Avian Influenza Pandemic
Do Employers Need to be Prepared?

By Leslie Hollis, Emp-loyers Group’s Vice President of Consulting Services. Leslie has more than 24 years of diverse experience in corporate human resources, consulting, organizational development, employee benefits and risk management. She is a Certified Safety Specialist and earned a Masters Certification in Environmental Health and Safety.

When I first started my research into the Avian Influenza pandemic “potential” (aka Bird Flu), I quickly learned that websites hosted by the Center for Disease Control(“CDC”), the World Health Organization (“WHO”) and countless others are releasing updates almost daily. So, in an attempt to provide our members with the most current information available, I waited until the very last minute possible to finalize this article.

Yes, you read correctly. I said “potential” because, based upon research available to date, all evidence indicates that the highly-pathogenic avian influenza H5N1 virus does not spread easily from birds to infect humans. The risk, according to the WHO, remains highest in persons who reside in countries with widespread outbreaks in poultry, and who have had direct contact with infected poultry, or surfaces and objects contaminated by their droppings (i.e., persons exposed during slaughter, de-feathering, butchering and preparation of poultry for cooking). There is no evidence that properly cooked poultry or poultry products have been a source of infection.

Only in Asian countries so far
Regardless, there is no disputing the fact that over 124 deaths have been reported in various countries throughout Asia. Deaths in both Viet Nam and Indonesia account for half of the total currently reported. Presently, only one case involving a mother and her ill daughter in Thailand can be confirmed as human-to-human transmission. Most recently, seven family members died in Indonesia, however, whether or not the human-to-human transmission from one family member to others occurred, has yet to be substantiated.

Symptoms and vaccine possibility
Frequent clinical signs and symptoms of Bird Flu include fever, shortness of breath, cough and diarrhea. However, in one case, a young boy experienced seizures and went into a coma before he died. These symptoms can progress rapidly to development of severe pneumonia and multi-organ failure. Currently, no vaccine to protect humans against H5N1 infection is currently available; however, an inactivated human H5N1 vaccine is undergoing clinical trials in the United States at the present time. The H5N1 viruses currently infecting birds and some humans in Asia are resistant to amantadine and rimantadine, two antiviral medications commonly prescribed for influenza.

CA businesses need to be on guard
Californians may perceive themselves as being a ‘world away’ from the countries where this influenza is causing fear in the hearts and minds of its residents. I submit, however, that California is in a key location and could be one of the first states to possibly be affected given its many ports of entry and frequent and heavy air travel to and from Asia and neighboring European countries.

Since much of the travel abroad is done by the business traveler, California business owners and employers should be mindful of their obligation to maintain a safe and healthy work environment. All precautions should be taken when assimilating employees who have been traveling internationally back into the work environment immediately upon return from a country where questionable exposure may have taken place.

History offers lessons
Think back 30 years ago when the CDC reported the death of an army recruit at Fort Dix, New Jersey as a result of an influenza strain. Following the testing of several other soldiers at that base, it was discovered that a mutated strain of the 1918 Spanish Flu (aka the “Swine Flu) gained the ability to infect people, and had actually lead to the death of this soldier. The possibility that the Swine Flu had reemerged was frightening since in the 1970’s the global mortality rate from the Spanish Flu was thought to be about 25 million people. This mortality rate was recently upgraded to 50 million deaths globally with an upper limit encroaching on 100 million deaths from 1918-1919.

The severity of this outbreak at Fort Dix was immediately recognized by federal health officials and an immediate meeting with the CDC was held to discuss the next steps. On March 24, 1976, Gerald Ford announced on television that he was asking Congress for $135 million to ‘inoculate every man, woman and child in the United States’ against the Swine Flu. Pharmaceu-tical companies engaged in ‘crash’ programs to create enough of the vaccine to meet the upcoming flu season in October, however, it turned out that the virus obtained from the Fort Dix soldiers grew slowly, if at all, in chicken eggs.

Translated, this meant that yields would be about half of what was needed to carry out the President’s plan. One pharmaceutical company used the wrong virus and was forced to begin again. As a result, the insurance industry announced that it would no longer insure manufacturers of the vaccine against liability arising from inoculations, so an act of Congress shifted that liability to the federal government.

What followed was the largest health-care debacle in American history. People vaccinated were dying or developing Guillian-Barre syndrome, a rare, usually reversible, but occasionally fatal form of paralysis. About eight months after the vaccination order from the President, inoculations were halted. The federal government paid out $90 million in damages to recipients of the inoculations for the Swine Flu who developed Guillain-Barre. Including the cost for the development of the vaccine, the total bill for the program was more than $400 million.

Preparing now for a “potential” pandemic?
Now, somewhere between rational and the prior example, is a reasonable place to find ourselves preparing for a pandemic flu, that is to say that at some point, the virus may mutate so that it would be possible for transmissions to go from human to human in airborne/droplet form, i.e., sneezing and coughing, through international travel, thereby creating a pandemic situation. Since an infected person could be a carrier of the virus for two days before symptoms develop, it is likely that the infected person could continue his/her regular daily activities for up to 48 hours, thereby infecting hundreds of unsuspecting bystanders with whom the carrier would interact with casually or intimately. In light of this potential scenario, it is prudent for all to be adequately prepared for the possibility of a pandemic that would have significant social and economic costs globally.

In a letter dated December 6, 2005 from the Secretary of Homeland Security, Michael Chertoff, to businesses nationwide, he stresses the need for organizations to assist themselves and the government by being prepared for the possibility of an Avian Flu Pandemic. Businesses are encouraged to seek out materials that assist in the planning process for a pandemic outbreak, as well as other comparable catastrophes, such as another terrorist attack the size or larger than 9/11 and potential use of biological warfare.

The planning process
Since my last article in January of this year addressing Business Continuity Planning, many California businesses have contacted us to determine what is necessary to prepare for business disasters. The plans created for these businesses have included Pandemic Preparation and Response segments, addressing issues and providing employers advice and guidance to weather a potential storm the experts say could last for up to a minimum of three (3) months from the first outbreak.

When engaging in the planning process, you must assess the potential impact of a pandemic on your business. You need to plan for the impact on your employees and customers and establish policies to be implemented during a pandemic. Specific resources should be allocated to protect your employees and customers during a pandemic, and communication with your employees is crucial before, during and after a pandemic.

