Escaping the 'Incredible Pain' of Retaliation
Retaliation claims are growing, and it is no wonder—employees with baseless claims can make their retaliation claims stick. "You just don't want to be in front of a jury on one of these cases.” Jurors distrust employers to start with. And they easily identify with retaliation claims as part of human nature.
The Story of Uncle Milty
Uncle Milty was a 62-year-old executive whom colleagues called "Uncle" and "Grumpy." Uncle Milty lost out on a promotion which was given instead to a 35-year-old, says Faillace. Uncle Milty's lawyer fired off a letter accusing his employer of age discrimination, and days later, Uncle Milty was fired. His employer said he was fired because he was not a "team player." He always thought he knew better they said, and he made faces during meetings.
Jury Agrees: No Discrimination
A jury agreed with the employer that there was no evidence of discrimination; however, they did award Uncle Milty $5 million plus attorney's fees for retaliation.
This employer could have avoided all liability if it had done its homework when the attorney's letter arrived. "No matter how much of a pain it is." In this situation you buy the executive out and get a release.
Components of a Retaliation Claim
There are three primary elements of retaliation:
1.Protected activity
2.Adverse employment action
3.Causal connection
Protected Activity
Protected activity is of two main types: opposition and participation.
•Threatening to file a charge or other formal complaint alleging discrimination
•Complaining to anyone about alleged discrimination against oneself or others
•Refusing to obey an order because of a reasonable belief that it is discriminatory
•Requesting a reasonable accommodation or a religious accommodation
Remember, that an articulated expression of opposition is not required. Conduct itself may be enough, for example:
•Rejecting a supervisor's sexual advances
•Asking an employer whether race factored into an employment decision
•Peaceful picketing.
However, the employee's opposition must be reasonable. Some examples of acts that were not protected:• Disruptive and violent picketing
•Violations of legitimate company rules
•Knowingly disobeying company orders that are not discriminatory
•Conscious efforts to hamper the company's business pursuits.
Participation
Generally, employees are also protected when they make a charge, testify, assist, or participate in any manner in an investigation, proceeding, or hearing.
Making a preliminary visit to an EEO counselor
•Expressing an intent to file a charge
•Being a probable witness
•Assisting fellow workers in their discrimination claims
There is an important distinction between "opposers" and "participants." Opposers must have a good faith belief that the employer is violating the law; however, participants generally do not have to have such a belief. For example, a person testifying is protected even though he or she doesn't believe a law was broken.
Managers and supervisors tend toward retaliatory behavior against participants. They will ask the participant. "Whose side are you on anyway?" You must train your managers that participation is protected.
Another element of a retaliation case is adverse action. What constitutes an adverse employment action?
For sure, employment actions such as the following: denial of promotion, refusal to hire, denial of job benefits, demotion, suspension, and discharge are adverse actions.
The EEOC also includes threats, reprimands, negative evaluations, harassment, or other adverse treatment, but the federal courts don't always agree on these points.
Actions that have been found not to be adverse actions include:
•Making vague or isolated remarks about protected activity
•Contesting unemployment compensation
•Complaining about undesirable work assignments.
The EEOC and courts may also define adverse action more broadly as an action "reasonably likely" to deter charging parties from engaging in protected activity.
Best Practices for Avoiding Adverse Actions:
•Create and implement a specific anti-retaliation policy
•Train managers and supervisors
•Prior to taking any adverse actions against employees:
oInterview managers, noting any possible protected activity
oEnsure legitimate reasons exist for taking the adverse action
oConsult with your legal department or outside counsel.
Causal connection
The third element of retaliation claims is the causal connection. That is, the employee must show that the employer took the adverse employment action because the plaintiff engaged in the protected activity. In addition, the suing employee must show that the protected activity preceded the adverse action and that the employer had knowledge of the protected activity.
Sometimes the causal connection is shown by direct evidence, such as e-mails, and sometimes by indirect evidence; for example, time proximity (e.g., fired the day after lodging a complaint).
Escaping Liability
Once a claim against an employer is established with the three elements discussed above, the employer may defeat it by producing evidence that the employer had non-retaliatory reasons for its action. For example:
•Insubordination
•Refusal to perform assigned work
•Failure to get along with others
•Violence
•Business reorganization
•Misconduct
Retaliation Tips
•Carefully document performance problems. Progressive discipline records will help suggest that no retaliation took place.
•Ensure that documentation is consistent with employee's employment history. Be especially wary in situations that show a sudden drop in performance.
•Treat complainants like other employees to negate an inference of retaliation.
•Do not order surveillance on employees who have complained. That can constitute an adverse action and is unlawful if conducted because of the protected activity.
Summarized from Today's HR Tip: Faillace, managing partner of Michael Faillace & Associates in New York City, offered specific steps HR managers can take to prevent retaliation at a Society for Human Resource Management (SHRM) conference.
Friday, October 8, 2010
10 Mistakes Employers Make and How to Avoid Them
Focus on Ten Mistakes, Eliminate 90% of Problems
Sometimes it seems that there are one thousand ways to go wrong managing people, but attorney Peter Janus suggests that 10 critical errors cause most of the problems.
1. Conducting Unlawful Pre-employment Inquiries
Inappropriate questions can be a source for claims of discrimination. To the extent possible, standardize the application and interview process. Make sure that all applicants for a particular position are asked fundamentally the same questions. Keep questions objective and focused on the job requirements and the skills necessary to perform the requirements. Ask:
•Does this question disproportionately screen out minorities, women, or individuals with disabilities?
•Does this question measure or explore something other than a person's ability to do the job?
If the answer to either question is yes, is there a way to ask the question to obtain the information needed that is not inappropriate?
2. Delivering "Dishonest" Evaluations
Too many managers and supervisors would rather be nice than honest. As a result, many legitimate actions taken against an employee based on lack of performance can be questioned on the basis of the nice reviews. Janus suggests the following:
•Avoid putting off the inevitable
•Do not overinflate performance evaluations
•Do not make promises that you cannot keep
•In narratives, avoid making personal comments
•If you set standards and they were not met, say so
•Rely on documentation and objective criteria whenever possible
•Do not rely on incidents arising in a time period that is not covered by the evaluation.
3. Making Rash Disciplinary Decisions
Before disciplining an employee, evaluate the circumstances to avoid (or defend, if necessary) claims of discrimination and wrongful discharge. Consider the following:
•Conduct a thorough investigation
•Review company policy and the employee's personnel file
•Ascertain that the employee received a copy of the policy
•Give the employee an opportunity to give his or her version of the facts
•Make sure similarly-situated employees were treated the same.
4. Committing Termination Errors/Omissions
Terminations are tough for everyone involved, and it's easy to make mistakes in the interest of getting through the uncomfortable process as quickly as possible.
•Conduct a thorough review before discharging an employee
•Determine whether the employee was given any oral or written assurances of continued employment
Do tell the worker in person
•Do use prepared notes
•Do keep it brief (10 to 15 minutes)
•Do treat people like adults
•Do clarify the logistics of leaving and severance
•Do have an outplacement counselor nearby
•Do escort the employee to the next appointment
•Don't say "How are you, Good to see you" or use platitudes like "I know how you feel"
•Don't chitchat or try to be funny
•Don't threaten or berate
•Don't make promises you can't keep
•Don't apologize
•Don't talk about other employees
5. Making Uninformed Responses to Medical Requests
Few management tasks are more challenging than dealing with employee medical problems—the Bermuda triangle of FMLA, ADA, and workers' compensation. The time to avoid the legal pitfalls is when you are first aware of the situation. The following questions will help:
•Does the worker have a serious health condition under FMLA?
•Is there an impairment that substantially limits a major life function under the ADA?
•Does the employee have any other handicap, infirmity, or impairment of any kind that might be covered by state disability law?
•Is there an injury present that occurred during work which would mean workers' compensation would apply?
Generally, managers should contact HR when employees are going to miss work for reasons that might involve "the triangle."
6. Failing to Update Policy Handbooks
Many employers have a handbook that they prepared and distributed to employees years ago and have not kept up. As many changes have occurred in the course of the last decade, these old handbooks and policies can create serious legal problems.
You should consider your handbook as a document that must change with the times, and it must be reviewed and updated regularly.
7. Supervisors Not Knowing and Enforcing Policies
Supervisors are responsible for much of the day-to-day enforcement of the company's policies. Many of them do not know the company's position on key issues. For example, imagine a supervisor telling an employee that he or she does not have time to handle a claim of unwelcome harassment. Regularly review your policies with all supervisors and update them on all changes before the policies are distributed to employees.
8. Managers Not Knowing All Applicable Policies and Laws
"Ignorance of the laws is no excuse." Managers have an obligation, as unreasonable or impracticable as it may be, to be aware of and understand the policies and laws that apply to their workplace. Failure to comprehend these laws can initiate lawsuits, can cause embarrassment in court ("You're responsible for upholding these taws, and you've never had formal training in how they work?"), and may even result in legal action against the manager as an individual.
9. Making Incorrect Wage/Hour Assumptions
The costs of wage/hour mistakes can add up fast. Typical examples:
•Thinking that paying a salary makes an individual exempt from overtime.
•Reducing an exempt employee's pay for disciplinary reasons.
•Having employees voluntarily agree in writing to receive less than time-and-a-half for overtime hours. Employees cannot waive their rights to overtime.
10. Including Medical Records in the Personnel File
Medical records should not be included in an employee's personnel file. Medical records include all papers, documents, and reports prepared by physicians, psychiatrists, or psychologists, that are in the possession of an employer and work-related, or upon which the employer relies to make employment-related decisions.
Today's HR Daily Advisor Tip:
Janus is a partner with Siegel, O'Conner, Zangari, O'Donnell & Beck, P.C. in Hartford, Connecticut. This material originally appeared in our sister publication, the HR Manager's Legal Reporter.
Sometimes it seems that there are one thousand ways to go wrong managing people, but attorney Peter Janus suggests that 10 critical errors cause most of the problems.
1. Conducting Unlawful Pre-employment Inquiries
Inappropriate questions can be a source for claims of discrimination. To the extent possible, standardize the application and interview process. Make sure that all applicants for a particular position are asked fundamentally the same questions. Keep questions objective and focused on the job requirements and the skills necessary to perform the requirements. Ask:
•Does this question disproportionately screen out minorities, women, or individuals with disabilities?
•Does this question measure or explore something other than a person's ability to do the job?
If the answer to either question is yes, is there a way to ask the question to obtain the information needed that is not inappropriate?
2. Delivering "Dishonest" Evaluations
Too many managers and supervisors would rather be nice than honest. As a result, many legitimate actions taken against an employee based on lack of performance can be questioned on the basis of the nice reviews. Janus suggests the following:
•Avoid putting off the inevitable
•Do not overinflate performance evaluations
•Do not make promises that you cannot keep
•In narratives, avoid making personal comments
•If you set standards and they were not met, say so
•Rely on documentation and objective criteria whenever possible
•Do not rely on incidents arising in a time period that is not covered by the evaluation.
3. Making Rash Disciplinary Decisions
Before disciplining an employee, evaluate the circumstances to avoid (or defend, if necessary) claims of discrimination and wrongful discharge. Consider the following:
•Conduct a thorough investigation
•Review company policy and the employee's personnel file
•Ascertain that the employee received a copy of the policy
•Give the employee an opportunity to give his or her version of the facts
•Make sure similarly-situated employees were treated the same.
4. Committing Termination Errors/Omissions
Terminations are tough for everyone involved, and it's easy to make mistakes in the interest of getting through the uncomfortable process as quickly as possible.
•Conduct a thorough review before discharging an employee
•Determine whether the employee was given any oral or written assurances of continued employment
Do tell the worker in person
•Do use prepared notes
•Do keep it brief (10 to 15 minutes)
•Do treat people like adults
•Do clarify the logistics of leaving and severance
•Do have an outplacement counselor nearby
•Do escort the employee to the next appointment
•Don't say "How are you, Good to see you" or use platitudes like "I know how you feel"
•Don't chitchat or try to be funny
•Don't threaten or berate
•Don't make promises you can't keep
•Don't apologize
•Don't talk about other employees
5. Making Uninformed Responses to Medical Requests
Few management tasks are more challenging than dealing with employee medical problems—the Bermuda triangle of FMLA, ADA, and workers' compensation. The time to avoid the legal pitfalls is when you are first aware of the situation. The following questions will help:
•Does the worker have a serious health condition under FMLA?
•Is there an impairment that substantially limits a major life function under the ADA?
•Does the employee have any other handicap, infirmity, or impairment of any kind that might be covered by state disability law?
•Is there an injury present that occurred during work which would mean workers' compensation would apply?
Generally, managers should contact HR when employees are going to miss work for reasons that might involve "the triangle."
6. Failing to Update Policy Handbooks
Many employers have a handbook that they prepared and distributed to employees years ago and have not kept up. As many changes have occurred in the course of the last decade, these old handbooks and policies can create serious legal problems.
You should consider your handbook as a document that must change with the times, and it must be reviewed and updated regularly.
7. Supervisors Not Knowing and Enforcing Policies
Supervisors are responsible for much of the day-to-day enforcement of the company's policies. Many of them do not know the company's position on key issues. For example, imagine a supervisor telling an employee that he or she does not have time to handle a claim of unwelcome harassment. Regularly review your policies with all supervisors and update them on all changes before the policies are distributed to employees.
8. Managers Not Knowing All Applicable Policies and Laws
"Ignorance of the laws is no excuse." Managers have an obligation, as unreasonable or impracticable as it may be, to be aware of and understand the policies and laws that apply to their workplace. Failure to comprehend these laws can initiate lawsuits, can cause embarrassment in court ("You're responsible for upholding these taws, and you've never had formal training in how they work?"), and may even result in legal action against the manager as an individual.
9. Making Incorrect Wage/Hour Assumptions
The costs of wage/hour mistakes can add up fast. Typical examples:
•Thinking that paying a salary makes an individual exempt from overtime.
•Reducing an exempt employee's pay for disciplinary reasons.
•Having employees voluntarily agree in writing to receive less than time-and-a-half for overtime hours. Employees cannot waive their rights to overtime.
10. Including Medical Records in the Personnel File
Medical records should not be included in an employee's personnel file. Medical records include all papers, documents, and reports prepared by physicians, psychiatrists, or psychologists, that are in the possession of an employer and work-related, or upon which the employer relies to make employment-related decisions.
Today's HR Daily Advisor Tip:
Janus is a partner with Siegel, O'Conner, Zangari, O'Donnell & Beck, P.C. in Hartford, Connecticut. This material originally appeared in our sister publication, the HR Manager's Legal Reporter.
Tuesday, July 20, 2010
The Interview
Single Key to Attracting the Best Hires
The Interview—it's not a time to chat and visit, it's a time to dig and investigate.
Preparing is a two-step process.
First, use the job description to identify the traits, skills, and abilities you need. (No job description? I can help you write one.)
Second, determine how you will figure out if the candidate has the skills you require.
It's one thing to say you need a sharp financial analyst who can meet deadlines and knows about corporate reporting requirements. But how do you figure out if a candidate can meet those criteria?
It's easy, right? Just ask:
•Are you a sharp financial analyst? ("Yes.")
•Can you meet deadlines? ("Yes.")
•Are you familiar with corporate reporting requirements? ("Yes.")
That's a pretty quick interview. And a pretty meaningless one. Instead of yes/no questions that telegraph the desired answer, figure out some other ways to get at the information.
•Ask about the types of projects the person has done (biggest, most interesting, most challenging, for whom, with what help).
•Ask about the environment the person works in (what sort of deadlines, how many projects at a time, what he or she does when priorities conflict).
•Ask about the boss (likes and dislikes, pet peeves, time you pleased or annoyed).
Go through the job description, pick out key issues, and design questions that will help you get at those issues.
A side benefit of this work is that you'll end up with a set of questions that you can ask of all candidates, ensuring consistency in your interview process.
Otherwise, you'll end up asking different questions of each candidate, and you will have little basis for comparison (except, perhaps, the basis for a discrimination charge).
Finally, don't forget to ask routine questions that are deal breakers. For example:
•If a certification or degree is required, be sure the person has it.
•If travel is required, be sure the person can travel.
•If relocation is required, be sure the person can relocate.
If you're bringing someone in from out of town for the interview, get these questions answered by phone before the visit—you don't want to have to report to the boss and the hiring manager that you just flew someone in from the coast for an interview, only to discover that he or she was missing a key criterion.
Summarized from Today's HR Daily Advisor Tip, July 15, 2010
Amoung many others, two of my areas of expertise are in writing job descriptions and helping clients prepare for interviews that will be meaningful, provide the information needed to make a good hiring selection and help reduce liability associated with a poor hire.
Contact me at TheWhitfordGroup@aol.com
The Interview—it's not a time to chat and visit, it's a time to dig and investigate.
