Tuesday, July 17, 2018

FEHA - New National Origin Regulations



National Origin is considered a protected class by the California Department of Fair Employment and Housing (FEHA), but beginning July 1, 2018, FEHA has expanded the rules relating to national origin discrimination and addresses specific actions that may constitute national origin discrimination. 


Definition of National Origin


National origin previously was interpreted to mean the country from which the applicant, employee or their ancestors came. National origin is now broadly defined. It includes, but is not limited to, an individual’s or the individual’s ancestors’ actual or perceived
  • Physical, cultural or linguistic characteristics associated with a national origin group; 
  • Marriage to or association with persons of a national origin group; 
  • Tribal affiliation; 
  • Membership in or association with an organization identified with or seeking to promote the interests of a national origin group; 
  • Attendance or participation in schools, churches, temples, mosques or other religious institutions generally used by persons of a national origin group; and 
  • Name that is associated with a national origin group. 

Employers with English Only Policies Take Note 

The new regulations expand the existing prohibition on English-only policies in the workplace. Language restriction policies (including English-only policies) are unlawful unless an employer can prove that: 
  • The language restriction is justified by business necessity; 
  • The language restriction is narrowly tailored; and 
  • The employer has effectively notified employees of the circumstances and time when the language restriction is required to be observed and of the consequence for violating the restriction. 
Employers can no longer impose a language restriction that is purely based on customer or co-worker preference. Employers can also never require that employees speak English during no-work time such as rest and meal breaks or unpaid employer-sponsored events. 

Other Considerations 

FEHA Regulations also prohibit: 

  • Employment decisions based on an individual’s accent unless the employer proves that the accent interferes with the individual’s ability to perform their job; 
  • Requirement of English proficiency unless the employer proves the business necessity of English proficiency; 
  • Requirement that the employee can speak, read, write or understand any language, including languages other than English unless if doing so is justified by business necessity; 
  • Height and weight requirements that exclude individuals of a certain national origin from being considered for a position unless the employer can show that the requirement is job related and justified by business necessity; 
  • Seeking, requesting or referring applicants or employees based on national origin; 
  • Assigning positions, facilities or geographical areas of employment based on national origin, unless done to business necessity or any other permissible defense; and 
  • Asking about an applicant’s or employee’s immigration status, or to discriminate against an applicant or employee based on immigration status, unless the employer can show by clear and convincing evidence that it was doing so to comply with federal immigration law. 

What is “Business Necessity” under FEHA? 

“Business necessity” means an overriding legitimate business purpose, such that: 
  • The restriction is necessary to the safe and efficient operation of the business; 
  • The restriction effectively fulfills the business purpose it is supposed to serve; and 
  • There is no alternative practice to the restriction that would accomplish the business purpose equally well with a lesser discriminatory impact. 
These new regulations protect both applicants and employees from unlawful discrimination and harassment based on national origin and also to applicants and employees who are undocumented. 

Harassment can take the form of epithets, derogatory comments, and slurs or non-verbal conduct based on national origin, including threats of deportation, derogatory comments about immigration status, or mocking an individual’s accent or language. It also is an unlawful for employers to retaliate against employees who have opposed discrimination or harassment based on national origin; participated in filing a complaint; or testified, assisted or participated in a proceeding alleging national origin discrimination. 


Best Practices for Compliance with the FEHA New Regulations


  • Educate HR and managers about the new broad definition of “national origin”; 
  • Identify any policies that may be affected by the new regulations, such as English-only policies and height and weight requirements. Ensure the policies demonstrate business necessity; 
  • Broaden recruitment efforts to ensure that potential applicants are not being excluded based on national origin; 
  • Ensure that employment decisions, including transfers, salary changes, promotions, hiring, and firing are based on objective criteria that are consistently applied; and 
  • Don’t use customer preference as a justification for discrimination based on national origin.
Lauren Sims is the article’s author and the Director of Human Resources.
eqHR Solutions provides professional, tactical and strategic human resources support; ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California.


