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August 2021 Seminar - Creating a Positive Work Culture

Seminar location: Online via Webinar
Date: Thursday, August 12th
Time: 9:00am – 10:30am
Price: $25 per person
Please reserve your spot no later than August 10th.
To reserve your spot, please email info@hrtogo.com or use the following link: 
https://register.gotowebinar.com/register/3678047130998396175

If you experience any technical issues with the above link, please contact info@hrtogo.com. 
24 hour cancellation notice is required.

The negative impact of a poor work culture can be an urgent problem for leaders.  It can bring down morale, create retention problems and undermines your efforts to build a productive workforce.  This course is designed to help you learn how to create a culture where employees can successfully work together by encouraging respectful behavior, increasing communication, and building trust and cooperation to overcome conflict. 

For more information, contact our office at 916.444.6200 or your HR Consultant!

Reminder: EEO-1 Component 1 Data Collection

The deadline to submit and certify 2019 and 2020 EEO-1 Component 1 data is Monday, August 23, 2021. After delaying the opening of the 2019 EEO-1 Component 1 data collection because of the COVID-19 public health emergency, the EEOC announced the opening of the 2019 and 2020 EEO-1 Component 1 data collection on April 26, 2021.  

As a reminder, the following employers are required to file the EEO-1 Component 1 Report annually:

  • Private employers (who are subject to Title VII of the Civil Rights Act of 1964, as amended) with 100 or more employees; OR
  • Private employers subject to Title VII who have fewer than 100 employees and are owned or affiliated with another company, or there is centralized ownership, control or management (such as central control of personnel policies and labor relations) so that the group legally constitutes a single enterprise, and the entire enterprise employs a total of 100 or more employees.
  • Federal contractors who (1) are not exempt as provided for by 41 CFR 60-1.5; (2) have 50 or more employees; (3) are prime contractors or first-tier subcontractors; and (4) have a contract, subcontract, or purchase order amounting to $50,0000 or more; OR
  • Federal contractors that serve as depositories of Government funds in any amount; or are financial institutions which are issuing and paying agents for U.S. savings bonds and savings notes.

Only those establishments located in the District of Columbia and the 50 states are required to submit an EEO-1 Component 1 Report. No reports should be filed for establishments in Puerto Rico, the Virgin Islands, or other American Protectorates.

State and local governments, public primary and secondary school systems, institutions of higher education, American Indian or Alaska Native tribes and tax-exempt private membership clubs other than labor organizations are also exempt from the EEO-1 Component 1 Report. However, non-profits and not for profit organizations are required to file the EEO-1 Component 1 Report.

Filers should visit https://EEOCdata.org/eeo1 for additional information.  

U.S. Equal Employment Opportunity Commission Website

California Court Ruling Could Complicate Background Checks

California employers should take note of a recent appellate court case that could complicate employment background checks.

When conducting background checks, it’s common to search for a person’s name in conjunction with a birthdate or driver’s license number so you can be sure you’re looking at the right records. But, in All of Us or None v. Hamrick, a California appellate court ruled that neither an individual’s birthdate nor driver’s license number can be used to identify someone when searching a court’s electronic criminal index.  

This case involves the California Rules of Court, which are detailed rules governing how state courts go about their business. In this case, at the center of the court’s holding are rules that specify how a court’s electronic records are made available to the public. The rules provide that courts maintaining an electronic index must provide remote electronic access to those indexes to the extent feasible. The rules also identify specific information that must be excluded from such indexes, including driver’s license numbers and birthdates.

In this case, plaintiffs alleged that Riverside Superior Court violated the rules by allowing people to use an individual’s date of birth or driver’s license number as search criteria when searching the court’s criminal records. The way the system worked, individuals searching the court records could not use the index to ascertain a particular individual’s date of birth or driver’s license number; rather, someone who already knew a particular individual’s date of birth or driver’s license number could use that information to narrow their search, which helped ensure the review of accurate records. The Riverside Superior Court argued that it didn’t violate the rules because it didn’t disclose the information; it just allowed individuals who already knew that information to use it as a data point to narrow their search.

The trial court found no violation of the California Rules of Court, but the appellate court reversed, holding that the rules prohibit the court from allowing searches of its electronic criminal index through use of an individual’s birthdate or driver’s license number.

The court’s ruling could make background checks more complicated for employers. By removing the ability to narrow searches by date of birth or driver’s license numbers, employers conducting background checks will likely have less reliable information. Searching for the name of a particular applicant or employee may show the criminal history of someone else with the same name.

Given the potential for broad search results and inaccurate records when conducting background checks, employers should brush up on California’s rules for criminal background checks. As a quick reminder, California significantly restricts employers’ ability to ask about or use criminal history in the hiring process. Only after a conditional offer of employment is made can an employer look at criminal history, and even then, there are restrictions on the type of criminal history that can be considered.

If an employer is considering denying an applicant a job due to prior convictions, the employer must conduct an individualized assessment to determine whether the conviction has a direct and adverse relationship with the job duties. The employer must also provide notice to the applicant of a preliminary decision not to hire, along with an explanation, and allow the applicant an opportunity to respond. After the opportunity to respond, if the employer still determines not to hire the applicant, the employer must provide another written notice to the applicant informing them of the decision.

Because of the court’s ruling, employers should be ready to more frequently engage in the individualized assessment, notice and response process to resolve the problem of multiple records coming back under the same name.

A petition for review in the California Supreme Court has been filed, but the court has not yet agreed to review the case. In the meantime, employers should review their background check procedures and consult with legal counsel to ensure they carefully comply with the individualized assessment and notice requirements of the law.

James W. Ward, Employment Law Subject Matter Expert/Legal Writer and Editor, CalChamber HR Watchdog

How to Handle Employee Conflict on Your Team

Managers aren’t just in charge of managing the work of the people on their team, they’re also in charge of managing the personalities on their team. That means managing people who work, communicate and interact differently—sometimes to the point that conflict arises.

