the California Employer's report - March 2017
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Did your biggest competitor just expand into your territory? Have two of your best employees recently retired? Did February’s financials go into the red?

What do Good Business Leaders & FBI Agents Have in Common?

Did your biggest competitor just expand into your territory? Have two of your best employees recently retired? Did February’s financials go into the red? Successful business leaders and entrepreneurs know that success requires the resilience to keep moving ahead even when confronted with obstacles and roadblocks.

According to LaRae Quy, FBI agents, also need to be resilient so they can solve cases that have no easy or obvious solution. 

In a great Smart Brief article, Quy explains the eight qualities that resilient people possess and she even explains with examples, how to make each quality work more effectively in your life. Took a quick look to see how many of the resilient traits below, you embody.  

Resilient people are successful because they:

1. Take Responsibility For Their Actions

Resilient leaders do not seek out happiness by relying on others, nor do they blame others for their situation.

2. Develop Good Daily Habits

The way we train ourselves to think, feel, and behave during our regular daily life is exactly the way we will respond when hit with hard times.   

3. Focus On Possibilities

Resilient people are always asking this question: what can I do to change my situation? When they focus on the possibilities that lie before them, they make their own luck. They do what they can with the hand they’ve been dealt, and in doing so, they take control of their life.

4. Are Positive Thinkers

There is a big difference between being an optimist and being a positive thinker. Positive thinkers are not necessarily happy or optimistic. Instead, positive thinkers are blunt realists who look misery right in the eye and confront the most brutal facts of their day without expecting things to change. They adapt to their circumstances without ever losing hope.

5. Prioritize What Is Important

Prioritizing information is a useful resilience tool because it forces your brain to interact with information rather than simply react to it. Lists are an excellent way of forcing different parts of the brain to interact with each other. This also prevents different parts of our brain from fighting against each other for attention and energy.

6. Manage Emotions

Too often, people pretend negative emotions and feelings don’t exist. Ignoring negative feelings is not healthy; nor is wallowing in them. Resilient people hurt when life hands them a rough time, but they never forget that they still have control over their attitude.

7. Reframe Negative Events

Nip negative emotions and reactions in the bud when they first appear. This is when they are the weakest.

8. Find Their Tribe

Friendships are important; they can lift you up, provide security, and prevent slip-ups in both business and life.  “We have a strong instinct to belong to small groups defined by clear purpose and understanding—"tribes." This tribal connection has been largely lost in modern society, but regaining it may be the key to our psychological survival.”

Intrigued by the thought that you have the same resilient traits as an FBI agent?  For  the full story and to see how to make each of these traits work more effectively in your day to day life, click here


      President/CEO

Counsel's Corner: How to Comply With E-Verify Requirements

Under the Immigration Reform and Control Act of 1986 (IRCA), it is unlawful for an employer to hire or continue to employ a person knowing that the person...

Under the Immigration Reform and Control Act of 1986 (IRCA), it is unlawful for an employer to hire or continue to employ a person knowing that the person is not authorized to work in the United States. This law requires that employers verify employment eligibility of all employees by completing a Form I-9.  Failure to comply with these rules subjects employers to substantial penalties.

E-verify, the program operated by the Department of Homeland Security (DHS) in partnership with the Social Security, has become a popular tool by employers to comply with immigration laws and avoid civil monetary penalties. According to the DHS website, more than 600,000 employers now use E-Verify, and over 1,400 companies enroll in the program every week. Certain employers, such as the federal government must by law use E-verify. Although participation in E-Verify is voluntary for most employers, it can be extremely useful.

The E-Verify process begins after an employee is hired to work for pay, and has a completed Form I-9, Employment Eligibility Verification. The next step is for the employer to create a case in E-Verify using the information from the Form I-9. An E-Verify case must be created no later than the third business day after the employee starts work for pay. To enroll in E-Verify, you must provide your company’s basic contact information and agree to follow the rules of the program. After enrolling, you must sign a memorandum of understanding that provides the terms of agreement between your company and the Department of Homeland Security. There is also an interactive Quiz to assure that the terms of agreement are understood.

The Grady Firm P.C helps employers to easily navigate this process by:

Signing up their business with e-verify.

Enrolling Human Resources Department employees in the program and helping them become familiar with the platform.

Facilitating assistance and training materials.

Providing a concise tutorial outlining everything needed to start using E-verify.


The Grady Firm, P.C.

Trainer's Tips: Ten Trillion Gallons of Rain

Ten Trillion Gallons of Rain and Keeping up with the Pace of Change

Last week weather experts predicted 10 trillion gallons of rain to fall on California in just one week’s time!

