n  Register NOW and SAVE!

n  Training_Calendar

n  Happy Holidays!

n  Holiday Celebrations

n  IRS Mileage

n  Annual HR Check-up

n  Cleaning the Office with Care

n  Legislative Update

n  W&H Quick Tip

n  TPO New Members

n  Injury, Harassment and Discrimination Investigations

n  HR Q&A

 

 

Training Calendar

CA Employment Essentials

A training series focusing on the regulatory compliance and HR best practices - the information & skills supervisors & managers need to keep themselves and the organization out of hot water!

n February '12

Management Excellence Series

A training series focusing on practical leadership and communication skills to help managers develop or refine their effectiveness as leaders!

n March '12

Training Calendar

n Excelling as a First Time Manager or Supervisor

January 26

n FMLA/CFRA/PDL Compliance

March 08

n Harassment and Discrimination Prevention

May 15

External HR Support Briefing

n Join us for breakfast

February 15

This program is for ALL employers, including new & current TPO members and affiliates. Learn about options and alternatives available to employers considering the economies and efficiencies of external HR support for all or part of their employment-related demands – along with information about TPO’s highly successful membership model.

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2012 is a HUGE year for changes in employment law, State and Federal enforcement actions, and court decisions affecting ALL California employers including:

-The “Wage Theft Protection Act”

- Commission Agreements

- Employer Credit Checks

- Independent Contractor Misclassifications

- Employee Medical Leave Changes

- Expanded Gender Identity/Gender Expression Protections

w      LITTLER'S EMPLOYMENT UPDATE - Expanded this year!

w       EXHIBITOR SHOWCASE

w      Consultation Request Card (With a Littler Attorney) - NEW this year!

PLUS...FOUR TIMELY AFTERNOON SESSIONS!

  • HEALTH CARE REFORM - and Managing the High Cost of Employee Benefits! (by Tony Bruscia)

  • EMPLOYMENT LAW & HR ROUNDTABLE - Getting the Specific Answers You Need! (by Littler & TPO)

  • ACCOMPLISHING MORE WITH LESS - 5 Productivity Principals for the Digital Age (by Pierre Khawand)

  • STRATEGIC ALIGNMENT - Setting Priorities Provides Clarity for Us ALL (by TPO)

A PREMIER CONFERENCE FOR BUSINESS OWNERS, MANAGERS, HR, RISK MANAGEMENT AND LEGAL COUNSEL IN PUBLIC, PRIVATE AND NONPROFIT ORGANIZATIONS

TPO Members attend FREE* as part of their Annual Membership!

(*Based on number of authorized representatives)

 

 **Charge for participants above the number of your authorized representatives.

Click here for early bird registration!

‘Tis the season to remind all of our clients that though the Holidays are a perfect time to let employees know how much you appreciate their hard work by having company parties and celebrations, it is also a time when alcohol consumption, and thus potential employer-liability, is an unfortunate reality. You may have read articles where employers have been held liable for their employees consuming alcoholic beverages at company events, driving an auto, and then hurting or killing innocent victims.

Therefore, if you are in the process of planning this year's celebration for your employees, please consider the following points as part of that planning. Whether an official company-sponsored event or an unofficial couple of glasses of wine at the end of the day, certain measures should be taken to help minimize any related liability and most importantly, the safety of your employees and the public.

If your company often has informal or formal social events that include alcohol consumption “off-the-job,” it might be wise to include an appropriate policy regarding this in your employee handbook.

Because of the potential liabilities, many companies are choosing to coordinate family-oriented, non-alcohol celebrations for their employees. If you decide to serve alcohol, always make a good faith effort to limit intake, and consider these suggestions (some of which are based on actual court cases) to reduce risks of liability:

  • Move the party off-premises to a club or restaurant, and hold it during non-working hours.

  • Avoid conducting company business at the party. (Note: Even handing out turkeys or company bonus checks or presenting speeches by top management could be interpreted as company business).

  • Do not require attendance; make it voluntary.

  • Involve employees in the planning.

  • Be sure to plan activities to keep your guests active - if your guests stay active with some form of entertainment, they probably will have a better time and be less likely to drink too much.

  • If you plan on serving alcohol, budget to hire a professional bartender who will stay sober, serve only measured amounts, and is trained to cut off individuals who over imbibe; be specific with the bartender as to how long the bar is to stay open.

  • Avoid providing liquor purchased with company funds; do provide alternative, non-alcoholic beer, wine, and soft drinks.

  • Consider limiting alcoholic beverages to beer and wine, and discontinue all but nonalcoholic drinks approximately an hour or two before the party is scheduled to end.