“There is no such thing as a conflict-free team, and you don’t want a conflict-free team,” explained Amy Gallo, author of the HBR Guide to Dealing with Conflict (Harvard Business Review Press, 2017). “Disagreements over how the work should be done, what the goal of the work is or how we measure success” help lead to innovative ideas and even bonding between team members, she said.

However, personality conflict is different. When team members can’t seem to get along, that’s a whole different ball game. But as a manager, you should expect that this conflict will happen.

And once you’ve helped the team figure out how to work well together, be ready to start the process over again when new members come on board. “The reality is that many managers are managing teams that are fluid, given the way teams work now,” Gallo noted. “It’s rare that a manager will have five people on their team and that’s it. New people are staffed for projects, or managers are [put in charge of] a peer for a while because of the nature of special projects.”

As the team’s leader, it’s up to you to ensure that conflict on your team is dealt with. But that doesn’t mean you’re the one who should be squashing it.

Avoid Playing Referee

“It’s best for conflict to be handled between the two people having it as much as possible,” Gallo advised. “As a manager, you have to be firm about when you step in. Oftentimes people will expect you to do that over and over if you start playing referee instead of manager.”

To avoid becoming a referee, encourage your team members to work out their differences on their own. But be ready to get involved. One instance where you might have to step in is if conflict has become noticeable to you or other team members, but the involved parties don’t recognize there’s an issue or won’t take the initiative to solve it on their own. “Often, the first step is simply informing them, separately and privately, that their conflict is noticeable and affects the workplace,” explained Andrey Doichev, founder of Inc and Go, a company that streamlines the legal process of setting up a business.

Next, whether you’ve initiated the conversation or one or both conflicting team members have come to you, consider exactly how involved you want to get. For Gallo, it’s about being a supportive and available coaching resource for employees as they work to squash the beef on their own.

If you use a coaching approach, consider helping the involved parties develop empathy for each other. Ask what they think might be going on with the other person, what they might want out of the situation and to try putting themselves in the other person’s shoes. Then you can help them brainstorm potential solutions.

Some conflicts demand a manager’s involvement. If you find out that something inappropriate has happened—anything from harassment to a team member lying about work—”you have to call those behaviors out,” Gallo said. It’s best to do this privately.

Preventing Conflict in the First Place

Overall, though, the best way that managers can handle conflict on their team is to prevent it.

It can be tempting to hire people who are similar. It might seem like a homogenous approach can help prevent conflict. But the lack of diversity can itself be problematic.

Instead, “consider how someone has resolved conflict in the past. One interview question could be, ‘Describe a conflict you’ve had with a co-worker. How did you resolve it?’ ” Gallo said. “It should give insight into how they think about conflict and getting past it.”

Next, tell your team that conflict is natural and expected, but so is a professional resolution of it. This is a great time to set boundaries around how you will and won’t get involved with conflict. Explain that you expect the team to resolve it among themselves but be clear that you’re available to help coach them through it.

Another way to pre-empt conflict is to help your team members get to know one another better. While personality assessments are far from the be-all-end-all, they can be useful as a way for your employees to discuss everything from working styles and communication preferences to whether people tend to be early or late to meetings.

Consider asking employees to write out their work preferences—like a user guide for each person, Gallo said. Such guides can indicate whether people are early birds or night owls, or if they prefer to be reached by phone, text, Slack or e-mail. When we know that someone is chronically late to meetings, it’s much easier to avoid taking it personally and not mistake tardiness for a lack of respect. The key is to keep the guides short, simple and to the point, Gallo said.

Jeremy Ong, founder of HUSTLR, a Singapore-based personal finance blog, recently discovered the value of this type of communication during the pandemic. “All communication among team members went online,” he said, and miscommunication arose. Ong’s solution was to create a company communication guide that clearly outlined “how all members communicate, how to reach the right member at the right time, and all information needed about communication channels and tools.”

So far, he said, the communication guide has been a lifesaver; the time and effort previously sucked up by conflict is now used elsewhere.

Cinnamon Janzer, SHRM

July 2021 Seminar - Supervisor Harassment & Discrimination Prevention Training (AB 1825 Compliant)

Seminar location: Online via Webinar
Date: Thursday, July 8th
Time: 9:00am – 11:00am
Price: $50 per person
Please reserve your spot no later than July 6th.
To reserve your spot, please email info@hrtogo.com or use the following link: 
https://register.gotowebinar.com/register/7350362091103385616

If you experience any technical issues with the above link, please contact info@hrtogo.com. 
24 hour cancellation notice is required.

Employers and supervisors have a responsibility to provide a harassment or discrimination-free work environment. Permitting harassment or discrimination, or failing to take steps to deal with harassment claims, can land employers and supervisors in legal hot water.  This seminar will discuss how to create a workplace environment that discourages harassment and discrimination by supervisors and coworkers; the different ways harassment and discrimination can take place; how to tell the difference between behavior that’s just annoying and behavior that’s illegal; and what to do if an employee raises a harassment or discrimination claim.  

For more information, contact our office at 916.444.6200 or your HR Consultant!

Don’t Deny Vacation Due to Recent Use of COVID Sick Leave

My employee used most of her COVID-19 Supplemental Paid Sick Leave over the last couple of weeks. Now she wants to take a week’s vacation. Can I deny the vacation request since several other employees in that department, who have been working lots of extra hours to cover her missed shifts, also want to take that same week off?

Denying your employee’s vacation request because she has been absent a lot lately using her California COVID-19 Supplemental Paid Sick Leave could result in a claim that you are retaliating against her for using that protected leave.

Employees who use COVID-19 Supplemental Paid Sick Leave are protected from retaliation under Labor Code Section 246.5(c), which prohibits an employer from discriminating in any manner against an employee for using those COVID-related sick days.

Look to Employee Handbook

In this instance, the employer should look to whatever regular policy it has in place for determining which vacation requests to approve. It should first consider any employee handbook that is in place to determine how vacation requests are prioritized, if that is covered in the handbook.

Many employers use a seniority system, with more senior employees having priority. Other employers may approve vacation requests based on a “first come, first served” basis, meaning whoever turned in their request first has priority.