Last week weather experts predicted 10 trillion gallons of rain to fall on California in just one week’s time! Last time this happened was in December 2014, and at that time it was over a full month’s time. This is enough water to fill 15.1 million Olympic-sized swimming pools or power Niagara Falls for 154 days. Like the weather, companies see change all of the time in areas like the workplace, technology changes, and economies and with our most valued resource, our employees.

Gallup just released the 2017 State of the American Workplace. With more than 100 million full-time employees in the US workforce, only 33% of those employees are engaged at work.
This leaves 66% of employees who are either not engaged or are actively disengaged, which means these employees are either miserable in the workplace or they just show up to work and don’t have the passion their engaged colleagues do. The best companies in the world have a 70% employee engagement rate which translates to significantly higher productivity, profitability, customer satisfaction and less employee turnover. Employee engagement means employees love their jobs and add value to their companies daily.
 
Some might surmise that these figures indicate we have an American leadership approach that simply isn’t working effectively as it should. Do certain skills need to be strengthened or learned? With four generations in the workplace, do we need to arm our employees with the tools to succeed in the workplace? The answer to both of these questions is a resounding yes.

CEA understands that employees today do benefit from training that would enhance their communications, collaboration, critical thinking, creativity and leadership abilities. To assist with the challenges in the workplace today, we have created two training series called Essential Skills for the Workplace and a Leadership Series. We have proudly delivered these workshops to employers, their staff, and business professionals throughout California. These training programs will help you to develop your employees with the skills needed to create a positive workforce with more engaged and productive employees.

Call us today and discover how we can help your company with your training needs and to assist your employees to adjust to the ever-changing demands of the workplace today.

—Jessica Mirabile
    Recruiting Director & Trainer

Holiday Pay & Employee’s on a Leave of Absence

If a holiday falls during a period of time when an employee is out on unpaid Family and Medical Leave Act (FMLA) leave, do you have to pay the employee for that holiday?

Your company offers standard paid holidays to its employees. If one of those holidays falls during a period of time when an employee is out on unpaid Family and Medical Leave Act (FMLA) leave, do you have to pay the employee for that holiday?

Answer: Good news for employers. Whether you need to pay for the holiday depends on your company's policies and practices with respect to other forms of unpaid leave. Specifically, your company needs to treat unpaid FMLA leave the same as other forms of unpaid leave. If employees at your company who are on unpaid leave for non-FMLA reasons are paid for intervening holidays, then so should employees who are on unpaid FMLA leave.

The applicable U.S. Department of Labor regulation provides:

"An employee's entitlement to benefits other than group health benefits during a period of FMLA leave (e.g., holiday pay) is to be determined by the employer's established policy for providing such benefits when the employee is on other forms of leave (paid or unpaid, as appropriate)."

Your company's FMLA and other leave policies should be clear on whether intervening holidays will be paid. It is always a good idea to have qualified employment or benefits counsel review all company policies regarding paid and unpaid leave, not just FMLA leave policies.

This article may spur you to review your employee handbook. When is the last time you had CEA review your handbook?  Give us a call and let us help you communicate all of your policies clearly and accurately to your employees. 

Source: CEA HR Answers Now 29 C.F.R. §825.209(h).

Employee Entitled to Same Position Upon Return From FMLA?

Issue: Louise, an administrative assistant in your finance department, has been out on Family and Medical Leave Act (FMLA) leave for the past two months.

Issue: Louise, an administrative assistant in your finance department, has been out on Family and Medical Leave Act (FMLA) leave for the past two months. The employee who has been filling in for her has been doing a great job, which is making you consider alternative staffing plans. When Louise comes back to work next month, must you return her to her previous position? What are the applicable rules?

Answer: Employers subject to the FMLA have certain obligations with regard to job and benefit restoration. Besides maintaining health benefits for eligible employees on FMLA leave and retaining all accrued benefits while the employee is on leave, an employer is also obligated to allow eligible employees returning from leave to return to the job position they held prior to the leave or to an equivalent position. There is a narrow exception to this rule for certain key employees.

Job restoration. An employee who takes FMLA leave is entitled to be restored to the same position that the employee held when the FMLA leave started, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. On the other hand, the FMLA does not entitle a restored employee to any more rights, benefits, or employment beyond that to which the employee would have been entitled had the employee not taken FMLA leave.

Equivalent position. An equivalent position must offer the same pay, benefits, and working conditions. It must involve the same or substantially similar duties and responsibilities. It also must entail substantially equivalent skill, effort, responsibility, and authority.

