n  EEOC Charges Reach Record High in 2011

n  Training_Calendar

n  Teamwork: Where the sum is greater than the parts

n  Save the Date - 3-hour programs

n  New Requirements for all Retirement Plans

n  Retirement Briefing

n  Legislative Update

n  W&H Quick Tip

n  TPO New Members

n  Rancho Cielo Youth Campus

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 May '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 August '12

Training Calendar

n Team Building

May 09

n Harassment and Discrimination Prevention

May 15

n Excelling as a First Time Manager or Supervisor

May 17

n FMLA/CFRA/PDL Compliance

June 07

External HR Support Briefing

n Join us for breakfast

June 05

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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According to the newly-released enforcement and litigation statistics, private sector employees filed a record number of charges with the Equal Employment Opportunity Commission in 2011. A total of 99,947 charges of employment discrimination were filed with the EEOC in the 12-month period ending on September 30, 2011. During this period, the EEOC filed 261 merit-based lawsuits across the U.S., an increase of 11 lawsuits over the prior year. In addition, claimants received $455.6 million in relief through agency enforcement, mediation and litigation efforts. These findings were first brought to light in the EEOC’s Fiscal Year (FY) 2011 Performance and Accountability Report (PAR) released in November 2011. The charge statistics flesh out the types of claims that were filed during the year, giving employers some indication as to which charges of discrimination are the most frequent and/or most costly to resolve. Highlights of the 2011 data include the following:

  • Of the 99,947 total charges filed, 35,395 (35.4%) involved claims of race discrimination; 28,534 (28.5%) involved claims of sex discrimination; 25,742 (25.8%) set forth disability-related discrimination claims; 23,465 (23.5) alleged age discrimination; 11,833 (11.8%) involved allegations of national origin discrimination; 4,151 (4.2%) alleged religious discrimination; 2,832 (2.8%) set forth charges of discrimination based on color; 919 (.9%) of claims alleged pay-based discrimination; and only 245 of the charges set forth genetic discrimination claims under the Genetic Information Nondiscrimination Act (GINA), up slightly from the prior year, but representing the same percentage (.2%) of total claims filed.

  • Of these charges, 37,334 (37.4%) involved claims of employer retaliation.

  • A total of $91 million in monetary benefits was received through litigation alone in FY 2011. Title VII lawsuits generated the most in damages ($54.3) through litigation, followed by lawsuits filed under the Americans with Disabilities Act (ADA), which generated $27.1 million in monetary benefits through litigation.

  • The monetary benefits received in ADA cases increased the most from the prior year. In addition to the $27.1 million obtained as a result of litigation, ADA claimants received an additional $103.4 million as a result of agency administrative action. According to the EEOC, “back impairments were the most frequently cited impairment under the ADA, followed by other orthopedic impairments, depression, anxiety disorder and diabetes.”

  • The EEOC’s mediation program resolved 9,831 charges, and generated $170,053,021 in benefits.

  • Although they comprised a relatively small percentage (4.2%) of total claims, religious discrimination charges increased the most (9.5%) from 2010 to 2011.

  • While most claims increased from 2010 to 2011, the total number of claims alleging race and national origin discrimination under Title VII and violations of the Equal Pay Act (EPA) fell slightly.

  • The EEOC resolved a total of 112,499 charges in 2011. A finding of “no reasonable cause” was made in 74,198 (66%) of these cases. A reasonable cause finding was made in 4,325 instances (3.8%). Among other means of resolving the charges, the EEOC dispensed with 10,234 charges via settlement, and 20,248 through merit resolutions.

  • Of the 300 lawsuits filed in FY 2011, 261 were merit suits, which include direct suits and interventions alleging violations of the substantive provisions of the statutes enforced by the EEOC and suits to enforce administrative settlements.

I am always surprised when a client says, “I don’t know if the problem is the employees...or the manager!” I’ve heard this countless times from large and small employers, for-profit and non-profit organizations, and from executives to HR reps. One of the first questions I always ask is whether their managers (and supervisors) have been taught how to handle different types of group dynamics. Almost always the answer is no. Sometimes it’s because of busy schedules. Sometimes it’s because senior management doesn’t think of training as an investment in the organization’s future – or productivity.

Do any of the following situations sound familiar?

  • The ABC Department is behind schedule and holding up the entire production schedule.