There might also be a system in place where a manager must determine which positions have sufficient coverage based on business needs at that time to approve a vacation request.

If the handbook policy provides guidance, then the employer should use that system and not use the employee’s recent use of COVID-19 Supplemental Paid Sick Leave as a factor in making a decision.

Past Practice

If the employee handbook does not specify how vacation requests are considered, then the employer should look to its past practice for guidance. Staying consistent with past practice in how vacation requests are given priority (assuming that practice relies on legitimate and nondiscriminatory factors) may negate the employee’s claim that there was retaliation for exercising her legal right to use COVID-19 Supplemental Paid Sick Leave.

If there is an established nondiscriminatory practice, then the employer should use that system and not consider the employee’s recent use of COVID-19 Supplemental Paid Sick Leave as a factor in making a decision.

Be Fair

Finally, if there is no written policy and no past practice, the employer should find a fair way to decide which vacation requests to approve without taking into account the employee’s recent protected COVID-related absences.

Whatever method the employer chooses would then become the company precedent for similar situations in the future.

Ellen Savage, HR Adviser, CalChamber HR Watchdog

Can Employers Have Separate Policies Based on Vaccination Status?

By now, many employers know that federal, state and local COVID-19 workplace safety guidelines distinguish between vaccinated and unvaccinated employees. While businesses can create policies with different mask and social-distancing rules based on inoculation status, attorneys say they should tread carefully.

Adam Kemper, an attorney with Kelley Kronenberg in Fort Lauderdale, Fla., suggested that employers conduct a confidential survey to determine how many employees have been vaccinated. Perhaps the staff is fully vaccinated and restrictions can be loosened for everyone. But if there’s still a mix of vaccinated and unvaccinated workers, he said, the safest route for employers is to continue requiring masks and social distancing.

“From a safety perspective, there is really no problem differentiating between vaccinated and unvaccinated,” said Todd Logsdon, an attorney with Fisher Phillips in Louisville, Ky. For issues outside of the Occupational Safety and Health Administration’s (OSHA’s) jurisdiction, however, the biggest concern would be the need to provide reasonable accommodations for disability-related or religious reasons. He noted that employers may want to consider employee morale issues, too.

“Employers need to be very cautious when they make these distinctions because they can invite unlawful discrimination,” said Courtney Malveaux, an attorney with Jackson Lewis in Richmond, Va. “Managers need to be careful not to exclude unvaccinated employees from meetings or opportunities because their presence requires protective measures. That is especially true for employees who may decline to get vaccinated because of sincerely held religious beliefs or because of pregnancy or a disability.”

Know Which Rules and Guidelines Apply

Before updating their policies, employers need to ensure that they understand how federal, state and local rules and guidelines apply to their worksites. 

OSHA recently updated its guidelines to align with recommendations from the U.S. Centers for Disease Control and Prevention (CDC). According to the CDC, fully vaccinated employees can safely work indoors in many situations without wearing masks, social distancing or undergoing COVID-19 screening procedures.

Outside of the health care industry, OSHA said, employers “no longer need to take steps to protect their fully vaccinated workers who are not otherwise at risk from COVID-19 exposure,” except when measures are “required by federal, state, local, tribal, or territorial laws, rules, and regulations.” However, employers need to continue taking steps to protect unvaccinated and otherwise at-risk workers who may have a weakened response to the vaccine.

“The guidance clearly states that it is advisory only, not a standard or rule,” noted Rob Duston, an attorney with Saul Ewing Arnstein & Lehr in Washington, D.C.

OSHA’s new guidelines don’t address whether an employer’s failure to follow them would violate the Occupational Safety and Health Act’s general duty clause and subject the employer to possible sanctions.

The general duty clause requires employers to provide a work environment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” According to Bloomberg Law, OSHA recently has done more inspections in workplaces where COVID-19 could be a hazard, even without receiving a related complaint.

In addition to tracking federal guidelines, employers need to watch developments in the states and cities where they operate, Duston noted. Vaccination status is not a protected category under federal or most state anti-discrimination laws. However, Montana recently became the first state to ban workplace discrimination based on immunization status, and some other states are considering legislation that would do the same.

Some states are blocking businesses and government agencies from requiring people to produce vaccine passports—documentation that they’ve been vaccinated against COVID-19. But in most states, private employers can continue to ask whether workers are vaccinated, and employers in some locations may be obligated to do so.

Many states are aligning their rules with federal guidelines. For example, the California Division of Occupational Safety and Health (which is known as Cal/OSHA) revised its COVID-19 safety rules to allow fully vaccinated employees to forgo masks in many indoor settings and most employees (regardless of vaccination status) to work outside without wearing masks. Many restrictions remain in place, however, for unvaccinated employees who work indoors, and employers must document vaccination status before lifting indoor mask policies.

Assess the Risks

Most employers can safely follow CDC and OSHA guidance and apply different rules to protect unvaccinated employees from COVID-19-related risks, Duston said.

Kemper cautioned, “Don’t misunderstand what OSHA is saying and loosen restrictions for all workers.”

OSHA said unvaccinated workers should:

  • Identify opportunities to get vaccinated.
  • Properly wear a face mask that covers the nose and mouth.
  • Stay at least 6 feet away from other people.
  • Be aware of whether rooms are properly ventilated.
  • Practice good personal hygiene and wash hands often.

Employers can choose to still require vaccinated employees to wear masks, Duston said, but OSHA’s guidelines allow them to permit vaccinated employees to not wear masks in the workplace. He noted that ambiguities remain as to whether vaccinated employees should maintain social distancing if they are around unvaccinated employees. “The way the guidance is written, the burden is on the employer to structure the workplace so that unvaccinated employees maintain distancing from each other.”

Many policy risks for employers don’t have to do with legal compliance, Duston observed. Employers have to consider the impact on company culture and employee morale if they differentiate between vaccinated and unvaccinated workers.

Malveaux noted that employees have a variety of reasons for continuing to wear masks, and they may choose to do so for a long time. They may be unvaccinated for any number of reasons. They may be immunocompromised. Or they might be vaccinated and just want to be careful. 