Preparing is a two-step process.
First, use the job description to identify the traits, skills, and abilities you need. (No job description? I can help you write one.)
Second, determine how you will figure out if the candidate has the skills you require.
It's one thing to say you need a sharp financial analyst who can meet deadlines and knows about corporate reporting requirements. But how do you figure out if a candidate can meet those criteria?
It's easy, right? Just ask:
•Are you a sharp financial analyst? ("Yes.")
•Can you meet deadlines? ("Yes.")
•Are you familiar with corporate reporting requirements? ("Yes.")
That's a pretty quick interview. And a pretty meaningless one. Instead of yes/no questions that telegraph the desired answer, figure out some other ways to get at the information.
•Ask about the types of projects the person has done (biggest, most interesting, most challenging, for whom, with what help).
•Ask about the environment the person works in (what sort of deadlines, how many projects at a time, what he or she does when priorities conflict).
•Ask about the boss (likes and dislikes, pet peeves, time you pleased or annoyed).
Go through the job description, pick out key issues, and design questions that will help you get at those issues.
A side benefit of this work is that you'll end up with a set of questions that you can ask of all candidates, ensuring consistency in your interview process.
Otherwise, you'll end up asking different questions of each candidate, and you will have little basis for comparison (except, perhaps, the basis for a discrimination charge).
Finally, don't forget to ask routine questions that are deal breakers. For example:
•If a certification or degree is required, be sure the person has it.
•If travel is required, be sure the person can travel.
•If relocation is required, be sure the person can relocate.
If you're bringing someone in from out of town for the interview, get these questions answered by phone before the visit—you don't want to have to report to the boss and the hiring manager that you just flew someone in from the coast for an interview, only to discover that he or she was missing a key criterion.
Summarized from Today's HR Daily Advisor Tip, July 15, 2010
Amoung many others, two of my areas of expertise are in writing job descriptions and helping clients prepare for interviews that will be meaningful, provide the information needed to make a good hiring selection and help reduce liability associated with a poor hire.
Contact me at TheWhitfordGroup@aol.com
Why Bother With a Reference Check?
One-Third of Résumés Lie—Reference Check, Anyone?
Everyone agrees that reference checks are important, but actually doing them is difficult. Employers want to get information about candidates, but when other employers want the same information from them, they don't want to give it.
One-Third of Résumés Contain a Lie
According to industry experts, up to one-third of résumés contain material falsehoods. Remember, for employers, the résumé is a factual document, but for applicants, it is a marketing tool.
What Can You Achieve with Reference Checks?
Achieve better hiring fits. Often, the best indicator of future performance is relevant past performance. And the best way to find out about that is the reference check. A general rule: Information often trumps intuition.
Unexplained gaps. By verifying dates of employment, an employer can make sure that there are no unexplained employment gaps that might signal trouble.
Protect the investment. Employers make a substantial investment when hiring. Bad decisions create untold administrative, financial, and legal difficulties, not to mention substantial cost, wasted time, and delayed productivity.
Honesty and accuracy. Verification also confirms the honesty and accuracy of the résumé.
Verification means checking factual matters, like start date, title, and salary.
Reference checking refers to qualitative matters (job performance, strong points, weak points, and so on).
Policy and Legal Considerations
As we mentioned above, unfortunately, employers want to get reference information, but they don't like to give it. Employers fear defamation lawsuits if they give any information beyond basics like dates of service and title. And if the employee in question has filed any sort of suit or made complaints, there's the added possibility of retaliation lawsuits.
Some states provide protections for employer references. For example, in North Carolina, an employer giving a reference has protection, provided the information is:
•Job related
•Based on credible evidence
•Made without malice
But even with that protection, many legal sources still believe that the risk of a defamation claim outweighs any benefit to an employer from giving reference information. Furthermore, they point out, what constitutes "credible evidence" and "job related" can be open to interpretation.
If You Can't Say Something Nice …
One alternative for employers is to provide only positive reference information.
However, even that policy can lead to legal difficulty.
First of all, some courts have found that employers have a duty to provide full and complete recommendations. In one California case, an employer gave a positive recommendation, leaving out important negative information. The court ruled that the employer providing a recommendation owes a duty to protect employers and third parties and could not misrepresent the qualifications and character of a former employee where there was a substantial risk of physical injury.
A similar problem occurs when employers give recommendations only for employees with good records. Employees who are not given recommendations may sue for defamation on the basis that no recommendation is equivalent to a bad recommendation.
No Such Thing as 'Off the Record'
There's no such thing as "off the record" when it comes to references. Whatever the reference provider says to a reference checker must be revealed during a deposition.
There is no privilege involved.
Reading Between the Lines
Sometimes you'll get a lot of information when you get "no information.
Two examples:
An HR manager asked for a reference says, "Why don't you ask the applicant to send us a release for his performance appraisal files; they would make interesting reading."
In another case, a reference checker said to the applicant's former manager, "Everything says I should hire this lady, but I have a gut feeling that something's wrong." The former manager said, "I always think it's a good idea to go with your gut."
Summarized from Today's HR Daily Advisor Tip
Recently a lot of my supervisory and management training sessons with clients have focused on the hiring process, reference checking and preparing defensible appraisals. Some people think these activities are busy work and a waste of time, however, it is clear from this post and many of my other recent posts that they are very important and if done correctly, can potentially save a company a lot of time a money.
Let me know if I can help you with these or any other human resources issues. Contact me at TheWhitfordGroup@aol.com
Everyone agrees that reference checks are important, but actually doing them is difficult. Employers want to get information about candidates, but when other employers want the same information from them, they don't want to give it.
One-Third of Résumés Contain a Lie
According to industry experts, up to one-third of résumés contain material falsehoods. Remember, for employers, the résumé is a factual document, but for applicants, it is a marketing tool.
What Can You Achieve with Reference Checks?
Achieve better hiring fits. Often, the best indicator of future performance is relevant past performance. And the best way to find out about that is the reference check. A general rule: Information often trumps intuition.
Unexplained gaps. By verifying dates of employment, an employer can make sure that there are no unexplained employment gaps that might signal trouble.
Protect the investment. Employers make a substantial investment when hiring. Bad decisions create untold administrative, financial, and legal difficulties, not to mention substantial cost, wasted time, and delayed productivity.
Honesty and accuracy. Verification also confirms the honesty and accuracy of the résumé.
Verification means checking factual matters, like start date, title, and salary.
Reference checking refers to qualitative matters (job performance, strong points, weak points, and so on).
Policy and Legal Considerations
As we mentioned above, unfortunately, employers want to get reference information, but they don't like to give it. Employers fear defamation lawsuits if they give any information beyond basics like dates of service and title. And if the employee in question has filed any sort of suit or made complaints, there's the added possibility of retaliation lawsuits.
Some states provide protections for employer references. For example, in North Carolina, an employer giving a reference has protection, provided the information is:
•Job related
•Based on credible evidence
•Made without malice
But even with that protection, many legal sources still believe that the risk of a defamation claim outweighs any benefit to an employer from giving reference information. Furthermore, they point out, what constitutes "credible evidence" and "job related" can be open to interpretation.
If You Can't Say Something Nice …
One alternative for employers is to provide only positive reference information.
However, even that policy can lead to legal difficulty.
First of all, some courts have found that employers have a duty to provide full and complete recommendations. In one California case, an employer gave a positive recommendation, leaving out important negative information. The court ruled that the employer providing a recommendation owes a duty to protect employers and third parties and could not misrepresent the qualifications and character of a former employee where there was a substantial risk of physical injury.
A similar problem occurs when employers give recommendations only for employees with good records. Employees who are not given recommendations may sue for defamation on the basis that no recommendation is equivalent to a bad recommendation.
No Such Thing as 'Off the Record'
There's no such thing as "off the record" when it comes to references. Whatever the reference provider says to a reference checker must be revealed during a deposition.
There is no privilege involved.
Reading Between the Lines
Sometimes you'll get a lot of information when you get "no information.
Two examples:
An HR manager asked for a reference says, "Why don't you ask the applicant to send us a release for his performance appraisal files; they would make interesting reading."
In another case, a reference checker said to the applicant's former manager, "Everything says I should hire this lady, but I have a gut feeling that something's wrong." The former manager said, "I always think it's a good idea to go with your gut."
Summarized from Today's HR Daily Advisor Tip
Recently a lot of my supervisory and management training sessons with clients have focused on the hiring process, reference checking and preparing defensible appraisals. Some people think these activities are busy work and a waste of time, however, it is clear from this post and many of my other recent posts that they are very important and if done correctly, can potentially save a company a lot of time a money.
Let me know if I can help you with these or any other human resources issues. Contact me at TheWhitfordGroup@aol.com
Firing Without a Defense!
Defense Failed Because of Performance Appraisal?
In court, an inadequate or inaccurate performance evaluation can be used against you with devastating results. Many companies that have fired employees for poor performance and then found out too late that its appraisal documents didn't support the defense.
We often don't think of appraisals as legal challenges, but they often figure prominently in lawsuits. Juries tend to come down hard on employers who:
•Don't appear to have told the employee what was expected.
•Don’t appear to have given an employee a chance to improve.
•Say bad performance as the reason for a firing, but awarded the person a "satisfactory" or "good" rating.
In some companies, vital personnel decisions are made casually. This informal approach is easy, but dangerous. When there are no established criteria or performance standards on which to base personnel actions, such as transfers, promotions, terminations, and pay increases, managers tend to be influenced by the employee’s personality rather than what he or she is actually doing on the job.
10 Rules for Appraisals
Here are 10 tips for building a solid defense so it’s there in case you ever need it:
1. Carefully document how all employees are performing
You might be tempted to document only your problem employees. A better practice is to keep performance records on all of your workers. This means carefully recording your observations, praise, counseling, and warnings—in writing—in clear, objective language.
2. Make sure employees know what’s in their files
Don't slip negative information into files without letting employees see it. Ask workers to initial a summary of your discussions and the goals that have been agreed to. (Note that in some states, employees have the right to inspect their personnel files.)
3. Be candid and explicit
Although many managers are uncomfortable with this, it’s important to be frank. Don’t use euphemisms, such as, “There's room for improvement," or duck out of giving an employee strong, but necessary, constructive criticism. Be specific about what’s gone wrong and offer concrete steps for improvement. It is unfair and unrealistic to expect an employee to improve unless he or she knows exactly what is amiss.
4. Don’t give raises to marginal employees
Some employers give poor performers a raise in the hope it will motivate them to improve. Without counseling an employee about his or her inadequate performance, however, this strategy is doomed to fail. What’s more, if the employee is terminated and sues, he or she can point to the history of pay raises to show that he or she was doing a good job.
5. Don’t mention age, gender, race, etc.
This means, for example, not telling a 45-year-old, “The younger salespeople seem to grasp our new products better than you do,” or “We need some young blood around here.”
6. Don’t let marginal performers slide
When an employee’s poor performance goes uncriticized for several weeks or months, negative comments in a performance evaluation lose credibility and are likely to trigger complaints of unfairness or bias.
7. Use relevant, objective standards
Look at the job and how it is being performed, rather than the person. Some examples of objective criteria are:
•Maintaining or increasing sales volume
•Handling customer complaints
•Operating within a budget
•Meeting deadlines
•Writing reports
•Complying with certain company policies (such as those regarding absences)
•Reducing costs
•Overall productivity
8. Back up judgments with facts
Use production records, disciplinary reports, attendance records, examples of work quality, etc., to back up your assertions, and be clear about how you arrived at your conclusion
9. Make sure employees understand all performance standards
If they don’t fully understand their obligations and how their work is being judged, the performance appraisal system will be of little use, either as a performance management tool or a defense in a lawsuit.
10. Keep all performance evaluation materials in a confidential file
While employees should have access to their performance appraisals, others’ access to such information should be strictly on a need-to-know basis.
Summarized from Today’s HR Daily Advisor Tip
In court, an inadequate or inaccurate performance evaluation can be used against you with devastating results. Many companies that have fired employees for poor performance and then found out too late that its appraisal documents didn't support the defense.
We often don't think of appraisals as legal challenges, but they often figure prominently in lawsuits. Juries tend to come down hard on employers who:
•Don't appear to have told the employee what was expected.
•Don’t appear to have given an employee a chance to improve.
•Say bad performance as the reason for a firing, but awarded the person a "satisfactory" or "good" rating.
In some companies, vital personnel decisions are made casually. This informal approach is easy, but dangerous. When there are no established criteria or performance standards on which to base personnel actions, such as transfers, promotions, terminations, and pay increases, managers tend to be influenced by the employee’s personality rather than what he or she is actually doing on the job.
10 Rules for Appraisals
Here are 10 tips for building a solid defense so it’s there in case you ever need it:
1. Carefully document how all employees are performing
You might be tempted to document only your problem employees. A better practice is to keep performance records on all of your workers. This means carefully recording your observations, praise, counseling, and warnings—in writing—in clear, objective language.
2. Make sure employees know what’s in their files
Don't slip negative information into files without letting employees see it. Ask workers to initial a summary of your discussions and the goals that have been agreed to. (Note that in some states, employees have the right to inspect their personnel files.)
3. Be candid and explicit
Although many managers are uncomfortable with this, it’s important to be frank. Don’t use euphemisms, such as, “There's room for improvement," or duck out of giving an employee strong, but necessary, constructive criticism. Be specific about what’s gone wrong and offer concrete steps for improvement. It is unfair and unrealistic to expect an employee to improve unless he or she knows exactly what is amiss.
4. Don’t give raises to marginal employees
Some employers give poor performers a raise in the hope it will motivate them to improve. Without counseling an employee about his or her inadequate performance, however, this strategy is doomed to fail. What’s more, if the employee is terminated and sues, he or she can point to the history of pay raises to show that he or she was doing a good job.
5. Don’t mention age, gender, race, etc.
This means, for example, not telling a 45-year-old, “The younger salespeople seem to grasp our new products better than you do,” or “We need some young blood around here.”
6. Don’t let marginal performers slide
When an employee’s poor performance goes uncriticized for several weeks or months, negative comments in a performance evaluation lose credibility and are likely to trigger complaints of unfairness or bias.
7. Use relevant, objective standards
Look at the job and how it is being performed, rather than the person. Some examples of objective criteria are:
•Maintaining or increasing sales volume
•Handling customer complaints
•Operating within a budget
•Meeting deadlines
•Writing reports
•Complying with certain company policies (such as those regarding absences)
•Reducing costs
•Overall productivity
8. Back up judgments with facts
Use production records, disciplinary reports, attendance records, examples of work quality, etc., to back up your assertions, and be clear about how you arrived at your conclusion
9. Make sure employees understand all performance standards
If they don’t fully understand their obligations and how their work is being judged, the performance appraisal system will be of little use, either as a performance management tool or a defense in a lawsuit.
10. Keep all performance evaluation materials in a confidential file
While employees should have access to their performance appraisals, others’ access to such information should be strictly on a need-to-know basis.
Summarized from Today’s HR Daily Advisor Tip
Monday, May 31, 2010
HR Policies: Exhibit ‘A’ for You or Them?
Time after time, your success in court depends on your policies. Either an employee claims you violated your policy, or you claim the employee did. In either case, the policy is exhibit A, and it's likely to be dissected line by line. Are your policies ready?
How do you best ensure that your HR policies will hold up in court? Below are five bulletproof suggestions:
Tip 1: Be Aware (and Beware) of State Laws
Many employers are caught in lawsuits where the employer's policy complied with federal laws, but neglected to consider the impact of relevant state laws.
There are countless ways in which state and federal law overlap and diverge. Here are several of the most common:
Antidiscrimination
The federal antidiscrimination laws protect employees in organizations with 15 or more employees (Title VII and ADA), 20 or more employees (ADEA), or regardless of employer size (USERRA).
In comparison, most states have established antidiscrimination laws that cover employers with anywhere from one employee (e.g., Alaska, Colorado, and Michigan) to 12 employees (e.g., West Virginia).
Protected Classes
Under federal antidiscrimination law, employees are protected because of sex, race, ethnicity, age, national origin, disability, and service in the armed services.
A majority of states have moved to expand the protected classes of employees, adding sexual orientation and gender identity (e.g., Illinois, Maine, and Washington); use of lawful products (smoking) (e.g., California, Colorado, and Connecticut); genetic discrimination, HIV/AIDs, and/or sickle-cell trait (e.g., Arizona, Iowa, Kentucky, Maine, and North Carolina); arrest, conviction, and military records (e.g., North Carolina, California, Maryland, and Michigan); and marital status (e.g., Alaska, Illinois, Montana, and Nebraska) to name just a few. (The above list is not all inclusive).
Leaves of Absence
A number of states have adopted state-specific FMLA-type laws that generally follow the federal FMLA, with a few exceptions critical to employers in those states. For example, Connecticut allows for 16 weeks of protected family leave in a 24-month period (versus 12 weeks in a 12-month period under federal FMLA).