  • Tony’s team is unhappy and threatening to transfer out because Tony is a control freak and nixes all the ideas they bring to him.

  • Susan is managing a large project, and finding it difficult to get her team of 7 to work cohesively. Fingers are pointed and excuses are made.

If you’ve ever found yourself part of any of these situations, you can understand how de-motivated an employee can become. Did you know there are proven methods of creating, developing, enhancing, and maintaining solid team work? Who knew?!?! Of course I’m going to tell you. TPO knew! There’s a lot to know about building and maintaining productive teams. Here are just a few things to think about:

Communication Styles: Do your managers match their communication style with the employees on their team? Do you have a manager who is a meticulous detail person (individually) who produces stellar results, and who is now in charge of a large project where a high level view is required? Or perhaps a high producing, task oriented manager with an introvert personality who is managing a team that includes outspoken extroverts?

Stages of Team Development: Just as a caterpillar gradually passes through predictable stages to morph into a colorful butterfly, new teams predictably pass through developmental stages on their way to peak productivity – orientation, discouragement, growth, peak performance. Which stage best reflects your team and how can you best move your team to the next stage?

Characteristics of Working as a Team: Let everyone participate, accept helpful advice/suggestions/ideas from others, and exercise patience.

Problem Solving: Which approach is the best for your project – the traditional approach or the systems approach? The traditional approach is to find a problem, find a solution, and move on. A systems oriented approach is to consider all areas affected by the problem, as well as the solution. Find the best win-win for everyone.

I hope these team work tidbits are healthy food for thought. It’s always a good time to re-examine your team from an honest, constructive point of view.

 

Article written by: Kathrine Parsons, SPHR-CA

STRENGTHENING TEAMS THROUGH ENHANCED COMMUNICATIONS

Going Beyond Individual Performers to Supercharged Teams

WEDNESDAY, May 9th: 9:00am – Noon
at TPO’s Professional Development Center – Monterey

SEATING IS LIMITED – REGISTER NOW!

TPO Members: $99 per participant Non-Members: $119 per participant

Individual behavior styles and preferences have a direct impact on our interpersonal relationships on workplace teams. Team members differ from each other in important ways including their values, behaviors, talents, temperaments, wants and beliefs. This program will help you become a more successful leader and unlock some of the mysteries of developing and sustaining positive team dynamics. You will be:

  • Discussing a proven model for team development

  • Seeing how individuals’ communication styles effect overall team development

  • Understanding the critical “1-2-3” approach to team execution

  • Designing a motivating team environment with more fun

  • Reviewing a Case Study to Avoid “The Abilene Paradox”

  • Knowing the predictable team traps & sharpening team problem solving skills

  • Assessing your own team’s development level

  • Framing an action plan to enhance the effectiveness of your team

Presented by: Chris Hawkins, TPO Consultant & Trainer Extraordinaire!

 

FMLA/CFRA/PDL COMPLIANCE

Unravel the mysteries of what these acronyms really mean – It’s ALL ABOUT LEAVES!

THURSDAY, June 7th: 9:00am – Noon
at TPO’s Professional Development Center – Monterey

SEATING IS LIMITED – REGISTER NOW!
TPO Members: $99 per participant Non-Members: $119 per participant

We call it alphabet soup! Integration has always been a challenge -- and the new FMLA leave categories add a new dimension. The new DOL rules complicate the relationship further. We unravel those pieces and help you develop a system to cope with the overlaps and the differences. It is no secret that these laws were not written for simplicity or ease of administration. In fact, there are numerous opportunities to fumble… whether you miss an important notification requirement, stop benefits short of legal requirements or fail to offer the amount of leave allowed. Don’t put your organization at risk!

  • Review regulatory requirements and implications (in plain English!)

  • Visually walk through statute interaction

  • Address the aspects that you find most frustrating

  • Discuss practical solutions for managing leaves throughout their duration

Presented by: Kathrine Parsons, SPHR-CA, TPO Consultant & Leave Administrator!

The DOL has adopted new regulations affecting company sponsored retirement plans that take effect starting on July 1, 2012. The disclosures are required of all 401(k) and ERISA 403(b) plans.

The new regulations require plan sponsors to provide participants two types of information. The first type includes details on plan-level costs, including a Model Comparative Investment Chart with performance return and expenses. The second type relates to each investment choice and includes the relevant investment category, performance data, benchmark performance, fees and expenses. Quarterly, plan sponsors must also provide a benefit statement reflecting the amount of fees and expenses charged to participant accounts expressed in a dollar amount, in addition to a description of services related to each charge.

