SPECIAL ALERT
COBRA Subsidy Extension Requires Employer and Group Health Plan Administrator Action
Earlier this week President Obama signed the Department of Defense Appropriations Act, 2010, (the "Act") which, among other things, extends the eligibility period for and the length of the COBRA premium subsidy (the "Subsidy"). Introduced earlier this year in the American Recovery and Reinvestment Act of 2009 ("ARRA"), the Subsidy aided "assistance eligible individuals" ("AEIs") who were involuntarily terminated by requiring an AEI's former employer (or insurer, as applicable) to pay 65% of the AEI's portion of the COBRA premium for continued group health plan benefits for up to nine months. ARRA defined an AEI as an individual who is eligible for COBRA coverage because of an involuntary termination from employment that occurred during the period from September 1, 2008 through December 31, 2009. Enacted just before the year's end, the Act makes important changes to the Subsidy and its administration.
First, the Act extends the eligibility period for the Subsidy for an additional two months to include qualified beneficiaries who are involuntarily terminated through February 28, 2010. Notably, the new rule does not require that COBRA coverage begin by February 28, 2010 but that the AEI must experience an involuntary termination of employment by February 28, 2010 to be eligible (even if the COBRA coverage does not begin until March 1, 2010).
Second, the Act provides a longer Subsidy period. Under ARRA, an AEI who continued to qualify could receive the Subsidy for a maximum of nine months. The Act increases the maximum period for receiving the Subsidy to 15 months, which gives AEIs an additional six months of the Subsidy.
Third, an AEI who already reached the end of his or her Subsidy period (a maximum nine months) prior to the enactment of the Act can take advantage of the extension and has additional time to pay the reduced premium under the Subsidy to retroactively continue COBRA coverage. In order to continue COBRA coverage, an AEI has until the later of February 17, 2010 (60 days after the enactment of the Act), or 30 days from the date of the required plan administrator notice, to pay 35% of the premium cost and continue coverage. For example, an individual whose nine months under the Subsidy ran out on November 30 and who did not elect to pay the full premium (without the Subsidy) for December now may pay his or her 35% share of the December premium in January and receive retroactive COBRA coverage for December. In addition, an AEI who continued COBRA by paying the full premium after exhausting initial eligibility for the Subsidy must be reimbursed or given credit for the excess payments (i.e., the additional 65% of the COBRA premium).
Fourth, the Act imposes new notice obligations on plan administrators. On or before February 17, 2010, a plan administrator must send a notice explaining the Act and the changes to the Subsidy to any individual who: (i) qualifies as an AEI on or after October 31, 2009, (ii) experiences a COBRA qualifying event (consisting of termination of employment) on or after October 31, 2009, or (iii) previously qualified as an AEI but either did not timely pay the premium for any period of coverage after the individual exhausted the Subsidy or paid the full premium to continue COBRA coverage after the Subsidy ended. A plan administrator must provide a notice explaining the Act and the changes to the Subsidy to those individuals who experience a qualifying event after December 19, 2009 within the normal time frame applicable to COBRA qualifying event notices.
Employers and group health plan administrators should become familiar with the specifics of the Act and be prepared to provide the requisite notices on or before February 17, 2010. Additional clarification on the Act and the implementation of these changes is expected from the Department of Labor (and possibly the Internal Revenue Service) in the coming weeks.
EmployNews, ParkerPoe, December 22, 2009
Wednesday, December 23, 2009
Sunday, December 13, 2009
9 Steps in Developing an Effective Hiring Process
The Whitford Report
9 Steps in Developing an Effective Hiring Process
1. Define Key Results for the Position by Having Up-to-date, EEO and ADA Compliant Job Descriptions
The first step to successful hiring is always clearly defining what you need. There is nothing more important than clearly and explicitly defining what you need a new hire to do and what accomplishments and experience best prepare someone to do the job. If you aren’t sure what you are looking for; how will you know when you’ve found it?
Prior to interviewing, provide the applicant with a copy of the job description regarding the position for which they are applying. This provides information to the applicant regarding the essential functions of the job, experience and educational requirements, responsibilities and accountabilities for the position. The applicant may “self-eliminate” if the duties of the job are not what they expected. Additionally, allowing the applicant to review the job description may aid you later if the applicant claims they are unable to perform the essential functions of the job.
2. Review the Application and Resume for “Red Flags”
BEFORE interviewing any applicant, ensure the application for employment is filled out completely. That means no items left blank, work history is complete, reference information is complete (including phone numbers) and the application's acknowledgment has been signed authorizing you to verify any and all information contained on the application.
DO NOT interview from a resume in lieu of a completed application. If an applicant writes “see resume” in spaces that should contain detailed information, ask the applicant to complete those sections. If you receive “push back” from the applicant regarding this issue, here is your first “red flag”. Without a fully completed application and signed acknowledgment, you don’t have full authorization to verify the accuracy of information presented by the applicant.
3. Utilize an Interviewing Team
Have two interviewers (stake holders) sit in on the interview. One interviewer asks questions. The other one observes and listens to the candidate and asks follow up questions. After the interview, interviewers compare notes regarding the candidate’s responses, experience, energy, level of interest and demeanor.
The second interviewer often catches something that the primary interviewer missed, and vice versa.
Always have at least a first and second interview process in which the applicant is asked to come back on a different day to interview with the original interviewers or additional interviewers, whichever is applicable to your situation. You may observe differences in the candidate’s demeanor, energy, interest and consistency in their answers.
4. Conduct Structured, Behavioral Interviews
Utilize an interview questionnaire, tailored to the specific job, to ensure you are asking job, experience and performance related questions that will allow you to more accurately compare applicants. By asking the same questions of each applicant you can more easily compare apples to apples. In addition, if an applicant not selected for hire, makes a claim of discrimination you can more easily provide evidence that the interview process was fair and unbiased.
5. Ask Follow-up Questions
The first question asked should elicit the programmed response. The follow-up question gets to the facts. Simple follow-up questions, such as "How did you make that happen?" or "Can you please tell me more?", “What obstacles did you encounter and how did you overcome them?” or “Tell me about a time you …, and what was the outcome” (use an example of the types of issues the applicant is likely to encounter on the job for which you are interviewing.
Excellent candidates will provide you with specific, detailed descriptions of the steps they took with their team members to create results. Weak candidates will provide you with vague answers that lack detail.
