The Advantage

July 2004

Questions From California Employees and Employers

There are times when managers find themselves faced with situations they haven’t dealt with in the past. In those times, it is helpful to have a handy reference to understand what legal requirements may play a role in how the situation is addressed. Doing something contrary to state or federal requirements is a sure way to cost the employer penalties from enforcement agencies.

Unfortunately, the proper action is not always obvious. In California, employers are faced with many more (and different) management requirements than their counterparts in other states. Even though federal law applies to all, regardless of state location, states often impose additional requirements over and above those that Congress has enacted. Here are some questions we have received from California employees and employers, and our suggestions for handling each situation.

QUESTION #1
From an employee: "I need to know if an employer can charge me any amount for the following: Not putting in the computer items borrowed by a customer? Is there a law that prohibits the employer from charging the employee any amount for lost or damaged items or property? i.e. Movies, pens, pencils, paper, calculator, etc."

ANSWER: You didn't say what industry you work in, but I'll assume you are subject to California Industrial Wage Order Number 4, Professional, Technical, Clerical, Mechanical and Similar Occupations. California law requires the appropriate wage order be posted in your workplace where all employees can have access to it every day.

Paragraph 8 of Wage Order Number 4 says:

"No employer shall make any deduction from the wage or require any reimbursement from an employee for any cash shortage, breakage, or loss of equipment, unless it can be shown that the shortage, breakage, or loss is caused by a dishonest or willful act, or by the gross negligence of the employee."

Even though the employer may not recover the costs involved, he/she may discipline the employee responsible for the loss. That discipline may go so far as dismissal in some circumstances.

You should look for the Wage Order in your workplace. If you don't find it, talk with your employer and ask for it to be posted as required. If your employer needs a copy, a FREE copy is available from the California Labor Commissioner or on the web from our HR Web Store (www.hrwebstore.com) in the "FREE Stuff" department. Each wage order is 20 to 30 pages in length and all pages must be posted for the wage order associated with your industry. If your employer would rather have the document on one laminated sheet, it is also available that way from the HR Web Store for $29.95 plus S/H & sales tax.

If you have other questions, you can discuss them with the Labor Commissioner's office. Look in the Government Pages of your local telephone directory under "State Government Offices" for Industrial Relations Department, Labor Standards Enforcement Division.

QUESTION #2
Approx. two months ago I informed my employer of specific reasons why it would be severely disruptive for me to alter my current work schedule, M-F(3:30pm - midnight). In brief, my wife and I have adopted a baby with what is considered a "serious health condition". Due to a blood disorder he must take medication twice daily for the rest of his life. A nurse is assigned to provide care and administer medication while we are at work. It is not possible for the nurse to re-arrange her schedule to accommodate any alternate working hours.

I am now being ordered to move to an alternate shift by Monday or risk losing my Job.

There are no disciplinary issues. My position is not being eliminated. My performance and attendance have been excellent.

The reason I was given is that the enterprise is shuffling things around.

Can I dispute this with HR?

What information or advice can you offer?

ANSWER: These situations are never easy. Your first priority is obviously to your family. The company is thinking about business needs. It sounds like, in this case, they don't match.

Here are some thoughts:

1. Unless you have a written employment contract that specifies your work schedule your employer is entitled to change your work schedule as the needs of the business change. If you choose not to work the new schedule, your employer is entitled to discipline you, which could include dismissal.
2. In many cases, employers are able to work around requests such as yours. There are no guarantees, however.

Some action plan suggestions:

1. Talk with your supervisor and explain your need for the specific shift assignment. (If that shift is being eliminated, there will be little your supervisor can do to help. If someone else is being assigned to that shift in your place, perhaps you can work something out.)
2. If your supervisor can't help, write a letter to the Human Resource Manager explaining your situation and ask for a continuation of your current shift assignment. This should be factual, not emotional.
3. If all that fails, and you feel you still wish to remain with this employer, you can appeal to the President/CEO or senior executive in your line of business. This appeal should also be in writing, outlining your needs, what has been done so far, the answers you have already received from your supervisor and the HR Manager and your request for a specific solution to the problem.
4. If that fails, you will have only two choices remaining
   • Work the new shift assignment.
   • Find another employer where you can work the desired shift.