As a fiduciary, plan sponsors are duty-bound to understand, review and monitor this new requirement. Unfortunately, evaluating this new information as required by ERISA will be difficult. Also, disclosures to participants will raise alarms as many employees don’t realize they are footing the bill for most plan expenses.

For the first time, the expenses and fees participants pay each quarter for their retirement plan will be explicitly listed for them in dollars and cents. In 2007 AARP published results of a national survey of 1,584 plan participants. When asked whether participants pay any fees, 65% of surveyed participants said they pay no fees at all when in fact they do. In many cases, this could send plan participants directly to the plan administrator’s office, statement in hand.

If the plan administrator fails to provide participants with the required information, plan administrators will be deemed to have violated their fiduciary duty under ERISA and could be personally liable for monetary damages and losses participants could have avoided had they received the required performance and fee information.

We hope this article has helped to familiarize you with the changing regulatory landscape so that the impending changes will not come as a complete surprise. To assist you with your understanding and compliance with the new regulation(s), we are providing a 1 ½ hour briefing scheduled for June 13, 2012 (details below or click here to register!). We hope to see you there. In the meantime, if you have any questions or would like assistance in evaluating your plan costs, we are available to meet with you and your team. Feel free to contact Jeff Justi, Pension Consultant at (408) 626-6029 if you have questions or need more information.

New Retirement Plan Fee Disclosure:
What Is It This Time!?


WEDNESDAY, June 13th:

8:30am – 10:00am

TPO Members have one free seat, all others pay $35
 

 

Come learn about the new DOL fee disclosure regulations going into effect on August 30, 2012 and what all employers are now required to provide to every plan participant…and what happens if you don’t.

  • Understand the new regulations and how they impact plan fiduciaries

  • Discover practical ways to ensure that compliance is met

  • Learn techniques for uncovering and understanding your cost structure

  • Frame how to communicate your cost structure to plan participants


Presented by: Kirsten Curry, ERISA Attorney & Jeff Justi, AIF, CRPS, PRP
Accredited Investment Fiduciary and Certified Retirement Plan Specialist


Seating is Limited! TPO’s Professional Development Center at 60 Garden Court, Monterey. There is no charge to members to send one representative; non members pay $35.

Also Available ONLINE!

Click here to register and reserve your seat Today!

Legislation is on the move for 2012 with a variety of previously failed bills re-introduced for consideration. While the Legislature deals with the big issues of healthcare and budgets, employment-related highlights include:

CA Pending Legislation

Signed into Law by Governor Jerry Brown

  • CFRA Expansion (AB 2039) – If passed would expand the type of individuals or circumstances under which employees can take a 12-week, protected leave of absence under California’s Family Rights Act (CFRA), including:

    1. eliminating the age and dependency elements from the definition of "child," thereby permitting an employee to take protected leave to care for his or her independent adult child suffering from a serious health condition (currently CFRA and the federal FMLA cover minor children only in most circumstances);

    2. expanding the definition of "parent" to include an employee's parent-in-law (currently CFRA and the federal FMLA do not cover in-laws); and

    3. permitting an employee to also take leave to care for a seriously ill grandparent, sibling, grandchild, or domestic partner, as defined. (Currently the federal FMLA and CFRA do not cover such relatives, except that under California law registered domestic partners already have such rights.)

  • Unemployment Status Discrimination (AB 1450) — If passed would make it unlawful for an employer to 1) knowingly or intentionally refuse to consider for employment or refuse to offer employment to an individual because of the individual's status as unemployed, 2) publish an advertisement or announcement for any job that includes provisions pertaining to an individual's status as unemployed, as specified, or 3) direct or request that an employment agency take an individual's status as unemployed into account in screening or referring applicants for employment.

  • Expanded Protected Classification for Discrimination/Harassment (AB 1740) — If passed would expand the CA Department of Fair Employment and Housing to include a protected classification for employees who are victims of domestic violence, sexual assault, or stalking.

  • Overtime Change to over 10-hour days (SB 1114) — If passed, would eliminate CA’s over 8 overtime requirement and instead establish overtime as hours worked in excess of 10 hours in one workday. Overtime would still be earned for more than 40 hours worked in the workweek.

