So What Exactly is Workplace “Bullying”?

policies and training to include “workplace bullying”California employers are to expand their harassment policies and training to include “workplace bullying” effective January 1, 2015.  With as much training and guidelines that have been published, harassment can still be a “gray” area…the same goes for workplace bullying.  Workplace bullying is defined as “a conduct that may be considered “abusive”, such as repeated, health-harming mistreatment, verbal abuse, or conduct which is threatening, humiliating, intimidating, or sabotage that interferes with work or some combination of the three”.  So, we see that workplace bullying isn’t always visible aggression, and as responsible employers, we need to understand the gray areas.

Of course, it’s easy to understand “physical bullying”, but what are the other forms?

  • Verbal – includes such conduct as yelling and use of profanity
  • Intimidation – intentional behavior that causes fear or harm
  • Sabotage – deliberately destroying, damaging, undermining or obstructing something
  • Ostracism – intentionally excluding someone for no good reason; shunning
  • Humiliation – to reduce to a lower position in one’s own eyes or others’ eyes
  • Gossip – casual or unconstrained unconstructive conversation or reports about other people, typically involving details that are not confirmed as being true
  • Impossible tasks – assigning tasks that are knowingly unattainable for intentionally unbeneficial reasons
  • Unconstructive criticism – criticism meant to belittle or humiliate

Understand, “bullying” means a pattern of such behavior.  Many people may lose their cool at times, not that this is acceptable.  However, be on alert for repeated behavior.

What should you do?  Playing the proactive card is best.  Revise your policies and trainings to include examples of “bullying”.  It might be best to run the revised training early next year and restart the two year clock for employers who are required to repeat training for supervisors every two years.  Train your employees as well as to the nuances of the policy.  Provide examples.  If you conduct teambuilding sessions with your employees, include a piece that talks about communication styles and behaviors at work.  A skilled facilitator will be able to bring out the conduct in a safe manner for constructive discussion.  When dealing with offenders, be sure to use wordings such as “when you _________, you make me or others feel ____________.  That statement cannot be debated.  Work from there to help an offender recognize, understand and remediate this kind of behavior.  Be sure to address this behavior with your disciplinary procedure.

Why should you do it?  Not only is it a legal risk, but bullying contributes to absenteeism, turnover, stress, poor morale and poor productivity.

If you are the recipient of “bullying” behavior:  Tell the offender that you find the behavior unacceptable.  If it persists, inform your manager or Human Resources.  Keep a confident, constructive attitude when dealing with such people.

New California Labor Laws for 2015

2015There are a milieu of new labor laws this year.  Here’s the highlights of what California employers need to know about these new laws going into 2015:

Mandatory Paid Sick Time – this is probably the hardest hitting change.  Sick time has always been at the discretion of the employer, but starting July 1, 2015, it is now mandatory.  Any employee (part time, full time or temporary) who has worked at least 30 days, must earn one hour of sick time for every 30 hours worked.  What’s the impact?  Well, for the average employee who works 40 hours a week, year round, and takes 5 days vacation and 8 holidays, sick time calculates to 66 hours per year.  That’s more than a week and a half in just sick time.  For employers who offer PTO (paid time off) instead of sick and vacation time, the accruals must at least meet this minimum for the first year.  Also, this time is now considered earned, therefore the employee is entitled to pay once earned and it cannot be forfeited.  If at separation, the employee has earned, unused sick time, it must be paid out as does vacation pay.  Three days must be available immediately.  Employers may institute an accrual cap for sick time.  Although not effective until July 1, posting requirements are effective January 1.

What to do….Assure that each employee (including part time and temp) is accruing sick time at the required rate and track its use.  Institute an accrual cap.  Make sure earned, unused sick time is paid out at termination.  Assure all PTO plans meet this minimum requirement.  Employers may want to institute this policy effective January 1.  Make sure to replace/revise your required notices and postings by the 1st of the year.

Emergency Health Care Workers and Protected Leave – AB 2536 must add emergency health care workers to those who are covered in Volunteer Civil Service Leave.  They are now granted the same leave rights as volunteer firefighters, reserve peace officers and emergency rescue workers.

What to do…Add “emergency health care workers” to employees covered in this policy and make certain the revision is in your handbook.

Greater Liability for Employers Who Contract Labor – AB 1897 states that employers who contract labor are liable for wage and hour and workers’ compensation violations that occur while those employees are working on their behalf, even though the employee formally works for the contracted agency.  The law exempts companies with 25 employees or less, with 5 or less contracted employees at any given time and certain government employers.

What to do…Use reputable staffing firms and perform a thorough due diligence on any staffing agency to ascertain that they are compliant with California labor laws.

