Category Archives: Robin Noah

Harassment

Robin Noah
Robin Noah

Is the issue of harassment confusing? Do you wish that a simple, clear statement was available to help you have a clearer understanding of what it is and how to deal with it? Here is a brief overview.

TYPES: There are several types of inappropriate behavior that constitute harassment. The behavior could be of a sexual nature may involve bullying or other unwelcome behavior. Employee harassment guidelines establish the standards of conduct employees must follow, as well as the employer’s responsibilities in the event of a harassment claim as well as the possible consequences for engaging in such behavior

GUIDELINES: Employee harassment guidelines are a set of rules that illustrate how employees should conduct themselves in the workplace. They are in place to inform workers of what constitutes inappropriate behavior. Employee harassment guidelines define harassment, establish a specific code of conduct and clearly describe the procedures for reporting harassment. Many employers require that workers sign a document saying they read and understand harassment guidelines to help ensure adherence to harassment policies and procedures.

ISSUES: A central issue is occupying the time of HR professionals is harassment in the workplace. The costs associated with this issue go far beyond the simple payment of legal fees. Affected employees may begin to display any number of negative indications of harassment: feeling victimized, having attendance problems, showing a decrease in productivity, experiencing a hostile work environment. Even a potential loss of employment for those involved may result. Because harassment in business exclusively involves people, it falls to HR departments to maintain vigilance in monitoring and addressing this issue.

Anti-discrimination laws also prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit under these laws; or opposing employment practices that they reasonably believe discriminate against individuals, in violation of these laws.” You, as a business owner, are liable for the inappropriate behaviors that fall into this description.

The HR ROLE AND PREVENTION:

Federal laws: The prevalence of harassment in the workplace has led to a number of federal laws:

  • Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (ADEA),
  • Americans with Disabilities Act of 1990 (ADA).

Legal matters in the workplace tend to fall under human resources, a component of business with labor law at its core. A harassment lawsuit carries with it the power to destroy your business, so it is beneficial to have HR on hand to deter situations of harassment.

Human resources personnel are equipped to take several measures in prevention of harassment. When first hired your employees may not know what the boundaries of behavior involve. They must be informed, and receive training. After training, employees should sign written acknowledgements of the training. This document is placed in their personnel files.

IMPORTANCE: Training and documentation provide important support if litigating a harassment case ever becomes necessary. Your HR department needs to provide continued required “brush-up” training as a necessary reminder to employees about harassment issues and how to avoid them.

EMPLOYER RESPONSIBILITIES: Implementing an employee harassment policy does not release employers from liability if a worker is the victim of harassment. Employers must make a good-faith effort to prevent harassment in the workplace and remedy a harassment situation if a worker files a complaint. Employers are liable for harassment if they are made aware of harassing behavior and fail to take action to correct the situation.

Guidelines attempt to prevent harassment through education and training about the problems harassment causes and the individual responsibilities of all involved. The EEOC Training Institute is a valuable resource employers can use to implement training and technical assistance programs to improve employee awareness about harassment.

EMPLOYER LIABILITY: Despite having abuse and harassment policies in place:

  • Employers may be liable for the inappropriate behaviors of workers.
  • Employers are liable for harassment when a manager or supervisor’s inappropriate behavior results in an adverse employment action such as a decrease in wages or termination.
  • Employers who fail to prevent or at least make an attempt to prevent harassing behavior are also liable.
  • Employers who are made aware of harassing or abusive behavior and take the necessary steps to correct the situation are usually released from liability unless the victim can prove otherwise.

REFERENCE: Effective January, 2019 Gov. Code 12950.1 (Amended by SB 1343)  now requires that all employers of 5 or more employees provide 1 hour of sexual harassment and abusive conduct prevention training to non-managerial employees and 2 hours of sexual harassment and abusive conduct prevention training to managerial employees once every two years.

Education:  Educate yourself. It’s important that you know the fundamentals of harassment in work place.