In addition, many states have adopted medical leave provisions for organ and bone marrow donation and blood donation (e.g., Arkansas, Connecticut, Illinois, Minnesota, and New York); leave for crime victims (e.g., California, Colorado, and Oregon); and leave for school visitation or other family obligations (e.g., California, Illinois, North Carolina, and Vermont).
Wage and Hour Provisions
The federal Fair Labor Standards Act (FLSA) is often supplemented by state laws regarding minimum wage, overtime, and meal or break periods. For example:
Overtime. Many states have chosen to diverge from the federal minimum overtime requirements for all hours worked in excess of 40 hours per week. For example, Alaska state law requires overtime for hours worked in excess of 8 hours per day.
Some states have legislated overtime requirements for specific industries in which overtime is frequent. For example, in New York, all hours worked by “resort employees” on the seventh consecutive workday are paid at an overtime rate.
Meal or break periods. The federal FLSA does not regulate meal or break periods. As a result, many states have stepped in and created their own rules. State provisions usually specify the number of hours that an employee must work to qualify for a break. North Carolina does not have a supplemental law at this time.
Tip 2: Make a Policy, Not a Contract
Depending on the specific facts of a case, state courts throughout the country have ruled that policy wording in employee handbooks may, in some circumstances, create a contract between employer and employee.
In this climate, you must treat your handbook that explains your policies as a quasi-legal document; and for this reason, it is best to seek an attorney’s advice in drafting the language.
Get Signatures
All workers should be asked to sign an acknowledgment that they have received and understand the policies in the handbook.
Tip 3: Train Supervisors and Employees
Of course, perfect policies are only half the battle—supervisors and employees must not only know what the company’s policies are, but they must also understand the reasons behind them. Without this understanding, they cannot effectively enforce and follow the policies.
Simply passing out policy manuals and suggesting that supervisors and employees read them isn't going to get the job done. Training is necessary, particularly if you have added new staff, changed any policies, or modified policies or procedures.
Tip 4: Coordinate Your Policy Manual with Other Manuals
Most companies have at least two types of policy manuals: one aimed at supervisors and managers and the other aimed at employees, usually called the “employee handbook.”
In addition, there may be a number of supplementary publications in the form of booklets or brochures describing the company’s programs in such areas as employee benefits, tuition aid, health and medical services, etc.
The important thing is to keep all policy-related publications current and in conformance with each other. A policy in one publication that is contradicted by a policy in another publication won't count for much in court.
There must be a single, up-to-date, authoritative source of guidance and information to which managers and supervisors can turn.
Tip 5: Keep Your Manual Up to Date
The work of policy management never really ends. In most companies a group of employees meets regularly to review changes in the law, government regulations, management philosophy, and employee benefits.
Remember that while an organization can change its policies at any time, those changes should be announced before—and not after—the fact and introduced to all employees, supervisors, and managers.
Also, keep in mind that some states require employers to provide employees with consideration (something of value beyond continued employment) if they reduce or eliminate a promised benefit (e.g., vacation).
How about your policies? Ready to be "Exhibit A" in court? Our editors estimate that there are 50 or so policies that need regular updating (or may need to be written.) It's easy to let this slide, but you can't afford to back-burner work on your policies—they're your only hope for consistent and compliant management that avoids lawsuits.
Many of you have heard me speak of "exhibit A" regarding not only your policies, but your job descriptions, disciplinary write-ups or any document related to requirements or conduct of employees. I always remind you to think about what you write, if you wouldn't want to see it as "exhibit A" in a court of law or on the front page of the Charlotte Observer, DON'T WRITE IT!
Contact The Whitford Group for assistance at TheWhitfordGroup@aol.com
by Steve Bruce - Summarized
How do you best ensure that your HR policies will hold up in court? Below are five bulletproof suggestions:
Tip 1: Be Aware (and Beware) of State Laws
Many employers are caught in lawsuits where the employer's policy complied with federal laws, but neglected to consider the impact of relevant state laws.
There are countless ways in which state and federal law overlap and diverge. Here are several of the most common:
Antidiscrimination
The federal antidiscrimination laws protect employees in organizations with 15 or more employees (Title VII and ADA), 20 or more employees (ADEA), or regardless of employer size (USERRA).
In comparison, most states have established antidiscrimination laws that cover employers with anywhere from one employee (e.g., Alaska, Colorado, and Michigan) to 12 employees (e.g., West Virginia).
Protected Classes
Under federal antidiscrimination law, employees are protected because of sex, race, ethnicity, age, national origin, disability, and service in the armed services.
A majority of states have moved to expand the protected classes of employees, adding sexual orientation and gender identity (e.g., Illinois, Maine, and Washington); use of lawful products (smoking) (e.g., California, Colorado, and Connecticut); genetic discrimination, HIV/AIDs, and/or sickle-cell trait (e.g., Arizona, Iowa, Kentucky, Maine, and North Carolina); arrest, conviction, and military records (e.g., North Carolina, California, Maryland, and Michigan); and marital status (e.g., Alaska, Illinois, Montana, and Nebraska) to name just a few. (The above list is not all inclusive).
Leaves of Absence
A number of states have adopted state-specific FMLA-type laws that generally follow the federal FMLA, with a few exceptions critical to employers in those states. For example, Connecticut allows for 16 weeks of protected family leave in a 24-month period (versus 12 weeks in a 12-month period under federal FMLA).
In addition, many states have adopted medical leave provisions for organ and bone marrow donation and blood donation (e.g., Arkansas, Connecticut, Illinois, Minnesota, and New York); leave for crime victims (e.g., California, Colorado, and Oregon); and leave for school visitation or other family obligations (e.g., California, Illinois, North Carolina, and Vermont).
Wage and Hour Provisions
The federal Fair Labor Standards Act (FLSA) is often supplemented by state laws regarding minimum wage, overtime, and meal or break periods. For example:
Overtime. Many states have chosen to diverge from the federal minimum overtime requirements for all hours worked in excess of 40 hours per week. For example, Alaska state law requires overtime for hours worked in excess of 8 hours per day.
Some states have legislated overtime requirements for specific industries in which overtime is frequent. For example, in New York, all hours worked by “resort employees” on the seventh consecutive workday are paid at an overtime rate.
Meal or break periods. The federal FLSA does not regulate meal or break periods. As a result, many states have stepped in and created their own rules. State provisions usually specify the number of hours that an employee must work to qualify for a break. North Carolina does not have a supplemental law at this time.
Tip 2: Make a Policy, Not a Contract
Depending on the specific facts of a case, state courts throughout the country have ruled that policy wording in employee handbooks may, in some circumstances, create a contract between employer and employee.
In this climate, you must treat your handbook that explains your policies as a quasi-legal document; and for this reason, it is best to seek an attorney’s advice in drafting the language.
Get Signatures
All workers should be asked to sign an acknowledgment that they have received and understand the policies in the handbook.
Tip 3: Train Supervisors and Employees
Of course, perfect policies are only half the battle—supervisors and employees must not only know what the company’s policies are, but they must also understand the reasons behind them. Without this understanding, they cannot effectively enforce and follow the policies.
Simply passing out policy manuals and suggesting that supervisors and employees read them isn't going to get the job done. Training is necessary, particularly if you have added new staff, changed any policies, or modified policies or procedures.
Tip 4: Coordinate Your Policy Manual with Other Manuals
Most companies have at least two types of policy manuals: one aimed at supervisors and managers and the other aimed at employees, usually called the “employee handbook.”
In addition, there may be a number of supplementary publications in the form of booklets or brochures describing the company’s programs in such areas as employee benefits, tuition aid, health and medical services, etc.
The important thing is to keep all policy-related publications current and in conformance with each other. A policy in one publication that is contradicted by a policy in another publication won't count for much in court.
There must be a single, up-to-date, authoritative source of guidance and information to which managers and supervisors can turn.
Tip 5: Keep Your Manual Up to Date
The work of policy management never really ends. In most companies a group of employees meets regularly to review changes in the law, government regulations, management philosophy, and employee benefits.
Remember that while an organization can change its policies at any time, those changes should be announced before—and not after—the fact and introduced to all employees, supervisors, and managers.
Also, keep in mind that some states require employers to provide employees with consideration (something of value beyond continued employment) if they reduce or eliminate a promised benefit (e.g., vacation).
How about your policies? Ready to be "Exhibit A" in court? Our editors estimate that there are 50 or so policies that need regular updating (or may need to be written.) It's easy to let this slide, but you can't afford to back-burner work on your policies—they're your only hope for consistent and compliant management that avoids lawsuits.
Many of you have heard me speak of "exhibit A" regarding not only your policies, but your job descriptions, disciplinary write-ups or any document related to requirements or conduct of employees. I always remind you to think about what you write, if you wouldn't want to see it as "exhibit A" in a court of law or on the front page of the Charlotte Observer, DON'T WRITE IT!
Contact The Whitford Group for assistance at TheWhitfordGroup@aol.com
by Steve Bruce - Summarized
Job Descriptions—The First Place the Feds Look
When "they" come to check up on you, whether they're agency investigators or class-action-minded attorneys, the first stop is the job description. Today we'll begin our look at three of the fed's favorite job description checkpoints: ADA, FLSA, and discrimination.
From the ADA standpoint, the most important thing the job description does is to delineate the essential functions. This is because in accommodating employees with disabilities, they must be able to accomplish the essential functions of the job with or without reasonable accommodation. Inability to perform nonessential functions does not disqualify the individual.
Here are a few pointers:
A function may be essential in one setting, but nonessential in another. For example, if a worker spends 90 percent of his time operating a particular piece of machinery, that's an essential function of his job. But how about for the person who operates that machine during the regular operator's lunch hour? That might be essential if:
1. The machine has to keep running (say it's filled with molten plastic that would congeal if it stops running), and
2. There's no one else who can be trained to run the machine.
However, if the plant has 30 people who are trained to operate that piece of machinery, the task of running it over the lunch hour wouldn't be essential.
The point? It's not necessarily the percentage of time a person spends on the task that makes it essential. The setting and situation have to be taken into account as well.
Describe an essential function more as an outcome than a method. For example:
Not "uses hand truck to move heavy boxes,” but "moves heavy boxes."
Not "walks from station to station," but "moves from station to station."
Do it now, not after the fact. If you try to craft your essential functions list after someone raises a complaint, it won't be credible.
How to Determine 'Essential'
Here are some questions you can use to determine whether a job function is essential:
•Does the position exist to perform this job function? (That would make it essential.)
•What is the employer's judgment regarding which functions or job requirements are essential? (The employer's view will be given due weight, but won't be determinative on its own.)
•Would the position be fundamentally altered if this function or job responsibility were altered? (That suggests that it's essential.)
•Is the number of employees to whom this function or job requirement could be given limited? (If yes, that makes it harder to pass off this function.)
•Is this a highly specialized function or job requirement? (Again, that makes it harder to cross-train someone else to do it.)
•What would be the consequences if this function or job requirement were not included? (If there are no consequences, it's likely not essential.)
•Does the current or past incumbent perform this function or job requirement? (If not, it's probably not essential.)
•Are the essential functions of this job linked to a specific location? (This could make it more difficult for others to take on this responsibility.)
In addition to making your essential/nonessential determination, it's helpful to pin duties down with a clear description of requirements and conditions. You might mention:
•Supervision (how much, how often)
•Physical requirements (e.g., sitting, standing, grasping). For lifting or carrying, also specify pounds (e.g., able to lift 50 pound several times each day).
•Mental requirements (e.g., thinking analytically), discriminating colors, making decisions, remembering names)
•Performance requirements (e.g., staying organized, meeting deadlines, attending meetings)
•Environmental factors (e.g., inside/outside, hot/cold, dusty, odors, fumes)
•Tools and equipment (e.g., computer, forklift, respirator)
•Other requirements (e.g., certificate, license, education)
While it is important to be detailed and precise, be sure that all the elements you list are true. If several of the things listed are not true, that inaccuracy will color everything you claim. (For example, if you say "lifts 50 pounds daily" but the person in the job never actually does that, your essential functions won't mean much.)
Today's HR Daily Advisor Tip: May 19, 2010
From the ADA standpoint, the most important thing the job description does is to delineate the essential functions. This is because in accommodating employees with disabilities, they must be able to accomplish the essential functions of the job with or without reasonable accommodation. Inability to perform nonessential functions does not disqualify the individual.
Here are a few pointers:
A function may be essential in one setting, but nonessential in another. For example, if a worker spends 90 percent of his time operating a particular piece of machinery, that's an essential function of his job. But how about for the person who operates that machine during the regular operator's lunch hour? That might be essential if:
1. The machine has to keep running (say it's filled with molten plastic that would congeal if it stops running), and
2. There's no one else who can be trained to run the machine.
However, if the plant has 30 people who are trained to operate that piece of machinery, the task of running it over the lunch hour wouldn't be essential.
The point? It's not necessarily the percentage of time a person spends on the task that makes it essential. The setting and situation have to be taken into account as well.
Describe an essential function more as an outcome than a method. For example:
Not "uses hand truck to move heavy boxes,” but "moves heavy boxes."
Not "walks from station to station," but "moves from station to station."
Do it now, not after the fact. If you try to craft your essential functions list after someone raises a complaint, it won't be credible.
How to Determine 'Essential'
Here are some questions you can use to determine whether a job function is essential:
•Does the position exist to perform this job function? (That would make it essential.)
•What is the employer's judgment regarding which functions or job requirements are essential? (The employer's view will be given due weight, but won't be determinative on its own.)
•Would the position be fundamentally altered if this function or job responsibility were altered? (That suggests that it's essential.)
•Is the number of employees to whom this function or job requirement could be given limited? (If yes, that makes it harder to pass off this function.)
•Is this a highly specialized function or job requirement? (Again, that makes it harder to cross-train someone else to do it.)
•What would be the consequences if this function or job requirement were not included? (If there are no consequences, it's likely not essential.)
•Does the current or past incumbent perform this function or job requirement? (If not, it's probably not essential.)
•Are the essential functions of this job linked to a specific location? (This could make it more difficult for others to take on this responsibility.)
In addition to making your essential/nonessential determination, it's helpful to pin duties down with a clear description of requirements and conditions. You might mention:
•Supervision (how much, how often)
•Physical requirements (e.g., sitting, standing, grasping). For lifting or carrying, also specify pounds (e.g., able to lift 50 pound several times each day).
•Mental requirements (e.g., thinking analytically), discriminating colors, making decisions, remembering names)
•Performance requirements (e.g., staying organized, meeting deadlines, attending meetings)
•Environmental factors (e.g., inside/outside, hot/cold, dusty, odors, fumes)
•Tools and equipment (e.g., computer, forklift, respirator)
•Other requirements (e.g., certificate, license, education)
While it is important to be detailed and precise, be sure that all the elements you list are true. If several of the things listed are not true, that inaccuracy will color everything you claim. (For example, if you say "lifts 50 pounds daily" but the person in the job never actually does that, your essential functions won't mean much.)
Today's HR Daily Advisor Tip: May 19, 2010
DOL Issues New Poster Advising Employees of Labor Rights
Last Thursday, the Department of Labor's Office of Labor-Management Standards issued final rules requiring federal contractors and subcontractors to post notice to employees of their rights under federal labor laws.
The new poster follows President Obama's January 30, 2009 Executive Order requiring contractors to advise employees of their rights to organize and collectively bargain with their employers under the National Labor Relations Act.
In another Executive Order, President Obama ended requirements that contractors post notices advising employees of their so-called Beck rights to avoid having union dues used for certain political purposes. The new posting requirement must be included in any subcontracts prepared by federal contractors. Failure to adhere to these requirements can result in the suspension or cancellation of the contract, and possible debarment of the federal contractor.
The new posters must be in place by June 21, 2010. If the employer has a significant percentage of its workforce that does not speak English, the posters must be translated into those primary languages (translated posters can be obtained from DOL). The new posters can be obtained at http://www.dol.gov/olms/regs/compliance/EmployeeRightsPoster11x17_Final.pdf.
ParkerPoe EmployNews
Issue 571, May 28, 2010
The new poster follows President Obama's January 30, 2009 Executive Order requiring contractors to advise employees of their rights to organize and collectively bargain with their employers under the National Labor Relations Act.
In another Executive Order, President Obama ended requirements that contractors post notices advising employees of their so-called Beck rights to avoid having union dues used for certain political purposes. The new posting requirement must be included in any subcontracts prepared by federal contractors. Failure to adhere to these requirements can result in the suspension or cancellation of the contract, and possible debarment of the federal contractor.
The new posters must be in place by June 21, 2010. If the employer has a significant percentage of its workforce that does not speak English, the posters must be translated into those primary languages (translated posters can be obtained from DOL). The new posters can be obtained at http://www.dol.gov/olms/regs/compliance/EmployeeRightsPoster11x17_Final.pdf.