(1) Plan on the impact of a pandemic on your business.
• Identify a Pandemic Coordinator and/or team with defined roles and responsibilities for preparedness and response planning. If a “Recovery Team” from a formal business continuity plan has previously been appointed, consider using the same individuals.
• Identify essential/crucial employees and other critical inputs (i.e., raw materials, suppliers, sub-contractors services/products and logistics) required to maintain business operations by location and function during a pandemic.
• Train and prepare ancillary employees (redundancy is key) to commence the cross-training process immediately, and consider the use of contractors, employees in other jobs/titles, even retirees.
• Develop and plan for scenarios likely to result in an increase or decrease in demand for your products and/or services during a pandemic (i.e., effect of restriction of mass gatherings at work facilities, need for hygiene supplies).
• Determine potential impact of a pandemic on company business financials, using multiple possible scenarios that affect different product lines/services and sites that produce or provide those materials or services.
• Communicate with local public health, emergency management and other sources to make sustainable links and to learn up to date information.
• Establish an emergency communications plan, updating it periodically. This plan includes identification of key contacts (with back-ups) chain of communications and processes for tracking and communicating business and employee status.
• Implement an exercise drill to test your plan and drill until the plan is running without incident.

(2) Plan on the impact of a pandemic on your employees, customers and/or clients.
• Forecast and allow for employee absences during a pandemic due to factors such as personal illness, family member illness, community containment measures and quarantines, school and/or business closures and public transportation shut downs.
• Implement guidelines to limit face-to-face contact (i.e., hand-shaking, seating in meetings, shared workstations, etc.)
• Evaluate employee access to and availability of mental, healthcare and social services during a pandemic, and improve services as necessary.
• Establish policies for flexibility in work schedules by considering telecommuting, employment of shifts and working 7-day workweeks on a rotational basis to limit employee contact.
• Establish policies for employees who have been exposed to pandemic influenza, who are suspected of being ill or becoming ill at the worksite, (i.e., immediate and mandatory sick leave for symptomatic employees).
• Establish policies for restricting travel to affected geographic locations (both domestically and internationally), evacuating employees working in or near an affected area when an outbreak begins, and guidance for employees returning from affected areas. The CDC has guidelines and travel recommendations in this regard.

(3) Consider the allocation of resources to protect your employees and customers/clients during a pandemic.
• Provide sufficient and accessible infection control supplies (i.e., hand-washing products, Kleenex and receptacles for their proper disposal) in all business areas.
• Enhance communications and information technology infrastructure to support employee telecommuting and remote customer access. Consider website enhancements for ordering product/services online and step up delivery methods to ensure supply/demand.
• Ensure availability of medical consultation and advice for emergency response.

(4) Communicate with and educate your employees.
• Develop and disseminate programs and materials addressing pandemic issues such as how to recognize signs and symptoms, when to report, methods of transmission, personal and family protection, preparation and response strategies; i.e., coughing, sneezing, etiquette.
• Anticipate employees engagement in rumors and the spreading of misinformation. Correct as necessary and engage in further ongoing education.
• Ensure that these communications are all culturally linguistically appropriate. Speak to your audience.
• Educate employees about YOUR specific preparedness and response plan.
• Provide information for the in-home care of ill family members.
• Identify community resources for timely and accurate pandemic information and resources for obtaining vaccines and anti-viral medications.

(5) Collaborate with external organiza-tions to help your community.
• Collaborate with health plans and local healthcare facilities to share pandemic plans and understand their capabilities and limitations.
• Collaborate with local, state and federal public health agencies and/or emergency responders in your area about ideas in your planning process.
• Share best practices with other businesses in your communities, networking groups and associations to improve community response efforts, if and/or when the pandemic hits.

Stocking supplies
In addition to planning efforts, good old-fashioned, on-hand supplies are always essential in an emergency. Recently, we observed victims of Hurricanes Rita and Katrina resort to crime and violence when help didn’t arrive within 24-48 hours. Many citizens were homeless and hungry and resorted to human survival strategies with an “every man for himself” mentality. This type of animalistic survival mentality can be prevented by engaging in planning and prevention. Easier said than done, I admit. Consider storing bottled water and dry and canned goods. Basic health items, like soap, toilet paper, flashlights, batteries and radios. Also stock up on anti-bacterial soaps, cell phones and cash, since most financial institutions will be shut down.

I doubt that anyone reading this article believes that this could happen, yet none of us expected 9/11 or the havoc wreaked last year by natural disasters. Isn’t it time for you to be a planner and to expect the unexpected?

(Editor’s Note: These are a few of the resources Leslie used to write this article: CDC at www.cdc.gov/business, www.pandemicflu.gov, World Health Organization at http://www.who.int/en/, AON at www.AON.co.uk.com and www.avianflu.gov. For information about Employers Group’s disaster planning consulting services, contact Leslie Hollis directly at lhollis@employersgroup.com.)

By Tanya Butler, M.S., Helpline Consultant

Managers often ask why emp-loyees don’t do what they are supposed to do. While part of the responsibility falls on choices individual employees make, managers need to shoulder part of the blame, too. Employees want to succeed at work, but they need to have a clear idea of what is expected of them.

Signs that employees don’t know what is expected
The nine signs that employees don’t know what their manager wants them to do are: (1) failing to complete assignments on time; (2) procrastination; (3) errors and mistakes; (4) focusing on non-essential or busy work; (5) unsatisfactory output; (6) unwillingness to ask for help and failure to provide the manger with timely feedback; (7) lack of specific training; (8) lack of ample time and constructive feedback to build needed skills, and (9) unclear expectations from a manager in the first place.

Research has shown that superiors and their direct reports often disagree by a factor of 50% on the specific skills needed to adequately perform a job. Also, expectations need to be realistic. Many business owners are dissatisfied when employees don't work at the same level they do. Managers play an essential role in helping employees know what they are supposed to do by creating an effective management structure.

Understanding the problem
Frequently, an employee doesn't realize his/her work isn't up to par. The first step is to talk to him/her — an informal coffee or lunch will do. You'll accomplish a lot more by identifying solutions rather than pointing out problems. Start by seeking answers to these questions:
• What value does the employee think he/she brings to the company?
• How does he think he's doing?
• If he does a better-than-average job, what rewards does he think he merits?
• What are her/his goals within the company?
• Where does he go when he needs help?