This article is purely informational. For questions regarding the impact of harassment rules on your business, please see a labor law attorney.

Author: Robin Noah, Executive Coaches of Orange County, www.ECofOC.org

Working Remotely

Robin Noah
Robin Noah
The option to work outside the office is a dream come true for employees who want better working options, however, managing remote employees can quickly become a boss’s worst nightmare. Remote working, telecommuting, flexible working – thanks to the wonders of technology, is increasingly finding new ways to get the job done. The ability to telecommute, whether full time or on occasion, has become an increasingly common workplace perk. In fact, according to one Gallup study 43.

It has been said that allowing people to work from home attracts and retains top talent in a competitive market, but there are factors to consider.

1. Eligibility: One of the first things any employer needs to consider when deciding on a remote work assignment is whether the employees’ attitudes, work ethics and personalities align with the company’s expectations of telecommuting. Managers should accommodate on a case-by-case basis keeping in mind what’s best for the company, its team members and the project at hand.  Sometimes looking at the employees profile will give the best clue when looking for candidates or responding to a request.

Take some time  to cover all areas of remote working and create a job description that includes the nature of the position, how long a person has been at the position, past job performance and how frequently a staff member can telecommute, i.e., full time, once a week, etc.

2. Expectations:  For geographically dispersed teams, or in cases where remote work helps, accommodation for family schedules and obligations, official “business hours” may vary from person to person.  However, regardless of their work hours, employees also need to be held accountable for their assigned jobs. “It is important to provide very specific remote work guidelines and policies for employees to review and acknowledge in a telecommuting arrangement.

Workers who do not meet these expectations risk losing the trust of leadership and sidelining their team. Minimum considerations:

  • Clear expectations with employees
  • Adhering to company expectations
  • Available during office hours
  • Meet deadlines and complete projects with excellence
  • Maintain communication with their manager and co-workers.

Other concerns that may be addressed

  • Security of company owned equipment
  • Accountability and visibility
  • Security – both physical, and digital
  • Maintaining boundaries between work life and home life

3. Equipment and Cybersecurity

Enabling employees to work remotely opens up the likelihood that they’ll use their work devices to communicate via unsecured public networks. Password-protect all business devices; make sure that data going out from those devices is encrypted. Keep a current inventory of all devices and make sure each one has its GPS tracking turned on. Additionally, install technology to remotely wipe data from any device that has been lost or stolen.”

4. Communication methods: With the appropriate use of communications technology, companies can also ensure their culture remains intact, even with full-time telecommuters.  It’s wise to explicitly state that remote work is a privilege that can be revoked if it’s discovered that an employee is not meeting his or her expectations while working outside the office.

This article is informational. Please see a labor law attorney for any questions you may have.

Author: Robin Noah, Executive Coaches of Orange County, www.ECofOC.org

A Case For Risk Management

Robin Noah
Robin Noah

A case for risk management: You may have read about a case where a federal jury recently awarded Taco Bell workers approximately $496,000 in a class action case that alleged meal and rest period violations. Taco Bell ended up in court because of problems with its policy on meal breaks and rest periods.  A clear case of failure to comply with labor law.

For example Meal Periods: Employers must allow employees to take meal periods at the proper time. More than 134,000 employees claimed that Bell failed to properly provide meal breaks before the fifth hour of work as required by California law.   This case demonstrates the challenges California employers face in the ever-persistent litigation over meal and rest periods.

The workers did win on their claim that Taco Bell failed to properly pay them when a meal break was skipped. If an employer fails to provide an employee a meal period, the employer must pay the employee one additional hour of pay at the employee’s regular rate of compensation (Labor Code, sec. 226.7). This is often referred to as “premium pay.”

The Taco Bell workers claimed that the company paid them only 30 minutes of wages when a meal period was skipped, rather than the full hour of required premium pay. The jury agreed.

