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PAST EVENTS 2004 - 2005

2008 Legal Update: What's New in Employment Law
Raymond H. Hixson, Jr., Esq.
Renée R. Deming, Esq.
Heller Ehrman, LLP

At the BAHREC meeting on January 16, Ray Hixson and Renée Deming of Heller Ehrman gave the group an overview of the newest legislation affecting employers in 2008.

I always find these meetings both stimulating and frustrating. It is interesting and challenging to try to keep abreast of everything going on in Sacramento and Washington - not to mention globally. The more legislation, the more job security, right? But my enthusiasm for learning this new stuff, some of which makes no compelling business sense, as far as I can see, is offset by my sudden urge to either put a bullet to my head, or at least change professions.

Here's an even briefer overview of the stuff that was covered. Please note that this was my personal take-away, and should in no way be construed as legal advice. A copy of Renée and Ray's presentation is being posted on the Members-Only page on the BAHREC website:

Wage and Hour Laws

• Changes to Computer Professional exemptions - depends on whether these employees are in the IT department (Admin exemption test), or supporting specific departments (Professional exemption test)
  • They also covered changes to the related compensation requirements and how this needs to be calculated
• The importance of enforcing breaks and meal breaks (Kenneth Cole decision)
• Differentiating "expected wages" from other types of compensation
• The "boundaryless workplace

Leaves of Absence

• New California Spousal military leave - update your LOA policies.
• Make sure you advise employees when they are on a leave that is being applied to their FMLA within 2 days of request

Disability

• Best to engage in an "interactive process" in response to disability issues.

Arbitration Agreements

• Should be part of a signed offer letter if you are going to use them.
• If you choose to use them, it is recommended that they are a stand-alone document
• Must not be unfair to the employee

Harassment Training

• New documentation requirements - especially for web-based training
• Must enable supervisor to contact a trainer who can answer questions within 2 business days of when question is asked

Discrimination Claims

• Casual comments in the workplace can be used to affirm an allegation of age discrimination
• Violation of Company Policy doesn't negate Wrongful termination claim under FEHA - especially if the policy isn't administered consistently

Release Agreements

• USERRA rights cannot be waived
• May not be possible to get a release for violation of FMLA rights

New guidelines on "No-Hire" Agreements

• A "no hire" contract between a company and a subcontractor held to be unenforceable as an unlawful restrain on trade - not sure about how this affects temp agencies

IRC Section 409A

• Covered new definitions of what is considered "deferred compensation"
• This was probably the most complex topic of the evening and the presentation was limited by time restraints. Renée distributed a copy of "The Section 409A Survival Guide." This may be a stand-alone topic for another meeting.

Crucial Conversations
Richard Lee

The New York Times Best Seller, Crucial Conversations, and its newer companion, Crucial Confrontations show up frequently on the bookshelves and nightstands of savvy HR Executives. Richard Lee, a consultant and authorized representative of Crucial Conversations & Confrontations for VitalSmarts, gave the group an overview of how to apply some of the concepts of "Crucial Conversations."

What constitutes a "Crucial Conversation?" Three key elements:

• High Stakes
• Strong Emotions
• Opposing Opinions

With the use of videos and interactive discussions, Richard led the group through a dynamic mini-workshop that showcased the value of honing our skills in this arena.

When preparing to have a "crucial conversation" it is important to identify where you are stuck. This, he said, will help you to articulate exactly what kind of crucial conversation you need to have.

Because Richard's presentation incorporated videos, there are no PowerPoint slides on the Members Only page. However, if you click here, you can get additional information on the program itself.

Internal Mediation
Marvin Schwartz

Marvin L. Schwartz, JD, has trained HR officers for a major airline, corporate and local government managers and education administrators in utilizing mediation skills with their employees. He has helped develop programs and trained internal employee mediation teams for a major university, county government, and large national membership organizations. He has trained over 1900 mediators for a broad range of mediation programs. He has served as a mediator for the California State Department of Fair Employment and Housing and currently mediates employment conflicts for the US Postal Service as well as other organization and private clients. Mr. Schwartz is also a college instructor in a course he designed on mediation skills and process.

Marvin engaged the group in a conversation about how we can use mediation tools to keep conflicts a "small deal." He pointed out that when "small deal" interpersonal differences are poorly addressed, they become more adversarial and often turn into a "big deal." So the idea is to keep them small.

The art of mediation is to empower the parties involved to resolve their own problems and their own conflicts, not to solve the problem for them. Marvin suggests that you can use conflict as an opportunity to improve a situation. Understanding individual communications styles can go a long way toward developing a workable approach.

Marvin suggested the concept of building an internal mediation team of managers from various functional areas, assuming buy-in from internal (official and unofficial) thought leaders.

A copy of Marvin's PowerPoint presentation is on the Members Only Page.

Building a Position of Strength
Jeanne Palmer
President, Palmer Advantage

Jeanne Palmer is the Founder and President of The Palmer Advantage. Prior to founding The Palmer Advantage, Inc., in 1999, her background included a unique combination of Human Resources Management experience and business expertise. Over the years Jeanne has contributed greatly to the development of her client companies and has helped to enhance the careers of her HR colleagues. At our April meeting Jeanne discussed ways to "keep your career on track when the world is changing around you."

