, this bill would create a new CA single-payer government-run health care system.

Salary History (AB 168) – If passed, this bill would prohibit an employer, including state and local government employers, from seeking salary history information about an applicant for employment. The bill would require an employer, except state and local government employers, upon reasonable request, to provide the pay scale for a position to an applicant for employment.

Salary Data (AB 1209) – If passed, this bill would require employers to collect data on the mean and median salaries paid to men and women under the same job title or description.

Maternity/Paternity Leave (AB 168) – If passed, this bill would require employers 20 or more employees to provide12 weeks of a protected leave of absence for child bonding.

Salary Threshold Increase for Exempt Status (AB 1565) – If passed, this bill would accelerate the minimum CA salary threshold to either $3,956 or an amount no less than twice the state minimum wage for full-time employment (based on 40 hours a week, this would be $47,472 per year), whichever amount is higher.

  • CURRENT REQUIREMENTS: To meet the current CA exemption from overtime, breaks and meals, employees must earn a weekly salary equivalent to at least 2 times the current minimum wage; in addition to meeting “duty” requirements for Administrative, Executive and Professional exemptions. As of 1/1/2017 with CA minimum wage at $10.50 per hour, that amounts to $840.00 weekly, $3,640.00 monthly, or $43,680 annually. Subsequent increases (employers with 25 or fewer employees have an extra year to comply):
Minimum Wage Date Weekly Monthly Annually
$11 1/1/18 $880.00 $3,813.33 $45,760
$12 1/1/19 $960.00 $4,160.00 $49,920
$13 1/1/20 $1,040.00 $4,506.66 $54,080
$14 1/1/21 $1,120.00 $4,853.33 $58,240
$15 1/1/22 $1,200.00 $5,200 $62,400
And then annual increases based on the Consumer Price Index (CPI).

 

American Health Care Act. If passed, would repeal the Affordable Care Act and replace it with the American Health Care Act.

Raise the Wage Act. If passed, would increase the federal minimum wage to $15.00 per hour by 2024.

Working Families Flexibility Act. If passed would allow certain private employees to receive, in lieu of overtime pay, at least one-and-a-half compensatory time hours for each overtime hour worked, up to a maximum of 160 compensatory time hours. Compensatory time would be paid at the rate in effect when accrued or the employee’s final regular rate. On January 1 of each calendar year, employers would be required to cash out accrued but unused compensatory time hours from the previous calendar year, though during-employment cash-outs are permitted under limited circumstances.

Interested in reading more about the bills and the process?

Federal legislation: http://www.govtrack.us/congress/legislation.xpd

California legislation: http://www.leginfo.ca.gov/bilinfo.html

 

Updated CA Harassment Brochure. CA employers are required to provide Harassment Prevention information to all employees upon hire. In addition to the organization’s policy, CA has an updated pamphlet available at

http://www.dfeh.ca.gov/resources/posters-and-brochures-and-fact-sheets/poster-and-brochure-tab-list/?target=employment

TPO clients with HR Administration Kits: Replace in the “Upon Hire” Section of your Kit.

Updated CA Wage Orders. All CA private employers are required to post their applicable Wage Order which  has been revised to reflect current minimum wage and are available at https://www.dir.ca.gov/iwc/wageorderindustries.htm

Recent CA Supreme Court Clarification.

Agriculture: Wage Order 14 - Agricultural Occupations is under revision and it is yet unknown how language around the seventh consecutive day will be written in the revised document. Stay tuned!

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...Can I Discipline for Absenteesim while using PSL?

by Kathrine Parsons, SPHR-CA, SHRM-SCP, TPO

Question:  One of my employees frequently takes small amounts of time off for medical appointments using her Paid Sick Leave, and it’s beginning to cause problems.  Can I discipline her for absenteeism?

Answer:  No, not while your employee is using accrued Paid Sick Leave (PSL).  Of course, there is  more to fully answer this question and specific circumstances are always important.

 

According to the law and the Labor Commissioner’srecently updated Frequently Asked Questions (https://www.dir.ca.gov/dlse/Paid_Sick_Leave.htm), an employer “shall not deny an employee the right to use accrued sick days, discharge, threaten to discharge, demote, suspend, or in any manner discriminate against an employee for using accrued sick days, attempting to exercise the right to use accrued sick days, filing a complaint with the department or alleging a violation of this article, cooperating in an investigation or prosecution of an alleged violation of this article, or opposing any policy or practice or act that is prohibited by this article.” (LC 246.5, (c)(1).)  

In other words, as long as an employee has accrued PSL time available, an employer cannot deny the employee the right to use it, whether in full days or partial days (such as intermittently for medical appointments). Further, the employer cannot discipline the employee for using their sick leave.