Listen closely and then respond with your own answers. It will build a foundation for describing your job expectations. Be specific. Then, working together, draft a plan for improvement including periodic reviews and time-sensitive benchmarks. The plan must be fair, realistic and well known to managers and employees. Keep a written record. Ask the employee to sign and date the agreement, including the deadlines and stages for improvement.

Turning failure around
One-time events don't change behavior over the long haul. Managers must continue to reinforce expectations. Here are some ideas that can help.
• Motivation: Once an employee understands the importance of the work, and if the work is important enough, employee motivation improves.
• Clear job descriptions: One clear sign that an employee doesn’t know their duties is when they say, “that’s not my job.” Shy employees may be afraid to ask what their duties are. A written job description could help. Also explain when to begin, when to end, and what the finished product should look like.
• Consider alternatives: Have you ever thought that your supervisor’s way of doing something is the wrong way? Perhaps an employee has a better approach. A manager needs to carefully navigate between good innovation and bad innovation on the part of an employee.
• Mistaken priorities: “I had a few other things to take care of” or “I didn’t know you were in a big rush for it” sound like excuses but, in fact, could be clues that an employee thinks something else is more important than the work they’ve been asked to do. It is always better to clearly define priorities with the employee and explain any time constraints.

Goal setting and employee involvement
Managers will want to design an employee management structure of goal setting and employee involvement to enable employees to succeed.
• Help to establish overall goals for the department and work unit. Managers must take ownership of the goals that the company requires to be met and the goals that they can subjectively set.
• Communicate the goals of the work unit or enable employees to participate in setting the goals, to develop more employee ownership of the goals.
• Involve employees in determining how they will go about achieving the goals.
• Help employees know what to measure and how to measure so that they can see that they are making progress in meeting the goals.

Delegation
Delegate projects and other activities to help employees meet both their personal performance and the department or organization goals.
• Assist the employee to make an overall work plan with dates and a timeline for key deliverables for review.
• Managers should share any preconceived ideas they may have of what they want the outcomes or deliverables to look like.
• Establish the criteria for success.
• Meet with the employee at designated due dates to assess progress and road blocks encountered.

Performance development planning and feedback
Use a performance development planning process to enable employees to understand the goals.
• Create an initial performance development plan with each employee.
• Meet, minimally, quarterly to review progress and set new goals, if necessary.
• Hold weekly one-on-one meetings with each reporting staff person to stay in touch with progress and accomplishments.

Employees sometimes think that they are doing what’s required, but in fact they aren’t.

The problem can be inadequate feedback on the part of the supervisor. Employees in this situation are usually surprised when they are told they did something wrong. Feedback, both positive and negative, where there has been little in the past can spark vast improvements in productivity.

Training, education and development
Training plays a role in employees knowing what they are supposed to do. Employees need the skills and tools essential for them to succeed in their jobs.
• Managers must keep commitments about employee developmental opportunities written in the performance development plan. (The ability to grow and develop their skills is crucial to employee motivation and success).
• Managers should coach employee skill development daily and in the employee one-on-one, weekly meetings.
• Employees don’t know how to do their work. Managers sometimes assume that telling an employee to do something is the same as teaching them.

Recognition and reward
Recognition is the most powerful form of employee feedback. Timely, appropriate recognition to an employee is feedback that reinforces actions the manager wants to see more of from the employee. Provide recognition that is timely, and that reinforces employee learning and goal accomplishment. Recognize employees for doing what you want them to do.

Naturally, employers want to obtain the best work possible from all their employees, but it is also true that most employees want to perform well. These suggestions can help open up a dialogue between managers and direct reports to produce a “win-win” for everyone, and for the organization as a whole.

Visas and Classifications of Non-immigrants and Immigrants

By Dagmar Muthamia, SPHR, Helpline Consultant

If you have traveled extensively to other countries you probably had a visa. A visa is a travel document issued by a country giving an individual permission to enter the country to apply for admission for a given period of time and for certain purposes. The possession of a valid visa as a condition of entry for foreigners is a common requirement for tourists if the respective countries do not have a visa waiver program in place.

In the U.S. a visa gets you admitted at the port of entry and is issued by the State Department. Whether an alien is allowed to stay and for how long is determined by the Department of Homeland Security. The visa is usually a stamp in the person’s passport or it may be on a separate piece of paper and it indicates the type of classification for which admission is sought. Form I-94 usually provides this information.

Immigrant and non-immigrant classificatons
The U.S. has many types of classifications for aliens who may be legally in the country. There are two major classifications: immigrants and non-immigrants.

An immigrant is “a foreign-born person who has been approved for lawful permanent residence in the U.S.,” according to the Department of Homeland Security. Proof of immigrant status is usually a permanent resident card or I-551, commonly called a “green card.”

There are about 30 types of non-immigrant classifications. A non-immigrant is an alien who seeks temporary entry to the U.S. for a specific purpose like tourism, medical treatment, business or temporary work or study. Most non-immigrants have classifications that are designated by letters and numbers. The letters A through V are used. The F-1, H-1B and J-1 classifications are the ones employers commonly encounter.

Working in the U.S.
Whether or not an alien who is lawfully admitted to the U.S. may work is a separate issue. There are more than 20 classes of temporary workers. Temporary workers with H, E, L, O, P, Q and R status are able to work only for a specific employer. Most employers will only encounter H1-B and L-1 classifications. The L classification is for intracompany transferees. If an employer does not have headquarters or a branch in another country, L visas will not apply.

H1-B is a classification for aliens who are employed temporarily in specialty occupations, for projects administered by the U.S. Department of Defense, as nationally or internationally acclaimed fashion models and for aliens who come in accordance with a trade agreement with Chile or Singapore. Specialty occupations require theoretical and practical application of a body of highly specialized knowledge and also require a bachelor’s or higher degree in the specialty or its equivalent. The H1-B is initially granted for up to three years and may be extended up to six years.

It is possible to transfer H1-B status to another employer. The new sponsoring employer must file a petition, satisfy the same requirements and provide the same evidence as the original petitioner. When the new employer gets the “receipt notice” from the United States Citizenship and Immigration Services, the beneficiary is eligible for employment with the new sponsor.