I'm sorry that it isn't simpler. It will take some work on your part to communicate your story effectively. And, you might want to begin putting out feelers about other job opportunities in other organizations while you pursue your internal resolution.

QUESTION #3
How long can a written warning / letter of reprimand be kept in an employee's records? Is there a length of time such letters must be purged?

ANSWER: Retention time for documentation about discipline is a matter of company policy, or union agreement. We know of no legal requirement for a specific retention period in any state. Nor is there, to our knowledge, any requirement that retention be terminated and the documentation destroyed after a certain time.

It's up to you. Just be sure, as with all other employee management actions, that what you decide to do is thereafter done consistently throughout the company.

QUESTION #4
My Employer says that I can not take kin care in the month of January, since I haven't accrued kin care for this year - even though I didn't use any last year and have regular sick hours accrued. Is this true?

ANSWER: Sick leave is entirely a matter of employer policy in California. If an employer does offer sick leave, then Kin Care requires up to half of the unused, accrued sick leave be provided for care of a sick spouse, child, parent, domestic partner, or the child of a domestic partner.

There may be some policy issues involved with your situation. Ask your boss again how sick leave works in your company. It may be that each year begins with a zero balance, no carry-over allowed from one calendar year to the next. And, it may be that accruals are only done at the end of each month based on actual work time for that month. If you begin the year with a zero balance and don't accrue any new sick leave until the end of January, it is quite possible you would face the condition of not having any sick leave available. The only way to tell for sure is to talk with your boss.

QUESTION #5
Hello. I just had a question at my job. Can a boss at, lets say, a restaurant, fire or terminate an employee for speaking a language other that English in California?

ANSWER: Generally speaking...

English only rules are not acceptable under Equal Employment Opportunity Commission (EEOC) guidelines on the subject. It is considered to be national origin discrimination. On the other hand, courts have ruled that it is legal for employers to require employees speak only English when dealing with customers or in circumstances such as supervisor discussions involving safety or other critical business issues. It is permissible for employees to use other languages when on break or lunch, or not helping customers who only speak English.

That's a very broad response to your question. Of course, an employer is entitled to discipline any employee for breaking work rules clearly explained by the employer.

Do you have a question about employee management? Send us an email and we will do our best to get you an answer. Send your email to: Questions@management-advantage.com

Be sure you check the state laws in your state to understand what compliance requirements exist there. Not all states have the same rules California employers must follow.

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William H. Truesdell is SPHR certified and president of The Management Advantage, Inc. He can be reached by email at billt@hrwebstore.com

DOL Postpones FMLA Regulations…Again

On June 25th, the US Department of Labor (DOL) announced that it would not meet its self-imposed deadline of June 28, 2004 for publishing proposed regulations for managing the Family and Medical Leave Act (FMLA). Their new target is the end of First Quarter 2005.

Officials at the agency said that resources had been diverted to finalizing the regulations involved in changes to the Fair Labor Standards Act (FLSA) and its overtime rules. Therefore, FMLA regulations had taken a back seat.

Congress continues to debate the questions involved in FLSA implementation. The new rules about classifying jobs as exempt or non-exempt from overtime requirements will begin on August 23, 2004. If Congress should take action to block implementation, we will have a whole new ball game.

Once the DOL has developed the regulations it wishes to use to implement the FMLA, it will publish them for public comment. Revisions will likely be made following that public comment and then, final regulations will be published. All that will require a year or more.

Chubb Receives Corporate Diversity Award

On June 17, 2004, The Chubb Group of Insurance Companies was named the first recipient of the Corporate Diversity Award by the International Institute of New Jersey at its American Dream Gala Celebration in Teaneck, New Jersey. The award was presented to Chubb in recognition of its commitment to recruiting and promoting individuals from many different ethnic and socioeconomic groups.

