Articles

The Litigation Risk that Many Small and Mid-Size Employers May Be Needlessly Holding On To

Posted on: June 26th, 2017 by Katrina Murphy No Comments

By John Wood

The latest edition of The Betterly Report noted that, when it comes to Employment Practices litigation risk, “The larger employer is much more likely to transfer risk than are smaller employers.  Ironically, it is the smaller employer that probably needs EPLI insurance protection the most, as their ability to self-assume losses is limited.”

The report went on to note that only about 2.4% of small employers (1-49 employees) carried Employment Practices Liability insurance (EPL), while only 36.6% of mid-sized employers (50-999 employees) did so.

So why the inverted result, where the large employers (who are better suited, financially, to retain their Employment Practices litigation risk) are transferring that risk, while the small and mid-size companies (who have less financial capacity to retain the risk) aren’t?

Perhaps this latter group is unaware of the level of risk that they’re assuming, or presume that the cost of transference is prohibitive.  This article will try to shed some light on both factors.

The Scary Stuff

According to the latest edition of the Hiscox Guide to Employee Lawsuits (which was based upon 2014 EEOC charge statistics), U.S. Companies had at least an 11.7% chance of incurring an employment litigation event.

The figures varied greatly by State, however, and in California the risk of employee litigation was 40% higher than the national average – perhaps, in part, because California is one of 10 States in the country whose Anti-Discrimination and Fair Employment Practices State laws exceed U.S. Federal regulations.

A representative study of 446 closed cases showed that, for firms with 500 or fewer employees, 19% of the cases resulted in defense and settlement costs averaging a total of $125,000, with an average length of litigation spanning 275 days.

For those cases that ended up in court, the median judgment (which does not include defense costs) was $200,000, with 25% of the cases resulting in a judgment of $500,000 or more.

Even if an Employer wins a case, it often loses financially.  To give just three examples from actual lawsuits:

* After a downsizing, a group of former, older, long-term employees alleged that the downsizing had a disparate impact on them compared to younger workers.  The Employer prevailed at trial, but incurred $975,000 in defense costs.

* A former employee demanded $500,000 and other benefits (including paid-for COBRA coverage), alleging that she was terminated in retaliation for being involved in a romantic relationship with her supervisor.  The Employer won at trial, but racked up $205,000 in legal bills along the way.

* A released-to-duty worker sued to have a “no lifting” position created as an accommodation to her temporary work restriction made permanent.  A jury found in favor of the Employer, but it was still out $90,000 in defense costs.

For many mid-sized companies – and certainly for smaller ones – this type of unexpected legal expense could be crippling if the employment litigation risk were to materialize with no financial escape valve for the employer.

Fortunately, an Employment Practices Liability insurance policy can provide that escape hatch.

But What Does It Cost?

The cost to transfer one’s Employment Practices litigation risk is rather low, compared to the above-noted costs of retaining that risk.

As a rough estimate, the annual cost for Employment Practices Liability insurance can range from $150 to $350 per employee, depending upon the number of employees (the higher the employee count, the lower the cost-per-employee). 

To give you an example, here’s a sampling of the annual costs charged by a major player in the “small company segment” of the EPL insurance market:

            10    Employees = $3,473

            25    Employees = $5,345

            50    Employees = $10,026

            75    Employees = $12,786

            100 Employees = $16,243

Prices will vary, depending upon the specifics of each company, but the reader might agree that the cost to transfer a company’s Employment Practices litigation risk is a far easier figure to digest than the litigation figures above.

If a small to mid-size company has not considered Employment Practices Liability insurance because of 1) an underestimation of the risk involved; or 2) an overestimation of the cost to transfer that risk, hopefully this article will encourage a second look at the economics of the options.

John Wood is a Principal of McGee & Thielen Insurance Brokers, Inc. in Sacramento, CA, and can be reached at jwood@mcgeethielen.com

 

A Day of Rest is Clarified –

Posted on: June 26th, 2017 by Katrina Murphy No Comments

By Kim Silvers, SPHR-CA, SHRM-SCP

 

California employers who have employees working beyond a regular five-day schedule will be happy to see the California Supreme Court’s recent ruling in Mendoza v. Nordstrom.  Although Nordstrom may have felt like it “moved heaven and earth” to finalize this case law, it’s a positive ruling for employers.

The premise of the lawsuit from two employees at Nordstrom was around an interpretation of how to define the California Labor Code sections 551 and 552.  Section 551 notes that “every person employed in any occupation of labor is entitled to one day’s rest therefrom in seven.”  Section 552 prohibits employers from “causing their employees to work more than six days in seven.”  Further, section 556 of the CA Labor Code allows employers to make an exception to the one day of rest in seven “when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof.” 

