October 2021 Seminar - Non-supervisor Harassment & Discrimination Prevention Training
Seminar Location: Online via Webinar
Date: Thursday, October 14th
Time: 9:00am – 10:30am
Price: $25 per person
Please reserve your spot no later than October 12th.
To reserve your spot, please email info@hrtogo.com or use the following link:
https://register.gotowebinar.com/register/3487613916445792011
If you experience any technical issues with the above link, please contact info@hrtogo.com.
24 hour cancellation notice is required.
All employers with five or more employees are required to provide non-supervisory employees with at least one hour of sexual harassment prevention training (SB 1343) every two years.
For more information, contact our office at 916.444.6200 or your HR Consultant!
What to Do When COVID-19 Long-Haulers Seek Exemptions from Vaccine Mandates
COVID-19 long-haulers—those experiencing long-term effects of COVID-19—who seek disability-related exemptions from mandatory vaccination policies are straining employers’ accommodation processes.
The Occupational Safety and Health Administration’s (OSHA’s) anticipated emergency temporary standard—which will mandate employees of businesses with at least 100 workers get vaccinated or submit to weekly testing—will result in more employers requiring vaccines. OSHA’s rule will almost certainly affirm that employers must accommodate employees who refuse to be vaccinated based on a medical exemption or sincerely held religious belief, said Paula Ketcham, an attorney with Schiff Hardin in Chicago. With the rise of the delta variant, more small employers also are starting to mandate vaccinations.
What if an employer believes that a COVID-19 long-hauler is requesting an exemption simply because the person is opposed to vaccinations rather than having a medical condition that would put that person at risk if he or she was vaccinated?
“Employers should always balance empathy for its staff with the safety of its overall workforce,” said David Epstein, SHRM-SCP, director of domestic human resources at Doctors Without Borders in New York City.
“Those who ask for an exemption from the vaccine should be afforded a pathway to apply for an exemption for medical reasons, and the required interactive dialogue should take place as is required” by the Americans with Disabilities Act (ADA), Epstein noted. “After that dialogue takes place, there are two options: a reasonable accommodation, which could include working remotely, or termination of employment if your company requires the vaccine and working remotely causes an undue hardship under the ADA.”
Collect Information
The interactive process allows employers to collect information to make an intelligent and informed decision on an accommodation request, said Peter Petesch, an attorney with Littler in Washington, D.C.
If long-term effects of COVID-19, also known as “long COVID,” are not already known or obvious, the employer may request medical documentation to determine if the condition is an ADA disability and, if so, if there is a reasonable accommodation, said Christine Walters, J.D., SHRM-SCP, an independent consultant with FiveL Co. in Westminster, Md. Long COVID-19 can rise to the level of an ADA disability.
“No two situations are necessarily identical,” Petesch said. “Everything will depend on the medical information that an employee furnishes through their health care provider in connection with a request.”
Employers should not play doctor, cautioned Jonathan Mook, an attorney with DiMuroGinsberg in Alexandria, Va. “Although some studies indicate that vaccination may actually assist in mitigating the symptoms of long COVID-19, rather than causing any harm, the assessment of a long-hauler’s request to be exempted from vaccination should be done by a medical professional—not the employer,” he said.
“Ask the employee to provide medical documentation from his or her physician that the employee would be put at risk by being vaccinated,” Mook continued. “If an employee does this and an employer still has a question as to the legitimacy of the request, I usually recommend that the employer retain a physician knowledgeable in the field to act as a consultant to assess the documentation of the employee’s doctor.”
If, as a result of that assessment, the medical expert indicates that additional information is needed, the employer has a basis to request further medical information from the employee. “This entire process should be documented, as the initial stage in the ADA interactive process,” he said.
If the employee can’t provide any information as to why the medical condition prevents him or her from receiving the vaccine and instead can articulate only a generalized fear of the vaccine, that is not sufficient to trigger an employer’s obligation to provide an accommodation under the ADA, said Amanda Van Hoose Garofalo, an attorney with BakerHostetler in New York City.