• The Myth of the "A. Player", (it means different things to different people and in different organizations. Who ever heard of a company asking to hire a "B" player?)
• "Career Kitting" - packaging yourself to present everything that you have that you can apply to add value to an organization. This includes your technical knowledge, certifications, experience, areas of specialization - industry or functionally specific. It's important to take an inventory of what you have in your career "toolkit."
• Global experience will be more and more important
• Think of your career development in 3 - 5 year increments
• Expand your "Circles of Influence" START TODAY!!! Jeanne's advice: Don't just join, participate!!

A copy of Jeanne's PowerPoint presentation is on the Members Only Page

Immigration Update
PERM Finally Arrives
When Will the Greencards?
Lisa Spiegel and Alan Perkins

Lisa Spiegel and Alan Perkins of Duane Morris Law Partners provided an overview of the most recent changes and trends in Immigration Law.

Some issues to pay special attention to:

Foreign nationals who travel may have trouble at re-entry. We are well advised to take pre-emptive steps to ease the process, or risk our employees getting "stuck." Are you conjuring up images of Tom Hanks in Terminal?

Labor Certifications went electronic on March 28.

A new I-9 Form has been issued. Electronic storage and execution is now, or soon will be possible.

H-1B Visas: Be prepared to pay at least 100% of prevailing wage (versus the previous 95% standard).

Students who are newly hired only have a year from graduation (usually May) before their student visas expire. Therefore, if you want to convert them to an H-1B status by the following May, you need to get started right away, because the quotas are usually reached in October.

PERM represents some positive changes in terms on online filing and quicker (anticipated) processing. You can now apply experience gained on the job when filing. On the other hand, additional recruitment steps are now required to show that there are no qualified US workers for the position in question. Another key change is that the open position must now be published in any and all in-house media normally used for recruitment of similar positions at the company.

A copy of their PowerPoint presentation appears on the Members Only Page.

The New Standard in HR Leadership - Helen Peters and Deborah Saks

Helen Peters and Deborah Saks have combined recent research and leading edge thinking, a survey of top HR executives, discussion with some leading HR metrics gurus, and conversations with over 100 senior HR practitioners. What emerged is a new perspective on the role of the HR executive, one that is a natural evolution of the long-established work of Dave Ulrich, Jac Fitz-ens and others. They are calling this perspective The New Standard for Human Resources Leadership.

Deborah and Helen lived up to their reputations as dynamic and thought provoking speakers. They shared their views on what is different for HR in the world today.

Our economy is evolving from one driven by tangible assets to one where the intellectual capital (intangible assets) is more prevalent. Since that intellectual capital equates to Human capital, our jobs become more central to the operating business.

Technology has changed the way that work gets done and people communicate. Deborah and Helen spoke to the group about how we need to help leverage that Human Capital in what they referred to as "The Eye of the Global Competitive Storm."

A copy of their PowerPoint presentation appears on the Members Only Page

Speaking to the Big Dogs - Rick Gilbert

Rick Gilbert is the founder of Frederick Gilbert Associates, Inc. and the major developer of PowerSpeaking®. His background includes consulting, university teaching, and management positions with Hewlett-Packard and Amdahl corporations. Rick is a past president of the Northern California Chapter of the National Speakers Association, His audio tape program, PowerSpeaking® How to Make People Sit Up and Listen, was distributed internationally by John Wiley and Sons, and listed as a "best seller."

Rick's presentation made it clear that when communicating with "The Big Dogs," the rules are different.

• Execs don't necessarily need retention of all the facts. They need to make a decision and move on.
• Be well prepared, but pithy. Even if you think you have a half hour, prepare your presentation as if you only had 10 minutes. That will frequently be the case anyway.
• Make your first line your bottom line. Dramatic build-ups to your conclusions won't necessarily play well to this audience.
• It's not about you
• Understand the difference between process (how) and content (what)

Rick's presentation included video clips of senior executives who expressed quite candidly, how we can most effectively make a case in the board room.

Check out the PowerPoint Presentation for more details.

Legislative Update - 2004 Mike Lotito

Michael J. Lotito, SPHR has been serving the legal and human resource needs of companies across the U.S for nearly 30 years. He is partner at Jackson Lewis, a law firm specializing in preventive labor, employment, immigration and benefits law. He is the former national chair of SHRM. Mike has testified before the US Senate and House of Representatives as well as the EEOC, and was recently honored as Human Resources Alumnus of the 20th Century by the Villanova Graduate Program in Human Resources.

Mike brought us up-to date on some of the latest activities in Washington D.C. and Sacramento. A copy of Mike's presentation is available on the Members Only page

Some of the areas Mike highlighted include:
• Mandatory Sexual Harassment Training for California employers with more than 50 employees. Requires 2 hours of "interactive" training per employee.
• We should be aware that the next generation of class action lawsuits against employers may be shareholder derivative.
• Paid Family Leave - is being used at a greater rate than the legislature had anticipated.
• Workers Compensation Reform - (SB 899): Employers will be able to set up their own medical provider networks. Rate reductions to employers who return people to work and rate increases if they don't.
• Amendments to the "Bounty Hunter" or "Sue Your Boss" law; Employers now have 30 days to remedy a violation.
• Reclassification of Exempt positions to Non-Exempt.

Mike covered a lot of ground and this list just scratches the surface.
Check out the PowerPoint Presentation for more details (which can be found at the Members Only Page.