Key: The best predictor of future behavior is relevant past behavior.
6. Reference Checks
Ask every candidate to provide you with the name and contact information of their direct supervisors listed in their job history, in addition to two to three additional references (not relatives).
Assure the candidate that references will be verified and will be one part of the decision making process.
Bear in mind, it is not your responsibility to look up phone numbers, addresses or otherwise try to locate the applicants references. A qualified applicant will come to the job interview with their complete reference information. Any applicant that cannot produce the needed information to verify their references and experience is NOT the most qualified applicant.
7. Compare Notes
Holding a discussion with other interviewers immediately or as soon as possible after conducting interviews almost always bears fruit. Insist that all interviewers take detailed notes during the interview. Ideally, within 24 hours after an interview, everyone who interviewed a candidate should meet to discuss the individual's strengths and weaknesses relative to the job being filled.
8. Follow Through
If a part of your hiring process is to verify references, conduct background checks, perform drug and alcohol screenings etc.; ensure you follow all of the steps outlined in your own “hiring process”.
You will need certain personally identifying information and a release by the applicant to perform these activities. Information such as date of birth, maiden name and social security number should ONLY be obtained once you have made a hiring decision.
ALL offers of employment should be made on the contingency of successful completion of all the steps in your hiring process. If after following your hiring process, you determine this is not the most qualified applicant, you may withdraw the offer of employment. Be sure all legal requirements regarding these steps have been followed.
If you need guidance to ensure you are in compliance with these laws, request the assistance of a highly skilled human resources professional.
9. Consistency!
Need I say more?
Please contact TheWhitfordGroup@aol.com for assistance in establishing an effective hiring process, interview script development and supervisory training.
9 Steps in Developing an Effective Hiring Process
1. Define Key Results for the Position by Having Up-to-date, EEO and ADA Compliant Job Descriptions
The first step to successful hiring is always clearly defining what you need. There is nothing more important than clearly and explicitly defining what you need a new hire to do and what accomplishments and experience best prepare someone to do the job. If you aren’t sure what you are looking for; how will you know when you’ve found it?
Prior to interviewing, provide the applicant with a copy of the job description regarding the position for which they are applying. This provides information to the applicant regarding the essential functions of the job, experience and educational requirements, responsibilities and accountabilities for the position. The applicant may “self-eliminate” if the duties of the job are not what they expected. Additionally, allowing the applicant to review the job description may aid you later if the applicant claims they are unable to perform the essential functions of the job.
2. Review the Application and Resume for “Red Flags”
BEFORE interviewing any applicant, ensure the application for employment is filled out completely. That means no items left blank, work history is complete, reference information is complete (including phone numbers) and the application's acknowledgment has been signed authorizing you to verify any and all information contained on the application.
DO NOT interview from a resume in lieu of a completed application. If an applicant writes “see resume” in spaces that should contain detailed information, ask the applicant to complete those sections. If you receive “push back” from the applicant regarding this issue, here is your first “red flag”. Without a fully completed application and signed acknowledgment, you don’t have full authorization to verify the accuracy of information presented by the applicant.
3. Utilize an Interviewing Team
Have two interviewers (stake holders) sit in on the interview. One interviewer asks questions. The other one observes and listens to the candidate and asks follow up questions. After the interview, interviewers compare notes regarding the candidate’s responses, experience, energy, level of interest and demeanor.
The second interviewer often catches something that the primary interviewer missed, and vice versa.
Always have at least a first and second interview process in which the applicant is asked to come back on a different day to interview with the original interviewers or additional interviewers, whichever is applicable to your situation. You may observe differences in the candidate’s demeanor, energy, interest and consistency in their answers.
4. Conduct Structured, Behavioral Interviews
Utilize an interview questionnaire, tailored to the specific job, to ensure you are asking job, experience and performance related questions that will allow you to more accurately compare applicants. By asking the same questions of each applicant you can more easily compare apples to apples. In addition, if an applicant not selected for hire, makes a claim of discrimination you can more easily provide evidence that the interview process was fair and unbiased.
5. Ask Follow-up Questions
The first question asked should elicit the programmed response. The follow-up question gets to the facts. Simple follow-up questions, such as "How did you make that happen?" or "Can you please tell me more?", “What obstacles did you encounter and how did you overcome them?” or “Tell me about a time you …, and what was the outcome” (use an example of the types of issues the applicant is likely to encounter on the job for which you are interviewing.
Excellent candidates will provide you with specific, detailed descriptions of the steps they took with their team members to create results. Weak candidates will provide you with vague answers that lack detail.
Key: The best predictor of future behavior is relevant past behavior.
6. Reference Checks
Ask every candidate to provide you with the name and contact information of their direct supervisors listed in their job history, in addition to two to three additional references (not relatives).
Assure the candidate that references will be verified and will be one part of the decision making process.
Bear in mind, it is not your responsibility to look up phone numbers, addresses or otherwise try to locate the applicants references. A qualified applicant will come to the job interview with their complete reference information. Any applicant that cannot produce the needed information to verify their references and experience is NOT the most qualified applicant.
7. Compare Notes
Holding a discussion with other interviewers immediately or as soon as possible after conducting interviews almost always bears fruit. Insist that all interviewers take detailed notes during the interview. Ideally, within 24 hours after an interview, everyone who interviewed a candidate should meet to discuss the individual's strengths and weaknesses relative to the job being filled.
8. Follow Through
If a part of your hiring process is to verify references, conduct background checks, perform drug and alcohol screenings etc.; ensure you follow all of the steps outlined in your own “hiring process”.
You will need certain personally identifying information and a release by the applicant to perform these activities. Information such as date of birth, maiden name and social security number should ONLY be obtained once you have made a hiring decision.
ALL offers of employment should be made on the contingency of successful completion of all the steps in your hiring process. If after following your hiring process, you determine this is not the most qualified applicant, you may withdraw the offer of employment. Be sure all legal requirements regarding these steps have been followed.
If you need guidance to ensure you are in compliance with these laws, request the assistance of a highly skilled human resources professional.
9. Consistency!
Need I say more?
Please contact TheWhitfordGroup@aol.com for assistance in establishing an effective hiring process, interview script development and supervisory training.
Monday, November 9, 2009
Top 30 Questions Every Employer Should Answer
30 Questions Every Employer Should Answer to Determine Their Risk Factors
1. Briefly describe the nature of your business. How many locations?
2. How many employees?
3. Do you use temporary help or independent contractors?
4. Do you anticipate increasing or decreasing your workforce within the next 6 months? If yes, by approximately what percentage?