      Monday, July 16, 2018

      How to Effectively Use a Performance Improvement Plan

      Performance Improvement Plan 


      Often when discussing employee performance issues with clients, I ask them if they want to go the progressive discipline route with this employee or do they want to do a performance improvement plan (PIP). Usually when I ask this question I get a confused, look: “what’s the difference between a verbal or written warning and a PIP?”

      A PIP is more of a commitment from the manager to help their employee improve, not just a way to begin documenting the termination process.

      Performance improvement plans (PIP) are best used in situations where: 

      • There an actual performance or behavioral issue that can be documented with a list of performance issues, including dates, specific data or detailed explanations, and any previous counseling given to the employee. 
      • The manager is committed to helping the employee improve rather than beginning the process of termination. 
      • The performance issue can be improved through a formal plan. Quantifiable problems such as sales goals, quality ratings and quantity objectives are better suited to a PIP than issues suchs as insubordination. 
      The employee has not received proper training to succeed and additional training goals can be set to help correct the oversight.

      Effective elements of a PIP should include:

      • How the employee’s current performance is unacceptable; 
      • What acceptable performance levels are; 
      • SMART (Specific, Measurable, Achievable, Relevant, and Time-bound) objectives. Typical timeframes for PIPS are 30, 60, or 90 days; 
      • Commitments from management on how they will assist employees in achieving their goals. This can include additional training and coaching; 
      • Details on how often the manager and employee will meet to discuss progress; and 
      • Clear consequences for not meeting the objectives of the plan. 
      Once a PIP has been created and discussed with the employee it is now up to the manager to monitor the plan’s progression. The manager should ensure all progress meetings are scheduled and occur on time. Progress toward goals should be documented and discussed, seeking to identify why improvements have or have not been made.

      If an employee responds positively an meets all plan objectives, possibly before the expiration date of the plan, the employer should formally close the PIP, recognize the employee's success and allow the employee to continue employment.

      If an employee is unable to improve or if his or her performance worsens, the PIP should be closed, and a possible reassignment, demotion or termination should be considered, based on the specific circumstances.

      Properly planned and executed PIPs can be an effective way to retain an employee who may have potential but falls short in certain areas and can be an important piece of an employee discipline program.

      Lauren Sims is the article’s author and the Director of Human Resources.

      Whenever you require professional Human Resources or Payroll guidance to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, contact us for a no-obligation consultation.

      eqHR Solutions provides professional, tactical and strategic human resources support; ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California.

      Physical Requirements and Job Descriptions


      Physical Requirements and Job Descriptions

      (LANGUAGE FOR ADA COMPLIANT JOB DESCRIPTIONS)



      Many employers have written job descriptions for positions at their companies. However, most companies don’t realize that including the physical requirements and working conditions of a position is as important as the duties and qualifications. If there are environmental, psychological, and or physiological requirements that applicants or employees must meet, these should be included in the job description.

      Documenting the physical requirements and working conditions is useful in determining accommodations under the Americans with Disabilities Act (ADA). It is also helpful in defending a claim of disability discrimination.  When a charge of discrimination is brought under the ADA, and initial issue will be whether the disabled individual could perform not only the essential functions of the position with or without reasonable accommodation but could also perform the physical requirements. 

      When listing physical requirements, a task should state that specific physical exertion, such as lifting, standing, bending, or reaching, is required. Remember to consider whether a process is truly an essential part of a task.

      When writing job descriptions, it is very important to use the correct language.  Certain words can exclude individuals with disabilities.  It is better to select words that convey the actual requirements of the job without limiting the physical demands to certain abilities.  The following table contains examples of words that tend to be exclusionary and substitutes for these words. 

      If a physical demand is not essential in the performance of the job, then reference to that demand should be omitted.

