THE RESOURCE SAN DIEGO SOCIETY FOR HUMAN RESOURCE MANAGEMENT

THE RESOURCE SAN DIEGO SOCIETY FOR HUMAN RESOURCE MANAGEMENT LAW DAY January 19, 2005 Bob Levy, Esq. Kelly Douglas, Esq. Johnny Taylor, JD Tom Ingrassia, Esq. January 2005 Volume 25 Issue 1 Merrili Escue, Esq. Tim Verrall, Esq. Special Notices Law Day Information Holiday Party Donations Leadership Conference Glimpses F e a t u re A r t i c l e s Law Day Meeting Information Page 2 Page 1 Page 11 Page 16 Fred Plevin, Esq. See Back Page for Complete Schedule Based on the success of our first full law day in January 2004, we will continue the tradition of providing you a more indepth legal update by offering a similar full day event on January 19, 2005. The SD SHRM 2005 Law Day is packed with up-to-date information on trends and other “hot topics” that impact HR’s day-to-day activities. We will offer two morning tracks for a total of four presentations. Plus, this year we are privileged to have Johnny Taylor, Chairman of SHRM national, as our keynote speaker for the lunch portion of the meeting. Finally, we will wrap up the day with our annual Legal Update, presented by Bob Levy and Kelly Douglas of Luce, Forward, Hamilton & Scripps. Please refer to the last page for an overview of the programs being offered. Lunch Session: Keynote Address Johnny Taylor, Chairman for SHRM national will be on hand to deliver a keynote address and to promote the upcoming SHRM national conference, which will be held in San Diego in June 2005. For those of you that have not had the opportunity to hear him speak, I can assure you that you will not be disappointed. Johnny C. Taylor, Jr. is the President of McGuireWoods HR Strategies LLC, the Human Resources consulting subsidiary of McGuireWoods LLP. McGuireWoods HR Strategies exclusively provides seniorlevel, executive solutions to human resource issues related to: labor union disputes and negotiation strategies; diversity initiatives; high-exposure employment and class action litigation prevention and dispute resolution; tax and employee benefits; immigration; affirmative action plans and compliance; and tax and employee benefits. (Continued on page 3) Meet Your Vice President Legislation Jennifer Lutz, Esq. Page 6 Regular Columns Message from Your President Ann Towle-Mason, MA, SPHR Jennifer Lutz’s Legal/Legislative Update Knowledge Bowl HR Calendar of Events Contact Us Page 2 Page 4 Page 20 Page 21 sdshrm@sdshrm.org www.sdshrm.org F 619-589-0211 P 619-589-0111 AMERICA’S FINEST CHAPTER * AFFILIATE CHAPTER #130 OVER 1,000 MEMBERS & GROWING A Message from Your President This past year was a successful one thanks to the hard work and dedication of all our fantastic volunteers! Law Day, the Annual Conference, Workplace Excellence, and our charity focused, fund-raising Holiday Party are some examples of signature SD SHRM member events that our extraordinary volunteers made possible through their countless hours of hard work. As the host city of SHRM's 57th Annual Conference & Exposition June 19-22, 2005, we have an incredible opportunity to show the rest of the country what San Diego SHRM volunteers are capable of! So many of you have already come forward to offer to help and I continue to be amazed at the level of participation within our chapter. Please take the time to explore our volunteer website www.shrm2005.org to see how you can help with the conference. I guarantee it will be fun and rewarding. Your Board of Directors will be working hard this year to serve you and to further our mission: SD SHRM Mission Statement Through the efforts of our committed members, be recognized as the leading human resource management organization in San Diego County by: 2005 BOARD OF DIRECTORS President Ann Towle-Mason, MA, SPHR. . . . . . . .858-232-8666 HR.SOURCE Consulting President Elect Chana Anderson, CCP, SPHR . . . . . . . .858-592-1838 Casa de las Campañas Vice President, Communications Daryl Smith, SPHR . . . . . . . . . . . . . . . .619-266-5254 Cox Communications Vice President, Conference Gretchen Bonifield, PHR . . . . . . . . . . . .858-484-7743 The Eastridge Group Vice President, Educational Services Linda Nielsen, SPHR. . . . . . . . . . . . . . . .619-687-2810 Nicholson-Applegate Capital Vice President, Legislation Jennifer Lutz, Esq. . . . . . . . . . . . . . 619-239-8131x217 Klinedinst PC Vice President, Membership Toney Shea. . . . . . . . . . . . . . . . . . . . . . .619-944-0500 Vice President, North Coast District Rick Bergstrom, Esq. . . . . . . . . . . . . . . .858-720-5143 Morrison & Foerster, LLP Vice President, Placements Laurice Flasnick, SPHR . . . . . . . . . . . . . .909-600-4344 Southwest Healthcare System Vice President, Programs Sue Johnson, MA, SPHR. . . . . . . . . . . . .760-845-1142 Hire Intelligence Vice President, Secretary Traci Porterfield. . . . . . . . . . . . . . . . . . .858-713-8244 The Anthony Robbins Companies Vice President, Treasurer Lynn Gabé. . . . . . . . . . . . . . . . . . . . . . . .858-614-4712 San Diego Association of Realtors Immediate Past President Cecile Bereal, MA. . . . . . . . . . . . . . . . . .619-258-2510 RMA Management Alliance, Inc. Executive Director Gail Dill . . . . . . . . . . . . . . . . . . . . . . . . . 619-589-0111 Management Assist THE RESOURCE is published monthly by MANAGEMENT ASSIST for the mutual benefit of the SD SHRM membership, a nonprofit association composed of individuals employed in the human resources profession as practitioners, consultants or educators, or persons allied with the profession as suppliers of HR goods or services. Views and opinions expressed in THE RESOURCE are those of the authors and not necessarily those of SD SHRM. Products and services advertised are paid advertisements and not endorsed by SD SHRM. We welcome the submission of articles by our members on topics of interest to the HR profession. Date for submission of materials and advertisements is the 10th of the month prior to month of publication. Ann Towle-Mason, M.A., SPHR HR.SOURCE Consulting • • • Providing high value, high quality, dynamic and responsive programs and service to our members. Being the voice of the profession on workplace issues. Guiding the advancement of the human resource profession. In tandem with recruiting, training and motivating over 1,000 volunteers in order to put on the BEST, most memorable conference EVER our challenges in 2005 include: * Re-energizing the North Coast meetings to provide services to our members who live and/or work in northern San Diego County; * Developing stronger alliances with our resource partners (vendors); * Identifying new revenue sources and taking advantage of revenues from SHRM (for our help with the conference) to support our programs and other member benefits; (Continued on page 16) LAW DAY When: Wednesday, January 19, 2005 Time: Meeting Information NO-SHOWS WILL BE BILLED PRE-REGISTRATION & CANCELLATION DEADLINE: 8:00 am Registration & Breakfast 12:00 Noon Luncheon See back page for complete schedule NOON Monday, January 17, 2005 Where: Hilton La Jolla Torrey Pines 10950 North Torrey Pines Road Interstate 5 to Genesee West DUE TO VOLUME ONLY EMAIL RESERVATIONS WILL BE CONFIRMED Cost: Members/Non-Members $99 / $169 - Pre-registered $149 / $215 after Noon Monday Deadline and at the door Menu: (1) Chicken Caesar Salad (2) Vegetarian meal sdshrm@sdshrm.org F 619-589-0211 P 619-589-0111 Any check returned unpaid by your bank will incur a fee of $35.00 Vegetarian meals must be requested by Noon, Monday, January 17, 2005 TH E R ES O U R C E 2 J A N U A R Y 2 00 5 Law Day—Program Information (Continued from page 1) Prior to joining McGuireWoods HR Strategies, Mr. Taylor held the following senior executive human resources and legal department positions: EVP, General Counsel and Secretary of Compass Group USA, Inc., a $6+ billion food services company employing over 120,000 employees throughout North America; Vice President, Human Resources /Employee Relations for Blockbuster Entertainment Group/VIACOM, a 50,000 employee, $2+ billion media retailer; Vice President, Legal Affairs for Alamo Rent-A-Car, Inc., a $2+ billion auto rental company employing over 25,000 employees; and General Counsel & Senior Vice President, Paramount Parks Inc., the theme park and live entertainment division of Paramount Pictures/VIACOM, which employed over 20,000 full-time and seasonal employees throughout North America and Spain. Mr. Taylor is the Chairman of the Society for Human Resource Management (SHRM), the world’s largest human resource professional organization, representing 195,000 members in 100 countries. In addition to his SHRM commitment, Mr. Taylor is actively involved in various professional and community organizations and serves on the following boards: Drake University Board of Trustees; Charlotte Chamber of Commerce (General Counsel/Executive Committee Member); University of Miami President’s Council; Blumenthal Performing Arts Center; and Queen’s University/McColl School of Business Board of Visitors. Mr. Taylor received his Bachelor of Science With General Honors from the University of Miami, Master of Arts in Mass Communication With Honors from Drake University, and Doctor of Jurisprudence With Honors from The Drake University Law School, where he served as Research Editor of the Drake Law Review and argued on the National Moot Court Team. He is a member of the Florida, Illinois, and Washington, D.C. bars and holds a Senior Professional in Human Resources (SPHR) certification. Afternoon Session: Legal Update Overview Bob Levy and Kelly Capen Douglas from Luce, Forward, Hamilton & Scripps will present their annual legal update. This 90 minute session is intended to provide you with a thorough but concise overview of important legislative updates that have occurred over the last 12 months and explain how they will impact you. Robert Levy is a partner with Luce, Forward, Hamilton and Scripps LLP. He primarily assists clients in solving employment problems and developing strategies to deal with employment issues. Bob counsels employers regarding wage and hour law, discrimination law, and all aspects of the employment relationship. Bob also supervises employment litigation and often acts in the capacity of outside general counsel for not for profit organizations. Bob has taught employment law in the Human Resources Certificate Program at San Diego State University since 1985. He is a regular presenter at employment seminars in San Diego, including the annual Society For Human Resource Management Employment Updates Seminar and the annual International Personnel Management Association Employment Updates Seminar. Bob also provides training for clients. Bob received his undergraduate degree in Economics from the Wharton School of Business at the University of Pennsylvania, and his J.D. from the University of Southern California. Kelly Capen Douglas is a partner in the Labor and Employment Law Practice Group at Luce, Forward, Hamilton & Scripps LLP. Ms. Douglas has extensive experience representing employers in litigation and counseling employers in an effort to prevent claims. She currently focuses her practice on advising employers on all types of employmentrelated matters, including discrimination, (Continued on page 16) When Accuracy is a Factor ! Sutherlin Associated Services Nationwide Pre-Employment Background Checks Workplace Investigations & Security Assessments 800-217-1555 Serving San Diego’s Human Resources Community Since 1986 PI 11422 TH E R ES O U R C E 3 J A N U A R Y 2 00 5 Legal/Legislative Update 2004, the California Division of Labor Standards Enforcement proposed to adopt some much-needed emergency legislation to ease the harshness of California Labor Code sections 226.7 and 512. Under current law, all employers are required to ensure that all non-exempt employees who work at least five hours take a 30-minute, uninterrupted meal period. If those employees work more than five, but fewer than six hours, the employee is permitted to waive the 30-minute period. If the employee does not take the 30-minute meal period, even if it is by the employee’s own choice, the employer is required to pay the employee one hour of wages as a penalty for the employee not taking the legally-mandated meal period. There has been a great deal of controversy regarding the definition of certain terms contained in the current law, such as what is meant by the requirement that an employer “provide” an employee with a meal period, and what is meant by the various time parameters in which meal periods can and must be taken. When enacted, the proposed emergency regulation will answer these questions in a manner that will ease the harshness of this law, particularly in situations in which the employer allows the employee to take the meal period, but