Saturday, January 31, 2009

California Division of Occupational Safety and Health Reminds California Employers to Post Form 300A

The Department of Industrial Relations’ Division of Occupational Safety and Health (DIR/DOSH) has issued a press release reminding California employers to post at their place of business a summary of work-related injuries and illnesses during 2008.

The Form 300A requires employers to report the number of injuries each year, even if no work-related injuries occurred. Vital information must also include the nature of the injury or illness that the employee suffered, the severity of the work-related incidents and the number of days the employee missed work due to the injury.

The deadline is upon us. According to Cal/OSHA, the summary must be displayed in a visible area from Feb. 1 through April 30 for employee review.  The posting period helps improve safety, according to state officials. “The summary is designed to create safety awareness in the workplace for employers and employees so similar injuries can be prevented in the future,” notes DIR Director John. C Duncan

Which employers must post Form 300a? Employers with 11 or more employees, except those covered in the California low-hazard establishments in the retail, services, finance and real estate sectors. For information about whether your company is an excepted establishment, follow this link to the Cal/OSHA website: List of exempt establishments.

Covered employers must display the totals from the Summary of Work-Related Injuries and Illnesses (CAL/OSHA form 300A) wherever employee notices are usually posted. Cal/OSHA also requires employers to mail or provide the annual summary to employees who do not report at least weekly to a location where the annual summary for their workplace is posted.
If there is more than one business establishment, a separate log and summary must be posted in each physical location that is expected to be in operation for one year or longer.

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC

Friday, January 30, 2009

It’s A Dirty Job…...

We’ve all had the unenviable task of doing it.  We’ve all had to go ahead and bite the bullet and “get ‘er done”.  We’ve probably all had to take a moment to ourselves to regain our composure after we’re done doing it.  But is there ever a GOOD way of making it happen?  Is there a more efficient way of doing it while decreasing the chance of drama? 

What am I talking about, you ask?

TERMINATIONS!!!!  ***Que the high-pitched screams of horror***

It’s almost natural for a person to want to defend himself when he is confronted with some type of misconduct that causes for his employment to be terminated.  Especially when the misconduct is not “gross” in nature (assault, theft, violence, work-refusal, etc.).  So do you allow for the employee to state his case even when you know that the decision is final?  If so, how long do you allow for it to happen without it turning into a remake of “The Great Debators”? 

One thing I was taught by my old boss (I like to refer to her as the Yoda of HR) was that if you find that it’s been over 5 mins and you are STILL TALKING during a termination, you probably are going to end up saying something that you will regret (aka something that the termed employee can use against the company to dispute the termination).  You know, something like “I’m so sorry” or “I wish this didn’t happen to you” or “I wish it was someone other than you”.  So as a rule, it’s best to keep things within a 5 minute time limit in order to void out any opportunity for something out of line being said.

So with all of that said, how do you balance keeping things short and sweet while also making sure that the termed employee doesn’t feel like the company poured salt into his wound by treating him like a total stranger who hasn’t been working for the company for “umpteen” years?

So please do me a favor and let me know some of your experiences when it came to terminating an employee?  Is there a GOOD way to do it?  What kinds of methods have you used and how well did they work (or not work)?

Once again….....

DON’T TALK ABOUT IT…..BLOG ABOUT IT!!!

Lesson for Employers: Never Ignore a Complaint of Sexual Harassment

The Cheesecake Factory, Inc. learned this the hard way when they were recently sued by the EEOC for failing to respond to complaints by male Cheesecake Factory workers that they were being harassed by other male co-workers.  The complaint in this class action alleges that the male workers were continuously harassed since 2004 by other male employees.  The EEOC contends that groups of male employees would sexually assault other male employees and some would grab the male workers crotch area and also go behind them and “grind” up against them as if simulating a sexual act.  The male employees complained to management at the restaurant but management ignored the complaints and allegedly did nothing.  The EEOC attorney for the plaintiffs stated that “[a]ll employees, both men and women, have a right to work in a harassment free workplace”. 