The F-1 status is granted to eligible academic students. Students must apply for employment authorization if they need to work off-campus or wish to gain practical experience. F-1 aliens are usually allowed one year of practical experience in their field of study. The J-1 classification is granted to exchange visitors or scholars. It is also employer specific.

Asylum and temporary status
Some aliens have come to the U.S. to seek refuge or asylum and are classified as refugees or asylees. These individuals are unwilling or unable to return to their home countries because of a well-founded fear of persecution on account of race, religion, nationality, membership in a particular group, or political opinion. Asylees differ from refugees because they are granted political asylum after entering the U.S.

Employers may also encounter aliens who have Temporary Protected Status (TPS). These individuals may or may not be allowed to work for specified periods of time. If allowed to work they may have an Employment Authorization Document (EAD).

TPS is granted to eligible nationals of designated countries who are temporarily unable to safely return to their home country because of ongoing armed conflict, the temporary effects of an environmental disaster, or other extraordinary and temporary conditions. TPS is complicated by the fact that when employment authorization is granted and then expires the Department of Homeland Security may extend work authorization by publishing a notice in the Federal Register. For example, employment authorization for those with TPS from Honduras has been automatically extended to 1/5/2007. Current information is available at www.USCIS.gov.

Bare Essentials for Employee Handbooks

By Mark Nelson, J.D., Helpline Consultant

While employers are under no obligation to publish employee handbooks in the first place, many companies rely on them as an essential, if not exclusive, vehicle for spelling out general policies and advertising benefits packages to their employees. They are increasingly becoming the norm.

What to include
What then should you include in your employee handbook? There are various HR philosophies circulating about how much or how little to put in a handbook. Regardless, know that what goes in the handbook is what you’ll be held accountable for in practice. Never include policies inconsistent with your operations or that you are incapable of living up to when dealing with your employees.

Generally, the less you have in a handbook, the better. In states where they are deemed contracts, the more policies delineated to a written format means more opportunities to sue for breach of contract. Even in states where the policies in them are not considered in a contractual context, disparity between what a company says and does provides fodder for employees’ attorneys to challenge an employer’s credibility and allege their client was subject disparate treatment in violation of state and federal law.

With the rule of thumb in place that you only add what you know you can commit to enforcing, the following policies have managed to remain at the forefront of what most employers consider essential to any handbook:

Disclaimers
On the first page by itself, in all caps and in bold so as to be “conspicuous,” you will want to address at-will employment, with language to the effect that the only individual who can change the at-will relationship is the company’s president and any changes he/she makes must be in writing. Additional disclaimers address the company’s rights to make revisions to the policies anytime and without notice. Run this by your legal counsel.

Acknowledgement of receipt
The acknowledgment of receipt is a document you want on file to show that the employee was put on notice of the policies contained in the handbook. It is also an opportunity to reiterate the disclaimers.

Equal employment opportunity
It is absolutely essential that all employee handbooks have a statement addressing the company’s commitment to equal employment opportunity. Be sure to include a reference to any and all protected classes at the federal, state, and municipal level.

Harassment complaint procedure
It is equally critical to spell out employees’ responsibilities to report all harassment – whether they witness it or are subject to it – to designated individuals, by job title (not name, since turnover is inevitable), with options should the designated individual be the person accused to the harassing behavior. Follow up with training.

Open door policy
Open door policies establish that the company desires its employees to address any work-related concerns with appropriate individuals to insure all potential problems get addressed before additional problems arise. Make a written commitment to keeping the lines of communication open between employee and employer.

Employee classification
Especially if you distinguish between benefit levels based on whether an employee is regular part-time, regular full-time, or a temp, you should define what it means to fall under any one of these categories. While the law does not define “full-time” for you, your insurance provider may. Be sure your definitions do not vary from the actual terms of your group health insurance policy.

Workdays, workweeks, and overtime
For those employees classified as hourly, it is necessary to define when the seven-day workweek begins and ends for purposes of calculating overtime. The same goes for workdays. And of course, you want to address overtime pay and be sure to clarify that paid time like vacation, holidays, and sick pay (where employees perform no work) do not count as hours worked for purposes of calculating overtime.

Inspection and search
You want to instruct the employees that they should assume nothing they bring on company premises is to be considered private, so they do not establish a reasonable expectation of privacy leading them to sue under the tort of invasion of privacy. Items they wish to keep private should remain at home.

Technology and communications
The same goes for use of company-owned systems. Employees should be told they are to assume nothing stored on or transmitted over the company’s intranet is private and the company reserves the right to access any such file. Failure to make these statements can also lead to employees establishing reasonable expectations of privacy in websites they visit, etc.

Reporting injuries (as opposed to Workers’ Compensation)
You should require that employees report injuries immediately but not necessarily go into detail about workers’ compensation policy. When they report the injury, that’s when you explain workers’ compensation procedures in detail. Save it for the Supervisory Manual.

Family and medical leave (Employers with 50+ employees within 75 miles)
Employers with obligations to comply with the Family and Medical Leave Act and California’s Family Rights Act should include a written policy including a reference to how the company calculates the twelve-month period wherein employees may take twelve weeks of leave. Failure to designate the 12-month period in writing means the employee may choose the best option.

Employee benefits
Handbooks are also an opportunity to advertise the benefits you provide and inform them what it is they have available to them. They generally fall under the categories of paid time away from work, unpaid leaves, insurance benefits, and miscellaneous. However, as with all handbook policies, don’t put in writing what you can’t commit to. Insure that policies like bereavement leave for the death of a family member reference domestic partners where spouses are mentioned, and that grandchildren are included in the list of family members if you afford leave for the death of a grandparent. When referring to insurance benefits, be sure to include language to the effect that if there is any disparity between the handbook and actual terms of coverage, the terms control.

Agreements
If you want to bind the employee to policies that survive the employee’s job separation you must enter into separate contracts with the employee to be able to exercise any control over the employee after he or she leaves. Remember, in states that afford you the option, you generally don’t want the handbook to constitute a contract; so for this reason, any such contracts (e.g., no solicitation, confidentiality, etc.) should be separate, free-standing agreements. Requiring new hires to sign these agreements is much less complicated than asking long-term employees to sign for reasons associated with a contract law concept called “consideration.” Free-standing agreements may also be advantageous when it comes to very tricky policies like drug testing.