There were three primary issues on the court’s desk:

  1. Is the day of rest required by sections 551 and 552 calculated by the workweek, or does it apply on a rolling basis to any seven-consecutive-day period?

The court determined: A day of rest is guaranteed for each workweek.  Periods of more than six consecutive days of work that stretch across more than one workweek are not per se prohibited.

In essence, the seven-day period CA employers must denote as the workweek for payroll and overtime purposes is the period to review for the day of rest requirement. It is not a rolling seven-day period. For example, an employee on a predesignated seven-day workweek,  say, Sunday through Saturday, may work 12 consecutive days, but there is no day of rest required. This is because the schedule cuts across two pay periods, e.g., Monday to the Friday of the following pay period (such as July 10 – 21, 2017).  However, if the employee works seven consecutive days in the workweek (Sunday through Saturday in the example workweek above) then a day of rest may be required and/or overtime may be due to the non-exempt employee. See below for more.

  1. Does the section 556 exemption for workers employed six hours or less per day apply so long as an employee works six hours or less on at least one day of the applicable week, or does it apply only when an employee works no more than six hours on each and every day of the week?

The court determined:  The exemption for employees working shifts of six hours or less applies only to those who never exceed six hours of work on any day of the workweek.  If on any one day an employee works more than six hours, a day of rest must be provided during that workweek, subject to whatever other exceptions might apply.

The court did not address the situation where the employee works more than six hours on one or two days in the workweek, but the total hours are fewer than 30 in the week.

 

 

  1. What does it mean for an employer to cause an employee to go without a day of rest:  force, coerce, pressure, schedule, encourage, reward, permit, or something else? 

The court determined:  An employer causes its employee to go without a day of rest when it induces the employee to forgo rest to which he or she is entitled.  An employer is not, however, forbidden from permitting or allowing an employee, fully apprised of the entitlement to rest, independently to choose not to take a day of rest.

We encourage employers to make it clear and in writing that an employee who volunteers to work a seventh consecutive day in a workweek has done so at his/her own choice.  Get the employee’s offer to work in writing!  We offer a sample waiver for this in our HR Library for our clients.

 

Employers are permitted to average the days of rest over a calendar month. Section 554 of the Labor Code notes “Nothing in this chapter shall be construed to prevent an accumulation of days of rest when the nature of the employment reasonably requires that the employee work seven or more consecutive days, if in each calendar month the employee receives days of rest equivalent to one day’s rest in seven.”

 

Keep in mind that the day of rest laws apply to exempt and non-exempt employees.  However, overtime payment applies to non-exempt employees who do work seven consecutive days in the workweek.  The first eight hours worked on the seventh workday are paid at 1.5 times the regular rate of pay, and 2.0 times the regular rate of pay for hours worked beyond eight on the seventh consecutive workday in the workweek.

New California Regulations: Consideration of Criminal History in Employment Decisions

Posted on: June 26th, 2017 by Katrina Murphy No Comments

By Susan Breslauer, SPHR-CA, SHRM SCP

 

New California regulations entitled “Consideration of Criminal History in Employment Decisions Regulations”, will limit an employer’s right to use criminal background information in hiring and other employment decisions.  These regulations (or “the Act”) approved by the Fair Employment and Housing Council (“FEHC”), the state agency charged with enforcing civil rights laws in California, will take effect right around the corner on July 1, 2017.

The FEHC regulations are largely based on existing federal guidelines, specifically the Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, issued by the U.S. Equal Employment Opportunity Commission (“EEOC”) on April 25, 2012.

The FEHC regulations expand on the EEOC requirements and place additional burden on employers in selection and testing of applicants, placement, promotion and transfer of employees, specific practices in the use of criminal records and permissible selection devices.  In Section 11017.1 of the regulations, it states: “Employers are prohibited under the Act from utilizing other forms of criminal history in employment decisions if doing so would have an adverse impact on individuals on a basis enumerated in the Act that the employer cannot prove is job-related and consistent with business necessity or if the employee or applicant has demonstrated a less discriminatory alternative means of achieving the specific business necessity as effectively.”  Therefore, it is evident that employers must exercise even more caution as of July 1st when using criminal records in making employment decisions. 