Employers may have difficulty determining what is reasonable medical care for an underlying condition, she noted. “Further, it is certainly possible that individuals with the same condition will receive different advice from their health care providers,” Garofalo said.
Long COVID-19 manifests in a variety of ways, so some people may have it severe enough to qualify as a disability and some may have a less severe version, she added. “As a result of these variances, some individuals with long COVID may request exemptions, while others receive the vaccine,” Garofalo said.
Accommodation Options
“If the medical documentation is sufficient, then an employer should engage with the employee about how the employee can perform his or her job without putting the employee or others at risk due to the unvaccinated status of the long-hauler,” Mook said.
Options include:
- Wearing a mask at work with testing on a periodic basis.
- Working in an area where the employee will not come in close contact with other employees.
- Remote work.
“Changing or limiting an employee’s location or interaction with others must be done with care,” he said. “You do not want to single out or stigmatize an employee who is being accommodated.”
Many employers are relying on regular testing as an option, noted Jesse Dill, an attorney with Ogletree Deakins in Milwaukee. But an employer may incur significant costs to provide regular testing, and monitoring can result in administrative headaches.
“With respect to a mandatory vaccination policy, it seems there would be little room for unpaid leave as an accommodation that the employer must provide,” Dill added. Leave is an accommodation of last resort. “There is not a certain end date to the pandemic, which makes a request for leave as an accommodation to a mandatory vaccination policy as seeking indefinite or long-term leave,” which the ADA doesn’t require.
In addition, COVID-19 long-haulers who claim they should have an accommodation because they have natural immunity due to already being infected may be out of luck. A claim of natural immunity does not seem likely to meet the definition of an ADA disability, Dill said.
Allen Smith, J.D., SHRM
9th Circuit Allows California’s Ban on Mandatory Arbitrations to Proceed
On September 15, 2021 in a split decision, the U.S. Court of Appeals for the Ninth Circuit vacated a preliminary injunction that prohibited California from enforcing AB 51, which was signed into law in 2019 (Chamber of Commerce of the United States of America, et al. v. Bonta, et al., No. 20-15291 (9th Cir. Sept. 15, 2021)).
Slated to take effect January 1, 2020, AB 51 added a provision to both the Labor Code and the Government Code that prevented employers from requiring employees to, as a condition of employment, sign arbitration agreements about employment-related disputes under the Labor Code or the Fair Employment and Housing Act. But in February of 2020, the U.S. District Court held that AB 51 was invalid under federal law and issued a preliminary injunction preventing California from enforcing any part of AB 51.
In its September 15 decision, the 9th Circuit held that AB 51’s language was not preempted by the Federal Arbitration Act (FAA), as the FAA was concerned only with enforceability of already existing arbitration agreements; the FAA does not regulate pre-agreement conduct. According to the 9th Circuit, the FAA doesn’t regulate whether arbitration agreements may be mandatory or voluntary; it regulates whether an executed arbitration agreement is enforceable.
Because AB 51 purports to regulate pre-agreement conduct (as it prohibits an employer from requiring execution of an arbitration agreement as a condition of employment) and doesn’t explicitly state that mandatory arbitration agreements are unenforceable, the 9th Circuit held in its split decision that AB 51 is neither preempted nor invalidated by the FAA. In fact, the 9th Circuit intentionally punted on this issue, stating that later courts will have to decide whether voluntariness of an arbitration agreement is a generally applicable contract defense not limited to arbitration agreements.
However, the dissent to the majority’s opinion, written by Justice Sandra Segal Ikuta, highlights prior U.S. Supreme Court decisions that found state laws invalid under federal law because the FAA preempts not only overt attempts to make arbitration agreements unenforceable, but also workarounds that, in effect, create a similar hostility to arbitration agreements. According to Justice Ikuta, the concept of penalizing an employer’s conduct during the agreement’s formation is exactly the burden on forming arbitration agreements that the FAA preempts.