5. How many employees are currently in supervisory or management positions?
6. How are the majority of your employees paid? (hourly, salary or other basis?)
7. What procedures are in place to distinguish between exempt vs. nonexempt employees?
8. Do you have a specific hiring process in place?
9. Do you have a specific corrective action and termination process in place?
10. Do you have job descriptions for each position?
11. Do you have an employee handbook?
12. Do you have written grievance procedures and policies?
13. Are you currently utilizing a performance review system?
14. Have supervisors and managers received formal training in sexual harassment avoidance or other anti-discrimination procedures?
15. Do you have a health plan?
16. How are you managing COBRA compliance?
17. How are you managing HIPAA compliance?
18. Do you use consumer reports, such as background checks, credit, DMV, criminal or other reports to make hiring or promotion decisions? Do you reference check each potential new hire?
19. Do you extend credit or allow your clients, vendors, employees to pay for products or services over time?
20. Do you maintain any or all of the following personally or financially identifying information regarding your clients, vendors, employees and applicants such as maiden name, address, social security number, date of birth, bank account info, credit card info, etc.?
21. Who in your company has access to this information?
22. What security steps are in place to protect personally or financially identifying information?
23. What procedures do you currently have in place to notify clients, vendors, employees and applicants if unauthorized access is gained to their protected information?
24. Have you experienced a data breach either paper or electronically in the past year?
25. Have any employment-related claims, grievances, administrative proceedings, demands or lawsuits been made against your company in the last 5 years?
26. How are you currently managing your human resources, employment law and privacy law compliance functions?
27. What are your most pressing issues regarding being an employer?
28. How are you currently addressing these issues?
29. What do you believe the consequences might be if you are out of compliance with federal, state and local employment laws?
30. Based on your answers to the above questions, do you believe you could benefit from the assistance of a highly qualified human resources, employment and privacy law specialist?
If you would like a complimentary risk evaluation of your answers, please contact me at:
TheWhitfordGroup@aol.com
704 905-7749
1. Briefly describe the nature of your business. How many locations?
2. How many employees?
3. Do you use temporary help or independent contractors?
4. Do you anticipate increasing or decreasing your workforce within the next 6 months? If yes, by approximately what percentage?
5. How many employees are currently in supervisory or management positions?
6. How are the majority of your employees paid? (hourly, salary or other basis?)
7. What procedures are in place to distinguish between exempt vs. nonexempt employees?
8. Do you have a specific hiring process in place?
9. Do you have a specific corrective action and termination process in place?
10. Do you have job descriptions for each position?
11. Do you have an employee handbook?
12. Do you have written grievance procedures and policies?
13. Are you currently utilizing a performance review system?
14. Have supervisors and managers received formal training in sexual harassment avoidance or other anti-discrimination procedures?
15. Do you have a health plan?
16. How are you managing COBRA compliance?
17. How are you managing HIPAA compliance?
18. Do you use consumer reports, such as background checks, credit, DMV, criminal or other reports to make hiring or promotion decisions? Do you reference check each potential new hire?
19. Do you extend credit or allow your clients, vendors, employees to pay for products or services over time?
20. Do you maintain any or all of the following personally or financially identifying information regarding your clients, vendors, employees and applicants such as maiden name, address, social security number, date of birth, bank account info, credit card info, etc.?
21. Who in your company has access to this information?
22. What security steps are in place to protect personally or financially identifying information?
23. What procedures do you currently have in place to notify clients, vendors, employees and applicants if unauthorized access is gained to their protected information?
24. Have you experienced a data breach either paper or electronically in the past year?
25. Have any employment-related claims, grievances, administrative proceedings, demands or lawsuits been made against your company in the last 5 years?
26. How are you currently managing your human resources, employment law and privacy law compliance functions?
27. What are your most pressing issues regarding being an employer?
28. How are you currently addressing these issues?
29. What do you believe the consequences might be if you are out of compliance with federal, state and local employment laws?
30. Based on your answers to the above questions, do you believe you could benefit from the assistance of a highly qualified human resources, employment and privacy law specialist?
If you would like a complimentary risk evaluation of your answers, please contact me at:
TheWhitfordGroup@aol.com
704 905-7749
Saturday, November 7, 2009
FTC Red Flags Rules Enforcement Date Extended
For those of you who have been following the multiple effective dates of the FTC's Red Flags Rules it will come as no surprise that the date has been extended once again.
The latest enforcement date was to be November 1, 2009, however, on October 30th the decision was made to extend the effective date to June 2010.
A reprieve, not really, the extension is to provide covered businesses additional time to get their policies, procedures and practices in place before enforcement begins in June.
Please let me know if you need my assistance in determining whether or not you are subject to the Rules and in getting ready for the enforcement deadline. I'm glad to assist.
TheWhitfordGroup@aol.com
www.TheWhitfordGroup.com
704 905-7749
The latest enforcement date was to be November 1, 2009, however, on October 30th the decision was made to extend the effective date to June 2010.
A reprieve, not really, the extension is to provide covered businesses additional time to get their policies, procedures and practices in place before enforcement begins in June.
Please let me know if you need my assistance in determining whether or not you are subject to the Rules and in getting ready for the enforcement deadline. I'm glad to assist.
TheWhitfordGroup@aol.com
www.TheWhitfordGroup.com
704 905-7749
Saturday, October 31, 2009
New EEOC Compliance Poster Requirement
EEOC Releases New Compliance Poster
Last week, the Equal Employment Opportunity Commission published a new version of its "Equal Employment Opportunity is the Law" poster. The poster must be displayed by all employers subject to federal EEO laws, generally meaning those with 15 or more employees. The new poster contains updates addressing the ADA Amendments Act and the Genetic Information Nondiscrimination Act, which takes effect on November 21.
In addition to the new poster, the EEOC has published a supplement that can be placed alongside the 2002 version of the EEO poster. While many private vendors sell these compliance posters to employers, they can also be obtained free of charge through the EEOC's Website, www.eeoc.gov/posterform.html.
ParkerPoe, EmployNews, Issue 544, October 30, 2009
Last week, the Equal Employment Opportunity Commission published a new version of its "Equal Employment Opportunity is the Law" poster. The poster must be displayed by all employers subject to federal EEO laws, generally meaning those with 15 or more employees. The new poster contains updates addressing the ADA Amendments Act and the Genetic Information Nondiscrimination Act, which takes effect on November 21.
