Monthly Archives

May 2017

Addressing Workplace Violence

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As a series of tragic events in recent years illustrate, employers must confront the reality that they are not immune from workplace violence, including the risk of active shooter events. While that challenge may seem daunting, there are certain steps employers can and should take to ensure their workplace and their employees are protected.

It is important for an employer to first understand that workplace violence, as defined by the FBI, is “any action that could threaten the safety of an employee, impact an employee’s physical or psychological well-being, or cause damage to company property.” As such, “workplace violence” encompasses a wide category of acts.

In order to help an employer recognize and prepare for a potential threat, Doherty recommends the following three steps.

Conduct a Needs Assessment

One of the most important things an employer can do is to conduct a needs assessment across the organization to determine the strengths and/or weaknesses of its policies, procedures, practices and other resources aimed at preventing or mitigating   an act of violence. Also recommended by the Occupational Safety and Health Administration, this audit should be a cross-functional, multi- disciplinary effort that encompasses HR, legal, security and other departments that may be somehow involved in ensuring that appropriate measures are taken in the event of an incident.

In addition, by conducting a needs assessment in the organization, an employer will be able to identify any shortfalls it may have. For instance, a small business without a legal or security department of its own may decide that it should outsource certain functions such as drafting and/or reviewing its policies and safety procedures. Doherty also suggests that organizations, especially small businesses, develop a relationship with their local law enforcement agency and have them “on call” in the event an employee or third party raises concerns.

Educate the Workforce

An employer should focus on awareness as a vital first line of defense because there are always warning signs of behavior before a violent incident.” As a result, training the general workforce, including supervisors and department heads, about how to identify behavioral indicators of concern is critical.

First, however, employees should be made to understand that a potential attacker does not fit a particular descriptive or demographic profile. It is always certain behavior or indicators exhibited by the person that assisted the agency in assessing and identifying a threat, not the fact that the attacker fit a particular profile.

Some common behavioral indicators that should cause concern include:

  • A dramatic decrease in productivity;
  • A systemic pattern of being disheveled or unkempt;
  • Paranoid delusions, e.g., “Everyone is out to get me.”
  • History of despair or depression;
  • Comments alluding to suicide;
  • Major loss or change in life, e.g., divorce or death in family; and
  • Increased interest or discussion about violence or weapons.

In recognizing these behavioral indicators, it will allow the employer to increase scrutiny over an employee’s actions, productivity and interactions with others.

As important as training the workforce on behavioral indicators is, creating a “culture of safety” that encourages employees to report concerns as they emerge rather than wait until they escalate is just as critical. An employer should have a reporting procedure in place that allows employees to make a report without fear of retaliation. Also, supervisors should be trained on how to address an employee who comes to him or her to raise a concern and know when to escalate it through the appropriate channels (e.g., a department head or law enforcement).

An attacker rarely will make a direct threat. In fact, in most cases, he or she won’t make a threat at all. Therefore, being able to identify behavioral indicators are key.

Understand the Domestic Abuse Connection

One component of workplace violence prevention believes employers rarely consider is the connection between domestic abuse and violence at work. 33% of women killed in the workplace are killed as a result of a domestic abuse.

Employers should encourage employees to voluntarily bring a domestic abuse situation and/or restraining orders to the attention of HR. In doing so, HR may be able to take appropriate steps to ensure the physical security of the domestic violence victim as well as his or her co-workers.

For instance, HR may give the receptionist or the security guards a picture of the perpetrator to be on alert and ensure that he or she does not gain access to the workplace. Also, HR may change the victim’s parking spot, email address, or phone number to inhibit the perpetrator’s ability to find the victim and protect the workplace. Oftentimes, a restraining order specifies the workplace as a forbidden area for that person to visit so it is imperative that the employer as well local law enforcement are made aware of the parameters of the restraining order.

It should be stressed that it is also important for the employer, HR, supervisors and employees to be trained on how to spot someone who may be a victim of domestic violence. In other words, all should be aware of “behaviors of concern” related to domestic violence, including:

  • Increased nervousness;
  • Harassing phone calls
  • Increased uninvited appearances of the spouse at work; and
  • Appearance of unexplainable bruises.

 

Here in California we also have two very important tools dealing with Domestic Abuse including;

  • Domestic Violence Restraining Order (DVRO)
  • Gun Violence Restraining Order (GVRO)

While neither of these can completely solve a domestic abuse situation, they can go a long ways in keeping a safe workplace.