Heat Illness Rest and Recovery Periods – SB 1360 clarifies that breaks taken by employees as per current heat illness regulations are to be paid breaks and count as hours worked.

What to do…Ensure that you have a Heat Illness policy and that supervisors are well trained, as well as ensuring pay practices are compliant.  A nice tidbit…CalOSHA has a phone app that helps determine when to kick this regulation into action:

Foreign Labor Contractor Requirements to Combat Human Trafficking – SB 477 applies to companies who retain labor contractors outside of the United States to recruit for positions within California to comply with registration, licensing and bonding requirements and also requires California employers to use only agencies who meet these requirements.  Employers are also required to disclose which employees are working for a particular contractor.  Contractors are also required to disclose specific information to the worker in a language that they can comprehend regarding all terms and conditions.  This bill prohibits the employee from bearing any costs prior to commencement of work.

What to do…Again, deal with reputable firms and use diligence when selecting a contractor to ensure that they are compliance with all requirements of the law.

Services to Minors – This law requires a business that provides an extracurricular service or program of instruction and has adult employees who have supervisory or disciplinary power over a child or children to provide written notice to the parent or guardian of a youth participating in the service offered by the business regarding the business’s policies relating to criminal background checks for employees who provide services to minors.

What to do…For employers who provide such services, prepare a standard notification with respect to your background checking policy and provide it to the parents or guardians.  As an ongoing procedure, provide the notice before any services are rendered.  Make sure that your background checking policies are up to date and that procedures are followed.

Criminal History Information in Public Contracts – This law requires any organization submitting a bid to the state on a contract involving onsite construction-related services to certify that the organization does not ask an applicant for such employment to disclose information concerning the conviction history of the applicant on or at the time of an initial employment application.  This law does not apply to a position for which the person or the state is otherwise required by state or federal law to conduct a conviction history background check or to any contract position  with a criminal justice agency.

What to do…It’s becoming a common practice to eliminate all arrest and conviction questions from an initial application for employment and bring those up later in the interview process, so as not to inadvertently discriminate against a candidate who has satisfactorily served time and completed a sentence.  Employers must have a bona fide reason to refuse a candidate with an arrest or conviction record.  We may see this as a new protected class in the future.  However, an employer still has an obligation to do their due diligence when hiring to protect the workplace from potential violence.

New Requirements for Sexual Harassment Training – SB 1097 requires employers to add “prevention of abusive conduct” to their Sexual Harassment policies and training.  Abusive conduct, sometimes referred to as “bullying” is defined as “such conduct as repeated, health-harming mistreatment, verbal abuse or conduct which is threatening, humiliating, intimidating or sabotage that interferes with work or some combination of the three”.

What to do…Add prevention of “bullying/abusive conduct” to your policies and training.  Ensure supervisors understand and recognize such behavior, as well as how to handle infractions. Provide explicit examples and allow staff to ask questions.  The best thing to do is to conduct a revised training in early 2015 and restart the two year clock for mandatory training.

Discrimination Prohibited Against Public Assistance Recipients – AB 1792 is two pronged…one side is great, the other is being highly criticized.  What’s great is that employers are prohibited from discriminating or retaliating against employees or candidates receiving state assistance (Medi-Cal).  What’s irritating to a lot of folks is that the State will issue a public report of the top 500 companies (of 100 or more employees) who employ people on state assistance.  It’s been referred to as the “public shame” law.

What to do…Add “state assistance recipients” to the ever-growing list of protected employees.  Train managers to recognize, understand and remediate possible infringements.

Harassment Protection Extended to Unpaid Interns and Volunteers – AB 1443 extends the harassment protection provisions already in place to cover unpaid interns and volunteers.  In addition, employers may not discriminate or retaliate against unpaid interns and volunteers and must provide religious accommodations if applicable.

What to do…Add “unpaid interns and volunteers” to “employees” in all applicable policies.  Be certain that an “unpaid” internship is legitimate; certain conditions must be met for the internship to be unpaid.  Also, make sure that you are providing workers’ compensation coverage for interns and volunteers.

Immigration-Related Retaliation Prohibited – AB 2751 expands “retaliation” to include threatening to file or filing a false report or complaint with any state or federal agency; formerly, the law stated filing a report to the police.  Additionally, the new law prohibits discrimination or retaliation against individuals who legally change their name, social security number or federal employment authorization document.

What to do…Make sure that managers are aware of the change and institute this “non-practice” into your operations.

Discrimination Prohibited re: Licenses for Undocumented Workers – AB 1660 makes it unlawful for an employer to discriminate against an individual who holds a driver’s license issued to an undocumented person (called an AB 60 driver’s license) who presents valid proof or identity and California residency.  The law also stipulates that any action taken by an employer to comply with Federal I-9 requirements does not violate California law.  Furthermore, an employer cannot require an individual to present a driver’s license unless it is required by law.  And lastly, driver’s license information obtained by an employer must be treated confidentially.