In addition to the new poster, the EEOC has published a supplement that can be placed alongside the 2002 version of the EEO poster. While many private vendors sell these compliance posters to employers, they can also be obtained free of charge through the EEOC's Website, www.eeoc.gov/posterform.html.
ParkerPoe, EmployNews, Issue 544, October 30, 2009
Tuesday, October 13, 2009
EEOC Issues Proposed ADAAA Rules
The Equal Employment Opportunity Commission (EEOC) issued proposed regulations implementing the ADA Amendments Act of 2008 (ADAAA). The ADAAA was a Congressional response to a series of U.S. Supreme Court decisions viewed as narrowing the scope of the Americans with Disabilities Act (ADA) by limiting the definition of protected disabled persons. The new law expands and clarifies the definition of who is and who is not disabled.
The proposed rules contain a number of important interpretations of the Americans with ADAAA by the EEOC. These interpretations are important for employers because federal courts generally defer to EEOC regulations when making disability determinations in individual cases.
Some of the important provisions of the new rules include the following:
The proposed rules contain a number of important interpretations of the Americans with ADAAA by the EEOC. These interpretations are important for employers because federal courts generally defer to EEOC regulations when making disability determinations in individual cases.
Some of the important provisions of the new rules include the following:
- A declaration by the EEOC that certain medical conditions will be ADA disabilities in all cases. This appears contrary to the law's requirement for individual impairment assessments.
- Refusal by the EEOC to establish a clear duration requirement for disabilities, bringing into question coverage of short-term impairments such as pregnancy complications.
- Declination by the EEOC of Congress' invitation to clearly establish a definition of significant impairment of a major life activity. These determinations will be left up to individual federal courts.
Comments to the proposed rules must be submitted to the EEOC by November 23, 2009. The ADAAA is already in effect, and regardless of any changes to the proposed rules, the new law significantly expands the ADA coverage to persons not considered to be adequately impaired before the legislation's enactment.
Paraphrased from Issue 539, September 25, 2009, EmployNews, Parker Poe Adams & Bernstein
Monday, September 21, 2009
Can You Still Tell a Joke in the Office?
Jokes in the Office
What about jokes? Can jokes still be told in the office? Yes, but there are a number of topics that are out of bounds.
Discriminatory jokes, jokes about racial issues, gender stereotypes, sexual preference, or any protected class.
Then there are mean-spirited jokes, such as "ugly" jokes. They may not rise to the level of harassment, but its bad judgment to tell them.
If employees forward an inappropriate e-mail joke, that's the equivalent of telling it.
Blonde jokes are inappropriate because they are about women, not hair color, and they tend to demean women. Usually they are not severe or pervasive enough to be illegal. Nevertheless, down the road they could be used as evidence of bias.
Six Critical Messages for Your Supervisors
1. Refrain from engaging in harassment and other inappropriate conduct.
2. Report all complaints of harassment and other inappropriate conduct to Human Resources or a member of management, even if the employee:
• Requests that nothing be done, they are legally obligated to report it.
• Asks for absolute confidentiality, confidentiality cannot be guaranteed. Confidentially will be
to the "degree possible" in the course of an investigation.
• The employee does not use legal buzz words to describe the harassment, i.e. (discrimination.)
3. Respond proactively to harassment and other inappropriate conduct, even if there is no complaint.
• Remember that silence equals tacit support.
• Consult with an HR professional to discuss remedial action.
4. Put an immediate stop to harassment and other inappropriate conduct.
5. Refrain from unlawful retaliation. This is broadly defined, and might include:
•Tangible adverse employment actions
•Other actions affecting material terms and conditions of employment
•Actions independent of employment
6. Respect. Treat your employees respectfully and you'll likely avoid problems.
Paraphrased from: HR Daily Advisor Tip by: Jonathan Segal, a partner in the law firm of Duane Morris LLP in Philadelphia
Jokes in the Office
What about jokes? Can jokes still be told in the office? Yes, but there are a number of topics that are out of bounds.
Discriminatory jokes, jokes about racial issues, gender stereotypes, sexual preference, or any protected class.
Then there are mean-spirited jokes, such as "ugly" jokes. They may not rise to the level of harassment, but its bad judgment to tell them.
If employees forward an inappropriate e-mail joke, that's the equivalent of telling it.
Blonde jokes are inappropriate because they are about women, not hair color, and they tend to demean women. Usually they are not severe or pervasive enough to be illegal. Nevertheless, down the road they could be used as evidence of bias.
Six Critical Messages for Your Supervisors
1. Refrain from engaging in harassment and other inappropriate conduct.
2. Report all complaints of harassment and other inappropriate conduct to Human Resources or a member of management, even if the employee:
• Requests that nothing be done, they are legally obligated to report it.
• Asks for absolute confidentiality, confidentiality cannot be guaranteed. Confidentially will be
to the "degree possible" in the course of an investigation.
• The employee does not use legal buzz words to describe the harassment, i.e. (discrimination.)
3. Respond proactively to harassment and other inappropriate conduct, even if there is no complaint.
• Remember that silence equals tacit support.
• Consult with an HR professional to discuss remedial action.
4. Put an immediate stop to harassment and other inappropriate conduct.
5. Refrain from unlawful retaliation. This is broadly defined, and might include:
•Tangible adverse employment actions
•Other actions affecting material terms and conditions of employment
•Actions independent of employment
6. Respect. Treat your employees respectfully and you'll likely avoid problems.
Paraphrased from: HR Daily Advisor Tip by: Jonathan Segal, a partner in the law firm of Duane Morris LLP in Philadelphia
Wednesday, August 26, 2009
Bullet Proof Documentation - Disciplinary Process – Sometimes You Have to Terminate – Part II
You’ve followed you disciplinary process and you’ve documented your efforts. The employee is still falling short of expectations. Termination of employment is your next reasonable step.
Before you terminate, consider the following:
1. Determine if the employee is in one or more protected classes.
2. Determine the exact basis for the termination. Don’t make it easy on yourself by sugar coating it or think that you can embellish or give the real reason(s) later if the employee files for unemployment benefits or a regulatory charge. You are stuck with whatever you gave as the “reason”. If you later change the reason, it will probably be determined to have discriminated against the employee on whatever basis they alleged.
