Human Resources

Comment

Comment by Scott J. Dear on February 22, 2009 at 3:12am

At a recent CEA Employer Forum, several people had questions about the new Phone Laws and Push To Talk Phones. Taken directly from the California Department of Motor Vehicles website, here is some additional clarification on the issue.

The new Wireless Communications Device Law (effective January 1, 2009) makes it an infraction to write, send, or read text-based communication on an electronic wireless communications device, such as a cell phone, while driving a motor vehicle.

Two additional laws dealing with the use of wireless telephones while driving went into effect July 1, 2008. The first law prohibits all drivers from using a handheld wireless telephone while operating a motor vehicle, (California Vehicle Code [VC] §23123). Motorists 18 and over may use a "hands-free device. The second law effective July 1, 2008, prohibits drivers under the age of 18 from using a wireless telephone or hands-free device while operating a motor vehicle (VC §23124).

Frequently Asked Questions concerning these laws:

Q: When did the wireless communications device (no texting) law take effect?
A: The law took effect January 1, 2009.

Q: When did the handheld wireless telephone laws take effect?
A: The laws took effect July 1, 2008.

Q: What if I need to use my telephone during an emergency and I do not have a "hands-free" device?
A: The law allows a driver to use a wireless telephone to make emergency calls to a law enforcement agency, a medical provider, the fire department, or other emergency services agency.

Q: What is the fine if I'm convicted?
A: The base fine for the FIRST offense is $20 and $50 for subsequent convictions. With penalty assessments, the fine can be more than triple the base fine amount.

Q: What if my phone has a push-to-talk feature, can I use that?
A: No. However, the law does provide an exception for those operating a commercial motor truck or truck tractor (excluding pickups), implements of husbandry, farm vehicle or tow truck, to use a two-way radio operated by a "push-to-talk" feature. A push-to-talk feature attached to a hands-free ear piece or other hands-free device is acceptable.

Q: What other exceptions are there?
A: Operators of an authorized emergency vehicle during the course of employment are exempt, as are those motorists operating a vehicle on private property.

Q: Are there exceptions for dialing?
A: This law does not prohibit reading, selecting or entering a phone number, or name in an electronic wireless device for the purpose of making or receiving a phone call. Drivers are strongly urged not to enter a phone number while driving.

Established in 1937, CEA is a non-profit association providing personalized and cost effective comprehensive information, services, and training for all aspects of human resources management,California Labor Law and relations solutions throughout California. Located throughout the state, CEA’s staff of regional directors draw upon more than 150 years combined knowledge and experience to assist in all aspects of employer-employee relations.

For more information please contact:

Scott J. Dear, Director of Membership Services
Toll free 1-800-399-5331 or 916-921-1312.
Cell 916-281-5898
Email sdear@employers.org.
Website: www.employers.org.

Comment by Scott J. Dear on October 24, 2008 at 10:14am

Non-Compete Agreements – Don't Hold Up in Court



In a much anticipated decision, the California Supreme Court ruled that a noncompetition agreement, which a certified public accountant was required to sign before starting work, was invalid because it restrained the accountant's ability to practice his profession. Noting that under state law, "...an employer cannot by contract restrain a former employee from engaging in his or her profession, trade, or business unless the agreement falls within one of the exceptions to the rule," the Court rejected the argument that limiting an employee's ability to practice his or her vocation is permissible if it is reasonably based (Edwards v Arthur Andersen LLP, CalSCt, August 7, 2008).



No narrow restraint exception. The Court also rejected a "narrow-restraint" exception created and adopted by the Ninth Circuit that upheld non-compete agreements prohibiting individuals from pursuing only a small or limited part of their business, trade or profession. "Indeed, no reported California state court decision has endorsed the Ninth Circuit's reasoning, and we are of the view that California courts have been clear in their expression that section 16600 represents a strong public policy of the state which should not be diluted by judicial fiat,'" wrote Justice Ming Chin for the Court.



"Any and all" waiver not void. Also of note, the Court ruled that a waiver, which released the accounting firm from "any and all claims," including "claims that in any way arise from or out of, are based upon or relate to [the employee's] employment with or compensation from" the firm, did not release non-waivable statutory protections such as the employee's right to indemnification.




