USERRA – NEW POSTING REQUIREMENTS

What is the Uniformed Services and Reemployment Rights Act (USERRA)?
USERRA is a Federal law that provides reemployment rights following qualifying military service for veterans and members of the National Guard and Reserve. This Act also prohibits employer discrimination based on previous, current or future military obligations.

The US Dept. of Labor (DOL) issued the final version of the new USERRA notice on March 10, 2005. This new notice must now be posted along with other mandated employment posters.

Vantaggio HR is offering this updated posting free. Contact Jennifer Kuebler, Business Development Manager, at jkuebler@vantaggiohr.com to have it sent to you.

EEO COMPLIANCE AND CHANGING DEFINITION OF "APPLICANT"

With the popularity of online recruiting, the definition of an applicant has evolved as it pertains to EEO Compliance. The new proposed guidelines would define a a job seeker as an applicant when: (1) an employer takes actions to fill an available specific employment position, (2) the job seeker expresses interest in stated position, and (3) the job seeker completes the employer’s application procedure for stated position.

Although this new definition has yet to be reflected in the Uniform Guidelines on Employment Selection Procedures, it is likely to be adopted by the EEO sometime this year.

PRE-EMPLOYMENT MEDICAL EXAMINATIONS

California and Federal law requires employers to postpone all job applicants’ medical examinations until after a “real” job offer has been made and all other pre-employment conditions have been met. After a March 4th court ruling against American Airlines for improper screening procedures, it is imperative to remember to collect medical information after all other contingencies have been met. This means that employers should ensure that all background and reference checks have been satisfactorily completed before conducting the pre-employment medical exam. Additionally, it is important to notify applicants of any tests that may be run outside of the scope of generally accepted pre-employment practices.

Recommended Pre-employment Procedures:

• Notify applicants that job offers will be made in writing, as provided by authorized company personnel.
• Ensure that your application contains a statement that failing to complete all required information accurately may result in revoking the job offer or immediate termination.

To obtain help with auditing or developing hiring procedures including customized applications and job offers, contact Jennifer Kuebler, Business Development Manager at, jkuebler@vantaggiohr.com

NEW I-9 FORM!

In May 2005, the U.S. Citizenship and Immigration Service (“USCIS”) issued a revised I-9 Form. The changes to the form are not significant and include changing the name of the form and references to the USCIS instead of the INS. Unfortunately, this new form does not include updates that were made to the lists of acceptable documents. For a copy of the new form of a list of the documents that may be used, please contact Jennifer Kuebler jkuebler@vantaggiohr.com.

The old forms are still allowed to be used until the end of 2005, but the new forms must be used effective 1/1/2006.

PAYING COMMISSIONS

A California Appeals Court has ruled that employers may deduct unearned commissions from future compensation advances without violating the California Labor Code. An employer who advances commissions to employees prior to completion of all conditions that must be satisfied before the commissions are actually earned can charge back any excess advances from future ones. However, it is extremely important to have a well drafted commission plan in place that stipulates the payment conditions as well as any other pertinent terms and conditions of the plan – such as how commissions are handled at the time the employee terminates employment. Employers also need to address exempt vs. non-exempt issues with regards to commissioned employees and should obtain detailed information about the overtime and minimum wage requirements for both inside and outside sales people before implementing any commission plan.

Vantaggio HR has extensive experience in this area and is available to assist in the development of customized compensation and commission plans. Contact Jennifer Kuebler jkuebler@vantaggiohr.com to set up a consultation.

Late last year, Governor Schwartzenegger’s administration issued proposed regulations that affected California’s rules regarding employees’ meal and rest periods. While we are still waiting for these regulations to be formally adopted, if they are implemented, it will be good news for both employers and employees, affording both more flexibility with daily work scheduling.

The new regulations do not change existing law, but clarify when and how employees may take meal breaks:

• Employees are eligible for a ½ hour unpaid meal period for each 5 hour shift worked.
• Employees who work less than 6 hours in a day can mutually agree with the employer to waive the meal period.
• Employees who work more than 5 hours in a day may begin their meal break at any point from the start of the 5th hour of work to the end of the 6th hour.
• Employees who work from 6-10 hours in a day will be able to take their meal period at a time after the 6th hour as long as the employer ensures that the worker had time available for their break prior to the 6th hour.
• Employees who work a 10-12 hour shift, can mutually agree with the employer to waive the 2nd meal period as long as they did not waive the first meal period.

At the current time, if an employee is not provided his/her meal period, the employer can be held responsible for paying the employee one additional hour of pay. Much confusion and many lawsuits have arisen over these issues. What if an employee chose not to take lunch instead of the employer having forced the employee to work through his/her meal period? Was this one hour extra pay constituted wages or a penalty?

Under the new proposed regulations, the one hour of extra pay would be clearly considered a penalty and not wages. The importance of this is that the statute of limitations for back penalties is limited to one year, while for back wages it can be 3 or 4 years.

Additionally, the employer will be considered to have “provided” the meal period as long as the following criteria are met:

• The employer informs the employee, either orally or in writing, of his/her right to take a meal period
• The employer makes the meal period available and affords the employee an opportunity to take it,
  AND
• The employer maintains accurate time records for covered employees in accordance with their applicable Wage Order.

Vantaggio HR will keep you posted about updates in this area and will inform you once the new regulations have been finalized. At that time, it would be wise to review written policies and acknowledgement forms, verify postings, and discuss any changes with employees. For the time being, please do not make any changes to your current policies and make sure that you are requiring employees to take those meal breaks. Please contact us for any help needed in this area.

VANTAGGIO NEWS
For a free gift, visit us in booth #3710 at the SHRM tradeshow!

WHAT?   Society for Human Resource Management (SHRM) 57th Annual Conference and Exposition
WHEN?  June 19-22, 2005
WHERE?  San Diego Convention Center

Join us as we launch our exciting new HR program: r e l a x ™

For a complimentary pass to the Expo Hall and an invitation to our champagne reception, email: jkuebler@VantaggioHR.com or call 949-425-1262 ext. 7.

For more information see SHRM website: http://www.shrm.org/conferences/annual/

Lauraine Bifulco is the President of Vantaggio HR, a Southern California firm providing human resource and management consulting to companies of all sizes. Vantaggio's services include labor law compliance, handbooks, HR hotline and on-site services, new hire paperwork, posters, discipline and terminations, recruitment, HR audits, payroll and bookkeeping, benefits, sexual harassment training, safety, affirmative action plans, compensation, labor commissioner complaints, expert witness testimony, organizational development, M&A consulting, as well as outsourcing of the entire HR function. For more information call (949) 425-1262 or email info@vantaggiohr.com.

The information presented in this article is intended to be accurate and authoritative information on the subject matter covered at the time submitted for publishing. It is distributed with the understanding that Vantaggio HR is not rendering legal advice and assumes no liability whatsoever in connection with its use.

© Vantaggio HR, ltd., 2005