What to do…Again, assure that all managers are aware of the new requirements.  Keep such information obtained from licenses in a secure and confidential place where access is on a “need to know” basis only.  Go through your existing employee files and make certain current information is secure and confidential as well.  Never require or suggest that a new employee provide a driver’s license as documentation needed for completion of Form I-9.


Good news from CalOSHA!  Employers may now email reports of a work-related injury to the Division of Safety and Health.


Other tidbits…

There are other laws that increase penalties for workplace violations, laws specific to farm labor and hospitals and are specific to municipalities.  Oakland, San Francisco and Berkeley all have new minimum wage laws.  Contact Golden State HR for specifics.

Tackling the Intimidation of Termination

For anyone who has supervised employees for a time, you may have come to that moment in time where you decided an employee has to go.  For most, it’s an uncomfortable experience.  Often times, these employees stay much longer than they should, due to procrastination or a hope that they’ll turn around soon.  So, when is the right time and how do you conduct a termination?  Is there a “best practice”?

First, let’s understand the different categories of terminations.  We’ll look at each and discuss how best to process each.

  1. At Will: The “at will” doctrine holds that the employment relationship is “at will”, meaning either the employer or the employee can end it at any time for any reason.  In my experience, no employee was ever let go for no reason at all.  However, “at will” is often a “shield” so to speak, when there’s a decision to let someone go, from any type of wrongdoing on the employer’s part.    So, for instance, you don’t feel that an employee is a good fit, you can avoid any drama or contest by exercising your “at will” right.  You can let someone go for any reason except for one that’s deemed unlawful.

My advice:  It is advisable to include “at will” terminology in your handbook, your offer letters, in your open door policy, and in a disciplinary process.

  1. Lay Offs: In a layoff situation, a position is eliminated.  Layoffs are most often the result of a downturn in business or a restructuring of some sort.  One of the greatest challenges when planning a layoff is what and when to tell employees.  If you give advance warning, you may lose the employees that you wish to retain.  When rumors start, they spread like wildfire, so management must have a plan and manage the situation well.

What the law says: The California WARN act requires companies that have a facility with 75 or more employees (including contractors) within a 12 month time period, who plan on laying off 50 or more employees for more than 30 days or relocating more than 100 miles to give 60 days notice to certain authorities and employees.

In these situations, employees would most likely be eligible for unemployment insurance benefits (other conditions must be met on the employee’s part).  A company may want to consider alternative options, such as job sharing, reduction in hours, voluntary leave or early retirement.  Nonetheless, employees shouldn’t be completely surprised when learning that their job is being eliminated.

What needs to be planned:

  1. Timing: Some employees may be let go at varying times, depending on company needs.
  2. Salary and benefits continuation
  3. Severance agreements that include a waiver of the employee’s right to sue for discriminatory reasons.
  4. Also, as a due diligence, an analysis of the workforce transition should be completed to assess the impact on the numbers of employees in protected categories, such as age, ethnicity, gender, etc. to avoid unintended discrimination.

Outplacement services are a great benefit for those employees losing jobs:  they have an immediate resource to aid in the search for a new job.  The organization may want to consider bringing in counselors for both the employees leaving and staying, as layoffs usually result in grieving.   Also, having contacted hiring employers ahead of time is a great idea and handing employees a list of potential openings helps curb the initial emotions.

Just as much planning should go into the management of the employees retained…what the plan moving forward is, how their positions may change, what differing responsibilities they may have, what the new expectations are.  These employees will look for some sign of job stability.  It should be anticipated and expected that these employees may be searching for new jobs.

  1. Termination for Cause: Never, never, should an employee be surprised if the termination is for cause.  There should be clear policies that specify behavioral expectations and that in grievous situations, termination may be immediate (e.g. violence).  Should the situation be an employee’s performance, specifically lack thereof, it is recommended and hoped that the manager and employee engage in a performance remediation process.  Nipping poor performance in the bud saves time, energy, emotions, loss of productivity and hopefully the agony of termination.  But the process does take a considerable amount of energy.

By communicating performance expectations ahead of time, the employee may not even find themselves in this situation in the first place.  However, when it does happen, pointing out the gap between expected performance and actual performance is essential.

Some best practices: The manager should study the situation and assure that all factors outside of the employee’s control are corrected, such as improper tools, lack of training, etc.  When it has been decidedly determined that the employee’s performance needs improvement, the employee and manager should:

  1. Construct a plan,
  2. Give adequate feedback, and
  3. Agree on what the consequences of further poor performance is.