Let’s look at other related circumstances. Do you have an Attendance and Punctuality policy that requires advance notice (or as much as practicable) and a specific call-in procedure?  While there cannot be negative repercussions for using PSL, employees should still follow their employer’s basic rules for notice and calling in. However, the truth is that disciplining an employee for use of PSL even if they did not follow the appropriate procedure may be risky. 

Additional considerations:

  • For employers with attendance policies that include “occurrences,” the use of PSL cannot be considered an occurrence, even with short (or no) notice, as long as the purpose for using it is consistent with the law. (LC 233, 234)
 
  • If an employee works an 8-hour day and uses PSL for 4-hours, then one-half of the day is protected by PSL and one-half of the day may be given ½ of an occurrence (if your plan allows for partial occurrences).
  • If the employee has exhausted their accrued PSL and has an unscheduled medical appointment that would violate your Attendance and Punctuality policy, then an occurrence can be given.  This is because the law only protects the use of accrued PSL.
  • Remember that PSL can be used for the following purposes.  Employers are not required to allow the use of PSL for other reasons.
 
  • Diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member.
  • For an employee who is a victim of domestic violence, sexual assault, or stalking.

 

 

 

 

 

 

 

 

 

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...Stay focused, you've got this!

by Melissa Irwin, SPHR-CA, SHRM-SCP, TPO

Typically this column addresses how to stay OUT of the Labor Commissioner’s office; however, even employers with the best of intentions at some time may have a complaint registered for one or more of the following:

  • Improperly classifying a position as salaried, exempt (as opposed to hourly, non-exempt),
  • Not authorizing and providing breaks and/or meal periods,
  • Incorrectly calculating the “regular rate” as it applies to overtime, piecerate and paid sick leave,
  • Miscalculation of vacation or PTO accrual, and/or
  • Final pay timeframe violations.

 

 

TPO’s advice is to gather documentation to provide at the hearing and prepare how to succinctly and professionally state your case.

  1. Even if the claimant was (or is) the worst performing employee you have ever had, the Labor Commissioner has no interest in hearing about their job performance since it is not relevant to the Labor Commissioner complaint. Stick to the Facts!
  2. Print and provide your Employee Handbook. Flag policies specific to the claim such as breaks/meals, Timekeeping, PTO/Vacation, etc.
  3. Print and provide the employee’s signed Handbook Acknowledgement Form.
  4. Print and provide any relevant Signed Documents on file, such as allowable meal waivers and job descriptions listing exempt status.
  5. Print and provide any Documentation relevant to the claim, such as memos from staff meetings, email directives from management, emails from the employee, time records, etc.
  6. Investigate Internal Practices: Talk with supervisors and employees to figure out if the policies are accurately being enforced. Rectify any inconsistencies and document the change.
  7. Consider Coworker Statements: Where practices are accurate, coworkers can prepare an attestation. For example, of how they knew to take breaks/meals, if they ever witnessed the employee take breaks/meals, and any other pertinent information to the claim.
  8. Consider that at the initial Labor Commissioner meeting, you may be offered a Settlement Option. Some employers will be quick to settle and move on; others will want to fight for what they feel was a fair employment practice.

 

 

 

 

 

 

 

 

 

 

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...Redesigned Green Cards/EADs & an Early I-9 Glitch

by Kathrine Parsons, SPHR-CA, SHRM-SCP, TPO

 

USCIS (US Citizenship & Immigration Services) USCIS made two recent announcements:

1) It is redesigning the Green Gard and EADs and

2) there was an I-9 “glitch” for employers who printed/downloaded the new I-9 form between November 14-16, 2016.

 

 

New Green Cards and EAD

USCIS has redesigned the Permanent Resident Card (also known as a Green Card) and the Employment Authorization Document (EAD) as part of the Next Generation Secure Identification Document Project. USCIS will begin issuing the new cards on May 1, 2017.

Some Green Cards and EADs issued after May 1, 2017, may still display the existing design format as USCIS will continue using existing card stock until current supplies are depleted. Both the existing and the new Green Cards and EADs will remain valid until the expiration date shown on the card.  They will:

  • Display the individual’s photos on both sides;
  • Show a unique graphic image and color palette:
  • Green Cards will have an image of the Statue of Liberty and a predominately green palette;
  • EAD cards will have an image of a bald eagle and a predominately red palette;
  • Have embedded holographic images; and
  • No longer display the individual’s signature.

Also, Green Cards will no longer have an optical stripe on the back.

How To Tell If A Card Is Valid

Some Green Cards and EADs issued after May 1, 2017, may still display the existing design format as USCIS will continue using existing card stock until current supplies are depleted. Both the existing and the new Green Cards and EADs will remain valid until the expiration date shown on the card.

Certain EADs held by individuals with Temporary Protected Status (TPS) and other designated categories have been automatically extended beyond the validity date on the card. For additional information on which EADs are covered, please visit the Temporary Protected Status and American Competitiveness in the 21st Century Act web pages on uscis.gov.

