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!

Dates of Upcoming Series:

CEE Begins: Aug. 9, Oct. 11

LES Begins: Sept 13

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 3-hour Workshops (9:00am - Noon):

Excelling as a Manager/Supervisor: Sept. 12

Wage & Hour: Sept. 18

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

Do I Coach, Correct or Say Goodbye?: June 19

HR Q&A Live: Aug. 15

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

Dates of Upcoming Briefings:

I-9 Compliance: June 14

External HR Support Briefing: July 25, Oct. 23 & Dec. 4

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 ENGLISH: June 7, Aug. 21, Oct. 2 & Dec. 6

IN THIS ISSUE

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

2. HR Q&A - Independent Contractor or Employee?
      by Tonja Posey, IPMA-SCP, TPO

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

4. REMINDERS - No Call, No Show
      by Theresa McMorrow Jordan, M.A., TPO

HR Legislation

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

Following are the major California and Federal employment-related legislative developments:

Harassment and Reference Checks (AB 2770) –  If passed, would protect an employer’s ability to warn potential employers during the reference check process about an individual’s harassing conduct that was investigated without the threat of a defamation lawsuit by the alleged harasser. Passed the Assembly; in the Senate.

Settlement and Arbitration Agreements (AB 3080) – If passed, would ban settlement agreements for labor and employment claims as well as arbitration agreements made as a condition of employment. On the Assembly Floor.

Disclosure of Company Pay Data (SB 1284) – If passed, would require California employers to submit pay data to the Department of Industrial Relations. On the Senate Floor.

Release of Claims (SB 1300) – If passed, would limit the use of severance agreements and prohibit the use of a general release in employer/employee contract. This bill would require employers with 5+ employees to provide harassment training to all employees in California within 6 months of their hire and once every 2 years. The bill also would require an employer to provide bystander intervention training. On the Senate Floor.

Wage Statement Penalties (AB 2613) – If passed, would create additional penalties for wage and hour violations in addition to the penalties already available under the Private Attorneys General Act (PAGA) and impose greater personal liability. On the Assembly Floor.

Medical Marijuana in Employment (AB 2069) –  If passed, would require employers to provide a reasonable accommodation to employees who use marijuana for a disability or medical purposes. In the Assembly Appropriations Committee Suspense File.

Extension of Statute of Limitations (AB 1870) – If passed, would extend the statute of limitations from one year to three years for all discrimination, harassment and retaliation claims filed with the Department of Fair Employment and Housing. In the Assembly Appropriations Committee Suspense File.

Sexual Harassment (AB 3081) – If passed, would provide for many modification around sexual harassment, including: requiring harassment training for employers with more than 25 employees to train all nonsupervisory employees; for the Labor Commissioner to establish a 24-hour hotline to serve as an informational resource to workers regarding workplace protections; a rebuttable presumption of unlawful retaliation if an employer takes specific actions within 90 days following notice or actual knowledge of the status; and the filing deadline for these prohibitions and the reasonable accommodations requirement 3 years from the date of occurrence of the violation. In the Assembly Appropriations Committee Suspense File.

Restoring Overtime Pay Act (S. 2177 and H.R. 4505) If passed, would require the Secretary of Labor to create regulations that: 1) set the minimum salary amount at a weekly rate equal to the 40th percentile of earnings of full-time salaried workers in the lowest-wage Census Region (though the Secretary could set a higher minimum salary); and 2) update the minimum salary amount every three years.

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/

 

Independent Contractors. The California Supreme Court announced a significant change in independent contractor law, adopting a modified “ABC” test for determining whether an individual is an employee under the Wage Orders. You may read more information about this topic in the HR Q&A section of this eNews.

Federal Supreme Court – Arbitration Ruling. Employers can require as a condition of employment mandatory arbitration where workers waive their rights to participate in class action lawsuits.

Transgender Status. The U.S. Court of Appeals for the Sixth Circuit recently ruled that discrimination based on an employee’s transgender status is discrimination based on “sex” in violation of Title VII of the Civil Rights Act of 1964 (Title VII). While the Equal Employment Opportunity Commission (EEOC) made such a determination in 2012, the Sixth Circuit is the first such federal appellate court to so rule.

Flat Sum Bonuses. The California Supreme Court recently upheld the DLSE’s method of determining Flat Sum Bonuses (in this case an attendance perk for working the weekend). The correct method is “factored into an employee’s regular rate of pay by dividing the amount of the bonus by the total number of non-overtime hours actually worked during the relevant pay period and using 1.5, not 0.5, as the multiplier for determining the employee’s overtime pay rate.” 