3. Review the facts and documentation to ensure all your bases are covered. (See part 1, Bullet Proof Documentation).
4. Consult with your HR professional or employment attorney to ensure legality and defensibility of this employment action.
The Termination Meeting:
1. Select the proper setting.
2. Treat the person with respect.
3. Have at least 2 people present, be prepared if you suspect the person may become violent.
4. State the specific reason(s) for the termination.
5. Do not argue or apologize regarding the decision to terminate. Its okay to hear the employee’s side, but do not let it escalate. Additionally, stating that you are sorry you have to terminate implies that the decision was a mistake.
6. Discuss the employee’s final paycheck and severance pay if applicable.
7. Discuss vacation, sick leave or other benefits including COBRA or State Continuation.
8. Have the IT department remove the employee’s access to the computer system while the meeting is in progress.
9. Collect company property.
10. End the meeting.
An employee termination should never be a surprise. A progressive discipline process and an effective appraisal system should have been followed up to this point.
Do not tape record the meeting or allow the employee to record. However, always be mindful that the employee may have a hidden tape recorder and record without your knowledge. Ensure your statements and conduct are always defensible, always assume you are being recorded. If you wouldn’t want your words or actions described in exhibit A in a court room, don’t do it or say it.
The Whitford Group can assist you with any employee relations issue as well as all other employment law related compliance.
Please call or e-mail for your free, no obligation Risk Analysis to determine where you may be out of compliance. Call 704 905-7749 or e-mail TheWhitfordGroup@aol.com
Pleas visit our website at TheWhitfordGroup.com
You’ve followed you disciplinary process and you’ve documented your efforts. The employee is still falling short of expectations. Termination of employment is your next reasonable step.
Before you terminate, consider the following:
1. Determine if the employee is in one or more protected classes.
2. Determine the exact basis for the termination. Don’t make it easy on yourself by sugar coating it or think that you can embellish or give the real reason(s) later if the employee files for unemployment benefits or a regulatory charge. You are stuck with whatever you gave as the “reason”. If you later change the reason, it will probably be determined to have discriminated against the employee on whatever basis they alleged.
3. Review the facts and documentation to ensure all your bases are covered. (See part 1, Bullet Proof Documentation).
4. Consult with your HR professional or employment attorney to ensure legality and defensibility of this employment action.
The Termination Meeting:
1. Select the proper setting.
2. Treat the person with respect.
3. Have at least 2 people present, be prepared if you suspect the person may become violent.
4. State the specific reason(s) for the termination.
5. Do not argue or apologize regarding the decision to terminate. Its okay to hear the employee’s side, but do not let it escalate. Additionally, stating that you are sorry you have to terminate implies that the decision was a mistake.
6. Discuss the employee’s final paycheck and severance pay if applicable.
7. Discuss vacation, sick leave or other benefits including COBRA or State Continuation.
8. Have the IT department remove the employee’s access to the computer system while the meeting is in progress.
9. Collect company property.
10. End the meeting.
An employee termination should never be a surprise. A progressive discipline process and an effective appraisal system should have been followed up to this point.
Do not tape record the meeting or allow the employee to record. However, always be mindful that the employee may have a hidden tape recorder and record without your knowledge. Ensure your statements and conduct are always defensible, always assume you are being recorded. If you wouldn’t want your words or actions described in exhibit A in a court room, don’t do it or say it.
The Whitford Group can assist you with any employee relations issue as well as all other employment law related compliance.
Please call or e-mail for your free, no obligation Risk Analysis to determine where you may be out of compliance. Call 704 905-7749 or e-mail TheWhitfordGroup@aol.com
Pleas visit our website at TheWhitfordGroup.com
Sunday, August 9, 2009
Bullet Proof Documentation - Part I
The Disciplinary Process & Bullet Proof Documentation Checklist - Part I
1. Identify the problem specifically. Is it poor performance or misconduct?
2. Review your employee handbook for specific policies and procedures; ensure they are sited.
3. Is a progressive discipline process in place? Is it adhered to consistently?
4. Review any documentation you have on file.
a. Has the employee been written-up for similar issues?
b. Did the supervisor discuss this/these issues with the employee?
c. Did the employee have a reasonable expectation that their job was in jeopardy?
5. Review job description, especially if poor performance is the basis for the discipline. Site the issues specifically in your write-up.
6. Review your past practice. In lieu of written policies, your past practice is your policy. Additionally, even if you have written policies and they have not been adhered to consistently, your past practice still prevails.
7. Investigate thoroughly and document your findings without making bias statements of conclusion during this phase. Summarize your conclusions of misconduct once the investigation is complete and the appropriate corrective action has been decided.
a. Include observable performance or behavior.
b. Document which rule or rules have been broken.
c. Don’t state “bad attitude”, it is indefensible in with regulatory agencies and in court. Again, stick to observable behavior.
d. Make it very clear “what” you are disciplining.
8. Discuss the issues with the employee. Ensure they understand what performance or misconduct standards have been violated. Always, always have a witness. Ideally it should be human resources or another member of management.
9. Develop a performance improvement plan, collaboratively if possible. An employee’s buy in is very important.
10. Set measurable, achievable goal and objectives. Be specific.
11. Determine if additional training, supplies, equipment, etc. are needed in order for the employee to comply with goals and objectives. Make them available.
12. Establish a follow-up procedure. Don’t forget! You run the risk of the employee believing the issue wasn’t that important in the first place and you weaken your defensible position should a regulatory inquiry or lawsuit develop.
Stay tuned for Part II of Bullet Proof Documentation premiering on a blog near you.
For assistance in developing effective policies, procedures, HR best practices, employee relations solutions and 3rd party investigation contact The Whitford Group at www.TheWhitfordGroup.com
You may also request a free, no obligation risk analysis through the website or by emailing to TheWhitfordGroup@aol.com
1. Identify the problem specifically. Is it poor performance or misconduct?
2. Review your employee handbook for specific policies and procedures; ensure they are sited.
3. Is a progressive discipline process in place? Is it adhered to consistently?
4. Review any documentation you have on file.
a. Has the employee been written-up for similar issues?
b. Did the supervisor discuss this/these issues with the employee?
c. Did the employee have a reasonable expectation that their job was in jeopardy?
5. Review job description, especially if poor performance is the basis for the discipline. Site the issues specifically in your write-up.