The trick to employee handbooks is to be aware of all the above considerations and still draft language that employees can understand and won’t intimidate them.

(Editor’s Note: If you need help putting together a handbook, or reviewing a current one, call us at 800.784.8484 (Option 3) to inquire about our consulting services on this subject.)

Compliance Tips Part 3

By Matt Bartosiak, Consulting Helpline Manager

This is Part 3 in an ongoing series on compliance tips that can make administering human resources easier and help you avoid some of the nightmares that can crop up. As always, you can depend on calling our Consulting Helpline for further explanations and to ask questions whenever a specific situation is at hand.

1. Manager’s /Supervisor’s list -Develop a “First Call HR List” to address those questions and/or situations that managers and supervisors face that necessitate involving HR at the start of the situation. Examples of these may include the following employee matters: Terminations, leave requests, all harassment claims, workplace injury claims, protected disability claims and accommodation requests, threats of violence, claims of business or personal theft. This list could be a bookmark size that is easily posted at a manager’s/supervisor’s work area.

2. Rounding off time worked -Employers are allowed to “round off” time to the nearest (not next) 5, 6, or 15 minutes. It must be done on both sides of the clock and must not work only to the disadvantage the employee…More rules exist on this.

3. Calling in sick - Have your handbook say exactly what you want to happen. If the employee must speak to their supervisor, say so.

4. Keeping investigations confidential - When employees are asked about another employee, make sure these employees are told that the investigation is confidential and that any disclosure on their part may be grounds for disciplinary action.

5. Reporting time pay - Many emp-loyers think reporting time pay is always four hours. When employers send employees home early, the employee must be paid for half of the total number of hours they were scheduled to work, but never more than four hours or less than two.

6. Overtime pay -Overtime worked in one payroll period is allowed to be paid in the next payroll period's check, but not after.

7. “Why can't we choose him/her for the layoff list - he's the worst performer” - When management says this, tell them to imagine that you have all the personnel files of the work group laid out on long tables and you bring in an HR expert or labor attorney to review all the files. Without talking with anyone in the company, if they don't pick the workers that management has chosen, then there’s a problem. The bottom line is you have to be able to show objectively that the individual is indeed the worst performer.

8. Letting employees go before their resignation date - If you don’t pay them and keep them on benefits through the resignation date, then the employer is seen as the moving party and the individual could collect UI on the employer’s account.

9. Two different rates of pay - If an employee has two different rates of pay, then the overtime is calculated using a weighted rate (each rate weighted according to number of hours worked).

10. Part-time exempt employees - Still must be paid at least $540.00 a week, regardless of hours worked.

By Wendy Taylor, Editor and Legislative Coordinator

A number of bills that would have affected employers have been dropped from the 2006 California Leg-islative session—but several deemed bad for businesses remain.

Minimum Wage
AB 1844 died in committee, but AB 1835 and SB 1162 are still active. Both would increase the minimum wage to $7.25 per hour on and after July 1, 2007 and to $7.75 per hour on and after July 1, 2008. Both provide for an automatic increase each year thereafter based on the previous year’s rate of inflation.

Governor Schwarzenegger, however, has his own plan for increasing the minimum wage without the annual inflation increases. Instead, he has petitioned the newly restored Industrial Welfare Commission (IWC) to increase the current wage of $6.25 to $7.25, but without the annual indexing factor. Thus, he is expected to veto the above bills if either of them are approved by the Legislature.

Healthcare
AB 1952, an employer-provided health care bill, did not pass out of the Appropriations Committee and is dead for the year. The following healthcare bills are still alive:

SB 840 (Single-payer healthcare coverage) would enact a program whereby the state becomes the provider of all health insurance. A new state agency would be set up to negotiate plans and costs with healthcare providers. The impact on employers would have to be seen as the program rolls out—some people believe the state would impose a fee on employers to aid in funding the program; some believe employers will be required to pay for at least minimum coverage offered by the program for their employees; and many believe the overall quality of health care itself will diminish because it will become a government bureaucracy. In the end, however, the Governor is not expected to sign this bill!

AB 1840 (Employer coverage-disclosure) requires the Department of Health Services, in collaboration with the Managed Risk Medical Insurance Board, to identify any employer with 25 or more employees who either directly receive benefits from Medi-Cal, Healthy Families or the AIM program, or who support beneficiaries who are on these programs.

This comes from the reports from the anti-Wal-Mart people who claim Wal-Mart does not offer adequate health insurance benefits to its workers, so they end up having the state pay for their medical costs. The impact on employers who are identified in the report would be bad press in the short term, and who knows what other policies or requirements could be imposed on them in future legislative sessions. For those employers who have no, or few, employees on any state health programs or any family members on these programs, the impact will be nil.

SB 1414 (California Fair Share Health Care Act). Nicknamed the Wal-Mart bill, it would impose a healthcare tax on employers with more than 10,000 employees to spend the equivalent of 8 percent of their total payroll on health insurance or pay the same equivalent amount to the state.

Unemployment Insurance
AB 2344 (Underground Economy and Tax Gap Act of 2006). This bill would require the Employment Development Department to develop and administer an amnesty program for a 3-month period, under which an employer who did not pay, or underpaid unemployment insurance on or before December 31, 2005 may apply for a waiver on unpaid penalties and interest owed.

The idea for this bill came from an amnesty program the state just-completed for tax amnesty. The amnesty program brought in billions by waiving the most severe penalties. So, the thinking is it would be a good idea to provide an amnesty for unemployment insurance. For employers who may not have paid their legally-required unemployment insurance, the amnesty program would be an opportunity to come into compliance. For employers who are current in their unemployment payments, there would be no effect.

AB 2209 (Unemployment compensation benefits). This union-sponsored bill comes out of the supermarket strike in Southern California. It imposes additional penalties on employers who “engage in any fraud, misrepresentation or misconduct” arising out of a lockout. A lockout is a trade disagreement, a contract dispute. The bill will primarily affect those employers with unionized workers when lock-outs occur, but will affect all employers by prohibiting an employer from preventing any employee from filing for, or waiving, unemployment benefits.

