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CA Employment Essentials

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June 29

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August 17

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a lesson from a Salinas employer case

Recently, the Monterey County Herald reported that four former packers at a Salinas frozen-food company who were awarded a shared amount of $535,000. These employees were fired after complaints of sexual harassment were lodged against a supervisor. The settlement resulted from a federal suit against the company by the U.S. Equal Employment Opportunity Commission (EEOC). The suit was filed by the EEOC in January 2010.

Four workers were fired shortly after two of them filed discrimination claims against the maker of nationally distributed food products. The four workers had complained about a supervisor's actions to company managers, but no investigation was conducted by the company into the claims according to the agency.

Complaints included sexual comments, gestures simulating sexual acts with female workers, exposing himself, texted pornographic material and grabbing a worker’s private parts.


"The message is that if employers hear complaints about a supervisor sexually harassing (employees) you need to do an investigation," a representative of the EEOC said. "If you terminate so soon after a complaint, there is no other conclusion other than retaliation."


In addition to the monetary settlement, under the terms of the agreement, the company must bolster its policies against sexual harassment, provide training to managers and employees and periodically report to the EEOC regarding complaints of harassment or retaliation. These requirements are elements of the required Prevention of Sexual Harassment Training in California. This is a year when most employers of 50 or more employees and all public sector employers must provide 2 hours of such training to managers and supervisors.

The EEOC website has information showing that more than a third of its cases deal with retaliation and that for the first time, retaliation surpassed racial discrimination in 2010 as the most frequently filed charge. Representatives from the EEOC said, "Employers who try to solve a harassment problem by getting rid of the people who speak out about it will only add to that statistic.”

FOR OVER 20 YEARS TPO is the ONLY REGIONAL HR FIRM IN California providing a unique combination of S/PHR-CA CERTIFIED HR EXPERTS who are LICENSED PRIVATE INVESTIGATORS (PI-25638). Under Business and Professions Code Section 7522(e) independent contractors who perform investigations must be licensed private investigators and attorneys performing their duties as attorneys. Under newly proposed amendments to the Code, the Bureau of Security and Investigative Services will soon issue administrative citations and assess fines up to a maximum of $5,000 per citation for unlicensed activity by any persons advertising for the purpose of soliciting business without a license.

We have extensive experience and success with investigating highly sensitive harassment and discrimination claims, as well as other forms of workplace malfeasance including computer forensics. We also serve as expert witnesses. With our HR knowledge and employee relations skills, employers can be confident that these delicate matters are handled in a way that limits unnecessary disruptions to morale and provides complete information with which to make adjustments if necessary.

Article written by: Robert Russell, SPHR

I-9 COMPLIANCE (presented by The Mike Saqui Law Group)

Employers can face stiff penalties for IRCA (Immigration Reform & Control Act) violations!

July 13, 2011, 9:00 – 10:30am

HEALTH CARE REFORM (presented by Industry Experts)

Sweeping Changes Employers Need to Know NOW!

August (tbd), 2011, 9:00 – 10:30am

PERFORMANCE MANAGEMENT SIMPLIFIED (presented by TPO)

Steps to Take Now to Keep Employees on Track!

August 25, 2011, 8:30 – 10:00am

GAMES ORGANIZATIONS PLAY – Refresh Your Workplace with FUN Learning Tools (presented by TPO)

Take control of the impact you have on workplace morale and commitment.

September 8, 2011, 8:30 – 10:00am

MOTIVATING EMPLOYEES WITH TOTAL REWARDS THINKING– It’s Not All About Pay! (presented by TPO)

Cost Cutting Options to Consider in Today’s Economy!

October 27, 2011, 8:30 – 10:00am

Location for all briefings: TPO’s Professional Development Center, 60 Garden Court, Monterey.

Can't Join us in Monterey?

ALL Briefings are also available via Webinar!


Cost: One Free seat for Members, $35 for non-members

Click here for more information and to register!

U.S. Layoffs Lowest Since 1995
The massive private company layoffs appear to be over with employers announcing 130,749 job cuts nationwide in the first quarter, the lowest since 1995, reports Challenger, Gray & Christmas, the international outplacement firm that tracks jobs.

Bills are making their way through the legislative process with some stalled out and some gaining speed. Keep current before they become law by knowing the following:

CA Legislation – Pending on Governor’s Desk

  • Card Check Bill (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 Senate and Assembly – now on the Governor’s Desk.


