HRM 460: Current Issues in HR Management
IIPP (injury Illness Prevention Program)
(IIPP) Injury Illness Prevention Program Management commitment/assignment of responsibilities Safety communications system with employees System for assuring employee compliance with safe work practices scheduled inspections/evaluation system accident investigation Procedures for correcting unsafe/unhealthy conditions Safety and Health training and instruction Record keeping and documentation
Overtime
1 1/2 times pay for excess of 8 hours in a day up to & including the 12th hour, and for the first 8 hours worked on the seventh consecutive day. double pay for all hours in excess of 12 in a day and for all hours worked in excess of 8 on the seventh consecutive day.
COBRA
1985 Consolidated Omnibus Budget Reconcilliation Act signed into law by Reagan requires continuation of health coverage to be offered to covered employees, their spouses, former spouses, and dependent children. for 18-36 months
Serious & Willfull
50% increase (with costs & expenses not to exceed $250) due to the serious and willful conduct of the employer = managing representative/partner Violations of a safety order must be due to a condition that constituted a reckless disregard for the probable injury consequences.
Business Associate
A "business associate" is a person or entity that performs certain functions or activities that involve the use or disclosure of protected health information on behalf of, or provides services to, a covered entity. A member of the covered entity's workforce is not a business associate.
Who IS covered
All employees except federal employees working in Ca.
ANALYZE
Analyze risk Is the mngr short tempered what support is there (emails, write ups, perf eval) Protected categories Recent medical leaves Employee moral effect will employee challenge term Are there other issues he could raise (wage/hour, safety)
Drafting a WRITE-UP
Be complete...but don't write a book Avoid vague language: use facts not labels "insubordination" or "bad attitude" Facts: When I asked you to assist someone you rolled your eyes and said "thats not my job" Avoid overly specific threats: you will be terminated or you have 30 days to improve or you will be terminated
who is covered
CA state government Public & quasi-public corp for-profit corp sole proprietorships any person who is in the service of another person or organization whether or not lawfully employed
CLEAN DOCTRINE
CONSIDER facts behind discipline LEARN what manager, witnesses and documents say EVALUATE what disciplinary action has been taken ANALYZE risk NARROW down potential options & decide
CONSIDER
Consider facts behind potential discipline: what happened? Who are witnesses & what is the documentation? How was this brought to your attention? and how RIPE is the event?
employer to ensure workplace safety
Develop and implement written procedures for complying with Cal-OSHA heat illness and injury prevention plan. Workplace violence - temporary restraining orders Write a ZERO TOLERANCE workplace violence policy
HIPAA safeguards
Directly responsible to take affirmative steps to ensure employee heath info is protected.
State agency that administers unemployment insurance
EDD - Dept of Labor: employer financed
Who ENFORCES OSHA
ENFORCE: by Occupational Safety and Health Standards Board (OSHSB) Division of Occupational Safety and Health (DOSH) Occupational Safety and Health Appeals Board (OSHAB)
Permanent & Stationary Employee
Employees condition will not get better or worse: Offer regular work or modified work: at least 12 months with same pay Alternative work: 12 months 85% of the pay unable to return w/ benefits: employee has 30 days to accept/reject the employer's offer.
STRIKES
Employees have the right to strike and picket under the NLRA Economic: working conditions, higher wages, shorter hours Unfair Labor Practice: Not permitted to discuss wages Unions have an absolute right to call a strike: forbidden from encouraging a strike affecting commerce. Secondary strikes and Reserve gates: dual worksite, limited times when primary employer is there, setting up a reserve gate to allow entrance NO: misconduct of picketers cant physically block cant threaten violence cant attack management restraining orders and video cameras
Brinker Decision
Employers must provide a meal break and relieve the employee of all duties for the designated period, but need not ensure the employee does no work.
who is covered by unemployment ins and reporting requirements
Employers: one or more workers; paid wages in excess of $100 day during any calendar quarter. Services performed by an employee for wages or under a contract. NOT Covered: Independent contractor domestic workers sales person: (real-estate; mineral; oil)
what is ERISA
Employment retirement income security act sets minimum standards for voluntary established pension and health plans in private industry to provide protection to individuals in these plans
EVALUATE
Evaluate what disciplinary action has been taken in the past: act consistently!
Penalties for failure comply with drug-free work-place act
FED: Suspension of pymts on a federal contract suspension of pymts on federal grant Barred from receiving future contracts CALIF: suspend or terminate the contract Suspend or terminate the grant.