  • Have employees purchase their own alcohol, ideally by purchasing controllable drink tickets.

  • Serve meals or snacks; high-protein foods, especially, which help retard alcohol absorption. Avoid salty snacks; they promote thirst, and people may drink more alcohol to quench that thirst.

  • Arrange for some non-drinking employees, taxis, or limousine drivers to take home those who may be unfit to drive themselves.

We hope your holiday season is full of fun and festivities, and that these suggestions will help ensure that 2012 is a safe and prosperous New Year!

Beginning January 1, 2012, the standard mileage rates for the use of a car (also vans, pickups or panel trucks) will be 55.5 cents per mile for business miles driven. The rate for business miles driven is unchanged from the mid-year adjustment that took effect on July 1, 2011.

The IRS establishes a mileage reimbursement rate to compensate employees for the use of their vehicles (including fuel, maintenance, minimum insurance requirements, etc.). Many employers use this rate to satisfy the requirements of Labor Code Section 2802. The Division of Labor Standards Enforcement (DLSE), which enforces state wage and hour laws, accepts the mileage reimbursement amount used by the IRS as a reasonable amount for reimbursement for vehicle-related expenses.


Employers are not required to use this rate, but must reimburse employees for the use of their vehicles to accomplish tasks assigned by the employer that require such use. If the employer reimburses at the rate lower than the one set by the IRS, an employee may challenge the rate paid and require the employer to pay the amount of the actual cost up to the IRS rate.

Although we care about your personal health, we're actually talking about
an HR CHECK-UP...

We know you try hard to stay current with all of the changing state and federal employment regulations, and to have sound HR policies and practices, but it's very challenging! Some organizations hire attorneys to conduct regular comprehensive (and expensive) audits to be sure they are on track and manage risk.

Rather than crossing your fingers and hoping you're on top of things, we recommend at least conducting an annual Basic HR Administration Review. Take a look at these KEY RISK FACTORS FOR CA EMPLOYERS and decide if it would be a good idea to confirm that your key employment practices are legally compliant AND promoting positive employee relations:

1. Employee Handbook

n None

n Outdated (Legally and/or with current practices)

n Not Legally Sufficient

n Unsigned Acknowledgements

2. General Employment & Recordkeeping Practices

n Unlawful

n Inconsistent

n Postings & Required Distributions

3. Poor Hiring Practices

n Illegal Interview Questions

n Applications for Employment

n Applicant Data

4. Pay Misclassifications

n Exempt

n Non-Exempt

n Salaried/Hourly

n Independent Contractor

n Volunteers

5. Inadequate Payroll Practices

n Overtime Calculations

n Meal Periods

n Recordkeeping

n Final Pay

n Deductions

6. Lack of Management Training

n Basic Employment Regulations, including Discrimination

n Effective Leadership Techniques

n Performance Management & Documentation, including Terminations

n Required Sexual Harassment Training

7. Insufficient Leave Management

n PDL (Pregnancy Disability Leave)

n FMLA/CFRA (Family Medical Leave Act/CA Family Rights Act - if applicable)

n Workers' Compensation

n Disability Management

n Other Required Leaves

It's less painful than a trip to the dentist, and not that expensive to have TPO check up on your HR practices if you don't have the time or expertise. You don't want to step over dollars to pick up dimes when it comes to the financial implications of having to defend your practices or actions when it's likely that you "didn't know what you didn't know"! Give us a call and you can check this off your "to do" list and start 2012 in good shape!

If one of your New Year Resolutions was to get better organized, clean out file cabinets and drawers or make more room around the office, think C and C before you begin. That would be Cleaning and Care. Tossing can be addictive once you start to see empty space in those jammed-up files and boxes. But it is important to be sure that what goes out, can legally do so.

A quick review of legally compliant cleaning can help you to stay on track knowing there will be no tears to shed later when you need to produce a document that is shredded. If you have a TPO HR Administration Kit, you can find all the “purging” information that you need in the final tab labeled “General.” If not, here are some general guidelines to get you started and be sure to call a TPO consultant if you have specific, additional questions:

Keep for 5 years

  • First Aid records for job injuries, and drug/alcohol test results

  • Affirmative Action documents (if applicable)

Keep for 4 years

  • Payroll records, including individual wage records, payment dates and pay periods

Keep for 3 years

  • Wage records, including time cards, shift schedules, employee hours and days

  • Child labor certificates (for hires under age 18)

  • Union and employee contracts (if applicable)


Keep for 2 years

  • Recruitment records, including job applications, job inquiries received, applicant ID records, help wanted ads

  • Employee Personnel files including disciplinary notices, evaluations, promotions and demotions, terminations and recalls, training


And be sure to keep documentation for any claims, investigations and legal proceedings until the final disposition of the case, which can sometimes be a long, long time. Now…get back to that cleaning!