CEA Comment: It is not illegal to ask an employee to sign a non-compete agreement, nor is it illegal to ask an employee who leaves an employment relationship to waive their employer from any claims that arise from the termination of that job. It is important, however, for employers to realize that these agreements will not be upheld in court. So, if you want to include a waiver clause in a severance package or a non-compete agreement as a part of a job offer, that's fine, just understand that these forms are not enforceable in a court of law. More questions? Call us for assistance.




Established in 1937, CEA is a non-profit association providing personalized and cost effective comprehensive information, services, and training for all aspects of human resources management and labor relations solutions throughout California. Located throughout the state, CEA’s staff of regional directors draw upon more than 150 years combined knowledge and experience to assist in all aspects of employer-employee relations.

For more information please contact:

Scott J. Dear, Director of Membership Services
Toll free 1-800-399-5331 or 916-921-1312.
Cell 916-281-5898
Email sdear@employers.org.
Website: www.employers.org.

Comment by Scott J. Dear on October 24, 2008 at 10:13am

Hey Boss, Can I Get Some Time Off To Vote?



Employers must post these requirements, in a conspicuous place, at least 10 days before every statewide election.



If an employee does not have sufficient time off outside of working hours to vote in a statewide election, he/she may, without loss of pay, take off up to two hours of working time to vote.
Such time off must be at the beginning or end of the regular working shift, whichever allows the most free time for voting and the least time off from working, unless otherwise mutually agreed.
The employee must notify the employer at least two working days in advance to arrange a voting time.
In addition, employees may serve as election officials on an election day without being disciplined, but employers are not required to pay them for such absences.

Don't panic – this notice is already on your CEA Labor Law Poster!

Established in 1937, CEA is a non-profit association providing personalized and cost effective comprehensive information, services, and training for all aspects of human resources management and labor relations solutions throughout California. Located throughout the state, CEA’s staff of regional directors draw upon more than 150 years combined knowledge and experience to assist in all aspects of employer-employee relations.

For more information please contact:

Scott J. Dear, Director of Membership Services
Toll free 1-800-399-5331 or 916-921-1312.
Cell 916-281-5898
Email sdear@employers.org.
Website: http://www.employers.org/

Comment by Scott J. Dear on October 24, 2008 at 10:11am

Last month, President Bush, signed into law the ADA Amendments Act of 2008 (ADAAA), P.L. 110-325, ushering in a new way that the law looks at disability and likely bringing a tsunami of litigation in its wake. The ADAAA's purpose is to reinstate a broad scope of protections available under the ADA.

The ADAAA states that the definition of disability should be construed in favor of broad coverage of individuals under the ADA, to the maximum extent permitted by the terms of the ADA. While the ADAAA retains the ADA's existing definition of "disability," the ADAAA amends the ADA to further define and clarify three critical terms within the existing definition ("substantially limits," "major life activities," and "regarded as" having such impairment) and, under the rules of construction for the definition, adds several standards that must be applied when considering the definition of "disability."

In particular, the law rejects US Supreme Court precedent holding that the terms "substantially" and "major" in the definition of disability must be "be interpreted strictly to create a demanding standard for qualifying as disabled," as well as the Court's interpretation that "substantially limits" means "prevents or severely restricts." Instead, the bill reiterates that whether an individual's activities are limited in condition, duration and manner, is a useful test.

Specifically, the ADAAA, which takes effect on January 1, 2009:

Broadly construes "disability" so that: (1) an impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability under the ADA; and (2) an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;

Clarifies that the "substantially limits" language should be measured by a lower standard than expressed by the US Supreme Court;

Prohibits the consideration of mitigating measures when determining whether an impairment constitutes a disability, with a single exception for ordinary eyeglasses and contact lenses;

Includes a non-exhaustive list of covered major life activities and defines the operation of major bodily functions (as for example the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions) as a covered major life activity;

Broadly construes the "regarded as" prong to cover employees if they establish that they have been subjected to an adverse action because of an actual or perceived physical or mental impairment whether or not that impairment limits or is perceived to limit a major life activity;

States that employers need not provide reasonable accommodations to employees or individuals who are "regarded as" disabled;

Directs the EEOC to revise its implementing regulations;

Makes conforming amendments to the Rehabilitation Act.