Penalty
General-up to $7000 per violation Willful - up to $75,000 Repeat - up to $75,000 Serious - up to $25000 Failure to abate- up to $15,000 per day Willful & employee death - $250,000 or 3 yrs or both Second conviction - $250,000 or 4 yrs or both Falsification of records - $70,000 or 6 month or both Murder or attempted - term of years or life
Termination Meeting recommendations
Have someone other than employee' supervisor conduct the meeting to minimize conflict Have a least two people Briefly state performance issues Be matter of fact. not argumentative Be brief Provide required term info be mindful of wage concerns: payment due & immediately
HIPPA
Health Insurance Portability and Accountability Act
Who IS NOT covered
Household domestic service, Self-employment, family farms-immediate family employees
CA Rule regarding Marijuana in the workplace
Illegal!! under federal law
Penalties for Workers compensation FRAUD
Imprisonment in county jail for one year Imprisonment in state prison for two, three or five years a fine exceeding $150,000 or double the value of the fraud, whichever is greater Both imprisonment and a fine
Citations
In writing Violation described timely (within 6 months of violation) Proposed penalty Post for 3 days or until abatement which ever is longer
PFL and employers obligations
Inform employee of rights to SDI & PFL benefits ensure proper payroll deductions are made and deposited with EDD File annual & quarterly reports
OSHA
JOB: encourage reduction in workplace hazards; separate responsibilities & rights; Track job-related injuries & illnesses; Occupational safety training programs; develop & enforce safety & health standards.
What to expect from an OSHA inspection
Knock on the door: inspection conducted in a reasonable manner and reasonable time. Inspect only the area of the accident Opening Conference: purpose of inspection, ground rules for the inspection, do not volunteer info. Walk around: may last several hours/months, employer has right to accompany inspector, inspector has right to private interviews with non managers.Do not stage event/accident & take accurate notes and do everything inspector does (photos, air monitoring) Closing Conference: discuss likely citations, advise of unsafe conditions/possible violations, suggest corrections, discuss appeal rights. Get as much info out of inspector as possible.
Common RED FlAGS in terminations
Layoffs/RIFs of sales force "Reduction of force of 1" No recall or re-hire Termination for poor performance without analysis of similar treatment Usage of non-objective criteria Termination based on repeated intermittent leave (could be a disability) Job not available upon return for leave
LEARN
Learn what managers witnesses and documents have to say: collect info & documentation from mngrs talk to witnesses talk to employee & get his/her side of the story
Issues with stress related claims
More than 1/2 of employees stress must come from his/her work mental disorder based on accepted and published terminology criteria determination that the mental disorder results in a disability or medical treatment proof that the actual events of employment caused the injury if its not attributed to a sudden event - must be employed for 6 months
Contents of plan document
Must be fair to everyone & available to everyone make sure the plan works for the benefit of employee
NEAT
NOTICE EXPLANATION of deficiencies ASSISTANCE in how to improve TIME for improvement --> make sure employee knows what they are doing is inappropriate. Be specific, offer solutions. Give a "result" date. Make sure employee is treated fairly
NARROW
Narrow down potential options and decide: term? severence? training suspension? reduce pay? change schedule/position/office location? How are similarly situated individuals being treated?
NLRA NLRB
National Labor Relations Act National Labor Relations Board
Employees entitled to
No cost medical care replacement income during periods of temporary inability to earn income money for a period of time for diminished capacity benefits for permanent disability Benefits for surviving dependents
Severance for 40 and over
OWBPA: Older workers Benefits Protection Act: so that OW don't sign away rights to sue for age discrimination without a knowing & voluntary waiver. Must be written in language employee understands Must specify right or claims under the ADEA Does not waive rights or claims which may arise after the waiver is executed Additional consideration is provided above and beyond that to which he/she is already entitled Employee is advised, in writing, to consult an attorney prior to executing the agreement Employee is given 21 days to consider the agreement if individual or 45 days if part of an exit incentive or a group of employees Employee is given 7 days following his/her execution of agreement to revoke the acceptance & provides agreement will not become enforceable until that period expires.
NLRA unfair labor practices
P: promise I: induce T: threaten (moving, lay-offs) S: surveil dominate the union discourage membership (term because they urged others or strike) retaliate for giving testimony refuse to negotiate in good faith with the union
Safety Sensitive
Position where employee holding the position has the responsibility of his/her own safety or the responsibility of others peoples safety. It would be particularily dangerous if this person were using drugs or alcohol while on the job. This person must have a clear mind and be diligent while on the job. ex: mechanic; pilot; bus driver
Different Types of Drug testing
Pre-employment screening Part of a physical exam during post-accident testing sometimes random testing (must truly be random)
What is PHI
Protected Health Information
What to do when an injury occurs
Provide immediate medical care if incident results in serious injury/death report to OSHA within 8 hours notify employees emergency contacts if it will result in time lost give employee proper notice & WC form file reports within 5 days after the injury designate FMLA or CFRA communicate with the employee review DR notices & reports investigate incident prepare any OSHA records
What to do with subpoenas
Respond immediately...DO NOT IGNORE
NLRA employee rights
Right to self organize join union collectively bargain engage in concerted activity refrain from these activities
Election procedure
Solicit support through an organizer authorization cards 30% to authorize election Election Petition collective bargaining
Employee eligible for unemployment
Termination Unemployed through no fault of his/her own & looking for work Reduced hours (for full time employees) substantial motivating factor causes claimant to leave work. ex. move with a spouse/domestic partner; protect family/self from domestic violence.