If you should have any questions, please contact your Human Resources Specialist at 925-556-4404.

Emeryville Strikes Again: Another Employee-Friendly Ordinance to Take Effect

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San Francisco’s notoriously employee-friendly ordinances continue to set the standard for its neighboring cities.  Emeryville, which is across the bay from San Francisco and neighbors Oakland, recently passed a fair workweek ordinance that patterns itself off of San Francisco’s Retail Workers Bill of Rights. The Emeryville ordinance applies to larger retail and fast food employers, and has strict scheduling requirements as set forth below.

Effective Date and Applicability

Emeryville’s Fair Workweek Employment Standards will become effective on July 1, 2017. These standards will apply to retail employers with at least 56 employees globally, or fast food employers with at least 56 employees globally and 20 or more employees within the city of Emeryville. To be covered under the ordinance, employees must perform at least two hours of work per calendar week within the city of Emeryville.

Advance Notice of Work Schedule

New hires: Prior to or upon the start of employment, covered employers must provide a written, good faith, estimate of the employee’s work schedule. The employee may then request that the employer modify the schedule, which the employer must consider. The employer retains sole discretion to accept or reject a modification and must provide the employee written notice of its decision prior to or upon the start of employment.

During employment: Covered employers must provide employees two weeks’ advance notice of their work schedules by either posting the written schedule in a conspicuous, readily accessible place at the workplace or by transmitting the work schedule by electronic means. For new employees, the employer must provide the employee’s schedule prior to or upon hire.

Scheduling changes: A covered employer must notify an employee of any changes to his or her posted schedule via in-person conversation, telephone call, email, text message, or other electronic communication. Employees have the right to decline any previously unscheduled hours, and the employer owes “predictability pay” when  the employer adds or subtracts hours or moves to another date or time, cancels, or adds a previously unscheduled shift. Critically, employers do not owe predictability pay for employee-generated changes.

“Predictability pay” is based on an employee’s regular rate of pay, and is owed under the following circumstances:

  • When an employer provides less than 14 days’ notice but more than 24 hours’ notice, the employer owes one hour of predictability pay for each changed shift.
  • When an employer provides less than 24 hours’ notice, the employer owes a different amount of predictability pay based on whether the previously scheduled hours are reduced/canceled or merely changed.
    • If shift hours are canceled or reduced, the employer owes either four hours or the number of hours of the employee’s scheduled shift, whichever is less.
    • If the hours are merely changed, the employer owes one hour of predictability pay per shift.

 

Exceptions: Predictability pay does not apply to any employee-initiated schedule changes, such as requested sick leave, time off, shift trades, or additional shifts. Predictability pay also does not apply when operations cannot begin or continue due to (1) threats to employers, employees, property, or when civil authorities recommend work not begin or continue; (2) public utility failures; (3) acts of nature, such as flood or fire; or (4) mutually agreed-upon work shift swaps or coverage among employees.  While the San Francisco ordinance (under San Francisco Police Code, Article 33G, Section 3300G.4(e)) does not require employers to pay predictability pay for employer-initiated changes that result in overtime hours worked, the Emeryville ordinance does not contain a similar exception.

Offer of Work to Existing Employees

Prior to hiring new direct or contracted employees, a covered employer shall first offer additional hours or work to existing, qualified, part-time employees. An employer retains the discretion to divide the additional hours of work among part-time employees so long as that method does not discriminate based on a protected category (including family care obligations) or Affordable Care Act requirements.

An employer’s offer of additional hours must be in writing or posted in a conspicuous location or internal website. Employees have 72 hours to accept additional work expected to last more than 2 weeks, and 24 hours to accept work expected to last 2 weeks or less. Employers must retain records of written offers of additional hours for at least three years.

Scheduling Requirements—Anti-Clopening

“Clopening” refers to the practice of working a closing evening shift followed by an early morning opening shift. An employee has the right to decline hours that occur less than 11 hours after the end of their previous shift. If an employee works these hours, they must be compensated at one and a half times their regular rate of pay. An employee also has the right to request a modified work schedule and employers are prohibited from retaliating against employees for making this request.

Notification and Enforcement

Employers must provide new employees a notice of this ordinance at their time of hire. Employers are also prohibited from retaliating against employees who make or participate in a complaint to the City of Emeryville.

