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: Aug. 8, Oct. 10

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.

Dates of Upcoming Crash Course:

June 26, August 28 & November 27

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: Sept. 12

TPO's popular prescheduled workshops are presented on a wide range of important regulatory and leadership topics. Many are available to attend via webinar.

Dates of Upcoming 2-hour Workshops (9:00am - 11:00am):

HR Q&A Live: June 18

Dates of Upcoming 3-hour Workshops (9:00am - Noon):

Excelling as a Manager/Supervisor: June 6

Solving People Problems: August 14

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: July 24

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

Dates of Upcoming HDR:

ENGLISH

Harassment, Discrimination & Retaliation: June 13, Aug. 20, Oct. 1 & Dec. 5

SPANISH

Harassment, Discrimination & Retaliation: June 20, Aug. 27, Oct. 8 & Dec. 12

IN THIS ISSUE

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

2. HR Q&A - Mismatch Letter
       by Caron Pearce,TPO

3. CA WAGE & HOUR QUICK TIP - "Regular Rate"
      by Melissa Irwin, SPHR, PHRca, SHRM-SCP, TPO

4. Reminder - Injured Employee, Returns to Work
      by Michaelle Stanford, M.A.,TPO

5. Training Spotlight - Leadership Excellence Series (LES)

6. Member Spotlight - Corral de Tierra Country Club

7. Benefiting TPO Members and Clients

8. Welcome New Members

9. NEW Employment Essentials Crash Course Training

HR Legislation

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

Pending Legistation

Following are the major employment-related legislative developments:

Arbitration Agreements (AB 51) – If passed, would prohibit arbitration agreements made as a condition of employment.

Sexual Harassment (AB 628) – If passed, would provide a new leave of absence for victims of sexual harassment and their “family members,” as well as expand the definition of sexual harassment under the Labor Code.

CA Family Rights Act (SB 135) – If passed, would expand leave requirements to employers with 5+ employees, requiring up to 12 weeks of a protected leave of absence each year.

Wage Violations (AB 673) – If passed, would allow both an employee and the Labor Commissioner to recover the same civil penalties through civil litigation.

Lactation Accommodation (SB 142) – If passed, would amend current law regarding lactation accommodations by implementing new building code requirements, location standards, employer policy requirements, document retention and supplementary Labor Code penalties.

Unemployment During Trade Disputes (AB 1066) – If passed, would allow employees on strike to receive unemployment benefits if the strike lasts more than four weeks.

 

Pending Legistation

Equality Act (H.R. 5): If passed, this bill would prohibit discrimination based on sex, sexual orientation, and gender identity in areas including employment, public accommodations and facilities, education, federal funding, housing, credit, and the jury system.

TPO Note: California already specifically prohibits such discrimination.

The Paycheck Fairness Act (H.R. 7): If passed, this bill would amend the Equal Pay Act of 1963 to expand potential damage awards for equal pay claims, limit an employer’s ability to raise the “any factor other than sex” affirmative defense in wage discrimination cases, and make it unlawful for an employer to prevent employees from discussing or comparing salaries, among other changes.

TPO Note: California already prohibits employers from preventing employees from discussing wages.

Interested in reading more about the bills and the process?

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

For CA legislation: http://leginfo.legislature.ca.gov/

CA Paid Family Leave Insurance Expansion: CA Governor Gavin Newsom has proposed expanding EDD’s Paid Family Leave Insurance (PFLI) from the current six weeks, to eight weeks per person effective 7/1/2020. The governor eventually wants to expand paid leave to three months per person.

TPO Note: CA Paid Family Leave Insurance (PFLI) is an insurance fund run by the state Employment Development Department (EDD); it does not guarantee a leave of absence.

CA Court Case, On-Call Employees: Recently, the Second District California Court of Appeal ruled that on-call employees are entitled to reporting time pay if they are required to contact the employer to see whether they must actually report to work (Ward v. Tilly’s Inc.). In this case employees were required to call in to see if they were to report to work in two hours.

TPO Note: While this was for employers governed by Wage Order 7, it is unclear if other Wage Orders will be impacted. Stay tuned!

