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n  L.A. Hearne Company

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Just when you thought you heard of every reason for an employee to be away from work, someone approaches you with a Time Off Request and asks how she should indicate that she is taking advantage of the 30 days paid time off to donate a kidney to her sister. Leave requirements often sneak up on employers, especially when they aren’t the common ones like Worker’s Compensation Disability Leave or Pregnancy Disability Leave. It is important that you know about the legal entitlements for a company of your size so that you can comply with the provisions of each leave and effectively advise your employees. Below are the lesser known leave requirements, indicated by company size:

All employers:

  • Military Leave: All non-temporary employees inducted into the U.S. Armed Forces will be eligible for re-employment after completing military service.

  • Military Reserves or National Guard Leave: Employees who serve in U. S. military organizations or state militia groups are eligible for re-employment after completing service. 

  • School Discipline Leave: Any employee who is the parent or guardian of a child and is actually living with the child, or grandparent who has custody of a grandchild is eligible for a school-discipline leave. School-discipline leave is to allow parents/guardians time off to meet with school officials regarding the suspension of a child.

  • Time Off for Victims of Violent Crimes: Employers will not discharge or discriminate against employees who are victims of crime if they take time off to appear in court to comply with a subpoena or other court order as a witness in any judicial proceeding.

  • Domestic Violence and Sexual Assault Leave: If an employee is the victim of domestic violence or sexual assault, time off may be necessary to seek judicial relief to help ensure the health, safety or welfare of the employee or a child.

  • Emergency Duty Leave: Employers must provide unpaid leaves to volunteer firefighters, reserve peace officers, and emergency rescue personnel when they are required to perform emergency duty.

Employers with 15 or more employees:

  • Organ and Bone Marrow Donation Leave: Employers must provide paid leave for employees who donate organs (30 days) and bone marrow (5 days). Employers may require use of vacation/sick time up to 5 days for bone marrow and 2 weeks for organ donation. These leaves are separate and distinct from FMLA or CFRA entitlements.

  • Volunteer CA Wing of the Civil Air Patrol Leave: The Company must allow an employee who has worked at least 90 days to take up to 10 days of unpaid leave for volunteering in the CA Wing of the Civil Air Patrol (the civilian auxiliary of the US Air Force) to respond to emergency operational missions.

Employers with 25 or more employees:

  • Military Spouse Leave: Employees who are regularly scheduled to work at least 20 hours per week and whose spouse is a member of the Armed Forces, National Guard or Reserves who is deployed to an area designated as a combat theater or combat zone during a period of military conflict, may take up to ten (10) days to spend time with a spouse during his/her leave from deployment.

  • Parent’s/Guardians’ School Leave: Any employee who is a parent or a guardian of a child, or grandparent who has custody of a grandchild in kindergarten through twelfth grade, or whose child or grandchild is attending a licensed day care facility, may take up to forty (40) hours each calendar year, not exceeding eight (8) hours in any calendar month of the calendar year, to participate in activities of the school or licensed day care facility of any child or grandchild if the employee.

Employers with 50 or more employees:

  • Volunteer Firefighter Training Leave: Employers must allow for an employee who is a volunteer firefighter to take temporary leaves of absence, up to a total of 14 days per calendar year, to engage in fire or law enforcement training.

Please note that the leaves indicated above are summaries and additional provisions (such as pay while on such leaves) may apply.

Some organizations choose not to list any of the above leaves in their Employee Handbook, while others define all available leaves. A middle of the road approach is to have a general “Additional Leave” section where leaves are listed in bullet format and employees are directed to speak with the HR Representative for further assistance. The choice is up to your organization and is based on a number of considerations, including culture, communication and management style.

Need to revise your Employee Handbook? Call your TPO Consultant or click here!

Article written by: Robyn Schiller, SPHR-CA

The new legislative session is in full-swing with many of the 60+ bills rejected by past republican Governor Schwarzenegger being resubmitted for consideration by the current Democrat Governor Brown. Following are the major employment-related bills.

CA New Legislation

  • Taxable Status Of Health Care Premiums (AB 36) — Aligns CA with federal law so that health care premiums paid for adult children between the ages of 19 and 25 are non taxable. Signed into law by the Governor.