Workers’ Compensation
As projected in last month’s newsletter, no substantive changes are expected this year. Although several bills have been introduced to roll back the previous reforms, some of those are already dead, and the Governor intends to veto those that the Legislature may pass. The good news is that Workers’ Comp rates have reportedly dropped substantially this year. Also, on May 31, 2006, California Insurance Commissioner John Garamendi approved a 16.4% decrease in pure premium rates for California Workers’ Compensation policies renewing or incepting on or after July 1, 2006.

Arbitration
AB 2371 (Arbitration agreements). This bill was defeated on the Assembly Floor. It would have made it unlawful for an employer to refuse to hire, or harass, or discharge an employee or potential employee who refuses to sign an arbitration agreement. This was a very big anti-employer bill and it is great news that it was defeated—however close, since the vote was 38-39!

(Editor’s Note: To see the status of all the 2006 employer-related bills that are still “live” (under consideration) in the Califor-nia Legislature, go to the EG website at http://www.employersgroup.com/newsandlegislation/legislation/
2006session/index2006Legislation.shtml.)

Common Leave of Absence Pitfalls

Brent M. Giddens, a partner in the law firm of Sonnenschein Nath & Rosenthal LLP, represents union and non union employers in all aspects of the employer/employee relationship. He has extensive experience litigating wrongful termination/discrimination cases, as well as wage/hour class actions, and regularly counsels employers in various industries regarding day to day employment related issues.

FMLA, CFRA, ADA, PDL…the alphabet soup of the leave-of-absence world continues to frustrate and confound human resources professionals more than perhaps any other issue. Some areas carry perhaps more potential liabilities (wage and hour, for one), and others may be more emotionally charged (discrimination/ harassment, for another), but leave administration continues to be the one most fraught with confusion.

This is primarily due to exacting state and federal leave regulations, combined with several other statutorily required and company provided leaves, all of which need to be effectively communicated, coordinated, and administered. Having been privileged to teach the Employer's Group “Leaves of Absence” class for many years, and having fielded countless calls on this issue, there are several recurring areas that seem to cause the most concern for human resources, which are discussed below.

Pregnancy related disability and the CFRA
In a further effort to protect the rights of employees disabled by pregnancy, the California Legislature created an exception to the definition of “serious health condition” to exclude pregnancy related disabilities, thereby preventing California employers from running the FMLA and CFRA concurrently during pregnancy related disability leaves. The FMLA has no such exception, and thus pregnancy related disability leave may be run concurrently with the FMLA. Most employers, however, improperly begin to run CFRA leave upon the child’s birth. While the birth is generally a necessary criterion to begin the CFRA leave, it is not independently sufficient. In addition to the birth of the child, CFRA may not commence until the employee has either exhausted her available PDL leave, or her doctor has certified her as no longer being disabled.

Proper FMLA/CFRA notice to employee
The FMLA regulations, and by extension the CFRA regulations, specifically detail what must be included in the written notice to the employee in order to commence these leaves. A letter simply notifying the employee that his/her leave is being designated as FMLA does not suffice, nor does a notice that properly designates FMLA but neglects to mention the CFRA (a common problem for out of state employers with California operations).

To be effective, the notice must mention, (1) that the leave will be counted against the FMLA/CFRA entitlement; (2) any requirement to complete and return a health care provider certification; (3) whether any paid or unpaid leave will be running concurrently and any conditions related to that leave; (4) any requirement for the employee to make premium payments for health insurance and the possible consequences of failing to timely pay; (5) whether a fitness for duty certificate will be required upon return; (6) the employee’s status as a “key” employee and the consequences that job restoration may be denied; (7) the employee's right to return to the same or similar job, and finally (8) the employee’s possible liability for repayment of company-paid health insurance premiums should they fail to return from the leave.

If other conditions are put on the leave—such as the concurrent running of any other employer provided benefit (e.g., medical leave of absence)—such conditions should also be included in the notice. Except in certain limited circumstances, FMLA/CFRA leave may not be retroactively designated. Finally, while federal law now provides a “safe harbor” for employers who fail to send proper written notice yet still provide employees all benefits to which they are entitled under the FMLA (essentially, a “no harm, no foul” approach), California has not yet adopted such an approach.

Attendance/Punctuality policies
As we know, FMLA/CFRA can be taken intermittently—for serious health condition leaves, it may even be taken in as small an increment as your payroll system tracks. Thus, assuming your payroll system tracks by the quarter hour, employees could conceivably take an FMLA/CFRA as short as 15 minutes. While few employers have the time or patience to track such brief absences against leave entitlement, it is important to understand that even though, for good and valid business reasons, such time off is not counted against the employee’s FMLA/CFRA entitlement, that time off is nevertheless protected.

For example, assuming FMLA/CFRA eligibility, if a husband is 15 minutes late to work because his wife had a migraine headache, that tardiness cannot be counted as a disciplinary event, as FMLA/CFRA would protect that as leave to care for a spouse with a chronic condition. In general, the application of attendance/punctuality policies needs to be carefully monitored to ensure such protected absences are not treated as disciplinary events.

Additional leave as reasonable accommodation
California employers should not terminate any employee upon failure to return from a medical leave, or serious health condition leave under the FMLA/CFRA, without first considering the effect of the ADA. As we have learned, a qualifying ‘disability” under California law is defined far more expansively than under federal law. Indeed, virtually every employee who has been out due to his or her own medical condition long enough to exhaust FMLA, CFRA and all applicable company policies, is “disabled” under California's sweeping definition. And while the ADA is not a leave statute, the implementing regulations, and very recent California law, confirm that additional leave of absence, beyond what is required by the FMLA, CFRA or the employer’s leave of absence policies, “may” be a reasonable accommodation for a protected disability.

The key here is rather than summarily terminating an employee who has otherwise exhausted all leave entitlement, to instead consider whether the affected employee has a protected disability. Assuming so, then consider whether there is a reasonable accommodation to that disability—which will often be some additional leave.
Finally, engage in the “interactive process” with the affected employee about whether additional leave, or any other accommodation, may exist prior to making the termination decision. In some instances, additional leave may not be a reasonable accommodation to a protected disability, but recognizing the disability and engaging in the interactive process are nevertheless required.

Keep in mind that the definition of a “reasonable accommodation” requires that it will enable the employee to perform the essential functions of the job, which in this case, would typically mean that the additional leave will allow the employee to come back to work. Thus, an open-ended additional leave with no guarantee that it will so enable the employee’s return is not likely required.