ParkerPoe EmployNews
Issue 571, May 28, 2010
Wage & Hour Facts
Wage and hour should be the easiest job in HR, but there are a surprising number of misconceptions, and there is a surprising amount of misinformation being disseminated by savvy-sounding "experts" wandering the Internet chat sites.
Cruise HR on the Internet, and you'll be stunned. Mixed in with accurate answers are other answers—all delivered with total confidence—that are wildly inaccurate. Today Advisor takes some of these wage and hour myths—and busts them. (Note that state law may differ from federal law.)
Myth #1—Employees are entitled to breaks and a meal period if they work a full day.
Fact. The federal Fair Labor Standards Act (FLSA) does not require breaks or meal periods be given to workers. However, if you do give breaks or meal periods, there are rules concerning payment.
Beware that some states do have meal and rest-break requirements. If you work in a state that does not require breaks or meal periods, these benefits are a matter of agreement between the employer and the employee or the employee's representative.
Myth #2—Employees must be given 2 weeks' notice before being terminated or laid off.
Fact. The FLSA has no requirements for notice to an employee before termination or lay-off. However, the federal Worker Adjustment and Retraining Notification (WARN) Act requires employers, in certain cases, to give workers advanced notice of mass layoffs or plant closures.
Some states may have requirements for employee notification before termination or lay-off.
Myth #3—You can't work employees more than 60 hours a week.
Fact. The FLSA does not limit the number of hours per day or per week that employees aged 16 years and older can be required to work.
Myth #4—Employers are required to pay employees for federal holidays, sick days, and vacations.
Fact. The FLSA does not require payment for time not worked, such as vacations, sick leave, or holidays (federal or otherwise). These benefits are a matter of agreement between an employer and an employee or the employee's representative.
Myth #5—Terminated employees must be given their final check on their last day of work.
Fact. Employers are not required by federal law to give former employees their final paycheck immediately. Some states, however, do require immediate payment.
Myth #6—To be considered full-time, an employee must work a minimum of 24 hours per week.
Fact. The FLSA does not define full-time employment or part-time employment. Generally, this is a matter to be determined by the employer. Whether an employee is considered full-time or part-time does not change the application of the FLSA.
Myth #7—Employees are owed pay raises.
Fact. Pay raises are generally a matter of agreement between an employer and employee or the employee's representative. Pay raises for employees who are already making the federal minimum wage are not required by FLSA.
Myth #8—Employers are required to offer extra pay for weekend or night work.
Fact. The FLSA does not require extra pay for weekend or night work. This is a matter of agreement between the employer and the employee or the employee's representative. However, the FLSA does require that covered, nonexempt workers be paid not less than time and one-half the employee's regular rate for time worked over 40 hours in a workweek.
Myth #9—Employees must be paid double time for work on holidays and weekends.
Fact. The FLSA does not require double time. This is a matter of agreement between the employer and the employee or the employee's representative.
Myth #10—Employees may not be required to perform work that is not on their job descriptions.
Fact. The FLSA does not limit the types of work employees aged 18 and older may be required to perform. However, there are restrictions on what work employees under the age of 18 can do. This is true whether or not the work asked of the employee is listed in the employee's job description.
Myth #11—If workers receive tips greater than the minimum wage, they don't have to get additional wages.
Fact. The FLSA sets a federal minimum wage of $7.25 per hour effective July 24, 2009 for covered, nonexempt employees. An employer of a tipped employee is required to pay only $2.13 an hour in direct wages if that amount plus the tips received equals at least the federal minimum wage, the employee retains all tips, and the employee customarily and regularly receives more than $30 a month in tips. If an employee's tips combined with the employer's direct wages of at least $2.13 an hour do not equal the federal minimum hourly wage, the employer must make up the difference.
Some states have their own minimum wage laws. When an employee is subject to both the federal and state wage laws, the employee is entitled to the provisions that provide the greater benefits.
Summarized from Today's HR Daily Advisor Tip
Cruise HR on the Internet, and you'll be stunned. Mixed in with accurate answers are other answers—all delivered with total confidence—that are wildly inaccurate. Today Advisor takes some of these wage and hour myths—and busts them. (Note that state law may differ from federal law.)
Myth #1—Employees are entitled to breaks and a meal period if they work a full day.
Fact. The federal Fair Labor Standards Act (FLSA) does not require breaks or meal periods be given to workers. However, if you do give breaks or meal periods, there are rules concerning payment.
Beware that some states do have meal and rest-break requirements. If you work in a state that does not require breaks or meal periods, these benefits are a matter of agreement between the employer and the employee or the employee's representative.
Myth #2—Employees must be given 2 weeks' notice before being terminated or laid off.
Fact. The FLSA has no requirements for notice to an employee before termination or lay-off. However, the federal Worker Adjustment and Retraining Notification (WARN) Act requires employers, in certain cases, to give workers advanced notice of mass layoffs or plant closures.
Some states may have requirements for employee notification before termination or lay-off.
Myth #3—You can't work employees more than 60 hours a week.
Fact. The FLSA does not limit the number of hours per day or per week that employees aged 16 years and older can be required to work.
Myth #4—Employers are required to pay employees for federal holidays, sick days, and vacations.
Fact. The FLSA does not require payment for time not worked, such as vacations, sick leave, or holidays (federal or otherwise). These benefits are a matter of agreement between an employer and an employee or the employee's representative.
Myth #5—Terminated employees must be given their final check on their last day of work.
Fact. Employers are not required by federal law to give former employees their final paycheck immediately. Some states, however, do require immediate payment.
Myth #6—To be considered full-time, an employee must work a minimum of 24 hours per week.
Fact. The FLSA does not define full-time employment or part-time employment. Generally, this is a matter to be determined by the employer. Whether an employee is considered full-time or part-time does not change the application of the FLSA.
Myth #7—Employees are owed pay raises.
Fact. Pay raises are generally a matter of agreement between an employer and employee or the employee's representative. Pay raises for employees who are already making the federal minimum wage are not required by FLSA.
Myth #8—Employers are required to offer extra pay for weekend or night work.
Fact. The FLSA does not require extra pay for weekend or night work. This is a matter of agreement between the employer and the employee or the employee's representative. However, the FLSA does require that covered, nonexempt workers be paid not less than time and one-half the employee's regular rate for time worked over 40 hours in a workweek.
Myth #9—Employees must be paid double time for work on holidays and weekends.
Fact. The FLSA does not require double time. This is a matter of agreement between the employer and the employee or the employee's representative.
Myth #10—Employees may not be required to perform work that is not on their job descriptions.
Fact. The FLSA does not limit the types of work employees aged 18 and older may be required to perform. However, there are restrictions on what work employees under the age of 18 can do. This is true whether or not the work asked of the employee is listed in the employee's job description.
Myth #11—If workers receive tips greater than the minimum wage, they don't have to get additional wages.
Fact. The FLSA sets a federal minimum wage of $7.25 per hour effective July 24, 2009 for covered, nonexempt employees. An employer of a tipped employee is required to pay only $2.13 an hour in direct wages if that amount plus the tips received equals at least the federal minimum wage, the employee retains all tips, and the employee customarily and regularly receives more than $30 a month in tips. If an employee's tips combined with the employer's direct wages of at least $2.13 an hour do not equal the federal minimum hourly wage, the employer must make up the difference.
Some states have their own minimum wage laws. When an employee is subject to both the federal and state wage laws, the employee is entitled to the provisions that provide the greater benefits.
Summarized from Today's HR Daily Advisor Tip
Saturday, May 15, 2010
IRS - Health Care Reform Guidance
IRS Releases Guidance on Health Care Reform Small Employer Tax Credit
In March the Patient Protection and Affordable Care Act and the Health Care & Education Reconciliation Act of 2010 (together, "PPACA") were signed into law by President Obama. Among other sweeping changes to health care, PPACA contains a small business Federal income tax credit (the "Tax Credit") for certain small employers that provide health care coverage to their employees, effective for tax years beginning in 2010.
The IRS recently released guidance on the Tax Credit in a question and answer format. The guidance discusses which employers are eligible for the Tax Credit, how to calculate the Tax Credit, how to claim the Tax Credit, as well as provides information on transition relief for employers claiming the Tax Credit in 2010.
Small employers that provide health care coverage to their employees and that meet certain requirements ("Qualified Employers") generally are eligible for a Federal income tax credit for health insurance premiums they pay for certain employees.
In order to be a Qualified Employer:
(1) the employer must have fewer than 25 full-time equivalent employees ("FTEs") for the tax year,
(2) the average annual wages of its employees for the year must be less than $50,000 per FTE, and
(3) the employer must pay the premiums under a qualifying arrangement ("Qualifying Arrangement"). Additionally, tax-exempt employers may qualify as Qualified Employers for purposes of the Tax Credit; however, different rules for calculating the Tax Credit apply to tax-exempt employers, as discussed below.
Counting FTEs . The number of an employer's FTEs is determined by dividing the total hours for which the employer pays wages to employees during the year (but not more than 2,080 hours for any employee) by the number 2,080 (i.e., total hours paid to employees/2,080). The result, if not a whole number, is then rounded to the next lowest whole number. The final number is the employer's FTEs. This use of the formula, instead of just counting the number of employees an employer has on its payroll means that employers with more than 25 employees may qualify for the Tax Credit if some of the employees are part-time employees.
Determining Average Annual Wages . The amount of average annual wages is determined by first dividing the total wages paid by the employer to employees during the employer's tax year by the number of the employer's FTEs for the year (i.e., total amount of wages paid/total number of employer's FTEs). The result is then rounded down to the nearest $1,000 (if not otherwise a multiple of $1,000) and the resulting number is the amount of average annual wages. For purposes of this calculation, wages means wages as defined for FICA purposes (without regard to the wage base limitation).
What Constitutes a Qualifying Arrangement . The IRS defines a Qualifying Arrangement as a situation where the employer pays premiums for each employee enrolled in health care coverage offered by the employer in an amount equal to a uniform percentage (not less than 50%) of the premium cost of the coverage.
The IRS guidance makes clear that only premiums paid by the employer under Qualifying Arrangement are counted in calculating the Tax Credit. If an employer pays only a portion of the premiums for the coverage provided to employees under Qualifying Arrangement (with employees paying the rest), the amount of premiums counted in calculating the Tax Credit is only the portion paid by the employer. For example, if an employer pays 60% of the premiums for employees' coverage (with its employees paying the other 40%), only the 60% premium amount paid by the employer counts in calculating the Tax Credit. For purposes of the Tax Credit (including the requirement that at least 50% of the premium is paid by the employer), any premium paid pursuant to a salary reduction arrangement under a section 125 cafeteria plan is not treated as paid by the employer.
In addition, the amount of an employer's premium payments that counts for purposes of the Tax Credit is capped by the premium payments the employer would have made under the same arrangement if the average premium for the small group market in the state (or an area within the state) in which the employer offers coverage were substituted for the actual premium. The IRS has stated that the average premium for the small group market in a state (or an area within the state) will be determined by the Department of Health and Human Services and is expected to be posted on the IRS website by the end of April.
For tax years beginning in 2010 through 2013, the maximum Tax Credit is 35% of a Qualified Employer's premium expenses that count towards the Tax Credit. For tax years beginning in 2010 through 2013, the maximum Tax Credit for a tax-exempt Qualified Employer is 25% of the employer's premium expenses that count towards the Tax Credit. However, for tax-exempt Qualified Employers, the amount of the Tax Credit cannot exceed the total amount of income and Medicare (i.e., hospital insurance) tax the employer is required to withhold from employees' wages for the year and the employer share of Medicare tax on employees' wages.
Finally, the IRS stated that it intends to provide transition relief for Qualified Employers claiming the Tax Credit in 2010. This relief is intended to help those Qualified Employers who pay at least 50% of the premium for each of its employees, but not at uniform amounts and to help those Qualified Employers claiming the Tax Credit who pay an amount equal to 50% of the employee premium for individual coverage.
This new IRS guidance on the Tax Credit may provide small employers who provide their employees with health coverage an income tax credit for the 2010 tax year.
Since this portion of PPACA is effective for this tax year, small employers should begin to review their cost-sharing policies and other relevant records to determine if they may qualify for and take advantage of the Tax Credit this year. The IRS guidance may be found here: http://www.irs.gov/newsroom/article/0,,id=220839,00.html.
ParkerPoe, EmployNews, Issue 565
In March the Patient Protection and Affordable Care Act and the Health Care & Education Reconciliation Act of 2010 (together, "PPACA") were signed into law by President Obama. Among other sweeping changes to health care, PPACA contains a small business Federal income tax credit (the "Tax Credit") for certain small employers that provide health care coverage to their employees, effective for tax years beginning in 2010.
The IRS recently released guidance on the Tax Credit in a question and answer format. The guidance discusses which employers are eligible for the Tax Credit, how to calculate the Tax Credit, how to claim the Tax Credit, as well as provides information on transition relief for employers claiming the Tax Credit in 2010.
Small employers that provide health care coverage to their employees and that meet certain requirements ("Qualified Employers") generally are eligible for a Federal income tax credit for health insurance premiums they pay for certain employees.
In order to be a Qualified Employer:
(1) the employer must have fewer than 25 full-time equivalent employees ("FTEs") for the tax year,
(2) the average annual wages of its employees for the year must be less than $50,000 per FTE, and
(3) the employer must pay the premiums under a qualifying arrangement ("Qualifying Arrangement"). Additionally, tax-exempt employers may qualify as Qualified Employers for purposes of the Tax Credit; however, different rules for calculating the Tax Credit apply to tax-exempt employers, as discussed below.
Counting FTEs . The number of an employer's FTEs is determined by dividing the total hours for which the employer pays wages to employees during the year (but not more than 2,080 hours for any employee) by the number 2,080 (i.e., total hours paid to employees/2,080). The result, if not a whole number, is then rounded to the next lowest whole number. The final number is the employer's FTEs. This use of the formula, instead of just counting the number of employees an employer has on its payroll means that employers with more than 25 employees may qualify for the Tax Credit if some of the employees are part-time employees.
Determining Average Annual Wages . The amount of average annual wages is determined by first dividing the total wages paid by the employer to employees during the employer's tax year by the number of the employer's FTEs for the year (i.e., total amount of wages paid/total number of employer's FTEs). The result is then rounded down to the nearest $1,000 (if not otherwise a multiple of $1,000) and the resulting number is the amount of average annual wages. For purposes of this calculation, wages means wages as defined for FICA purposes (without regard to the wage base limitation).
What Constitutes a Qualifying Arrangement . The IRS defines a Qualifying Arrangement as a situation where the employer pays premiums for each employee enrolled in health care coverage offered by the employer in an amount equal to a uniform percentage (not less than 50%) of the premium cost of the coverage.
The IRS guidance makes clear that only premiums paid by the employer under Qualifying Arrangement are counted in calculating the Tax Credit. If an employer pays only a portion of the premiums for the coverage provided to employees under Qualifying Arrangement (with employees paying the rest), the amount of premiums counted in calculating the Tax Credit is only the portion paid by the employer. For example, if an employer pays 60% of the premiums for employees' coverage (with its employees paying the other 40%), only the 60% premium amount paid by the employer counts in calculating the Tax Credit. For purposes of the Tax Credit (including the requirement that at least 50% of the premium is paid by the employer), any premium paid pursuant to a salary reduction arrangement under a section 125 cafeteria plan is not treated as paid by the employer.
In addition, the amount of an employer's premium payments that counts for purposes of the Tax Credit is capped by the premium payments the employer would have made under the same arrangement if the average premium for the small group market in the state (or an area within the state) in which the employer offers coverage were substituted for the actual premium. The IRS has stated that the average premium for the small group market in a state (or an area within the state) will be determined by the Department of Health and Human Services and is expected to be posted on the IRS website by the end of April.
For tax years beginning in 2010 through 2013, the maximum Tax Credit is 35% of a Qualified Employer's premium expenses that count towards the Tax Credit. For tax years beginning in 2010 through 2013, the maximum Tax Credit for a tax-exempt Qualified Employer is 25% of the employer's premium expenses that count towards the Tax Credit. However, for tax-exempt Qualified Employers, the amount of the Tax Credit cannot exceed the total amount of income and Medicare (i.e., hospital insurance) tax the employer is required to withhold from employees' wages for the year and the employer share of Medicare tax on employees' wages.
Finally, the IRS stated that it intends to provide transition relief for Qualified Employers claiming the Tax Credit in 2010. This relief is intended to help those Qualified Employers who pay at least 50% of the premium for each of its employees, but not at uniform amounts and to help those Qualified Employers claiming the Tax Credit who pay an amount equal to 50% of the employee premium for individual coverage.