When all have given a good faith effort, and the termination is inevitable, the employee should understand that termination is the consequence.

It is vital to document the steps taken from the get go …documentation will support your actions should you find yourself the recipient of a complaint or lawsuit.  What you want to avoid in a termination discussion is a debate…if the consequence of continued poor performance is termination, then that should have been made clear ahead of time.  In essence, you are helping the employee be successful, by separating them from a job that’s proven to be an unsuccessful relationship.

  1. Constructive Discharge: This term refers to a situation where the employer has made the conditions of employment so difficult that the employee is forced to resign.    An example of constructive discharge is an employee who is sexually harassed on a frequent basis, has told the offender to stop, has gone to his/her manager and complained, yet the harassment continues.  This is a work situation so intolerable, that a reasonable person would leave.  Another example is an employee who files a worker’s compensation claim and when he/she returns has had their workspace moved to a dim, cold space, more like a closet, in the basement with the files on another floor.  Employers should understand that they face the same risks as a termination, such as lawsuits for discrimination and retaliation, and that the employee will most likely be eligible to receive unemployment benefits.

Some issues to consider:

  1. Always, always treat a departing employee with dignity, respect and empathy. Maintain composure even if the employee does not.  Besides being the right and exemplary thing to do, it minimizes the risk of the employee becoming any kind of a threat.  Meet with the employee in a private area and assure confidentiality to the maximum extent possible.  Have a box and tissues on hand.  Timing is something else to consider; if you terminate first thing in the morning, you may be liable for show-up pay.
  2. Should you allow employees to bid farewell to their fellow workers? Use discretion, particularly when terminating someone for cause.  If you do, let them know that you expect professional conduct.  Also, if you are using a severance agreement, you may indicate that a condition is non-disclosure of the nature of the termination…remind the employee of the expectation.
  3. Another issue to consider is security. Assess whether the employee may be any kind of a threat to the manager, other employees, company property, etc. as part of the planning process.  Alert security or management and have a process.  Hire professionals if needed.  In light of some of the unfortunate workplace fatalities committed by disgruntled employees, the risk must be considered and others protected.  You may also want to escort the employee out of the building.
  4. If an employee requests a letter of reference, take care to give a proper response. If you give a poor performer a glowing reference, it can be used against you in the event of a complaint or lawsuit.  Also, think about an employer’s duty to conduct a background investigation.  Why would you compromise the outcome for another employer, when you must do the same?  It’s not fair to the next employer, nor to the employee to pass along an unresolved problem.  Conversely, be careful when disclosing information on poor performance and making blanket derogatory statements, as they can lead to a slander case.  This is the proverbial “between a rock and a hard place”.  Manage these situations with care and diplomacy.
  5. Make sure that you plan the termination well and have everything in order. Not having answers, proper documents or clarity can make the experience drag out and become unpleasant for all.  Check the attached checklist for all of the details you should cover before you proceed.

No one enjoys telling someone that they lost their job.  However, at times it is the right thing to do.  Assure that you have been fair.  Carefully plan ahead, use respect and be prepared ahead of time for any reaction.

Hopefully, these suggestions will help you get through the termination experience as painlessly as possible.

The Foundation for Employee Satisfaction

Organizational health encompasses the organization in its entirety, its people, systems, assets and many other components.  But at every organization’s core are its good employees.   But what is a “good” employee?  One that performs, follows directives, interacts well with others, is motivated, accountable…the list can go on at length.  The challenge is to get them trained, productive and engaged and keep them so.  After observing organizational behavior for many years, I’ve come to the conclusion that an employee will “optimize” and stay with an organization if three conditions are met:  1) they feel valued; 2) they feel respected; and 3) they feel fulfilled.  If any of these are missing, the organization is missing out.

Feeling valued:  What’s it like to feel valued?  It’s the feeling that you are important, your work is worth something, you make a significant contribution.  There may definitely be an intrinsic sense of value that an employee derives from their work, but surely things like compensation, rewards and recognition play a vital part.  Paying employee their worth, both from a market driven wage and from an internal equity standpoint is essential.  It’s also fair.  Rewards can take the shape of a bonus, a perk, a congratulatory note, a lunch or even a “great job” pat on the back.  Research shows that positive feedback is much more effective than negative feedback, and it’s easy!

Feeling respected…What’s it like to feel respected?  It’s being treated with human decency, no matter the situation at hand.  Common courtesy, consideration of the employee’s feelings and healthy interactions contribute to a feeling of respect.  It can be tricky…particularly when emotions are high or the treatment isn’t mutual.  Respect is THE most important element of a disciplinary action or a termination.  Just put yourself in their shoes.

