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On September 30, 2018, Governor Brown signed into law SB 1343 which amends the California Fair Employment and Housing Act and goes into effect January 1, 2019.  This new legislation requires all employers in California who employ 5 or more employees on a regular basis to provide sexual harassment training to all employees, both in supervisory and non-supervisory roles.

Employers have until January 1, 2020, to comply with the new requirements.

In short, employees are required to complete this training within 6 months of starting a position.  Employees in supervisory roles will be required to complete a 2-hour course; employees in non-supervisory roles will be required to complete a 1-hour course.  All employees will be required to complete the training once every two years.

The training can be completed online or in a classroom setting.  It can be integrated with other training sessions that you may require for new employees so long as the curriculum meets the requirements for time and content.

Remember that your required posters and fact sheets will need to be updated.  These posters can be requested directly from the California Department of Fair Employment and Housing.

Per the regulations, the Department will be providing two online training courses: a 2-hour course for supervisors and a 1-hour course for employees in non-supervisory roles.  These interactive courses will include questions that must be answered before a participant can continue the course.  After the course is completed, the Department will provide an option for the participant to save a certificate of completion electronically or print it.

For employees placed with a company through a temporary staffing agency, the responsibility of sexual harassment training falls to the temporary staffing agency.

For seasonal or temporary workers who are to be employed less than 6 months, training must be completed within the first 30 calendar days of being hired or within the first 100 hours of service, whichever occurs first.

Keep in mind that there are additional requirements for sexual harassment and record keeping per Labor Code section 1684 for migrant or agricultural workers and AB 1978 for employees that provide property services such as janitorial services.

We will provide an update when more information becomes available regarding the training courses provided by the State. If you have further questions, or would like alternate solutions besides the State provided ones, please contact us.

 

By Elizabeth Kay, Compliance and Retention Analyst at AEIS

Criminal History and Job Applicants

On September 30, 2018, California Governor Jerry Brown signed legislation (S.B. 1412) specifying that employers, public agencies, private individuals, and corporations (employer) may:

  • Ask employees or applicants about an arrest when they are out on bail or on their own recognizance pending trial.
  • When complying with state, federal, or local law:
    • Conduct criminal background checks for employment purposes.
    • Restrict employment based on criminal history.
    • Seek or receive an applicant’s criminal history report when obtained pursuant to procedures otherwise provided under applicable law.

Additionally, employers may ask an applicant about, or seek from any source, information regarding a particular conviction if any of the following apply (per 12 U.S.C. § 1829, other federal law, federal regulation, or state law):

  • Regardless of whether a particular conviction was expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation:
    • The employer is legally required to obtain information about it;
    • An individual with that particular conviction is legally prohibited from holding the position sought; or
    • The employer is legally prohibited from hiring an individual who has that particular conviction.
  • The applicant would be required to possess or use a firearm in the course of employment.

The law also newly defines the following:

  • A particular conviction is a conviction for specific criminal conduct or a category of criminal offenses prescribed by any federal law, federal regulation, or state law that contains requirements, exclusions, or both, expressly based on that specific criminal conduct or category of criminal offenses.
  • A conviction is a plea, verdict, finding of guilt, regardless of whether a sentence is imposed by the court. However, any adjudication by a juvenile court or any other court order or action taken with respect to a person who is under the process and jurisdiction of the juvenile court continues to be protected.

The law is effective January 1, 2019.

Read CA S.B. 1412

FEHA, Harassment, Training, and Nondisparagement Agreements

On September 30, 2018, California Governor Jerry Brown signed legislation (S.B. 1300) amending the California Fair Employment and Housing Act (FEHA) as follows:

  • By removing the word “sexual” from the protections against harassment and thereby making employers responsible for the acts of nonemployees with respect to all harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action.
  • An employee of an entity subject to the FEHA who is alleged to have engaged in any prohibited harassment may be held personally liable for any act in violation of the law.
  • Employers are authorized to provide bystander intervention training that includes information and practical guidance on how to enable bystanders to recognize potentially problematic behaviors and to motivate bystanders to act when they observe problematic behaviors. The training and education may include exercises to provide bystanders with the skills and confidence to intervene as appropriate and to provide bystanders with resources they can call upon that support their intervention.
  • In exchange for a raise or bonus, or as a condition of employment of continued employment, employers are prohibited from requiring the execution of a release of a claim or right under the FEHA or from requiring an employee to sign a nondisparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment. An agreement or document in violation of either of those prohibitions is contrary to public policy and unenforceable.

The law is effective January 1, 2019.

Read CA S.B. 1300

Home Care Aide Registry and Disclosure of Personal Information

On September 30, 2018, California Governor Jerry Brown signed legislation (A.B. 2455) requiring, for any new registration or renewal of registration of a home care aide occurring on and after July 1, 2019, the State Department of Social Services to provide, upon request, a labor organization an electronic copy of a registered home care aide’s name, telephone number, and cellular telephone number. The department must also establish a simple opt-out procedure that would allow a home care aide to prohibit it from sharing his or her information and would require the department, at the time of registration or renewal of registration, to inform a home care aide how to use the simple opt-out procedure.

The law also prohibits labor organizations from using or disclosing the shared information, with exception.

The law is effective January 1, 2019.