the employee elects not to do so. Under the proposed emergency regulation, an employer will be deemed to have provided the required meal period if three conditions have been met: 1. The employer makes the meal period available and affords the employee the opportunity to take it; 2. The employer posts the applicable Industrial Welfare Commission wage order and; 3. The employer maintains accurate time records for covered employees. Further, an employer establishes that meal periods have been provided if the employer informs the employee of the circumstances in which the employee is entitled to take the meal period and the employee acknowledges in writing that the employee understands those rights. The proposed regulation also clarifies when the meal periods, first and second, must commence. The initial meal period may commence at any time before the start of the sixth hour of work. However, the employer will not be prohibited from allowing the employee to start a meal period after the start of the sixth hour as long as the employee was provided a meal period before the sixth hour of work begins. A second meal period must be provided if the work period after the end of the first meal period exceeds five hours, but the second meal period may be waived by mutual consent if the employee has not waived the first meal period and the second work period ends before the beginning of the sixth hour of the work period. (Continued on page 5) Jennifer Lutz, Esq. Klinedinst PC VP Legislation This monthly column will highlight recent court decisions and legislative developments of interest to human resource professionals in San Diego County. LEGISLATIVE/ REGULATORY UPDATE California Division of Labor Standards Enforcement Proposes Regulations to Relieve Harshness of Meal and Rest Period Laws Finally, there appears to be relief on the horizon for California employers in regard to providing meal and rest periods to nonexempt employees. On December 10, TH E R ES O U R C E 4 J A N U A R Y 2 00 5 Legal/Legislative Update (Continued from page 4) Finally, the regulation explains that any penalty owed and paid by an employer to an employee under Labor Code section 226.7 is considered a penalty, not wages. Since this is interpreted to be a penalty, not a wage, a one-year statute of limitations (rather than a three year statute of limitations if it was a wage) will apply. Moreover, plaintiffs would not be permitted to recover attorneys’ fees, costs, and interest under Labor Code section 218.5 or 218.6. Because this proposal was made in direct response to Governor Schwarzenneger’s directive to immediately promulgate regulations to clarify existing law and provide parameters for employers to proceed, it is likely that the regulation will be adopted. Maintaining accurate records is key. It is recommended that employers consider inserting verification language on time records wherein employees state that they are aware of the meal and rest period re- quirements and have taken all meal and rest periods for which they are eligible. Hourly Wage for Exempt Computer Professionals Changes January 1, 2005 Labor Code section 515.5 provides that certain computer software employees shall be exempt from overtime compensation requirements pursuant to Labor Code section 510 if certain criteria are met. One of the required criteria is the employee’s hourly rate of pay must not be less than a certain threshold dollar amount. The Division of Labor Statistics and Research is responsible for adjusting this pay rate on October 1 of each year to be effective on January 1 of the following year, by an amount equal to the percentage increase in the California Consumer Price Index for urban wage earners and clerical workers. Beginning January 1, 2005, to qualify for exemption, computer professionals must earn an hourly wage of at least $45.84 per hour. (Continued on page 8) TH E R ES O U R C E 5 J A N U A R Y 2 00 5 Board Member Profile harassment, and defamation and wage and hour issues. In addition, Jennifer provides preventive advice, counseling, and training to employers on a full range of employment law issues, including drafting employment policies and procedures, terminations, discipline, investigations, and accommodations. Jennifer is also an invited lecturer, author, and trainer on issues such as wage and hour law compliance, employee privacy, family and medical leave, harassment and discrimination. Jennifer was born and raised in Phoenix, Arizona and attended the University of Arizona, where she graduated magna cum laude earning a Bachelors of Arts Degree in psychology. She then attended the University of Arizona College of Law, where she earned her Juris Doctor Degree. Jennifer is admitted to practice law in both California and Arizona. She and her husband, Rich, enjoy traveling, skiing, entertaining their family and friends and their 15 month old son. Jennifer Lutz Klinedinst PC VP Legislation Jennifer N. Lutz is a shareholder with the law firm of Klinedinst PC. She is beginning her fourth year on the SD SHRM Board of Directors as Vice President of Legislation. Jennifer has focused her law practice on employment litigation, preventative counseling and education for employers. Jennifer represents employers in all aspects of employment disputes in state and federal court, as well as before administrative and government agencies. Jennifer has successfully litigated disputes involving issues of discrimination, wrongful termination, TH E R ES O U R C E 6 J A N U A R Y 2 00 5 New Members in November & December Steve Murphy, SPHR Murphy Performance Strategies VP Membership We want to take this opportunity to welcome you to San Diego SHRM as our new members this month. We encourage you to become active in the organization. That is the best way to meet new HR associates and get the most out of SD SHRM. WELCOME! Amber Almeida Manager, Human Resources SODEXHO Julie Ann Arthur Beacock Senior Vice President/ Benefits Practice Leader USI Insurance Services Michele Benedetto Associate Morrison & Foerster LLP Barbara Burch Comm. & Electronic Warfare, Sr Human Resources Representative Titan Corporation Clara C. Behnke Human Resources Manager Resortcom International Karen Cuevas Human Resources Director Vulcan Materials Company Trent Dethloff Employee Benefits Allenbrooke Insurance Michael Firth Regional Human Resources Manager Learning Care Group Elizabeth Hewitt Gibson