Of great interest is that Taco Bell faced litigation because its employee handbook policy did not meet California’s strict meal and rest break requirements. Evidence submitted at trial alleged that Taco Bell used a meal period “matrix,” which reflected a policy of providing the meal after five hours of work, instead of before.

Though there are many laws requiring employers to notify employees of certain workplace rights, there are actually no federal or state laws specifically requiring an employer to have an employee handbook. However, for a number of reasons, creating and maintaining an employee handbook is a good idea and a best practice.

Moreover, an employee handbook is a useful tool for providing employees with that information that, by law, must already be delivered in writing (e.g., equal employment opportunity (EEO) statements).

Rather than provide employees with a haphazard pile of mandatory written notices—and then attempt to document that those notices were received—it makes sense to collect them into an organized, easy-to-use handbook or similar document.

Consider managing the risk by making clear what appropriate activity is by enacting a company-wide program that will educate everyone on what is acceptable and unacceptable workplace behavior.

Please see a Labor Law attorney for employee handbook issues.

Author:  Robin Noah, Executive Coaches of Orange County, www.ECofOC.org

ABC Test for Independent Contractors

Robin Noah

California’s top court makes it more difficult for employers to classify workers as independent contractors.

If you have independent contractors as workers in your business you need to review and take action to comply with the ABC test.

What Is the ABC Test, and How Can Small Business Owners Comply? The laws surrounding worker status have long been ambiguous. Deciding whether a worker is an employee or independent contractor has been largely left up to the employer’s discretion. Not anymore. Thanks to California’s 2018 court ruling, workers are now presumed to be employees. After implementing a new ABC test as law, California has greatly limited the number of workers businesses can call independent contractors.

 More than 20 states apply the ABC test. In one form or another. As the ABC test gains more and more traction nationwide, you may need to change how you classify your own workers. So, what is the test all about, and how will it impact your small business?

The ABC test is a three-part test employers must meet if they want to classify a worker as an independent contractor. The burden now falls on employers to prove workers are independent contractors. The ABC test makes it more difficult for employers to try to classify workers as independent contractors.

In April 2018, California’s Supreme Court adopted the ABC test following the Dynamex Operations case.

In the court case, delivery drivers who had worked for Dynamex sued the company for classifying them as independent contractors and not employees. Using the standards of the ABC test, the California Supreme Court ruled against Dynamex, saying that the workers should have been employees and not independent contractors. As a result, using the ABC test became law in the state of California.

Under the ABC test, a worker is only an independent contractor if they meet all three parts of the test: A) The worker is free from the control and direction of the hirer in relation to the performance of the work, both under the contract and in fact, B) The worker performs work that is outside the usual course of the hirer’s business and C)  The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hirer

The second factor of this ABC test means you can’t hire someone to perform similar duties to that of your employees and expect them to be classified as an independent contractor.

Many employers in California who have classified workers as independent contractors (1099) may need to convert that classification to an employee class. Employers will need to review their workers classification and may have to convert some independent contractors to employees.

Author:  Robin Noah, Executive Coaches of Orange County,  www,ECofOC.org

BE AWARE NEWS

Robin Noah

 

Labor Commissioner Launches Online Registration for Janitorial Service Providers

The Labor Commissioner’s Office has launched an online registration system for janitorial service providers and contractors operating in California to register annually as required by law.

Under the Property Service Workers Protection Act, signed by Governor Edmund G. Brown Jr. in 2016, every provider of janitorial services with one or more employees and one or more janitorial workers must register with the Labor Commissioner’s Office and renew every year.

The Labor Commissioner’s Office urges janitorial employers to quickly register. Those who fail to register by October 1, 2018 may be subject to a civil fine, as will any person or entity who contracts with a janitorial employer lacking valid registration.  

“The online registration tool will make it easy for janitorial employers to comply with the law, and will help us to hold accountable businesses in the underground economy that underpay their workers and evade labor laws,” said Labor Commissioner Julie A. Su. “The registration requirement is another tool for property owners to distinguish law-abiding contractors from wage thieves and to protect honest businesses from unfair competition.”