Read CA A.B. 2455

Lactation Accommodation in the Workplace

On September 30, 2018, California Governor Jerry Brown signed legislation (A.B. 1976) specifying that an employer who makes a temporary lactation location available to an employee is in compliance with the state’s workplace lactation accommodation requirements if all of the following conditions are met:

  • The employer is unable to provide a permanent lactation location because of operational, financial, or space limitations.
  • The temporary lactation location is private and free from intrusion while an employee expresses milk.
  • The temporary lactation location is used only for lactation purposes while an employee expresses milk.
  • The temporary lactation location otherwise meets the requirements of state law concerning lactation accommodation.

An agricultural employer, is in compliance with the law if it provides an employee wanting to express milk with a private, enclosed, and shaded space, including, but not limited to, an air-conditioned cab of a truck or tractor.

Additionally, if an employer can demonstrate to the California Department of Labor that the requirement to provide the employee with the use of a room or other location, other than a bathroom would impose an undue hardship when considered in relation to the size, nature, or structure of the employer’s business, then an employer must make reasonable efforts to provide an employee with the use of a room or other location, other than a toilet stall, in close proximity to the employee’s work area, for the employee to express milk in private.

The law is effective January 1, 2019.

Read CA A.B. 1976

Mandatory Placement of Women on Board of Directors

On September 30, 2018, California Governor Jerry Brown signed legislation (S.B. 826) requiring all of the following:

  • By no later than the close of the 2019 calendar year, a publicly held domestic or foreign corporations (corporation) whose principal executive offices (per its SEC 10-K form) are located in California must have at least one female on its board of directors.
  • By no later than the close of the 2021 calendar year, corporations must comply with the following, as applicable:
    • If its number of directors is six or more, then the corporation must have a minimum of three female directors.
    • If its number of directors is five, then the corporation must have a minimum of two female directors.
    • If its number of directors is four or fewer, then the corporation must have a minimum of one female director.

According to the law, a female is an individual who self-identifies her gender as a woman, without regard to the individual’s designated sex at birth. The California Secretary of State will impose the following fines for violations:

  • $100,000 for failure to timely file board member information with the Secretary of State.
  • $100,000 for a first violation.
  • $300,000 for a second or subsequent violation.
  • Each director seat required to be held by a female, which is not held by a female during at least a portion of a calendar year, is a violation. However, a female director having held a seat for at least a portion of the year is not a violation.

The law is effective January 1, 2019.

Read CA S.B. 826

Settlement Agreements and Confidentiality

On September 30, 2018, California Governor Jerry Brown signed legislation (S.B. 820) prohibiting a provision in a settlement agreement that prevents the disclosure of factual information relating to any of the following claims that are filed in a civil or administrative action:

  • Sexual assault.
  • Sexual harassment.
  • Workplace harassment or discrimination based on sex.
  • Retaliation for reporting harassment or discrimination based on sex.

However, a provision that shields the identity of the claimant and all facts that could lead to the discovery of his or her identity, including pleadings filed in court, may be included within a settlement agreement at the claimant’s request. This does not apply if a government agency or public official is a party to the settlement agreement.

Under the law, any provision within a settlement agreement that prevents the disclosure of factual information related to the claim entered into on or after January 1, 2019, is void as a matter of law and against public policy.

The law is effective January 1, 2019.

Read CA S.B. 820

Sexual Harassment and Waiver of Right of Petition or Free Speech in Contracts

On September 30, 2018, California Governor Jerry Brown signed legislation (A.B. 3109) making a provision in a contract or settlement agreement void and unenforceable if it waives a party’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or sexual harassment.

The law is effective January 1, 2019.

Read CA A.B. 3109

Sexual Harassment Training Modifications

On September 30, 2018, California Governor Jerry Brown signed legislation (S.B. 1343) modifying the California Fair Employment and Housing Act (FEHA) sexual harassment training requirements as follows:

  • By January 1, 2020, an employer with five or more employees (rather than 50 or more) must provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees and at least one hour of classroom or other effective interactive training and education regarding sexual harassment to all nonsupervisory employees in California within six months of hire. The law provides the following additional provisions:
    • Employers may provide this training in conjunction with other training provided to employees.
    • The training may be completed by employees individually or as part of a group presentation, and may be completed in shorter segments, as long as the applicable hourly total requirement is met.
    • An employer who has provided this training and education to an employee after January 1, 2019, is not required to provide training and education by the January 1, 2020, deadline.

After January 1, 2020, each covered employer must provide sexual harassment training and education to each employee in California once every two years.

  • Beginning January 1, 2020, for seasonal and temporary employees, or any employee that is hired to work for less than six months, an employer must provide training within 30 calendar days after the hire date or within 100 hours worked, whichever occurs first. For temporary employees who are employed by a temporary services employer, to perform services for clients, the training must be provided by the temporary services employer, not the client.
  • Beginning January 1, 2020, sexual harassment prevention training for migrant and seasonal agricultural workers must be consistent with training for nonsupervisory employees.

Employers may develop their own training module or use the California Department of Fair Employment and Housing’s training which it will develop and post on its website. The department will also make existing informational posters, fact sheets, as well as the online training courses regarding sexual harassment prevention available online and in alternate languages.

The law is effective January 1, 2019.