Account Manager Lee Hecht Harrison John Greer Human Resources Director Earl Scheib, Inc. Alena Jajko Manager Operations QualStaff Resources Kristi B. Learn Human Resources Coordinator The Automotive Group Heather Perrin Recruiter Biogen Idec David Shon Workforce Planning and Recruitment Recruiter Sharp HealthCare Scott Silver-Hill President QualStaff Resources Shawn Stout Human Resources Generalist Retirement Capital Group TH E R ES O U R C E 7 J A N U A R Y 2 00 5 Legal/Legislative Update (Continued from page 5) EEOC Issues Guidance on Hiring Employees with Intellectual Disabilities The U.S. Equal Employment Opportunity Commission (“EEOC”) has published written guidance for addressing issues employers face in hiring, accommodating, and preventing harassment of employees with intellectual disabilities. The EEOC undertook the project to advance the goals of the Bush administration’s “New Freedom Initiative” announced in 2001. The goals of the initiative include expanding educational and employment opportunities for individuals with disabilities. The EEOC defines the term “intellectual disability” to include individuals with: (1) an IQ below 70-75; (2) significant limitations in adaptive skill areas (basic skills needed for everyday life); and (3) a disability that originated before the age of 18. Employers should also note that such disabilities will not necessarily be obvious from an individual’s appearance. While the EEOC emphasizes that individuals with intellectual disabilities often have other impairments as well, such as cerebral palsy, seizure disorders, and hearing and vision impairments, such impairments must be considered in isolation, as well as in combination with the intellectual impairment to determine whether they rise to the level of a disability under the Americans with Disabilities Act (“ADA”) or under California’s Fair Employment and Housing Act (“FEHA”), which maintains a very different legal definition of disability than the ADA. The EEOC cautions that employers may not ask during the hiring process prior to making a job offer whether an applicant has an intellectual disability, takes medica- tion, has been hospitalized, or is currently receiving psychiatric treatment. Nor may an employer ask a third party, such as a family member, social worker, or job coach, any questions it could not ask the applicant directly. Of course, it remains acceptable to ask whether a candidate can perform specific, job-related tasks. In addition, if an employer learns that a job candidate has a child with an intellectual disability, the employer may not deny employment because of a belief that the child’s disability will cause the employee to be absent from work frequently. This would be an “association” form of disability discrimination prohibited under the ADA and FEHA. After an offer of employment is made, the employer may ask questions about the applicant’s health or disability and may require a medical examination, as long as all applicants are treated the same in this (Continued on page 9) TH E R ES O U R C E 8 J A N U A R Y 2 00 5 Legal/Legislative Update (Continued from page 8) regard. During employment, employers must keep medical information regarding the person’s intellectual disability confidential in the same manner that any other medical information is kept confidential to comply with the ADA. The EEOC also notes that persons with intellectual disabilities may need reasonable accommodations of various types in order to apply for, interview for, or perform a job. Accommodations might include: • altering the interview process to allow a candidate to demonstrate skills he/she may not be able to describe verbally; • reading or interpreting application materials for a person with limited ability to read or understand complex information as a result of an intellectual disability; • exchanging non-essential job functions between employees; • providing additional time and/or guidance for skills to be learned during job training; • allowing the employee to use a job coach who: provides monitoring, training and support to the employee, encourages appropriate social interaction, and assists the employer and employee in determining an appropriate reasonable accommodation; • modifying work station placement to maximize the employee’s ability to concentrate; • provide help in understanding job evaluations by allowing the employee to bring another person along to a job evaluation or disciplinary meeting to assist with understanding the result of or the purpose of the meeting. As with other disabilities under the ADA, an employer is required to initiate a discussion about the need for an accommodation if the employer: (1) knows that the employee has (Continued on page 12) TH E R ES O U R C E 9 J A N U A R Y 2 00 5 TH E R ES O U R C E 10 J A N U A R Y 2 00 5 Silent Auction and Door Prize Donors Our grateful thanks to the following individuals and organizations who donated gifts for our Holiday Silent Auction and Door Prizes. We appreciate their support and encourage you to patronize them for products or services you may need in the future. A-Star Staffing 4 Seasons Aviara Accomplishment Coaching Sandra Fichter Accounting Advantage Ace Relcation A-Check America AMN Healthcare Anheuser Busch Anthony's Seafood Appleone Employment Services Bernard Hodes Group Bonnie Burn Training Bradford Renaissance Portraits Brook Furniture Rental Business Challenges Cafe Sevilla Camille Primm Cathy Kachur Century 21 Claritas Classified USA Clear View Eyes Coffee Ambassador Cox Communications Dimension One Spas Don Phin Drake Beam Morin Employee Training Institute Enterprise rent a car Fragomen, Del Rey, Bernsen, and Lowey, LLP Golden Hour Data Systems Headfinders HR Results HR Smart HR Solutions Island Blossoms International ImproVentures Integrity Staffing JenMark Industries JWT Specialized Communications Karl Strauss Brewing Company Lee Hecht Harrison Management Assist Marsh Merck Research Labs Metabolife Mitchell International Morrison and Forrester N.E. Fried and Associates Oakwood On Call Employee Solutions San Diego Padres Pat & Oscars Payrolling.com PETCO Prudential California Quicksilver Moving and Storage Relocation Coordinates Restaurants on the Run Right Management Rowley Portraiture San Diego Convention Center San Diego Custom Baskets San Diego Daily Transcript San Diego Zoological Society SDSU Extended Studies Sea