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Employment Law Blog

Category: Human Resources

Tuesday, February 08, 2011

Using Automation to Make Your Performance Evaluations Fairer and More Consistent

Employees and even managers often complain that their company’s performance evaluation process is inconsistent and unfair. Performance ratings are subjective, employee goals are unclear, competencies have little connection to the actual job, training opportunities are not available to all, etc.  As a result, many employees and managers either disengage or opt out of the process altogether, further compounding the problem.

Since performance evaluations are administered by people, it’s impossible to completely remove the subjectivity or even prejudice from your performance management processes. However, automating them can go a long way to making them fairer, more consistent, and ultimately more effective. Here are some of the ways automation can help:

Consistent Definitions of Competencies and Performance

Competencies are also sometimes called behaviors, values, skills, or performance standards, etc. They should really form the cornerstone of your performance evaluation process, and should be used to:

• help you evaluate “how” as well as “what” the employee accomplished
• identify the skills your organization needs to cultivate
• underpin your employee development programs to ensure they align with corporate goals

Most organizations have a list of the competencies that are important to their business. But they often lack consistent definitions of each competency, detailed descriptions of the various levels of performance, and a list of learning activities designed to help develop these competencies. And more importantly, they usually have no way of ensuring that their competencies are used and applied in a consistent way. With a manual or paper based process, it’s easy for managers create their own competencies or definitions, and modify their performance evaluation forms at will.

By automating your performance evaluation process and forms, you ensure that your competencies, and their definitions and behavioral descriptions are housed in one centralized library. Only authorized system administrators can add, change or remove competencies from the library. In so doing, you improve everyone’s access to competencies, but more importantly, you ensure a shared, consistent definition and understanding of performance. Because your performance evaluation forms are also automated, you can ensure that they only use competency content from the library, and can only be changed by an authorized system administrator. Now, you can be sure that your managers and employees are working from a common, consistent definition of performance.

Consistent Processes

Another common complaint raised by employees is the lack of consistency in the way performance evaluation processes are administered and applied. For example, with a manual or paper-based process, it’s virtually impossible to ensure that 100% of your employees receive an annual performance evaluation, on time or at all. Managers may use their “creativity” in completing forms, and add/remove/modify sections or rating scales at will. You may also find different approval processes in use in different parts of the organization. All of these inconsistencies allow subjectivity and possible human prejudice to color the way employees are evaluated and developed, which can also have an impact on how they are rewarded and promoted.

Automating your process allows you to :

• Define your process workflow (the steps and order in which they’re completed, who’s responsible for completing each step, and the due dates)
• Define required approvals, forms, rating scales,
• Apply (and enforce) these across the organization in a fair and consistent way.

While it’s important to have the flexibility to accommodate the special requirements of particular groups of employees, the decision to accommodate specific needs should be made at the organizational level, not at the individual level. Automating your processes and forms allows you to ensure they’re used in a fairer, more consistent manner.

Clear and Consistent Performance Requirements

Every job in your company should have clear performance requirements. Every employee’s performance evaluation form should clearly outline their job responsibilities, and the competencies and goals they will be assessed on.

Automating your performance management process allows you to ensure that clear and consistent performance requirements are set for every employee. By including the competencies and goals they will be assessed on in their performance evaluation form, or by running separate competency assessment and goal setting processes, you ensure that performance requirements are communicated.

In addition, automating your processes also allows you to track the exact status of all these activities, so HR and leaders can immediately see if an employee has not been given clear performance requirements, and take appropriate action.

Improving Access to Information

Automated performance management systems typically give employees one centralized place to access:

• Their goals
• The competencies on which they will be assessed.
• The development activities assigned to them or available to them
• Their past performance appraisals
• The organization’s higher level goals
• Etc.

By automating your performance management process, you improve employees’ access to information and drive a measure of accountability and transparency throughout the organization. 

You also give managers easy access to this information for all their employees. Having all this data at their fingertips helps them to be fairer and more consistent in their performance management practices.

Ability to Easily Aggregate Data and Spot Exceptions

Automating your performance management process gives you another powerful tool for identifying and addressing inconsistent or unfair management practices. By allowing you to easily and efficiently aggregate and compare the data from your processes, you can quickly spot trends or irregular practices and investigate their cause. For example, you can easily identify a manager who typically assigns all or some of their employees higher or lower performance ratings than most others. When the data from your performance management process reveals exceptions, leaders or HR can take appropriate action to restore fairness and consistency.

Conclusion

Because they allow you to drive consistency in performance expectations, job requirements, processes, forms, and rating scales, and make inconsistencies easier to spot, automated performance management systems allow you to overcome some of the subjectivity and human prejudice that plague people management practices and ensure all employees are supported in their performance and development.

Sean Conrad is a Certified Human Capital Strategist and Senior Product Analyst at Halogen Software, one of the leading providers of performance evaluation software. For more of his insights on talent management, read his posts on the Halogen blog.