      Amount of Time
      Wording
      None
      Omit from Job Description
      Under 1/3
      Seldom to Occasionally
      1/3 to 2/3
      Occasionally to Frequently
      Over 2/3
      Constantly

      Physical Demand
      ADA Compliant Words
      Job Description Language Example
      Stand or Sit
      Stationary position
      Must be able to remain in a stationary position 50% of the time.
      Walk
      Move, Traverse
      The person in this position needs to occasionally move about inside the office to access file cabinets, office machinery, etc.
      Use hands/fingers to handle or feel
      Operate, Activate, Use, Prepare, Inspect, Place, Detect, Position
      Constantly operates a computer and other office productivity machinery such as a calculator, copy machine and computer printer.
      Climb (stairs/ladders) or balance
      Ascend/Descend, Work atop, Traverse
      Occasionally ascends/descends a ladder to service the lights and ceiling fans
      Stoop, kneel, crouch or crawl
      Position self (to), Move
      Constantly positions self to maintain computers in the lab, including under the desks and in the server closet
      Talk/hear
      Communicate, Detect, Converse with, Discern, Convey, Expresse oneself, Exchange information
      The person in this position frequently communicates with students who have inquiries about their tuition bill or financial aid package. Must be able to exchange accurate information in these situations.
      See
      Detect, Determine, Perceive, Identify, Recognize, Judge, Observe, Inspect, Estimate,
      Assess
      Must be able to detect funnel clouds from long distances.
      Taste/Smell
      Detect, Distinguish, Determine
      Occasionally must be able to distinguish sweet and bitter flavors when creating desserts for Applewood customers.
      Carry weight, lift
      Move, Transport, Position, Put, Install, Remove
      Frequently moves Audio/Visual equipment weighing up to 50 pounds across campus for various classrooms and events needs.
      Exposure to work environments
      Exposed, work around
      Constantly works in outdoor weather conditions.

      Source: Office of Human Resources - Mott Community College

      Lauren Sims is the article’s author and the Director of Human Resources.

      eqHR Solutions provides professional, tactical and strategic human resources support; ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California.

      Thursday, June 21, 2018

      Minimum Wage Changes Effective July 1, 2018 - Are Your Postings Up to Date?


      There are multiple labor law and minimum wage changes going in to effect to July 1. This is a good time to make sure all your labor law postings are up to date:

      Minimum Wage Changes Effective July 1, 2018


      City

      New hourly rate


      Los Angeles (City and County), Malibu, Pasadena, Santa Monica (26 or more employees)



      $13.25

      Los Angeles (City), Malibu, Pasadena, Santa Monica (25 or fewer employees)


      $12.00

      West Hollywood (for 25 or fewer employees)


      $12.00

      Belmont (all)


      $12.50

      El Cerrito (all)


      $13.60

      Emeryville (55 or fewer employees)


      $15.00

      San Francisco (all)


      $15.00

      Milpitas (all)


      $13.50

      San Leandro (all)


      $13.00



       New July 1st Posting Requiements

      • Santa Monica- 72 hours or 9 days paid sick leave beginning July 1, 2018.
      • San Francisco- The Consideration of Salary History Ordinance bans employers—including City contractors and subcontractors—from considering the current or past salary of an applicant in determining whether to hire the applicant or what salary to offer the applicant. The ordinance also prohibits employers from (1) asking applicants about their current or past salary or (2) disclosing a current or former employee’s salary history without that employee’s authorization unless the salary history is publicly available.

      Lauren Sims is the article’s author and the Director of Human Resources.
      eqHR Solutions provides professional, tactical and strategic human resources support; ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California.


      I-9 Best Practices


      With the recent increase in immigration enforcement priorities, employers should ensure that they are correctly completing and maintaining I-9 forms for their employees.

      What is an I-9?


      The I-9 form is used for verifying the identity and employment authorization of individuals hired for employment in the United States. All U.S. employers must ensure proper completion of Form I-9 for everyone they hire for employment in the United States. This includes citizens and noncitizens. I-9 forms must be completed with the first 3 days of employment for a new hire. On the form, an employee must attest to his or her employment authorization. The employee must also present the employer with acceptable documents evidencing identity and employment authorization. The employer must examine the employment eligibility and identity document(s) an employee presents to determine whether the document(s) reasonably appear to be genuine and to relate to the employee and record the document information on the Form I-9. 