"It is only fitting that we celebrate those who have helped enrich our state and our nation, as well as those who work to keep our country open to new ideas, new cultures and the newest Americans," said the Institute’s president, Nicholas Montalto. "As a New Jersey-based company that has embraced and demonstrated its support of creating a corporate culture of inclusion, we are pleased to present Chubb with the inaugural Corporate Diversity Award."

"Chubb’s commitment to diversity is reflected in several ways throughout the organization," said Regina Blair, Chubb’s Diversity Manager. Chubb employees can belong to several different employee resource groups, which are strongly supported by the company’s senior management. At the branch level, there are various diversity programs, including initiatives aimed at recruiting and retaining a diverse staff.

Chubb repeatedly has been named one of the top companies for diversity. During each of the last three years, Diversity Inc. magazine named Chubb to its list of the "Top 50 Companies for Diversity" in the United States. The magazine noted some of Chubb’s diversity strengths, including a high percentage of women in management positions, mentoring programs, succession planning, recruitment of gay and lesbian employees, domestic-partner benefits, and diversity-driven employee resource groups.

Earlier this year, Chubb scored a 100 on the Human Rights Campaign Corporate Equality Index. This is the highest rating on the HRC’s index, which ranks large American businesses on how they treat gay, lesbian, bisexual and transgender employees, consumers and investors.

The International Institute of New Jersey can be found on the Web at www.inj.org.

Is a Violence-Free Workplace in Your Forecast?

Foremost on the mind of every executive is keeping the organization afloat in the face of vigorous and unrelenting challenges - all this while adrift in a sea of uncertainties over the economy, outside scrutiny and a multitude of internal issues. It’s the internal issues, more specifically the people problems that can occasionally go awry.

Workplace violence sits on the extreme end of the scale of problems involving people. Like a stored up charge of energy, it waits for certain conditions to exist to unleash its destructive force. A single act of workplace violence exposes innocent people to unimaginable horrors, and leaves its host organization reeling in an aftermath of legal problems that can endure for years. One such incident occurred on the morning after Christmas in the year 2000.

The offices of Edgewater Technologies of Wakefield, Massachusetts were disrupted by a deafening succession of blasts from the muzzle of an AK-47 assault rifle, something employees in a high-tech firm would never expect to hear. This awesome and destructive weapon of war was in the vengeful and merciless hands of Michael McDermott, a 46-year-old software engineer. He was on a mission to punish members of Edgewater’s human resource and accounting staff for a recent IRS wage garnishment that had been imposed upon him. This was a matter over which his intended victims had no control, but McDermott’s perception was his reality and he viewed these innocent employees as collaborators with his federal foe. So, with each pull of the trigger, a fellow employee fell until the number tolled seven. Within minutes, those McDermott had selected for execution lay dead at or near their desks. An eerie silence followed, broken only by the occasional sound of an employee scampering to safety.

Typical of most workplace killers, McDermott did not kill any more than those he had targeted. Spent from his ordeal, he sat in the company’s reception area waiting for the inevitable. Like so many other workplace killers, McDermott crossed the line into the darkness of the criminal realm never to return to the world of relative civility he had known. Life as he knew it was over. As police approached, McDermott offered no resistance.

As if things were not chaotic enough at Edgewater that morning, the powerful engine of the media rumbled to life with the singular purpose of fulfilling the demand for information by those who find workplace violence cases sensational, spectacular and, sadly, intriguing. Within an hour of McDermott’s shots, millions of people were being informed of the events as they unfolded. People, many time zones away, were viewing real-time images of SWAT teams and ambulances attending to the bloody aftermath. As the sun set that day, the names Wakefield, Edgewater and McDermott were echoed hundreds of times until they became linked, intertwined and inseparable.

As horrifying as the Wakefield incident was, there are cases on record that exceed it in terms of loss of life and sheer destructive force. But, what is most disheartening is the fact that scenes such as this have been repeated hundreds of times across the American landscape and are continuing with no end in sight.