Janitorial employers are also required to provide employees with sexual harassment prevention training once every two years beginning January 1, 2019.

The Labor Commissioner’s Office has posted a registration search tool that shows whether employers and contractors are properly registered, as well as FAQs.

For more information, call the Licensing and Registration Unit at (510) 879-8333 Monday through Friday from 8 a.m. to 5 p.m. or email dlsejanitorial@dir.ca.gov

The Division of Labor Standards Enforcement, or the Labor Commissioner’s Office, is the division within the Department of Industrial Relations (DIR) with wide-ranging enforcement responsibilities including adjudicating wage claims, inspecting workplaces for wage and hour violations, investigating retaliation complaints and educating the public on labor laws.

Employees with work-related questions or complaints may contact DIR’s Call Center in English or Spanish at 844-LABOR-DIR (844-522-6734).     

P.O. Box 420603 · San Francisco, CA · 94142-0603       www.dir.ca.gov

Department of Industrial Relations Release No.18-47  https://www.dir.ca.gov/dlse/dlse.html          

Author: Robin Noah, Executive Coaches of Orange County, www.ECofOC.org

ECofOC Nonprofit Growth Program

Robin Noah

 

ECofOC is presenting a special program for Executive Directors of nonprofit organizations.  The program is designed for ED’s who want to take their nonprofit organization to the next level.

The Executive Director

Consider the ED/CEO as the person in charge of the operations of a nonprofit organization with many unique responsibilities. Among these responsibilities Executive Directors are also charged with the responsibility of the growth of the organization by:

  • Establishing and enforcing the vision of the organization;
  • Successfully recruiting and supervising office staff;
  • Maintaining a productive relationship with the board of directors;
  • Creating a fundraising plan that will ensure sustainability;
  • Managing organizational finances.

 

The Program

This special, comprehensive Nonprofit Growth Program is designed for the Orange County Executive Directors who want to take their nonprofit organization to the next level. The Executive Director needs to complete an ECofOC coach application and be assigned an Executive Coach. The ED must have or create a strategic plan for significantly growing the nonprofit’s capacity to serve the community, and must be willing to make the time investment to participate in the benefits offered in this program. In addition, the nonprofit must have at least 5 additional employees. Limited funding available.

You will find the Nonprofit Management and Leadership Coaching program description and application on our web site (ECofOC.org). To apply for the ECofOC Nonprofit Growth Program, state that interest in the “Coaching Expectations” section of the application.

 

Program includes:

Coaching:  One on one Executive Director coaching with your own personal ECofOC Executive Coach

Resource Experts:  Access to other ECofOC coaches with expertise in a variety of topics relating to running a successful nonprofit organization

ED Forum:  Option to join the Executive Directors Forum, which provides speakers and mentoring from peers and coaches. First 3 months free.

Strategic Planning:  Option to have ECofOC coaches facilitate a strategic planning session for your organization

Training:  Opportunity for Executive Director and any nonprofit staff member to attend most OneOC training program at a highly discounted rate.

Author:  Robin Noah, Executive Coaches of Orange County, www.ECofOC.org

VACATION PAY YEA OR NAY

Robin Noah

Robin Noah

 

Every year about this time I receive calls regarding holiday time off and pays so here are a few reminders.

Employers do not have to offer time off on nationally recognized holidays. However, an employer is obligated to provide reasonable accommodation for the religious practices of its employees unless it can show that the accommodation would result in undue hardship for its business.

Many employers offer a “floating holiday” in addition to the regularly scheduled holidays. This allows an employee to take time off for religious observances that are not covered by the employer’s established holiday schedule. Make sure your company policy clearly explains the company rules. While most employers provide the same holiday benefits, equally within the company’s policy, it is not a requirement as long as the rules are not discriminatory.