CA Legislation – Pending in Legislature

  • Bereavement Leave (AB 325) — Would require employers to provide an employee with up to four days of unpaid bereavement leave upon the death of a spouse, child, parent, sibling, grandparent, grandchild, or domestic partner. Bill Status: Passed to the Senate.

  • Payroll Cards (AB 51) — Would put restrictions on the use of payroll cards. Bill Status: Pending in 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: Passed to 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. Pre-employment drug testing would require exceptions for employees who have a prescription for medical marijuana. 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: Still Pending in the Senate.

CA Legislation – Failed deadline

  • “Good Faith” Defense (SB 883) — Would have provided employers who relied 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: Failed deadline.

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

  • Expansion of CFRA (AB 59) — Would have expanded 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: Failed deadline.

  • Minimum Wage (AB 10) — Would have raised 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: Failed deadline.


Federal Pending Legislation

  • The Healthy Families Act (H.R. 1876, S. 984) - Would allow employees to earn one hour of paid sick time for every 30 hours worked, up to a maximum of 56 hours (seven days) annually. Bill Status: In committee.

  • Paycheck Fairness Act (H.R. 1519, S. 797) and the Fair Pay Act (H.R. 1493, S. 788) - Would amend the Fair Labor Standards Act (FLSA) to promote pay equity. Bill Status: In committee.

  • Family and Medical Leave Enhancement Act (H.R. 1440) – Would expand the Family and Medical Leave Act (FMLA) to allow both private and federal employees to take parental involvement leave to participate in or attend their children's and grandchildren's educational and extracurricular activities, and to clarify that leave may be taken for routine family medical needs and to assist elderly relatives, and for other purposes. Bill Status: In committee.

  • Payroll Fraud Prevention Act (S. 770) - Would impose new reporting requirements on employers, increase penalties for classification violations, and establish new protections for workers who believe they have been misclassified as non-employees. Bill Status: In committee.

  • Secure America through Verification and Enforcement (SAVE) Act (H.R. 2000) – Among other provisions, would create a four-year phase-in period during which all employers would eventually be required to use E-Verify to check the employment eligibility of their potential and current hires. Bill Status: In committee.

Article written by: Melissa Irwin, SPHR-CA

Thanks for Giving Youths an Opportunity – but be Cautious!
Employers often provide opportunities to young people to earn some money, increase their job skills, and learn about possible careers in the summer.

It is great to have people who can take on the work which might otherwise burden employees who are trying to adjust to vacation schedules or just have a lot of administrative work that has built up. Although it is good to have some willing and energetic new employees, employing minors does involve some advance planning and thinking.

Employment of minors is regulated under numerous authorities, such as the California Labor Code, the Education Code, the federal Fair Labor Standards Act (FLSA) to name a few, and the regulations vary by industry and age of the minor. A minor is anyone who is under 18 years of age and required to attend school and therefore subject to California’s child labor protections.

Before employing a minor, ensure you are familiar with your industry regulations and avoid these common mistakes: not obtaining proper work permits; not paying required wages to minors; employing minors in prohibited occupations; and violating permitted work hour restrictions.

For purposes of this article, we will focus on employing minors 14-17 years of age.

Work Permits
Employers must obtain proper work permits which are required year-round, even when school is not in session. The school year begins on July 1 and ends on June 30 and work permits expire five days after the start of the new school year. Work permits are issued by the Superintendent of the school district where the minor goes to school or lives. The employer or the minor must obtain (from the superintendent) and complete the Statement of Intent to Employ a Minor, and obtain a Permit to Employ and Work. Work permits are not required if the minor is a high school graduate, or has a certificate of proficiency.

Wages
Minors must be paid no less then the minimum wage and overtime if applicable. Minors are typically not allowed to work more than eight hours in a day. See below for more details.
Prohibited Occupations.

Minors are not permitted to drive a motor vehicle on public highways and streets for the purpose of their job which includes delivering any type of goods from a motor vehicle. Generally, prohibited occupations include: excavation, manufacturing explosives, mining, and operating many types of power-driven equipment. For more information on this subject, visit the Department of Labor website at www.dol.gov/dol/topic/youthlabor/hazardousjobs.htm.

Work Hours
Generally, minors age 14-15 can work three hours per day on a school day outside of school hours and eight hours on a non-school day. They can work up to 18 hours per week while school is in session and up to 40 hours per week when school is out. Minors in this age range are permitted to work between 7 a.m. – 7 p.m. except from June 1 through Labor Day when they can work until 9 p.m.