“The danger is in making assumptions and treating employees differently,” Malveaux said. “Smart employers and their managers are making space without making assumptions.”

Kemper said employers need to be consistent and fully knowledgeable of employee vaccination status before modifying safety requirements. “At the end of day, what you want is for all employees to feel they are being treated fairly.” 

Lisa Nagele-PIazzaa, J.D., SHRM-SCP, SHRM

Cal/OSHA Reminds Employers to Protect Outdoor Workers from Heat Illness

Sacramento – Cal/OSHA is reminding all employers to protect outdoor workers from heat illness as excessive heat warnings have been issued throughout the state. Employers in California must take steps to protect outdoor workers from heat illness by providing water, rest, shade and training.

Cal/OSHA’s heat illness prevention standard applies to all outdoor worksites. To prevent heat illness, the law requires employers to provide outdoor workers fresh water, access to shade at 80 degrees and whenever requested by a worker, cool-down rest breaks in addition to regular breaks and maintain a written prevention plan with training on the signs of heat illness and what to do in case of an emergency.

Plan – Develop and implement an effective written heat illness prevention plan that includes emergency response procedures.
Training – Train all employees and supervisors on heat illness prevention.
Water – Provide drinking water that is fresh, pure, suitably cool and free of charge so that each worker can drink at least 1 quart per hour, and encourage workers to do so.
Rest – Encourage workers to take a cool-down rest in the shade for at least five minutes when they feel the need to do so to protect themselves from overheating. Workers should not wait until they feel sick to cool down.
Shade – Provide proper shade when temperatures exceed 80 degrees. Workers have the right to request and be provided shade to cool off at any time.

CA Department of Industrial Relations Website

For questions related to Cal/OSHA’s heat illness prevention requirements and training, contact our office at 916.444.6200, info@hrtogo.com or your HR Consultant directly. 

June 2021 Seminar - Dealing with Difficult Employees

Seminar location: Online via Webinar
Date: Thursday, June 10th
Time: 9:00am – 10:30am
Price: $25 per person
Please reserve your spot no later than June 8th.
To reserve your spot, please email info@hrtogo.com or use the following link: 
https://register.gotowebinar.com/register/3216208265603961101

If you experience any technical issues with the above link, please contact info@hrtogo.com. 
24 hour cancellation notice is required.

Conflicts in the workplace are distracting, uncomfortable, and emotional.  It is a common challenge for managers to handle these situations while avoiding legal pitfalls.  But with the right tools and training, managers can successfully resolve – and reduce – incidents.  In this seminar, you’ll learn about how to identify conflicts early and decide the best course of action; specific action steps for handling conflicts effectively and legally; and ways to reduce current workplace conflicts and prevent small squabbles from becoming full-blown incidents.

For more information, contact our office at 916.444.6200 or your HR Consultant!

Summer Is Almost Here, So Are July 1 Local Minimum Wage Increases

Summer is quickly approaching, and with it comes local minimum wage increases for a number of California localities. Here’s a list of localities that will have minimum wage increases effective July 1, 2021:

  • Berkeley: $16.32/hour;
  • Emeryville: $17.13/hour;
  • Fremont: $15.25/hour for employers with 26 or more employees; $15/hour for employers with 25 or fewer employees;
  • *Los Angeles City: $15/hour for employers with 25 or fewer employees;
  • *Los Angeles County (unincorporated areas): $15/hour for employers with 25 or fewer employees;
  • *Malibu: $15/hour for employers with 25 or fewer employees;
  • Milpitas: $15.65/hour;
  • *Pasadena: $15/hour for employers with 25 or fewer employees;
  • San Francisco: $16.32/hour; and
  • *Santa Monica: $15/hour for employers with 25 or fewer employees.

*The minimum wage rates for these localities will remain at $15/hour for employers with 26 or more employees, with a future increase effective July 1, 2022. The City of Alameda will also remain at its current $15/hour rate with a future increase on July 1, 2022.

Employers should review their hourly wage rates of their employees working in any local jurisdictions listed above and make any necessary adjustments by July 1 to comply. Don’t forget to pay attention to where your remote employees are located, as they very well could be subject to local minimum wage and other ordinances they may not typically be when reporting to the worksite.

Bianca Saad, Employment Law Counsel/Subject Matter Expert, CalChamber HR Watchdog

Many of these local ordinances contain notice requirements. For more information about required posters that are compliant with various California city and county local ordinances, contact our office at 916.444.6200, info@hrtogo.com or your HR Consultant directly. 

As Temps Rise, Protect Your Outdoor Workers from Heat Illness

As the first major heat wave of the season sends temperatures across California into the 100s, Cal/OSHA reminds all employers to review high temperature advisories and warnings in effect throughout the week — and to protect their outdoor workers from heat illness while also taking steps to prevent the spread of COVID-19.

Heat illness occurs when the body’s temperature control system is incapable of maintaining an acceptable temperature. While the body typically cools itself by sweating, high temperatures and humidity prevent the body from efficiently releasing heat, so body temperature can rise quickly. Because very high body temperatures can damage the brain and other vital organs, and may eventually lead to death, it’s imperative that employers with outdoor workers take several precautions to protect those workers.

California’s heat illness prevention standard applies to all outdoor workers, as well as those who spend a significant amount of time working outdoors, such as security guards and groundskeepers, or in non-air-conditioned vehicles, such as delivery drivers.

To prevent heat illness, employers with outdoor workers must:

•    Develop and implement an effective, written heat illness prevention plan that includes emergency response procedures.
•    Train all employees and supervisors on heat illness prevention.
•    Provide drinking water that is fresh, pure, suitably cool and free of charge so each worker can drink at least one quart per hour — and encourage workers to do so.
•    Provide shade when workers request it or when temperatures exceed 80 degrees. Encourage workers to take a cool-down rest in the shade for at least five minutes when they feel the need to do so to protect themselves from overheating. Workers should not wait until they feel sick to cool down.