      Completing an I-9


      • Verify that the employee completed every applicable field in Section 1 of the I-9 form. 
      • Remember that the employer cannot stipulate which documents an employee must bring in for verification. The employee may provide any document the list allows. Employees need to provide either one item from List A or one item each from List B and List C.
      • Employees with an "A" number must list it when completing Section 1. 
      • Ensure that employees check one status box (citizen, permanent resident or work-authorized alien).
      • If you need to correct information on the I-9, line out the old text, make an annotation, and sign and date it. Use the margins to annotate the form and attach an additional sheet if more room is needed.

      I-9 Retention Best Practices


      The following simple steps can clarify best practices for ensuring organizations file and retain their I-9 forms in a manner that is ready for an audit or inspection and that meets both Form I-9 retention requirements. Current employees should always have a Form I-9 on file.
      1. Maintain Separately from Personnel Records- keep in a file (electronic or hard copy) or binder that is accessible only to a few individuals in the human resource department. Supervisors or managers should not have regular access to I-9 forms and documents because national origin, immigration status, marital status and other protected information may be disclosed on these forms or in the documents provided for their completion.
      2. File Active Employee I-9s Alphabetically- Active employee I-9 records are often maintained alphabetically by the last name so that they can be easily audited against a current payroll list.
      3. File Terminated Employee Separately- When an employee is terminated, pull their Form I-9 from the active employee section and determine retention requirements. 
      4. Assess Retention Requirements- Place a sticky note or some other removable notation (do not write on the I-9 form itself) with 2 dates: 
      5. One year after termination date (i.e. if an employee terminates on May 2, 2018, the one year after will be May 2, 2019)
      6. Three years after hire date (i.e. if an employee’s hire date was November 15, 2017, the three years after hire date will be November 15, 2020)
      7. Establish the latest of the two dates above and this is your retention date. The I-9 must be retained until this date.
      8. Organize Terminated Employees' I-9s Chronologically by Retention Date- It is the most efficient to file terminated employees' I-9s chronologically according to their circled retention date.
      9. Shred Terminated Employees' I-9s Past Retention Date

      Auditing I-9s


      If you discover problems with your I-9s, consider taking the following actions: 

      Missing I-9s


      If you have missing I-9s, you should complete the current version of the I-9 as soon as possible. You should not backdate the form when you sign it, although you should indicate the actual date employment began in the relevant section.

      Missing or Incorrect Information on the I-9


      The employer should not make any corrections to Section 1. If you find incorrect or missing information in this section, the employee will need to make any necessary corrections. To do so, the employee should draw a line through the incorrect information, enter the correct or missing information, and initial and date the corrected or missing information.

      If an I-9 for a former employee contains incorrect or missing information, you can attach a signed and dated statement to the existing I-9 identifying the incorrect or missing information in the form and explaining that the I-9 cannot be corrected because the employee is no longer employed by you.

      Employers should follow the same procedure for missing or incorrect information is in Sections 2 or 3. You should not try to conceal changes made to I-9s, either by erasing or covering up existing information. If there are too many errors to correct, you can redo the sections (2 and/or 3) containing errors on a new I-9 with the complete and accurate information, sign and date it with the current date, and staple it to the existing I-9. 

      Whether you correct an I-9 on the existing form or on a new form, you should also always attach a signed and dated explanation of the action taken.

      If Sections 2 or 3 were not completed on the existing form, you should complete them as soon as possible, list the actual date that the person’s employment began and sign and date the section with the current date. Also, attach a signed and dated explanation of the steps taken to correctly complete the I-9.

      Lauren Sims is the article’s author and the Director of Human Resources.

      Whenever you require professional Human Resources or Payroll guidance to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, contact us for a no-obligation consultation.

      eqHR Solutions provides professional, tactical and strategic human resources support; ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California.