This new IRS guidance on the Tax Credit may provide small employers who provide their employees with health coverage an income tax credit for the 2010 tax year.
Since this portion of PPACA is effective for this tax year, small employers should begin to review their cost-sharing policies and other relevant records to determine if they may qualify for and take advantage of the Tax Credit this year. The IRS guidance may be found here: http://www.irs.gov/newsroom/article/0,,id=220839,00.html.
ParkerPoe, EmployNews, Issue 565
Health Care Reform Update - Grandfathered Plans
Health Care Reform Update: Clarification on "Grandfathered" Plans
As discussed in last week's issue of EmployNews , President Obama recently signed into law the Patient Protection and Affordable Care Act and the Health Care & Education Reconciliation Act of 2010 (together, the "Acts"). Last week's article had a brief discussion regarding "grandfathered" health plans and the applicability of the Acts to such plans. After receiving additional guidance on "grandfathered" health plans, the following provides clarification and additional information on such plans and answers some questions regarding this exception from certain provisions of the Acts.
What is a "grandfathered" health plan?
A "grandfathered" health plan is any group health plan or individual coverage that was in effect on the date of the Acts' enactment on March 23, 2010. "Grandfathered" status is important under the Acts as certain provisions of the Acts do not apply to grandfathered plans (or at least to many participants under "grandfathered" plans), or apply to such plans at a later date. There remain many questions regarding "grandfathered" plans and the extent to which "grandfathered" status will apply. It is hoped that future guidance will provide clarification of these issues.
What provisions of the Acts apply to "grandfathered" health plans in the short-term?
The following lists some of the key provisions of the Acts that apply to "grandfathered" health plans with plan years beginning on or after September 23, 2010:
•Dependent Coverage Until Age 26 - The Acts require group health plans (including "grandfathered" health plans) that cover dependents to provide coverage for dependent children until they reach age 26, regardless of student status or marital status. However, for plan years beginning before January 1, 2014, coverage need not be offered by a "grandfathered" plan if a dependent is eligible to enroll for coverage under another employer-sponsored group health plan.
•Restrictions on Annual and Lifetime Limits - Group health plans (including "grandfathered" health plans) may not impose lifetime limits or "unreasonable" annual limits on the value of "essential benefits" for any plan participant or beneficiary. For plan years beginning on or after January 1, 2014, group health plans (including "grandfathered" health plans) may not impose any annual limit on such essential benefits. The definition of "essential benefits" will be determined by Department of Health and Human Services regulations.
•Prohibition on Retroactive Cancellation of Coverage - Group health plans (including "grandfathered" health plans) may not retroactively cancel a participant's coverage once the participant is enrolled in the plan unless the individual has engaged in fraud or made an intentional misrepresentation of a material fact. Prior notice requirements also apply.
•Restrictions on Preexisting Conditions - The Acts mandate that group health plans (including "grandfathered" health plans) may not impose any preexisting condition exclusions for eligible children under age 19. In the future, this mandate will be expanded, and for plan years beginning on or after January 1, 2014, group health plans may not impose any preexisting condition exclusions for any individual.
The following key provisions of the Acts apply to "grandfathered" health plans beginning on January 1, 2011:
•W-2 Reporting of Health Benefits - Employers will be required to report the value of health benefits on an employee's IRS Form W-2.
•No Reimbursement of Over-the-Counter Medicine or Drug Purchases - Health flexible spending accounts, health reimbursement arrangements, and health savings accounts may no longer reimburse purchases of over-the-counter medicines or drugs (except insulin) without a prescription from a doctor.
What provisions of the Acts do not apply to "grandfathered" health plans?
"Grandfathered" health plans are excluded from the following provisions of the Acts so long as the plan maintains its "grandfathered" status:
•Preventative Care Benefits - For plan years beginning on or after September 23, 2010the Acts require that group health plans (other than "grandfathered" health plans) offer certain preventative care benefits, such as immunizations and breast cancer screening, on a first-dollar basis, without cost to participants.
•Nondiscrimination Testing - Currently, the existing Internal Revenue Code rules for nondiscrimination testing apply only to self-insured plans. For plan years beginning on or after September 23, 2010, the Acts require that fully-insured health plans (other than "grandfathered" health plans) apply the same nondiscrimination tests in an effort to discourage plans that cover only high-ranking employees.
•External Review of Claim Denials and Appeals - For plan years beginning on or after September 23, 2010, group health plans (other than "grandfathered" health plans) must provide a mechanism in their claims procedures for an external review process, among other things.
How can a plan lose "grandfathered" status?
It currently appears that a plan will not lose its "grandfathered" status if new employees (and their dependents) are enrolled in the plan after March 23, 2010. A plan also will not lose its "grandfathered" status even if an individual, who was enrolled in the plan on March 23, 2010, chooses to add their dependents to the plan after March 23, 2010, so long as the plan offered dependent coverage prior to March 23, 2010. However, at this point, it is not clear whether a plan would lose its "grandfathered" status under the Acts if design or benefit changes are made to the plan. We anticipate more guidance on this aspect of "grandfathered" plan status.
Plan sponsors whose plans were in effect on March 23, 2010, and fall under the "grandfathered" plan exception should review the terms of their plans and become acquainted with the provisions of the Acts that will apply in the near future. Additionally, plan sponsors should continue to review future guidance as it is released and ensure that their plans continue to remain in compliance with the terms of the Act. As future guidance is released, we will be providing additional alerts on this landmark legislation.
Note: In some cases, the effective date for the provisions of the Acts described above may differ for collectively bargained plans.
ParkerPoe, EmployNews, Issue 564
As discussed in last week's issue of EmployNews , President Obama recently signed into law the Patient Protection and Affordable Care Act and the Health Care & Education Reconciliation Act of 2010 (together, the "Acts"). Last week's article had a brief discussion regarding "grandfathered" health plans and the applicability of the Acts to such plans. After receiving additional guidance on "grandfathered" health plans, the following provides clarification and additional information on such plans and answers some questions regarding this exception from certain provisions of the Acts.
What is a "grandfathered" health plan?
A "grandfathered" health plan is any group health plan or individual coverage that was in effect on the date of the Acts' enactment on March 23, 2010. "Grandfathered" status is important under the Acts as certain provisions of the Acts do not apply to grandfathered plans (or at least to many participants under "grandfathered" plans), or apply to such plans at a later date. There remain many questions regarding "grandfathered" plans and the extent to which "grandfathered" status will apply. It is hoped that future guidance will provide clarification of these issues.
What provisions of the Acts apply to "grandfathered" health plans in the short-term?
The following lists some of the key provisions of the Acts that apply to "grandfathered" health plans with plan years beginning on or after September 23, 2010:
•Dependent Coverage Until Age 26 - The Acts require group health plans (including "grandfathered" health plans) that cover dependents to provide coverage for dependent children until they reach age 26, regardless of student status or marital status. However, for plan years beginning before January 1, 2014, coverage need not be offered by a "grandfathered" plan if a dependent is eligible to enroll for coverage under another employer-sponsored group health plan.
•Restrictions on Annual and Lifetime Limits - Group health plans (including "grandfathered" health plans) may not impose lifetime limits or "unreasonable" annual limits on the value of "essential benefits" for any plan participant or beneficiary. For plan years beginning on or after January 1, 2014, group health plans (including "grandfathered" health plans) may not impose any annual limit on such essential benefits. The definition of "essential benefits" will be determined by Department of Health and Human Services regulations.
•Prohibition on Retroactive Cancellation of Coverage - Group health plans (including "grandfathered" health plans) may not retroactively cancel a participant's coverage once the participant is enrolled in the plan unless the individual has engaged in fraud or made an intentional misrepresentation of a material fact. Prior notice requirements also apply.
•Restrictions on Preexisting Conditions - The Acts mandate that group health plans (including "grandfathered" health plans) may not impose any preexisting condition exclusions for eligible children under age 19. In the future, this mandate will be expanded, and for plan years beginning on or after January 1, 2014, group health plans may not impose any preexisting condition exclusions for any individual.
The following key provisions of the Acts apply to "grandfathered" health plans beginning on January 1, 2011:
•W-2 Reporting of Health Benefits - Employers will be required to report the value of health benefits on an employee's IRS Form W-2.
•No Reimbursement of Over-the-Counter Medicine or Drug Purchases - Health flexible spending accounts, health reimbursement arrangements, and health savings accounts may no longer reimburse purchases of over-the-counter medicines or drugs (except insulin) without a prescription from a doctor.
What provisions of the Acts do not apply to "grandfathered" health plans?
"Grandfathered" health plans are excluded from the following provisions of the Acts so long as the plan maintains its "grandfathered" status:
•Preventative Care Benefits - For plan years beginning on or after September 23, 2010the Acts require that group health plans (other than "grandfathered" health plans) offer certain preventative care benefits, such as immunizations and breast cancer screening, on a first-dollar basis, without cost to participants.
•Nondiscrimination Testing - Currently, the existing Internal Revenue Code rules for nondiscrimination testing apply only to self-insured plans. For plan years beginning on or after September 23, 2010, the Acts require that fully-insured health plans (other than "grandfathered" health plans) apply the same nondiscrimination tests in an effort to discourage plans that cover only high-ranking employees.
•External Review of Claim Denials and Appeals - For plan years beginning on or after September 23, 2010, group health plans (other than "grandfathered" health plans) must provide a mechanism in their claims procedures for an external review process, among other things.
How can a plan lose "grandfathered" status?
It currently appears that a plan will not lose its "grandfathered" status if new employees (and their dependents) are enrolled in the plan after March 23, 2010. A plan also will not lose its "grandfathered" status even if an individual, who was enrolled in the plan on March 23, 2010, chooses to add their dependents to the plan after March 23, 2010, so long as the plan offered dependent coverage prior to March 23, 2010. However, at this point, it is not clear whether a plan would lose its "grandfathered" status under the Acts if design or benefit changes are made to the plan. We anticipate more guidance on this aspect of "grandfathered" plan status.
Plan sponsors whose plans were in effect on March 23, 2010, and fall under the "grandfathered" plan exception should review the terms of their plans and become acquainted with the provisions of the Acts that will apply in the near future. Additionally, plan sponsors should continue to review future guidance as it is released and ensure that their plans continue to remain in compliance with the terms of the Act. As future guidance is released, we will be providing additional alerts on this landmark legislation.
Note: In some cases, the effective date for the provisions of the Acts described above may differ for collectively bargained plans.
ParkerPoe, EmployNews, Issue 564
Sexual Harassment - Fourth Circuit Ruling
Fourth Circuit Revives Sexual Harassment Claim Where Manager Told Employee That She Was "Overreacting" by Reporting Alleged Misconduct
Last week's EmployNews discussed a new Fourth Circuit Court of Appeals sexual harassment case from South Carolina that included important guidance on limitations periods for filing claims under South Carolina law. That case also contains a discussion of the legal rights of an employee who quit after being told that she was overreacting to alleged sexual harassment.
In Whitten v. Fred's, Inc., the plaintiff was hired as assistant manager. During the first two days of her employment, the store manager allegedly twice pressed his groin against Whitten as he passed by her. According to Whitten, the manager also called her stupid, told her that he would make her life a living hell if she complained to management and assigned her additional shifts for no apparent reason. Before going to work the third day, which was a Sunday, Whitten called her district manager and told him about the manager's alleged misconduct. The district manager allegedly told her that she was overreacting, that she should go ahead to work and that they would sit down with the manager on Monday to discuss the situation. In response, Whitten resigned. She then sued Fred's for allowing a sexually hostile work environment in violation of the South Carolina Human Affairs Law.
The district court granted summary judgment in the employer's favor, holding that Fred's was not vicariously liable for the manager's behavior because he did not have the authority to hire, fire, demote or otherwise economically affect Whitten, and therefore did not qualify as her "supervisor." The court further held that Fred's was not negligent because Whitten told people that she intended to quit before she reported the alleged harassment to Fred's management.
On appeal, the Fourth Circuit vacated the district court's grant of summary judgment and remanded the case for trial. The Court held that a manager can qualify as a "supervisor" and thereby subject the employer to vicarious liability if he has sufficient power and authority to make the employee vulnerable to his misconduct. Here, the manager's authority to set Whitten's schedule and assign her tasks was considered sufficient to render him a "supervisor." In addition, the Court held that the district manager's response to Whitten's complaint was arguably unreasonable because he did not take Whitten seriously enough.
This case is an important reminder that managers must treat employees who report sexual harassment with utmost respect. On the surface, the district manager's alleged response to Whitten's claims-in particular, telling her that they would discuss her claims with Green on Monday-might seem reasonable. But because he arguably belittled Whitten by telling her that she was overreacting, he left room for a jury to find that he refused to take her claims seriously. As a result, the employer now faces an expensive jury trial and, potentially, substantial liability.
ParkerPoe, EmployNews, Issue 565
Note: The Fourth Circuit Court of Appeals covers NC and SC as well as several other southern states. The rulings of this Court effect the way we interpret federal, state and other laws.
Among the best ways to avoid costly mistakes is to have a legally reviewed employee handbook, ADA and EEOC compliant job descriptions, an effective hiring process and provide annual supervisory and management training.
If you need assistance with any of these employment issues, please contact me at TheWhitfordGroup@aol.com
Last week's EmployNews discussed a new Fourth Circuit Court of Appeals sexual harassment case from South Carolina that included important guidance on limitations periods for filing claims under South Carolina law. That case also contains a discussion of the legal rights of an employee who quit after being told that she was overreacting to alleged sexual harassment.
In Whitten v. Fred's, Inc., the plaintiff was hired as assistant manager. During the first two days of her employment, the store manager allegedly twice pressed his groin against Whitten as he passed by her. According to Whitten, the manager also called her stupid, told her that he would make her life a living hell if she complained to management and assigned her additional shifts for no apparent reason. Before going to work the third day, which was a Sunday, Whitten called her district manager and told him about the manager's alleged misconduct. The district manager allegedly told her that she was overreacting, that she should go ahead to work and that they would sit down with the manager on Monday to discuss the situation. In response, Whitten resigned. She then sued Fred's for allowing a sexually hostile work environment in violation of the South Carolina Human Affairs Law.
The district court granted summary judgment in the employer's favor, holding that Fred's was not vicariously liable for the manager's behavior because he did not have the authority to hire, fire, demote or otherwise economically affect Whitten, and therefore did not qualify as her "supervisor." The court further held that Fred's was not negligent because Whitten told people that she intended to quit before she reported the alleged harassment to Fred's management.
On appeal, the Fourth Circuit vacated the district court's grant of summary judgment and remanded the case for trial. The Court held that a manager can qualify as a "supervisor" and thereby subject the employer to vicarious liability if he has sufficient power and authority to make the employee vulnerable to his misconduct. Here, the manager's authority to set Whitten's schedule and assign her tasks was considered sufficient to render him a "supervisor." In addition, the Court held that the district manager's response to Whitten's complaint was arguably unreasonable because he did not take Whitten seriously enough.
This case is an important reminder that managers must treat employees who report sexual harassment with utmost respect. On the surface, the district manager's alleged response to Whitten's claims-in particular, telling her that they would discuss her claims with Green on Monday-might seem reasonable. But because he arguably belittled Whitten by telling her that she was overreacting, he left room for a jury to find that he refused to take her claims seriously. As a result, the employer now faces an expensive jury trial and, potentially, substantial liability.
ParkerPoe, EmployNews, Issue 565
Note: The Fourth Circuit Court of Appeals covers NC and SC as well as several other southern states. The rulings of this Court effect the way we interpret federal, state and other laws.
Among the best ways to avoid costly mistakes is to have a legally reviewed employee handbook, ADA and EEOC compliant job descriptions, an effective hiring process and provide annual supervisory and management training.
If you need assistance with any of these employment issues, please contact me at TheWhitfordGroup@aol.com
Fourth Circuit Ruling - Managers & Sexual Harassment
Fourth Circuit Revives Sexual Harassment Claim Where Manager Told Employee That She Was "Overreacting" by Reporting Alleged Misconduct
In Whitten v. Fred's, Inc. , the plaintiff was hired as assistant manager. During the first two days of her employment, the store manager allegedly twice pressed his groin against Whitten as he passed by her. According to Whitten, the manager also called her stupid, told her that he would make her life a living hell if she complained to management and assigned her additional shifts for no apparent reason. Before going to work the third day, which was a Sunday, Whitten called her district manager and told him about the manager's alleged misconduct. The district manager allegedly told her that she was overreacting, that she should go ahead to work and that they would sit down with the manager on Monday to discuss the situation. In response, Whitten resigned. She then sued Fred's for allowing a sexually hostile work environment in violation of the South Carolina Human Affairs Law.