Heat Illness During COVID-19

Because COVID-19 is still widespread and considered a workplace hazard, Cal/OSHA notes that employers should allow enough space and time for employees to take breaks as needed in adequate shade while also maintaining a safe distance from one another. Extra infection prevention measures — such as disinfecting commonly touched surfaces, including the water and restroom facilities — should be in place.

And while employers should provide cloth face coverings to help prevent COVID-19’s spread (or allow workers to use their own), wearing such face coverings can make it more difficult to breathe and harder for a worker to cool off, so additional breaks may be needed to prevent overheating. Cal/OSHA specifically states that, at this time, agricultural and other outdoor workers are not encouraged to use surgical or respirator masks as face coverings

Jessica Mulholland, Managing Editor, CalChamber HR Watchdog

For questions related to Cal/OSHA’s heat illness prevention requirements and training, contact our office at 916.444.6200, info@hrtogo.com or your HR Consultant directly. 

Job Openings Reach Record High, But Where Are the Applicants?

The number of available jobs in the U.S. is at a record-breaking high while unemployment remains significantly elevated, leading employers in need of workers to wonder, where are all the job applicants?

The latest monthly Job Openings and Labor Turnover Survey, or JOLTS report, from the U.S. Department of Labor (DOL) showed job openings surged to a record high in March, led by 185,000 new openings in hospitality and food services. Openings overall shot up 597,000 to 8.1 million by the end of March, the highest monthly total since the report debuted in 2000.

“The extraordinarily high job openings number is a sign of how strong labor demand is as employers quickly ramp up after almost 16 months of an economy that was ravaged by the pandemic,” said Nick Bunker, an economist at the Indeed Hiring Lab.

Postings on job search sites like Indeed have also surged above pre-pandemic levels.

“It’s only natural that you’d see record job openings this year after record job losses last year,” said Nela Richardson, senior vice president and chief economist at ADP. “Over 20 million jobs were erased in a two-month period in 2020, about as many as were created over the preceding decade.”

A separate report from the National Federation of Independent Business (NFIB) showed small businesses reporting record-high vacancies in April. “Small-business owners are seeing a growth in sales but are stunted by not having enough workers,” said NFIB Chief Economist Bill Dunkelberg. “Finding qualified employees remains the biggest challenge for small businesses and is slowing economic growth.”

Meanwhile, nearly 10 million people are classified as unemployed, meaning they are actively looking for a job. Payrolls increased by only 266,000 jobs in April, the unemployment rate crept up to 6.1 percent and employment is more than 8 million jobs below where it was in February 2020, before the coronavirus pandemic emerged to wreak havoc on the economy.

So what is behind the disconnect among an abundance of open jobs, persistently high unemployment and the lack of workers applying for those jobs?

No Clear Answer

“It’s a really complex issue, and the answer lies in a confluence of a number of things,” said Isabel Soto, the director of labor market policy at the American Action Forum in Washington, D.C. “One popular culprit is a lack of access to child care. Another is still the pandemic itself.”

Experts agreed that while tremendous strides have been made in the vaccination rollout and COVID-19 cases have been declining, the virus is still circulating and only half of adults just became fully vaccinated.

“[Labor] demand can move a lot more quickly than supply,” Bunker said. “Employers want to add a large number of workers right now, but workers may not be ready to take that step. Many people had to adjust their lives over the last 15 months and may need more time to unwind concerns about being physically close to other people.”

Richardson added that it’s becoming apparent that a seamless reattachment of pre-pandemic employee to employer is not going to happen. “Some small businesses went out of business. In the process of reopening, some companies may have changed the roles they are hiring for—delivery drivers instead of in-store retail workers, for example. There are structural shifts in the labor market and beyond that make reattachment not as easy to accomplish. The lack of child care and not all schools reopening have been a real impediment to employment.”

Pandemic-related early retirements may also be more significant than previously thought, Bunker said. And there is still a historically large number of people who report being on temporary layoff or furlough, who may be holding out for their old jobs, he added.

A skills mismatch is another explanation for the apparent worker shortage, as those classified as unemployed may not have the skills to qualify for open roles. Still others say employers need to pay higher wages. Companies like Chipotle and McDonald’s are announcing that they are raising compensation for hourly workers and offering referral and signing bonuses to attract workers.

Focus on Jobless Benefits

The most contentious debate over the reason for reported labor shortages revolves around the weekly $300 federal unemployment benefit, which is paid on top of regular unemployment payments. There are also new programs that cover people who are self-employed, gig workers and others who do not qualify for regular state unemployment insurance programs, as well as waived eligibility requirements to receive unemployment benefits.

In the week ending May 1, about 16 million people collected unemployment across all programs, of which over 6.6 million people are those who had not been traditionally eligible, and 5.1 million were enrolled in a program for assistance that extends the number of weeks one can qualify for benefits.

Economists have found that, on average, anyone who previously made less than about $34,000 per year would receive more money by collecting jobless benefits than the person would by returning to work. Are the enhanced benefits, due to expire in early September, temporarily discouraging millions of people from rejoining the labor force?

“Enhanced unemployment benefits are a big factor,” Soto said. “These unemployment benefits do disincentivize people from going to work. You can’t blame people for staying home when they can make twice as much not working than going back to work.”

Soto added that enabling people to get back to work as quickly as possible should be the main focus for policymakers. “Ending the $300 weekly supplemental unemployment benefit would be a move in the right direction. The greater wage replacement people have with unemployment benefits, the longer spells of unemployment typically happen. We’ve seen that with past recessions.”

Bunker said the weekly unemployment supplement could be a factor in some unemployed workers becoming choosier about a new job.

Michael Farren, a research fellow at the Mercatus Center at George Mason University in Arlington, Va., agreed, saying, “Workers know that they have until the end of August to find the job they really want and not just any job. But the longer a person stays out of the labor force, the more likely they are to never rejoin the labor force. Skills decrease, labor force attachment decreases, work habits diminish and people adapt to a new normal.”

Farren believes that the increased generosity of federal unemployment benefits and relaxed eligibility restrictions have contributed to worker hesitancy to rejoining the labor market. But he doesn’t think those changes are the biggest factors, citing health and family care concerns as stronger contributing drivers than the padded unemployment checks.