Employers do not have to pay Hourly employees for time off on a holiday. They are only required to pay hourly employees for time actually worked.

On the other hand, Exempt employees who are given the day off, must be paid their full weekly salary if they work any hours during the week in which the holiday falls. This requirement for exempt employees did not change under the new federal overtime regulations.

If an employer provides paid holidays, it does not have to count the paid hours as hours worked for purposes of determining whether an employee is entitled to overtime compensation. An employee must actually work 40 hours in a week before he/she is eligible for overtime. Collective bargaining agreements and/or government employers may have contracted other provisions for determining overtime.

Employer’s policy statements should clearly explain the criteria for Holiday time off, including the proration of the amount of holiday pay due to a part-time employee. For example some companies as a matter of policy do not provide Holiday pay to part-time employees.

Use it or lose it: In California, vacation pay is considered another form of wages and as such cannot be taken away from an employee under any “use it or lose it” scenarios. “Use it or lose it” policies should be clearly communicated to all workers in employment policy manuals. If applicable be sure to check your collective bargains agreement or any other legally contracted agreement in your company. Remember that in California vacation earned is considered wages due and payable at the employment separation.

All information in this article is general, not intended to be legal advisement. Please contact your legal advisor for applicable laws.

Author:  Robin Noah, Executive Coaches of Orange County, www.ECofOC.org

 

Updating Form I-9

Robin Noah

Robin Noah

 

By now most employers, regardless of size, are well aware that employers have certain responsibilities under immigration law during the hiring process. Failure to comply can be a costly event. Not knowing the law will not excuse business owners or management of business establishments for 1-9 compliance failures. For example the current Form I-9 is valid until Jan. 21, 2017. An announcement was made On Aug. 25, 2016 that the Office of Management and Budget (OMB) approved a revised Form I-9, Employment Eligibility Verification.

USCIS must publish a revised form by Nov. 22, 2016. Employers may continue using the current version of Form I-9 with a revision date of 03/08/2013 N until Jan. 21, 2017.

After Jan. 21, 2017, all previous versions of Form I-9 will be invalid. You can keep up with the changes by subscribing to https://www.govdelivery.com. There are many web sites devoted to the 1-9 including U S Immigrations and Customs Enforcement (ICE) https://www.ice.gov/

Did you know? The current administration has dramatically increased the number of I-9 audits to historically high levels, and promises that I-9 enforcement efforts will remain a high priority. For example, on one day, June 15, 2011, Immigration and Customs Enforcement (ICE) issued 1,000 Notices of Inspection of I-9 forms and subpoenas to various U.S. companies large and small. I-9 investigations are at an all-time high, with more than 3,000 audits taking place in 2012 compared to only 250 in 2007.

A few reminders: An employer must: A) Verify the identity and employment authorization of each person hired after Nov. 6, 1986 and B) Complete and retain a Form I-9 for each employee required to complete the form.

An Employer must not 🙂 A) Discriminate against individuals on the basis of national origin, citizenship, or immigration status and B) Hire, recruit for a fee, or refer for a fee aliens he or she knows to be unauthorized to work in the United States.

Consider some of the penalties:

  • Failure to comply with the IRCA’s I-9 rules can result in significant fines, loss of access to government contracts, and highly negative publicity for your company.
  • Employment of unauthorized workers may result in fines up to $16,000 and six months’ imprisonment. Employers that knowingly hire or continue to employ unauthorized aliens can be barred from competing for government contracts for a year.
  • Paperwork violations can also result in significant fines. Each mistake or missing item on a form can result in a $110 penalty, topping out at $1,100 for each form. A missing form would automatically be assessed at $1,100.

You may want to have an independent 1-9 audit conducted as a strategy for ensuring that your business is compliant with immigration related employment practices.

(Excerpts from articles of Adriana Kostencki, Esq.)

Author:  Robin Noah, Executive Coaches of Orange County, www.ECofOC.org

Is it harassment or bullying?