Feeling fulfilled…What’s it like to feel fulfilled?  This one is a bit more elusive.  You can pay well, reward well and give all the positive feedback in the world, but at some point, the employee may feel that they want or need something more out of their work.  It will usually be a new and better opportunity, but could be travel, going back to school, or some unrelated employment change.  Here it’s best to know your employee well.  Sometimes you may know what they want, but if you don’t show an interest in them, you may be caught off guard.

Know your employee.  Understand what excites and motivates him/her.  Know what personal challenges they are experiencing at work as well as outside of work.  The ”old rule” was to separate personal and work issues.  However, Patrick Lencioni, in a recent interview with the Society of Human Resource Management, suggests that we practice exactly the opposite.  He contends that it is virtually impossible for an employee experiencing difficulties outside of work, to park them at the door and act totally different at work.  When you understand what’s going on, you can better manage the work performance and help the employee.  And the result is invaluable.  Talk about building loyalty!

Organizational health clearly hinges on an engaged, collaborative, productive team of employees.  Take time to contemplate the valued, respected and fulfilled notion…it’s some work but you reap it back in spades.

CA Labor Law Update for 2014

It’s a new year and there are new changes for California employers!  There are a variety of changes on the employment law landscape this year.  We have recapped the most significant to most employers…you can either read them or listen to them in our podcast.  Additionally, we are suggesting what steps the average employer needs to take to assure compliance. You’ll notice that a few new amendments focus on higher penalties for employers…the best advice is to manage risk, audit pay and employment practices, correct errors quickly and treat your employees like you’d like to be treated!  An employee who feels cared for and happy in their job is usually productive, loyal and a joy to work with.

These are the most significant labor law updates for 2014:

Minimum wage:  The California minimum wage will increase from $8 per hour to $9 effective July 1, 2014 and to $10 effective Jan 1, 2016.  The new minimum wage is part of a three year plan that will make California’s rate one of the highest in the nation.  In addition to paying the new rate to employees currently earning less than $9, employers will be required to change their posting notices to reflect the new law.  Since one of the requirements for deeming a job as “exempt” is to pay two times the minimum wage, employers should also review their pay rates.  All commission agreements should ensure that the employee is earning at least the new minimum wage. Employers of workers in San Francisco:  the new minimum wage is $10.74 per hour.

Expansion of “meals and rest periods” to include heat recovery periods:  Requirements for heat recovery periods will now follow those for meals and rest periods.  Employees are entitled to no less than 5 minutes of cooling off in hot outdoor conditions and employers cannot force them to work during this time.  For every day a heat recovery period is not provided, the employee is entitled to one extra hour of pay.  It is advised that employers with employees who work outside in hot conditions review the guidelines set by Cal OSHA: “ train, water, shade, plan”.  See the CalOSHA website for more details.

Protection for employees re: complaints of unpaid wages:  Previously, the law protected employees from discharge or discrimination if they submitted a complaint of unpaid wages.  AB263 expands this protection to employees who assert their rights under Labor Code, including an oral or written complaint, from retaliation or adverse employment action.  The amended law adds a $10K penalty per employee per violation.  Employers should regularly audit their payrolls and time sheets to assure compliance with wage and hour requirements.  Make corrections to errors promptly.  Prevention is the best policy in this case.

Expansion of “sexual harassment”:  The Fair Employment and Housing Act (FEHA) prohibits “harassment because of sex”.  SB 292 broadens the definition of “harassment because of sex” to include behavior that is sexually harassing but is not motivated by sexually desire.  Employers should review their policies and assure that managers and employees understand the new provision and are trained properly.

Expansion of Paid Family Leave:  SB 770 amends the Paid Family Leave program to include payments for employees who take leave to care for a seriously ill grandparent, grandchild, sibling or parent-in-law, effective July 1, 2014.  Previously, the program only covered workers who requested time off to care for a child, spouse, or registered domestic partner. The California Paid Family Leave program allows eligible employees to take up to six weeks of partially paid leave from their jobs each year. Employers should understand that this does not require them to approve leaves for employees to care for a seriously ill grandparent, grandchild, sibling or parent-in-law.  This change will most likely cause confusion for employees.  Be prepared to explain the difference.  Employers may choose to voluntarily broaden their policies to include these new groups.

New protections for immigrants: Under AB263, an employer is prohibited from reporting or threatening an undocumented employee who complains about Labor Code violations to Immigration and Customs Enforcement. This is considered an “unfair immigration-related practice” and businesses may lose their licenses and/or face charges of criminal extortion.