Read CA S.B. 1343

Talent Agencies and Sexual Harassment

On September 30, 2018, California Governor Jerry Brown signed legislation (A.B. 2338) requiring the following:

  • A talent agency must provide educational materials on sexual harassment prevention, retaliation, and reporting resources and nutrition and eating disorders to its artists. These educational materials must be in a language the artist understands, and would require the licensee, as part of the application for license renewal, to confirm with the California Labor Commissioner that it has and will continue to provide the relevant educational materials.
  • Prior to issuing a permit to employ a minor in the entertainment industry, an age-eligible minor and the minor’s parent or legal guardian must receive and complete training in sexual harassment prevention, retaliation, and reporting resources. A talent agency must also request and retain a copy of the minor’s entertainment work permit prior to representing or sending a minor artist on an audition, meeting, or interview for engagement of the minor’s services.

The law also makes it a violation of existing laws for a talent agency to fail to comply with the education and permit retention requirements and authorizes the commissioner to assess civil penalties of $100 for each violation.

The law is effective January 1, 2019.

Read CA A.B. 2338

Information Privacy and Connected Devices

On September 28, 2018, California Governor Jerry Brown signed legislation (S.B. 327) requiring manufacturers of a connected device to equip it with a reasonable security feature that is appropriate to the nature and function of the device, appropriate to the information it may collect, contain, or transmit, and designed to protect the device and any information it contains from unauthorized access, destruction, use, modification, or disclosure.

Under the law, a connected device is any device, or other physical object that is capable of connecting to the Internet, directly or indirectly, and that is assigned an Internet Protocol address or Bluetooth address. Additionally, a manufacturer is the person who manufactures, or contracts with another person to manufacture on their behalf, connected devices that are sold or offered for sale in California. A contract with another person to manufacture on their does not include a contract only to purchase a connected device, or only to purchase and brand a connected device.

The law is effective January 1, 2020.

Read CA S.B 327

Personal Information

On September 28, 2018, California Governor Jerry Brown signed legislation (S.B. 244) implementing additional privacy protections for an individual’s personal information. The law requires that information or documents obtained by a California city, county, or other local agency for local identification card issuance may only be used to administer the ID card program or policy. It may not be used to for discriminatory purposes, be otherwise disclosed except in response to a subpoena for individual records, is exempted from disclosure and is not public record under the California Public Records Act.

Moreover, the law provides the following protections:

  • Documents provided by applicants to prove identity or residency may not be disclosed except in response to a subpoena for individual records in a criminal proceeding or pursuant to a court order, or in response to a law enforcement request to address an urgent health or safety need.
  • The use of a driver’s license issued under these provisions is prohibited to be used evidence of an individual’s citizenship or immigration status for any purpose.
  • Where a drivers’ license states, “This card is not acceptable for official federal purposes. This license is issued only as a license to drive a motor vehicle. It does not establish eligibility for employment, voter registration, or public benefits,” all of the following are violations:
    • To discriminate based on this type of license.
    • Under the Unruh Civil Rights Act, for a business establishment to discriminate against a person because he or she holds or presents this type of license.
    • Under the California Fair Employment and Housing Act, for an employer or other covered person or entity (employer) to discriminate against a person because he or she holds or presents this type of license, or for an employer to require a person to present a driver’s license, unless possessing a driver’s license is required by law or by the employer and is permitted by law. However, this protection does not limit or expand an employer’s authority to require a person to possess a driver’s license.

The law does not alter an employer’s federal rights or obligations regarding obtaining documentation evidencing identity and authorization for employment. Any action taken by an employer that are required by the federal Immigration and Nationality Act are not violations.

The law is effective January 1, 2019.

Read CA S.B. 244

CCPA Amended

On September 23, 2018, California Governor Jerry Brown signed legislation (S.B. 1121) amending the state’s Consumer Privacy Act of 2018 (CCPA) as follows:

  • It retained the CCPA’s operative date of January 1, 2020 but made the act immediately effective. According to the bill, the need for the immediate effective date is to prevent confusion that could be created if local laws regarding the collection and sale of personal information were enacted prior to January 1, 2020 and were in conflict with the CCPA.
  • The Attorney General is required to draft the CCPA’s implementing regulations. However, S.B. 1121 provides these regulations are not required to be in place until July 2, 2020. Moreover, under the bill, the AG may not bring an action to enforce the law until six months after the final regulations are published or July 1, 2020, whichever is earlier.
  • Adding more exceptions to the CCPA application, for example, some clinical trials and Confidentiality of Medical Information Act covered healthcare providers (but not under all circumstances).
  • Clarifying that the only private right of action permitted under the act is the private right of action for violations of unauthorized access and exfiltration, theft, or disclosure of a consumer’s nonencrypted or nonredacted personal information and deleting the requirement that a consumer bringing a private right of action notify the Attorney General.
  • Limiting the civil penalty levied by the Attorney General to not more than $2,500 per violation and not more than $7,500 per each intentional violation, and provides an injunction as another available remedy.

The law is effective September 23, 2018.

Read CA S.B. 1121

Petroleum Facilities, Rest Breaks, and Safety Positions

On September 20, 2018, California Governor Jerry Brown signed legislation (A.B. 2605) exempting employees who hold safety-sensitive positions (those where duties reasonably include responding to emergencies in the facility and carrying communication devices) at a petroleum facility from the rest and recovery period requirements. The exemption only applies to employees who are subject to California Industrial Welfare Commission Order No. 1 and are covered by a collective-bargaining agreement. However, for any rest or recovery period during which an employee was interrupted, or forced to miss, the employer is required to pay one additional hour of compensation to the employee at his or her regular rate of pay.

The law became effective September 20, 2018, remains in effect until January 1, 2021, and then is repealed.