Conclusion
While leaves of absence, particularly the FMLA/CFRA, are difficult to administer, well organized human resources departments have adopted a functional and effective leave of absence tracking protocol to ensure all requirements are being met. And while many traps for the unwary unfortunately exist in this process, a careful and thoughtful approach to analyzing, tracking and documenting such leaves will help you avoid those pitfalls discussed above.

(Editor’s Note: For questions about leaves in specific situations, Employers Group’s Helpline Consultants are available to take your call or respond to your email. Brent can be reached at bgiddens@sonnenschein.com.)

New and Improved Pay Cards Bring HR Relief

Jennifer Cambern, Sen-ior Vice President, Oper-ations and Product Development for RSM McGladrey Employer Services, has extensive executive experience in product development, new product initiatives and payroll operations. Prior to joining the company, Jennifer spent seven years at Ceridian in an executive operations role, as well as a senior business analyst position. Employers Group has partnered with RSM McGladrey Employer Services to offer HR technology service to our members.

A recent national study reported in the January 2006 edition of the Leahy Newsletter for Treasury Management Professionals revealed that more than 16% of Americans do not have a bank account, and that number is steadily growing. This figure can be troublesome for payroll professionals as lack of a bank account means no opportunity for direct deposit.

Pay cards and direct deposit
For payroll managers, direct deposit provides relief from a host of administrative burdens surrounding the production of live checks. Besides these extra efforts, there are numerous concerns about the disbursement of live checks, including lost checks, delays caused by weather, mail or emergencies and increased time away from work to cash the checks.

The reasons why some employees do not have bank accounts vary, and many employers believe there is little they can do to help their employees establish bank accounts and make the switch from live checks to direct deposit. There is, however, a viable alternative in electronic payroll debit cards or, as they are more commonly known, pay cards.

Recent improvements in the functionality and usability of pay cards have played a major role in helping employers provide their employees with bank accounts while also reaching their own goals of 100% direct deposit. The move from paper “live” checks to direct deposit relieves HR administrators of burdensome tasks, reduces costs and provides multiple benefits to employees.

Despite the advances of such programs, however, some employees are still reluctant to make the transition from paper checks to direct deposits. The key for employers to encourage employees to make this important transition is communication and education. The time spent in developing and executing a direct deposit sign-up program is a smart investment to increase HR and employee productivities. When creating a campaign, a few suggestions for employee-focused messages that will help encourage employee sign-ups are:

Direct Deposit…
• Gives you more control of your finances
• Can be used to establish credit
• Is always there no matter where you are
• Eliminates check cashing and wire transfer fees

Pay Cards…
• No delays caused by weather, mail or emergencies
• Can be used at ATMs and merchant locations
• Allow for sub-accounts and additional cards for family members
• Provide FDIC insured funds
Pay cards can be beneficial for both employees and employers. Since they are set up in the employer’s payroll system the same way a direct deposit is set up, employers enjoy reduced costs while employees enjoy the benefits of direct deposit, even if they don’t have a bank account.

More messages and campaign ideas, including sample programs and posters, can be found at The Electronic Payments Association (NACHA) website, www.NACHA.org.

Pay cards proving their worth
Stories about pay cards proving their worth beyond those without bank accounts are becoming readily clear in countless companies regardless of employee size or demographics. After Hurricanes Katrina and Rita pounded the Gulf Coast in 2005, many companies were left with no way to pay employees and employees had no way to get funds. Stories began to make their way around about those companies that had solid disaster preparedness plans, including a back-up method of paying payroll. Companies that did not have to rely on paper checks were able to pay all of their employees and direct them to ATMs that would accept their pay card after they were evacuated.

Pay cards as a payroll option
Payroll is a company’s most important internal process, but often companies take it for granted. It is more than a simple process of ensuring that there is money in the bank when employees cash their checks. There are many other factors that affect employee payrolls that the scope of payroll processing needs to be widened. Ensuring that your employees are covered with electronic payroll means happier employees—and will save you money too.

(Editor’s Note: For information about RSM McGladrey Employer Services, contact kscott@employersgroup.com.)

The New Accountability
It's all about relationships!

Morrie Shechtman is an international change management consultant. He has taught at distinguished universities throughout the United States, has advised CEOs and political figures, and now runs a successful management consulting company, Fifth Wave Leadership, which is also the title of his groundbreaking book about the new path for achieving success. His keynote lectures focus on the connection between personal transformation and productivity.

So what is accountability, anyway? It’s a buzzword you hear all the time in business. People tend to say things like, “I’m holding you accountable for getting that report done.” What they really mean is, “Complete this to-do list and let me know you did it.” This all-too-common approach—handing out assignments, standing over employees like a school marm and giving metaphorical pats on the head—is really the opposite of accountability. True accountability is not about tasks and to-do lists; it’s about establishing productive relationships . . . and it’s the secret to success in the 21st century.

In today’s world we make money through relationships, not through performing tasks. The realities of the Information Age and the rapidly changing global economy mean there are millions of competitors who can perform any task you can perform. And that doesn’t just mean entering data or making widgets. It means legal research and plastic surgery, too. It doesn’t matter if you are a brilliant lawyer or a brilliant surgeon. If you’re not good at relationships, you can and will fail.

When you care enough about people to invest in a caring, honest, challenging relationship with them, you breed accountability. They see that you have confidence in them and that you have their best interest at heart. The power of two-way accountability is amazing. It’s also quite lucrative, as productivity and innovation soar in this environment.

The unprecedented nature of the 21st century workplace requires a commitment to the new accountability. Accountability itself is not a new phenomenon, of course, but the all-pervasive need to embrace it and make it the center of your company is. If you as a leader don’t foster an accountable culture—one filled with employees who have the capacity for self-analysis, adaptive learning and a commitment to growth relationships—your company will not thrive for long. It may not even survive. So what does an accountable culture look like?

High expectations and challenges, not complacency and coddling
Leaders in such companies have high expectations for themselves and their employees. They raise those expectations everyday. Most people want to grow. They want to learn. They want to be challenged. They don’t want to do the same things over and over again like a hive of mindless worker bees. If you set an artificial cap on people’s abilities, you end up with a company full of drones. They may be intelligent drones, but they’re drones nonetheless. You end up with a culture of mediocrity.