Federal Supreme Court, Sexual Orientation and Gender Identity: The U.S. Supreme Court announced in April that with the review of three cases, it will decide whether gay, lesbian, and transgender workers are expressly protected under federal civil rights law.

TPO Note: California already expressly protects gay, lesbian and transgender lesbian, bi-sexual, gayand transgender workers.

Federal EEO-1 New Requirement to Collect Compensation Data by September 30, 2019: In addition to the usual EEO-1 requirement to submit Component-1 data (workforce demographics by job category, race, ethnicity, and gender) by March 31, covered employers must now ALSO collect detailed Component-2 data on employee compensation and hours worked by September 30, 2019 for calendar year 2018 data.

TPO Note: EEO-1 covers private employers with 100 employees or more employees and federal contractors with more than 50 employees. However, federal contractors with 50-99 employees are required to file Component-1 only.

Federal Department of Labor (DOL), Independent Contractors: An April DOL Opinion Letter (advisory and non-binding) found an anonymous “gig economy” employer had correctly classified service providers as independent contractors using the “long-standing six-factor economic realities test.”

  1. The nature and degree of the potential employer’s control.
  2. The permanency of the worker’s relationship with the potential employer.
  3. The amount of the worker’s investment in facilities, equipment or helpers.
  4. The amount of skill, initiative, judgment or foresight required for the worker’s services.
  5. The worker’s opportunities for profit or loss.

TPO Note: While good news on the federal front, California’s test is different and goes off the 2018 ruling of the “ABC test.”

A. 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; and

B. That the worker performs work that is outside the usual course of the hiring entity’s business; and

C. That the worker is customarily engaged in an independently established trade, occupation or business of the same nature as the work performed.

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I just received a Mismatch Letter from the Social Security Administration (SSA) Office!

by Caron Pearce,, TPO

Why me? The SSA is simply performing a database push out to employers for clean-up of records. They are not going out to any specific industry, or employers.

What do I do? Don’t panic! After about a nine-year hiatus, these letters are going out in an abundance to employers right now.

First and foremost, do not make any assumption about the individual’s right to work, rather, treat it as an administrative payroll issue, knowing there are many legitimate reasons for a mismatch (a name change due to marriage/divorce, transposed number, use of surnames/hyphens, etc.).

 

There are four different types of waivers:

You will be instructed by the SSA to login to their portal for instruction on mismatches, verifying, and reporting on the mismatches and documenting your correspondence with the employees. After logging on, you will be provided the specific names/numbers of employees. The next steps are:

  1. Internal Audit: First conduct an internal audit to determine it is not an input error, or an improperly filled out I-9 or W-4. If the records appear accurate, go to the next step.
  2. Contact the Employee: The SSA will provide you with a sample letter to give to your employees (after you have conducted your internal audit) to notify them that the Social Security Number (SSN) and name they provided to you, does not match SSA’s records. With the letter you will be provided you can have the employee verify their exact name and SSN, as you have reported for your payroll records. If it does not match, the employee needs to give you the exact name and number as shown on their Social Security (SS) Card (you can suggest they bring the card in as a way to ensure accuracy). SSA lists a 30-day timeframe for the employee to fix the issue, though the sample letter we have seen does not give a timeframe. If the employee does not correct the problem within 30-days, follow-up prior to the 60th day.
  3. Report Back to SSA within 60 days: SSA requires an update of corrections and/or progress report within 60 days. They want to make sure that you are following up with your employees.

What if the employee notifies me their SS card and the information I have from my payroll records does match exactly?
Ultimately it will be the employee’s responsibility to fix the mismatch. The letter will instruct the employee how to contact the local SS Office to resolve the issue. SSA does not require a specific disciplinary/termination process.

Do I have to tell my employee they can’t work until the issue has been resolved? NO!  There should be no adverse employment action, and this should not be treated as an immigration, or right to work issue.

What if the employee tells me the SSN is false and they don’t have the right to work in the US?
Employers are not allowed to employ individuals when there is constructive knowledge that the individual does not have the right to work in the US. Employers may want to discuss this issue with their qualified labor law attorney.