Concern for workplace security peaked in the days following September 11, 2001. People began to fear the foreign terrorist threat – but no such attacks ever materialized in the American workplace. Workplace violence incidents, on the other hand, occurred with regularity. Since 9-11, a total of 87 fatal incidents of workplace violence have occurred resulting in the deaths of 139 people and the wounding of 95 more – not at the hands of foreign terrorists, but at the hands of people within our own ranks, those we trusted with the key to the office, the password to our computer system and the right to be among us. We hired him, we nurtured him and he turned on us. The amount of carnage suffered within this brief period alone ought to send a message to decision-makers that workplace violence can no longer be ignored. This is supported by a 2002 survey of corporate security professionals who identified workplace violence as the greatest single security threat facing organizations – above international terrorism.

Where have organizations gone wrong? As a professional violence prevention trainer, I have made some observations. There is first, good news. Thankfully, the human resource management profession has taken the issue seriously and has made some strides in dealing with the problem through the establishment of policy and the application of sound employee acquisition practices. As a result, many organizations are beginning to screen applicants with violence prevention in mind.

Now the bad news - it is not enough to have an anti-violence policy on the wall and an employee manual on the shelf that purports to address the problem. There is a woeful lack of violence prevention awareness where it counts the most – among first-line supervisors. These people are the eyes and ears of every organization. They see every person within their area of responsibility every single day and are more likely than anyone else to observe a potentially violent situation in its earliest stages. But they cannot do what’s expected of them without proper training. According to a 1999 study conducted by the Society for Human Resource Management (SHRM), only 35% of organizations train managers and supervisors to identify warning signs of violent behavior.

While basic workplace violence awareness training would suffice for employees, first-line supervisors should be provided formal instruction and the opportunity to take part in hypothetical, problem-solving scenarios. They must be trained to identify the warning signs of impending violence and to conduct basic threat assessment to support the documentation and reporting of potentially dangerous situations. They must also be trained to recognize, identify and eliminate organizational risk factors that could lead to violence and, equally important, supervisors should be given instruction on how to defuse hostile or potentially violent employees.

Sadly, too many organizations have failed to provide workplace violence prevention training for supervisors and this has led to some tragic outcomes. There are many cases on record in which supervisors had advance knowledge of an employee’s dangerous tendencies, yet failed to act to protect innocent employees. One of the most chilling examples comes from a retired supervisor at a Mississippi-based U.S. defense contractor following a workplace massacre in their workplace.

The supervisor was referring to Doug Williams, an employee with whom he had worked prior to retirement. Williams was responsible for the July 8, 2003 shooting of 14 co-workers, killing 6, before committing suicide. With the knowledge this supervisor possessed, it is reasonable to assume that some effort could have been made to protect innocent employees. Whether this was a case of supervisory negligence or a lack of training, lawyers of the aggrieved families will no doubt pursue the matter further.

No organization can afford to maintain a climate of negligence where lives of innocent people hang in the balance. In 1999, a jury awarded $7.9 million dollars to the families of two men killed in a workplace violence incident in North Carolina. According to the attorney for the family, …This man was a ticking time bomb and the management knew it, yet they did nothing to protect their employees… (Associatedd Press, May 5, 1999). No executive would relish having to take the witness stand to defend such a failure.

The cost of a single fatal incident of workplace violence far exceeds the minor cost of the training that may have prevented it. Although declining budgets are often blamed for training cutbacks, a new application of an old concept in training can be employed to resolve the problem - regional training cooperatives. Used extensively by the public sector, they can also serve the private sector. These are informal alliances of regional training coordinators who pool their resources to bring quality training to a large number of organizations within a geographical area. In this manner, small organizations receive the same quality training as their larger counterparts. Coordinating such an event to address workplace violence would be an ideal leadership role for professional organizations representing the fields of human resources, risk management or safety for two important reasons: (1) they are stakeholders on the issue of organizational safety and (2) their professional affiliations cross organizational lines allowing them to interact and coordinate their efforts.

With executive emphasis on workplace violence prevention, coupled with the commitment to provide training, it is possible to establish a safe and peaceful work environment. Once achieved, employees are free to be productive, knowing that their safety is your concern. Managers and supervisors are transformed into valuable problem-solvers, part of the solution to workplace violence and not part of the problem.

A violence-free workplace is in the forecast for all who commit to it.

