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California Human Resource Blog

Archive for the ‘Business Risks’ Category

The return of the grumpy HR Grinch – Holiday Parties Revisited!

Wednesday, November 10th, 2010

Each year, we feel somewhat like the grumpy HR Grinch, ready to shut down your rollicking good time this holiday season.  You know, the anything goes office party where your employees leave their inhibitions at the door.  The celebratory occasion that provides months of post party gossip.  However, we know that this time of year can leave you with more than a headache….a lawsuit that can be very costly.

Employers continue to evaluate whether to even have that party and associated expense.  We recommend you reinvent the office party concept and try something new like a lunch event, group outing to an amusement park or volunteer activity with a local charity.

And the formal party isn’t always what employees enjoy the most.  At YPP, the CEO’s have cooked lunch for our employees for the last several years, and that’s been just as much fun as when we did more elaborate evening parties – and far less risky since we don’t serve alcohol.  We also treat everyone to the holiday show at our local theater, PCPA.

However you choose to celebrate the holidays with your employees this year, we want you to have a bright and “HR Safe” holiday season.  We have a few tips to help our employers avoid the biggest holiday party danger zones, alcohol and sexual harassment.

Alcohol

The following tips were prepared by the U.S. Department of Labor, Working Partners for an Alcohol and Drug Free Workplace in an attempt to assist employers in minimizing negative consequences of alcohol consumption at their holiday parties.

  • Be honest with employees. Make sure your employees know your workplace substance abuse policy and that the policy addresses the use of alcoholic beverages in any work-related situation and office social function.
  • Post the policy. Use every communication vehicle to make sure your employees know the policy.  Prior to an office party, use break room bulletin boards, office e-mail and paycheck envelopes to communicate your policy and concerns.
  • Make sure employees know when to say when.  If you do serve alcohol at an office event, make sure all employees know that they are welcome to attend and have a good time, but they are expected to act responsibly.
  • Make it the office party of choice.  Make sure there are plenty of non-alcoholic beverages available.
  • Eat…and be merry!  Avoid serving lots of salty, greasy or sweet foods which tend to make people thirsty.  Serve foods rich in starch and protein which stay in the stomach longer and slow down the absorption of alcohol in the bloodstream.
  • Designate party managers.  Remind managers that even at the office party, they may need to implement the company’s alcohol and substance abuse policy.
  • Arrange alternative transportation.  Anticipate the need for alternative transportation for all party goers and make special transportation arrangements in advance of the party.  Encourage all employees to make use of the alternative transportation if they consume any alcohol.
  • Serve none for the road.  Stop serving alcohol before the party officially ends. Employers are encouraged to review their company policies regarding alcohol consumption and furthermore, to enforce their policies at all company celebrations.

Sexual Harassment

With or without too much alcohol a holiday party or holiday events such as “secret santa” or gift exchanges can become the opportunity for sexual harassment claims.  As a California employer you must know that State law forbids sexual harassment under FEHA and Government Code section 12940.

The California Fair Employment and Housing Commission (FEHC) enforces FEHA law and has found sexual harassment to include:

  • Verbal harassment, such as epithets, derogatory comments, or slurs;
  • Physical harassment, such as assault or physical interference with movement or work; and
  • Visual harassment, such as derogatory cartoons, drawings, or posters.

As an employer what can you do to help minimize the risk?  The following tips can help you avoid holiday party harassment liability:

  • Remind employees beforehand that their liability for sexual harassment applies at all times, including during the party.
  • Make sure your supervisors’ sexual harassment training is up to date, and you may want to redistribute the company’s sexual harassment and substance abuse policies to everyone a week or so before the party.
  • If you know or suspect someone in your organization is putting you at risk for a sexual harassment claim take steps now to address it now, don’t wait until it is too late.

YPP HR Managers can help you in planning an “HR Safe” holiday celebration.  We want you to enjoy the season knowing you have done everything possible to avoid a post holiday legal hangover.

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Posted by Sandra Dickerson in Business Risks, Xmas Parties | No Comments »

Warning: Employee Classification Errors Are Costly!

Monday, June 28th, 2010

How confident are you that your Exempt employees and Independent Contractors can withstand scrutiny by the Department of Labor?  We hear many employers say they’re very confident, only to see that confidence diminish rapidly when they have to actually verify it.