Internal challenges, not external ones
Accountability means self-awareness. It means looking your own self-destructive patterns in the eye. It means making a conscious decision that you’re going to set aside the emotional baggage that’s keeping you from reaching your full potential in business and in life. That’s true of you and of your employees. Everyone in your organization must be able to look within and figure out what they need to do in order to grow and change and break through to a new, more effective level of performance. It’s the job of the leader to help everyone develop this internal focus.

Confrontation and conflict, not agreement and harmony
Make no mistake: holding people accountable is not easy. It means taking risks. It means instigating uncomfortable conversations. It means expecting—and accepting—the occasional emotional outburst. That’s okay. Growth is usually painful. If you have a company full of conflict avoiders, you’re in trouble. The foundation of an accountable culture is honest, real-time feedback. You have to be willing to tell people how you experience them, and you have to be able to hear from them how they experience you. It’s the only route to growth relationships.

Caring, not abandonment
At first glance it may seem cruel to tell people the blunt truth as you see it. Look deeper, though, and you’ll see it’s anything but. Honest feedback is an act of caring. It’s about saying, “I care enough about you to confront you with what you’re not doing, because I believe you’re better than that. If I didn’t believe that, I would leave you alone.” It’s important to remember that the opposite of love is not hate, it is apathy. If you don’t hold people accountable, you are abandoning them. That’s real cruelty. Honest, caring feedback is how you invest in relationships.

Constant learning, not stagnation
We’re moving into a day and age where people are learning or teaching all the time. If you don’t have a work environment where people are learning, they leave. “Task” environments will not attract the best and the brightest. Studies show it takes 18 months to master a task. If after that point people aren’t learning anything new, they’ll be bored out of their skulls. Bored people are not productive people. If your people aren’t learning, your company is dying. It’s that simple.

As you might suspect, creating an accountable culture takes plenty of time and hard work. But it’s not rocket science. Once you understand what accountability really means, you can dive right in and change the way you interact with your colleagues and employees. Don’t delay.

(Editor’s Note: Morrie Schechtman will be a featured speaker at California’s People & Productivity Symposium presented by Employers Group on July 19, 2006 at the Hyatt Regency in Irvine. For more information about Morrie’s company and services, contact the EG editor at wtaylor@employersgroup.com.)

San Diego's Best Workplaces Contest

By Jennifer Shin, Research Marketing and Communications Coordinator

Conducted by Emp-loyers Group in strategic partnership with San Diego Magazine, the San Diego’s Best Workplaces program was a first-time event with huge success and marks the beginning of Employers Group’s plan to bring a Best Workplaces program to every region in California.

One “best company” flies its employees to Hawaii every year for their annual review. Another company provides onsite daycare, while another allows new mothers to bring their babies to work with them. These companies have different employee policies and practices, but all share a common goal: they want to be a best workplace!

Kicking off EG’s exciting new venture
The San Diego event kicked off with Employers Group contacting over 4,000 San Diego companies to compete in the program. At the end of the process, only 10 companies from each of the three employee-size categories (small, medium, large) were chosen as best workplaces. Companies with the top five scores were labeled winners, while the bottom five was recognized as “notable companies.” However, all thirty companies will receive full coverage in San Diego Magazine’s September 2006 issue.

Known for expertise in benefits and compensation information, Employers Group felt it was important to incorporate other aspects of a company’s employee culture to make sure that all companies were given a fair and equal opportunity to participate in the Best Workplaces Program.

To begin, Employers Group developed two surveys to provide the criteria for determining San Diego’s best workplaces. The first was an extensive questionnaire designed to measure company policies and practices in nine categories: work-life balance, employee voice/workplace culture, community involvement, employee turnover, pay, benefits, perks/incentives, training/opportunity for advancement, and diversity. A company’s pay practice although important to an employee is not the sole factor that guarantees a supreme workplace. Questions were weighted, and employers were asked after every category of the initial survey to elaborate about the company’s policies.

Questionnaire and criteria
Over 300 companies filled out at least part of the 402-question-survey. Employers Group used a blind-scoring system to total the scores of the initial survey. The 104 highest scoring companies became semifinalists and the semi-finalist list was a surprisingly diverse group of companies. From food catering service companies to bio-tech engineering firms, the range of different services and industries was extremely wide, ensuring that the process was not only competitive but also fair.

For the final round, Employers Group conducted a confidential Employee Satisfaction Survey on a random sampling of employees at each semifinalist company. The sampling was based on company size, and those companies which did not provide at least 75% of the Employee Satisfaction Surveys requested were disqualified. Using employees’ answers to each of the 12 questions (“Strongly agree,” “Agree,” “Disagree,” “Strongly Disagree”), a final Employee Satisfaction score was determined.

Confidentiality maintained
Statements regarding Employee recognition, satisfaction with pay and corporate culture are a few examples of what employees were asked to respond to. Confidentiality was a major concern during the Employee Satisfaction Process as well as the initial questionnaire. Consequently, no information that would identify an employee or specific company was shared to any third party, including San Diego Magazine.

In order to determine final scores and ranking, the company score from the initial survey and the employee satisfaction score were weighted equally and added together. Statistical ties were broken using the highest employee satisfaction score.

Six-month process
The Best Workplaces program was a six-month process that had many unexpected turns. The winning companies much like the semi-finalist group were diverse in industry but all share a common theme of providing employees excellence.

Employers Group’s partnership with a highly well-known publication such as San Diego Magazine ensured winning companies the following major benefits from participating in the best workplaces program: better recruitment, recognition among peers, and higher employee morale.

All participating companies also have the ability to fine-tune their company’s practices and policies by seeing how they stand amongst their peers. The survey is a useful tool to evaluate and improve company’s overall efforts, plus as part of their participation they receive a summarized evaluation of the companies scores compared to the average scores.

For more information on the winners of San Diego’s Best Workplaces, please stay tuned for the September 2006 edition of San Diego Magazine. Please also note in the months to come, Employers Group will be extending the Best Workplaces program in various areas across California. For more information, please refer to the contact information below.

(Editor’s Note: Interested in implementing a Best Workplaces Program, but unsure how? Try Employers Group’s brand new service! For questions or for more information on how to implement a Best Workplaces Program, contact Research Services today at surveys@employersgroup.com or call Juan Garcia at 213.765.3969.)