Robin Noah

Robin Noah

 

Regardless Employers have an obligation to their employees and to the Law when it comes to Harassment and/or Bullying at work

In the past several years, the Equal Employment Opportunity Commission (EEOC) closed 7,256 sexual harassment and bullying claims nationwide that resulted in over $44 million in fines and lawsuit settlements. Last year there were over 30,000 employee complaints filed in California alone! In a recent survey, 27% of Americans reported that they have suffered abusive conduct while at work. How do we stop this epidemic of workplace harassment and bullying?

Workplace bullying is repeated, unreasonable and unwelcome behavior directed towards an employee or group of employees that creates a risk to health and safety:

  • Basically a health and safety issue
  • Affects safe workplace policies
  • Employees can file complaints to the Fair Work Commission.
  • You can be investigated and prosecuted by your State regulator for a breach of health and safety legislation.

Workplace harassment is unwanted behavior that offends, humiliates or intimidates a person, and targets them on the basis of a characteristic such as gender, race or ethnicity. Even when you have less than 50 employees you still need to have written policies regarding these issues. There are very specific guidelines for handling harassment – sexual or otherwise.

Often employers treat bullying and harassment as the same class of problematic behavior. However, the law relating to each of these areas is different, the approaches you take to prevent these behaviors should also differ.

Harassment relates to the prohibition in anti-discrimination laws against sexual harassment and sex-based discrimination in the workplace. These laws differ from health and safety laws in that a victim of harassment can make a complaint to an external agency – in effect, launching a legal proceeding against your organization.

You need to create and implement bullying and harassment policies. Each policy needs to describe what the organization considers harassment and what it considers as bullying. The ensuing action when the policy is violated should also be very specific.

Keep in mind that policies are written so that there is a common understanding of the organization’s behavioral expectations and to what end the organization will take corrective action to provide effective resolutions of these types of problems.

Even if you have less than 50 employees, employers have an obligation to their employees and to the Law when it comes to Harassment and bullying at work.

Author:  Robin Noah, Executive Coaches of Orange County. www.ECofOC.org

What’s the Difference: Nonprofits vs. For-profits?

Robin Noah

Robin Noah

 

Recently I was asked if there is a difference between operating a nonprofit organization and a for-profit business. I answered with a resounding YES and the following brief overview.

While the aim of for-profit organizations is to maximize profits and forward these profits to their company, the nonprofit organizations’ aim is to provide funding to meet society’s needs.

Nonprofits spend a major portion of their time seeking funding, often without selling a “product”. They need to convince contributors of the value of their mission and how they can spend the contributed money wisely as they move forward meeting the mission of their organization. Additionally they must prove the need to use some of the donated money for administrative costs.

A reality is that nonprofit organizations are often in a struggle to find enough money to survive and to raise funds more effectively.

Unlike for-profit companies that can earn commissions for sales, nonprofits must constantly demonstrate that they use the greater part of their funding for their mission. The Association of Fundraising Professionals (AFP) asserts that a commission on each donation would undermine donor trust by placing self-gain over a nonprofit’s mission.

An interesting fact: According to journalist Tom Chmielewski, The American Institute of Philanthropy suggests that a not-for-profit organization’s unrestricted net assets should total less than three years of its current budget, and that at least 60 percent of its total expenses should be spent on program services rather than on administration and fundraising.

Another interesting fact is that In addition to a balance sheet, a for-profit will prepare an income statement each quarter listing the company’s revenues, gains, expenses and losses. On the other hand, generally speaking, nonprofit organizations do not compile an income statement but instead prepare a statement of activities each quarter. This document simply lists the organization’s revenues minus expenses, plus net assets

To learn more about the differences in the for- profit businesses and nonprofit organizations spend some time on the internet. There is a wealth of information there for interested persons.

Author:  Robin Noah, Executive Coaches of Orange County, www.ECofOC.org