World Sharp Healthcare Shea Homes Smith Barney Speak for Success TLC Staffing Taylor Investments The Anthony Robbins Company The Corporate Basket The Epler Company The Fish Market The Plotkin Group The Perfect Wedding Guide Thomas BUI Lifestyle Total Document Solutions Training Solutions TRI-AD United Way US Healthworks Walter Anderson TH E R ES O U R C E 11 J A N U A R Y 2 00 5 Legal/Legislative Update (Continued from page 9) an intellectual disability, (2) knows, or has reason to know, that the employee is experiencing workplace problems because of that disability, or (3) knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation. The EEOC notes that people often misperceive that employees with intellectual disabilities are more susceptible to workplace accidents and pose an increased safety risk. However, employers may not refuse to hire a disabled person unless the person in fact poses a direct threat to his/ her own health or safety or that of others in the workplace. An employer’s assessment of “direct threat” must be based on objective evidence and not fears, myths, or stereotypes. An evaluation of objective evidence could include an examination of: (1) the duration of the risk, (2) the nature and severity of the potential harm, (3) the likelihood that it will occur, (4) the imminence of the potential harm, and (5) whether a reasonable accommodation will reduce the risk of harm. Mere speculation is insufficient. The EEOC confirms that employers may discipline persons with intellectual disabilities for misconduct as they would other workers. However, conduct rules must be job-related and consistent with business necessity, and must be uniformly enforced. A large percentage of ADA discrimination claims brought by persons with intellectual disabilities allege harassment based on disability. Acts of harassment may take the form of verbal abuse, graphic and written statements, or physically threatening or humiliating conduct that are sufficiently severe or pervasive as to be subjectively hostile to the recipient and to a reasonable person. In sum, accommodating intellectually disabled individuals poses some fairly unique issues for employers, particularly with respect to the interactive process. The EEOC’s Q&A offers useful general guid- ance concerning these and related issues, but each situation should be assessed on an individualized and fact-specific basis. Additionally, employers should: • review job descriptions – to ensure they list all of the essential functions, including intellectual abilities, as appropriate; • review the company’s accommodation protocols and policies – to ensure they comply with applicable law and incorporate best practices; • review anti-harassment and discrimination policies – to ensure they include mental and physical disabilities as protected characteristics; and • provide appropriate training re garding these and related issues. Text of the full, 20-page guidance, including examples of conduct the EEOC would determine to be discriminatory, can be (Continued on page 13) TH E R ES O U R C E 12 J A N U A R Y 2 00 5 Legal/Legislative Update (Continued from page 12) found on the EEOC’s website at http:// www.eeoc.gov/facts/ intellectual_disabilities.html. JUDICIAL UPDATE Amendment to FEHA Imposing Personal Liability Does Not Apply Retroactively In McClung v. Employment Development Department, the California Supreme Court held that the Legislature’s amendment of the California Fair Employment and Housing Act (“FEHA”), which imposed personal liability on individual employees for workplace harassment, does not apply retroactively. Lesli Ann McClung (“the Employee”) filed a claim of hostile work environment harassment against the Employment Development Department (“the Employer”) and Manuel Lopez (“the Coworker”). The trial court granted summary judgment for both the Employer and the Coworker, but the court of appeal reversed as to the Coworker. In doing so, it held that the Coworker was indeed a coworker, not a supervisor, and applied an amendment to FEHA that imposes personal liability on coworkers even though the amendment postdated the allegations in the lawsuit. The California Supreme Court reversed. The Court noted that in Carrisales v. Department of Corrections (1999) 21 Cal.4th 1132, it interpreted FEHA as imposing “on the employer the duty to take all reasonable steps to prevent . . . harassment,” but determined that FEHA did not impose “personal liability for harassment on nonsupervisory coworkers.” Subsequently, the California Legislature amended FEHA, Government Code section 12940(j), to provide that coworkers could be personally liable. The amendment also stated that it is “declaratory of existing law.” In McClung, the California Supreme Court held that the amendment effected a change in the law, rather than merely clarifying it, by overruling a decision of the Court. The Court stated that the Carrisales decision finally and definitively interpreted FEHA as not imposing personal liability on nonsupervisory coworkers and that the Legislature, therefore, had no power to decide that the later amendment merely “declared existing law.” The Court held that the amendment does not apply retroactively to alleged harassment in the workplace occurring before the amendment. Waiting Time Penalties under the Labor Code In Smith v. Superior Court (2004) 123 Cal.App.4th 128, Amanda Smith (“the Employee”) was hired by L’Oreal (“the Employer”) to work one day as a hair model in a show presented by the Employer. For this work, the Employee was to be paid $500. The Employee completed her one-day assignment, but was (Continued on page 15) TH E R ES O U R C E 13 J A N U A R Y 2 00 5 TH E R ES O U R C E 14 J A N U A R Y 2 00 5 Legal/Legislative Update (Continued from page 13) not paid until nearly two months later. On behalf of herself and other similarly situated hair models, the Employee filed a class action lawsuit alleging several causes of action, including violation of Labor Code sections 201 and 203. These sections require the immediate payment of wages to an employee upon the employee’s “discharge,” and impose “waiting time” penalties for the failure to timely pay. The trial court granted summary judgment in favor of the Employer, concluding that the Employee was not “discharged” from her employment, as required to trigger the provisions of the Labor Code authorizing a “waiting