Generally, minors age 16-17 can work four hours per day on a school day and eight hours on a non-school day or on any day preceding a non-school day while school is in session. When school is out, they can work eight hours a day. The maximum amount of hours they can work is up to 48 hours per week, even when school is in session. Minors in this age range are permitted to work between 5 a.m. – 10 p.m. and can work until 12:30 a.m. on any evening preceding a non-school day, such as Saturday evening or during the summer.

Be cautious because many minors may attend summer school, so the school day hours would apply in that case.

Note: If a minor works two jobs, both jobs count toward the aforementioned limits.

Mobile Phones
Effective July 1, 2008, it became illegal for individuals under age 18 to drive a motor vehicle while using a mobile phone, even with a hands-free device. This includes other mobile service devices, such as a broadband personal communication device, a specialized mobile radio device, a pager, a two-way messaging device, or a handheld device or laptop computer with mobile data access. However, minors may make calls for emergency purposes only to, for example, a law enforcement agency, a healthcare provider, or the fire department.

Note: There are many additional exceptions to hiring minors and this list is not inclusive. If you have specific questions about your organization’s plans to incorporate young workers, please call TPO for more assistance.

Article written by: LaTonya Olivier, SPHR-CA

“Reporting Time Pay”
… When an employee is ready to work, but not put to work!

When employees in non-exempt positions report to work as scheduled, but are not put to work, or are asked to leave prior to the end of the scheduled shift, reporting time pay may be due.

Decision Made by Employer: When the decision is made by the employer for the employer’s own reasons (not enough customers or work to do, for example) the non-exempt employee must be paid half of the scheduled shift, no less than 2 hours, nor more than 4 hours.

  • For example: Joe is scheduled for a 10 hour shift, but 1 hour into the shift is told that there is not enough work to do and that he is no longer needed for the day. Joe will receive a minimum 4 hours pay for the day. The employer may always choose to pay more.

Decision Out of Employer’s Control: When an employee is scheduled to work, however operations cannot continue and it is out of the employer’s control (rain, fires, floods, power failures, earthquakes, etc.) the organization may choose to send non-exempt employees home and the time off can either be paid or unpaid at the employer’s discretion.

  • For example: Joe is scheduled for a 10 hour shift, but upon arriving at work, the weather conditions are so bad, the supervisor closes the store and tells him to go home. Joe is not required to be paid for that day.

Reporting Time Pay policies are common in Employee Handbooks TPO writes.
Is it in your Employee Handbook?

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!

n drew-massa Transportation - Salinas

n special kids crusade - monterey

n organic farming research foundation - santa cruz

n Photoflex - watsonville

n orator plus, inc. - monterey

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: "Central Coast College has been a TPO member for 6 years and a client since 1996. How do you feel TPO contributes to the college’s success?”

Robert Schaefer, President, Central Coast College: "TPO provides us with both proactive, and as-needed regulatory support to keep our employment practices legally sound while fostering positive employee relationships. We look forward to TPO’s Annual Conference each year, coming back with leading edge HR knowledge and fresh information to keep our employees motivated and inspired. The most important value TPO adds is having on-the-spot access to Melissa Irwin and TPO’s entire team of highly professional HR experts. TPO’s sage advice helps us make better decisions so we can stay focused on our students and core business.”

 

About Central Coast College

Central Coast College was founded in 1983 with 20 students, two staff members, and only one program. Today, Central Coast College has an enrollment of 200 and employs 20 full-time and part-time staff, providing training in Computer Office Administration, Computer Specialist: Accounting, Health Information and Patient Services, Medical Assisting and Phlebotomy. www.centralcoastcollege.edu.

Employer Services

No-fee Placement Services:

We offer no-fee placement services through our Career Services Office hireagrad@centralcoastcollege.edu. Your job requirements are carefully reviewed. We select the most qualified graduates or students to meet your specific needs. Students can be referred directly to you, resumes may be prescreened, or you may even conduct interviews on our campus. We will work with you to help meet your employment needs. Classes graduate every 4-6 weeks to assist employers on an ongoing basis.

Interns & Externs:

Internships are a part of every Central Coast College student's training program. Students with classroom experience are anxious to apply their knowledge and skills in the workplace. You receive a student with medical assisting or office skills to lend an extra hand; the student gains experience and confidence and you contribute to the education of a new generation of employees; it's a win-win situation. Please contact our Career Services Office, hireagrad@centralcoastcollege.edu, for more information on our internship program.