How long does the employee have to fix the mismatch?
“Initially” they have a 30-day window to resolve or give you an update as to the progresstowards resolution. If within 30-day’s you still have not heard from the employee that the issue has been resolved, you will need to follow-up with them at about 50 to 55 days (in time for you/employer to respond to the SSA of progress within 60 days via the portal). If you still have not received notice of correction or notice of progress, the employee should get at least an additional 30-day notice to communicate progress.

Then what?
Employees are required to provide you with the correct SS information. If you have heard nothing from the employee and/or they are not demonstrating steps to resolve the matter, prior to considering it insubordination and cause for separation of employment, legal review is recommended.

Share with this information with your employees: It is in their best interest to correct the matter, as this could affect their SS benefit when they need it, and the government might get to keep their hard-earned money!

Have questions? Contact TPO today!

 

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...And, you are thinking of terminating the employee? Think again!

by Michaelle Stanford, M.A., TPO

Regardless of your company size, Labor Code Section 132a (Workers Compensation Division of the Department of Industrial Relations), makes it a misdemeanor for an employer to discriminate in any way, including discharge or threat of discharge, against an employee who is injured and makes a claim in the course and scope of their employment.  This could include employers who terminate the employee for poor performance upon return to work following a Workers Compensation leave.

 

Absent giving performance feedback or coaching prior to the work injury, a termination action could be viewed as discriminatory based on a protected classification (race, color, religion, sex, national origin, disability, age, genetic information, military service and veteran status).  For example, when terminating the employee, is there any reason a claim could be made that the employee was discriminated against because of the work injury as evidenced by derogatory comments others made concerning the injury?  Was the employee precluded in training or from emails that are important for the employee to perform their work?  Or, were jokes made about the employee being slow or clumsy? 

Be sure before you act.

Separate from regulatory compliance, also consider how employees view their treatment from you and others.  Employees may find that filing a claim for worker’s compensation can expose them to suspicion and unwanted attention.  A “stigma” can easily surface in which the employee is viewed as “careless” rather than addressing the safety of the work conditions.  Or, others doubt the legitimacy of the claim as it is viewed the employee is avoiding doing the work.  Or worse yet, resentment towards the employee because of job accommodation or taking time to heal.

Whether the situation involves an employee returning from a Workers Compensation leave or other protected leave, be sure you have full understanding of your employee’s wellbeing and their ability to perform the job following their return.

There are 17 “Time Away from Work” protected leaves in California. Can you identify all 17? 

Send us your list and the first correct responses will receive one paid seat to Harassment & Discrimination Prevention Training!  Click here to submit your answer today!

Most important, if you employ 50+ employees, remember to coordinate their Workers Compensation leave with eligible CFRA/FMLA leave.

Finally, before arriving at a decision to terminate an employee, ask the following.

  • Have I provided enough instruction and feedback to the employee?
  • Do I fully understand, and have I considered the employee’s capability and reasons for less than acceptable performance?
  • Has the employee acknowledged understanding of the performance improvement required of them?  Are they able to improve? Is training an option?
  • If the employee returned to Modified or Alternate work, have I allowed for the appropriate amount of time?  Has instruction been provided to adjust and/or learn the new job?
  • Did I provide the necessary support to the employee in assimilating back to the team and their work?
  • Am I “personally satisfied” I provided the necessary opportunity for the employee to improve?

 

 

 

 

 

 

If you are unable to check all items with confidence, then “slow down” and re-evaluate other options.  Once you terminate your employee, there is no turning back!

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...this can be more than the "base hourly rate" of pay!

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

You probably know: Overtime must be calculated based on a non-exempt employee’s “regular rate” for the workweek.

You may not know: A $12.00/hour employee’s “regular rate” of pay is NOT $12.00/hour where a non-exempt employee also receives earnings such as commissions, non-discretionary bonuses, piece-rate, value of meals/lodging, and multiple rates of pay.

 

Tips for Correctly Calculating the “Regular Rate”

The regular rate can change every workweek and is based on all remuneration for the workweek. In no case may the regular rate of pay be less than the applicable minimum wage.

Examples of some of the more common exclusions from “regular rate” are sums paid as gifts for special occasions, expense reimbursements, payments made for occasional periods when no work is performed due to vacation, holiday, illness, failure of the employer to provide sufficient work, premium pay for Saturday, Sunday, or holiday work, and discretionary bonuses.