Existing law currently prohibits CA employers from considering or seeking the following types of criminal records or information concerning:

  • An arrest or detention that did not result in conviction;
  • An arrest, detention, processing, diversion, supervision, adjudication, or court disposition while a person was in juvenile court;
  • A non-felony conviction for possession of marijuana that is two or more years old;
  • A referral to or participation in a pre-trial or post-trial diversion program; or
  • A conviction that has been judicially dismissed, expunged or sealed

These rules and the new regulations do not prohibit an employer from considering criminal history. Quite simply, they are intended to prevent employers from discriminating against employees in protected classes when the use of conviction records results in an adverse impact on protected classes, e.g., race, national origin and gender.   The regulations do not just pertain to hiring decisions, but they have to be taken into account when promoting, reprimanding or terminating an employee.  If the employee feels his/her rights have been violated, he/she may use this regulation to sue the employer.

The FEHC regulations require that employers must establish policy that is “job-related and consistent with business necessity” when using criminal information.  They can do so by demonstrating that the policy or practice is tailored to the job and takes into account at least the following factors:

  • The nature or gravity of the offense or conduct;
  • The time that has passed since the offense or conduct and/or completion of the sentence; and
  • The nature of the job held or sought

Employers may justify using a criminal record to determine if an individual is right for a job using one of the following approaches:

  • Rather than just looking at whether or not an applicant has a criminal record, conduct a personalized search (aka “individualized assessment”) of the circumstances of an offense. This must involve notice to the adversely impacted employee or applicant (before any adverse action is taken) that s/he has been screened out due to a criminal conviction.  The individual must have a reasonable opportunity to show that the exclusion should not apply to their circumstance. Subsequently, the employer must consider when the individual’s information deserves an exception to the disqualification.

 

  • Use a “bright-line” conviction disqualification test (One that is not “individualized” as defined in the Act, akin to an across-the-board standard) to demonstrate whether one’s offense does or does not merit a risk to his/her position. In this case, the employer does not consider an individual’s “individualized” circumstances when making the employment decision based on criminal history. Conviction information that is more than seven years old will not likely be defensible

The burden of proof has been shifted to the employer to show that a background check is job-related and consistent with business necessity if an applicant or employee establish adverse impact. 

The new regulations further require that before an employer may take adverse action (such as declining to hire or promote, discharging, or laying off) based on a conviction history obtained by a source other than the applicant or employee (e.g., through a credit report or internally generated research) the employer must give the individual notice of the disqualifying conviction and a reasonable opportunity to present evidence that the record is factually inaccurate.

Compliance with federal or state laws or regulations that mandate a criminal history screening processes or requiring that an employee or applicant possess or obtain any required occupational licenses (such as peace officers, employees at health facilities and pharmacies where there is access to patients or medical or controlled substances) constitute rebuttable defenses to an adverse impact claim by an individual.

 

BEST PRACTICES AND ACTIONS REQUIRED OR RECOMMENDED: 

 

  • If you have a background check policy, it should be revised to ensure that off-limits information is not being requested or considered.
  • Eliminate employment applications, policies and practices which automatically disqualify all applicants for all positions based on a criminal record. Consult legal counsel if you wish to have a “bright line” disqualification.
  • Comply with the notice requirement in the regulations prior to taking adverse action.
  • Review the regulations and ensure all requirements are followed.
  • Train supervisors and managers involved in the hiring process on appropriate screening inquiries.
  • Comply with Fair Credit Reporting Act (FCRA) notice requirements in the background check process.
  • If you have employees in San Francisco and Los Angeles, review related ordinances (aka “ban-the-box”) to ensure criminal history on job applications is removed. See our Ezine article Ban-the-Box Article – Spring 2017 for more details.  These cities have much more restrictive requirements around background checks.
  • The Silvers HR sample employment application was revised in December 2016 and again this week removing criminal background inquiries from the basic form (This information may not be asked in San Francisco and Los Angeles in the initial stages of the screening process.) and updating the marijuana convictions language. We recommend using this application if you have not already adopted it.
  • If you require criminal background checks due to contracts or industry-specific requirements, ensure background check forms state that any convictions arising from a juvenile court proceeding need not be listed.

 

Lastly, there is an Assembly Bill (AB 1008)  in the California Legislature that, if passed, will further restrict the use of criminal conviction information in the employment setting.  And it requires a tedious notification process.  We’ll keep you posted on this.  (The FEHC regulations here look quite do-able compared to AB 1008’s requirements as drafted.)