time” penalty. The Employee then sought review from a California court of appeal. The court of appeal, however, agreed with the trial court, explaining that the statutory language of Labor Code sections 201 and 203 demonstrates that “discharge” requires an affirmative ac- tion of an employer that will be generally involuntary on the part of the employee. There is no “discharge” where an employee resigns, quits, or completes the scope of the task that he or she is hired to perform. Thus, because the Employee was not “discharged,” she was not entitled to any “waiting time” penalties under the Labor Code. Of course, it is important to note that this decision will not allow an employer to wait an unreasonable amount of time to pay an employee who resigns, quits, or completes the scope of the task that he or she was hired to perform. An employee may still seek redress from a court for such conduct. Smith merely limits the circumstances under which employees may recover “waiting time” penalties. This column is intended to provide general information and does not constitute legal advice in any individual case. Since facts differ in each specific situation, you should seek the advice of an attorney or other employment law expert. TH E R ES O U R C E 15 J A N U A R Y 2 00 5 SHRM Leadership Conference Alexandria, VA Law Day Program Information (Continued from page 3) SD SHRM Executive Director, Gail Dill, with incoming SD SHRM President Ann Towle-Mason, MA, SPHR; SHRM President and CEO, Susan R. Meisinger, SPHR; SD SHRM President Elect, Chana Anderson, SPHR, at Leadership Conference, SHRM Headquarters in Alexandria, VA. harassment, wrongful termination, investigations, employee medical issues and leaves of absence, wage and hour issues, and policies and procedures. Ms. Douglas is a frequent lecturer in San Diego on various employment law topics. She has been involved in various trade and community organizations, is a 1996 graduate of LEAD San Diego, and is a member of the board of directors of Goodwill Industries of San Diego. Ms. Douglas joined Luce Forward in 1993 after graduating with honors from Duke University School of Law, where she was named the Outstanding Woman Law Graduate and was a member of the Order of the Coif. She received her A.B. degree from Stanford University in 1989. (Continued on page 17) A Message from your President (Continued from page 2) * * * Chana Anderson, SPHR, with CA SHRM President Linda Magyar, SPHR; Pacific West Region Area Manager Marilyn Hoppen, SPHR; Ann TowleMason, MA, SPHR, SD SHRM President. Improving our communication efforts with our members and within the community; Increasing pass-rates for those who participate in our PHR/SPHR test preparation courses in San Diego County; and Assisting those HR professionals who are in transition. It is a great honor and a pleasure to be serving as your President in this very exciting year. I want to thank Cecile Bereal and each of you for allowing me this amazing leadership opportunity. I am extremely impressed with the energy and enthusiasm of the highly qualified and dedicated Board of Directors that you have approved for 2005. Each of the board members is looking for volunteers to assist them in their efforts – please contact our Executive Director, Gail Dill, at sdshrm@sdshrm.org to volunteer. This year, more than ever, we need YOU to get it done! “The highest reward for a person's work is not what they get for it, but what they become because of it.” John Ruskin, Submitted on 2 November 2004 by Caitlin Rohrer, Girl Scouts - Trillium Council, Pennsylvania SD SHRM President Cecile Bereal, MA, with SHRM Chair Johnny Taylor, Jr., JD, SPHR, and SD SHRM Executive Director Gail Dill. TH E R ES O U R C E 16 J A N U A R Y 2 00 5 Law Day—Program Information (Continued from page 16) 8:30-10:00 am Track 1: Harassment Sexual harassment litigation continues to soar and although sexual harassment continues to be the most common claim, other types of harassment claims are being litigated more and more frequently. This session will explore the latest trends in the sexual harassment arena, including religious harassment, national origin harassment, and whistleblower harassment. Thomas S. Ingrassia, is a shareholder in the law firm of Klinedinst PC and is chairperson for the firm's Employment Law Department. As such, Tom regularly works with human resource specialists to: develop and enforce appropriate employment practices and policies; investigate claims of employee harassment/misconduct; and to defend all forms of employment litigation. Tom is frequently invited to address corporate management and human resource or- ganizations regarding various employment issues, and in fact, was the guest speaker at the August, 1996 SHRM general meeting. Tom was SD SHRM President in 2002, and enjoyed seven years on the Board of Directors. He also served two years as Vice President of Membership, two years as Vice President of Legislation, one year as President Elect, and last year served as Immediate Past President and Chair of the Workplace Excellence Awards. Tom left the board in December 2003 and he will be missed. He made a valuable contribution to SD SHRM. Tom was born and raised on Long Island (New York), and attended the State University of New York at Albany, where he graduated with honors, earning a Bachelor of Science degree in accounting. He then attended Boston University School of Law, where he earned his Juris Doctor degree. Tom moved to San Diego in 1990. He and his wife, Jennifer, have their hands full with their three children. 