FUNCTIONAL AREA #2 EMPLOYMENT & EMPLOYEE … Relations_P1_SLIDES.pdfSexual Harassment . The Facts About Sexual Harassment. Pamphlet . AB 1825 • Employers with . 50+ employees •

©2017 TPO - The HR Experts All Rights Reserved. www.tpohr.com

FUNCTIONAL AREA #2 EMPLOYMENT & EMPLOYEE

RELATIONS

Presented by:

Gina de Miranda, M.A., SPHR-CA, SHRM-SCP TPO Bilingual Consultant

PHRca Instructor [email protected]

©2017 TPO - The HR Experts All Rights Reserved. www.tpohr.com

FUNCTIONAL AREA #2 Employment &

Employee Relations

EXAM-SPECIFIC OVERVIEW “Getting it in to Context”

FUNCTIONAL AREA #2 EMPLOYMENT & EMPLOYEE RELATIONS

This area is worth 46% of your test score Responsibilities under this functional area: • Develop and implement policies, practices and procedures to comply with state laws

regarding pre-employment and hiring. • Develop and implement policies, practices and procedures to comply with state laws

regarding employment and termination of employment. • Ensure compliance with state laws regarding pre-employment and hiring,

ongoing employment and termination. • Ensure compliance with state harassment and discrimination prevention laws. • Establish and administer documentation and records retention policies and

procedures required under state law governing employment and employee relations.

©2017 TPO-The HR Experts All Rights Reserved. www.tpohr.com

This area is worth 46% of your test score


Knowledge: • Provisions of the Fair Employment and Housing Act (FEHA), including the

interactive process and reasonable accommodations • California Labor Code section 132a • Whistleblower protections • Pre-employment and hiring procedures (for example: drug testing, background

checks, consumer credit reports, the California Investigative Consumer Reporting Agencies Act (ICRAA) and the California Consumers Reporting Act (CCRA), postings and individual notices

• Requirements related to privacy and security (for example: permissible employment application procedures and protection of personal data)


This area is worth 46% of your test score Knowledge Continued… • Rules regarding employment of minors • Employment Development Department (EDD) requirements • Non-compete, non-disclosure, invention assignment agreements and the

Uniform Trade Secrets Act • Individual employee rights (for example: California's Private Attorneys General

Act, language translation requirements and literacy assistance)

• Required supervisory training for sexual harassment prevention • California WARN



This area is worth 46% of your test score Knowledge Continued…


• Required new hire and termination notices • Requirements for employers with state contracts (for

example: drug-free workplace, anti-discrimination requirements and wage and hour requirements)

• Regulations regarding use of medical marijuana • Legal requirements for postings and notices • Documentation and records retention requirements


https://www.calchamber.com/hrcalifornia/hr-library/discrimination/discrimination-reporting-requirements/Pages/discrimination-reporting-requirements.aspx

CALIFORNIA’S DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING

The agency charged to protect the people of California from unlawful discrimination in employment, housing and public accommodations and to prevent hate-fueled violence.


WHAT IS THE DIFFERENCE BETWEEN THE DFEH AND THE FEHA?

• FEHA is the Act – Fair Employment and Housing Act

• DFEH is the Department that administers the Fair Employment and Housing Act


THE PROTECTED CLASSES UNDER THE FAIR EMPLOYMENT AND HOUSING ACT

• Race • Color • Religion • Sex • Gender • Gender Identity • Gender Expression • Sexual Orientation • Marital Status • National Origin • Ancestry • Mental and Physical Disability • Medical Condition

• Age • Military or Veteran Status • Pregnancy, Childbirth, or Related Medical

Condition • Denial of Medical and Family Care Leave • Pregnancy Disability Leave • Retaliation for protesting illegal discrimination

related to one of these categories • Reported patient abuse in tax supported

institutions


“COVERED EMPLOYERS” UNDER THE FEHA

A “COVERED” employer is: • Private California employers with five or more

employees during 20 or more calendar weeks • All public employers • Private employers from other states with one

employee in California


WHICH EMPLOYERS are GENERALLY EXCLUDED FROM FEHA?

Religious Nonprofit Organizations


WHAT are PROHIBITED EMPLOYMENT PRACTICES BASED on PROTECTED STATUS?

• Recruitment • Hiring • Promotion • Renewal of employment • Selection for training or apprenticeship • Discharge • Discipline • Tenure, Terms, Conditions, or Privileges of employment


ALL EMPLOYEES Must Receive

DFEH’s Sexual Harassment

The Facts About Sexual Harassment

Pamphlet

AB 1825 • Employers with 50+ employees • Provide 2 hours of interactive training • To ALL Supervisors • Every 2 Years • New Supervisors: Within 6 Months of

Promotion to their New Position

CALIFORNIA’S REQUIREMENTS for SEXUAL HARASSMENT TRAINING


EXAMPLES OF RELIGIOUS DISCRIMINATION UNDER CALIFORNIA LAW

• Repetition of Offensive Remarks/Jokes • Segregation Based on Religion • Failure to Accommodate:

– Requests for flexible scheduling – Voluntary shift substitution – Job reassignment requests – Requests for workplace policy modifications


The DFEH Complaint Process:

• Intake • Filing • Investigation • Conciliation • Litigation • Remedies • “Right to Sue” Process

THE DFEH COMPLAINT PROCESS


RECRUITMENT & SELECTION


• Non-Discriminatory (State & Federal) • Uphold “At-Will” • Avoid spoken/unspoken misleading enticements

to leave current employment BEST PRACTICES:

– Job Description (ADA Compliant) – Legally Sufficient Employment Application – Standardized/Consistent

• Sourcing • Screening • Interviewing • Job Offer • On-Boarding

– Training for ALL Hiring Parties

CALIFORNIA’S ONLINE PRIVACY PROTECTION ACT

• It requires companies (including employers) to provide information about what organizations that the website will be sharing this information with and what the website’s “tracking policies” are.