 

A copy of the FEHC “Consideration of Criminal History in Employment Decisions Regulations” can be found here

 

A copy of the EEOC Enforcement Guidance on the Consideration of Arrest and Conviction Records can be found at:

https://www.eeoc.gov/laws/guidance/arrest_conviction.cfm

Commissioned Employees are Entitled to Separate Pay for Rest Breaks

Posted on: March 27th, 2017 by Katrina Murphy No Comments

By Kim Silvers, SPHR-CA, SHRM-SCP

 

California employers received another surprise court decision requiring commissioned sales employees to be paid separately for their state-required rest breaks.  This decision is somewhat related to earlier decisions (and eventual state law) requiring piece rate workers to be compensated separately for rest breaks. If you have commissioned (inside sales) employees, read on and be prepared to review and edit your current compensation plans.

In Vaquero v. Stoneledge Furniture LLC, two former sales associates filed a class action suit against their former employer, Stoneledge Furniture, claiming that the company’s commission plan did not compensate them correctly for their mandatory rest breaks (minimum 10 minutes for every 4 hours worked, or major fraction thereof).[1] 

From 2009 through March 2014, Stoneledge Furniture paid their sales associates under a commission plan that included a base pay guarantee of at least $12.01 per hour. The base pay was applied toward commission earned (aka a “recoverable draw”).  If the sales associate earned less than $12.01 per hour in commission in any pay period, the company paid him/her a draw against future advanced commissions.  The commission plan noted that “The amount of the draw will be deducted from any future Advanced Commissions, but an employee will always receive at least $12.01 per hour for every hour worked.”  The commission plan did not note or allow separate compensation for non-selling time such as training, meetings or rest breaks.

The trial court sided with the employer agreeing that employees were paid at least $12.01 per hour even if they made no sales in the pay period.  This paid time included rest breaks.  However, the plaintiffs appealed to the CA Court of Appeal and won.  This case has a significant impact on other employers paying commission.

Appellate Court Rules Wage Order No. 7 Requires Employers to Separately Compensate Covered Employees for Rest Periods

The Court of Appeal took another look at the Industrial Wage Order (IWO) 7 language around rest periods.  (IWO 7 applies to the mercantile industry, but this rest period language is very similar in other wage orders.)  The IWO requires that “Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages.”  When a sales associate’s commission did not exceed the minimum rate in each week, Stoneledge deducted from future paychecks any wages advanced to compensate him/her for hours worked, including rest periods.  The appellate court determined that the “advances or draws against future commissions were not compensation for rest periods because they were not compensation at all. At best they were interest free loans…. Taking back money paid to the employee effectively reduces either rest period compensation or the contractual commission rate, both of which violate California law.”

The appellate court noted: “…Wage Order No. 7 applies equally to commissioned employees, employees paid by piece rate, or any other compensation system that does not separately account for rest breaks and other nonproductive time.” The court further noted: “The problem with Stoneledge’s compensation system, however, is that the formula it used for determining commissions did not include any component that directly compensated sales associates for rest periods.”   

For now, this ruling will apply to CA trial courts for similar cases.  It is not known if the ruling will be appealed further.

Here are our recommendations if you have commissioned employees:

 

  1. Ensure your commission plan is in writing and signed by each employee. This is a state law.
  2. Reconsider your use of a recoverable draw. It is risky for a commission plan to pay employees a guaranteed minimum hourly rate as a draw against their future commissions. (This is the kind of plan Stoneledge Furniture had.) The safer path is paying a base hourly rate for all hours worked (production and non-production time such as training, meetings and rest breaks) and a commission on top of that base rate.
  3. Remember that all time in and out should be recorded for hourly employees, including commissioned inside sales.
  4. Piece rate and commissioned employees should be compensated separately for rest break time and have this noted on the itemized wage statement. This rest break pay should not be subject to a draw against commissions.  (Piece rate employees’ itemized wage statements must also note the non-piece work pay rates and time as well.)
  5. Have an employment attorney review your commission pay plan each time you update it to ensure it is defensible.

[1] There was not an issue of whether rest breaks were authorized, permitted or any missed/shorted break premiums were owed.

 

Check Your New Hire Packet: A New Version of Form I-9 is in Effect

Posted on: March 27th, 2017 by Katrina Murphy No Comments

By Susan Breslauer, SPHR-CA, SHRM SCP

 

By January 22, 2017, all employers should be using the updated Form I-9, dated November 14, 2016, published by the US Citizenship and Immigration Services.  The new form has an expiration date of August 31, 2019.  All employers with one or more employees are required to complete Form I-9 and verify identification documents for newly hired employees by day three of employment.  Hopefully this is not new news to you!  These requirements were established in November 1986 by the Immigration Reform and Control Act (IRCA).  Since 1986, there have been many versions of Form I-9 published. 