8:30-10:00 am Track 2: Corporate Ethics for All Employers: Corporate Compliance and Integrity Corporate ethics should be a concern for every employer, not just publicly traded companies who are faced with the Sarbanes-Oxley Act compliance issues. We'll show you how to develop a corporate responsibility policy and guard against retaliation claims by whistleblowers. Merrili Escue is Of Counsel in the San Diego office. She advises employers on all aspects of the employer/employee relationship, and legal compliance with state and federal employment laws. Merrili also represents employers in all types of employment litigation, including claims for harassment (Continued on page 18) TH E R ES O U R C E 17 J A N U A R Y 2 00 5 Law Day—Program Information (Continued from page 17) and discrimination, and the defense and prosecution of trade secret claims. She has represented employers in jury trials, bench trials, and in administrative hearings before various agencies. Areas of Practice: Labor & Employment Law, Trade Secrets Protection, Wrongful Termination, Employment-Related Litigation. Bar Admissions: California, 1996. Education: University of San Diego School of Law, San Diego, CA 1996 J.D. Honors: Cum Laude. Law Review: Law Review, Member and Comments Editor Recipient: American Jurisprudence Awards for Property, Civil Procedure, and Constitutional Law; the Kaplan Merit Scholarship; and the Brundage Zelman Award for Excellence in Labor Law Studies. University of Southern California, Los Angeles, CA 1987 B.A., International Relations 10:15 - 11:45 am Track1: Benefits Law Update This session will focus on key statutory and regulatory changes that will impact your health and retirement plans during 2005, including trends in HSAs and new mandatory domestic partner coverage. Timothy G. Verrall is associated with the Orange County office of Morrison & Foerster, where he advises a broad range of clients in the tax, labor, and securities aspects of employee benefit programs. He advises clients on a wide variety of benefit plan issues arising under ERISA, the Internal Revenue Code, and the Federal securities laws including: The design, implementation, and administration of pension, cash balance, profit-sharing, Section 401(k), and employee stock-ownership plans, Section 403(b) tax-sheltered annuities, Section 457 deferred compensation plans, flexible benefit or "cafeteria" plans, voluntary employee beneficiary associations “VEBAs”), other employee welfare plans such as medical, dental, disability, life insurance and retiree health plans, and non-qualified benefit plans including supplemental executive retirement plans (“SERPs”) and excess benefit plans. The resolution of plan compliance issues through both the IRS’s and Department of Labor’s voluntary correction programs. Fiduciary and prohibited transaction rules under ERISA. Mr. Verrall drafts and reviews plan documents and amendments, summary plan descriptions and other plan materials and works with the IRS to obtain approval of new tax-qualified plans as well as amendments to existing tax-qualified plans. He also regularly represents clients in connection with government investigations and audits of benefit plans. In addition, Mr. Verrall has substantial experience dealing with issues arising under COBRA and HIPAA, including the HIPAA privacy and transaction standards rules. Mr. Verrall frequently deals with the employee benefit and executive compensation issues that arise with corporate transactions. He performs due diligence on em- TH E R ES O U R C E 18 J A N U A R Y 2 00 5 Law Day—Program Information (Continued from page 18) ployee benefit matters, and reviews employee benefit provisions in transaction documents. Mr. Verrall also counsels sellers as to the most appropriate disposition of their existing benefit plans, often involving plan mergers and spin-offs, and he works with buyers in transitioning employees of the acquired entity into new employee benefit programs. Mr. Verrall received his B.A. magna cum laude from Mississippi State University and his J.D. cum laude from Tulane Law School. Prior to joining Morrison & Foerster, he was a member of the employee benefits group of McAfee & Taft in Oklahoma City. Mr. Verrall began his legal career as an attorney-advisor in the U.S. Department of Labor in Washington, D.C. Mr. Verrall is admitted to practice in California and before the Supreme Court of Oklahoma, as well as the U.S. District Courts in the Northern and Western Districts of Oklahoma and the U.S. Court of Appeals for the Tenth Circuit. Mr. Verrall is a member of the board of directors for the Orange County Chapter of the Western Pension & Benefits Conference and currently serves as chair of the Chapter’s annual conference committee. He is also a member of the Society of Human Resource Managers, Professionals in Human Resource Administration and the Tax Sections of the American Bar Association and the California State Bar Association. He is a frequent speaker on employee benefits topics and is the co-author of “Employee Benefit Plans in Mergers and Acquisitions,” 25 Okla. City Univ. L. Rev. 435 (2000). 10:15 - 11:45 am Track 2: The 10 Most Common Employment Law Mistakes Let’s face it. No matter how much time we dedicate to keeping ourselves current, few HR professionals can keep up with all the statues that include employment related protections. As a result, many companies find themselves in the position of having to defend themselves for unwittingly violating one of these protections. This seminar will focus on the 10 most common pitfalls, including tips on how to audit your employment practices. Fred Plevin is the managing partner of Paul, Plevin, Sullivan & Connaughton, a San Diego law firm specializing in the representation of California employers. Since starting his legal career in 1986, Mr. Plevin has practiced exclusively in the area of labor and employment law, representing private companies and public agencies throughout the state. His practice consists of defending litigated employment claims, providing advice and counsel regarding a wide variety of employment-related issues, and conducting management training. Mr. Plevin is an experienced trial attorney, with an excellent record in jury trials of employment matters including sexual harassment, employment discrimination, wrongful termination, fraud and related claims. He also has extensive experience in other employment-related claims, including trade secrets disputes and wage and hour class actions. His clients include Qualcomm, Gateway, Biogen Idec, Vivendi Universal Games, the University of California, and several California trial courts. Mr. Plevin is a frequent speaker on human resources issues to groups such as UCSD CONNECT, the American Electronics Association, the Compensation and Benefits Association and the American Corporate Counsel Association. Recently, Mr. Plevin was selected by his peers to be included in the 2005-2006 edition of The Best Lawyers in America. Relocation Services for the Corporate Community SERVICES & SOLUTIONS FOR CORPORATE RELOCATION For information about Employee Benefits available through our San Diego Moves™ Program Call Dustin Miasek Director, Corporate Services 619-370-8825 or 619-243-7167 2355 Northside Drive, Suite 320 San Diego, California 92108 TH E R ES O U R C E 19 J A N U A R Y Answers to the Knowledge Bowl 1. C 6. 