Implied In Fact Contract
a court will consider the following in determining if an implied in fact contract exists: employers "personnel policies" & practices Employees longevity of service Other communications that might amount to assurances Industry practice
wages at termination potential penalty
all wages including accrued vacation & commissions. Otherwise "waiting time" penalties accrue in the amount equal to the employees daily rate times the number of days paid late up to 30 days.
CAl-COBRA
allows to continue group coverage up to 36 months extends to domestic partners covers employees with 2-19 employees (20 for fed)
CA drug free workplace
applies only to people or businesses contracting with or receiving grants from the CA state government.
Once Union in...Employers must
bargain in good faith (collective bargaining) Reasonable times & must put in writing any agreement reached Cant use CBA as a means to bargain around state employment rights unless the waiver is described clearly in CBA **Meals and rest periods are on unconditional nonnegotiable right!!!
SALTING
bring in new employees who wont sign union cards
FED & CA drug free complinace
certify to gov agency you maintain drug free workplace publish & circulate to employees your drug policies & penalties establish drug free awareness program make drug policy a condition of employment impose corrective measure on the employees who violate policy in past 30 days.
Pros & Cons of arbitration agreements
cost, time, decision-maker, evidence, discovery, privacy, appeal rights, enforcement of award
Plans covered by ERISA
defined benefit & defined contribution 401K's, ESOPS, SEP, SIMPLE
AT WILL
employees can be let go with or without "cause"...employees can not be let go for illegal reasons (discrimination) Must give a reason so they do not claim discrimination.
Current state of law for meal & rest periods after Brinker
employer must provide specific meal and break periods policies and to document that the meal/break was provided. Employer can not police the employee on break and if an employee chooses to continue to work through their meal/break the employer will not be held accountable for premium pay. First break must be given no later than the end of the fifth hour of work and the second meal no later than the employees 10th hour of work.
Workers Comp Exclusivity Rule
employers protected from common-law lawsuit (since employees are paid $ for injuries/illness resulting from their jobs.
How to avoid In Fact Contract
include at will language in the employment application as well as the employee handbook review the offer letter to make sure it is "just the facts" and does not include language that could infer an implied in fact contract such as: "we look forward to a long, pleasant and mutually satisfactory relationship with you" Be mindful of "introductory period" provisions.
not covered under exclusivity rule
injury/death is legally caused by your willful physical assault employee's injury/death is caused by your defective product employee injury is aggravated by your fraudulent concealment of the injury's existence
Requirements for SDI administered by EDD
must be unable to do regular customary work for 8 consecutive days must be employed or actively looking for work at time of becoming disabled must have lost wages due to disability must have earned at least $3000 from which SDI deductions were withheld Must be under the care of a doctor the first 8 days the disability occurred mail claim form within 49 days of being disabled Doctor must complete medical certification of disability
CA Permits
reasonable suspension - 3 people willing to collaborate accident workers comp policy stated in job offer safety sensitive positions (must be in job description)
DELIVER the Write-Up
require employee to sign Have a witness (to confirm interaction)
Omnibus Transportation Employees Testing Act
requires drug and alcohol testing for safety-sensitive transportation employees in aviation, trucking, railroads, mass transit, pipelines, and other transportation industries.
NOT covered
self employed volunteers for public agency or non-profit deputy clerks, sheriffs or constables who don't receive compensation ski lift operators and uncompensated ski patrol uncompensated participants in sports independent contractors
Most popular discovery in employment cases
social media
Qualifying event
termination of employment Reduction in hours covered employee becomes entitled to medicare divorce or legal seperation death loss of dependent status (until age 26)
Preexisting conditions under COBRA (HIPPA)
to control costs insurance companies exclude individuals with pre-existing health conditions (cancer, diabetes) from coverage. Type I: HIPAA aimed at increasing access to health care insurance for such persons. Type II: HIPAA aimed at preventing health care fraud and abuse by limiting disclosure of personal health info.
NOT Eligible (unemployment code 1256)
voluntarily quits terminated for misconduct refuses to perform suitable work