Most notably, you may choose to complete the updated Form I-9 manually or via computer.  If you complete the form on the computer, you will find there are drop-down lists and calendars for filling in dates.  The instructions are programmed for each field, and there is quick access to the full instructions.  A handy feature is that you can clear the form and start over if errors are made.

There are several changes in the latest version that your I-9 verifier should be aware of.  Section 1 now asks for “other last names used” instead of “other names used” and it makes certification for certain foreign nationals more efficient.  Other formatting changes have been made, including:  Prompts have been added so that information is entered correctly; the instructions have been separated from the form and include specific instructions for completing each field; and there is an area for additional information so it does not need to be recorded in the margins.  In addition, a supplemental page for the preparer/translator has been added.

If you are a retained client, your Silvers HR Consultant has likely done an I-9 audit as part of your HR Practices Review and you are an ace in I-9 procedures.  Here are some reminders of proper procedures which are still in effect:

  • All new hires must complete Section 1 of Form I-9 by day one of employment.
  • Employers must verify documents and complete Section 2, including the certification portion, no later than day three of employment.
  • One document from List A, or one document from List B and List C, must be reviewed and recorded by the employer in Section 2. (We do not recommend keeping copies unless you are an E-Verify employer.)
  • The date of hire must be entered in Section 2 by the employer. (We find this is often missed).
  • The employer must complete all fields in certification box (section 2), including signing and dating the form.

We recommend appointing one person at each location to verify employment authorization documents for purposes of the Form I-9.  (It doesn’t work to have remote I-9 verifiers since actual I-9 documents, not photocopies, must be examined.)  This person should be trained in I-9 procedures, along with prohibited practices and unlawful types of immigration-related discrimination in hiring.  A handy tool to review is Part Four of the “Handbook for Employers – Guidance for Completing Form I-9”. The Handbook can be found in the Silvers HR Library or at this link.

Remember to keep all I-9s for active employees on file, preferably in a separate binder or file, not in the personnel files.  When an employee separates employment, retain his/her Form I-9 for one year from the termination date or three years from the hire date, whichever is later.

You may find the new Form I-9 in the Silvers HR Library.

 

 

More “Ban the Box” Laws; What Employers Need to Know

Posted on: March 27th, 2017 by Katrina Murphy No Comments

By Jennifer L. Lippi, J.D., SPHR

 

There are several local laws and a possible new state law that severely limit employer inquiry into criminal convictions.  On January 22, 2017, Los Angeles became the second city in California, after San Francisco, to adopt a “Ban the Box” ordinance that bars employers from inquiring about a job applicant’s criminal history until later in the hiring process.  Among other things, this means removing the check box questions common on many employment applications that ask, “Have you ever been convicted of a felony?” 

San Francisco’s Fair Chance Ordinance

San Francisco’s Fair Chance Ordinance took effect on August 13, 2014.  In general, the Ordinance prohibits employers from making any inquiry regarding criminal history until after an initial job interview.  Employers may ask about an applicant’s criminal history only after the first job interview or after a conditional offer of employment.  The Ordinance also prohibits employers from at any time inquiring into or taking an adverse action based on any of the following:

  1. An arrest not leading to a conviction;
  2. Participation in or completion of a diversion or a deferral of judgment program;
  3. A conviction that has been judicially dismissed, expunged, or otherwise rendered inoperative;
  4. A juvenile conviction;
  5. A conviction that is over seven years old from the date of sentencing; or
  6. An offense that is other than a felony or a misdemeanor, such as an infraction.

Furthermore, prior to conducting any criminal history inquiry, the employer must provide the applicant or employee with a written notice of their rights under the Ordinance.  The Ordinance also requires that the employer conduct an individualized assessment of the nature of the offense as it relates to the specific position at issue.  The offense may only be considered if it has a “direct and specific negative bearing on that person’s ability to perform the duties or responsibilities necessarily related to the employment position.”  In making this determination, the employer must consider whether the position “offers the opportunity for the same or a similar offense to occur” and whether “circumstances leading to the conduct for which the person was convicted will reoccur.”  The individualized assessment also requires consideration of the time that has elapsed since the conviction and any evidence of mitigating factors or rehabilitation.

If a San Francisco employer decides to take adverse action based on criminal history information, they must first notify the applicant or employee in writing of the intended decision, and allow the applicant or employee seven (7) days to respond with any evidence of inaccuracy in the information or to describe any evidence of inaccuracy.  The employer must also provide a copy of the background check or criminal conviction report.  Upon receiving such response, the employer must wait an additional reasonable time to reconsider the prospective adverse action in light of the new information.  After the employer has allowed the employee adequate time to respond, the employer may take final adverse action based upon the conviction history, but must notify the employee that the final adverse action was taken because of the conviction history. 