Read CA A.B. 2605

Occupational Injury and Illness and Recordkeeping Violations

On September 19, 2018, California Governor Jerry Brown signed legislation (A.B. 2334) regarding workplace injury and illnesses and reporting standards. Under the act, Cal/OSHA law at Cal. Labor Code § 6317 newly defines what a violation occurrence is, as related to the statute of limitations in a Cal/OSHA recordkeeping violation. Specifically, under the law an occurrence continues until it is corrected, or until the California Division of Occupational Safety and Health (division) discovers the violation, or until the duty to comply with recordkeeping requirement no longer exists. Thus, the Cal/OSHA enforcement branch may issue a citation for a recordkeeping violation which occurred any time during the Cal/OSHA five-year recordkeeping period because this new law defines a violation occurrence as continuing until it is corrected. Additionally, the law revised the Cal. Labor Code § 6317 language to state that a citation or notice will not be issued by the division more than six months after the occurrence of the violation. Prior to the bill, the entirety of § 6317 merely stated that, “no citation or notice will be issued by the division for a given violation or violations after six months have elapsed since occurrence of the violation.”

The law is effective January 1, 2019.

Read CA A.B. 2334

 

Originally posted on thinkhr.com

You have a business and it is growing – Congratulations!

As your company grows and you hire more employees, there are milestones that you will hit.  Some of these milestones come with additional responsibilities that you need to attend to, such as Cobra, HCSO, FMLA, Sexual Harassment Prevention Training and the Affordability Care Act’s Large Employer Mandate.

For example, if you are a company based in California and offer an employee benefits plan that includes medical insurance, you are obligated to allow former or terminated employees and their enrolled dependents to enroll in Cal-COBRA if they are no longer eligible to be enrolled in your plan.  Once you reach 20 employees or more for an average of 50% or more of the previous calendar year, then you are obligated to start offering enrollment in Federal COBRA for those plan participants and enrolled dependents if they are no longer eligible to be enrolled in your plan.

Additionally, if you have any employees working in the City of San Francisco, you would also need to comply with the Health Care Security Ordinance (HCSO).  However, these two things would not happen at the same time because while they both require you have 20 or more employees before you have to comply, they count those employees differently, and over a different length of time.

Federal COBRA counts employees by their classification.  A full-time employee is counted as 1, and part-time employees are counted in fractions.  So you may have 15 full-time employees, and 5 part time employees and you would NOT be subject to Federal COBRA because your part time employees work an average of 20 hours per week, meaning all together they only count as 2.5 full-time equivalents which when combined with your full-time employees puts your count at 17.5.

The HCSO counts employees by head count, and they do it per quarter.  So if you have 19 employees during one quarter of the year, you don’t need to comply.  But if you have 20 employees for at least 13 weeks of the following quarter, you would need to comply.

Is your head spinning yet?

As you move further along and you reach 50 employees, there are more regulations that may now be applied to your company.  They are the Family Medical Leave Act (FMLA), Sexual Harassment Prevention Training for California businesses, and the Pay or Play provision of the Affordable Care Act.  As one might expect, each regulation counts employees in a different way.

When you have had 50 or more employees over 20 weeks during the current or previous calendar year, you are subject to FMLA.  The weeks do not have to be consecutive weeks.  Additionally, FMLA counts the employees on your payroll register even if they are not being paid.  If they are on your payroll register, they are counted.  Each person is counted as 1, regardless of the number of hours worked.

For sexual harassment prevention training in California, once you have 50 or more employees (regardless of full-time or part time status) for 20 or more consecutive weeks, you have to begin offering training for your management staff every 2 years, and within 6 months of promoting an employee to a managerial position.

The Applicable Large Employer or ALE classification under the Affordable Care Act counts employees in yet a different way.  With regards to determining ALE status, you generally count each full-time employee as 1, and for part-time, seasonal, and variable-hour employees you count the number of hours they all worked collectively during a month (do not include more than 120 hours for any employee), then divide the total hours by 120 hours to get how many Full-Time Equivalent Employees (FTEs) you have.  You then add the number of full-time employees, to your FTE’s to get your total employee count.  If you average 50 or more employees during the calendar year, you are considered an ALE the following tax year.  For example, if you average 50 or more employees during the 2018 calendar year, you would be subject to the Pay or Play Mandate and the reporting requirements associated with it for the year 2019.

If your employee count stays at 50 or above in 2019, you would continue to be an ALE with all associated requirements in 2020.  If your employee count dips below 50 in 2019, then you would not be considered an ALE in the year 2020.

The Pay or Play Mandate (Employer shared responsibility) means that as an ALE you are required to offer minimum value, affordable coverage to your full-time employees and their dependent children, or potentially face a penalty from the IRS.

No one is an expert in all things, which is likely why your business is doing well and thriving: because you fulfill a need or expertise in the area that you specialize in.  As a successful business owner you know it is advantageous to have strong partners in your corner to help lend their strengths to your areas of weakness.

Having a strong benefits advisor to assist you in navigating these hurdles, speed bumps, and curves in the road is essential.  Whether you have the resources to handle these regulations in-house, or if you need someone to recommend a trustworthy third party vendor to handle it for you, we are pleased to be able to fulfill that need for you.

 

by Elizabeth Kay

Lately, there’s been a big focus on America’s opioid addiction in the news. Whether it’s news on the abuse of the drug or it’s information sharing on how the drug works, Americans are talking about this subject regularly. We want to help educate you on this hot topic. Check out this short video for more!

Workplace rules are back, baby!