One clue comes from the government’s data collection. The JOLTS data is from March, and the unemployment rate is from mid-April. “The two reports don’t reflect the same time period, and the economy is undergoing rapid change right now,” he said. “The working-age population wasn’t even permitted to get a vaccine until after the unemployment rate data was collected. Arguably, you still had a lot of people avoiding the workforce while that data was being collected, for health reasons and fear of contracting the virus. A substantial number of schools were also still closed down for in-person learning or conducting partial in-person learning during that time, keeping some parents from applying for a new job.”

States Taking Action

The revolt against the federal unemployment benefits began in Montana. “Incentives matter, and the vast expansion of federal unemployment benefits is now doing more harm than good,” said Gov. Greg Gianforte. “We need to incentivize Montanans to re-enter the workforce.”

Gianforte said that by June 27 Montana will end its acceptance of expanded unemployment benefits from the federal government. Montana already offers a maximum individual unemployment benefit of $572 a week. With state and federal benefits combined, it was estimated that about half of Montana’s workers made more on unemployment than they did while working.

Gianforte also plans to issue regulations to strengthen requirements that people who are collecting unemployment checks show that they are able and available to work and actively looking for a job. He said the state will offer $1,200 to anyone who was collecting unemployment as of May 4, gets a job and keeps it for four weeks.

Since the governor’s announcement on May 4, at least 23 additional states have followed suit in pulling out of federal unemployment benefits in June and July, and President Joe Biden responded by ordering the Labor Department to ensure that unemployed workers do not draw enhanced federal jobless benefits if they turn down a suitable job offer. The DOL will also work with states to reinstate work-search requirements, which require that anyone collecting unemployment benefits provide proof that they are actively looking for work. At least 36 states will now require anyone collecting unemployment to search for a job and provide evidence that they’re doing so.

Roy Maur, SHRM

May 2021 Seminar - 10 Things Employers Do to Get Sued

Seminar location: Online via Webinar
Date: Thursday, May 13th
Time: 9:00am – 10:30am
Price: $25 per person
Please reserve your spot no later than May 11th.
To reserve your spot, please email info@hrtogo.com or use the following link:
https://register.gotowebinar.com/register/4839642680835103757

If you experience any technical issues with the above link, please contact info@hrtogo.com. 
24 hour cancellation notice is required.

Don’t wait until it is too late before you learn about ways to avoid being a victim of a common workplace lawsuit.  We will discuss the most common types of employment lawsuits as well as policies and steps that have helped others stay out of court.  Learn about when an action or lack of action by a supervisor can lead to a lawsuit.  Through these strategies and suggestions, you will be able to stay out of court and stay focused on what matters most – the company’s success.  

For more information, contact our office at 916.444.6200 or your HR Consultant!

Making the Case for Return to Office

As a rising percentage of the population receives vaccines for COVID-19, many employers want employees to return to the workplace. Some employees, feeling isolated, want to return. But some don’t, and employers will need to make the case for bringing them back.

Many employers have found telework during COVID to be successful for their organizations and on the flipside, many managers have seen a decline in the productivity gains experienced at the outset of the pandemic, citing employees’ need for the psychosocial elements of work. Savvy employers have found safe means for engaging in return-to-worksite with a focus on building better people manager mechanisms and resources for employee wellness. There will be more remote-work opportunities post-COVID-19 than before, but the majority of employers will return to a worksite as their primary office.

CEOs globally are wrestling with the best next step for their employees, but most agree a decision should be made soon. “For most employers, it is time to return to work or make a decision about making remote work a more permanent part of the organization,” said Ashley Cuttino, an attorney with Ogletree Deakins.

One challenge is employees’ fear about whether returning to work is safe, Cuttino said. “The No. 1 thing employers should do is communicate about their safety plans and what the workplace will look like when they come back,” she said.

Employers will need to communicate return-to-work plans and emphasize the business rationale for that approach. Providing that basis will go a long way toward building the trust necessary to ensure that employees are ready to return and know they are returning for the right reasons.

Business Case

Reasons employers have for requiring a return to the worksite, include:

  • A belief that productivity increases for some roles.
  • The ability for executives and managers to check in and assess what workers are doing.

Interacting in person helps employees foster relationships with co-workers, build trust, collaborate more successfully and advance within the organization, which in turn drives workers’ productivity and morale.

Employers had to move mass portions of the workforce to remote work quickly at the pandemic’s outset. Now, most employers realize they need to either resume normal business operations or invest in more permanent remote work in the future.

Employees’ Perspectives

Employees who desire to return to the office—and, to be clear, many don’t—are hoping to resume camaraderie and collegiality.

Working from home can leave employees feeling isolated despite all the technology that keeps workers connected. This is particularly true for those employees who live alone and miss interacting with co-workers and customers.

Based on a survey of more than 500 participants from companies of all sizes, Seyfarth at Work found that the things remote employees miss the most include:

  • In-person workplace conversations (cited by 61 percent of respondents).
  • The regular and daily structure of reporting to a worksite (42 percent).
  • Lunches and happy hours with colleagues (40 percent).
  • Reduced interruptions by kids during the workday (37 percent).

Challenges 

But hurdles remain to returning to the worksite.

One big challenge is coordinating work schedules with school schedules. If school buildings are closed, Cuttino noted, it’s difficult for working parents to return to the office. Another challenge is overcoming employees’ fears about returning to the worksite. Diminish those fears by emphasizing that the employer is following local and national guidelines, she recommended.

We are still in the midst of a global pandemic. Employers should continue to follow public health guidelines, including social distancing, maintaining cleanliness and other measures. Some career fields, such as customer service and IT positions, may continue to lend themselves to remote work. Nonetheless, many underestimated the impact of seeing people in the workplace. For many, it’s become a real issue.

CDC Guidance

The Centers for Disease Control and Prevention has issued guidance for employers seeking to re-establish in-person business operations.