Los Angeles Fair Chance Initiative For Hiring

Los Angeles has taken a different and more rigid approach than San Francisco with its Fair Chance Initiative.  While the San Francisco Ordinance prohibits any type of criminal history inquiry until after the initial job interview, the Los Angeles Ordinance prohibits employers from inquiring about criminal histories until after a conditional offer of employment has been made.

The Los Angeles Ordinance prohibits:

  1. Asking any question on a job application about an applicant’s criminal history;
  2. Asking about or requiring disclosure of an applicant’s criminal history during a job interview; and
  3. Independently searching the internet for criminal conviction history or running a criminal background check before a conditional offer of employment has been made.

The Los Angeles Ordinance has a very specific “Fair Chance Process” that must be followed if an adverse action is taken as a result of an inquiry into criminal history.  Prior to taking any adverse action, the employer must:

  1. Perform a written assessment that links the specific aspects of the applicant’s criminal history with the risks inherent in the duties of the position. At a minimum, the employer must consider the factors identified by the Equal Employment Opportunity Commission (“EEOC”) and any rules or regulations issued by any agency designated with enforcement responsibilities;
  2. Provide the applicant with written notice of the proposed action, a copy of the written assessment, and any other information supporting the employer’s proposed adverse action;
  3. Wait at least five (5) business days after the applicant is informed of the proposed adverse action before taking any adverse action or filling the position, in order to give the applicant an opportunity to respond;
  4. Consider the applicant’s additional information or documentation and perform a written reassessment of the proposed adverse action.
  5. If the employer elects to continue with the adverse action after a reassessment, it must notify the applicant of the decision and provide the applicant with a copy of the written reassessment.

The San Francisco and Los Angeles Ordinances also contain detailed disclosure, posting, and recordkeeping requirements. 

Assembly Bill 1008 (“AB 1008”)

But wait, there is more.  Don’t do business in San Francisco or Los Angeles?  You may still not be off the hook.  There is a new bill pending in the California legislature that may “Ban the Box” for most employers in California.  AB 1008, as proposed, makes it an unlawful employment practice for an employer to include on any application for employment any question that seeks disclosure of an applicant’s criminal history, or to inquire into or consider the conviction history of an applicant until that applicant has received a conditional offer of employment. 

AB 1008 also proposed a “Fair Chance Process.”  An employer that intends to deny an applicant the position based solely or in part because of the applicant’s criminal history must make an individualized assessment of whether the applicant’s conviction history has a direct adverse relationship with the specific duties of the job that justify denying the applicant the position.  In making the assessment, the employer must consider the nature and gravity of the offense or conduct, the time that has passed since the offense, and the nature of the job held or sought.  In making the individualized assessment, employers must be consistent with the EEOC guidelines surrounding conviction records in employment. 

If the employer makes a preliminary decision that the applicant’s criminal history disqualifies him or her from employment, the employer shall notify the applicant of the decision in writing.  The notice must contain all of the following:

  1. Identify the conviction that is the basis for the potential denial or disqualification;
  2. Provide a copy of the conviction history report, if any;
  3. Provide examples of mitigation or rehabilitation evidence that the applicant may voluntarily provide; and
  4. Provide the applicant notice of the right to respond within ten (10) business days.

The applicant has ten (10) days to respond with information that challenges the accuracy of the information in the notice or include mitigation or rehabilitation evidence.  The employer is required to consider the information submitted by the applicant prior to making a final decision. The bill also states that an employer may not disqualify an applicant from employment if they showed evidence of mitigation or rehabilitation.

If an employer makes a final decision to deny employment because of a prior conviction, a second notice must be given that includes all of the following:

  1. The final denial or disqualification;
  2. Any existing procedure the employer has to challenge the decision or request reconsideration;
  3. Whether the applicant may be eligible for other employment or occupation with the employer;
  4. The earliest date the applicant may reapply for a position of employment; and
  5. The right to file a complaint with the Department of Fair Housing and Employment (“DFEH”).

We will continue to monitor the status of AB 1008.  However, in the meantime, if you are located in or do business in San Francisco or Los Angeles, you should revise all job application forms, advertisements, and job postings. Hiring staff should be trained as to what questions may be asked during the initial interview and how to process an individualized assessment when evaluating an applicant’s conviction history.