2. A 7. 3. D 8. 4. C 9. 5. D 10. C D C A B 2 00 5 Registration Committees We had over 220 attendees at our Holiday Party with eight volunteers needed to complete the registration process and setup. They were: Sherri Beardsley, PHR; John De Witt; Michelle Deitrich; Ellen Edwards; Laurice Flasnick, SPHR; Judie Gianturco; Joyce Sylvestro Salender and Leslie Thorp. They all made the reservation process run very smoothly. We appreciate their extra time! 1. Knowledge Bowl Which of the following types of global assignments is intercultural understanding and skills critical to success? A. developmental assignments B. functional assignments C. strategic assignments D. technical assignments The process of unionization may begin in one of two ways, including A. a request from individual workers expressing a desire to unionize. B. a refusal by management to communicate with the union. C. a change in state law regarding open shops. D. an inquiry from the National Labor Relations Board. People decide the favorability of their outcomes by comparing them with the outcomes of others, given their relative situations. This decision involves the concept of A. procedural justice. B. just treatment. C. equitable treatment. D. distributive justice. The nature and extent of the penalty issued by OSHA officials depends on A. whether OSHA had previously notified the employer about the violations. B. the extent to which the employer had cooperated with the OSHA officials. C. the type and severity of the violations. D. whether the employer had prior knowledge of the violations. Social security can be classified as a(n) A. voluntary B. insurance C. social D. security benefit. 2. Please call the SD SHRM Office if you are interested in helping at a future meeting. Your participation benefits SD SHRM and, 3. in the process, you will become better acquainted with other members. Get on board! 4. 5. A Forum for Compensation and Benefits Professionals _______________________________________________________ Upcoming Events Dinner Meeting January 26, 2005 Fred Gerson, CFO of the San Diego Padres "Baseball Economics & Sports Industry Compensation" ___________________________________________ (Continued on page 21) For information and/or registration: www.cbasd.com or (858) 410-8856 Roy Burchill, CBA President TH E R ES O U R C E 20 J A N U A R Y 2 00 5 Knowledge Bowl (Continued from page 20) CALENDAR OF EVENTS January 11, 2005 NHRA - Breakfast DoubleTree Hotel Hazard Center 7:30 AM to 9:30 AM Topic: Legal Update Speaker: Chris Hoffman of Fisher and Phillips $25 Members / $35 Non Members Call 619-645-8610 for reservations or Register online: www.humanresources.org 6. An organization establishes an ESOP by A. deducting a small amount from each employee's pay for the purchase of stock. B. providing upper management with a special bonus. C. using its stock as collateral to borrow capital from a financial institution. D. having its profits distributed with favorable tax treatment. is conducted as part of the day-to-day working relationship A(n) between a manager and an employee. A. HR functionary B. systematic appraisal C. HR evaluation D. informal appraisal Which of the following is a major objective of the Fair Labor Standards Act? A. give labor unions the right to organize B. promote safe working conditions C. establish a minimum wage floor D. outlaw child labor Which of the following is a limitation of committee assignments as a development method? A. Committee assignments can become time-wasting activities. B. Doing the work gets priority over learning. C. It can be a broadened experience. D. There is no guarantee that the trainee can perform the assignment well. Which of the following is true about on-the-job training? A. It is less disruptive to the work flow. B. It is flexible and relevant to what employees do. C. It is more expensive as compared to classroom training. D. Supervisors are better prepared to teach their own subordinates. For answers see page 19 7. January 12, 2005 DNCPA - Luncheon Windmill Restaurant—Carlsbad 11:30 AM to 1:30 PM $20 pre-registered / $ 25 At the door Call 800-983-9704 for rsvp & details 8. January 19, 2005 Mark your calendars - SD SHRM Law Day Hilton La Jolla Torrey Pines Four Morning breakout sessions plus Luncheon Keynote Speaker: Johnny Taylor, SHRM BOD President and Afternoon Legal Update with Bob Levy and Kelly Douglas of Luce Forward Cost: $99 M / $169 NM 9. January 20, 2005 ECoPA - Luncheon Meeting The Brigantine Restaurant 11:30 AM-1:00 PM $30 Members / $35 Non-Members Call Susan Duva 619-466-8797 rsvp & details www.ecpa-sd.net 10. January 26, 2005 ASTD - Chapter Luncheon Meeting Handlery Hotel Mission Valley 11:30 pm Orientation / 12 Noon Lunch $30 M / $40 NM (pre-reg) Register online: www.astdsandiego.org or Call 858-541-ASTD (2783) June 19 - 22, 2005 SHRM Conference 2005 San Diego Convention Center VOLUNTEERS NEEDED! One conference day free for 6 consecutive hours volunteer time Sign up on www.shrm2005.org TH E R ES O U R C E 21 J A N U A R Y 2 00 5 Law Day—Schedule Time 8:00 am Track 1 Registration and Continental Breakfast Track 2 Topic 8:30 am -10:00 am Breakout Sessions Harassment – latest trends in the area of harassment, including religious, national origin and whistleblower harassment Benefits Law Update – key statutory and regulatory changes that impact your day-to-day activities including trends in HSAs and mandatory domestic partner coverage. Speaker Tom Ingrassia, Esq. Klinedinst, Inc. Topic Corporate Ethics for All Employers: Corporate Compliance and Integrity - How to Develop and Implement a Corporate Responsibility Policy The 10 Most Common Employment Law Mistakes – Pitfalls, conducting audits, training Speaker Merrili Escue Fisher & Phillips 10:15 am - 11:45 am Breakout Sessions Tim Verral, Esq. Morrison & Foerster Fred Plevin Paul, Plevin, Sullivan & Connaughton. 12:00 noon - 1:15 pm 1:45 pm - 3:15 pm Lunch Keynote Address by Johnny Taylor, Chairman, SHRM Legal Update – High Level Overview Bob Levy and Kelly Douglas, Luce Forward THE RESOURCE SAN DIEGO SHRM Pinnacle Award PRESORT STANDARD Winner U.S. POSTAGE PAID PERMIT NO. 2325 SAN DIEGO, CA ADDRESS SERVICE REQUESTED P. O. BOX 19311 SAN DIEGO, CA 92159-0311 TH E R ES O U R C E 22 J A N U A R Y 2 00 5