Military veterans as protected class:  This bill, AB 556, amends the Fair Employment and Housing Act to add “military and veteran status” to the list of categories protected from discrimination, bringing the total number of protected categories to 16.  “Military and veteran status” is defined as a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.  Employers may still identify military or veterans for the purpose of contract preference. The bill does not prohibit employers from identifying members of the military or veterans for purposes of awarding a veteran’s preference as permitted by law. It is suggested that employers review their discrimination policies and change their required postings to reflect inclusion of this new category.

Victims of domestic violence protection:   The law currently prohibits employers from taking adverse action for victims of domestic violence and sexual assault to take time off from work to seek remedies and services related to such matters.  SB 400 extends protection to victims of stalking as well. An employer may nor discharge, discriminate or retaliate against an employee because of the employee’s known status as a victim of domestic violence, sexual assault, or stalking.  The employer must extend a reasonable accommodation for such a victim. Employers should amend their policies accordingly and assure managers are aware and understand the change.

Overtime rules for domestic work employees: Domestic workers will have to be paid time and a half if they work more than nine hours in a day or more than 45 hours in a week.  This law exempts parent, grandparent, spouse, sibling, child, or legally adopted child of the domestic work employer, casual babysitters or babysitters under 18.  This law is effective initially for the next three years, unless the legislature changes the provisions.  While this doesn’t directly affect employers, they may expect employees to request flexible work arrangements to handle the potential finanical impact.

Prevailing wage:  For employers required to pay employees prevailing wage, take note that there are seven changes for 2014. 

Successor farm labor contract liability:  SB 168 makes the successor or a farm labor contract liable for any wages owed by the predecessor contractor, as well as any penalties, under certain circumstances.  Successor contractors should perform a due diligence to identify this risk before the takeover.

Liquidated damages for wage order violation:  The law currently allows the Labor Commissioner to investigate and enforce  the  payment of wages.   The Labor Commissioner may impose civil and criminal Penalties for violations. The law grants a worker the right to recover, in a minimum wage claim hearing or lawsuit, restitution and liquidated damages.  However, currently the Labor Commissioner is not authorized to collect liquidated damages for the employee.   AB 442 extends the penalty and restitution provisions to include a citation requiring the employer to pay liquidated damages to the employee.  Employers should ascertain that their pay practices are compliant, audit their pay practices and take care that calculation of “regular rate” for overtime purposes is correct.  There has been an increase in class action lawsuits on this subject.

Employee complaints:  final orders:  AB1386 allows for a lien to be created and recorded on an employer’s real property once an award to an employee becomes final. The bill provides that the lien would continue on the employer’s real property for 10 years until satisfied or released.  Employers must take notices and citations seriously and act on them promptly.

Criminal penalties for employers who willfully fail to remit deductions:  SB390 makes it a crime to willfully withhold remittance of moneys deducted from employee checks in accordance with federal, state or local laws, with failure to remit over $500 constituting a felony.  This includes deductions for health insurance, pension funds, welfare funds or other benefit plans.   Employers should ensure that deductions are made and remitted properly and in a timely manner.

Employers who win wage claim lawsuits: Recovery of Fees only if Files in Bad Faith:  SB462 stipulates that employers who win wage claim lawsuits may only recover attorney fees if it is deemed that the employee filed the lawsuit in bad faith.  This places a burden on the employer for proof, which is often difficult to do.  Again, employers should audit their pay practices to assure compliance and deter any such claims in the first place.


For Businesses with employees working in San Francisco:

The Health Care Security Ordinance has published the new expenditure rate for 2014:  $2.44 per hour paid for large employers and $1.63 per hour paid for medium employers.  Small business (20 employees or less or nonprofits with 49 employees or less) are exempt.

The Family Friendly Workplace Ordinance takes effect January 1.  The Ordinance grants employees with six or more months’ of employment who regularly work as little as eight hours per week the right to request work modifications so that they may care for a child; a spouse, domestic partner, parent, sibling, grandchild, or grandchild with a serious health condition; or a parent age 65 or older. The modification can be a change in schedule, work hours, work assignment, location or the predictability of their schedule.  This ordinance is in effect for employers who regularly employ 20 or more employees and includes the employer’s agents.

New Minimum Wage:  The new minimum wage for San Francisco employees is $10.74 per hour effective January 14, 2014.

The Smart Art of Performance Management

How well do your employees perform?  How well does your organization as a whole perform?  Do you have clear ideas as to what great performance for your organization is, or do you believe that you’ll recognize great performance when you see it?

Most companies set both long and short term goals.  How well those goals are transformed into everyday goals and objectives at the individual level is more the challenge, and how the employees in aggregate are accomplishing the organization’s goals and objectives is the key to performance management.