All Gender Restrooms Are on the Way

Posted on: December 21st, 2016 by Katrina Murphy No Comments

All Gender Restrooms Are on the Way

 

If you’ve combed through our 2017 employment law update, you’ll find a new bill (Assembly Bill 1732) tucked into the middle of this tome that requires all single-user toilet facilities be identified as an all-gender toilet facilities using proper gender neutral signage. A “single-user toilet” is defined to mean a toilet facility with no more than one water closet (aka flushing toilet) and one urinal, with a door locking mechanism controlled by the user and designated for use by no more than one occupant at a time or for family or assisted use.

The new requirement will apply to any business, place of public accommodation, or state or local government agencies on March 1, 2017. (more…)

What a Year

Posted on: December 21st, 2016 by Katrina Murphy No Comments

 

What a Year

By Kim Silvers, SPHR-CA, SHRM-SCP

 

One of our roles as HR consultants is to ensure our clients have resources and knowledge back-up to stay out of employment court. We do a pretty good job of that and I’m proud of the ethical employers we hand pick as our business partners. (You think we take any Tom, Dick, or Harriet? Think again. If you’re a retained client, you’ve been carefully screened by us. Kind of like who Dad allows his daughter to date.) But sometimes even the well-intended employer gets caught up in unfortunate circumstances. We’ve had some doozies this past year; I’ll spare you the details.

It is not my goal to be indispensable and attached at a manager’s elbow on every employment decision. We offer lots of training to aid in the day to day journey with employees. But, the feds and the state of California certainly make it a regular “trip to the fountain” to refresh on the new court cases and laws that overlay just about everything an employer does in our great state. As we wrap up 2016, here’s a quick stroll through some of the highlights with a promise of (likely) more to come next year. (more…)

What is the Difference Between Success and the Status Quo?

Posted on: December 21st, 2016 by Katrina Murphy No Comments

By Cami McLaren

The best way to be successful – really successful – is to plan for your success.  No matter how you define success, you will be vastly more likely to achieve it if you are intentional.  Starting now.  In this article, I will give you some information on how to set yourself up for success in the new year.  Many studies have been done on the nature of success.  Successful people are intentional.  They are purposeful.  They have a clear direction and clear goals.  And they move in alignment with that vision.

As you will see below, there are measures of success that can be created without a clear plan, but they are far lower levels of success.  So jump start your year and make a plan!  Don’t wait for the perfect time.  Now is that time.

We are less than one week from the end of the year. We are, many of us, distracted by the holidays in between here and there. This can cause us to become overwhelmed rather than focused on setting ourselves up for success in the new year.

The end of the calendar year is traditionally a natural breaking point.  It is a place where we take stock and we ask, “What did I accomplish this year?”  And, “What do I want to accomplish next year?”  Different people do this to different degrees.  At one end of the spectrum, some people may not even notice a year has passed and simply move from December 31 to January 1, as if it is just another day.  At the other end of the spectrum, some will consciously close down one year and intentionally open up the next.  They will learn from the last year so that the next year is even better.  As a business coach, I advocate this latter approach.

In 1979, interviewers asked new graduates from the Harvard’s MBA Program and found that:

  • 84% had no specific goals at all
  • 13% had goals but they were not committed to paper
  • 3% had clear, written goals and plans to accomplish them

In 1989, the interviewers again interviewed the graduates of that class.  You can guess the results:

  • The 13% of the class who had goals were earning, on average, twice as much as the 84 percent who had no goals at all.
  • Even more staggering – the three percent who had clear, written goals were earning, on average, ten times as much as the other 97 percent put together.

(Source:  from the book What They Don’t Teach You in the Harvard Business School, by Mark McCormack)

It’s common to move forward without written goals and for many (indeed most according to the Harvard study) with no goals at all.  But the advantage to be gained by having clearly articulated goals — goals you write down and commit to — is unparalleled.

Indeed I have had clients tell me they wrote down their goals for the calendar year and sometimes did not even look at them, and yet accomplished the vast majority of them.

Why is this?

  1. When you decide on something in your mind, your brain starts to look for ways to achieve it. The more specificity and greater detail the outcome is given, the easier it is for your mind to find ways to get it.  And finally, if it is written down, you have taken tangible action in commitment to the goal.
  2. From a purely functional place, the writing down of specific goals means that you will remember them – if you continue to look at them.
  3. Writing down your goals will also give you a measure of accountability. There is a difference between thinking a thing and taking committed action toward that thing.  Writing it down is the first step in action.

“When you are clear, what you want will show up in your life, and only to the extent you are clear.”  (The Passion Test, Attwood.)

As I have mentioned, there are more steps one could take that would make obtaining the goal even more certain.  In our upcoming seminar – Goal Setting for 2017 – we will teach you all these skills and steps.  But just deciding on your outcomes for the year and writing them down will make you vastly more likely to achieve them.