The City of Emeryville may investigate and informally resolve any complaints. The city may also issue fines for failure to comply with these requirements, as well as order reinstatement, civil penalties, unpaid wages plus interest, and reimbursement of the city’s costs and attorneys’ fees.

Issues and Unanswered Questions

The Emeryville ordinance calculates predictability pay based on an employee’s “regular rate of pay” as calculated under federal law.  An employee’s regular rate of pay includes all non-discretionary payments, such as bonuses, commissions, or other payments. The San Francisco ordinance, however, under Rule 4.1 of the Final Rules Implementing the Formula Retail Employee Rights Ordinance, calculates regular rate of pay based on total earnings in base wages plus commissions or piece rates for the prior calendar year or, when the employee does not have a prior calendar year’s amount of work history, the calculation is based on total earnings and hours worked from the date of hire.     Employers with operations in both cities should ensure they are performing the regular rate of pay calculation in compliance with the applicable law.

There is no exception to the predictability pay requirement when schedule changes are due to disciplinary reasons. For example, if an employer were to send an employee home for misconduct, that employer would owe the employee predictability pay related to this schedule change. The City of Emeryville indicated that this exception was in previous versions of the ordinance, and we hope that it will clarify this issue in its forthcoming enforcement regulations.

The City of Emeryville is in the process of scheduling stakeholder meeting as well as drafting enforcement regulations. We will provide a summary of the enforcement regulations as soon as they are released as well as a link to the City of Emeryville’s model notice.

What to Do When ICE Comes Knocking

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The Trump administration’s tough rhetoric and early aggressive actions on immigration promise a period of increased worksite enforcement. With the administration’s strong statements against illegal immigration and abuses of the immigration system, including an executive order calling for 10,000 new U.S. Immigration and Customs Enforcement (ICE) agents, employers can expect an increased number of audits, raids, and investigations. Given this added scrutiny and the increased prospects of a fine or other penalty, employers may want to know their rights in the event of a worksite visit, and to review and update their protocols for responding to such visits.

Employer Rights

Law enforcement officers will not assert an employer’s rights on the employer’s behalf. Therefore it is important that employers be aware of their rights and be prepared to assert them in the event of a site visit.

  • Once a company representative becomes aware of a worksite investigation or raid, swiftly notifying in-house legal counsel or an appropriate corporate officer can help the employer to preserve its rights. Note that a government official with a warrant is not required to wait for counsel to begin executing the warrant, so time will be of the essence when trying to stay on top of the situation.
  • If an officer is conducting a site visit to obtain I-9 records, unless the officer is executing a search warrant, the employer has the right to three days’ notice prior to turning over I-9 documents.
  • An employer has the right to deny officers permission to access non-public areas of the employer’s property absent a valid warrant.
  • If the officer is in possession of a warrant, the employer has a right to review the warrant to verify its validity and scope (e.g., Is it signed by a court? Has the warrant expired? What are the locations to be searched and items sought?).
  • Warrants apply only to law enforcement officials; an employer has the right to refuse media or news reporters access to the facility.
  • If an employee is to be interviewed as a representative of the employer, the employer has the right to have counsel present during any such questioning.
  • Employers may benefit from taking detailed notes of all activities being performed by the visiting government officials. If possible, employers may even wish to take video recordings of the officers’ activities. The officer may insist that making recordings is not permitted; however, in many jurisdictions, employers do have that right as long as they are not interfering with law enforcement operations.
  • A helpful practice during a worksite investigation is to obtain the lead officer’s business card or contact information.

 

Preparing for a Site Visit

Employers that take proactive steps to fully develop policies and procedures to follow in the event of a worksite inspection will be better prepared to effectively assert their rights and protect their interests.

Designate an Immigration Compliance Officer. One of the key proactive measures an employer can take in anticipation of a worksite audit or raid is to designate an immigration compliance officer as a central point of contact for law enforcement agencies in connection with any worksite enforcement activities. An immigration compliance officer has three key responsibilities in the event of a site visit by immigration enforcement officers: first, to serve as a crucial point of contact between the company’s legal team and its immigration counsel; second, to coordinate between the legal team and site personnel to ensure that local personnel behave in a manner that is compliant with the law while also preserving the employer’s rights; and third, to be familiar with the company’s immigration records and procedures so he or she is able to respond to basic government questions in the absence of counsel.