Performance management is a systematic process by which an organization involves its employees in improving organizational effectiveness toward the accomplishment of the organization’s mission and goals.  Performance management is the process of creating organizational goals and objectives, communicating clear expectations, setting standards of excellence, establishing measurements and aligning all activities.

The intention of performance management is to create alignment of thinking and action by “cascading” broad organizational goals down to departmental and individual goals.  This, in turn, allows managers and supervisors to set clear expectations for results and for employees to understand and work toward meeting them.  This results in the “line of sight” where every employee can see how their work supports the overarching goals.

maximize performance and leverage talent

Elements of Performance Management

How do you currently get everyone to operate together toward goals?  You can use the Elements of Performance Management model as a way to systematically think about performance management.

Thinking is about setting expectations and goals to direct activities.  It’s the planning phase.  Thinking goes beyond a job description – it helps the employee know what, why, when and how things are to be accomplished.  It includes teambuilding, developing a clear understanding of roles and responsibilities and team interdependence.  This creation of expectations is the basis for the performance appraisal; employees must know ahead of time not only what results they will be held to, but how their results will be measured.  SMART (specific, measurable, attainable, relevant and timely) goals are set up front for each employee and department or employee group.

Doing is the execution phase.  It’s getting things off the ground and in the groove.  This is often an organic process, where experimentation and flexibility are employed.

In Checking, projects and job duties are continually monitored, using a consistent basis of measurement.  Feedback to employees is best if delivered both regularly and “in the moment’.  Unless an employee is receiving any feedback, they believe they are doing a great job.  Don’t forget the best motivator of all – recognizing good performance.  In Checking, poor performance is “nipped in the bud” by providing immediate feedback and remediation, otherwise a manager may spend countless hours in disciplinary activities.

Developing starts with recruiting and orientation.  Skills, knowledge and abilities are evaluated and training requirements are discerned.  Orientation helps the employee to understand the culture, procedures, policies, resources and expectations.  In Developing, performance deficiencies are identified early and remediated.  Find an employee’s strengths and create challenges and advanced responsibilities, maximize their potential, and increase their value to the organization.  Development is not an annual exercise or a few workshops.  It’s about recognizing opportunities in everyday situations to help employees grow and improve.

Evaluating  is a process of delivering consistent, fair, honest and constructive feedback, both formally and informally that serves as a basis for rewards.  Make the evaluation mean something to the employee; ascertain that they understand both the accolades and the needs for improvement and leave with an action plan for performance improvement and/or enhancement.

Rewarding  is the culmination of the Performance Management process.  Since the reward is the incentive that motivates the employee to perform in a manner that moves the organization to success, careful consideration should be given to determine the right rewards.  Get to know your employees in order to understand what excites them – tickets to their favorite sports team? An early end of the day?  Be sure that the reward matches the level of performance.  Also, the “great job!” is thought to be the number one motivator – much more that money and other fringe benefits.  It’s certainly the easiest!

Think of this Performance Management process in action for every employee, every department, every day and you’ll get a sense of the power it provides.  It can be the difference in success for your organization, can create satisfaction for your employees and huge rewards for you!  It is something of an art and takes time, but the payoff is well worth it – it’s smart!

Compensating Teams

Nearly everyone can relate to working on a team.  Teams are a great way to bring a group of talented folks together to focus on and accomplish a task.  They are also a means of providing development opportunities to employees, by utilizing skills in different venues, learning new skills from other team members and by taking on a responsibility beyond the purview of the everyday job.  But what’s the best way to compensate teams?

As you may have anticipated, there is no one best answer.  Compensation philosophy, strategy and design are the same as for individual compensation, for instance determining what behavior or results you want to incent/reward, assuring that the reward is meaningful, that the allocations are equitable and that it falls within budget.  However, there are several important practices to consider with respect to teams.  First of all, it is advisable to be transparent with pay.  Every team member should know what the plan is, the potential reward, the actual reward and how the reward will be distributed amongst the group at the outset of the team’s work together.  The team should understand goals and expectations, and how the reward will be determined based on performance, particularly if the reward will be cash or a non-cash item of high value.  For self directed teams, the team’s determination of award allocation may be best, along with a peer review or the use of a 180 or 270 degree feedback device, where feedback is gathered from peers and others who deal directly with the team. It is also important that the team be mutually accountable for results.

In his book, Compensation for Teams, Steven Gross identifies three types of teams:

  • The Parallel Team – this team comes together periodically while each members also has a full time job (e.g. Safety Committee);
  • The Process Team – this team is a full-time, dedicated team, generally created for improvement in quality and/or customer service, the members often being cross-trained;
  • The Project Team – this team is a full-time team brought together for the duration of a project.