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Larry J. Chavez is a nationally recognized expert on workplace violence and crisis communication. Through his Workplace Violence 101 traveling workshop, he specializes in training managers, supervisors and employees to deal with, and prevent violence within their organizations. A retired 31-year law enforcement veteran and former senior hostage negotiator, he has authored many articles on workplace violence and has been called upon for his expertise by such media organizations as the Wall Street Journal, ABC News, Fox News, MSNBC and the Christian Science Monitor. He can be reached at 916-354-2265.

OFCCP Outlines Contractor Data Tracking Responsibilities

The Office of Federal Contract Compliance Programs (OFCCP) has issued a directive (April 21, 2004, OFCCP Order No.: ADM 04-1/Other) to clarify its policy about how contractors are expected to identify job applicants by race and sex. This is the first formal guidance from a government source since the 1978 Equal Employment Opportunity Commission’s (EEOC) issuance of the Uniform Guidelines on Employee Selection Procedures (41 CFR 60-3).

Here is what they say, by way of explaining their reasons for issuing the new directive...

Several provisions in the regulations implementing Executive Order 11246, as amended, require Federal contractors to obtain data on the gender, race, and ethnicity of applicants. The Executive Order regulations prescribe minimum record retention periods for any personnel or employment records the contractor makes or keeps, including records pertaining to hiring, applications, and resumes. 41 CFR 60-1.12(a). The record retention provisions further provide that, for any record the contractor maintains, the contractor must be able to identify, where possible, the gender, race, and ethnicity of each applicant. 41 CFR 60-1.12(c). In addition, as part of the affirmative action program prescribed under the Executive Order regulations, the contractor is required to evaluate personnel activity, which includes applicant flow, to determine whether there are selection disparities. 41 CFR 60-2.17(b)(2)...

As methods for collecting this race, ethnic and gender information vary, Contractors are encouraged to use tear off sheets, post cards, or short forms to request demographic information from applicants. The contractor’s invitation to an applicant to self-identify his or her gender, race, or ethnicity should always clearly state that the provision of such information is voluntary.

While self-identification is the preferred method, visual observation also can be an acceptable method for identifying the gender, race and ethnicity of applicants, although it may not be reliable in every instance. Visual observation may be used when the applicant appears in person and declines to self-identify his or her gender, race or ethnicity.

Where, in response to an invitation from the contractor, the applicant declines to self-identify his or her gender, race or ethnicity, and visual observation is not feasible, there is nothing more for the contractor to do. OFCCP would not hold a contractor responsible for applicant data when the applicant declines to self-identify and there are no other acceptable methods of obtaining this information.

Here, then, is the new policy from OFCCP…

When contractors are unable to elicit or ascertain specific information regarding an applicant’s gender, race or ethnicity, contractors should not guess or assume. Rather, if, after making reasonable efforts to identify applicant gender, race and ethnicity information, the contractor is unable to obtain such information, the contractor must record race or gender as "unknown" in its applicant flow log.

A contractor is not required to "guess" as to the gender, race or ethnicity of an applicant. Adverse impact determinations should be made based on the pool of applicants where gender, race or ethnicity are known.

A Gentle Word on Behalf of Our Business

When you need help developing your affirmative action program, give us a call. We specialize in AAP development, implementation training and compliance review support for clients all over the country. Find out more about our AAP development service by looking at our sample agreement and other information. You will find it all at http://www.management-advantage.com.

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We are ready to give you the support you need.

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Secrets of Affirmative Action Compliance, new 6th edition, contains 520 pages of the latest and current regulation requirements and practical suggestions for your organization. Includes new Federal Regulations. $99.95 plus $7. shipping/handling and CA sales tax for CA destinations. Credit Card Orders ... Call Toll Free:

We can help with your other human resource management needs as well. Think of us the next time you need:

• Employee Handbooks
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• Affirmative Action Plan Development
• Affirmative Action Statistical Analysis
• Disparate Impact Testing for New Hires, Promotions, Transfers, Terminations
• Expert Witness
• Books, Software or Other Support Materials for HR Professionals

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