  • Alternative Workweek for Small Employers (SB 1115) — If passed employers with 10 or fewer employees could implement an alternative workweek schedule at the request of individual employees rather than the complicated “secret ballot” process currently in place.


Federal Pending HR Legislation

  • Employment Non-Discrimination Act (H.R. 1397) – if passed would prohibit employment discrimination on the basis of sexual orientation or gender identity.

  • Fair Employment Act (H.R. 1113) – if passed would prohibit discrimination on the basis of unemployment status.

  • Family and Medical Leave Enhancement Act (H.R. 1440) – Would expand 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.

  • Working Families Flexibility Act (H.R. 4106, S. 2142) – if passed would provide employees with a statutory right to request flexible work terms and conditions. Upon receiving a request, an employer would be required to hold a meeting with the employee to discuss his or her application and provide a written decision regarding the application “within a reasonable period” after the meeting. If the application is rejected, the employer would be required to provide a reason for the denial. The employer would be permitted to propose an alternative change to the employee’s hours, times, place, and amount of notification of schedule assignments. If the employee is dissatisfied with this proposal and has another supervisor, the employee would have the right to have the other supervisor reconsider the alternate schedule.

  • Family and Medical Leave Inclusion Act (H.R. 2364, S. 1283) - Would expand the Family and Medical Leave Act (FMLA) coverage to a same-sex spouse, domestic partner, grandparent, grandchild, parent-in-law, son- or daughter-in-law, child of a domestic partner, or adult child or sibling who has a serious health condition.

  • Accountability Through Electronic Verification Act (S. 1196) - Like the House employment immigration bill (H.R. 2000), the Senate version would require all employers to use the E-Verify electronic employment verification system, increase employer penalties for violations of immigration law, and eliminate the current Form I-9 process.

  • 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.

Article written by: Melissa Irwin, SPHR-CA

“Split Shifts”

...when to pay an extra hour at minimum wage!

A “split-shift” is when an employer imposes a schedule on an employee that has more than an hour break between two “shifts” in one workday.

  • Example: An employee is scheduled to work a 9am-12am shift and then must come back for the second shift from 2pm-6pm. 5 hours worked for the day.

An Hour of Minimum Wage Due
In this example, an employer must pay an extra hour of pay at CA minimum wage (currently $8); the reasoning is that the employee is in a standby mode and has to take the trouble to come back to work. This hour is not time worked, therefore it is not counted in determining overtime.

Credit For Above Minimum Wage Earners
Employers may credit the daily wages in excess of minimum wage (currently $8) per hour worked against the one hour of split shift payment ($8). As you can see from the below examples, split shift pay will only happen for wage earners close to minimum wage.

Example Continuation from Above:

  1. Employee Earns $10 per hour. For a 5-hour shift that is $50 earned. Since 5 hours at minimum wage ($8) is $40, and the difference of $10 ($50-$40) is more than one hour of minimum wage ($8), NO split shift payment is owed to the employee.

  2. Employee Earns $9 per hour. For a 5-hour shift that is $45 earned. Since 5 hours at minimum wage ($8) is $40, and the difference of $5 ($45-$40) is less than one hour of minimum wage ($8), $3 in a split shift payment is owed to the employee.

 

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

TPO Representative a call!

Article written by: Melissa Irwin, SPHR-CA

n AAI DESIGN - SAN JOSE

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: "Rancho Cielo has been a member of TPO since 2009. How do you feel TPO contributes to the company’s success?"

Susie Brusa, Executive Director: "Rancho Cielo is a place of opportunity for many young people - as many as 150 per day. As a non-profit, we run with a very lean staff, maximizing our administrative overhead to the degree possible. One tool we have to do that is TPO. Relying on TPO to be our HR expert relieves us from having to focus on (and pay for) HR management every day. We have a fairly complex HR portfolio, with both exempt and hourly employees, students earning stipends, and program participant-employees. TPO makes sure that we are following the laws and regulations – which is part of setting an example for our young people.”

What is Rancho Cielo Youth Campus?

Rancho Cielo provides at-risk youth the opportunity to reevaluate their life options, empowering them to become accountable, competent, productive and responsible citizens, through education, job training, and individualized counseling. Our programs are both effective and economical. While it costs upwards of $200,000 to incarcerate a youth in Monterey County, it costs less than $10,000 per year to educate him/her at Rancho Cielo. Additionally, while more than 60% of the incarcerated youth in Monterey County re-offend within one year –80% of youth formerly incarcerated stay out of trouble, earning their diplomas and their way off probation after participating in a program at Rancho Cielo. This represents an increase of 200% in Monterey County’s first time offending youth that are making smarter choices, earning their high school diplomas and are prepared for entry level jobs.