We’ve done several articles about the dangers of misclassification.  Now the Department of Labor (DOL) is making it potentially much more serious and costly.  The DOL’s Wage & Hour Division (WHD) has 250 new investigators, and plans to have 1,000 by the end of 2011 – a 50% increase over 2008.  Their focus:  partnering with other DOL agencies, state agencies and others to investigate misclassifications on a nationwide basis.   This includes exempt and independent contractor classifications.  The fiscal budget for 2011 also includes $10.9 million in grants to states to assist them in identifying misclassifications through states’ unemployment systems.

Why the push for this heightened enforcement?   WHD’s data indicates this is a growing problem.  In fiscal year 2009, WHD found $2,650,520.28 in back wages owed to 2,190 employees where misclassification was the primary reason an employer did not pay overtime and/or minimum wages.  This was a 50% increase over 2008.

Independent Contractor misclassifications raise a number of issues besides minimum wage and overtime.  In those situations, the worker is generally not covered by workers’ compensation and unemployment insurance, leaving insurance carriers and state UI funds underfunded.

In addition to increased investigations and enforcement, the DOL is supporting the passage of Senate Bill 3254, the “Employee Misclassification Prevention Act” (EMPA) which includes:  making misclassification a violation of the Fair Labor Standards Act; requiring employers to provide a written notice to employees of how they are classified, with a presumption the person is an employee if the notice isn’t provided;  adding civil monetary penalties for failure to keep adequate recordkeeping.

If you have exempt employees or independent contractors, contact your YPP HR Manager for assistance in reviewing these classifications.

Posted by Cindy McKellar in Business Risks, Payroll | No Comments »

The Americans with Disabilities Amendments Act (ADAAA):

Tuesday, January 13th, 2009

On September 25, 2008, President Bush signed the ADA Amendments Act of 2008 (ADAAA), for an effective date of January 1, 2009. The Act updated the Americans with Disabilities Act to provide broader protections (at the federal level). The Act is intended to strengthen the original intent of the Americans with Disabilities Act by clarifying several Supreme Court decisions. This new legislation allows more American workers to qualify as disabled under the new guidelines.

There are three major changes to the current Americans with Disabilities Act. The new law:

    1. Prohibits employers and courts from considering the effects of mitigating measures, with the exception of ordinary eyeglasses and contact lenses, when determining whether an employee has a disability. Not considering mitigating measures means that an employee will be evaluated without regard to hearing aids, medications, prosthetic devices and other measures they might use to manage their impairments.

    2. Expands the list of major life activities in which an employee may be limited. The non-exhaustive list will now include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. For the first time, major life activities include the operation of major bodily functions, including functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions. The larger list of activities is intended to encourage the courts to interpret the ADA more broadly to ensure that employees who need the law’s protections will be covered by the same statute.

    3. Broadens the “regarded as” part of the statute’s definition of disability. Specifically, the new act requires an individual to prove they were discriminated against because of an actual or perceived impairment, even if the impairment does not limit or is not perceived to limit a major life activity. Previously, employees were required to demonstrate that actual or perceived impairment was believed to be substantially limiting. The Act also states that employers are not required to reasonably accommodate an individual who is “regarded as” disabled.

So what does this new federal legislation mean for the small business employer in California? Not as much as you may think.

The Fair Employment and Housing Act (FEHA) in California, which applies to employers with 5 or more employees, requires that an employer provide reasonable accommodation to persons with disabilities. California law also prohibits discrimination against a person based on a medical condition. A “medical condition includes any health related to or associated with a diagnosis of cancer, or a record or history of cancer, as well as an individual’s genetic characteristics”. In a California Court of Appeal, it was held that the FEHA does require reasonable accommodation in a “regarded as” situation.

FEHA remains as strict as the newly amended federal ADA, and may be even stricter in some regards. However, any time there is publicity about employment laws, remember that your employees hear or read it also, and your exposure to lawsuits increases. It’s important to be aware of your ADA obligations and be alert to possible ADA triggers such as:

  • candidate screening: including a question on your application that asks if an applicant has a disability
  • employee absences: frequent absences or absences for long periods of time
  • performance issues: a sudden change in productivity or quality of work
  • behavioral change: inability to focus, inconsistency with job tasks, inability to work with others
  • employee termination: your employee resigns and then rescinds their resignation, or resigns for personal reasons.

As always, stay alert and if you need clarity or have questions contact your Human Resources representative or legal counsel.

Posted by Mary Martinez-Tkach in ADA, Business Risks, HR Consultant | No Comments »