Separately, the 9th Circuit held that AB 51’s civil and criminal penalty provisions are invalid under the FAA because they only trigger once an employer has entered into a mandatory arbitration agreement. That means that these portions of AB 51 are punishing conduct protected by the FAA — the execution of an arbitration agreement — and therefore cannot be valid under the law.
Employers should be aware that Labor Code 432.6, the section of AB 51 upheld by the 9th Circuit, does include a remedial provision that allows for a person to seek injunctive relief, other relief as permitted by law and attorneys’ fees for violations of this section.
Because the preliminary injunction has been vacated at this time, employers are strongly encouraged to engage with legal counsel about their practices related to arbitration agreements before proceeding with executing or enforcing existing agreements.
Employers also should be aware that this ruling likely won’t be the end of the road regarding AB 51, as the U.S. Chamber of Commerce, California Chamber of Commerce and other groups that brought this action may challenge or seek further review of this decision.
Matthew J. Roberts, Employment Law Counsel/Subject Matter Expert
Cal/OSHA, Federal OSHA and Mexican Consulates in California Renew Alliance Agreement to Promote Workplace Safety and Health
In an ongoing effort to educate workers on California’s nation-leading workplace safety and health standards, Cal/OSHA, Federal OSHA and the Mexican Consulate have renewed an alliance agreement to provide training on workers’ rights and employers’ responsibilities in California.
The two-year agreement includes a commitment to provide training and resources in Spanish on hazards impacting immigrant workers including falls, electrocution and heat illness. Training topics also include the right to report unsafe conditions regardless of immigration status by filing a confidential complaint with Cal/OSHA.
A team of representatives from Cal/OSHA, Federal OSHA and the Mexican Consulate will develop a plan of action and meet throughout the year to track and share information on activities and goals of the alliance.
Cal/OSHA’s Alliance Program works with groups committed to worker safety and health to prevent workplace injuries, illnesses and fatalities. These groups include trade associations, labor unions and other labor groups, professional associations, educational institutions, community and faith-based organizations, consulates, local, state, and federal government agencies and more.
Participants in the Alliance Program support Cal/OSHA’s strategic goals by developing alliance agreements that contain work plans to raise awareness of safety and health hazards through outreach and communication, and training and education.
Cal/OSHA is a division of the California Department of Industrial Relations (DIR). DIR partners with Mexican Consulates each year during Labor Rights Week from August 30 to September 3. Team members from Cal/OSHA and other DIR divisions join representatives from Mexican Consulates at events throughout California during the week to educate workers on their rights and employers on their responsibilities.
Cal/OSHA helps protect workers from health and safety hazards on the job in almost every workplace in California. Employers who have questions or need assistance with workplace safety and health programs, including assistance with developing a COVID-19 prevention program at their worksite, can call Cal/OSHA’s Consultation Services Branch at 800-963-9424.
Workers who have questions about COVID-19 hazards, heat illness prevention and wildfire smoke protections can call 833-579-0927 to speak with a Cal/OSHA representative during normal business hours. Complaints about workplace safety and health hazards can be filed confidentially with Cal/OSHA district offices.
Department of Industrial Relations
September 2021 Seminar - Managing Multiple Generations in the Workplace
Seminar location: Online via Webinar
Date: Thursday, September 9th
Time: 9:00am – 10:30am
Price: $25 per person
Please reserve your spot no later than September 7th.
To reserve your spot, please email info@hrtogo.com or use the following link:
https://register.gotowebinar.com/register/3249453100773009936
If you experience any technical issues with the above link, please contact info@hrtogo.com.
24 hour cancellation notice is required.