Posted by Patrick Della Valle on 02/08 at 10:19 AM
Human Resources
Friday, September 25, 2009

Protect your Workplace from the Violence and Murder of Annie Le at Yale University

Don’t let an incident like the murder of Annie Le at Yale University happen in your workplace.  Incidents of workplace violence happen regularly throughout the United States and threaten employers with liability on a daily basis.  Yet statistics reveal that most employers fail to provide training on workplace violence and many do not even have a workplace violence policy.  All of these are big mistakes for employers!  Let’s start at the beginning and understand the definition of workplace violence and how it can impact your workplace. 

Workplace violence is considered to be “any physical assault or threatening behavior or verbal abuse occurring in the work setting”.  So, as you can see, it is clearly much broader than just the homicides that get reported in the media.  Some examples of workplace violence include:

• Intimidation
• Harassment
• Bullying
• Shootings
• Threats
• Verbal Abuse
• Stabbings
• Rapes
• Suicides

Since the definition and the types of incidents that workplace violence includes are so broad, it is extremely important that employers have workplace violence policies to protect the employers from liability.  The policy will help managers and employees understand that workplace violence includes instances of bullying and harassment and not just murders.  Once your policy defines that bullies and harassers are included in the definition of workplace violence and once your policy sets forth that all instances of workplace violence must be reported, an employer would be better protected than Yale University was in the Annie Le case.  Because had Yale had such a policy and had they conducted training on their policy (I don’t have any personal knowledge of whether in fact they had such a policy or conducted such training) then perhaps the other workers in the lab would have known that when the lab technician arrested for the murder of Annie Le, Raymond Clark, was allegedly harassing other workers about the cleanliness of their mice cages, that this constituted workplace violence and should have been reported to human resources immediately.  Perhaps if it had been reported to human resources, Mr. Clark would have been disciplined and/or terminated which could possibly have prevented the ensuing violence in which Annie Le lost her life. 

Thus, the best way for an employer to protect itself is to have a policy, to provide workplace violence training and to take affirmative steps to make the workplace safer. 
What are some of those steps?  There are of course the obvious steps such as installing better lighting, security cameras and alarms and then there are the less obvious ways to make the workplace safer.  These usually involve human resources.  HR should strive to conduct background checks on all employees as well as to conduct exit interviews when an employee terminates his/her employment with that company.  This is especially important because of the various theories of legal liability that plaintiff’s lawyers love to use in these cases that include negligent hiring and negligent retention. 

Negligent hiring is based on the theory that the employer failed to conduct a background check on the employee prior to hiring the employee.  The theory surmises that had they conducted a background check they would have known that the violent employee had a history of violence in prior employment situations and thus they would have not hired him/her.  Thus, the employer was negligent in bringing this violent employee into the workplace without checking the employee’s background.  In addition, when the employee during the course of his/her employment has acted in a manner that demonstrates that he/she may be prone to violence, such as the reports that had come out that Mr. Clark allegedly harassed other employees about the cleanliness of their mice cages, and the employer has done nothing to discipline that employee, the negligent retention theory suggests that management was negligent in retaining that employee despite clear indications that the employee had previously been violent in the workplace. 

Another important way that employers can protect themselves from this type of violence is by training their managers and employees to be sensitive to the warning signs of an employee who could likely engage in workplace violence.  Time and time again in the aftermath of these tragedies, the witnesses and friends all agree that in hindsight there were warning signs that people just ignored or brushed off and did not know to report.  Such as Cho, the lone gunman at Virginia Tech who witnesses reported to be a loner who rarely spoke to anyone and someone who had been previously reported to be a danger to himself and others, all clear warning signs that were ignored.  In the recent workplace violence case at the LA Fitness gym in a Pittsburgh, Pennsylvania suburb where a lone gunman entered the gym and started shooting, people who knew the gunman also reported that he was a real loner who always kept to himself.  Such warning signs can tip off others so that they report these warning signs to human resources to be investigated which can help to prevent these instances of workplace violence. 

So employers can take actions to prevent their workplaces from the tragedy that happened to Annie Le at Yale University.  Employers can develop policies prohibiting workplace violence, deliver training on the warning signs of workplace violence and take steps to make their workplaces safer.  For more information or to schedule a workplace violence training seminar for your workplace, please contact Melissa Fleischer, Esq. at 914-417-1715 or via e-mail at .(JavaScript must be enabled to view this email address).  Please feel free to visit our website at http://www.hrlearningcenter.com.

Submitted by:
Melissa Fleischer, Esq.
President and Founder
HR Learning Center LLC
http://www.hrlearningcenter.com
.(JavaScript must be enabled to view this email address)

Posted by Patrick Della Valle on 09/25 at 03:52 PM
Employment LawHuman Resources
Saturday, July 18, 2009

Important Lesson For Employers in Supreme Court’s Holding in Ricci Case

What really happened in the Ricci v. DeStefano “reverse discrimination” case.  The City of New Haven discovered after administering a test for promotions within the Fire Department that no African-Americans qualified for promotions based on the test.  Only after administering the test and seeing these results did the City for the first time realize that this could be a problem.  Then, stuck between a rock and a hard place, they decided without doing any analysis of the test that they would not grant the promotions to the white and Hispanic firefighters who had scored highest on the test because they feared that to do so would risk a lawsuit for disparate impact by the African-American firefighters. 