6. Review your past practice. In lieu of written policies, your past practice is your policy. Additionally, even if you have written policies and they have not been adhered to consistently, your past practice still prevails.
7. Investigate thoroughly and document your findings without making bias statements of conclusion during this phase. Summarize your conclusions of misconduct once the investigation is complete and the appropriate corrective action has been decided.
a. Include observable performance or behavior.
b. Document which rule or rules have been broken.
c. Don’t state “bad attitude”, it is indefensible in with regulatory agencies and in court. Again, stick to observable behavior.
d. Make it very clear “what” you are disciplining.
8. Discuss the issues with the employee. Ensure they understand what performance or misconduct standards have been violated. Always, always have a witness. Ideally it should be human resources or another member of management.
9. Develop a performance improvement plan, collaboratively if possible. An employee’s buy in is very important.
10. Set measurable, achievable goal and objectives. Be specific.
11. Determine if additional training, supplies, equipment, etc. are needed in order for the employee to comply with goals and objectives. Make them available.
12. Establish a follow-up procedure. Don’t forget! You run the risk of the employee believing the issue wasn’t that important in the first place and you weaken your defensible position should a regulatory inquiry or lawsuit develop.
Stay tuned for Part II of Bullet Proof Documentation premiering on a blog near you.
For assistance in developing effective policies, procedures, HR best practices, employee relations solutions and 3rd party investigation contact The Whitford Group at www.TheWhitfordGroup.com
You may also request a free, no obligation risk analysis through the website or by emailing to TheWhitfordGroup@aol.com
Wednesday, July 8, 2009
SC Illegal Immigration Reform Act - Major Change
New!! South Carolina Illegal Immigration Reform Act
Illegal Aliens and Private Employment Law Now in Effect for Employers Who Employ 100 or More Workers effective July 1, 2009, South Carolina businesses that employ 100 or more workers must verify the legal status of new employees and remove from their payrolls any worker who is not legally in the United States and authorized to work . The requirements are a part of the South Carolina Illegal Immigration Reform Act that became effective on June 2, 2008.
Beginning July 1, 2009, all businesses in South Carolina are imputed a South Carolina employment license which permits an employer to hire employees. The imputed employment license remains in effect as long as the business abides by the law.
Employers who employ less than 100 workers have until July 1, 2010 to fully comply with the law.
The South Carolina Department of Labor, Licensing and Regulation will investigate complaints and conduct audits of employers to assure compliance with the law. Complaints must be signed and in writing. Complaints against employers who employ less than 100 workers can not be accepted until July 1, 2010. Click here to access a complaint form (pdf).
Verification Requirements
In addition to completing and maintaining the federal employment eligibility verification form, more commonly known as the Form I-9, all South Carolina employers must within five days after employing a new employee:
1. Verify the employee’s work authorization through the E-Verify federal work authorization program administered by the U.S. Department of Homeland Security; or
2. Verify that the employee possesses a valid South Carolina driver’s license or identification card issued by the South Carolina Department of Motor Vehicles; is eligible to obtain a South Carolina driver’s license or identification card; or possesses a valid driver’s license or identification card from another state whose qualification requirements are as strict as those of the state of South Carolina.
The South Carolina Department of Motor Vehicles has determined that drivers’ licenses or identification cards issued by the following states are acceptable: AK, AZ, CT, FL, GA, ID, IN, ME (credentials issued after 11/15/08), MA, MI, NH, NJ, PA, RI, TX and VA. This list may be updated periodically. For the most current list, visit the DMV web site at: www.scdmvonline.com.
For information on E-Verify, and to register for the program, go to the E-Verify web site.
Compliance Dates
Compliance with verification requirements begins July 1, 2009 for private employers who employ 100 or more employees. For private employers who employ less than 100 employees, the compliance date is July 1, 2010.
Penalties
The South Carolina Department of Labor, Licensing and Regulation must: (1) notify the United States Immigration and Customs Enforcement of suspected unauthorized aliens employed by a private employer; (2) notify state and local law enforcement agencies responsible for enforcing state immigration laws, and; (3) assess penalties for violations of the Act. For violations of the procedures for verifying worker eligibility, a private employer can be assessed a civil penalty of not less than $100 and not more than $1,000 for each violation. Upon the first violation, the employer can avoid assessment of a penalty if within 72 hours of notification of a violation the employer complies with the verification provisions. An employer who knowingly or intentionally hires an unauthorized alien faces suspension or revocation of the employer’s imputed license. During the time that the license is suspended or revoked, the employer cannot employ any employees.
Source: SC Department of Labor, Licensing and Regulation
http://www.thewhitfordgroup.com/ Request your free Risk Analysis.
Illegal Aliens and Private Employment Law Now in Effect for Employers Who Employ 100 or More Workers effective July 1, 2009, South Carolina businesses that employ 100 or more workers must verify the legal status of new employees and remove from their payrolls any worker who is not legally in the United States and authorized to work . The requirements are a part of the South Carolina Illegal Immigration Reform Act that became effective on June 2, 2008.
Beginning July 1, 2009, all businesses in South Carolina are imputed a South Carolina employment license which permits an employer to hire employees. The imputed employment license remains in effect as long as the business abides by the law.
Employers who employ less than 100 workers have until July 1, 2010 to fully comply with the law.
The South Carolina Department of Labor, Licensing and Regulation will investigate complaints and conduct audits of employers to assure compliance with the law. Complaints must be signed and in writing. Complaints against employers who employ less than 100 workers can not be accepted until July 1, 2010. Click here to access a complaint form (pdf).
Verification Requirements
In addition to completing and maintaining the federal employment eligibility verification form, more commonly known as the Form I-9, all South Carolina employers must within five days after employing a new employee:
1. Verify the employee’s work authorization through the E-Verify federal work authorization program administered by the U.S. Department of Homeland Security; or
2. Verify that the employee possesses a valid South Carolina driver’s license or identification card issued by the South Carolina Department of Motor Vehicles; is eligible to obtain a South Carolina driver’s license or identification card; or possesses a valid driver’s license or identification card from another state whose qualification requirements are as strict as those of the state of South Carolina.
The South Carolina Department of Motor Vehicles has determined that drivers’ licenses or identification cards issued by the following states are acceptable: AK, AZ, CT, FL, GA, ID, IN, ME (credentials issued after 11/15/08), MA, MI, NH, NJ, PA, RI, TX and VA. This list may be updated periodically. For the most current list, visit the DMV web site at: www.scdmvonline.com.