The lesson for employers is clear.  When employees complain about harassment the law requires the employer to take action to eliminate the harassment and ensure that the workplace is harassment free.  The employer must commence an investigation and communicate the results of that investigation to the complainant and the accused.  The employer must then take “prompt corrective action”. Such action can include disciplining the harassers, up to and including, termination.  Depending on the severity of the harassment, prompt corrective action could simply involve a written disciplinary warning.  It really depends on the facts and circumstances of that individual case.  What is most important is that the employer take prompt action that successfully stops the harassment. 

This is true whether the harassment is between members of the opposite sex or the same sex.  In 1998, the US Supreme Court in the case of Oncale vs. Sundowner Offshore Services held that members of the same sex who harass each other are engaging in sexual harassment and that sexual harassment does not have to occur between members of the opposite sex.  So employers should be careful to not ignore complaints of sexual harassment even if they occur between same-sex employees.  Always take complaints of sexual harassment seriously and act immediately to eliminate any possible harassment in your workplace. 

Submitted By:  Melissa Fleischer, Esq.
                HR Learning Center LLC
                melissa.fleischer@hrlearningcenter.com

Thursday, January 22, 2009

The Calm Before the Storm: How to Keep an “Incident” from becoming a “Situation”.

Hello All,

Before I jump right into it, let me go ahead and paint a picture for you:

It is 8am on a Monday morning and traffic was non-existent (Did everyone take the bus?), the drivers that were on the road gave you the right of way each and every time (Do these people owe me money or something?), the birds are singing your favorite song (my personal favorite is Rainbow Connection by the Carpenters.), and the sun is shining so bright that you swear its smiling like the sun on the front of those old Raisin Bran cereal boxes.  You have a certain amount of guarded optimism because things are so quiet and peaceful.  Well by now it is 11am and you start to think that this Monday may not be so manic after all.  All of your employees are working like a well-oiled machine and there arent any blazing infernos that need to be put out. 

Just as you start to relax, you receive a phone call from one of your departmental managers stating that an unknown employee has put an Anti-Abortion poster up on the break room wall.  Well you might say to yourself, It is just one poster.  I will just go ahead and have it taken down and not make a big deal (aka ORDEAL) out of it. Well that may work in the short run.  But what if someone already saw that poster and decided that it was their moral duty to go and place some Pro-Choice posters up when he/she comes in the next day?  Or what if you had an employee who because of personal experience, saw the Anti-Abortion poster and became offended by its content prompting them to notify an outside organization?  Would just taking down the poster be enough?  Would doing that cause for that drizzle to turn into a storm?

In my humble opinion, I always make sure to be swift and definite in my actions when it comes to these kinds of things.  I would do the following:

—-Write up a memo reminding all employees of the companys Posting Policy and the impending disciplinary actions that could result from a
  violation of the policy.  I would post up copies of the memo in common areas like the break room, restroom door, time-clock, etc.

—-Depending on the contents of the posting and its severity, I would also consider having a staff meeting to verbally notify all employees about the
  Posting Policy as well.  Again, this may not be necessary.  It would strictly be a judgment call on my part.

—-I would notify all managers of the incident and advise them to keep a look out for any employees who feel the need to express themselves by
  posting things on company property.

—-I would make sure to become even more visible in order to send a silent message that HR is watching.    This doesnt have to be done
  blatantly.  This could be accomplished by simply walking around and speaking to employees about their day or the kind of work that they are
  doing.

All in all, I really feel as if it is a lot more beneficial to be proactive as opposed to reactive.  Communication with employees is key.  Again, this can be done by written communication and/or verbal communication.  If communication has been established and an employee still violates the policy, he/she cannot say that he/she was not aware or notified of the policy and the consequences of violating it. 