Give us a call with any questions about records retention or any other employment questions you have!

Following is a recap of the most impactful CA employment-related bills for 2012. Each of these will be discussed in more detail at our all-day Employment Law and Leadership Conference:

CA Legislation

Signed into Law by Governor Jerry Brown

  • Insurance Premiums – Pregnancy Disability Leave (SB 299) Requires employers to maintain and pay for health insurance premiums for an employee who is on Pregnancy Disability Leave (PDL) under the same conditions that coverage would have been provided if the employee had continued in employment during the PDL leave. PDL is for the amount of the pregnancy-related disability, up to a maximum of 4 months.

  • “Gender Expression” (AB 887) – Includes “gender expression” under the Fair Employment and Housing Act, defined as “a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.” The new DFEH poster can be downloaded at http://www.dfeh.ca.gov/res/docs/Publications/DFEH-162.pdf.

  • Organ and Bone Marrow Leave Clarification (SB 272) — Provides employers with clarity on these mandatory leaves, including that: 1) the one-year period referenced in the statute is 12 consecutive months from the date of the employee’s request for leave, not a calendar year, 2) the days of leave are business days, as opposed to calendar days, and 3) the benefits of an employee must be maintained at the same level during the paid leave, as if he/she had continued to work during that period.

  • Wage Notifications (AB469) — Requires an employer to provide each employee, at the time of hiring, with a notice that specifies the rate and the basis, whether hourly, salary, commission, or otherwise, of the employee’s wages and to notify each employee in writing of any changes to the information set forth in the notice within seven calendar days of the changes unless such changes are reflected on a timely wage statement or another specified writing.

  • Credit Checks (AB 22) — Limits employers’ ability to use consumer credit reports to only where the information contained in the report is “substantially job-related,” which is narrowly defined to 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.

  • Commissions (AB 1396) — Requires that all employers put commission agreements in writing, clearly stating the method computed and paid. Employees must sign a receipt of the commission agreement, to be retained by the employer.

    • Commission defined per the text of the law: “Commissions does not include short-term productivity bonuses such as are paid to retail clerks; and it does not include bonus and profit-sharing plans, unless there has been an offer by the employer to pay a fixed percentage of sales or profits as compensation for work to be performed.”

  • Independent Contractors (SB 459) — Imposes new penalties for the willful misclassification of someone as an independent contractor.

    • IRS Voluntary Classification Settlement Program: Employers that choose to voluntarily reclassify their independent contractors as employees for federal tax purposes and may be eligible to pay a fee covering a portion of their past payroll obligations and can escape certain tax liability for improper misclassification under the IRS's new Voluntary Classification Settlement Program (VCSP). Employers interested in participating in the VCSP can apply by filing Form 8952, Application for Voluntary Classification Settlement Program, at least 60 days before the employer wishes to treat the workers as employees.

  • Farm Labor Contractors Itemized Statements (AB 243) — requires that the written statement include the name and address of the legal entity that secured the employer’s services in addition to the currently required semimonthly itemized statement.

  • Minors Employed in Agricultural Packing Plants (AB1398) — extends the exception to hours now allowed for this employment in Lake County and modifies the reporting required for the same.

  • Agricultural Labor Relations Procedural Revisions (SB126) — changes and clarifies procedural matters where Unfair Labor Practices have been identified and the resulting legal review mediation or other actions.

  • Unemployment Insurance in the Motion Picture Industry (AB55) — Extends the current UI requirements for this industry beyond the original repeal dates of January 1, 2012.

  • Gender/Sexual Orientation Protection in Contracts (SB117) — Extends coverage of the current law prohibiting state entities from contracting with any organization that does not provide same health benefits coverage for a domestic partner as for a spouse to include any contractor that discriminates on the basis of the gender or sexual orientation of an employee’s spouse or partner.

Article written by: Melissa Irwin, SPHR-CA

“Breaks”
…when employees want to choose when to take them!

While in reality some employers allow their hourly, non-exempt employees to take their breaks at the end of the day (effectively leaving early), it is not technically within the spirit of CA wage and hour requirements.

The wage orders specifically state that 10 minute breaks are to be taken for every four hours worked, "which insofar as practicable shall be in the middle of each work period." As a reminder, if an employee is not provided rest periods (or if an employer requires employees to not take a rest period), they must be paid an hour of penalty pay for the missed rest period (up to a maximum of one hour per day).