Paid Sick Leave (PSL) can either be paid the “regular rate” for the workweek, or an employer may choose to adopt a policy that looks back 90 days.

Audit your payroll to ensure the “regular rate” has been calculating correctly, particularly with bonuses/commissions/piecerate correctly coded for inclusion. Revise field titles on paystubs to more accurately define the field: “base rate” is the hourly rate, “regular rate” is the amount overtime and PSL is calculated from.

Learn more straight from the source at the CA DLSE: https://www.dir.ca.gov/dlse/FAQ_Overtime.htm

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...customized Leadership Excellence Series (LES)

 

TPO had the honor of facilitating a customized Leadership Excellence Series (LES) for the Central Coast VNA & Hospice (CCVNA) in April. CCVNA is extremely committed to their mission of providing the highest quality health care. One of the ways they accomplish this is by developing their leadership team to be the best they can in managing and supporting the employees who provide the excellent quality healthcare to residents of the Central Coast.

 

 

Tonja Posey, Senior HR Consultant/Trainer customized and facilitated this three-day training program. The focus was on developing and affirming the effectiveness of the leadership team. The program content consisted of activities to illustrate and reinforce learning in strengthening leadership skills on business specific concepts, hypothetical situations, team involvement, examples and discussions. Tonja encouraged group participation and had each group pick a name for themselves.

One group went as far as having t-shirts made! Now that’s leadership spirit!!!!

 

Participants came away with a better understanding of how to support, develop, motivate and lead their teams and why it is crucial to be an effective leader.

TPO has presented hundreds of training programs to thousands of supervisors, managers and executives. The training topics are only limited by the individual client’s needs and imagination. Our award-winning programs are presented by our highly skilled facilitator/trainers just to your organization, at your location or ours, as part of a series or individual sessions. Click here to see all training TPO provides.

To see TPO’s standard LES training series, click here, and know that like was done for VNA, it can also be customized for your organization.

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Tim Ruediger, CFO

"TPO helps Andrew Smith Company navigate the ever-changing landscape of Human Resource and Payroll Management.  They provide us with both top-level strategic oversight as well as hands-on practical solutions.  We are definitely a better company through our relationship with them.  They recently trained our employees on Harassment, Discrimination and Retaliation prevention. We were very happy with TPO's Spanish-speaking trainer and the updated, interactive in-person TPO training program.  Thank you for all your support."

Our Story

Andrew Smith Company employs a dedicated team of food-handling and food-safety professionals to ensure that the lettuce, romaine, and celery that passes through our facility is of the finest quality and meets the highest federal and state standards for health and safety.  Backed by a regular program of audits and inspections by independent third-party laboratories, Andrew Smith Company brings you the most wholesome and reliable products from planting to the produce aisle.

For more information Click Here

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Introducing TPO's Newest Bilingual/Bicultural Special Projects Consultant!

BILINGUAL/BICULTURAL SPANISH HR SUPPORT EXAMPLES:

  • Presenting Harassment, Discrimination & Retaliation Prevention TRAINING in Spanish. Remember there are new and expanded rules for training employees.
  • Translating and presenting other Spanish language Supervisor and/or Employee training and employee communications programs.
  • Ad hoc Workplace Investigations Interviews/Reporting.
  • Employee relations and problem-solving interventions.
  • Assistance with mentoring/advising on bilingual/bicultural HR topics and situations as needed.

Teodora (Teo) Reyes

Teo is a focused and dedicated HR professional with a comprehensive record of success. She has over 15 years of experience in the HR field. Teo’s HR generalist expertise includes benefits, recruiting, training, labor relations workers compensation and safety. She attended CSUMB majoring in Human Communication with a pre-law minor and is scheduled to earn her BA in Management through the University of Phoenix late 2019.  Teo possesses strong competencies in CA and Federal Employment Regulations, employment practices and policies, training and development, investigations and risk management. She thrives working in diverse environments facilitating positive employee relations – particularly with Spanish speaking employee populations. Teo has streamlined procedures and increased organization efficiency by establishing objectives, determining priorities, and fostering cross-functional relationships supported by multiple HRIS Information systems and programs. To read Teos full bio, click here.

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We look forward to the opportunity to provide 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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