If special qualifications required for the position have lapsed during the employee's leave (for example, a continuing education requirement for accountants or lawyers), the employee must be given a reasonable opportunity to fulfill the requirements after returning to work.

The employee must be restored to the same worksite from which the employee commenced leave, or to a nearby worksite. In addition, the employee is entitled to be returned to the same shift or equivalent schedule, and have the same opportunity for bonuses and profit-sharing. Any increases in pay or changes in benefits that are not dependent upon seniority or accrual during the leave period must go into effect when the employee returns to work.

Note, however, that the requirement that a restored employee receive the same or equivalent pay and benefits does not extend to intangible or unmeasurable aspects of the job, such as potentially diminished opportunities for promotion.

The FMLA does not prohibit an employer from accommodating an employee's request to be shifted to a schedule or position that better suits the employee's needs upon returning from leave. It merely prohibits an employer from inducing an employee to accept a different position against the employee's wishes.

Key employees.
Under certain circumstances, a key employee may be denied restoration to employment. However, key employees are always entitled to maintenance of their health benefits during their leave. A key employee is a salaried employee who is among the highest-paid 10 percent of the employer's employees working within 75 miles of his or her worksite. Determining the highest-paid 10 percent of employees is based on year-to-date earnings as of the date leave is requested.

An employer may deny restoration to a key employee only if such restoration would cause "substantial and grievous economic injury" to the operations of the employer. Denial of restoration is justified only where the restoration to employment, rather than the taking of the leave, would cause a substantial and grievous economic injury to the employer. An employer must notify employees of their status as key employees if the employer believes there is a possibility that the employee's job will not be restored at the end of the leave period.

Source: HR Answers Now on the CEA Website, 29 CFR §825.216; Employee Benefits Management Newsletter, 618, September 20, 2016.

Name-Calling or Religious Harassment?

You’re the manager of a large used car business, and have several employees who are observant Sikhs and Muslims who wear religious head coverings.

You’re the manager of a large used car business, and have several employees who are observant Sikhs and Muslims who wear religious head coverings. You have been told that one of your employees named Bill regularly calls these coworkers names like "diaper head," "bag head," and "the local terrorists," and that he has intentionally embarrassed them in front of customers by claiming that they are incompetent. Should you let the employees work it out amongst themselves or tell Bill to knock it off?

Tell Bill to stop.  Managers and supervisors who learn about objectionable workplace conduct based on religion or national origin are responsible for taking steps to stop the conduct by anyone under their control. Under Title VII, religious harassment may occur when an employee is subjected to unwelcome statements or conduct based on religion. Harassment may include offensive remarks about a person's religious beliefs or practices, or verbal or physical mistreatment that is motivated by the victim's religious beliefs or practices. Although the law does not prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, such conduct rises to the level of illegal harassment when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment action, such as the victim being fired or demoted.

Employers should have a well-publicized and consistently applied anti-harassment policy that clearly explains what is prohibited; provides multiple avenues for complaints to management; and ensures prompt, thorough, and impartial investigations and appropriate corrective action. The policy also should assure complainants that they are protected against retaliation.

An employer is liable for harassment by co-workers and third parties where it knew or should have known about the harassment and failed to take prompt and appropriate corrective action. Once an employer is on notice of potential religious harassment, the employer should take steps to stop the conduct. To prevent conflicts from escalating to the level of a Title VII violation, employers should immediately intervene when they become aware of abusive or insulting conduct, even absent a complaint.

Source: EEOC Publication: "Religious Garb and Grooming in the Workplace: Rights and Responsibilities," https://www.eeoc.gov/eeoc/publications/qa_religious_garb_grooming.cfm, reported in Employment Practices Guide, New Developments ¶5397.

Pay for Training Time Overview

Employees who spend time at lectures, work courses, employer sponsored training programs or employee meetings must count that time as hours worked for pay purposes unless:

Employees who spend time at lectures, work courses, employer sponsored training programs or employee meetings must count that time as hours worked for pay purposes unless:

  1. Time is outside of normal working hours;

  2. Course work is unrelated to the employee’s regular job (such as learning the requirement of a new or higher rated job);

  3. Attendance is strictly voluntary (except for continuing education training); and

  4. No production work is performed.

Attendance at employee meetings, employer-sponsored training programs, lectures, work courses, or meeting is not deemed voluntary if required by the employer or if the employee is led to believe that his/her non attendance would adversely affect his or her current working conditions or continued employment. Training is directly related to the employee’s job if it aids them in performing the present job more effectively, as distinguished from training for another labor skill. 