The full text of the ADA amendments is available at :

http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:s3406enr.txt.pdf

Come to CEA’s Annual Conference on October 30, 2008 to hear more about this law and get a sneak peek at additional 2009 Labor Laws on the horizon.
For more information click here
To register now, click here


Established in 1937, CEA is a non-profit association providing personalized and cost effective comprehensive information, services, and training for all aspects of human resources management and labor relations solutions throughout California. Located throughout the state, CEA’s staff of regional directors draw upon more than 150 years combined knowledge and experience to assist in all aspects of employer-employee relations.

For more information please contact:

Scott J. Dear, Director of Membership Services
Toll free 1-800-399-5331 or 916-921-1312.
Cell 916-281-5898
Email sdear@employers.org.
Website: www.employers.org.

Comment by Scott J. Dear on October 11, 2008 at 3:27am

Seven principles for keeping your employee handbook out of court



Kim Parker, Executive Director of the California Employers Association

Can your employee handbook be used against you in court? Does it give your employees rights that you never intended? You need to be careful about what you put in your employee handbook because every word can be used against you, according to Paul Salvatore and Allan H. Weitzman of Proskauer Rose LLP. They recommend following seven principles when creating an employee manual.




1. Make sure your handbook is not an employment contract. Don't stop with only disclaimers in your manual. Inform employees that the policies and procedures contained in the handbook are not intended to create a contract. Distribute the manual and make sure your employees sign a receipt acknowledging that they received a copy. And reserve the right to modify or change those policies and procedures at any time.

2. Plainly state your rules, regulations and procedures. What is your attendance policy? How often do you conduct performance appraisals? Are there any restrictions on the use of e-mail? Clearly stating your procedures and rules, and then making sure they are consistently followed, helps ensure that employees understand what is expected of them.

3. Describe policies intended to assist employees. Describing policies that are designed to help employees allows your handbook to function as an internal public relations system. Describe your employee assistance program. Explain your family and medical leave policy and your pregnancy, disability and child care leaves. This shows your employees that you understand the laws and rules and intend to follow them.

4. Communicate your commitment to equal opportunity. Your handbook should include equal employment opportunity policy. Courts will look for this if you are sued for discrimination. Also include an anti-harassment policy. Define harassing behavior and give examples. Clarify supervisory responsibility and clearly set forth your internal complaint procedure. Designate more than one person who can receive complaints. What are your organization's investigation obligations? Do you have a no-retaliation provision? These all should be clearly addressed in your manual.

5. Set termination guidelines. Include required notifications, severance pay policies and any grievance or complaint procedures and alternative dispute resolution procedures. Also consider tying severance pay to the requirement that employees execute the release acknowledging they received the handbook. This may help ensure that employees sign and return that acknowledgement.

6. Develop technology policies. The informality of communicating by e-mail makes an e-mail policy a necessity. Employees should clearly understand that there is no expectation of privacy in company equipment or in their electronic communications. Reserve the right to monitor e-mail and make sure that employees realize that all communications are "discoverable" and can be used in any legal proceedings.In addition, with the growing popularity of instant messaging in the workplace, consider a policy governing this form of communication as well. Although instant messages cannot be recorded electronically, employees, and especially managers and supervisors, should remember that they can be printed off when they appear on the screen. You may want to consider banning the use of instant messages or adopting a policy similar to your e-mail policy.

7. Include state and local legal requirements. Although keeping up with federal laws may seem like challenge enough, don't forget that state laws also are important. Not only can state laws provide more generous benefits and protections than federal laws, they can also affect many of your policies. For example, state laws may govern your jury duty leave and workplace smoking policies. It is important to incorporate these, and other state and local legal requirements, into your employee handbook.

If written properly, your handbook shouldn't contain any information to be used against you.


Established in 1937, CEA is a non-profit association providing personalized and cost effective comprehensive information, services, and training for all aspects of human resources management and labor relations solutions throughout California. Located throughout the state, CEA’s staff of regional directors draw upon more than 150 years combined knowledge and experience to assist in all aspects of employer-employee relations.

http://caemployers.blogspot.com/2008/07/seven-principles-for-keeping-your.html


For more information please contact:


Scott Dear, Director of Membership Services

Toll free 1-800-399-5331 or 916-921-1312.
Cell: 916-281-5898
Email sdear@employers.org
http://www.employers.org/