This case brought the two types of discrimination under Title VII in conflict with each other when the City of New Haven basically found itself in the situation where if it did not certify the test results and grant the promotions it would be faced with a disparate treatment lawsuit by the white and Hispanic firefighters but if it granted the promotions it would be faced with a disparate impact lawsuit by the African-American firefighters.  Title VII prohibits two separate types of discrimination.  Disparate Treatment discrimination is intentional discrimination based on an employee’s race, color, religion, sex, or national origin.  Disparate Impact discrimination is where a neutral practice or policy has an adverse impact on a protected class and where the practice or policy is not job-related nor justified by business necessity and where there is an alternative policy or practice that has a less discriminatory impact. 

Thus, having failed to do what they should have done before administering this test in the first place, to wit making sure through validation procedures that the test did not have a disparate impact on any protected class of employees, the City of New Haven now made matters even worse by making a decision based solely on race that it would deny promotions to the qualified white and Hispanic firefighters solely because they were white and Hispanic.  This, the Supreme Court of the United States held in a 5-4 decision violated the white and Hispanic’s civil rights under Title VII as disparate treatment discrimination because of the prohibition under Title VII against intentionally making employment decisions based on an employee’s race.  Rather, Title VII requires that employment decisions be based on job-related factors unrelated to the employee’s race.

The City of New Haven alleged that its decision to deny the promotions to the white and Hispanic firefighters based on their race should have not violated Title VII because it did so only because to do otherwise would have subjected it to liability for disparate impact under Title VII by another group of employees, namely the African-American firefighters.  The Supreme Court held that an employer would only have a valid defense and be allowed to do this if “there was a strong basis in evidence” that to deny the promotions and thus intentionally discriminate based on race against the white firefighters was necessary to remedy the disparate impact of the test on the African-American firefighters.

Here, the Supreme Court held, there was not “a strong basis in evidence” because the City acted only on its fear that it might be subject to a lawsuit by the African-American firefighters.  Although the Court did not specify what might satisfy this “strong basis in evidence” test, it seems likely that if the City had done a statistical analysis prior to deciding to not grant the promotions to the white and Hispanic firefighters it might have been in a stronger position to satisfy this test.  The Supreme Court also clearly stated that “a strong basis in evidence” required more than just a showing that a prima facie case of disparate impact could have been established.  Here, the City would only have been liable for disparate impact if even after the plaintiffs had made out a prima facie case of disparate impact discrimination, it was established that the tests for promotion were not job-related and consistent with business necessity or if there was an equally valid less discriminatory alternative that also served the City’s needs but that the City refused to use.  Since this was not the case here, the City could not establish that there was “a strong basis in evidence” that it would have been liable for disparate impact discrimination.  It appears that the new test set forth by the Supreme Court in this case requires an employer to go through the entire analysis a court would make in deciding the disparate impact case and then only if after the entire analysis it appears that the employer would lose the disparate impact case would the employer have a valid defense for engaging in intentional discrimination to avoid this result. 

So what is the important lesson for employers with regard to administering employment tests in the workplace?  Make sure you have your ducks in a row before administering any employment-related tests.  This means that employers should, prior to administering any employment tests, consult with employment counsel who can retain an expert to conduct a validation study to determine if the test would possibly have a disparate impact on any protected class.  If it would, do not administer the test without revising the test to eliminate any disparate impact on a protected class.  In addition, employers should consult with employment counsel post-test administration to assist employers in deciding what action to take if the employer should find itself in the conundrum that the City of New Haven found itself in this case. 

Submitted by:
Melissa Fleischer, Esq.
President and Founder
HR Learning Center LLC
http://www.hrlearningcenter.com
.(JavaScript must be enabled to view this email address)

 

 

Posted by Patrick Della Valle on 07/18 at 11:13 AM
Employment LawHuman ResourcesRace Discrimination
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.  grin  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

Posted by Patrick Della Valle on 01/22 at 03:23 PM
Employment LawHuman Resources • • Member Discussion
Friday, November 21, 2008

Have You Prepared Your Termination Checklist?

Once a termination decision has been made, your follow through should not be haphazard. Get organized before informing the employee. Below is a list of 24 issues to get you started:

1. Have handbook and all written procedures been followed?
2. Is there a written employment agreement? Collective bargaining agreement?
3. Are any wages due?
4. Has the employee accrued unused vacation or paid time off benefits?
5. Has the employee incurred unreimbursed expenses?
6. Are there any needed deductions from the final paycheck?
7. Is the final paycheck ready to be delivered at the time of termination?
8. Are there any advances, loans, or negative vacation bank?
9. How will the termination affect stock options?
10. Is the employee entitled to a “golden parachute” or other termination payout?
11. Are there COBRA rights?
12. Is the employee an officer or director (and what steps must be taken to remove them)?
13. Are there concerns for any discrimination, whistleblower or disability claims? (Consult with your labor/employment attorney).
14. Has the employee reported all industrial injuries (workers’ compensation)?
15. Should you offer a severance package?
16. Should you seek a release agreement?
17. Will the company offer outplacement?
18. Will the company provide reference letters?
19. What company property must the employee return?
20. Has IT staff made arrangements to block access to the company system?
21. Has the employee complied with your trade secret/proprietary information agreement?
22. Is “damage control” with customers necessary?
23. Any security issues?
24. When, where, how and with whom will you notify the employee?