NEW Federal OSHA Electronic Filing by 7/1/2018 for Some Employers. The Form 300A, Annual Summary of Work-Related Injuries and Illnesses for the 2017 calendar year is now required to be electronically submitted by July 1, 2018 to the federal OSHA Injury Tracking Application (ITA) online portal.

Per OSHA www, “Only a small fraction of establishments are required to electronically submit their Form 300A data to OSHA. Establishments that meet any of the following criteria DO NOT have to send their information to us. Remember, these criteria apply at the establishment level, not to the firm as a whole.

Prior Salary Not a Defense. The U.S. Court of Appeals for the Ninth Circuit has held that prior salary alone or in combination with other factors cannot justify a wage differential between male and female employees under the Equal Pay Act. The Ninth Circuit has jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

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...Independent Contractor or Employee?

by Tonja Posey, IPMA-SCP, TPO

Question:
We are considering hiring an Operations Director as an independent contractor rather than hiring the individual as an employee. Is there anything we should be concerned about?

Answer
In the past California courts and other state agencies applied what is known as the the Borello test for determining whether a worker was an independent contractor. This test left some uncertainties as to whether the employer truly had a “right to control” and several other factors in determining whether an individual meets the definition of an independent contractor.  

 

Recently, and as a result of Dynamex Operations West, Inc. v. Superior Court of Los Angeles, the California Supreme Court announced a significant change in independent contractor classification, by adopting an “ABC” test for determining whether an individual is an independent contractor.

An individual is presumed to be an employee unless the company can prove all three of the following:

  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; and
  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.

 

 

 

 

TPO can provide expert guidance for our members and clients to strategically enhance their current recruiting, selection, onboarding practices to drive more effective hiring decisions.

 

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...this can be more than the 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, on-call pay, and multiple rates of pay.

 

Tips for Correctly Paying 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 correctly coded for inclusion.

 

 

 

 

 

 

 

 

 

 

 

 

This article is brief overview of a very complex matter. Please contact TPO with any questions!

 

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Viveca Lohr, Executive Director

“Meals on Wheels of the Monterey Peninsula, Inc. is a non-profit agency serving the needs of seniors and their families on the Monterey Peninsula.  We have been very appreciative for the support and training we have received from TPO in the recent years.  As a NPO Executive Director, one is a Jack of All Trades, Master of Few, and as we all know HR management is very technical and ever changing.  We have relied on Jill, Robert and the TPO team to guide us through human resource problems, policies development and team building.  Their expertise allows us to do what is right, keep our small but mighty team functioning and allowing us to focus on doing the work we do for our clientele and the betterment of senior’s lives in our community.   We are thankful for their strong shoulders, empathetic ears and breadth and depth of knowledge in the area of Human Resource management!”

About Meals on Wheels of the Monterey Peninsula

Since its founding in 1972, Meals on Wheels of the Monterey Peninsula, Inc. (MOWMP) has offered healthy nutrition to the homebound. The agency has subsequently expanded over the years and now offers a breadth of health and wellness services to Peninsula residents through three (3) core programs.

The Home Delivered Meals program provides home delivered meals five days per week, with an optional meal for the weekend, to frail, elderly and disabled adults. The majority of our home delivered meals clients are low-income. Meals on Wheels serves all clients who meet program criteria, whatever an individual's ability to contribute.  A donation to the program would be appreciated.

The Group Dining program offers a hot, nutritious noon luncheon to ambulatory seniors at four sites in Marina, Seaside, Monterey and Pacific Grove. As important as the meal is the opportunity to dine in the company of friends and new acquaintances.

The Sally Griffin Active Living Center (SGALC) provides over 20,000 hours of exercise, health and wellness and enrichment classes and activities per year at its location at 700 Jewell Avenue, Pacific Grove, CA. The Center is fully owned and operated by Meals on Wheels of the Monterey Peninsula, Inc.

To learn more: https://www.mowmp.org/

 

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...is it a voluntary resignation of employment?

 by Theresa McMorrow Jordan, M.A., TPO

There is no legal requirement in California that dictates the number of days an employee must have missed of scheduled days of work under a “no-call, no-show” policy to consider it job abandonment or a voluntary resignation of employment.

Employers are cautioned not to assume all “no-call/no-shows” are automatic job-abandonment cases. Occasionally, employees are unable to contact their employers, such as in medical situations or some other form of crisis. Determining why an employee has stopped coming to work can set aside concerns that the employee may have a medical condition, which could trigger leave of absence policies or accommodation issues. 

 

 

Employers can choose the duration for their no-call, no-show policy, with the most common being 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:

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 (3) three consecutive work shifts will be considered to have abandoned his/her employment and have voluntarily resigned employment.
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 Send a Letter.
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.”
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.
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.

 

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