Training is not considered directly related to an employee’s job if the intention of such training is to prepare them for advancement to a higher skill. DLSE Enforcement policies and interpretations manual sec 46.6.4

Questions:

  1. A dental hygienist must take continuing education courses to keep her certification. Must the employer be required to pay for the cost of the course and/or pay the employee for the time they spend in the class? No. As long as the course is required to maintain her certification, this is non compensable time.

  2. A dentist takes his entire office to a dental convention in Las Vegas. Costs involved include: travel expenses, hotel expenses, meal expenses, the employees’ time. For which expenses is the dentist required to compensate his staff? If the trip is completely voluntary the dentist is not required to pay for any of the time. If the trip is mandatory, the dentist needs to pay for all expenses the employee incurs that he/she would not normally incur if they did not go on the trip. For example, meals do not have to paid because an employee would normally be responsible for their own meals. 
     
  3. An architect requires her entire staff to take a CE course—does she have to pay for this course and for the employees time spent in the course? Yes.

  4. Can a different rate of pay be given for training time vs. regular office/work time? Yes as long as it is complies with CA Labor Laws (min. wage or more), is established in advance and documented.    


—Mari Bradford
       HR Director, mbradford@employers.org

Requiring Medical Documentation From Employees

Lydia is a newspaper reporter who has been on leave for two months because of complications stemming from her diabetes. She notified you that she will be able to return to work in two weeks..

Lydia is a newspaper reporter who has been on leave for two months because of complications stemming from her diabetes. She notified you that she will be able to return to work in two weeks but will need a flexible schedule. Can you ask for a doctor’s note or some other documentation addressing any work limitations before allowing her to return to work?

Answer: Yes. Under the Americans with Disabilities Act (ADA), if an employer has a reasonable belief that an employee may be unable to perform her job or may pose a direct threat to herself or others, the employer may ask for medical information. However, the employer may only obtain the information needed to make an assessment of the employee’s present ability to perform her job and to do so safely. In this instance, because the reporter’s job frequently requires her to meet short deadlines, the employer may ask her to provide a doctor’s note or other documentation indicating whether there are any limits on how many hours a day she can work.

Source: EEOC Guidance: Questions and Answers about Diabetes in the Workplace and the Americans with Disabilities Act (ADA), http://www.eeoc.gov/laws/types/diabetes.cfm; reported in Employment Practices Guide, New Developments ¶5372.

Tips for Shortening Your Hiring Cycle

You just spent the last month interviewing applicants for a security management position. Unfortunately, by the time you came to a decision,

You just spent the last month interviewing applicants for a security management position. Unfortunately, by the time you came to a decision, the candidate had already accepted an offer from another employer. You suspect your lengthy hiring process is to blame for this and other missed opportunities. What can you do to tighten up your hiring timeline?

Answer: Timing is everything, and for employers trying to hire it could make the difference between securing an excellent candidate and losing out. According to a Robert Half study, from the day of the initial interview to the day an offer is extended, the largest percentage of workers (39%) said a process lasting 7-14 days is too long and 24% felt a timeframe of 15-21 days was too lengthy. The long wait after an interview can be particularly frustrating. Nearly one-quarter of candidates lose interest in an employer if they don't hear back within one week after the initial interview, and another 46% lose interest if there is no status update from one to two weeks post-interview.

The hiring process is a window into the corporate culture, and people will take themselves out of the running if they suspect their career potential will be stifled by a slow-moving organization, explained Paul McDonald, senior executive director at Robert Half. To help employers consolidate their hiring timelines, McDonald shared the following tips:

  • Determine the need. Is it full-time or project/temporary? Is anything preventing you from hiring the right candidate now?
  • Gather the stakeholders. Set the timeline for the hiring process and get everyone's commitment that hiring is the number one priority. Block calendars for interviews. Review the job description and salary range, noting where you can flex for the right candidate.
  • Interview candidates. Conduct the screening interview via Skype or FaceTime. Consolidate on-site, in-person interviews to one day if possible. Get feedback immediately from the candidate and hiring managers to determine interest levels.
  • Keep communication lines open. Inform candidates when you expect to make a final decision. If there is a delay, call them to give them an updated timeline. Silence can indicate a lack of interest and encourage people to pursue other roles.
  • Make the offer. Make a verbal offer contingent on satisfactory reference and background checks. Be prepared to negotiate salary and perks, and then set the start date.


CEA is your recruiter. Let us lighten your load by helping screen resumes and conduct initial interviews so that you can make the right decision quickly once you have 3 top candidates presented to you. Our recruiting process is cost effective and gives you a high return on your investment! For more information, click here

Source: "Time to Hire" survey, released August 11, 2016; Robert Half