For the first time in history, five generations will soon be working side by side. But whether this multi-generational workplace feels happy and productive or challenging and stressful is, in large part, up to you: the boss. At this seminar we’ll discuss how you should relate to employees of different age groups, how to motivate someone much older or much younger than you and finally, what you can do to encourage employees of different generations to share their knowledge?
For more information, contact our office at 916.444.6200 or your HR Consultant!
Viewpoint: Why It’s Time to Re-Onboard Everyone
“I’m the most tenured person on my team,” my friend Joyce, a senior marketing manager, told me. “But I feel like a new hire.”
Despite having worked at her company for four years, a slew of recent changes had left Joyce feeling unmoored. After her manager quit in June, Joyce worked in a state of limbo for a month until she got a new boss. She started going back to the office two days a week, but soon stopped due to concerns about the Delta variant. Three of her teammates left and were replaced by four new hires.
“I barely know anyone on my team,” Joyce continued. “I can dig up documents really easily, but other than that, I might as well have joined yesterday.”
Joyce isn’t alone in feeling new to a company she’s worked at for years. As an expert on emotions at work and the head of content at Humu, a company focused on workplace behavioral change, I regularly help leaders, managers and teams establish better ways of working. In the data and in conversations, I’ve seen two forces that are destabilizing employees: unprecedented turnover and uncertainty. The number of people switching jobs has skyrocketed to historic highs in what experts are calling “The Great Resignation.” At the same time, teams are starting to transition to hybrid work.
These upheavals mean that even long-time employees — who have spent years building their reputations within an organization — may now feel they’re starting from scratch. That has enormous implications for performance, innovation and well-being. When we start working in a new environment or with new colleagues, we tend to feel insecure because we haven’t had a chance to prove ourselves yet. Our self-doubt makes us less likely to suggest out-of-the-box ideas, ask questions or take needed breaks.
Great onboarding helps individuals regain their confidence and cuts down the time it takes for them to get up and running. But new hires aren’t the only people who could benefit from this type of structured support. Right now, everyone at your company needs some form of onboarding.
If you’re a leader, you can’t sit back and hope your employees will successfully navigate so much turbulence. Hope is a terrible strategy. Instead, take advantage of the fact that September tends to be a slower month at work and prepare managers now for team-wide onboarding in the fall. Here are five steps you should encourage managers to take this fall.
Kick off with connection.
When I asked Joyce what her manager had done to bring her team together, she shook her head. “Not much.”
It’s no wonder that Joyce felt disconnected at work. During periods of high turnover, you need to be especially intentional about creating opportunities for employees to get to know each other.
To set your team up for success, invest in emotional connection as soon as possible and as often as possible. Schedule random, 30-minute 1:1s between members and kick meetings off with a lighthearted prompt. (A personal favorite: “What food is underrated?”) Rituals are also a great way to create space for people to open up. Try “High, Low, Ha,” where each person shares one highlight from their week, one low point and one thing that made them laugh.
Welcome unique contributions.
One of the first messages your reports should hear is that they will be valued for everything that sets them apart. In an onboarding experiment, researchers randomly assigned new hires to one of three different welcome sessions. The first prompted people to reflect on how their unique perspectives could help them succeed in their new roles, another asked them to think about why they were proud to join the company, and the third focused on skills training. After six months, employees in the first group were less likely to have quit and delivered higher customer satisfaction scores.
In 1:1s, ask each person to reflect on what they’re good at and how they can apply those skills to their current role. Based on these conversations, assign initial tasks that let individuals showcase their abilities. In team meetings, explicitly recognize novel suggestions. Try something like, “I hadn’t thought of it that way, thanks for pointing that out.”
Help people learn who knows what.
The most effective teams have a high level of “shared knowledge,” or a collective understanding of individual expertise, who’s responsible for what, and how everyone works together to get things done. To build shared knowledge, create early opportunities for team members to collaborate and discover each other’s unique talents. You can also start an email thread or channel where team members can post a problem for others who may have relevant experience to share their insights.