The district court granted summary judgment in the employer's favor, holding that Fred's was not vicariously liable for the manager's behavior because he did not have the authority to hire, fire, demote or otherwise economically affect Whitten, and therefore did not qualify as her "supervisor." The court further held that Fred's was not negligent because Whitten told people that she intended to quit before she reported the alleged harassment to Fred's management.
On appeal, the Fourth Circuit vacated the district court's grant of summary judgment and remanded the case for trial. The Court held that a manager can qualify as a "supervisor" and thereby subject the employer to vicarious liability if he has sufficient power and authority to make the employee vulnerable to his misconduct. Here, the manager's authority to set Whitten's schedule and assign her tasks was considered sufficient to render him a "supervisor." In addition, the Court held that the district manager's response to Whitten's complaint was arguably unreasonable because he did not take Whitten seriously enough.
This case is an important reminder that managers must treat employees who report sexual harassment with utmost respect. On the surface, the district manager's alleged response to Whitten's claims-in particular, telling her that they would discuss her claims with Green on Monday-might seem reasonable. But because he arguably belittled Whitten by telling her that she was overreacting, he left room for a jury to find that he refused to take her claims seriously. As a result, the employer now faces an expensive jury trial and, potentially, substantial liability.
ParkerPoe, EmployNews,Issue 565
Note: Rulings by the Fourth Circuit apply to NC and SC as well as several other southern states. Rulings from this Court effect how we intrepret federal, state and other laws applicable to these states.
It is important to remember that supervisors and manager's are agents of your company and can result in EEO charges and lawsuits. Whether or not "we" as employers interpret the individual as a "supervisor" or not is irrelevant to what the EEOC and Court may decide.
Those of you who have had my Sexual Harassment Avoidance training will recognize some of the comments above. It was mandated by the U.S. Supreme Court in 1998 that all employers are obligated to train their employees, annually, regarding sexual harassment avoidance and anti-discrimination practices.
A legally reviewed employee handbook, ADA and EEO compliant job descriptions, an effective hiring process and supervisory and management training can help avoid some costly mistakes not only in hiring employees in general but in partidcular hiring and promoting supervisory personnel. I
If you need assistance in setting up these or any other employment related procedures, please contact me at TheWhitfordGroup@aol.com.
In Whitten v. Fred's, Inc. , the plaintiff was hired as assistant manager. During the first two days of her employment, the store manager allegedly twice pressed his groin against Whitten as he passed by her. According to Whitten, the manager also called her stupid, told her that he would make her life a living hell if she complained to management and assigned her additional shifts for no apparent reason. Before going to work the third day, which was a Sunday, Whitten called her district manager and told him about the manager's alleged misconduct. The district manager allegedly told her that she was overreacting, that she should go ahead to work and that they would sit down with the manager on Monday to discuss the situation. In response, Whitten resigned. She then sued Fred's for allowing a sexually hostile work environment in violation of the South Carolina Human Affairs Law.
The district court granted summary judgment in the employer's favor, holding that Fred's was not vicariously liable for the manager's behavior because he did not have the authority to hire, fire, demote or otherwise economically affect Whitten, and therefore did not qualify as her "supervisor." The court further held that Fred's was not negligent because Whitten told people that she intended to quit before she reported the alleged harassment to Fred's management.
On appeal, the Fourth Circuit vacated the district court's grant of summary judgment and remanded the case for trial. The Court held that a manager can qualify as a "supervisor" and thereby subject the employer to vicarious liability if he has sufficient power and authority to make the employee vulnerable to his misconduct. Here, the manager's authority to set Whitten's schedule and assign her tasks was considered sufficient to render him a "supervisor." In addition, the Court held that the district manager's response to Whitten's complaint was arguably unreasonable because he did not take Whitten seriously enough.
This case is an important reminder that managers must treat employees who report sexual harassment with utmost respect. On the surface, the district manager's alleged response to Whitten's claims-in particular, telling her that they would discuss her claims with Green on Monday-might seem reasonable. But because he arguably belittled Whitten by telling her that she was overreacting, he left room for a jury to find that he refused to take her claims seriously. As a result, the employer now faces an expensive jury trial and, potentially, substantial liability.
ParkerPoe, EmployNews,Issue 565
Note: Rulings by the Fourth Circuit apply to NC and SC as well as several other southern states. Rulings from this Court effect how we intrepret federal, state and other laws applicable to these states.
It is important to remember that supervisors and manager's are agents of your company and can result in EEO charges and lawsuits. Whether or not "we" as employers interpret the individual as a "supervisor" or not is irrelevant to what the EEOC and Court may decide.
Those of you who have had my Sexual Harassment Avoidance training will recognize some of the comments above. It was mandated by the U.S. Supreme Court in 1998 that all employers are obligated to train their employees, annually, regarding sexual harassment avoidance and anti-discrimination practices.
A legally reviewed employee handbook, ADA and EEO compliant job descriptions, an effective hiring process and supervisory and management training can help avoid some costly mistakes not only in hiring employees in general but in partidcular hiring and promoting supervisory personnel. I
If you need assistance in setting up these or any other employment related procedures, please contact me at TheWhitfordGroup@aol.com.
Wednesday, May 12, 2010
Employee Pregnancy - The ADA, PDA , Title VII & The FMLA
Employee Pregnancy
When employees become pregnant, everyone wants to be understanding and protective, but it's easy for "protective" and "caring" to turn into "discrimination" in court.
The general rule is, a woman affected by pregnancy must be treated the same as other applicants and employees on the basis of their ability or inability to work.
Employees with pregnancy-related disabilities must be treated the same as other temporarily disabled employees for accrual and crediting of seniority, vacation calculation, pay increases, and temporary disability benefits.
Let's look specifically at how the American with Disabilities Act (ADA), the Pregnancy Discrimination Act (PDA), Title VII of the Civil Rights Act (Title VII) and the Family and Medical Leave Act (FMLA) deal with pregnancy.
Pregnancy and the ADA
An Interpretive Guidance issued by the Equal Employment Opportunity Commission (EEOC) on the ADA states that pregnancy, in and of itself, is not an impairment covered by the ADA. According to EEOC, disability from a normal childbirth is “temporary” and not protected by the ADA. However, pregnant employees who suffer from severe pregnancy - or birth-related complications may be covered by the ADA if their medical complications substantially limit a major life activity.
Pregnancy and the PDA
Under the PDA, an amendment to Title VII of the Civil Rights Act of 1964, discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination.
The PDA states that women who are pregnant or affected by related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations.
Title VII
Pregnancy-related protections, employers are prohibited from discriminating as follows:
Hiring
An employer cannot refuse to hire a pregnant woman because of her pregnancy, because of a pregnancy-related condition, or because of the prejudices of co-workers, clients, or customers.
Approving/Requiring Leave
An employer may not single out pregnancy-related conditions for special procedures to determine an employee's ability to work.
If an employee is temporarily unable to perform her job due to pregnancy, the employer must treat her the same as any other temporarily disabled employee. For example, if the employer allows other temporarily disabled employees to modify tasks, perform alternative assignments, or take disability leave or leave without pay, the employer must also allow an employee who is temporarily disabled due to pregnancy to do the same.
Pregnant employees must be permitted to work as long as they are able to perform their jobs. If an employee has been absent from work as a result of a pregnancy-related condition and recovers, her employer may not require her to remain on leave until the baby's birth.
Return to Work
An employer may not have a rule that prohibits an employee from returning to work for a predetermined length of time after childbirth.
Employers must hold a job for a pregnancy-related absence open the same length of time jobs are held open for employees on sick or disability leave.
Health Insurance
Any health insurance provided by an employer must cover expenses for pregnancy-related conditions on the same basis as costs for other medical conditions. Health insurance for expenses arising from abortion is not required, except where the life of the mother is endangered.
The amounts payable by the insurance provider can be limited only to the same extent as amounts payable for other conditions. No additional, increased, or larger deductible can be imposed.
Fringe Benefits
Pregnancy-related benefits cannot be limited to married employees.
If an employer provides any benefits to workers on leave, the employer must provide the same benefits for those on leave for pregnancy-related conditions.
Employees with pregnancy-related disabilities must be treated the same as other temporarily disabled employees for accrual and crediting of seniority, vacation calculation, pay increases, and temporary disability benefits.
Retaliation Prohibited
Finally, it is unlawful to retaliate against an individual for opposing employment practices that discriminate based on pregnancy or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII.
FMLA
Pregnant employees are entitled to 12 weeks of job protected leave if they meet the eligibility criteria to be protected under the Act. An employee must have worked at least 12 months (do not have to be consecutive) and worked at least 1250 hours in the last 12 months to be eligible.
An employee is entitled to the entire 12 weeks of job protected leave for delivery of the child and recovery. Even if the employee has been medically released to return to work, for example, at eight weeks she may elect to remain on leave to bond with the child up to the end of the 12 week period.
Father's of the child are also entitled to 12 weeks of job protected leave to care for the mother and new born and to bond with the child. If both mother and father are employed with the same company, they must split the 12 weeks, the Act does not provide for them to take 12 weeks each.
If a pregnant employee has missed time from work during the course of the pregnancy, this time is to be counted as "intermittent" leave and may be deducted from the 12 weeks.
These laws overlap and often contradict each other, please call for assistance if you have employees with pregnancy related issues.
Source: Today's HR Daily Advisor
Summarized and Edited
Please contact The Whitford Group at TheWhitfordGroup@aol.com for assistance with pregnant employees or any other employee related issue.
When employees become pregnant, everyone wants to be understanding and protective, but it's easy for "protective" and "caring" to turn into "discrimination" in court.
The general rule is, a woman affected by pregnancy must be treated the same as other applicants and employees on the basis of their ability or inability to work.
Employees with pregnancy-related disabilities must be treated the same as other temporarily disabled employees for accrual and crediting of seniority, vacation calculation, pay increases, and temporary disability benefits.
Let's look specifically at how the American with Disabilities Act (ADA), the Pregnancy Discrimination Act (PDA), Title VII of the Civil Rights Act (Title VII) and the Family and Medical Leave Act (FMLA) deal with pregnancy.
Pregnancy and the ADA
An Interpretive Guidance issued by the Equal Employment Opportunity Commission (EEOC) on the ADA states that pregnancy, in and of itself, is not an impairment covered by the ADA. According to EEOC, disability from a normal childbirth is “temporary” and not protected by the ADA. However, pregnant employees who suffer from severe pregnancy - or birth-related complications may be covered by the ADA if their medical complications substantially limit a major life activity.
Pregnancy and the PDA
Under the PDA, an amendment to Title VII of the Civil Rights Act of 1964, discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination.
The PDA states that women who are pregnant or affected by related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations.
Title VII
Pregnancy-related protections, employers are prohibited from discriminating as follows:
Hiring
An employer cannot refuse to hire a pregnant woman because of her pregnancy, because of a pregnancy-related condition, or because of the prejudices of co-workers, clients, or customers.
Approving/Requiring Leave
An employer may not single out pregnancy-related conditions for special procedures to determine an employee's ability to work.
If an employee is temporarily unable to perform her job due to pregnancy, the employer must treat her the same as any other temporarily disabled employee. For example, if the employer allows other temporarily disabled employees to modify tasks, perform alternative assignments, or take disability leave or leave without pay, the employer must also allow an employee who is temporarily disabled due to pregnancy to do the same.
Pregnant employees must be permitted to work as long as they are able to perform their jobs. If an employee has been absent from work as a result of a pregnancy-related condition and recovers, her employer may not require her to remain on leave until the baby's birth.
Return to Work
An employer may not have a rule that prohibits an employee from returning to work for a predetermined length of time after childbirth.
Employers must hold a job for a pregnancy-related absence open the same length of time jobs are held open for employees on sick or disability leave.
Health Insurance
Any health insurance provided by an employer must cover expenses for pregnancy-related conditions on the same basis as costs for other medical conditions. Health insurance for expenses arising from abortion is not required, except where the life of the mother is endangered.
The amounts payable by the insurance provider can be limited only to the same extent as amounts payable for other conditions. No additional, increased, or larger deductible can be imposed.
Fringe Benefits
Pregnancy-related benefits cannot be limited to married employees.
If an employer provides any benefits to workers on leave, the employer must provide the same benefits for those on leave for pregnancy-related conditions.
Employees with pregnancy-related disabilities must be treated the same as other temporarily disabled employees for accrual and crediting of seniority, vacation calculation, pay increases, and temporary disability benefits.
Retaliation Prohibited
Finally, it is unlawful to retaliate against an individual for opposing employment practices that discriminate based on pregnancy or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII.
FMLA
Pregnant employees are entitled to 12 weeks of job protected leave if they meet the eligibility criteria to be protected under the Act. An employee must have worked at least 12 months (do not have to be consecutive) and worked at least 1250 hours in the last 12 months to be eligible.
An employee is entitled to the entire 12 weeks of job protected leave for delivery of the child and recovery. Even if the employee has been medically released to return to work, for example, at eight weeks she may elect to remain on leave to bond with the child up to the end of the 12 week period.
Father's of the child are also entitled to 12 weeks of job protected leave to care for the mother and new born and to bond with the child. If both mother and father are employed with the same company, they must split the 12 weeks, the Act does not provide for them to take 12 weeks each.
If a pregnant employee has missed time from work during the course of the pregnancy, this time is to be counted as "intermittent" leave and may be deducted from the 12 weeks.
These laws overlap and often contradict each other, please call for assistance if you have employees with pregnancy related issues.
Source: Today's HR Daily Advisor
Summarized and Edited
Please contact The Whitford Group at TheWhitfordGroup@aol.com for assistance with pregnant employees or any other employee related issue.
Saturday, April 10, 2010
Department of Labor Becoming More Aggressive
I read this article last week and just had to pass it along. It reiterates what I've been saying to my clients and friends who own their own businesses; a new employment law agenda is in place. The new agenda applies not only to the DOL, but to other regulatory bodies as well. The Equal Employment Opportunity Commission (EEOC) and immigration enforcement to site a couple examples. Read on if you dare.
Be Prepared: Department of Labor Becoming More Aggressive
by Gary Roscoe, Regional Manager, The HR Group, Inc.
When you think about the risks to your company's bottom line, what comes to mind? Injuries to your workers or others? Property damage? Negligence or even criminal activity? All valid, to be sure. But there's another area most employers don't think about too often: the risk of being found in violation of the many laws covered by the Department of Labor.
Some laws are well known and usually adhered to, like reporting an on-the-job injury. But many others are less familiar. For instance, do you keep the medical information on your employees in separate files, and keep those files in a separate file cabinet from other employee records? If not, and it was discovered in an audit, you would be subject to a fine of $10,000.
Likewise, do you keep timecards for at least one year, and the files on terminated employees for seven years after the end of employment? If not, and discovered, you could once again be writing a check to the government.
You may be thinking "That could be serious, but what are the odds they'll ever do an audit on me... right?"
Hilda Solis, our new Secretary of Labor has been aggressively moving to boost enforcement of labor laws throughout the country, including recently hiring hundreds of new investigators to scrutinize business records and protect employees whose wages or overtime may have been underpaid. And trust me, if you think ten grand is a lot to pay for not having separate employee files, you'll blanch at the price for not paying your folks correctly.
The executive director of the National Federation of Independent Business' small business center said, "our members are concerned that the Department [of Labor] is shifting to a "gotcha" enforcement approach," and she's probably right. But that's not going to stop the DOL from acting as they see fit. It is up to you, the business owner or manager, to be aware of the new reality and respond accordingly. Simply put, you need to be, or become, legally compliant. If you aren't, the costs could be painful at least, disastrous at worst.
What can you do? Get guidance from a friendly source. Have someone familiar with labor law compliance do an audit of your records, your documents, and all things associated with your people. Listen to their advice and act appropriately. The time and cost of becoming compliant with the law will be far less painful than what you'll go through with the government. The process of settling with the Department of Labor will be long, painful and very expensive. It will be a drain on your bottom line that no small or mid-size company can afford.
Becoming and staying compliant isn't something you can put off. The DOL has a new sheriff in town; she has the laws on her side and she's aggressive about enforcing them. Don't become an unnecessary notch on her belt. Protect your company, don't pay needless fines, and keep the money you've worked so hard to earn.
For assistance in compliance with DOL and other regulatory agencies policies, contact The Whitford Group at TheWhitfordGroup@aol.com
Be Prepared: Department of Labor Becoming More Aggressive
by Gary Roscoe, Regional Manager, The HR Group, Inc.
When you think about the risks to your company's bottom line, what comes to mind? Injuries to your workers or others? Property damage? Negligence or even criminal activity? All valid, to be sure. But there's another area most employers don't think about too often: the risk of being found in violation of the many laws covered by the Department of Labor.
Some laws are well known and usually adhered to, like reporting an on-the-job injury. But many others are less familiar. For instance, do you keep the medical information on your employees in separate files, and keep those files in a separate file cabinet from other employee records? If not, and it was discovered in an audit, you would be subject to a fine of $10,000.