The guidance has many considerations for employers before returning employees to the worksite, including modifying seats, furniture and workstations to maintain social distancing of 6 feet between employees, where possible.

According to the Society for Human Resources Management, sixty-four percent of salaried U.S. employees are working from home right now, and while things like remote work and flexible schedules have allowed many businesses to continue operating, coming back into the office won’t be as easy as flipping a switch. Things you might not even think about will need to be addressed. 

Allen Smith, J.D., SHRM

Adopted Wildfire Smoke Regulation Clarifies Employer Obligations

With a new fire season approaching, has the California Division of Occupational Safety and Health (Cal/OSHA) developed additional regulations to address the hazards and mitigation of employee exposure to wildfire smoke?

The emergency wildfire smoke regulations promulgated by Cal/OSHA and adopted by the Standards Board (OSHSB) on July 18, 2019, have been revised, adopted and approved by the Office of Administrative Law (OAL) as new Section 5141.1 of Title 8, the California Code of Regulations.

The new section, “Protection from Wildfire Smoke,” went into effect on February 1, 2021.

As the result of the catastrophic fire season of 2018, Cal/OSHA promulgated the emergency wildfire smoke regulation. This emergency regulation was not to be the final source for guidance and Cal/OSHA regulatory mandates.

Subsequently, the Cal/OSHA Standards Board presented the proposed revision of Title 8, Section 5141.1 emergency wildfire regulation. The purpose is to preserve worker safety and health and to clarify employers’ existing obligations, with the intent of making compliance easier, simpler and more straightforward.

Although the adopted regulation is substantially unchanged, there were areas within the emergency version that were not wholly clear. The adopted rule contains editorial revisions, tables are now clearly delineated, and some references to the air quality index (AQI) are deleted.

Clarifying Revisions

The following is a listing of some of the areas of revision and modifications. Some revisions are:

  • Clarifying that doors of structures or vehicles may be opened for access or egress.
  • Identifying reference tables.
  • Employee exposure is to be determined at the start of the shift, as noted in subsection (c).
  • Subsection (c) does not apply if the employer assumes the AQI is greater than 500 and complies with subsection (f), which outlines engineering, administrative and other controls.
  • In an emergency, an AQI of 151 is assumed and the requirements of subsection (f)(4) are to be complied with.
  • A new Appendix A has been added, applying to employer monitoring of PM 2.5 levels with a direct reading instrument.
  • A new Appendix B has been added to address information to be provided to employees.
  • Subsection (g) of Appendix B addresses the importance, limitations and benefits of respirators and the need for instruction on their use.

Visit Website

The adopted regulation contains other revisions from the emergency rule and for that reason I recommend that you refer to Cal/OSHA’s website. There you will find the proposed regulation. This relates to the first iteration of the amendment process, before the first comment period.

Although there may be differences in the final approved copy, the courtesy copy will give a clearer understanding of the final document and revisions that were made.

Mel Davis, Cal/OSHA Adviser, CalChamber HR Watchdog

Viewpoint: Helping Young Adults Adapt to the Workplace

As college graduates enter the workforce, they typically have many questions. Having a supportive manager who provides meaningful guidance can make all the difference. However, everyone has a different idea about what being a good manager entails. And often, the way we manage others reflects what we need.

Feedback and Clarity

In a recent discussion post, 70 young adults were asked to define what they needed from their managers to transition into the workplace successfully. Two themes were prominent: More than 60 percent of respondents prioritized ongoing feedback and clear expectations. The need for clarity at work is sensible, especially given the structured learning environment prevalent in colleges and universities.

The role of ongoing feedback for young adults has been discussed at length in previous articles. Managers who provide regular feedback help young adults grow, encouraging them to take more risks at work. However, ongoing feedback goes beyond helping people structure their approach to work. Instead, it signals to the employee that the manager desires to build a relationship with them, and it shows they care.

Caring for employees appears to be one of the best ways to retain young employees. As one young professional explained: “If I can’t approach my manager, I would not even want to work there. My manager is someone I look up to, and I should be able to approach them with any questions or concerns.”

Equality Matters

However, young professionals aren’t just concerned about how their managers treat them. Comments from young adults revealed that they are also concerned about how their managers treat their colleagues. More than one-third of respondents strive for an equitable environment where all employees are seen, heard and treated with respect. As described in a Washington Post article published earlier this year, young adults are less attracted to companies that don’t prioritize diversity and inclusion, and they expect companies to have meaningful action plans.

According to the Pew Research Center, more than 52 percent of the post-Millennial generation are minorities. As such, most young adults have gone to school with others who have ethnic and racial backgrounds different from their own. Consequently, young adults hold their managers accountable for fostering an inclusive work environment.

As one young adult stressed, managers need to be consistent across the board—with the distribution of work, in the treatment of every individual in the team, and with their words and actions. Another commented that managers who treat all employees equally show their trust in those employees to perform their respective responsibilities.  

The latter point is particularly important; the discussion post indicated that young adults prioritize trust between themselves and their managers. Young adults associate their manager’s trust with having confidence in their abilities to do the job, thereby avoiding any reason to micromanage their performance. Trusting their manager is also important because young adults are more likely to communicate openly, express work-related concerns and share new ideas. However, managers can erode trust if they fail to maintain confidentiality when young adults share something personal. Lastly, young adults said that when mutual trust is present, they are more motivated at work.

What Managers Should Do

To help young adults transition into the workplace, managers should:

  • Build trusting relationships with young adults so that they feel comfortable approaching you if they are experiencing challenges both inside and outside the workplace. This starts with managers being transparent.  
  • Practice patience when employees are learning new tasks and give them room to learn from mistakes instead of judging them.
  • Demonstrate equality across all employees, calling out behavior that silences or excludes any employee.
  • Provide clear directions when a task or responsibility is initially assigned. If expectations change, share updates with the employees immediately.
  • Share ongoing feedback, including constructive criticism. However, young adults are responsible for reaching out to managers when they want feedback.  