Peter Robb, General Counsel for the National Labor Relations Board (and my new hero), issued a memorandum on Wednesday that employers should love. Mr. Robb has declared that nine standard employer policies will now be presumed lawful under the National Labor Relations Act.

The memorandum was based on the Board’s decision in The Boeing Company, issued in December 2017. Before Boeingthe NLRB under the Obama Administration had taken the position that these policies were unlawful because they could have a “chilling effect” on employees’ exercise of their rights to engage in “protected concerted activity” under Section 7 of the NLRA.

So, without further ado, here are nine standard employment policies that the Board says are legal again, absent evidence that they’re being applied to protected concerted activity. (Welcome back!) I’ll also go over workplace rules that continue to violate the NLRA, and workplace rules that will be evaluated on a case-by-case basis.

Workplace rules that are presumed lawful

No. 1: Civility rules. The Equal Employment Opportunity Commission must be happy about this one because their proposed guidance on workplace harassment recommended civility training for employees as a harassment-prevention measure. The EEOC had to include a footnote that its recommendation could be problematic from an NLRA standpoint. (I’d been recommending to clients that they restrict civility training to management until this conflict between the EEOC and the NLRB was resolved.)

Conflict hereby resolved! According to the General Counsel, an expectation of civility does not interfere with employees’ right to engage in protected concerted activity because they can almost always criticize the employer, or individual supervisors, in a civil manner.

No. 2: No photography, no recording. Although there are occasions when employees may want to photograph or record working conditions or labor protests, the General Counsel says, for the most part rules prohibiting unauthorized recordings have no impact on Section 7 rights and therefore are lawful. However, “a ban on mere possession of cell phones at work may be unlawful where the employees’ main method of communication during the work day is by cell phone.” In other words, the ban should be on unauthorized recording, not on possession of a device that can record.

No. 3: Bans on insubordination, non-cooperation, adversely affecting operations. “An employer has a legitimate and substantial interest in preventing insubordination or non-cooperation at work. Furthermore, during working time an employer has every right to expect employees to perform their work and follow directives.”

Duh. It’s sad that this even had to be said, but thank you, General Counsel Robb, for saying it.

(Of course, if the “insubordination” is engaging in protected concerted activity, then the application of the rule would violate the NLRA.)

No. 4: Bans on disruptive behavior. Employers again have the right to prohibit “fighting, roughhousing, horseplay, tomfoolery, and other shenanigans.” Also, “yelling, profanity, hostile or angry tones, throwing things, slamming doors, waving arms or fists, verbal abuse, destruction of property, threats, or outright violence.”

There may, however, be instances when some of this activity is associated with a strike or walkout and may be protected. And you can’t ban strikes or walkouts.

No. 5: Protecting confidential and proprietary information, and customer information. Yes, employers, it is again legal for you to prohibit employees from disclosing your confidential and proprietary information. “In addition, employees do not have a right under the Act to disclose employee information obtained from unauthorized access/use of confidential records, or to remove records from the employer’s premises.” (Emphasis added.) To be lawful under the new standard, the employer should ban the unauthorized access or disclosure of confidential employee information rather than flatly banning disclosure of any employee information.

No. 6: Bans on defamation or misrepresentation. According to the General Counsel, because “defamatory” statements or “misrepresentations” imply some level of deliberate falsehood or misleading, “Employees will generally understand that these types of rules do not apply to subjectively honest protected concerted speech.”

No. 7: Bans on unauthorized use of company logo or intellectual property. “Most activity covered by this [type of] rule is unprotected, including use of employer intellectual property for unprotected personal gain or using it to give the impression one’s activities are condoned by the employer,” the memorandum says. And I love this:

“Employers have a significant interest in protecting their intellectual property, including logos, trademarks, and service marks. Such property can be worth millions of dollars and be central to a company’s business model. Failure to police the use of such property can result in its loss, which can be a crippling blow to a company. Employers also have an interest in ensuring that employee social media posts and other publications do not appear to be official via the presence of the employer’s logo.”

No. 8: Requiring authorization to speak for the employer. Yet another “duh” moment: “Employers have a significant interest in ensuring that only authorized employees speak for the company.”

No. 9: Bans on disloyalty, nepotism, or self-enrichment. Even the Obama Board didn’t have much of a problem with employer rules that banned (or required disclosure of) conflicts of interest, or employees who had financial interests in competitors of the employer. The Trump Board agrees.

Workplace rules that are presumed unlawful

The memorandum lists two types of employer rules that will continue to be found unlawful, and I believe most employers are already aware of these:

  • Prohibiting employees from discussing or disclosing information about wages, benefits, or other conditions of employment.
  • Prohibiting employees from joining outside organizations or “voting on matters concerning” the employer. 

These rules are directly related to activity protected by Section 7 of the NLRA. Therefore, they are presumed unlawful, and NLRB Regional Offices are instructed to issue complaints “absent settlement.” (The Regional Offices do have the option of asking for advice from the Office of the General Counsel if they think special circumstances apply.)