Likewise, do you keep timecards for at least one year, and the files on terminated employees for seven years after the end of employment? If not, and discovered, you could once again be writing a check to the government.
You may be thinking "That could be serious, but what are the odds they'll ever do an audit on me... right?"
Hilda Solis, our new Secretary of Labor has been aggressively moving to boost enforcement of labor laws throughout the country, including recently hiring hundreds of new investigators to scrutinize business records and protect employees whose wages or overtime may have been underpaid. And trust me, if you think ten grand is a lot to pay for not having separate employee files, you'll blanch at the price for not paying your folks correctly.
The executive director of the National Federation of Independent Business' small business center said, "our members are concerned that the Department [of Labor] is shifting to a "gotcha" enforcement approach," and she's probably right. But that's not going to stop the DOL from acting as they see fit. It is up to you, the business owner or manager, to be aware of the new reality and respond accordingly. Simply put, you need to be, or become, legally compliant. If you aren't, the costs could be painful at least, disastrous at worst.
What can you do? Get guidance from a friendly source. Have someone familiar with labor law compliance do an audit of your records, your documents, and all things associated with your people. Listen to their advice and act appropriately. The time and cost of becoming compliant with the law will be far less painful than what you'll go through with the government. The process of settling with the Department of Labor will be long, painful and very expensive. It will be a drain on your bottom line that no small or mid-size company can afford.
Becoming and staying compliant isn't something you can put off. The DOL has a new sheriff in town; she has the laws on her side and she's aggressive about enforcing them. Don't become an unnecessary notch on her belt. Protect your company, don't pay needless fines, and keep the money you've worked so hard to earn.
For assistance in compliance with DOL and other regulatory agencies policies, contact The Whitford Group at TheWhitfordGroup@aol.com
Job Descriptions
Simple Rule: Base Every Action on the Job Description
Employment laws are numerous, and it’s a challenge for managers to learn them all. However, every employment action you take should be from your job descriptions. Stay compliant with your job descriptions for your hiring, firing, performance appraisals, raises, and promotions.
What Questions Are Legal to Ask in an Interview?
The good news is you do not have to be a lawyer to figure out what questions are illegal. If you wonder if it is illegal ... chances are it is. You will generally stay out of trouble if you just make sure that all your questions are job-related and consistent across the board.
There is a long list of areas in which it is illegal for you to ask questions. Here is a list of one to ensure you are asking legal questions - ask only job related questions. A structured interview, asking the same questions of each applicant can go along way as a part of your affirmative defense.
I'm sure someone will say there are exceptions called bona fide occupational qualifications (BFOQs). My advice is forget them unless you have a bona fide legal defense fund.
Additionally, Attorney Mindy Chapman’s blog, Case in Point, offers these tips for using your job descriptions:
•Never interview without the job description in front of you.
•Make your job description like a grocery list of specific skills you are looking for.
Make it detailed. Be sure to describe:
•Physical skills such as lifting, bending, and pulling
•Learned skills such as using specific software programs
•Behavioral skills such as time management skills
•Job duties such as hours, travel, shifts, and overtime
Job descriptions are a never-ending battle for every business owner. What’s the state of your job descriptions? Complete? Up to date? If not—or if you’ve never even written them—you’re not alone. Thousands of companies fall short in this area.
It’s easy to understand. Job descriptions are not simple to do—what with updating and management and legal review, especially given the Americans with Disabilities Act’s (ADA) requirement of a split-off of essential functions from other functions in the description.
If you need assistance in updating or creating job descriptions, please contact The Whitford Group at TheWhitfordGroup@aol.com.
From: Summarized from Today's HR Daily Advisor
Employment laws are numerous, and it’s a challenge for managers to learn them all. However, every employment action you take should be from your job descriptions. Stay compliant with your job descriptions for your hiring, firing, performance appraisals, raises, and promotions.
What Questions Are Legal to Ask in an Interview?
The good news is you do not have to be a lawyer to figure out what questions are illegal. If you wonder if it is illegal ... chances are it is. You will generally stay out of trouble if you just make sure that all your questions are job-related and consistent across the board.
There is a long list of areas in which it is illegal for you to ask questions. Here is a list of one to ensure you are asking legal questions - ask only job related questions. A structured interview, asking the same questions of each applicant can go along way as a part of your affirmative defense.
I'm sure someone will say there are exceptions called bona fide occupational qualifications (BFOQs). My advice is forget them unless you have a bona fide legal defense fund.
Additionally, Attorney Mindy Chapman’s blog, Case in Point, offers these tips for using your job descriptions:
•Never interview without the job description in front of you.
•Make your job description like a grocery list of specific skills you are looking for.
Make it detailed. Be sure to describe:
•Physical skills such as lifting, bending, and pulling
•Learned skills such as using specific software programs
•Behavioral skills such as time management skills
•Job duties such as hours, travel, shifts, and overtime
Job descriptions are a never-ending battle for every business owner. What’s the state of your job descriptions? Complete? Up to date? If not—or if you’ve never even written them—you’re not alone. Thousands of companies fall short in this area.
It’s easy to understand. Job descriptions are not simple to do—what with updating and management and legal review, especially given the Americans with Disabilities Act’s (ADA) requirement of a split-off of essential functions from other functions in the description.
If you need assistance in updating or creating job descriptions, please contact The Whitford Group at TheWhitfordGroup@aol.com.
From: Summarized from Today's HR Daily Advisor
Tuesday, March 16, 2010
Employee Motivation & Involvement
Set Them Free: Two Musts For Employee Motivation
What Organizations Can Do About Employee Motivation
Minimize Rules and Policies
Every person is motivated. The challenge at work is to create an environment in which people are motivated about work priorities. Too often, organizations fail to pay attention to the employee relations, communication, recognition, and involvement issues that are most important to people.
The first step in creating a motivating work environment is to stop taking actions that are guaranteed to demotivate people. Identify and take the actions that will motivate people. It’s a balancing act. Employers walk a fine line between meeting the needs of the organization and its customers and meeting the needs of its internal staff. Do both well and thrive.
An attention-getting Gallup Poll about disengaged employees was highlighted in a recent Wall Street Journal. Gallup found 19 percent of 1,000 people interviewed "actively disengaged" at work. These workers complain that they don't have the tools they need to do their jobs. They don't know what is expected of them. Their bosses don't listen to them.
Based on these interviews and survey data from its consulting practice, Gallup says actively disengaged workers cost employers $292 billion to $355 billion a year. Furthermore, Gallup concluded that disengaged workers miss more days of work and are less loyal to employers. With this in mind, let’s look at a couple of areas in which balance is critically needed for employee motivation in organizations today.
Rules and Policies
Want to be a cop? That’s how some supervisors feel in organizations that operate on the assumption that people are untrustworthy. You’ve seen the company handbooks that list pages and pages of rules. Step out of line? Fifty-seven potential infractions, with resultant punishment, are listed on page 74. Need time off for your grandma’s funeral? You get three paid days off to travel 600 miles. Have a question? We have answers. In fact, we’ve got policies that answer almost every question.
Supervisory discretion? What’s that? We’ve got employees who, left to their own devices, will choose to do bad things. You can’t trust supervisors to treat employees fairly and consistently either. John in Accounting is a softy. People who work for him get away with anything, everything. If you work for Beth in Sales however, you can count on the rulebook guiding every decision.
Sound familiar? I‘ve heard these reasons and many more to justify the need for hundreds of rules and policies in organizations.
Guidelines for a Motivating Work Environment
•Make only the minimum number of rules and policies needed to protect your organization legally and create order in the work place.
•Publish the rules and policies and educate all employees.
•With the involvement of many employees, identify organizational values and write value statements and a professional code of conduct.
•Develop guidelines for supervisors and educate them about the fair and consistent application of the few rules and policies.
•Address individual dysfunctional behaviors on a “need-to” basis with counseling, progressive discipline, and performance improvement plans.
•Clearly communicate work place expectations and guidelines for professional behavior.
Helpful Hints for Employee Motivation
•Solicit employee feedback on potential policies, areas in which policies are needed, and so on. (Do not, as one company did recently, announce a new attendance policy by posting it on a bulletin board.)
•If you decide to adhere to and hold employees accountable for an existing policy, don’t ambush your company members. If you have not enforced the policy in the past, meet with employees and explain the policy, the intent of the policy, why the policy is necessary, and why it was not enforced in the past. Then, tell everyone that following the meeting, everyone is accountable for adherence to the policy.
•You’ll be surprised how much support for legitimate policies and rules you receive from the people in your organization. People like a well-organized work place in which expectations are clear. People thrive in a work place in which all employees live by the same rules.
If you create an environment that is viewed as fair and consistent, you give people little to push against. You open up a space in which people are focused on contribution and productive activities rather than gossip, unrest, and unhappiness.
Which workplace would you choose?
Find a second factor in employee motivation: involving people.
Involve People
In one university department, a committee of ten people met for several months and then recommended space use to their dean. He had formed the committee, provided guidelines, and requested their feedback. Talking to a committee member several months after they submitted their recommendations, I was informed they had never received any feedback about their work.
They had repeatedly asked for feedback and decisions but received none. They felt as if their recommendations had gone into a dark hole, never to be seen again.
Demotivated? You bet. These staff members are loath to volunteer for another committee in the future, as well. Fool me once, poor me; fool me twice …
Most people want involvement in decisions that affect their work. Some may not want the final accountability. Ask why. Have people been punished for decisions they made in the past? Have organization leaders provided the time, tools, and information needed to make good decisions? Or have people made decisions that were over-ridden by their managers?
Does the clear expectation for employee involvement exist in your workplace? Are the people who make decisions and contribute ideas rewarded and recognized? These are critical questions if you want involved, motivated employees.
Make Employee Involvement a Plus in Employee Motivation
Too often employee involvement is a bad word. People think of employee involvement as something that is done aside from their "real" work in your organization. The best employee involvement does not require teams, special committees, and suggestion boxes.
It is the expectation that people are competent to make decisions about their work every single day on the job. Teams and committees allow broad participation from all people who may "own" a particular work process or procedure. They are not the backbone of employee involvement in your organization.
Use these tips to create a work environment that emphasizes employee motivation through employee involvement.
•Express the expectation that people make decisions that will improve their work.
•Reward and recognize the people who make decisions about and improvements in their work as heroes.
•Make certain employees know and understand your organization's mission, vision, values, goals, and guidelines so they can funnel their involvement in appropriate directions. Education, communication, measurement feedback and coaching keep employe involvement from becoming a free-for-all.
•Never punish a thoughtful decision. You can coach and counsel and provide training and information following the decision. Don’t undermine the employee’s confidence that you are truly supportive of her involvement.
•If you are a supervisor and people come to you continually to ask permission and receive instructions about their work, ask yourself this question. What am I doing that makes people believe they must come to me for each decision or permission? You are probably communicating a mixed message which confuses people about your real intentions.
When an employee comes to you, ask him what he thinks he should do in the situation. Assuming his response is reasonable, tell him his approach sounds fine and that he doesn’t need to consult with you about this type of decision in the future.
If you can assist the employee to find a better answer, act as a consultant without taking the monkey onto your own shoulders. You will reinforce his belief in his own decision making ability. You also reinforce his belief that you are telling the truth about trusting his competency.
•If you see an employee embark on a course of action you know will fail or cause a problem for a customer, intervene as a coach. Ask good questions that help the individual find a better approach. Never allow a person to fail to "teach her a lesson."
Helpful Hints
•If you already know what you will do in a particular situation, don’t solicit ideas and feedback. You insult your employees, create an atmosphere of distrust, and guarantee unrest, unhappiness, and low motivation in your workplace. If you are genuinely open to ideas and feedback, your employees will know. It is not so much what you say as what you do that communicates your wishes and intentions to them.
•If you are not open to feedback, step back and ask yourself, "Why?" Almost any decision is improved with feedback and input. Even more importantly, the people who have to live with or implement the decision will own the decision. This ownership creates motivation and channels energy in the directions that will help your organization succeed.
•Examine your beliefs about people. The majority of people do not get up in the morning and come to work with the intention of causing problems. How many people do you know who want to go home at the end of a work day feeling as if they failed all day? Not many, if any.
When you experience a problem at work, ask yourself the Dr. W. Edwards Deming-attributed question, “What about the work system caused this person to fail?” You'll be happy you took this approach when employees problem solve rather than pointing fingers and placing blame.
I’ve covered two critical aspects about creating a work environment in which people will choose to contribute and succeed. Workplaces that are successful in fostering employee motivation strike a balance between needed policies and rule overkill.
They create the expectation for employee involvement. They give employees control over decisions that affect their work without turning the workplace into a free-for-all.
These work environments are perceived as fair and structured just enough for perceived emotional safety. At the same time, your more courageous employees feel unfettered and encouraged in their efforts to make a difference. Set them free.
Remove the barriers that discourage work place motivation. Consequent actions and motivation displayed by ordinary people will amaze and gratify you. Can it get any better than this?
By Susan M. Heathfield, About.com Guide
What Organizations Can Do About Employee Motivation
Minimize Rules and Policies
Every person is motivated. The challenge at work is to create an environment in which people are motivated about work priorities. Too often, organizations fail to pay attention to the employee relations, communication, recognition, and involvement issues that are most important to people.
The first step in creating a motivating work environment is to stop taking actions that are guaranteed to demotivate people. Identify and take the actions that will motivate people. It’s a balancing act. Employers walk a fine line between meeting the needs of the organization and its customers and meeting the needs of its internal staff. Do both well and thrive.
An attention-getting Gallup Poll about disengaged employees was highlighted in a recent Wall Street Journal. Gallup found 19 percent of 1,000 people interviewed "actively disengaged" at work. These workers complain that they don't have the tools they need to do their jobs. They don't know what is expected of them. Their bosses don't listen to them.
Based on these interviews and survey data from its consulting practice, Gallup says actively disengaged workers cost employers $292 billion to $355 billion a year. Furthermore, Gallup concluded that disengaged workers miss more days of work and are less loyal to employers. With this in mind, let’s look at a couple of areas in which balance is critically needed for employee motivation in organizations today.
Rules and Policies
Want to be a cop? That’s how some supervisors feel in organizations that operate on the assumption that people are untrustworthy. You’ve seen the company handbooks that list pages and pages of rules. Step out of line? Fifty-seven potential infractions, with resultant punishment, are listed on page 74. Need time off for your grandma’s funeral? You get three paid days off to travel 600 miles. Have a question? We have answers. In fact, we’ve got policies that answer almost every question.
Supervisory discretion? What’s that? We’ve got employees who, left to their own devices, will choose to do bad things. You can’t trust supervisors to treat employees fairly and consistently either. John in Accounting is a softy. People who work for him get away with anything, everything. If you work for Beth in Sales however, you can count on the rulebook guiding every decision.
Sound familiar? I‘ve heard these reasons and many more to justify the need for hundreds of rules and policies in organizations.
Guidelines for a Motivating Work Environment
•Make only the minimum number of rules and policies needed to protect your organization legally and create order in the work place.
•Publish the rules and policies and educate all employees.
•With the involvement of many employees, identify organizational values and write value statements and a professional code of conduct.
•Develop guidelines for supervisors and educate them about the fair and consistent application of the few rules and policies.
•Address individual dysfunctional behaviors on a “need-to” basis with counseling, progressive discipline, and performance improvement plans.
•Clearly communicate work place expectations and guidelines for professional behavior.
Helpful Hints for Employee Motivation
•Solicit employee feedback on potential policies, areas in which policies are needed, and so on. (Do not, as one company did recently, announce a new attendance policy by posting it on a bulletin board.)
•If you decide to adhere to and hold employees accountable for an existing policy, don’t ambush your company members. If you have not enforced the policy in the past, meet with employees and explain the policy, the intent of the policy, why the policy is necessary, and why it was not enforced in the past. Then, tell everyone that following the meeting, everyone is accountable for adherence to the policy.
•You’ll be surprised how much support for legitimate policies and rules you receive from the people in your organization. People like a well-organized work place in which expectations are clear. People thrive in a work place in which all employees live by the same rules.
If you create an environment that is viewed as fair and consistent, you give people little to push against. You open up a space in which people are focused on contribution and productive activities rather than gossip, unrest, and unhappiness.
Which workplace would you choose?
Find a second factor in employee motivation: involving people.
Involve People
In one university department, a committee of ten people met for several months and then recommended space use to their dean. He had formed the committee, provided guidelines, and requested their feedback. Talking to a committee member several months after they submitted their recommendations, I was informed they had never received any feedback about their work.
They had repeatedly asked for feedback and decisions but received none. They felt as if their recommendations had gone into a dark hole, never to be seen again.