For information on E-Verify, and to register for the program, go to the E-Verify web site.
Compliance Dates
Compliance with verification requirements begins July 1, 2009 for private employers who employ 100 or more employees. For private employers who employ less than 100 employees, the compliance date is July 1, 2010.
Penalties
The South Carolina Department of Labor, Licensing and Regulation must: (1) notify the United States Immigration and Customs Enforcement of suspected unauthorized aliens employed by a private employer; (2) notify state and local law enforcement agencies responsible for enforcing state immigration laws, and; (3) assess penalties for violations of the Act. For violations of the procedures for verifying worker eligibility, a private employer can be assessed a civil penalty of not less than $100 and not more than $1,000 for each violation. Upon the first violation, the employer can avoid assessment of a penalty if within 72 hours of notification of a violation the employer complies with the verification provisions. An employer who knowingly or intentionally hires an unauthorized alien faces suspension or revocation of the employer’s imputed license. During the time that the license is suspended or revoked, the employer cannot employ any employees.
Source: SC Department of Labor, Licensing and Regulation
http://www.thewhitfordgroup.com/ Request your free Risk Analysis.
Thursday, June 25, 2009
Employers Face Greater Liability for Workplace Identify Theft
It is estimated that more than 50% of all identity theft occurs in the workplace. Employers can be held liable for all types of identity theft that can be traced back to the mishandling of personally identifying information maintained on employees, applicants, clients and vendors. The FTC Red Flags Rules were established to ensure that information security is a priority for every business in America.
There are multiple types of ID theft; here are a few that can occur in the workplace:
1. Driver’s License – A thief can get a license in your name and represent them selves as you during a traffic stop. If you are later involved in a traffic stop and the thief has committed traffic violations or other crimes in your name, you could be arrested on the spot.
2. Social Security – Some one could get a job in your name, not pay taxes or receive your income tax refund. The IRS and the Social Security Administration rarely talk to one another.
3. Medical ID theft – This is the fastest growing type of ID theft. Criminals obtain you health insurance info or social security number and receive health care under your name. Your medical history could contain medical information belonging to another, resulting in life threatening mistakes.
Identity theft is the fastest growing crime in the U.S. and around the world. Above are only a few types of theft. What can you do?
Under the FTC Red Flags Rules you are required to:
Develop a written data protection plan.
Develop a notification plan in the event of a breach.
Appoint a privacy officer.
Provide training for employees who have access.
Consider offering identity theft protection as an employee benefit.
For FTC Red Flags Rules or employment law compliance assistance, please feel free to contact The Whitford Group for a free risk analysis. Find out what you should be doing to protect your company from unnecessary financial loss.
TheWhitfordGroup@aol.com www.TheWhitfordGroup.com
Friday, June 12, 2009
Sexual Orientation Discrimation
Sexual orientation discrimination—there's no federal law forbidding it, yet "any lawyer with a pulse" can get a claim to go forward in federal court.
If sexual orientation—and gender identity and gender expression—are not on the list of protected characteristics (race, color, religion, sex, national origin, disability, or age), how do such cases make it to trial? It's because claims say the discrimination was "because of sex".
Just because there is no federal law prohibiting a particular activity doesn't mean a company has no liability regarding the activities of their supervisors and employees.
Go to www.TheWhitfordGroup.com to request your free, no obligation risk analysis. Know where you stand on this and other major issues.
If sexual orientation—and gender identity and gender expression—are not on the list of protected characteristics (race, color, religion, sex, national origin, disability, or age), how do such cases make it to trial? It's because claims say the discrimination was "because of sex".
Just because there is no federal law prohibiting a particular activity doesn't mean a company has no liability regarding the activities of their supervisors and employees.
Go to www.TheWhitfordGroup.com to request your free, no obligation risk analysis. Know where you stand on this and other major issues.
Friday, June 5, 2009
PRO-Union Legislation - What It Will Mean to You
Proposed legislation expected to become law. The Employee Free Choice Act would fundamentally alter the National Labor Relations Act in ways that will shift the current balance of power between unions and management significantly in favor of unions, resulting in greater numbers of successful union campaigns.
The Re-Empowerment of Skilled and Professional Employees and Construction Trades workers (RESPECT Act) is another pro union law expected to pass. The proposed bill would benefit unions and make organizing efforts easier. This law would expand the pool of potential members in each workplace by limiting an employer’s ability to classify certain positions as supervisory or management positions.
The Patriot Employers Act is a proposed law that is pro union. It provides tax incentives to U.S. based employers who create jobs in the United States rather than abroad. However, for an employer to qualify as a “Patriot Employer” they must remain “neutral” during a union organizing campaign and thus unable to campaign against the union. The employer must also pay 60% of the co-pay for its employees’ health care and other requirements. This Act will also impact additional salary, insurance and benefits criteria.
Public Safety Employer-Employee Cooperation Act of 2009 proposes to grant union organizing and collective bargaining rights to all “public safety officers” The Act includes law enforcement officers, firefighters, emergency medical personnel and other similar employees.
In the Southeastern U.S., we have very few unions. Expect to be targeted if any of this legislation is passed. If you need help with Union Avoidance training for your supervisors, please conatact me at TheWhitfordGroup@aol.com or visit my website at http://www.thewhitfordgroup.com/ and request a free risk analyisis that will provide you with valuable information you need to know to help protect your company from unnecessary financial loss.
The Re-Empowerment of Skilled and Professional Employees and Construction Trades workers (RESPECT Act) is another pro union law expected to pass. The proposed bill would benefit unions and make organizing efforts easier. This law would expand the pool of potential members in each workplace by limiting an employer’s ability to classify certain positions as supervisory or management positions.
The Patriot Employers Act is a proposed law that is pro union. It provides tax incentives to U.S. based employers who create jobs in the United States rather than abroad. However, for an employer to qualify as a “Patriot Employer” they must remain “neutral” during a union organizing campaign and thus unable to campaign against the union. The employer must also pay 60% of the co-pay for its employees’ health care and other requirements. This Act will also impact additional salary, insurance and benefits criteria.
Public Safety Employer-Employee Cooperation Act of 2009 proposes to grant union organizing and collective bargaining rights to all “public safety officers” The Act includes law enforcement officers, firefighters, emergency medical personnel and other similar employees.