One manager I spoke with ran a three-hour sprint in which she asked her newly formed team to redesign a sales pitch deck. Afterwards, she facilitated a debrief in which the group discussed each person’s unique contributions. The exercise energized the team — and helped them get a better sense of everyone’s unique talents.
Rally everyone around a three-month mission.
Quick wins boost motivation and confidence. To empower your team to accomplish shared victories early on, unite the group around an ambitious but achievable short-term goal. Alex, an engineering manager, set a three-month mission for his team to launch a new product feature customers had been asking about for years. Having a specific, impactful goal made it easier for the group to establish clear roles and processes. Alex’s team created 30-, 60- and 90-day plans and, at the end of every week, met to celebrate their shared progress and shout out each other’s individual achievements.
Set clear cultural expectations.
When you’re new, seemingly small uncertainties (“Can I turn my video off during longer calls?”) can become a big source of stress. To combat these anxieties, schedule time for your team to agree on cultural and emotional norms. Science shows that setting clear expectations up front can have a powerful influence on employee performance. Here are a few prompts to get you started:
- How can we ensure teammates who aren’t in the office still have a voice?
- How will we track progress and update each other throughout the week?
- How do we each prefer to receive feedback?
- What guidelines should we set for meetings?
- What is it “okay” to do? (e.g., take breaks or ask questions)
Make sure to write your answers down, and save them where they’re easily accessible to everyone.
Reinforce healthy, productive norms with recognition.
Showcasing stellar work or giving kudos for supportive behaviors is one of the fastest ways to boost motivation, create a clearer picture of what is valued within your team and positively reinforce healthy norms. Consider celebrating the efforts of a small group of people, rather than just one person or everyone. In a field experiment, researchers split employees into groups of eight, then randomly sent either the top performer, the top three performers or everyone in the group a thank-you card for their efforts. Recognizing the top three performers in a group led to the strongest overall performance increase.
Finally, create opportunities for peers to recognize each other, too. Research shows that getting a compliment from a colleague can make new hires feel connected to the organization even faster than receiving praise from a manager. At Humu, we created a Slack channel called #cheersforpeers. Every month, anyone who has been mentioned in the channel or who recognized someone else is eligible for a raffle prize.
High turnover, the shift to hybrid work and continued uncertainty about the future mean that your entire workforce may be feeling unmoored. By seizing this fall as a moment to re-onboard everyone, managers can boost team cohesion, performance and well-being.
Liz Fosslien, SHRM
Hot Temperatures Can Lead to More Workplace Injuries
An Institute of Labor Economics study gathered 18 years of California’s workers’ compensation system claims and compared it to the daily temperature data, and found that hotter temperatures cause approximately 20,000 injuries each year. Interestingly, these additional workplace injuries aren’t necessarily associated with heat-related illnesses — they happen in both indoor and outdoor settings and include non-temperature-related injuries. Although we know that high temperatures may make us more cranky, high temperatures can affect us in ways we don’t even realize.
In California, especially during our hot summer months, employers have focused on heat illness prevention in outdoor workplaces, which affects employees who spend a significant amount of time working outdoors in agriculture, construction, landscaping, maintenance and transportation, as well as delivery drivers in non-air conditioned vehicles and more.
While hotter temperatures significantly increase injuries in outdoor industries as expected, this study found the increased workplace injuries also occur in indoor settings and include injuries not related to temperature, such as falling, being hit by a moving vehicle and mishandling dangerous machinery (temperature-related illnesses are heat illness and heat exhaustion). In fact, when California implemented the heat illness prevention standard in 2005, there was a significant decrease in workplace injuries, especially when the temperature reached more than 100 degrees, but workplace injuries are still higher when the temperature hits 90 degrees and higher.
When temperatures are between 90 and 99 degrees, workplace accidents and injuries increase by as much as 9 percent, and when it gets to be above 100 degrees, they increase by 15 percent. Younger workers and men were more substantially at risk for injury.