CA Pending Legislation

  • Sick Leave (AB 400) — Would require employers with fewer than 10 employees to give 7 paid sick days a year and larger companies 9 days a year. Eligibility would be after 90 days on the job and employees could use the leave for their own or family members’ sicknesses and doctor’s appointments. Paid leave would also be required for issues related to domestic violence or sexual assault. Bill Status: Pending in the Assembly.

  • “Good Faith” Defense (SB 883) — Would provide employers who rely in good faith upon and in conformity with the opinions, interpretations, guidance, advice, or orders of the Division of Labor Standards Enforcement (DLSE) with an affirmative defense against claims challenging the validity of the employer's wage and hour practices on such issues. Bill Status: Pending in the Senate.

  • Unionization (SB 104) — Would eliminate the secret ballot election and replace it with the submission of representation cards signed by over 50% of the employees. Bill Status: Passed the Senate.

  • Medical Marijuana (SB 129) — Would prevent employers from firing, or refusing to hire workers who use medical marijuana, as long as they are not impaired on the job. Exceptions for employees who have a prescription for medical marijuana will need to be made. Termination of any employee who uses marijuana at the workplace, during working hours, or who is impaired during working hours would be allowed. Bill Status: Pending in the Senate.

  • Expansion of CFRA (AB 59) — Would expand several definitions of terms in the California Family Rights Act (CFRA) for employers of 50, including: eliminating the age and dependency elements from the definition of “child,” expanding the definition of “parent” to include an employee’s parent-in-law; and permitting an employee to also take leave to care for a seriously ill grandparent, sibling or grandchild. Bill Status: Pending in the Assembly.

  • Minimum Wage (AB 10) — Would raise the state minimum wage to $8.50 per hour with an automatic annual indexing of minimum wage for every year thereafter according to the percentage of inflation. Bill Status: Pending in the Assembly.

  • Credit Checks (AB 22) — Would limit employers’ ability to use consumer credit reports only where the information contained in the report is “substantially job-related,” which is narrowly defined by the bill to only managerial positions, employees of the city, county, or state Department of Justice, law enforcement, or a position for which a report is required by law. Bill Status: Pending in the Assembly.


Federal Pending Legislation

  • Unemployment Extension (H.R. 589) – Would add 14 weeks of unemployment to the first tier of extended benefits. Laid-off workers currently on unemployment and the so-called 99ers, who have exhausted their 99 weeks of benefits, would be eligible for the additional aid.

  • Discrimination – Sexual Orientation (H.R. 1397) – Would prohibit employment discrimination on the basis of sexual orientation or gender identity.

  • Discrimination (H.R. 1113) – Would amend the Civil Rights Act of 1964 to prohibit discrimination on the basis of unemployment status.

  • Federal Employees Paid Parental Leave (H.R. 616) – Would require that 4 of the 12 weeks of parental leave made available to a Federal employee be paid leave.

  • NLRB Required Notice — Would require ALL employers (whether unionized or not) to post a notification of employee rights under the National Labor Relations Act (NLRA). The NLRA applies to most private-sector workplaces, but is not applicable to airline, rail or agricultural workers.

Article written by: Melissa Irwin, SPHR-CA

“Allowable Meal Period Waivers”
…yes, there are times when meal periods can be waived!

As previously reported, there are many issues around meal periods that have sat pending at the CA Supreme Court for the past few years waiting for review. Experts seem to agree that there might not be a definitive answer for a while. So what is an employer to do in the meantime?

While we are all waiting, TPO recommends employers take the conservative approach and continue to “ensure” employees take their 30-minute meal periods before the 5th hour of work is commenced. This approach reduces the likelihood of having to pay out an extra hour of pay for missed meal periods.

If employees wish to waive their meal periods, empathize with them and then explain that, at this time, it is only allowable under the following situations and only with a signed meal waiver:

  • If the work shift is completed within six hours, the meal period may be waived.

  • If a long shift is worked (more than 10 hours), one meal period may be waived

Such language is common in Employee Handbooks TPO has developed a meal period waiver which is part of the HR Administration Kit under the “Upon Hire” tab. The waiver needs only be signed once and remains in effect unless the employee revokes the agreement, which can be done at any time.

Frustrated by the meal and break requirements in CA? Give us a call; we can help sort it out for you!  

Article written by: Melissa Irwin, SPHR-CA

DON’T RUN THE RISK…

LET THE EXPERTS HANDLE IT FOR YOU!