From the Goal-Setting Workshop, you will walk away with:

  • A clear vision of what you want to create in 2017, in all areas of your life
  • A “chunked down” list of milestones for the year to support you in attaining your outcomes for the year
  • An accountability partner (if you want one) to keep you on track to your outcomes

You will learn:

  • A specific tool to guide you in being purposeful not only throughout the year, but in all that you do
  • Why some people are more successful at reaching their goals than others and how to join the ranks of the successful

Register today for our goal setting workshop on January 17, 2017. Do it today and get it on your calendar and you will have laid the groundwork for next year!  You will be 100% more likely to achieve your goals than if you do nothing.

https://www.eventbrite.com/o/mclaren-coaching-3074191754

A recent comment from a current client:

“I had a long conversation with [my accountability partner] today and figured out that I am in overwhelm and unfocused.  I also feel like the end of year is soooooo busy and I was feeling drained.  Then, something interesting happened.  I started talking about planning for 2017 and, suddenly, I had more energy.  I felt the shift.  Changing my focus from “this is the end” to “this is the beginning” felt really good.  I’m taking it one day at a time right now.  I’m also going to the gym tonight.”

Signing up for the goals workshop will be your first step in planning for 2017.  When is the time to do that?  Now, of course.

 

You may reach Cami at:

Cami McLaren
McLaren Coaching
3110 “S” Street
Sacramento, CA 95816

(916) 747-3660

cami@mclarencoaching.com

Negativity in the Workplace – Part I – Why So Prevalent?

Posted on: September 28th, 2016 by Katrina Murphy No Comments

By Cami McLaren

This will be a 3-part series on the topic of negativity in the workplace – seeing it for what it is; deciding what to do; and a case study.

Part I – Why it is Contagious

When I teach classes to management, often I hear about the negativity that exists in the workplace.  This can be true no matter the company size or industry.  Law firms, banks, grocery stores – all have the same complaint:  too many complaints.

My first question is always why does it bother you?  And the answers typically include the following:

  • because it makes me feel bad too
  • a little bit of negativity brings everyone down
  • it spreads
  • it’s not fun to work here any more

From this we can see the two basic problems that arise from negativity in the workplace:  (1) it saps your energy, brings you down, makes you not want to do your job; and (2) it is contagious.

Study after study has shown in recent years that employee engagement is pretty low.  (One study states that only 30% of employees are truly engaged in their jobs.)  Our employees don’t really want to be there and don’t often see the point in their jobs.  I think a part of this is the negativity that pervades some workplaces.   But it’s a vicious cycle, isn’t it?  If I don’t like my job, I am going to come across as negative and the more negative I am the more I don’t like my job.

Why is negativity so contagious?  I think it comes back to the concept of rapport.  Rapport is something that comes naturally to human beings.  When I use “rapport” in this context, I am talking about the human desire to be with others like ourselves.  I am talking about the fact that you often are far more comfortable around people with whom you have something in common – gender, beliefs, hobbies, history.  For more in-depth treatment of the concept of rapport – specifically, consciously gaining rapport in order to win people over to your way of thinking and behaving – see other blog posts under “enrollment.”  [http://www.mclarencoaching.com/sell-without-selling-part-ii/]

Why is this rapport concept important in talking about negativity in the workplace?  People like to be in rapport.  This means that we naturally seek out others like us.  Look at your friends and notice what you have in common with them.  But it also means we become like the people we are around.  Look at your immediate family, especially your spouse, especially if you have been married for a significant amount of time.  What attitudes do you share, particularly attitudes you hold now that you may not have come into your marriage with?  Do you use similar language?  Do you have similar behaviors?  Do you (gulp) dress alike?

We become like that which we associate with.  This is the bad news and the good news.  Actually, it’s only bad news for you up to the point that you read this.  Because up until this point, you were likely unconscious of the fact that you were becoming like the people around you or maybe, that you had a choice in the matter.  The good news is now you know.  And now that you know, you can do something about it.  Not only can you choose not to get sucked in to the negativity around you, but you can also start to change things. 

 

Parts 2 and 3 of this article are available at:

http://www.mclarencoaching.com/negativity-in-the-workplace-part-ii-a-process-for-change/

http://www.mclarencoaching.com/negativity-in-the-workplace-part-iii-a-case-study/

 

For further information or to contact Cami McLaren you may reach her at

cami@mclarencoaching.com

Certified Professional Performance Coach

916-747-3660

www.McLarenCoaching.com