Our Mission
To partner with our community to provide a safe campus to deliver programs and services that inspire at risk youth to learn new skills, gain self-esteem and confidence.

Our Vision
To transform the lives of at-risk youth and empower them to become accountable, competent, productive and responsible citizens. Bringing together public agencies, community based organizations and concerned citizens we aim to design and implement a comprehensive set of services and programs in support of our Vision. These services and programs will provide the support and alternative activities needed to stem the rising rate of juvenile crime in Monterey County and the surrounding area.

High School Diploma Programs for Youth 16 – 25:

Drummond Culinary Academy: True vocational training in the culinary arts taught by a Certified Executive Chef in our commercial kitchen, using a nationally-recognized curriculum;

YouthBuild: True vocational training in Sustainable Construction taught by a Licensed General Contractor while building transitional housing at Rancho Cielo.

Silver Star Youth Program: Community Day School for high-school-aged youth on Probation.

Employment Program: Rancho Cielo Youth Corps, a Social Enterprise led by a Licensed General Contractor, performing construction projects in the community for public agencies and private citizens.

For more information:http://www.ranchocieloyc.org.

Is it true that we don't need to provide an Employee with a meal period?

 The long awaited California Supreme Court decision in Brinker Restaurant Corporation v. Superior Court was announced April 12, 2012. The unanimous decision’s impact on employers will be evaluated in depth over the next few weeks, but here are the highlights of the decision that is very favorable for employers as it relates to employees in non-exempt positions.

  • Meal Period Overview: The California Supreme Court concluded “an employer’s obligation is to relieve its employee of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires, but the employer need not ensure that no work is done.”

  • The Amount of Rest Time that Must be Authorized: Employees working shifts lasting:

    • Over 2 hours but under 3.5 hours receive no rest break time;

    • 10 minutes’ rest for shifts from 3.5 – 6 hours;

    • 20 minutes’ rest for shifts of more than 6 hrs up to 10 hours;

    • 30 minutes’ rest for shifts of more than 10 hours up to 14 hours.

  • Rest Period Timing: Employers are subject to make a good faith effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that preferred course where practical considerations render it infeasible.

  • Employer Duty to Provide Meal Periods: An employer must relieve the employee of all duty for the designated period, but need not ensure that the employee does no work. The Court noted the Department Industrial Relations, DLSE Opinion Letter No. 1991.06.04, “If work does continue, the employer will not be liable for premium pay. At most, it will be liable for straight pay, and only when it “knew or reasonably should have known that the worker was working through the authorized meal period.” (Dept. Industrial Relations, DLSE Opinion Letter No. 1991.06.04)

  • Meal Period Timing: The Court concluded that absent a waiver, a first meal period is required no later than the end of an employee’s 5th hour of work, and a second meal period no later than the end of the employee’s 10th hour of work. It should be noted that the Court rejected the position that a meal period must be provided every rolling five hours of work.


TPO’s Recommendation:
Employers should carefully consider their business practices and decide which of the following two will best apply to their specific situation:

  1. Schedule specific meal periods for their non-exempt employees that must be taken by the employee and where the employee may not choose to self-waive meal periods. This option is often best for organizations who want to control the exact shifts that are worked by employees.

  2. Allow employees the opportunity to self-choose to waive their meal periods noting whether it must be with or without prior approval (effectively letting the employee leave 30 minutes early). This option will work for employers who want to allow employees flexibility in their schedule. It is recommended employees sign a waiver indicating a self-waived meal period.

 

Regardless of the above decision, employers should continuing to require employees to clock in and out for breaks (or sign an acknowledgement that breaks have been provided) and train your supervisors and managers on the definition and practical aspects of providing breaks for their employees. Additionally, you should make sure your Employee Handbook accurately addresses desired policy around both meal and rest periods. If your handbook has not been drafted or revised in the past two years, please contact TPO for a policy review and recommendations. 

TPO will continue to follow Brinker’s impact on employers, and will keep you advised.

Article written by: Kathrine Parsons, SPHR-CA

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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.