Train Personnel Who Interface With the Public. Another good practice is to train personnel who may encounter an immigration enforcement officer at an employer site (typically a receptionist, cashier, or site manager) to request a copy of the officer’s credentials (i.e., badge and business card), not to disclose any information, and to direct all inquiries and requests for site access to the immigration compliance officer. Employers may also wish to consider designating primary authority for granting access to facilities or documents to the immigration compliance officer. Despite the desire to be helpful, employees will best serve the company’s interests by being polite and respectful while firmly adhering to this standard procedure.

Develop Practical Standard Operating Procedures and Guides. The stress of a site visit may cause otherwise capable employees to make less than optimal decisions or ill-advised statements to officers. Whether this stress is caused by the shock and awe of a full-scale ICE worksite raid or the mere intimidation of being questioned by a federal agent, it can present risks for employers. Having well-thought-out field guidance prepared in advance may be the deciding factor in effective preservation of employer rights.

Practical field guidance that employers may wish to consider include a list of “dos and don’ts” and a list of steps to follow when immigration officers appear on-site. These guides can anticipate real-world situations that may arise. (What if an officer appears to be detaining employees for an extended period of time? What if an officer has no warrant but insists on accessing the site anyways? What if an officer asks about a specific employee? What if an officer is simply hanging around the parking lot and questioning employees? What if an officer appears to be exceeding a search warrant?) There are many ways a site visit could take an unexpected turn, and employers may want to be prepared for these possibilities.

Clean House and Keep It in Order. The best defense is full compliance. As part of a regular compliance best practices regimen, many employers conduct regular in-house I-9 audits (at least annually) to ensure that their I-9 forms are properly completed, retained, and corrected as applicable. Employees responsible for I-9 completion may benefit from regular training on I-9 procedures to help them keep abreast of the latest changes to the I-9 forms and rules. A company I-9 compliance program is another tool that provides guidance to employees who have I-9 responsibilities.

By ensuring proper I-9 completion (including following all correct procedures for completing I-9 forms), an employer not only reduces its risk of monetary penalties from paperwork violations but likewise reduces the risk of penalties arising from employment of an unauthorized worker.

Key Takeaways

Many changes have occurred in recent months, including: increased I-9 penalties, the issuance of a new Form I-9, and now, the emergence of the Trump administration’s immigration agenda, which appears to carry a “zero tolerance” focus. In this new enforcement climate, employers may want to shore up their internal compliance procedures and familiarize themselves with their rights in the event of enforcement activities.

Summer Hiring – Are You Ready?

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It may be hard to believe, but summer is less than six weeks away.

More than four out of every 10 employers plan to hire seasonal workers for the summer, according to a survey released last week by the job search website CareerBuilder.

If you are one of them, be sure you consider some of the potential compliance challenges that can arise when hiring summer help.

Child Labor

Will you be hiring minors? If so, it’s important to bear in mind that federal law and most state laws restrict the hours during which minors may work, including:

  • The maximum number of hours and/or days a minor may work per week;
  • The maximum number of hours a minor may work per day; and
  • Certain timing restrictions such as the times of day during which minors may work and any restrictions forbidding a minor from working while school is in session.

Many child labor laws also forbid minors from working in certain occupations, require employers to maintain proof of age for all employees, and more.

Unpaid Interns

Almost all interns should be classified as employees. As a result, you usually can’t just pay them with “valuable real-world experience”; you have to pay them cold, hard cash – the applicable federal, state or local minimum wage, whichever is highest, for all hours worked. In very rare cases in which an internship meets certain very strict criteria, it’s possible to have an unpaid internship. If you do, be sure to follow these steps.

Coverage Thresholds

Most federal and state employment laws include coverage thresholds. These laws do not apply to smaller employers, depending on their size. A few laws exclude summer hires and other temporary employees from their coverage thresholds. For example, the federal Family and Medical Leave Act applies only to employers that have employed 50 or more employees for each working day during at least 20 calendar workweeks in the current or preceding calendar year. But under most other laws, summer hires could mean the difference between having to comply with a law and not.

Joint Employment

If you’re hiring summer help from a temporary staffing agency, don’t forget that there is a possibility you could be considered a joint employer under a variety of employment laws. In fact, the Occupational Safety and Health Administration says that “staffing agencies and host employers are jointly responsible for maintaining a safe work environment for temporary workers – including, for example, ensuring that OSHA’s training, hazard communication, and recordkeeping requirements are fulfilled.”

Should you have any questions, please contact her HR Representative at 925-556-4404.