Custom Training:

We offer training for your employees. By providing an instructor at our site or yours, we can help your employees learn new skills, new software or to master the software they are currently using. Please contact our Custom Training Coordinator, egiuliano@centralcoastcollege.edu, for more information.

Monterey/Santa Cruz/San Benito County Employers:

If you want to link to our website, contact our webmaster at: hireagrad@centralcoastcollege.edu.

Webinar – 8/5/2011 10 AM – 11:30 AM

ROI of HR: Top Measures for Business Cost $49 non NCHRA members
Learn to define and use key measurements to demonstrate how “human” resources make an excellent investment. Discover how to measure individual processes, as well as enterprise-level information. In addition to important specific measures, it is important to realize that numbers are not the answer; they only further define the question.

SPHR/PHR Certification Test Preparation Course (Gilroy) 12-week course beginning 8/17 6-9 PM Cost $1040 non NCHRA members

Seminar -- 9/29/2011 9 AM – 3:30 PM

Key Elements of a Successful HR Strategy Cost $329 non NCHRA members
Successful organizations spend time and money developing organizational depth and "bench strength," guided by a strategic agenda. Business professionals intimately involved with people initiatives are poised to achieve company goals in this area. Discover how to best leverage your unique position to inform and support the strategic goals of your organization.

Seminar -- 11/16/2011 9 AM – 3:30 PM

Motivating and Retaining Employees: What They Really Want Cost $329 non NCHRA members
It has become more challenging to ensure your employees are satisfied in their positions. Are they motivated to do the best job they can for your organization? Are they being honest about their needs in the workplace?

If you find yourself taking stabs in the dark to develop employee recognition and retention programs, this course is for you!

California Certification Test Preparation Course (Monterey – TPO Offices) 2-day course 12/2/2011-12/3/2011 8:30 AM – 4:30 PM Cost $625 non NCHRA members

Seminar – 12/13/2011 9 AM - 3:30 PM

Working Across Generations: We're Not So Different Cost $329 non NCHRA members
Take an amusing, yet enlightening look at the differences and similarities of today's workforce, and gain a better understanding of what each generation needs from their leaders. Specifically, you'll learn to:

  • Identify and work within different values and preferences

  • Explain and live by "The Platinum Rule"

  • Tailor your communication messages appropriately

Our company conducts pre-employment drug screening. We just got word that one of the applicants failed the test. When we told them that, they promptly produced a Medical Marijuana card. I think that we should not hire them due to the failed drug test. However, my manager says that because Marijuana is legalized in California for medicinal purposes that we need to hire the person. Who is right?

Unless SB 129 is approved in the near future, the California Supreme Court gave very clear guidance to employers in the 2008 Ross v. Ragingwire Telecommunications, Inc. The court said that the employer had legitimate interests in not employing someone who uses illegal drugs, even if the conduct was permitted under state criminal laws. Even if state law makes a drug lawful for medicinal purposes, nothing in FEHA precludes an employer from firing, or refusing to hire, a person who uses an illegal drug.

In this case, the employer terminated the employee after 8 days of working, after it received positive results of the pre-employment drug test. The court said that an employer is not in violation of the law if they terminate an employee who tests positive for marijuana, even if that employee has a medical marijuana card. TPO’s recommendation is that an employer who chooses to use pre-employment drug screen wait for the result of the screen prior to putting the applicant to work.

If SB 129 passes, it would prevent employers from firing, or refusing to hire workers who use medical marijuana, as long as they are not impaired on the job. Additionally under the terms of pending SB 129, exceptions for employees who have a prescription for medical marijuana would need to be made and termination of any employee who uses marijuana at the workplace, during working hours, or who is impaired during working hours would be allowed. In the event SB 129 passes, the challenge will be to determine, document and articulate objectively, an impairment. TPO advises that employers focus on the behaviors and performance of the employee without drawing conclusions unless there in incontrovertible evidence of drug use, i.e. directly observed and confirmed by management.

As with most employment matters the issues of medical marijuana in the workplace and pre-employment drug testing are largely dependent upon employer preferences. If you would like to discuss what policies and procedures are most appropriate for your organization, please give TPO a call.

Article written by: Robyn Schiller, SPHR-CA

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