In the Southeastern U.S., we have very few unions. Expect to be targeted if any of this legislation is passed. If you need help with Union Avoidance training for your supervisors, please conatact me at TheWhitfordGroup@aol.com or visit my website at http://www.thewhitfordgroup.com/ and request a free risk analyisis that will provide you with valuable information you need to know to help protect your company from unnecessary financial loss.
Tuesday, May 26, 2009
FTC Red Flags Rules - Not Just Financial Institutions
In addition to straight forward employment law changes, the FTC Red Flags Rules apply to more companies and industries than originally thought. The Rules provide for the identification, detection, and response to patterns, practices or specific activities – known as “red flags” – that could indicate identity theft. The Rules apply to financial institutions and creditors with covered accounts. The definition of “creditor” is where most of the confusion lies when determining if the Rules apply to s specific business. Basically, if an individual’s or group of individual’s identify is stolen because a company failed to protect personally identifiable information they collected on clients, vendors, employees or applicants, under the Rules the company is liable if they have not complied with the many steps set forth in the Rules.
Monday, May 4, 2009
Employment - Law Run-Away-Train - ARRA
The American Recovery & Reinvestment Act of 2009, also known as the Economic Stimulus Package has made sweeping changes to COBRA. The Act applies to both federal and state continuation laws. The changes were effective February 17, 2009 with an implementation date of March 1, 2009. Changes include but are not limited to an employer’s requirement to provide a subsidy to employees on their COBRA premiums; changes to enrollment provisions; additional notice requirements for plan administrators and new filing requirements for employers on their payroll tax returns.
Please contact me if you need help with this new and complicted facet of this law. www.TheWhitfordGroup.com
Please contact me if you need help with this new and complicted facet of this law. www.TheWhitfordGroup.com
Monday, April 20, 2009
Employment Law - Run-a-way Train - I-9
New immigration procedures affecting the Form I-9. All employers. The changes were effective February 2, 2009. All employers will be required to use the new version of the Form I-9 and meet new documentary requirements.
If you need assistance auditing your I-9 files and bringing them into compliance, please contact me at TheWhitfordGroup@aol.com or go to my web site to see how you can get a free Risk Analysis so you will know where your company stands regarding existing, changing and new laws. The Risk Analysis is a $500.00 value. TheWhitfordGroup.com.
If you need assistance auditing your I-9 files and bringing them into compliance, please contact me at TheWhitfordGroup@aol.com or go to my web site to see how you can get a free Risk Analysis so you will know where your company stands regarding existing, changing and new laws. The Risk Analysis is a $500.00 value. TheWhitfordGroup.com.
Monday, April 13, 2009
Employment Law - Run-a-way Train - Ledbetter
Lilly Ledbetter Fair Pay Act of 2009. Applies to all employers. The effective date for this new law is retroactive to May 28,2007. The Law applies to all claims of discriminatory compensation pending on or after that date. However,i t applies to more than compensation, also included is discrimination in race, color, religion, sex, national origin, age, or disability. The Act substantially changes the statute of limitations in filing discrimination claims against employers for alleged discrimination.
I know what you are probably thinking by now, how many changes to employment law can a Company absorb? Unfortunately, there are more to come. We have a new administration with a determined agenda. As Bette Davis once said in a movie, "put on your seat belt, it's going to be a bumpy ride".
If you need assistance with all these changes, please contact me at TheWhitfordGroup@aol.com and visit my web site for a free Risk Analysis. Jan
I know what you are probably thinking by now, how many changes to employment law can a Company absorb? Unfortunately, there are more to come. We have a new administration with a determined agenda. As Bette Davis once said in a movie, "put on your seat belt, it's going to be a bumpy ride".
If you need assistance with all these changes, please contact me at TheWhitfordGroup@aol.com and visit my web site for a free Risk Analysis. Jan
Wednesday, April 8, 2009
Employment Law - Run-a-way Train-FMLA
Family and Medical Leave Act (FMLA) apply to employers with 50 or more employees in a 75 mile radius. Part time and temporary employees are included in the head count for number of employees. The changes to the FMLA went into effect on January 16, 2009. These changes will require employers to make numerous changes to their FMLA polices and practices. The changes include two new types of leave related to an individual’s military status. The Act protects employee’s who are related to a military member. In addition to other requirements, new notice and certification procedures are included in the changes.
Managing the FMLA process is much more complicated and time consuming than ever. If you need assistance learning what you need to do now that the changes are in effect, please feel free to contact me at TheWhitfordGroup@aol.com or visit my website for information on a free risk analysis at www.TheWhitfordGroup.com.
Managing the FMLA process is much more complicated and time consuming than ever. If you need assistance learning what you need to do now that the changes are in effect, please feel free to contact me at TheWhitfordGroup@aol.com or visit my website for information on a free risk analysis at www.TheWhitfordGroup.com.
Sunday, April 5, 2009
Employment Law - Run-away-train - ADA
Americans with Disabilities Act (ADA) Amendments Act of 2008, changes were effective January 1, 2009. The Act applies to employers with 15 or more employees. The ADAAA is the most sweeping change to the ADA in the past decade, as it redefines who is considered “disable” under the ADA, and thus will potentially lead to a larger population of “disabled” employees seeking accommodations and a larger number of employees who claim they were “regarded as” disabled in disparate treatment claims.
If you need assistance intrepreting these changes and the actions you need to take to be compliant with the Act, please feel free to contact me at TheWhitfordGroup@aol.com.
If you need assistance intrepreting these changes and the actions you need to take to be compliant with the Act, please feel free to contact me at TheWhitfordGroup@aol.com.
Thursday, April 2, 2009
Employment Law – Run-a-way Train
Not in decades have there been so many changes and proposed changes to employment law substantially impacting employers. Nor has there been a greater need to partner with a risk management consultant who can keep you apprised of the changes and what you need to do to run your business in a defensible manner – and help avoid some of the financial costs associated with being out of compliance.
I will post information on many of the changes already in place for 2009, proposed legislation and existing law and HR best practices in future blogs. Your questions are welcome.
Jan Whitford, MSL, SPHR, CITRMS
Senior Consultant
http://www.TheWhitfordGroup.com
I will post information on many of the changes already in place for 2009, proposed legislation and existing law and HR best practices in future blogs. Your questions are welcome.
Jan Whitford, MSL, SPHR, CITRMS
Senior Consultant
http://www.TheWhitfordGroup.com
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