TPO’S LEAVE OF ABSENCE SUPPORT SERVICES!
TPO will manage your leave administration, including Workers’ Compensation claims, from beginning to end.

WHAT DOES LEAVE OF ABSENCE SUPPORT MEAN? For a low monthly fee, a designated TPO expert will manage every aspect of an employee’s leave. What we like to call “Leaves from A to Z”. As soon as you are made aware of an upcoming leave, simply notify TPO and we will take it from there! We’ll even take over for leaves in progress.

"The TPO family has been a real blessing for me in my job as HR at Nepenthe/Phoenix Corp. Now they have made my job even easier with their “Leave Management” support services. Leaves have always been difficult for me and I used TPO for help with them every time we had one, now I only need to call “Angela” and she takes over. It really is a wonderful service!" Willie Nelson

 Click here for more information!

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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 HR experts! Thank you for joining!

TPO: "LA Hearne has been a TPO member for over 12 years. How do you feel TPO contributes to your operation's success?”

Francis Giudici, President, L.A. Hearne Company: "With all of the human resource challenges and changing laws today we can always count on TPO to provide quick and knowledgeable guidance to our questions that arise. In addition to their advice, we have taken advantage of many of the training seminars offered. Our mission is to provide the highest level of Customer Service while offering quality products and services to ensure customer satisfaction, employee development, and long term Company growth and profits. Over the last 12 years TPO’s partnership has been an asset in helping us jump the human resource hurdles that line our path. This expertise has been invaluable.”

About L.A. Hearne

L.A. Hearne Company is a family owned and operated agricultural service business in Southern Monterey County. The business was founded in 1938 by Larry Hearne and is now managed by one second generation and eight third generation family members. They employ approximately 100 employees and operate several enterprises including dry beans, seed, fertilizer, feed manufacturing, and trucking. They also have 2 retail farm stores; one in King City and the other in Prunedale. For more information, www.hearneco.com.

We have an employee who has been working four, ten-hour days instead of five, eight-hour days for about a year now because he needs to have Fridays off. Is it true that we have to ask our employees to vote for this before we can do it?

Alternate work week arrangements in California must be set up by way of an election format. Many employers who use such arrangements in other states are unaware of this requirement. The Fair Labor Standards Act (FLSA) which sets most wage and hour guidelines nationally requires overtime pay for any work performed over 40 hours in a work week, generally. This means that an employee can work either four, ten-hour days or five, eight-hour days or any other combination and not be entitled to overtime pay.

In California, employers must pay overtime pay for employees who work over eight hours in a work day for most Wage Orders.

If you want to have employees work an Alternate Work Week, you should follow the steps below:

  1. Identify the group that will be eligible. This can be any nondiscriminatory grouping. For example, it could be all workers in a particular office, all of the employees in a certain type of job.

  2. Develop the types of alternative(s) you want to allow employees to have. Although four ten-hour days is the most common, there are others that are allowed. It would be for any arrangement that would usually incur overtime pay, but you and the employee are willing to make adjustments with no overtime due as a result as long as the plan is followed.

  3. Communicate with the affected employees exactly how this arrangement would work including examples of when over time pay would be due, etc. Be prepared to answer any questions employees have at this meeting. Your TPO consultant can help you with this communication and answer any questions about what should or should not be offered.

  4. Administer a secret ballot no sooner than 14 days after you have had the meeting where you communicate the options. At least 2/3 of the employees must vote for the arrangement for it to pass.

  5. Accommodate in a reasonable way any current employees who are unable to work the new schedule(s).

  6. File the appropriate paperwork with the State of California.

  7. Maintain all of the paperwork related to the election as proof of compliance.

 

Although this sounds pretty straightforward, there are many opportunities to misstep if each possibility isn’t thought out very carefully. Employees may not choose to change this arrangement for a year and then may only do so with a secret ballot to eliminate. The employer can choose to cease such arrangements at any time.

Another issue that may arise in your specific situation (paying an employee for a 4/10 alternative work week without following the required steps above) is that the employee could ask about pay for the time already worked that should have been considered and paid as overtime. You should contact your TPO consultant regarding this question to assist you in managing this with the employee.

 

Article written by: LaTonya Olivier, SPHR-CA

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