Workplace rules that require case-by-case assessment

The memorandum also discusses some “gray area” rules, which may or may not violate the NLRA depending on the circumstances. The following types of rules will be submitted to the Office of the General Counsel and evaluated on a case-by-case basis:

  • “Broad conflict-of-interest rules that do not specifically target fraud and self-enrichment . . . and do not restrict membership in, or voting for, a union.”
  • Broad or vague “employer confidentiality” rules that don’t focus on confidential and proprietary, or customer, information and that don’t specifically restrict Section 7 activity (discussion of wages, benefits, or other terms and conditions of employment).
  • Rules prohibiting disparagement of the employer, as opposed to disparagement of employees.
  • Rules restricting use of the employer’s name, rather than just its logo or trademarks.
  • Rules that prohibit employees from speaking to the media or third parties at all (as opposed to communications to third parties where the employee purports to represent the employer).
  • “Rules banning off-duty conduct that might harm the employer.” A little vague.
  • “Rules against making false or inaccurate statements (as opposed to rules against making defamatory statements) . . ..”

For the past several years, employers have been struggling to comply with the Board’s interpretations while retaining the right to maintain some semblance of order in their workplaces. The General Counsel’s memorandum is a giant step in the right direction.

Article written by: Robin Shea, partner with leading national labor and employment law firm (and ThinkHR strategic employment law partner) Constangy, Brooks, Smith & Prophete, LLP

Originally posted on thinkhr.com

Vince Murdica, chief revenue officer at ThinkHR, discusses what it takes to become scalable and sustainably staff companies through bursts of rapid growth.

I’ve seen it in my own career: When companies go through rapid growth — quickly moving from 50 to 100+ employees — things start to get shaky. This period of acceleration can be compared to when a jet breaks through the sound barrier. The flight is smooth until that moment, then the plane rattles violently and feels like it’s going to break apart. But when it gets through to the other side, it’s smooth skies again and you’re now flying even faster and higher.

There is a loss of control as a company gets bigger, and not all leaders can handle it. Some career entrepreneurs prefer to start companies, grow them to around 50 people, then sell them because they are uncomfortable with the growing pains that inevitably happen beyond this point. They will do it again and again.

Other leaders are better at growth and mastering scalability. They have what it takes to grow their companies over the 100-person mark. I believe these leaders consistently do three key things when growing their staff:

#1 Hire People You Trust

When you scale up, the ability of senior management to be involved in every detail — to be in all the meetings, involved with every decision, leading all the major initiatives — breaks down. There is a human limit to how many one-on-one relationships you can manage, so your ability to manage as you gain more direct reports goes down. When growing from 50 to 100 employees, new layers of management must get formed.

At this point, delegation becomes critical, or productivity will come to a screeching halt. That’s why it’s crucial to hire managers and other people you can trust. This takes time and effort, but I believe the key to establishing this environment of trust is “hiring slow and firing fast.”

#2 Delegate Responsibility and Authority

Once you’ve hired great, trustworthy people, don’t ever delegate responsibility without also delegating authority. Your staff needs to keep everything moving while you are doing other things for the organization. They can’t wait around for you to make decisions. Hand them the power to innovate, solve problems, and reach the goals you’ve set out for them.

A mantra I borrowed from a mentor is, “I don’t mind giving speeding tickets, but if I need to give too many parking tickets, we have a problem.”

I would rather an employee charge ahead and make an informed, strategic decision that turns out to be a mistake instead of hold back and move too cautiously. Everyone on my team feels empowered. We get it done and we don’t wait. (Wait is a four-letter word.) The burden on leadership is to be sure that goals and strategy are clear, so people can move quickly, with confidence and creativity.

#3 Learn from Mistakes

To me, business is like a sport. It’s a competition. There is a winner and a loser and it’s a real-world game. Approaching it that way enforces a specific mindset around it. To use football as an example: On Monday you review the film from Sunday’s game and see how you can improve. You practice all week to make tweaks, try new plays, and fix what’s broken. Then your next game is a fresh opportunity to be a new team with a new opponent.

In business, like in any sport, we are going to make mistakes. That’s how we learn, but what’s important is that we don’t make those same mistakes again. We get into the mindset of always improving. Failing isn’t necessarily bad — it means your people aren’t afraid to innovate and achieve.

Smooth Skies Ahead

Do these three things — trust, delegate, and learn — which are so core to building a scalable team, and soon your company will be breaking through the sound barrier and once again flying smooth skies.

In the end, growth can be fun, and winning is really fun. Your team will be fulfilled and feel like they are making an impact. So to mix metaphors: Go let your team get some speeding tickets!

 

Originally published by www.thinkhr.com

Summer internships offer students opportunities to gain real-world experience and hands-on career development. Conversely, internship programs give employers access to highly motivated and educated young workers and give junior managers more experience training and supervising. There are benefits for everyone involved.

However, there are some potential legal and administrative pitfalls that many employers overlook. One of the largest issues is determining what interns should be paid – or not paid.

The Department of Labor issued new guidance on January 5, 2018, that gives employers more flexibility in deciding whether to pay interns. A seven-criteria test is now used to determine if an internship may be unpaid, but the biggest change is that not all factors need to be met – no single factor is decisive, and the determination is made on the unique circumstances of each case.

If the job training program primarily provides professional experience that furthers a student’s educational goals, a student may not be considered an employee entitled to compensation. However, if students are doing work usually done by employees and are not receiving training and close mentoring, they should be paid wages. If there is any doubt, the best approach is to pay the student.

4 Reasons to Pay Interns

However, while it’s now legally permissible to classify more interns as unpaid, there are still compelling reasons to pay interns even when the internship does meet the criteria for unpaid status.

Unpaid internships tend to exclude students from lower- and middle-income backgrounds, who cannot afford not to work at paid jobs during the summer. In addition, they may need to pay up to several thousand dollars for course credit, in addition to coming up with funds for housing, clothing, and transportation related to the internship. This can put internships out of reach for some of the students who can benefit from them the most.