• Any website that fails to comply with this policy, must post such a policy within 30 days of notification by the state.

This law was passed in 2003 and took effect in 2004.


BACKGROUND CHECKS & TESTING

Background Checks: • ICRAA – California Investigative Consumer Reporting Agencies Act

– CA employers may not ask an outside agency (i.e.: TPO) to perform a background or credit check on an applicant or employee in CA without first obtaining the individual’s consent.

– Proper notice must be given to the individual. – Requires providing the individual an opportunity to request a copy of the report. – The employer’s notice must be clear and conspicuous on a form that contains only the

disclosure. – The disclosure must include very specific information.

• FCRA – The Fair Credit Reporting Act (FCRA) – A federal law that governs how a credit reporting agency (CRA) handles credit information. It

is designed to protect the integrity and privacy of credit information.


CREDIT REPORTS

Can Only Be Obtained For: • State Department of Justice jobs • Managerial positions that qualify for the executive exemption under California law • Sworn Peace Officers • Positions that involve regular access to personal/financial information like SS,

credit cards, finances, dates of birth • Positions that require the employee to be the named signatory on the employer’s

bank or credit card • Positions involving access to confidential or proprietary company information • Positions that involve regular access to $10,000 or more in cash • Employees of financial institutions


The consent form that the applicant signs must disclose the following: • The employer’s intention to obtain an investigative consumer report • That this consumer report is being sought for permissible employment

purposes • That this report may contain information on the employee or applicant’s

character, general reputation, personal characteristics and lifestyle • The name, address and telephone number of the reporting agency. • The nature and scope of the investigation being requested • Obligations of the agency, such as how the consumer can view the file if they so

desire. • AND, if the employee wishes a copy of the report, the employer must send it

to the employee within three business days of receipt by the potential employer


APPLICANT CONSENT & DISCLOSURES

TESTING

Testing: • There is a fine line between thoroughly reviewing a

candidate and violating his/her privacy. • Any tests used must have validity with reference to

the job for which the candidate is being considered. Agility tests for accounting clerks will not fly.

• The test must be validated (i.e. proven) to measure the personality trait or ability that it purports to measure and the job must require that particular trait, skill or ability


CRIMINAL RECORDS

You will need to know: • U.S.C 1829 Labor Code Section 432.7 • It is unlawful for an employer or other covered entity to see

information about an applicant regarding any: (a) Arrest or detention that did not result in a conviction (b)Any conviction for which the record has been judicially sealed,

expunged or statutorily eradicated (juvenile offense records; misdemeanor conviction for which the probation has been completed or otherwise discharged and arrest for which pre-trial diversion has been successfully completed).


• Drug Tests: – Are generally permissible “pre-employment” if there is a lawful written

policy, the job is offered and the potential employee consents – Must be consistently applied so as not to look discriminatory – May not be “invasive” or violate potential employee’s privacy rights

• Polygraph Tests: – Are prohibited before or after employment in California – May not be a condition for employment – May not be a condition for continued employment – Are notoriously unreliable


DRUG & POLYGRAPH TESTS

…is NOT considered a protected activity under California employment law. ADA & FEHA protections cover employees who:

– Previously abused – Successfully rehabilitated – Do not currently use


MEDICAL MARIJUANA

EMPLOYMENT OFFERS


Should Include: • Job Title • Amount of compensation and its basis • Full time or part-time status • Department that the employee will work in and his/her supervisor • Whether the employee is exempt or non-exempt • An “At Will” statement • Subject to proof that the employee has the right to work in this

country (IRCA) • Contingent upon passing a drug screen (if applicable) or other

tests if applicable • Commission plan if in sales

ONBOARDING


• Preparation • Orientation • Engagement • Follow-up

• Pre-hire Screening • Background Checks • Testing • Investigations & Surveillance during

Employment • Sexual Harassment Investigations • Electronic Communications Monitoring • Person Information • Lifestyle Regulations


PRIVACY LAWS

E-VERIFY

• May only utilize the federal E-Verify system after a conditional offer of employment has been made, or − When doing so is required under federal law or

as a condition for receiving federal funds. • Are not allowed to utilize the system to verify the

status of existing employees. • Must inform employees of any adverse consequence

from e-verify or receive a penalty of $10,000. • E-verify is voluntary except for companies with

Federal contracts and some state contracts.

IN CALIFORNIA EMPLOYERS…



Documents

FUNCTIONAL AREA #2 EMPLOYMENT & EMPLOYEE … Relations_P1_SLIDES.pdfSexual Harassment . The Facts About Sexual Harassment. Pamphlet . AB 1825 • Employers with . 50+ employees •