What Managers Should Avoid

When working with young employees, managers should not: 

  • Give young adults tasks without explaining the end goals.
  • Assume young adults do not have responsibilities outside of work.
  • Send employees for additional training without first discussing the challenges they are experiencing and providing one-on-one guidance.
  • Use a judgmental, passive-aggressive tone in any communication medium, including e-mail and one-on-one conversations. This can discourage young adults from asking questions and seeking guidance when they experience challenges.

Kyra Sutton, Ph.D, SHRM

April 2021 Seminar - HR 101 for Supervisors

Seminar location: Online via Webinar
Date: Thursday, April 8th
Time: 9:00am – 10:30am
Price: $25 per person
Please reserve your spot no later than April 6th.
To reserve your spot, please email info@hrtogo.com or use the following link:
https://register.gotowebinar.com/register/2835849808792339467

If you experience any technical issues with the above link, please contact info@hrtogo.com.
24 hour cancellation notice is required.

Being a supervisor can sometimes feel overwhelming. There are so many employment laws that it’s difficult to know what you need to do, and what you can’t do. In addition, you are responsible for working with your staff to help them to be as productive as they can, and it’s not always clear how to do that. You also need to know how to manage poor performance. This class will cover the basics, and you will walk away with an understanding of the most critical legal obligations, some tips on how to manage your staff for peak performance, and how to handle some difficult situations you might encounter as a supervisor.

For more information, contact our office at 916.444.6200 or your HR Consultant!

American Rescue Plan Act (ARPA) Brings More Financial Relief
April 2021

On March 11, 2021, President Joe Biden signed the $1.9 trillion American Rescue Plan Act (ARPA) into law, creating a third stimulus package since the COVID-19 pandemic started one year ago. The ARPA focuses on several employment-related economic benefits such as paid sick leave, financial support for small businesses and enhanced unemployment benefits. Here’s the main ARPA points that employers should know.

Emergency Paid Sick Leave Updates

One of the first COVID-19-related federal bills passed last year, the Families First Coronavirus Response Act (FFCRA), created a new emergency paid sick leave (EPSL) and expanded the Family and Medical Leave Act (E-FMLA). Together, these leave entitlements helped provide paid leave to workers for several COVID-19-related reasons, including to isolate and get tested as well as school and childcare closures, while employers benefitted from a tax credit for paying for the leave.

As previously reported, the mandate to provide FFCRA leave expired on December 31, 2020, but the second stimulus bill, the Heroes Act, allowed employers to continue voluntarily providing EPSL and E-FMLA that employees didn’t use in 2020 and receive the tax benefit through March 31, 2021. The ARPA goes a little further than the Heroes Act but stopped short of reinstating the employer mandate. Here are some of the key changes ARPA made to the EPSL and E-FMLA leaves:

  • Providing EPSL and E-MFLA remains entirely voluntary. Employers can still claim tax credits through September 30, 2021, as long as employers follow the rules.
  • Employers who provide EPSL may now offer it for employees who take time off to obtain a vaccine or recover from a vaccine-related injury, illness or other condition; or while an employee is seeking a COVID-19 test or diagnosis due to an exposure or at the employer’s discretion.
  • An employer may provide E-FMLA for all qualifying reasons under EPSL.
  • Employees who already used their EPSL allotment may get another 80 hours starting April 1, 2021.
  • Employers who choose to provide EPSL and E-FMLA must do so for all classes of employees.
  • Employers should regularly monitor both the U.S. Department of Labor and Internal Revenue Service websites for updated guidance.

Unemployment Insurance

Passed last year, the first stimulus bill, the Coronavirus Aid, Relief, and Economic Security (CARES) Act, originally boosted state unemployment insurance systems multiple times through increased benefit amounts, duration of eligibility and expansion of eligibility to workers not normally eligible. The Heroes Act and the ARPA continue to provide enhanced unemployment benefits, including an additional $300 per week in addition to state benefits and the ability to continue receiving unemployment benefits for 53 more weeks after the initial 24 weeks on unemployment ends.

Employers have little control over whether a current or former employee is eligible but should always respond to requests for information from their state agencies such as California’s Employment Development Department (EDD). The EDD now allows employers to register to receive claim notices electronically which helps employers promptly respond to claims.

Small Business Financial Assistance

Last year, the CARES Act also created the Paycheck Program Program (PPP), which allowed businesses to apply for forgivable loans to help keep employees on the payroll. The Heroes Act provided an opportunity for small, hard-hit businesses to receive a second loan. The ARPA has expanded access to this program as well as several other financial assistance programs that the Small Business Administration (SBA) administers. Employers looking for further financial relief should review the programs available at the SBA’s website.

Matthew J. Roberts, Employment Law Counsel/Subject Matter Expert, CalChamber HR Watchdog

EEOC Announces April 26 Opening Date for the Collection of 2019 and 2020 EEO-1 Component 1 Data
April 2021

Employers Will Have Until July 19 to Submit Two Years of EEO-1 Data

After delaying the opening of the 2019 EEO-1 Component 1 Data Collection on May 8, 2020 in light of the COVID-19 public health emergency, the U.S. Equal Employment Opportunity Commission (EEOC) announced today that the 2019 and 2020 EEO-1 Component 1 data collection will open on Monday, April 26, 2021.

The deadline for submitting 2019 and 2020 EEO-1 Component 1 data will be Monday, July 19, 2021. Recognizing the continuing differential impacts of the pandemic on workplaces nationwide and the requirement to submit two years of EEO-1 data, the EEOC is extending the data collection period this year from 10 weeks to 12 weeks to provide employers additional time to file.

The EEO-1 Component 1 collects workforce data from employers with 100 or more employees (and federal contractors with 50 or more employees). The EEOC will begin to formally notify EEO-1 filers via email beginning on March 29, 2021. Filers should begin preparing to submit data in anticipation of the April 26 opening of the data collection period.

EEO filers can visit https://EEOCdata.org for more information regarding updates on the data collection. When the collection opens, resources to assist filers with their submissions will be available online at https://EEOCdata.org. The EEOC Filer Support Team will also be available to respond to filer inquiries and to provide additional filling assistance.

U.S. Equal Employment Opportunity Commission Website