Here are some concrete suggestions based on his research that the author suggests for team performance recognition:

The Parallel Team:

  • Non-cash rewards are more popular
  • Any differentiation amongst members must be defensible
  • Allocation should be fully accepted by the team
  • Cash for successful results, non-cash award for mixed results and a memo commending hard work for failed results
  • Recognition occurs after the fact
  • Merit increases in base pay should be based on both regular job and team performance

The Process Team:

  • Incentive compensation is popular, due to incremental improvement
  • Incentive compensation is less likely to create disharmony
  • Non-cash awards are seen as helping bring the team together
  • Incentive compensation should be of equal amounts
  • Recognition occurs before the fact
  • Incremental merit increases emphasize continuous improvement
  • General wage increases should reflect new skills and competencies

The Project Team:

  • Non-cash awards and spot cash awards are most popular
  • Sizable cash awards are appropriate
  • Non-cash award for meeting expectations; cash for exceeding expectations
  • Allocation should be equal percent of base pay and/or individual contribution
  • Recognition occurs before and/or after the fact
  • Merit increases granted upon demonstration of required skills and competencies

A whole different viewpoint as to what motivates teams and what rewards they desire are depicted in this video clip:

The clip contends that workers should be paid enough to take money motivators off the table and what truly motivates is autonomy, mastery and purpose.

These two viewpoints are both  food for thought when it comes to designing your team compensation plan.  What should we favor: money or meaning, when it comes to rewarding teams?

Effective Delegation: Practical Applications in the Workplace

Managers have so much to do nowadays!  They must assure quality, meet goals and objectives, plan, budget and execute.  While they’re doing all of this, they must also hire, train, motivate, direct and evaluate employees.  When the topic of delegation comes up, many managers “don’t have the time”, “can do it faster and better themselves”, or “can’t make it happen fast enough with the employees they have”.  True…delegation takes time, planning, patience, focus and energy, but if done well, the return on investment is incredible!

Some compelling reasons to delegate are:

  • Maximize/leverage resources
  • Create developments opportunities
  • Motivate employees
  • Utilize skills that the manager lacks
  • Improve leadership skills

As you can see, delegation is more than just another task in the life of a manager!

How do you delegate?  Here’s the steps adapted from Chris Roebach’s book Effective Delegation:

  1. Define and analyze the task
  2. Select the individual
  3. Assess employees’ ability and training needs
  4. Explain why
  5. Identify resources.
  6. Set objectives
  7. Monitor progress
  8. Review the results

Effective Delegation also suggests that there are four levels of delegation:

1.  Control – The “control” level restricts the employee considerably.  The manager retains control of the assignment.  In the control level the manager:

  • Gives specific instructions
  • Supervises closely
  • Restricts employee’s freedom

2.  Coach – In coaching, the manger is less engaged – the employee has more freedom.  When in the coaching level, the manager:

  • Supervises closely, but less directive
  • Explains the job by step but offers advice and support
  • Allows the employee more responsibility and input

3.  Consult – When “consulting” there is a shift in responsibility and power:

  • Allows the employee more freedom of action
  • Gives general instruction and invites ideas
  • Decides jointly with employee on choice of action
  • The manager is available for help.

4.  Collaborate – At this level, the tables have turned.  As Covey describes:  “the employee is the boss and the manager supports” .  The manager:

  • Gives only overall direction
  • Leaves specifics to the delegee
  • Defines the level of freedom before the necessity to report
  • Advises and supports only in rare situations.

There are other considerations before deciding what, when and whom to delegate to, such as available time, stress conditions, urgency, employee motivation, employees commitment  and is the situation an opportunity for learning.

By utilizing delegation, a manager is leveraging productivity, developing employees and instilling camaraderie with employees.  It takes a commitment of time, energy and attention, but the long term results are invaluable.  Practising delegation will enhance management skills and develop leadership skills.

For more detail, read Cathy’s white paper on delegation.

SPHR Certification

 What is an SPHR certification and how can it help your business?

Most organizations spend considerable time and money on the people side of their business. There is always risk associated with human resources decisions – in legal compliance, employee relations and other areas as well.

A qualified HR professional is needed to guide the organization in it’s decisions. An SPHR (Senior Professional in Human Resources) designates proven mastery of intricate HR laws and core practices that make organizations successful.

How is the SPHR-CA designation different?

A few years ago, the certification body, the Human Resource Certification Institute (HRCI), a globally recognized agent, recognized the distinct difference that California labor law posed on employers, both native to California, as well as those entities outside of California that employ here. A special designation, the SPHR-CA was developed.

An SPHR-CA certifies that the professional is not only knowledgeable in CA labor law compliance and best practice, but has the experience to enable the practical application in the workplace.