Both versions are acceptable for  Form I-9, Employment Eligibility VerificationE-Verify, and Systematic Alien Verification for Entitlements (SAVE). Some older Green Cards do not have an expiration date.  These older Green Cards without an expiration date remain valid. Individuals who have Green Cards without an expiration date may want to consider applying for a replacement card bearing an expiration date. Obtaining the replacement card will reduce the likelihood of fraud or tampering if the card is ever lost or stolen.

I-9 Printing Glitch

If you used Form I-9, Employment Eligibility Verification, that you downloaded between Nov. 14 and Nov. 17, 2016, review them to ensure your employees’ Social Security numbers appear correctly in Section 1. There was a glitch when the revised Form I-9 was first published on Nov. 14, 2016. Numbers entered in the Social Security number field were transposed when employees completed and printed Section 1 using a computer. For example, the number 123-45-6789 entered in the Social Security number field would appear as 123-34-6789 once the form printed. Employers using a Form I-9 that contains this glitch should download and save a new Form I-9 at uscis.gov/i-9.

Employers who notice their employees’ Social Security numbers are not written correctly should have their employees draw a line through the transposed Social Security number in Section 1, enter the correct Social Security number, and then initial and date the change. Employers should include a written explanation with Form I-9 about why the correction was made in the event of an audit.

USCIS immediately repaired and reposted the form on Nov. 17, 2016, so if you downloaded after that date, your document should be glitch-free.

Source:  https://www.uscis.gov/i-9-central/whats-new

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...It Pays to Manage Employee Compensation Expectations!

by Pat Wilkinson, SPHR, TPO

Employees have more wage data at their fingertips than ever before, and have become incredibly savvy about what the market pays for their skills.  In addition, employees are aware they are legally protected from discriminatory or retaliatory actions from employers, and may freely discuss their pay with anyone as mandated by the Federal Equal Pay Act of 1963 and California’s Fair Pair Act, effective January 1, 2016.

Social media, online recruiters, and simple search engines now provide this information instantly; however, the data is largely uncalibrated, misleading, and statistically unreliable, as is wage data from employees comparing wages with co-workers. In the absence of accurate and reliable data, perception can be reality, and your company may be managing unrealistic employee expectations about pay and benefits.

 

 

These perceptions can actually increase the cost of talent, fester poor morale, and even worse, lead to formal complaints. This can be particularly challenging when the war for talent is heating up again with unemployment rates in California on a steady downward trend.

With the passing of California’s Fair Pay Act in 2015 (SB 583) and subsequent expansion in 2016 (SB 1063), an employee in a protected category (sex, race, ethnicity, etc.) only needs to show that another employee doing similar work is being paid more to level a pay inequity complaint.  The burden of proof has shifted on employers to demonstrate that the alleged unfair pay inequity was made solely on the following provisions:

  1. A seniority system
  2. A merit system
  3. A system that measures earnings by quality or quantity of production, or
  4. A bona fide factor other than sex, race or ethnicity, such as education, training or experience

 

 

 

If you think that paying a new employee a higher salary due to market talent competition is a valid defense against an alleged pay inequity complaint, think again.  Effective January 1, 2017, AB 1676 now explicitly states that “prior salary shall not, by itself, justify any disparity in compensation.” The mandate further states that an employer found in violation “is liable to the employee affected in the amount of the wages, and interest thereon, of which the employee is deprived by reason of the violation, and an additional equal amount as liquidated damages.” Clearly, the financial impact of non-compliance is not simply a quick adjustment to the affected employee’s current pay.

Going forward new employees should be paid based on what a job is worth, and not simply based on their prior employer’s rate of pay. The challenge then becomes determining comparable worth for each job function and how differential rates of pay for each job will be determined. Will additional pay be based on educational levels, years of relevant experience, seniority, special skills, measurable production goals, or some combination of all of these factors? For most small to medium-sized businesses, implementing this kind of system will require exercising a more disciplined approach to determining employee compensation and totals rewards.

Question: What’s the most effective way to manage this legal and financial risk and address employee pay expectations and concerns about internal and market equity? 

Answer:  Review your organization’s current pay practices, and establish a strategic compensation policy to address how and when pay decisions are made based on a job structures (i.e., job families and levels) with annual assessment to ensure a legally compliant methodology for determining fair pay with internal and market equity based the factors above.

The first step in this process is to analyze and assess your current employees’ internal pay equity through the lens of the latest legislated criteria.  The second step is to participate in relevant market wage surveys to compare and calibrate your company’s greatest asset – your talent!  By participating in relevant wage surveys, you can significantly reduce your company’s cost for data that informs and supports pay decisions with objective, reliable and statistically accurate information for your industry, revenue size, geographic region and job functions.

TPO can help you identify reliable surveys and assess your organization’s current pay practices and compliance position to ensure that any necessary adjustments to employee pay are adequately determined and prioritized based on level of risk exposure and financial impact.

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