These are just the basics. Review your company policies and procedures and tailor the list to suit your particular needs.

Please feel free to share your questions or comments.

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

Posted by Christopher W. Olmsted on 11/21 at 01:52 AM
Employment LawHuman Resources
Monday, November 03, 2008

California Employee Time Off For Voting

In the nick of time for Election Day, below is a FAQ relating to the right of California employees to take time off for voting.

Q: Which employers are covered by this law?

A: All California employers.

Q: When is the leave available?

A: Employees are eligible for paid time off for the purpose of voting in any statewide election only if they do not have sufficient time outside of working hours to vote. The intent of the law is to provide an opportunity to vote to workers who would not be able to do so because of their jobs. The polls are open from 7am to 8pm. Most employees work shifts that would permit them to vote either before or after work, without taking any time off.

Q: How much time off must be given?

A: An employee is entitled to take off enough working time on the day of the election so that, when added to the voting time available outside of working hours, the employee will be able to vote.

Q: Is the leave paid?

A: Yes, but only a maximum of two hours is paid.

Q: Must the employee give advance notice?

A: Yes, usually. If an employee on the third working day prior to election day knows that he or she will need time off to vote on election day, the employee must give the employer at least two working days’ notice of the need for time off.

Q: Can employees take time off to vote in the middle of a shift?

A: No. Employers may require time off to be taken only at the beginning or end of the employee’s shift

Q: Must the employer post notice of the voting leave rights?

A: Yes. At least 10 days before any statewide election, every employer must conspicuously post a notice at the workplace (or, if impracticable, elsewhere where employees can see it as they come or go to the work site), setting forth the provisions of Election Code § 14000. Most employers simply leave the notice posted all year round. Some “all-in-one” posters include the proper notice among the multitude of other required postings.

Q: Where can I get the required posting?

A: The Secretary of State offers the official posting. Click here for the poster.

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

Friday, October 17, 2008

Politics In The Workplace

As Election Day approaches, politics inevitably seeps into the workplace. What if employees become disruptive, argumentative, annoying, or just plain unproductive on account of politics in the workplace? Does an employer have the right to limit political activities of employees in the workplace?

The answer is: “It depends.” In the private sector, in some jurisdictions, it is unlawful for employers to prevent employees from engaging in political activities or affiliations. But that does not mean employees are free to engage in any kind political activity on the clock, in the workplace.

In California, for example, Labor Code Section 1101 makes it unlawful for an employer to make, adopt, or enforce any rule, regulation, or policy: (a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office. (b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.  Labor Code Section 1102 makes it unlawful to coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.

Retaliating against, or terminating an employee for engaging in political activity may give rise to wrongful termination or retaliation claims. For example, in one California case, a newspaper editor who was fired for publicly criticizing public official outside the workplace was held to have valid wrongful termination claim.

But California law does not prohibit employers from limiting political activity inside the workplace while on the clock. After all, employees are paid to do their job, and typically political activity or discussions are not part of the job description. The two employees arguing about Obama and McCain instead of answering phones, taking sales orders, or doing whatever they are paid to do can be told to knock it off and get back to work.  Neutral policies limiting political campaigning or other political activity in the workplace may be necessary in order to keep employees productive. Policies or practices that are not neutral (for example, a conduct code giving preference to one political view over another) should be avoided. Moreover, policies that limit union activity (which is in some sense political) may run afoul of state and federal law.

Please let me know what your experiences with politics in the workplace have been. You can email me by clicking my name below.

Submitted by:
{encode=“cwo@barkerolmsted.com” title=“Christopher W. Olmsted”}
Barker Olmsted & Barnier, APLC

Wednesday, October 15, 2008

WHAT HR CAN BRING TO THE TABLE DURING TOUGH ECONOMIC TIMES

We are working through the most volatile economic conditions in history: employees are nervous about their job security and the jobs of family members and are confronting higher prices for almost every consumer good from food to tuition to health care.  There is a great deal of uncertainty on every front and even the so-called “experts” are unwilling to make predictions for the future. So what can Human Resources professionals do to bring value to their management clients and employees who may look to them for answers? First, encourage upper management to communicate clearly, truthfully and often to employees about the status of the company’s business and the future outlook. Employees hate to be left in the dark. Human Resources can help management craft a message and then repeat it often and in different ways to convey to employees that now is the time for them to be engaged in doing everything possible to be productive and to promote the company’s business objectives. Second, encourage employees to keep up their skills, knowledge, technological savvy and to stay physically and mentally fit. Employee wellness helps to prevent stress, low morale, and dips in productivity. Third, Human Resources must be sure that personnel records are in order as they may be called upon to help with retention of high-performers or plan for attrition if necessary. Finally, even in economic crises, life goes on and Human Resources must tend to the run-of-the-mill decisions that keep the company on the right side of the employment laws. Now is not a good time to be distracted by expensive and time-consuming employment litigation.

Posted by Patrick Della Valle on 10/15 at 10:21 AM
Human Resources
Friday, October 10, 2008

EDD Offers Alternative To Layoffs For California Employers

Some companies are facing tough choices during the current economic downturn. Layoffs may allow the company to survive. But when the economy rebounds, those laid off workers may not be available for rehire. Hiring and training a new workforce is time consuming and expensive.

The California Employment Development Department (EDD) offers a program that may make sense for some employers.

The EDD offers what it calls a “Work Sharing Unemployment Insurance program.” The program allows eligible employers to reduce hours of workers, and offers the employees partial unemployment benefits. 

For example, if a business with 100 employees faces a temporary setback and could file a Work Sharing plan with EDD reducing the work week of all employees from five days to four days (a 20 percent reduction). The employees would be eligible to receive 20 percent of their weekly unemployment insurance benefits.

Says the EDD in a publication on the program: “Under this plan everyone benefits. The employer is able to keep a trained work force intact during a temporary setback and no employees lose their jobs.”

The catch of course is that the employer takes a hit on its EDD reserve account, which in turn would lead to higher employer contribution rates to make up for the depletion. That is, payroll taxes will increase. Of course, some increase may occur in a straight layoff too. Also consider that an employer may risk offending its entire workforce in an across the board reduction of hours, rather than offending only those who would receive the pink slip in a straight layoff.

The EDD offers a Guide for Work Sharing Employers.

Below are some FAQs offered in the publication:

Q. Who may participate in the Work Sharing program?

A. Any employer who has a reduction in production, services or other condition that causes the employer to seek an alternative to layoffs. The Work Sharing plan requires the participation of at least two employees, a minimum reduction of 10 percent of the regular permanent work force or work unit(s), and a minimum reduction of 10 percent of the wages earned and hours worked of participating employees.

Q. Who may not participate in the Work Sharing program?

A. Leased or temporary service employees may not participate.

Q. How does an employer apply for the Work Sharing program?

A. Employers must either call or write EDD’s Special Claims Office to request a Work Sharing Plan Application.

Q. How do employees qualify for the Work Sharing program?

A. To qualify for the Work Sharing program an employee must meet the following requirements for each Work Sharing week:

1. The employee must be regularly employed by an employer whose Work Sharing Plan Application has been approved by EDD.

2. The employee must have qualifying wages in the base quarters used to establish a regular California unemployment insurance claim.

3. The reduction in each participating employee’s hours and wages must be at least 10 percent.

4. The employee must have completed a normal work week (with no hour or wage reductions) prior to participating in Work Sharing.

Q. How much lead time is required to initiate a plan for participation in the Work Sharing program?

A. All Work Sharing plans begin on a Sunday. The earliest a plan may begin is the Sunday prior to the employer’s first contact date withEDD. If the Work Sharing Plan Application is submitted timely, the employer chooses the effective date. To be considered timely a DE 8686 must be submitted within 28 days of the employer’s first contact date with EDD.

Q. Can an employer with multiple locations have more than one Work Sharing plan?

A. No. Only one Work Sharing plan is approved for one California employer account number. However, units at the same or different locations may be included in the Work Sharing plan.

Q. When Work Sharing is no longer necessary, how does an employer cancel the Work Sharing plan?

A. Discontinue issuing the Work Sharing Certifications to participating employees. The Work Sharing plan will expire six months after the effective date without any further action from the Work Sharing employer.

Q. How many subsequent Work Sharing plans can an employer receive?

A. Subsequent Work Sharing plans will be approved provided the employer meets the requirements of the program. Each Work Sharing plan is effective for six months and subsequent plans may be approved until the employer’s economic conditions improve.

Q. Are Work Sharing participants required to serve a one week waiting period like regular unemployment insurance claimants?

A. Yes, like regular unemployment insurance claimants, Work Sharing participants must serve a one week unpaid waiting period. Usually the waiting period is the first week claimed after the initial claim is filed. Even though the waiting period is an unpaid week, all the eligibility requirements for the Work Sharing program must be met.

Submitted by:
{encode=“cwo@barkerolmsted.com” title=“Christopher W. Olmsted”}
Barker Olmsted & Barnier, APLC

Friday, September 26, 2008

California Bans “Texting” Behind the Wheel; California Employers Should Update Personnel Policies

California has banned text messaging while driving, and employers need to respond promptly by updating policies.

SB 28, signed by Governor Schwarzenegger on September 24, 2008, amends the California Vehicle Code to state: “A person shall not drive a motor vehicle while using an electronic wireless communications device to write, send, or read a text-based communication.”

As the governor sorted through 800 bills on his desk, he said he was “happy” to sign this one. “Banning electronic text messaging while driving will keep drivers’ hands on the wheel and their eyes on the road, making our roadways a safer place for all Californians.”

What about fumbling with your PDA’s phone directory to dial out a call? That doesn’t count as texting under the new law: “For purposes of this section, a person shall not be deemed to be writing, reading, or sending a text-based communication if the person reads, selects, or enters a telephone number or name in an electronic wireless communications device for the purpose of making or receiving a telephone call.”

The penalty for violating the law is $20 for the first violation and $50 for subsequent violations. No violation points will be given as a result of the offense.

The new law closes a loophole left by Senate Bill 1613. Effective July 1, 2008, that new law provides that it is illegal to drive a motor vehicle while using a wireless telephone, unless a hands-free device for the cell phone is used. But the law did not expressly ban texting. (Separate legislation has already banned drivers under age 18 from using cell phones or any texting device while driving.)

California joins Alaska, Minnesota, New Jersey, Louisiana, Washington and the District of Columbia, where legislators have also recently enacted laws that ban sending text messages while driving. At least a dozen other states are currently considering such a ban.

Texting while driving is a frighteningly common occurrence, especially among younger drivers. According to a survey conducted by Findlaw.com, 47 percent of drivers between the ages of 18 and 24, and more than a quarter (27 percent) of drivers 25 to 34, admit to texting while behind the wheel. Seventeen percent of adults surveyed say they have texted while driving.

Studies suggest that texting while driving is more dangerous than driving while under the influence of alcohol or drugs.

The California Highway Patrol reports that statewide last year, 1,091 crashes with 447 injuries were blamed on drivers using cell phones. In accident cases, lawyers may argue that an employer is liable where an off-duty employee makes or answers a business-related call, or sends a business text message while driving.

Have you updated your employee handbooks? In order to minimize liability issues arising from employees using cell phones, PDAs, or other electronic communication devices on the road while in the course and scope of employment or while taking work-related calls, employers should implement a policy that requires all employees to refrain from texting and to use “hands free” devices while driving on company business or when making business calls on the road. Better yet, employees could be prohibited from using cell phones or PDAs while driving.

Contact me for a complimentary sample policy.

Find the text of the new law: California Texting Ban

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

Friday, September 19, 2008

House Passes Bill Amending ADA

The U.S. House of Representatives passed legislation on Wednesday significantly amending the federal Americans with Disabilities Act.

The House vote follows the recent approval in the Senate. The bill will now go to President Bush. He is expected to sign the legislation.

Proponents of the bill have argued that U.S. Supreme Court decisions in the last decade have eroded rights of disabled workers.

As quoted in a House of Representatives press release: “The Americans with Disabilities Act guaranteed that workers with disabilities would be judged on their merits and not on an employer’s prejudices. But, court rulings since the law’s enactment have dramatically limited the ability of people with disabilities to seek justice under the law,” said Rep. George Miller (D-CA), chairman of the House Education and Labor Committee. “Today we make it absolutely clear that the Americans with Disabilities Act protects anyone who faces discrimination on the basis of a disability.”

Some of the more significant changes:

<u>Expanded Definition of Major Life Activities</u>

A disability is a physical or mental condition that substantially limits a “major life activity.” The ADA currently does not include a definition of “major life activities.” The EEOC regulations provide examples, and these are incorporated into the ADA by the amendment: “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” Most courts have followed the EEOC regulations and therefore this part of the amendment does not represent a major change.

However, the amendment adds “major bodily functions” such as “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” This could lead to a substantial expansion of workers considered disabled under federal law, as it could potentially include conditions such as high blood pressure, asthma, and other conditions not traditionally viewed as disabilities.

<u>Disregard of Mitigating Measures</u> 

U.S. Supreme Court decisions have held that mitigating measures, such as prosthetic devices, should be taken into account when determining whether the workers are disabled. For example, Sutton v. United Airlines, Inc., 527 U.S. 471 (1999), involved myopic twin sisters who were rejected for employment by an airline because of their poor vision, although their vision was correctable with prescription lenses. The airline’s policy required “uncorrected visual acuity” at a certain level, which the sisters did not have. The Supreme Court held that because the sisters’ vision was correctable, they did not satisfy the ADA definition of “disability” and therefore could not make out a claim for discrimination.

The ADA amendment rejects the Supreme Court’s interpretation of the ADA. Now, a worker may qualify as disabled under the ADA without regard to corrective measures such as medication, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; use of assistive technology; reasonable accommodations or auxiliary aids or services; or learned behavioral or adaptive neurological modifications.

<u>Inclusion of Condition in Remission</u> 

The amendment expands the definition of disability include a condition that is in remission or that is episodic, if it would substantially limit a major life activity when active.

<u>“Substantially Limits” Liberalized</u>

A disability must “substantially limit” a major life activity. The Supreme Court and the EEOC has set a high standard for “substantially limits.” An individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives. The ADA amendment rejects this standard.