“Heat is of those things where our familiarity with it may engender a sense of false security,” said Jisung Park, a UCLA economist and the study’s lead author. “But this and other research suggests that hotter temperatures, which in many cases may not seem like such a big deal, appear to have hidden costs.”
Other studies have shown that hotter temperatures can reduce cognitive performance and influence decision-making and emotions. So, when temperatures rise in California, employers should keep a closer watch on workplace safety.
The California Division of Occupational Safety and Health (Cal/OSHA) has been in the process of developing regulations to prevent heat illness in indoor workplaces. A California Chamber of Commerce-led coalition has submitted written comments and oral testimony at each step of the process encouraging Cal/OSHA to establish rational policies that aren’t unnecessarily burdensome on employers but still minimize the risk of heat illness to employees in indoor workplaces.
Katie Culliton, Editor, CalChamber
Cal/OSHA Reminds Employers to Protect Workers from Unhealthy Air due to Wildfire Smoke
Cal/OSHA is reminding employers that California’s protection from wildfire smoke standard requires them to take steps to protect their workers from unhealthy air due to wildfire smoke. Harmful air quality from wildfire smoke can occur anywhere in the state on short notice, so employers must be prepared before a wildfire event occurs.
There are steps employers must take to protect workers from wildfire smoke, including monitoring the local air quality index (AQI) for PM2.5, training workers on the health effects of wildfire smoke and providing proper respiratory protection like N95 respirators for voluntary use if work cannot be moved to a location where the air is not harmful. If employers cannot move operations to areas where air is adequately filtered and they do not have access to respiratory protection, they may need to halt operations until the outdoor air quality improves. This includes outdoor worksites and indoor locations where the air is not filtered or doors are kept open such as warehouses, packing, manufacturing, distribution facilities and more.
When wildfire smoke might affect a worksite, employers must monitor the AQI for PM2.5 before and throughout the work shift. Make sure to have websites like the U.S. EPA’s AirNow or local air quality management district websites bookmarked for quick access. Employers can also use their own instruments to measure the AQI in accordance with Cal/OSHA’s requirements.
Smoke from wildfires contains chemicals, gases and fine particles that can harm health. The greatest hazard comes from breathing fine particles in the air (called PM2.5), which can reduce lung function, worsen asthma or other existing heart and lung conditions, and cause coughing, wheezing and difficulty breathing.
If the AQI for PM2.5 is 151 or greater, employers must take the following steps to protect employees:
- Communication – Inform employees of the AQI for PM2.5 and the protective measures available to them.
- Training and Instruction – Provide effective training and instruction to all employees on the information contained in section 5141.1 Appendix B.
- Modifications – Implement modifications to the workplace, if feasible, to reduce exposure. Examples include providing enclosed structures or vehicles for employees to work in, where the air is filtered.
- Changes – Implement practicable changes to work procedures or schedules. Examples include changing the location where employees work or reducing the amount of time they work outdoors or exposed to unfiltered outdoor air.
- Respiratory protection – Provide proper respiratory protection equipment, such as disposable respirators, for voluntary use.
- To filter out fine particles, respirators must be labeled N-95, N-99, N-100, R-95, P-95, P-99, or P-100, and must be labeled as approved by the US National Institute for Occupational Safety and Health (NIOSH).
To assist employers with identifying available supplies of respirators, Cal/OSHA is maintaining a list of vendors who have confirmed they have at least 100,000 NIOSH-certified disposable N95 respirators in stock and available for purchase and delivery.
If the AQI for PM2.5 exceeds 500 due to wildfire smoke, respirator use is required. Employers must ensure employees use respirators and implement a respiratory protection program as required in California’s respiratory standard. For information or help on developing a respiratory protection program, see Cal/OSHA’s Respiratory Protection Fact Sheet.
Department of Industrial Relations
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