In closing, it is always important to let employees know that freedom of speech is not absolute when it comes to the workplace.  In other words, the workplace is no place for everyone to express their moral, religious, racial, or personal beliefs.  In addition, it is also imperative that we make sure that employees feel like they can come to a place where they do not have to worry about being ambushed by someones beliefs or expressions.  As an HR professional, it is crucial that we nip a potentially volatile situation in the bud before it goes from a little light rain to something similar to a tropical storm.  Being concise and decisive in your actions will go a long way towards taking care of an isolated incident before it becomes a company-wide situation. 

As always, this is an open forum for discussion.  Please feel free to comment with your own professional experiences and how they were handled.  Would you have done anything differently?  How did your employees react to your actions?  As far as my opinion on things is concerned, do you agree or disagree?  Let me know what you think or what you’ve done when faced with this particular situation.

Remember, dont talk about it, BLOG about it! Have a good one!

Jack Carter
HR Professional

Tuesday, January 20, 2009

Department Of Labor Publishes New Military Family “Qualified Exigency” Leave Certification Form

The Department of Labor has published a new form for use in connection with “qualified exigency” leave under the FMLA’s recently added military family leave.

By way of background, on January 28, 2008, President Bush signed into law H.R. 4986, the National Defense Authorization Act for FY 2008 (NDAA).

The NDAA amends the FMLA in two ways. First, it allows an employee to take up to 26 workweeks of leave to care for certain family members in the military who suffer a serious injury or illness in the line of duty.

Second, the NDAA permits an employee to take up to 12 weeks of FMLA leave for “any qualifying exigency arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.” The family member must be a member of the National Guard or Reserves (not regular military).

Recently published regulations define “qualified exigency” to include the following:

(1) short-notice deployments (seven or fewer days notice);
(2) military events (e.g. ceremonies, briefings);
(3) childcare/school (e.g. time making arrangements on account of call to duty);
(4) financial/legal arrangements related to the call to duty;
(5) counseling related to the call to duty;
(6) R & R leave (up to five days);
(7) post-deployment activities (e.g. arrival ceremonies, briefings);
(8) additional activities if permitted by the employer.

The Department of Labor’s new form is for employers’ use when determining whether an employee is eligible for this type of leave.

The form can be found here: Link to DOL Qualified Exigency Leave Form

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC
San Diego Employment Law Attorneys

Wednesday, January 07, 2009

U.S. Department of Labor’s Wage & Hour Division Collects Over $185 Million in 2008

The U.S. Department of Labor’s Wage and Hour Division (WHD) announced in a January 2, 2009 press release its enforcement data for Fiscal Year (FY) 2008. In FY 2008, WHD recouped back wages totaling $185,287,827 for 228,645 workers.

WHD touted this statistic as a “40 percent increase over the FY 2001 figure.” The press release notes: “Since FY 2001, WHD has recouped more than $1.4 billion back wages for over two million workers.”

However, WHD has been the subject of recent criticism, and in its press release WHD failed to note that the 2008 figures represent a decrease from 2007. In FY 2007, WHD collected $220,613,703 for 341,624 workers. (Link to 2007 stats.)

Alexander J. Passantino, acting administrator for the Wage and Hour Division, offers the statistics in support of his request for additional funds to increase enforcement measures. “These continued strong enforcement results demonstrate that our comprehensive approach is working. We also urge Congress to provide the funds we have requested in the president’s FY 09 budget to hire additional investigators.”

President-elect Obama is likely to fulfill Passantino’s wishes, although Passantino will probably not be around to see it happen. In July 2008, responding to a Government Accountability Office report , Senator Obama sent a letter to Secretary of Labor Elaine Chao, expressing concerns that the Department of Labor is not fulfilling its mission to prevent and remedy violations of federal minimum wage and overtime laws. In his letter, he was critical of Mr. Passantino’s testimony before a Senate committee.

“GAO’s conclusions about how the Department exercises its responsibilities to working Americans raise serious, but addressable, issues. Fixing these problems may require bipartisan cooperation, or in some cases additional funding, but other needed reforms are in the sole discretion of the Department, and can be instituted unilaterally.”
In December 2008, President-elect Obama named Democratic Rep. Hilda Solis of California to serve as labor secretary.

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC