SDEA February 2010 Newsletter

HR CONSULTING TRAINING HANDBOOKS AUDITS SURVEYS COMPENSATION LABOR NEGOTIATIONS

FEBRUARY 2010

>SDEA PROUDLY ANNOUNCES NEW DIRECTOR: Ed Fairhurst

>DLSE Approves Deductions Of Fewer Than Four Hours From Exempt Employee Leave Banks

>Computer Professional Exempt Employees

>HR Should Be Aware Of “Unofficial” Note-Taking

>Plus: HR Training Preferred Provider & More... 888.625.7332888.625.7332

COLUMNISTS

Jennifer Jacobus, PHR, CA Jessica Zaldivar, PHR

SDEA BOARD OF DIRECTORS

Rufino AutusAutus Financial Group

Terry Elrod

Juli JacobsonSan Diego Blood Bank

Stacey McKibbenActionCOACH

Melanie PotterWalter Anderson Nursery

Melinda RosasUSA Federal Credit Union

Mike ScaccoALSCO, Inc.

Andy SilvermanCRES Insurance

Diana TwadellBarney and Barney

Darby VorcePacific Safety Council

SDEA Counsel

Mike DalyDaly Law Firm

Honorary Life MemberTom Murch

DESIGNChabot Designs.com

ADVERTISING AND ARTICLE SUBMISSION INFO

This newsletter is published monthly by the San Diego Employers Association.

We welcome the submission of articles by our members on topics of interest related to HR. Date for submission of materials and advertising is the 15th of the month prior to publication.

If you are interested in submitting an article please email it to: [email protected].

If you are interested in advertising rates please send an email to: [email protected].

SDEA is a not-for-profit employer’s association that pro-vides HR advice and consulting to its members in an ef-fort to promote and maintain employer/employee rela-tionships. We are not attorneys and do not render legal advice. Please contact your company’s legal counsel if you need legal advice on any issue. If you do not have an attorney with employment and/or labor relations ex-perience, we would be happy to provide you with refer-rals.

888.625.733212255 PARKWAY CENTRE DR. POWAY, CA 92064

www.sdea.com • 888.625.7332 • San Diego Employers Association 1

IN THIS MONTH02.2010

>FEATURES

2 San Diego Employers Association Is Pleased To Introduce A New Member To Our Team: Ed Fairhurst

2 Agency Claims

3 DLSE Approves Deductions Of Fewer Than Four Hours From Exempt Employee Leave Banks

4 Computer Professional Exempt Employees

6 HR Should Be Aware Of “Unofficial” Note-Taking

7 Reminder: Post Recordkeeping Forms

>DEPARTMENTS

4 SDEA Training

6 HR Strange But True

7 Preferred Provider Spotlight

CURRENT LEGISLATION: THINGS YOU SHOULD KNOWpg. 5

2 San Diego Employers Association • 888.625.7332 • www.sdea.com

>SAN DIEGO EMPLOYERS ASSOCIATION IS PLEASED TO INTRODUCE A NEW MEMBER TO OUR TEAM: WELCOME ED FAIRHURST, DIRECTOR OF SDEADear SDEA Members,

I am pleased to have the opportunity to join the SDEA team. My first priority going forward is to increase our value to the membership--we are planning many exciting changes over the coming months.

Currently we are in the midst of developing a Group Purchas-ing Organization (GPO) designed to save our members money on products that are used, and that will assist, with the day-to-day operations of your individual organizations. There will be opportunities for members to promote their business and have the ability to shop other member’s products and services. We recommend you take advantage of the opportunity to promote your business to other SDEA Members by becoming an event sponsor at any SDEA event. We urge all of you to watch for the upcoming email announcements and take advantage of these promotional and cost savings opportunities.

Upcoming in 2010: • We are adding New Classes that are HRCI accredited for

HR Professionals, designed to promote the importance of continued education.

• We will be hosting events with prominent speakers--look for announcements regarding names and dates of these events planned for 2010.

• We are continuing with our popular Breakfast Brief Net-working Events and our HR Roundtable Luncheons to keep you in contact with other professionals. We will strive to keep it interesting and informative on a variety of topics you need to know!

In closing, we are one month into what promises to be a year of opportunity. The business landscape appears to be stabilizing. Many businesses are looking to take up the slack from those businesses lost during the downturn. New companies will rise from the ashes, forward thinking companies will look to open new divisions or offices and expand their areas of influence. New product lines will be added. Yet other companies will in-crease their sales staffs and seize the opportunity for increased market share. Our plan at SDEA in the coming months is to aid our membership with a variety of marketing efforts designed to generate sales and provide the coaching and training ex-cellence needed to assist our membership in those employee matters that exist in a developing working environment.

Seize the dayEd FairhurstDirector SDEA

>AGENCY CLAIMSBy: Jessica Zaldivar, PHR Due to the economy and high unemployment rate attorneys are forecasting that there is going to be rise in agency claims. Employers are going to continue seeing wage and hour claims and meal period claims, but employers may see a rise in dis-ability and religion claims. As an employer you need to be pre-pared and be proactive in addressing possible complaints or concerns that could lead to an agency claim. Here are some recommendations that could assist you in avoiding agency claims:

• Train appropriate personnel members such as manage-ment on how to handle a concern or complaint that an employee brings forward.

• Take all complaints seriously.• Conduct prompt and thorough investigations of com-

plaints.• Ensure that your follow your own company policies and

enforce policies consistently.• Ensure you are consistent with discipline.• If the employee requests an accommodation ensure that

there is an interactive process between the employee and you the employer.

• Thoughtfully evaluate accommodation requests.• Document…Document…Document….

If you receive a complaint/concern and are not sure how to address the complaint/concern please contact SDEA and we can assist you at 888-625-7332.


San Diego Employers Associationis on Get exclusive savings on upcomingevents stay & connected with theSan Diego Employers Association.Visit: www.sdea.comto join our group today!

Summary

The California Division of Labor Standards Enforcement (DLSE)

recently issued an opinion letter that allows employers to make

deductions in any increment from an exempt employee’s

accrued leave bank. While employers need to carefully follow

all of the required procedural rules to make such deductions,

this opinion letter is another substantial, employer-friendly

change in position for the DLSE. Previously, the DLSE only

permitted deductions from an exempt employee’s accrued

vacation bank in excess of four hours.

Discussion

In addition to passing a duties test, to qualify as exempt,

employees must generally receive their full salary for all weeks

in which they perform work. An important exception to this rule

allows employers to make certain deductions from an exempt

employee’s accrued leave bank for partial day absences if the

absences are for personal reasons or illness, so long as any

deduction for illness is made in accordance with a bona fide

plan or policy. Since the 2005 decision in Conley v. Pacific Gas

& Electric, the DLSE has expressly permitted employers to make

deductions from an exempt employee’s accrued vacation bank

for absences of four hours or more.

Based on the new DLSE opinion letter, employers may make

deductions from accrued leave banks for partial day absences

of any length without jeopardizing an employee’s exempt

status. Any such deductions, however, must be made in

accordance with an express policy that allows for the deduction.

Employers may also combine accrued vacation and sick leave

for purposes of making leave bank deductions if their policy

expressly requires combined use. For example, if an exempt

employee takes three hours of vacation, but only has two hours

of accrued vacation time, the employer may deduct two hours

from the employee’s vacation balance and one hour from

his or her sick time balance. If the employee’s accrued leave

balance is exhausted, he or she must be paid the full salary

for that day because partial day deductions from an exempt

employee’s salary are not allowed.

What This Means

Although DLSE opinions do not have the force of law,

California employers now have support for making deductions

in any increment from an exempt employee’s accrued leave

bank. Before doing so, however, employers must revise their

vacation, sick leave or paid time off policies to expressly allow

for partial day deductions in increments shorter than four

hours. Employers should also decide whether to require the

use of accrued vacation time when sick pay is exhausted, and

must make the appropriate changes to their policies if they

wish to do so. Keep in mind that employers must give advance

notice to employees of any changes to accrued leave policies.

This article was authored by Lisa Frank and Brenda Kasper. For

more information please contact Ms. Frank, Ms. Kasper or any

other Paul, Plevin attorney by calling (619) 237-5200.

>DLSE APPROVES DEDUCTIONS OF FEWER THANFOUR HOURS FROM EXEMPT EMPLOYEE LEAVE BANKSCompliments of Paul, Plevin, Sullivan, and Connoughton, LLC


SDEA Training

*NEW PRICING ON COURSESSDEA Members: Half Day $70.00 Full Day $130.00Non Members:Half Day $120.00 Full Day $200.00

*Feb. 3rdWin-Win InterpersonnalCommunication Skills9am - 12pmSDEA Members $70.00Non $120.00

*Feb. 4thGetting Results ThroughAccountability9am - 12pmSDEA Members $70.00Non $120.00

Feb. 9thPersonnel Law 1019am - 4pmSDEA Members $175.00Non $250.00

Feb. 10thHarassment Prevention Training9am - 11:30am SDEA Members $100.00Non $150.00

Feb. 15thCompensation Basics9am - 4pmSDEA Members $175.00Non $250.00

Feb. 16thSDEA’s Monthly Networking Breakfast Brief7:30am - 9amSDEA Members FREENon FREE

*Feb. 17thCustomer Service9am - 12pmSDEA Members $70.00Non $120.00

Feb. 19thHR Roundtable11:30am - 1:30pmSDEA Members $40.00Non $55.00

*Feb. 23rdCoaching & Counseling1pm - 4pmSDEA Members $70.00Non $120.00

February 2010

>COMPUTER PROFESSIONAL EXEMPT EMPLOYEESBy Jennifer Jacobus, PHR

We’ve had a few calls lately from members who are confused over the Computer Professional Exemption. The Computer Professional Exemption is a little different than the other exemptions in that it allows hourly payments (whereas the other exemptions must be paid on a salary basis) and the hourly rate is subject to change annually, since it is tied to the Consumer Price Index.

An employee is an exempt computer professional if he/she:

• Is primarily engaged in work that is intellectual or creative;

• Is primarily engaged in work that requires the exercise of discretion and independent judgment;

• Is primarily engaged in duties that consist of one or more of the following:

• Applying systems-analysis techniques and procedures, including consulting with users, to determine hardware, software or system-functional specifications;

• Designing, developing, documenting, analyzing, creating, testing or modifying computer systems or programs, including prototypes, based on and related to user or system-design specifications; or

• Documenting, testing, creating or modifying computer programs related to the design of software or hardware for computer operating systems.

• Is highly skilled and proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming and software engineering; and

• Is paid at least $37.94 per hour/$6587.50 per month, or $79,050.00 per year (same as 2009)

Last year, Labor Code 515.5 was amended to allow computer professionals to be paid on a monthly or annual salary—prior to January 1, 2009, computer professional who are exempt had to be paid on an hourly basis. The minimum monthly salary is $6,587.50 or $79,050.00 a year. Remember, federal law, which states computer professional employees can be paid as low as $544/week will not apply in this situation. You must follow the law that is most beneficial to employees, which is the rate set by the Division of Labor Statistics and Research (DLSR) of the State of California.


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As a reminder, unless noted otherwise, the following bills went into effect January 1, 2010.

Limitations on Employer’s Ability to Rescind Medical Treatment Authorization (AB 361)

California’s workers’ compensation laws permit employers or insurers to establish a medical provider network to provide medical treatment to injured employees. This new law precludes employers, regardless of whether it has established a medical provider network or entered into contracts directly with medical providers, from refusing to pay for workers’ compensation medical treatment services if the employer approved those services before the treatment was provided. This law is intended to address some billing problems medical providers were experiencing after they provided medical treatment to injured employees.

New Limitations on Display of Nooses in Workplace (AB 412)California’s Hate Crimes Law prohibits the display of certain symbols (i.e., swastikas, burned crosses) with the intent to terrorize persons. This bill expands these protections and provides that anyone who hangs a noose, knowing it to be a symbol representing a threat to life, in certain statutorily-enumerated places including a “place of employment,” for the purpose of terrorizing an occupant, shall be subject to imprisonment and civil fines up to $5,000 for the first offense. This bill is not targeted specifically at employers, but provides additional incentive for employers and employees to ensure nooses are not displayed in the workplace for purposes of harassing co-workers.

Civil Air Patrol Employment Protection Act (AB 485)This bill requires employers with more than 15 employees to provide at least 10 days of leave per year for voluntary members of the California Wing of the Civil Air Patrol to respond to emergency operational missions. To be eligible for this leave, employees must have worked for their current employer for more than 90 days immediately preceding the commencement of the leave. Eligible employees are also required to provide as much advance notice of the leave as possible. This bill also requires employers to reinstate employees to their original position or a position with equivalent seniority and benefits, unless the employee is not restored due to conditions unrelated to the leave. This bill does not require employers to grant Civil Air Patrol leave to employees required to respond as first responders for a local, state or federal agency to the same or simultaneous emergency operational mission. This bill also authorizes employees to bring civil actions to enforce these Civil Air Patrol leave rights.

Workers’ Compensation Coverage for Third-Party Torts (AB 1093)This new law is intended to clarify California’s workers’ compensation provisions by ensuring that injuries inflicted by third-parties at the worksite because of an employee’s protected criterion (ex. race, gender, etc.) are not automatically

disqualified from coverage under the “personal relationship” or “personal motivation” exception. California’s workers’ compensation provisions generally require employers to provide workers’ compensation benefits or medical treatment for injuries incurred by employees arising out of and in the course of employment. However, there is a coverage exception if the employee is killed or injured as a result of a personal motivation between a third-party aggressor and the employee victim (ex. domestic violence-type disputes extending into the workplace).

This new law amends Labor Code section 3600 to provide that in determining whether workers’ compensation coverage applies when a third-party injures or kills an employee, no “personal relationship” or “personal connection” shall be deemed to exist between the employee and third-party based solely upon a determination that the third-party injured or killed the employee solely because of the third-party’s personal beliefs relating to his or her perception of the employee’s race, religious creed, color, national origin, age, gender, disability, sex or sexual orientation.

Injured Employee’s Right to Pre-Designate Treating Physician Extended (SB 186)This bill removes the December 31, 2009 sunset date on an injured worker’s ability to pre-designate his or her treating physician as the treating physician in the event of a workplace injury. California’s Workers’ Compensation laws generally require employers to secure and pay for the medical treatment for a workplace injury, and allow employers to select the treating physician for the first thirty days after a workplace injury. Existing law also provided employees with the right to be treated by his or her own physician from the date of injury if specified requirements are met, including a requirement that the physician agree to be pre-designated. As originally enacted, the bill allowing an employee to pre-designate a personal physician was set to expire on December 31, 2009.

Increased Workers’ Compensation Penalties (SB 313)California requires that every employer secure the payment of workers’ compensation for work-related injuries, and authorizes the Department of Industrial Relations to issue penalty assessment orders against employers who fail

>CURRENT LEGISLATION—THINGS YOU SHOULD KNOWCompliments of Wilson, Turner, Kosmo, LLC

Continued on page 6


to comply. This bill increases the penalty assessment to $1,500 per employee (up from $1,000 per employee) employed during the time the employer was uninsured, and restructures the laws governing penalties for noncompliance.

Price Discounts for Unemployed Consumers not Discriminatory under the Unruh Act (SB 367)

The Unruh Civil Rights Act (Civil Code section 51 et seq.) prohibits business establishments from discriminating, including through price discounts, against customers because of specified reasons (e.g., sex, race, religion, etc.), and authorizes civil remedies for non-compliance. This bill clarifies that discounts or other benefits offered to or conferred on a consumer because the consumer has suffered the loss or reduction of employment would not be considered an arbitrary discrimination in violation of the Unruh Civil Rights Act. This bill was enacted on an urgency basis after the October 11th legislative deadline, and took immediate effect on November 2, 2009.

“Current Legislation” continued from page 5

>HR SHOULD BE AWARE OF “UNOFFICAL” NOTE-TAKINGBy Jennifer Jacobus, PHR

In one of the many roles as a human resources professional, you are the official “keeper” of employee personnel files. Try as you might to get your message across to your managers and supervisors, they may have a tendency to want to keep their own “notes” and “unofficial” documentation. While this practice of documentation is legal, HR should assert some control over it.

In El-Sioufi v. St. Peter’s University Hospital, an employee alleged that her supervisor placed extra scrutiny on her by taking notes and keeping a personal file on her, and thus, she felt she was being discriminated against. While the court ruled that keeping such documentation is entirely reasonable and not inappropriate to maintain such files, this personal form of documentation should not be the sole basis for disciplinary action if neither the employee nor the employer has previously been apprised of the information.

The most important point to get across to managers is to imagine what their notes may look like blown up onto a screen in a courtroom—while these notes and documentation are not maintained in the employee’s official personnel file, they are discoverable during litigation. All documentation should be job-related and managers should refrain from personal attacks—these personal notes should not be considered a secret.

>HR STRANGE BUT TRUE! AN EXERCISE THAT EVERY TOP EXECUTIVE SHOULD ENJOY! Compliments of BLR

The CBS network recently announced a forthcoming new reality show based in the workplace. In “Undercover Boss,” top executives will anonymously take on entry-level positions at their organization and, in the process, gain “eye-opening perspectives” on how their decisions impact rank and file workers.

The first episode will feature the president and COO of Waste Management, Larry O’Donnell, who will clean porta-potties and work at a recycling plant, according to the network. CBS also announced that the experiences of executives from White Castle, 7-Eleven, Hooters, and Churchill Downs will also be chronicled in the first season.

The premise of the show reminds SBT editors of a segment that appeared in an episode of Michael Moore’s “TV Nation” (NBC, 1994). In the segment, called “CEO Challenge,” Moore issued a challenge to CEOs of large corporations to determine whether they could perform simple tasks related to the products their company sold—thus the chairman of IBM was asked to format a disk, the chairman of Palmolive was asked to wash dishes, and the CEO of Phillip Morris was asked to roll a cigarette, etc.

“I thought every working person, and nonworking person for that matter, would enjoy seeing me put the chairman of Ford Motors under a car and have oil drip on his face,” Moore said about the segment.

The desired results of “Undercover Boss” are stated in a slightly more diplomatically by Nina Tassler, president of CBS Entertainment. “The journey of watching a chief executive walk a mile in their employees’ shoes is always very revealing, often humorous and in some cases very inspiring,” Tassler said in a press release.

“Undercover Boss” premieres February 7 after the post-game show of Super Bowl XLIV.

You can watch episodes online here: h t t p : / /www.cbs . com/p r ime t ime/unde rcove r_bos s Sources: Reuters, Dogeatdog.michaelmoore.com, Faqs.org


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Incorporated in 1979, Career Resources has been working in the EEO/AAP arena for over 27 years and has developed cli-ents in 43 States. We are based in California and have an excellent relationship with OFCCP, built on mutual respect and not one of intimidation or apprehension.

Available services include AAP preparation and implementa-tion, EEO/AA Training, OFCCP Audit Preparation, Compensa-tion Analysis, Impact Ratio Analysis, Applicant Tracking Soft-ware and Aptitude and Behavior Testing.

We provide our clients with monthly updates on EEO/AAP news and the current posture of the Office of Federal Contract Com-pliance Programs (OFCCP), with straightforward suggestions and proactive measures to ensure that they are in compliance. In addition to our monthly and annual updates we have a wide variety of EEO/AA intelligence available to our clients at no additional charge.

The Career Resources team has been successful throughout the United States assisting Contractors with the preparation and implementation of their Affirmative Action Programs. Our goal is to not only give you an AAP that will withstand an OFC-CP audit, but to ensure that you understand each and every component of your AAP.

We do not use a “cookie cutter” approach when preparing your AAP as many consultants do. Here at Career Resources, we do all of the work in preparing your AAP thus freeing up your valuable time . Your AAP is customized to fit your compa-ny’s personality. Remember, we do all of the work and deliver a complete AAP capable of withstanding an OFCCP audit.

SDEA Member Only Services/Discounts

Career Resources, Inc. will offer SDEA members a FREE review of their current Affirmative Action Plan for compliance purpos-es. If being audited by the OFCCP, Career Resources, Inc. will give a one hour FREE consultation.

We will provide all SDEA members an initial 20% discount on any of our services:

* Affirmative Action Plan 2% or Three Pronged Compensation Analysis * Cluster Regression Analysis * Comprehensive Regression Analysis * Impact Ratio Analysis * Diversity Statistical Review * Affirmative Action Training * Detailed OFCCP Audit Preparation

>SDEA PREFERRED PROVIDER SPOTLIGHT

Be sure to tell them that you are an SDEA member to ensure you get your discount!

James [email protected] ext. 701http://www.eeo-aap.com/

>REMINDER!POST RECORDKEEPING FORMSPacific Safety Council

Employers subject to OSHA recordkeeping must post the OSHA Form 300A beginning February 1, in a common area where notices are typically displayed. The form must remain up through April 30.

Form 300A is the summary of all job-related injuries and ill-nesses that occurred in 2009 and were entered on the 300 log. If there were no recordables in 2009, the form must be posted with zeros on the total line.

Also required is information about annual average number of employees and total hours worked, and all summaries must be certified by a company executive.

Documents

SDEA February 2010 Newsletter