Unpaid internships may devalue the work paid employees are doing. After all, interns are working alongside regular employees — often doing some of the same tasks — and not being compensated for that work. This may send the message to employees that their work, or time, is not valued.

Unpaid internships can create a negative impression of your company. Customers or the community may see you as taking advantage of these students, which is not the message you want to portray. It’s a good community relations move to offer youth paid opportunities.

The work the unpaid intern is doing may actually be work that should be compensable. Improperly classifying an internship and not paying the student could result in wage claims that include back pay, penalties, and fines. To mitigate those risks, once again, the best approach is to pay the student.

Hiring summer students is a great way to help youth learn what it takes to be successful in business while helping employers get special projects completed. Plan ahead and structure your program so that your summer internship program is a great experience for everyone.

 

by Rachel Sobel
Originally posted on thinkHR.com

Managing pay can be tricky. Handled incorrectly, pay can create problems for an employer — everything from the inability to attract the right candidates and losing great employees to the competition to presenteeism (employees who are physically in the workplace but not engaged in their work), employee relations issues, compliance audits, and lawsuits. These outcomes impact productivity. They infect the company culture. And they tarnish the employer brand.

In your role as a trusted advisor to clients who may be struggling with their total compensation programs, you need to be ready to help them determine how to make the right decisions. This requires you to be aware of new trends while also helping clients manage risk by complying with wage and hour rules.

Pay Versus Employee Motivation and Retention

Many employee engagement reports note that pay doesn’t impact motivation as much as other work factors, such as:

  • The quality of the company and its management.
  • Belief in the organization’s products.
  • Alignment with the company’s mission, values, and goals.
  • Ability to make a meaningful contribution.
  • Ability to develop new professional skills.

IBM’s Smarter Workforce Institute’s 2017 study looked at employees’ decisions to leave their jobs and found that the three generations comprising most of today’s workforce would be open to considering new job opportunities for better compensation and benefits: Millennials at 77 percent, Generation X at 78 percent, and Baby Boomers at 70 percent. Those are big numbers, and they shouldn’t be ignored when designing pay plans.

Further, while pay may not be a motivator, it can be a powerful dissatisfier when employees believe that they aren’t being paid correctly for the value they are bringing to the organization, or at the market value of their jobs. Worse yet is the perceived — or real — belief that their pay is lower than what their co-workers are earning. In some markets, this problem is genuine, as companies in hot labor markets struggle with paying new people more than current employees, causing pay compression. Employees do talk and pay information is readily available.

Considering every variable that goes into compensation planning can be complicated. Your clients can start by: setting a compensation strategy to fit their company’s needs and budget; developing compensation programs to fit that strategy, the talent marketplace, and employee demographics; and then administering the compensation program fairly and in compliance with federal, state, and local laws.

Equal Pay Mandates

The Equal Employment Opportunity Commission’s (EEOC) Strategic Enforcement Plan prioritizes enforcing the Equal Pay Act (EPA) to close the pay gap between men and women, and the Trump administration has been silent about changing this direction. This topic is trending, as legislators in more than 40 jurisdictions introduced bills related to equal pay in 2017. California, New York, Massachusetts, and Maryland are setting the pace with laws addressing this issue. These states have set rules that more broadly define the equal pay standard requiring different factors, such as skill, effort, working conditions, and responsibility, in justifying gender pay disparities. These states are also broadening the geographic restrictions for employee pay differentials.

We expect that more states will enact equal pay rules in 2018. Companies should review gender pay differences in their workforce, document the bona fide business reasons for the differences, and correct wage disparities as needed. Permitted differences could include seniority, documented merit performance differences, pay based on quantity or quality of production or sales quotas, or geographic differentials.

Salary History Ban

The issue of pay has traditionally been an inevitable topic of discussion in any job interview. However, in a growing number of places throughout the country, an employer can no longer ask an applicant about his or her salary history. At least 21 states and Washington, D.C., along with several municipalities, have proposed legislation that would prohibit salary history questions. California (effective January 2018), Delaware (effective December 2017), Massachusetts (effective July 2018), and Oregon (effective January 2019) have enacted laws impacting private employers. More bans are expected at both the state and local level.

While the provisions of each law vary, they make it illegal for employers to ask applicants about their current compensation or how they were paid at past jobs. The rationale for these laws stems from the equal pay issue and the premise that pay for the job should be based on the value of the job to the organization, not the pay an applicant might be willing to accept. These laws are designed to reverse the pattern of wage inequality that resulted from past gender bias or discrimination.

For employers, this means:

  • Establishing compensation ranges for open positions and asking applicants if the salary range for the position would meet their compensation expectations.
  • Updating employment applications to remove the salary history information.
  • Training hiring managers and interviewers to avoid asking questions about salary history.

Pay Transparency

Outside of certain industries, the public sector, and unionized environments where pay grades and step increases are common knowledge, historically many employers have had a practice of discouraging employees from openly discussing their compensation. That practice is fast becoming history, due to another notable trend in state legislatures: enacting laws that allow employees to discuss their wages and other forms of compensation with others. Although the provisions of the laws vary, California, Colorado, Connecticut, Delaware, Washington, D.C., Illinois, Louisiana, Maine, Maryland, Michigan, Minnesota, New Hampshire, New Jersey, New York, Oregon, and Vermont now have laws in place allowing pay transparency.