But the amendment creates a definitional vacuum. The amendment does not provide an alternative definition. It merely states that the existing definition is invalid, and the ADA should be interpreted under a looser standard. Earlier versions of the legislation included a definition, but the definition was deleted as a compromise in order to pass the bill.

<u>“Regarded As” Restricted</u>

The ADA protects workers who, while not actually disabled, are regarded as disabled by the employer.  The amendment excludes from “regarded as” claims minor/transitory conditions lasting six months or less.

It will be some time before the effects of the ADA amendment can be gauged. Undoubtedly, there will be a period of uncertainty while employers seek to comply with the new standards. An increase in federal disability law litigation is inevitable. The EEOC may issue new regulations or guides, which may help employers comply with the new standards.

In some states, a more liberal definition of disability is already in place. For example, the law in California, under the Fair Employment and Housing Act, already includes many of the provisions found in the ADA amendment.

Employers should continue to monitor developments in ADA law and look for compliance advice in the coming months before the law becomes effective on January 1, 2009.

Text of the ADA amendment can be found here.

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

Tuesday, September 09, 2008

New EEOC Publication Addresses Thorny ADA Issues

What happens when an employee with a mental disability misbehaves in the workplace? If the mental disability causes the employee to misbehave and violate workplace conduct rules, can the employer discipline the employee?

The EEOC has tackled this thorny ADA question, and many others, in a new publication titled: “The Americans With Disabilities Act: Applying Performance And Conduct Standards To Employees With Disabilities.”

An EEOC press release acknowledges that employers struggle greatly with the ADA’s vague proscriptions and mandates. “The EEOC continues to receive numerous questions on these topics from employers and from individuals with disabilities, indicating that there is still a high level of uncertainty about how the ADA affects these fundamental personnel issues. This document will serve a critical need and enhance compliance with the ADA.”

According to the new guide, the ADA permits employers to apply the same performance standards to all employees, including those with disabilities, and emphasizes that the ADA does not affect an employer’s right to hold all employees to basic conduct standards, notes the press release.  “At the same time,” cautions the EEOC, “employers must make reasonable accommodations that enable individuals with disabilities to meet performance and conduct standards.”

For example, the EEOC provides the following hypothetical example:

Steve, a new bank teller, barks, shouts, utters nonsensical phrases, and makes other noises that are so loud and frequent that they distract other tellers and cause them to make errors in their work. Customers also hear Steve’s vocal tics, and several of them speak to Donna, the bank manager. Donna discusses the issue with Steve and he explains that he has Tourette Syndrome, a neurological disorder characterized by involuntary, rapid, sudden movements or vocalizations that occur repeatedly. Steve explains that while he could control the tics sufficiently during the job interview, he cannot control them throughout the work day; nor can he modulate his voice to speak more softly when these tics occur. Donna lets Steve continue working for another two weeks, but she receives more complaints from customers and other tellers who, working in close proximity to Steve, continue to have difficulty processing transactions. Although Steve is able to perform his basic bank teller accounting duties, Donna terminates Steve because his behavior is not compatible with performing the essential function of serving customers and his vocal tics are unduly disruptive to coworkers. Steve’s termination is permissible because it is job-related and consistent with business necessity to require that bank tellers be able to (1) conduct themselves in an appropriate manner when serving customers and (2) refrain from interfering with the ability of coworkers to perform their jobs. Further, because Steve never performed the essential functions of his job satisfactorily, the bank did not have to consider reassigning him as a reasonable accommodation.

Employers addressing day-to-day personnel issues are often left guessing about the ADA’s ill-defined requirements. The EEOC’s guide does a laudable job providing specific examples and straightforward answers to questions. The explanation and examples regarding disciplining ADA employees are particularly helpful.

Other topics addressed include issues related to attendance, dress codes, and drug and alcohol use, and the circumstances in which employers can ask questions about an employee’s disability when performance or conduct problems occur.

Employers should carefully study the EEOC’s new publication. However, keep in mind that the courts have the final say on the ADA, and the judiciary is not bound to follow the EEOC’s guidance. For example, in Gambini v. Total Renal Care, Inc. dba DaVita, 486 F.3d 1087 (Wash. 2007), an employee was terminated for making violent outbursts at work. She claimed that it was caused by her bipolar disorder. The Ninth Circuit reversed a lower court decision, finding that the outbursts were protected ADA conduct. For more details on this case, click here.

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

Thursday, September 04, 2008

A Hard Lesson To Learn

E-mail Blunder Alerts Carat Staff to Major Restructuring

Posted by Patrick Della Valle on 09/04 at 10:05 AM
Human Resources
Wednesday, August 27, 2008

ICE Continues Enforcement Trend With Largest Raid Ever

Federal immigration authorities conducted the largest single-workplace immigration raid in U.S. history on August 25, 2008.  In a small southern Mississippi town, federal agents rounded up nearly 600 plant workers suspected of being in the country illegally.

Immigration and Customs Enforcement (“ICE”) spokeswoman Barbara Gonzalez said federal agents arrested the workers in a raid at the Howard Industries Inc. factory in Laurel, Miss, on Monday. “This is the largest targeted workplace enforcement operation we have carried out in the United States to date,” said Gonzales, as quoted in a Reuters article .