      New Test for Independent Contractors in California



      The ABC Test for Independent Contractors


      At the end of April, the California Supreme Court issued its long-awaited opinion in Dynamex Operations West, Inc. v. Superior Court, clarifying the standard for determining whether workers in California should be classified as employees or as independent contractors. The Court held that there is a presumption that individuals are employees, and that an entity classifying an individual as an independent contractor bears the burden of establishing that such a classification is proper under the “ABC test.”

      When classifying an individual as an independent contractor the employer must establish each of the following three factors, commonly known as the “ABC test”:

      A.  that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; and


      B.  that the worker performs work that is outside the usual course of the hiring entity’s business; and

      C.  that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.

      Failure to establish all the above three factors results in a determination that a worker is an employee and thus not an independent contractor.

      In other jurisdictions that have been using the ABC test already, most have agreed that proving “B” is the most difficult. It is often a tough call as to whether a worker’s services are in the employer’s “usual business,” particularly for specialized functions such as marketing or human resources that a company may need to run its business but may or may not be considered essential to its core business. 

      One interpretation used in other states such as Massachusetts is to consider whether the service the worker is performing is “necessary to the business of the employing unit or merely incidental.” Here are some examples:
      • A motor vehicle appraisal company cannot classify an appraiser as an independent contractor because the appraiser is performing an essential part of the appraisal company’s business.
      • A drywall company cannot classify an individual who is installing drywall as an independent contractor because that worker is performing an essential part of the business.
      • Conversely, an accounting firm hires an individual to move office furniture. That worker may be classified as an independent contractor because moving furniture is incidental and not necessary to the accounting firm’s business.
      Application of the ABC test may make it more difficult to classify workers as independent contractors rather than as employees and may make it more difficult for companies to defend that classification.

      Companies that utilize independent contractors should immediately consider whether those workers are properly classified under the ABC test.


      Lauren Sims is the article’s author and the Director of Human Resources.

      Whenever you require professional Human Resources or Payroll guidance to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, contact us for a no-obligation consultation.

      eqHR Solutions provides professional, tactical and strategic human resources support; ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California.



      Monday, May 28, 2018

      Can I Reduce an Employee's Temination Notice Period?



      An employer asks: "Steve gave his two weeks’ notice today, I’m worried he will be disruptive during these 2 weeks and he will contact clients and perhaps take contact information and other company documents. Can we let him go now?”.

      This is a frequent question from employers and usually our answer is “yes,” but there are a couple of things to consider:

      1. If you require two weeks’ notice in your employee handbook, then you can let the employee go immediately, but you must pay out the 2 weeks pay of the notice period.
      2. If you do not require two weeks’ notice, then you should consider the consequences:

        • For the purposes of final pay rules and unemployment insurance, the separation from employment will be considered an involuntary termination and not a voluntary quit. Therefore, you will need to provide the employee with a final check for all wages due, including any accrued and unused vacation or paid time off (PTO) at the time you tell them you are ending their employment. If you were to allow the employee to work the next two weeks, the final wages would be due on the last day of employment, more than 72 hours’ notice was given.
        • The employee will be entitled to unemployment benefits if they file, as the Employment Development Department (EDD) will consider the separation to be “involuntary,” since the employee had stated an intent to work for two additional weeks, and the employer decided to end the employment at an earlier date. If you had allowed the employee to work out the notice period, they would not have been eligible for benefits.
      Employers need to weigh the exposure when deciding to cut a notice period short. If the employee truly poses a risk to the environment and the intellectual property of the business, then it may be worth letting them go immediately.

      Employers also have the option of letting the employee go and just paying out the notice period regardless of their policy, which may be the safest option. However, the financial impact is much less to allow them to file for unemployment. Either way, the employers should ensure they understand the implications.

      Lauren Sims is the article’s author and the eqHR Solutions Director of Human Resources.

      Whenever you require professional Human Resources or Payroll guidance to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, contact us for a no-obligation consultation.

      eqHR Solutions provides professional, tactical and strategic human resources support; ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California.