In addition to these state laws, Section 7 of the National Labor Relations Act (NLRA) allows employees to engage in pay discussions as “concerted and protected activities for the purpose of collective bargaining or other mutual aid or protection.” During the Obama administration, the National Labor Relations Board (NLRB) broadly interpreted the NLRA’s Section 7 to side with employees’ rights to discuss wages and other terms and conditions of employment. Unless the Trump administration’s NLRB changes direction on this issue, which is not expected, the clear message for employers is to remove any prohibitions of employees discussing pay or working conditions with others.

Be Vigilant

Employee compensation has always been a hot topic, and this year the temperature will continue to rise. Keep abreast of legislative and regulatory changes that impact pay practices to help your clients stay in compliance with the pay laws that are spreading throughout the country.

Now is a good time to suggest that your clients consider conducting pay audits, updating compensation plans, making compensation adjustments where needed, training managers regarding pay strategy and practice, and communicating the company’s compensation strategy and incentive plans to employees.

 

By Laura Kerekes, SPHR, SHRM-SCPz

Originally posted on thinkHR.com

As the costs of health care soar, many consumers are looking for ways to control their medical spending. Also, with the rise of enrollment in high deductible health plans, consumers are paying for more health care out-of-pocket. From medical savings accounts to discount plans for prescriptions, patients are growing increasingly conscious of prices for their healthcare needs. Price shopping procedures and providers allows you to compare prices so that you are getting the best value for your care.

Why do you need to look beyond your nearby and familiar providers and locations for healthcare? Here’s a hypothetical example: Chris is a 45-year old male in good physical health. During his last check-up he mentions to his doctor that he’s had some recent shortness of breath and has been more tired as of late. His doctor orders an EKG to rule out any problems. If Chris went to his local hospital for this procedure, it would cost $1150. He instead looks online and shops around to find other providers in his area and finds he can get the same procedure for $450 at a nearby imaging center. His potential savings is $700 simply by researching locations.

So where do you start when shopping around for your health care?  A good place to begin is by researching your health plan online. Insurance companies will post cost estimates based on facility, physician, and type of procedure. Keep in mind that these are just estimates and may vary based on what coverage you are enrolled in. Another way to shop is by checking out websites that have compiled thousands of claims information for various procedures and locations to give an estimate of costs. However, deciphering whether a site is reporting estimates based on the “medical sticker price” of charges or rates for private insurance plans or Medicare is difficult.  There are huge differences in prices at different providers for the exact same procedure. This is because contracts between insurance agencies and providers vary based on negotiated amounts. This makes it hard to get consistent pricing information.

Check out these sites that do a great job comparing apples to apples for providers:

  • Healthcare Blue Book
    • What Kelly Blue Book is to cars, Healthcare Blue Book is to medical pricing
  • New Choice Health
    • Reports on pricing of medical procedures, providers, quality of facilities, and customer feedback for healthcare in all 50 states
  • The Leapfrog Group
    • Publishes data on hospitals so patients can compare facilities and costs for treatments and procedures

After compiling all the information on prices and procedures, you can still call and negotiate costs with the location of your care. Fair Health Consumer has tips on how to negotiate with providers and plan for your healthcare needs.

Knowledge is POWER and when you spend time researching and comparing healthcare costs, you are empowering yourself!  Exercising due diligence to plan for you and your family’s medical needs will save you money and give you confidence in your decisions for care.

The Internal Revenue Service (IRS) recently updated its longstanding Questions and Answers about Information Reporting by Employers on Form 1094-C and Form 1095-C that provides information on:

Generally, the Q&A describes when and how an employer reports its offers of coverage and describes the codes that employers should use when completing Form 1094-C and Form 1095-C for calendar year 2016 that are to be filed in 2017. The Q&A should be used in conjunction with the Instructions for Forms 1094-C and 1095-C which provide detailed information about completing the forms.

The updated Q&A provides information on COBRA reporting that had been left pending in earlier versions of the Q&A for the past year. UBA’s ACA Advisor “IRS Q&A About Employer Information Reporting on Form 1094-C and Form 1095-C” reviews the new information and explains other reporting obligations covered under the Q&A.

Reporting Offers of COBRA Continuation Coverage

An offer of COBRA continuation coverage that is made to a former employee due to termination of employment is not reported as an offer of coverage in Part II of Form 1095-C.

If the applicable large employer is required to complete a Form 1095-C for the former employee (because, for example, the individual was a full-time employee for one or more months of the year before terminating employment), the employer should use code 1H, No offer of coverage, on line 14 for any month that the former employee was offered COBRA continuation coverage. For those same months, the employer should use code 2A, Employee not employed during the month, on line 16 for each month in which the individual is not an employee (regardless of whether the former employee enrolled in the COBRA continuation coverage).

An employer that provides COBRA continuation coverage through a self-insured health plan generally must report that coverage for any former employee or family member who enrolls in that COBRA continuation coverage in Part III of the Form 1095-C. Also, the employer may report the coverage on Form 1095-B for any individual who was not an employee during the year and who separately elected the COBRA continuation coverage.

For more information on reporting offers of COBRA continuation coverage due to a reduction in hours (including examples), and self-insured health plan reporting of coverage of spouses and dependents who separately elect to receive COBRA continuation coverage—as well as a complete review of codes that employers should use when completing Forms 1094-C and 1095-C—view UBA’s ACA Advisor, “IRS Q&A About Employer Information Reporting on Form 1094-C and Form 1095-C”.

By Danielle Capilla
Originally published by www.ubabenefits.com

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