Reuters reported that the swoop at the plant, which makes electrical equipment including transformers, was part of an ongoing crackdown on identity theft and fraudulent use of Social Security numbers by illegal immigrants.

The news account notes that the raid comes amid a toughening stance toward illegal immigrants in the United States, where some 12 million live and work in the shadows. Since October 1 last year, more than 4,000 people have been nabbed in stepped-up enforcement raids across the country.

It remains to be seen whether company executives will be prosecuted.

The Associated press reports here that Gonzalez said agents had executed search warrants at both the plant and the company headquarters in nearby Ellisville. She said no company executives had been detained, but this is an “ongoing investigation and yesterday’s action was just the first part.”

The AP report notes that in a statement to the Laurel Leader-Call newspaper, Howard Industries said the company “runs every check allowed to ascertain the immigration status of all applicants for its jobs.” “It is company policy that it hires only U.S. citizens and legal immigrants,” the statement said.

As noted here, criminal and civil fines against employers has increased markedly since 2007.

Earlier this year, ICE issued worksite enforcement advisory titled “Know Your Workforce: The Key to Immigration Compliance.” The advisory notes: “A recurrent issue encountered in ICE worksite enforcement investigations today is the abuse of the Social Security card by individuals seeking to satisfy the work authorization requirements mandated by federal law. The Social Security card has long been a favorite of fraudulent document vendors. In fact, immigration fraud investigators have coined the term ‘three pack’ to refer to the frequently encountered fraudulent document combination of the Social Security card, the state driver’s license or identity card, and a work authorization document.”

The publication provides some compliance “so that employers do not inadvertently facilitate acts of identity theft within their own workforce.”

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

 

Posted by Christopher W. Olmsted on 08/27 at 12:40 AM
Employment LawHuman ResourcesImmigration
Sunday, August 17, 2008

Sick Pay To Remain A Benefit, Not Entitlement—-For Now

Is sick pay an employee entitlement or a benefit? In California, a bill seeking to make sick pay an entitlement that all employers must provide has died in the Senate. But it will be back.

For details on the provisions of AB 2716, see our May 2008 summary here.

The bill died in the Senate because of budget constraints, noted Dean Calbreath, a San Diego Union Tribune columnist in a recent article. “The Schwarzenegger administration opposed the bill on the grounds that it would add costs to the state budget. The Department of Finance estimated that paying for the sick leave would add $600,000 to the budget, because the state would have to pay for sick leave for nurses who provide health care to elderly, blind and disabled patients in their homes.”

The cost to private employers would be much more. Although many employers offer sick pay as a benefit, most employers bristle at the thought of a state mandate requiring such pay. In a letter to the California Senate Appropriations Committee, the Cal Chamber of commerce wrote: “The ever-increasing burden of costly mandates on employers can cumulatively result in lower wages, reducing available health insurance, limiting training programs and - in the worst case scenario- job loss or reduced work hours. Job loss translates to lower tax revenues from employers and employees, as well as increased utilization of Unemployment Insurance. In an already troubled economy California should be seeking ways to stimulate job growth and avoid forcing costly mandates on employers.”


Supporters of the bill came up with all manner of public policy arguments. The pro-labor group Labor Project for Working Families argued in a fact sheet that employers should support the sick pay mandate because it would decrease employee turnover, increase productivity, and improve public health. 

The public health argument appeared to strike a chord with voters. The argument is that sick workers make more people sick. Korye Capozza,  of the UC Berkeley Center for Labor Research and Education hypothesized in a policy brief that mandatory sick pay would improve decrease food poisoning and save the elderly. “AB 2716 would have clear benefits for individual workers but, importantly, it would also have public health benefits that extend beyond the household and workplace” wrote Capozza. “Specifically, such a policy could reduce the transmission of foodborne illness, decrease disease outbreaks in nursing homes, reduce the spread of infections in childcare settings and mitigate the transmission of seasonal influenza. There is also some evidence that paid sick leave influences workers’ decisions to see a doctor, parents’ decisions to stay home and care for a sick child and patients’ decisions about treatment choices. Finally, AB 2716 has the potential to improve patient compliance with preventive health-care guidelines and chronic care management, and thus to reduce health-care spending over the long term.”

Mandatory sick pay will be back. Assemblywoman Ma has vowed to reintroduce the bill next year. It is likely to gain public support. The California Center for Research on Women and Families, a program of the nonprofit Public Health Institute, publicized a public poll finding 73% of voters would support a law to guarantee that workers receive a minimum number of paid sick days from their employer.

Similarly, the poll found that 81% agree (57% strongly) that guaranteeing paid sick day laws to all restaurant workers who handle food would increase the chances that these workers would stay home when they get sick and not infect the public. Another 76% agree (50% strongly) that paid sick days should be considered a basic worker right, like being paid a decent wage.

The text to the most recent version of the bill can be found here.


Submitted By:
Christopher W. Olmsted
Barker Olmsted & Barnier APLC

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