In addition to not meeting the wage and hour requirements, allowing employees to go home early can impact scheduling and work flow requirements, as well as the often valid concern that additional "breaks" are taken throughout the day in addition to leaving early. Also, it keeps the employee "on the clock" 20 minutes after they have actually left the premises. Employers are within their rights to require employees to take breaks at certain times and to require they stay working the entire shift; with disciplinary consequences (up to and including termination of employment) for violations of that directive.

That all said, if an employee is provided the opportunity to take breaks and the employee self-chooses to not take the break for their own personal reasons, the extra penalty hour of pay is not required. For some employers they don't mind this arrangement and allow employees to make that decision. In such a situation, it is recommended employees sign timecards indicating that they were provided the opportunity for breaks and to indicate if any missed breaks were due to the employer requiring it be missed.

It seems you need to determine first what scheduling requirements you have and then determine if you want to allow employees to not take their breaks and leave early. Always pros and cons as well as associated levels of risk-tolerance.

If you would like to discuss this issue further, please give your

TPO Representative a call!

Article written by: Melissa Irwin, SPHR-CA

n ACTION Council of Monterey County, Inc. - SALINAS

n Robert Talbott - 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!

Did you know that TPO is licensed by the State of California (PI-25638) to provide investigative services?

Not only do we offer years of experience, judgment and credentials – combined with the latest technology – to client investigations including alleged harassment, discrimination and malfeasance; we also work with our clients to reduce risk, liability and loss by creating solid policies and systems. TPO can investigate and analyze root causes, patterns and trends to reduce exposure and liability – and then recommend corrective actions.
 

Some of the situations that TPO-HR can help you with are:

HR INVESTIGATIONS

• Discrimination   • Harassment
• Theft                • Workplace Relationships

BACKGROUND INVESTIGATIONS

• Pre-employment             • Promotions
• Contractors/Consultants

RISK MANAGEMENT

• Internal/External Theft   • Intellectual Property
• Computer Use               • IIPP

GENERAL INVESTIGATIONS

• Records                                • Research
• Special ”Discreet” Inquiries     • Skip Tracing

Don’t wait until a situation of discrimination, harassment or other malfeasance arises – give TPO a call to review your current policies, employee relations issues and overall prevention systems today!

For more information on TPO’s Investigative Services, please call us at 1-800-277-8448 or email info@tpohr.com.

Is it true that California only requires employers with 50 or more employees to train their managers about preventing sexual harassment in the workplace? Also are we safe in not providing protected time off to take care of a family member?

  1. Sexual Harassment Training: For this particular law, you must also include independent contractors in the “employee count”! If you still determine that California Assembly Bill 1825 does not apply, remember that both the Equal Employment Opportunity Commission (EEOC) and Fair Employment and Housing Act (FEHA) have LONG HELD that employers must take all reasonable steps to prevent harassment from occurring – and as you can imagine – training managers and supervisors is generally accepted by all courts as reasonable! In addition, there is a long-standing acceptance of providing an Affirmative Defense for employers who provide such training and get sued even in other states.  Employers that rely only on the written word (in an employee handbook, distributed pamphlets, and/or other policy documents) have some risk of legal exposure for not taking the time to discuss this important topic with leaders of their organization. Of all the training you offer to your managers and supervisors, this should be at the top of your list!

  2. Be careful! While the Family and Medical Leave Act (FMLA) and California Family Rights Act (CFRA) may not apply, California Labor Code section 233, "Kin Care," must be considered. Which employers are covered? ALL private sector employers offering sick time or Paid Time Off (PTO)* benefits – regardless of number of employees. While employers are not required to offer paid sick time or PTO, those that do must follow California State law regarding employee use of such benefits. When an employer provides paid sick time or PTO, they must allow employees to use up to half their annual accrual to care for a sick family member. What is half their annual accrual? Half of an employee's accrued and available sick time/PTO – or what would otherwise be accrued in a 6-month period – whichever is greater. Who is considered family? A family member is defined as spouse, domestic partner, parent, child, or child of a domestic partner. As well, employee use of Kin Care must not be counted against employees on attendance records.

* Because PTO is a bundling of vacation, sick time, personal holidays, etc., it must be included when evaluating employer coverage and employee use of protected time off under Kin Care.

Article written by: LaTonya Olivier, SPHR-CA

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Employment Upd@te is a publication of  TPO HUMAN RESOURCE MANAGEMENT. Copyright ©2004-2011. All rights reserved.
TPO's Employment Upd@te may not be reproduced or re-transmitted without change or modification of any kind. The information provided is designed to be accurate in content. TPO provides human resource consulting and is not engaged in rendering legal, accounting or other professional services. Readers are advised to consult legal counsel on matters involving employment law or important personnel policies & practices before adoption or implementation.