Demotivated? You bet. These staff members are loath to volunteer for another committee in the future, as well. Fool me once, poor me; fool me twice …
Most people want involvement in decisions that affect their work. Some may not want the final accountability. Ask why. Have people been punished for decisions they made in the past? Have organization leaders provided the time, tools, and information needed to make good decisions? Or have people made decisions that were over-ridden by their managers?
Does the clear expectation for employee involvement exist in your workplace? Are the people who make decisions and contribute ideas rewarded and recognized? These are critical questions if you want involved, motivated employees.
Make Employee Involvement a Plus in Employee Motivation
Too often employee involvement is a bad word. People think of employee involvement as something that is done aside from their "real" work in your organization. The best employee involvement does not require teams, special committees, and suggestion boxes.
It is the expectation that people are competent to make decisions about their work every single day on the job. Teams and committees allow broad participation from all people who may "own" a particular work process or procedure. They are not the backbone of employee involvement in your organization.
Use these tips to create a work environment that emphasizes employee motivation through employee involvement.
•Express the expectation that people make decisions that will improve their work.
•Reward and recognize the people who make decisions about and improvements in their work as heroes.
•Make certain employees know and understand your organization's mission, vision, values, goals, and guidelines so they can funnel their involvement in appropriate directions. Education, communication, measurement feedback and coaching keep employe involvement from becoming a free-for-all.
•Never punish a thoughtful decision. You can coach and counsel and provide training and information following the decision. Don’t undermine the employee’s confidence that you are truly supportive of her involvement.
•If you are a supervisor and people come to you continually to ask permission and receive instructions about their work, ask yourself this question. What am I doing that makes people believe they must come to me for each decision or permission? You are probably communicating a mixed message which confuses people about your real intentions.
When an employee comes to you, ask him what he thinks he should do in the situation. Assuming his response is reasonable, tell him his approach sounds fine and that he doesn’t need to consult with you about this type of decision in the future.
If you can assist the employee to find a better answer, act as a consultant without taking the monkey onto your own shoulders. You will reinforce his belief in his own decision making ability. You also reinforce his belief that you are telling the truth about trusting his competency.
•If you see an employee embark on a course of action you know will fail or cause a problem for a customer, intervene as a coach. Ask good questions that help the individual find a better approach. Never allow a person to fail to "teach her a lesson."
Helpful Hints
•If you already know what you will do in a particular situation, don’t solicit ideas and feedback. You insult your employees, create an atmosphere of distrust, and guarantee unrest, unhappiness, and low motivation in your workplace. If you are genuinely open to ideas and feedback, your employees will know. It is not so much what you say as what you do that communicates your wishes and intentions to them.
•If you are not open to feedback, step back and ask yourself, "Why?" Almost any decision is improved with feedback and input. Even more importantly, the people who have to live with or implement the decision will own the decision. This ownership creates motivation and channels energy in the directions that will help your organization succeed.
•Examine your beliefs about people. The majority of people do not get up in the morning and come to work with the intention of causing problems. How many people do you know who want to go home at the end of a work day feeling as if they failed all day? Not many, if any.
When you experience a problem at work, ask yourself the Dr. W. Edwards Deming-attributed question, “What about the work system caused this person to fail?” You'll be happy you took this approach when employees problem solve rather than pointing fingers and placing blame.
I’ve covered two critical aspects about creating a work environment in which people will choose to contribute and succeed. Workplaces that are successful in fostering employee motivation strike a balance between needed policies and rule overkill.
They create the expectation for employee involvement. They give employees control over decisions that affect their work without turning the workplace into a free-for-all.
These work environments are perceived as fair and structured just enough for perceived emotional safety. At the same time, your more courageous employees feel unfettered and encouraged in their efforts to make a difference. Set them free.
Remove the barriers that discourage work place motivation. Consequent actions and motivation displayed by ordinary people will amaze and gratify you. Can it get any better than this?
By Susan M. Heathfield, About.com Guide
Wednesday, February 3, 2010
Avoid Making Bad Hires, Part II
Reference Checks without Legal Repercussions
Verify Credentials
Many employers require applicants to have a certain level of education. Some positions (and state regulations) require that an individual hold a current professional license (e.g., lawyer, certified public accountant, doctor).
The Family Educational Rights and Privacy Act may prohibit a university or college from releasing such information without the written consent of the student/applicant. Therefore, include a written release and disclosure statement as part of the overall employment application.
Military Service Record Checks
There is no federal law that expressly prohibits employers from inquiring about an applicant's discharge from military service. However, the Equal Employment Opportunity Commission (EEOC) takes the position that relying on the type of military discharge may be discriminatory.
Because there are only a few jobs where an honorable discharge may be a bona fide job qualification (e.g., jobs requiring certain types of security clearances), an employer should limit inquiries regarding the type of discharge to asking if the employee received a dishonorable discharge and, if yes, to explain the reason.
The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides that an employer may not be required to reemploy a person after military service if the person's discharge was punitive or other-than-honorable, or if the person was dropped from the rolls of service.
When applying for reemployment, the employee has the burden of proving that he or she meets the eligibility criteria for reemployment. An employee's failure to provide the necessary documentation for reemployment does not necessarily forfeit that employee's reemployment rights if the documentation does not exist or is not readily available at the time that the employer requests the documentation. If the employee is reemployed and documentation becomes available showing that the employee does not meet one or more of USERRA's reemployment criteria, the employer may terminate the employee.
Caution: Some states prohibit any inquiry about the nature of an applicant's discharge from military service. However, the State of NC’s mandatory poster states “you have not been separated from service with a disqualifying discharge or under other than honorable conditions.” I interpret this to mean that documents relating to type of discharge can be requested, however, this is my opinion and interpretation and not intended to be legal advice. Before making the decision to ask for these documents, consult an employment attorney for guidance.
Driving Records
Because an employee may be required to drive or operate a company vehicle during the course of his or her employment, an employer may need to obtain information regarding an individual's driving record and/or personal habits.
An employer may obtain Department of Motor Vehicle (DMV) personal record information upon receipt of a record holder's (i.e., applicant's) written and signed consent.
Caution: Many states further regulate third-party access to individual DMV record information. North Carolina permits ordering DMV records through third parties, however, the third party does not always guarantee the records accuracy.
For commercial truck drivers, the Federal Motor Carrier Safety Administration (FMCSA) requires prospective employers to request certain information from an applicant's previous Department of Transportation (DOT)-regulated employers.
Check References
Often, former employers and supervisors can provide the most helpful information about a candidate's past work experience, ability to work with other employees, customer service skills, attendance, etc.
Information provided by former employers may also help determine if a candidate provided accurate information on the employment application.
Unfortunately, many employers are reluctant to provide detailed references for former employees for fear of lawsuits.
Require applicants to sign a release statement that authorizes the prospective employer to contact past employers for job reference information.
In addition, ask for a waiver signed by the applicant that authorizes the prospective employer to speak with listed references. Typically, such waivers state that the applicant is giving up any claims he or she might otherwise have against reference providers as a result of the information given.
Also, a number of states have enacted laws "immunizing" employers from claims by former employees that they were denied employment because of a negative reference. North Carolina has a law that helps protect employers who provide factual and verifiable information regarding an employee who has demonstrated violent tendencies, committed theft or fraud in the work place to a potential employer. However, before providing any reference information require the company requesting the information to send you a signed release by the applicant.
Source:
Today's HR Daily Advisor
Please contact TheWhitfordGroup@aol.com for assistance in developing an effective hiring process.
Verify Credentials
Many employers require applicants to have a certain level of education. Some positions (and state regulations) require that an individual hold a current professional license (e.g., lawyer, certified public accountant, doctor).
The Family Educational Rights and Privacy Act may prohibit a university or college from releasing such information without the written consent of the student/applicant. Therefore, include a written release and disclosure statement as part of the overall employment application.
Military Service Record Checks
There is no federal law that expressly prohibits employers from inquiring about an applicant's discharge from military service. However, the Equal Employment Opportunity Commission (EEOC) takes the position that relying on the type of military discharge may be discriminatory.
Because there are only a few jobs where an honorable discharge may be a bona fide job qualification (e.g., jobs requiring certain types of security clearances), an employer should limit inquiries regarding the type of discharge to asking if the employee received a dishonorable discharge and, if yes, to explain the reason.
The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides that an employer may not be required to reemploy a person after military service if the person's discharge was punitive or other-than-honorable, or if the person was dropped from the rolls of service.
When applying for reemployment, the employee has the burden of proving that he or she meets the eligibility criteria for reemployment. An employee's failure to provide the necessary documentation for reemployment does not necessarily forfeit that employee's reemployment rights if the documentation does not exist or is not readily available at the time that the employer requests the documentation. If the employee is reemployed and documentation becomes available showing that the employee does not meet one or more of USERRA's reemployment criteria, the employer may terminate the employee.
Caution: Some states prohibit any inquiry about the nature of an applicant's discharge from military service. However, the State of NC’s mandatory poster states “you have not been separated from service with a disqualifying discharge or under other than honorable conditions.” I interpret this to mean that documents relating to type of discharge can be requested, however, this is my opinion and interpretation and not intended to be legal advice. Before making the decision to ask for these documents, consult an employment attorney for guidance.
Driving Records
Because an employee may be required to drive or operate a company vehicle during the course of his or her employment, an employer may need to obtain information regarding an individual's driving record and/or personal habits.
An employer may obtain Department of Motor Vehicle (DMV) personal record information upon receipt of a record holder's (i.e., applicant's) written and signed consent.
Caution: Many states further regulate third-party access to individual DMV record information. North Carolina permits ordering DMV records through third parties, however, the third party does not always guarantee the records accuracy.
For commercial truck drivers, the Federal Motor Carrier Safety Administration (FMCSA) requires prospective employers to request certain information from an applicant's previous Department of Transportation (DOT)-regulated employers.
Check References
Often, former employers and supervisors can provide the most helpful information about a candidate's past work experience, ability to work with other employees, customer service skills, attendance, etc.
Information provided by former employers may also help determine if a candidate provided accurate information on the employment application.
Unfortunately, many employers are reluctant to provide detailed references for former employees for fear of lawsuits.
Require applicants to sign a release statement that authorizes the prospective employer to contact past employers for job reference information.
In addition, ask for a waiver signed by the applicant that authorizes the prospective employer to speak with listed references. Typically, such waivers state that the applicant is giving up any claims he or she might otherwise have against reference providers as a result of the information given.
Also, a number of states have enacted laws "immunizing" employers from claims by former employees that they were denied employment because of a negative reference. North Carolina has a law that helps protect employers who provide factual and verifiable information regarding an employee who has demonstrated violent tendencies, committed theft or fraud in the work place to a potential employer. However, before providing any reference information require the company requesting the information to send you a signed release by the applicant.
Source:
Today's HR Daily Advisor
Please contact TheWhitfordGroup@aol.com for assistance in developing an effective hiring process.
Monday, January 11, 2010
Part 1 - Ways to Help Prevent Bad Hires
Part 1 - Ways to Help Prevent Bad Hires — A Costly Mistake
Are there any HR mistakes as aggravating, time-consuming, money-losing, and lawsuit-threatening as making a bad hire? It can mean wasted training and coaching, disgruntled colleagues, work undone, angry customers, and a likely lawsuit when you are forced to let the person go. Employers should engage in comprehensive pre-interview screening, sound interviewing practices, reference checking and background checks.
To help avoid bad hires, gather as much objective information as possible about prospective employee. In addition to the steps listed above, following is a strong suggestion.
Establish a Background Check Policy
Establish a written policy regarding background checks and train hiring managers in the appropriate use of information obtained. Include the following in your policy:
•A list of jobs for which background checks will be required and what types of information will be collected
•A statement that a background check will be required for any applicant who receives a conditional offer of employment for one of the designated jobs
•Information on who will have access to background check reports
•A procedure for protecting the confidentiality of information obtained
•A statement regarding the types of information that might disqualify a candidate
Avoid conducting background checks on a selective basis. In addition, if certain information disqualifies one individual, similar information about another applicant should disqualify that applicant as well.
Comply with the Fair Credit Reporting Act (FCRA)
When employers hire a third party to conduct a background check or obtain reports from outside agencies, the background checks and reports are subject to the Fair Credit Reporting Act (FCRA).
FCRA distinguishes between two forms of reports—consumer reports and investigative consumer reports. Consumer reports such as credit checks provide general financial and personal data about an individual's payment history, overall indebtedness, addresses of record, etc.
Investigative consumer reports provide in-depth information about an individual's character, general reputation, personal characteristics; mode of living, etc., that may be obtained through searches of public records and/or interviews with neighbors, friends, professional associates, and other acquaintances.
Due to the more "intrusive" nature of investigative consumer reports, FCRA requires employers who request this type of report to comply with additional notice and disclosure requirements. (When employers seek employment references, driving records, and criminal background information, they are requesting an investigative consumer report.)
Notice Requirements
Before obtaining any type of consumer report, an employer must comply with very specific upfront notice requirements under FCRA. Your third party vendor should be familiar with and able to supply all necessary disclosures and forms. If they aren’t familiar or don’t use them, find another provider.
Then, before taking any adverse action against an individual that is based in whole or in part on the information contained in a consumer or investigative consumer report (e.g., termination of employment, refusal to hire or promote), there is another series of notice obligations. Again, your third party vendor should be well versed on these procedures and handle the notice requirements for you. If not, find another provider.
Take Care When Using Criminal History Records in Employment Decisions
No comprehensive federal law regulates an employer's investigation or use of individual arrest and/or criminal conviction records. However, because a reliance on arrest and conviction information may inadvertently result in the disproportionate screening out of minorities and other protected groups, employers need to be particularly cautious in this area.
Because an arrest record is not of itself evidence of criminal guilt, arrest records should generally not be used as definitive grounds for rejection.
In the absence of a controlling federal or state law, employers should generally consider the following before making any negative employment decision based on an applicant's or employee's criminal record:
•The length of time since a conviction
•The nature of the crime
•The relationship between the job to be performed and the crime committed
•The number of convictions
•Rehabilitation efforts
•Subsequent employment history
This article was edited and summarized from an edition of HR Daily Advisor Tip
If you need more information on developing a sound hiring process for your company, please contact me at TheWhitfordGroup@aol.com or 704 905-7749.
Are there any HR mistakes as aggravating, time-consuming, money-losing, and lawsuit-threatening as making a bad hire? It can mean wasted training and coaching, disgruntled colleagues, work undone, angry customers, and a likely lawsuit when you are forced to let the person go. Employers should engage in comprehensive pre-interview screening, sound interviewing practices, reference checking and background checks.
To help avoid bad hires, gather as much objective information as possible about prospective employee. In addition to the steps listed above, following is a strong suggestion.
Establish a Background Check Policy
Establish a written policy regarding background checks and train hiring managers in the appropriate use of information obtained. Include the following in your policy:
•A list of jobs for which background checks will be required and what types of information will be collected
•A statement that a background check will be required for any applicant who receives a conditional offer of employment for one of the designated jobs
•Information on who will have access to background check reports
•A procedure for protecting the confidentiality of information obtained
•A statement regarding the types of information that might disqualify a candidate
Avoid conducting background checks on a selective basis. In addition, if certain information disqualifies one individual, similar information about another applicant should disqualify that applicant as well.
Comply with the Fair Credit Reporting Act (FCRA)
When employers hire a third party to conduct a background check or obtain reports from outside agencies, the background checks and reports are subject to the Fair Credit Reporting Act (FCRA).
FCRA distinguishes between two forms of reports—consumer reports and investigative consumer reports. Consumer reports such as credit checks provide general financial and personal data about an individual's payment history, overall indebtedness, addresses of record, etc.
Investigative consumer reports provide in-depth information about an individual's character, general reputation, personal characteristics; mode of living, etc., that may be obtained through searches of public records and/or interviews with neighbors, friends, professional associates, and other acquaintances.
Due to the more "intrusive" nature of investigative consumer reports, FCRA requires employers who request this type of report to comply with additional notice and disclosure requirements. (When employers seek employment references, driving records, and criminal background information, they are requesting an investigative consumer report.)
Notice Requirements
Before obtaining any type of consumer report, an employer must comply with very specific upfront notice requirements under FCRA. Your third party vendor should be familiar with and able to supply all necessary disclosures and forms. If they aren’t familiar or don’t use them, find another provider.
Then, before taking any adverse action against an individual that is based in whole or in part on the information contained in a consumer or investigative consumer report (e.g., termination of employment, refusal to hire or promote), there is another series of notice obligations. Again, your third party vendor should be well versed on these procedures and handle the notice requirements for you. If not, find another provider.
Take Care When Using Criminal History Records in Employment Decisions
No comprehensive federal law regulates an employer's investigation or use of individual arrest and/or criminal conviction records. However, because a reliance on arrest and conviction information may inadvertently result in the disproportionate screening out of minorities and other protected groups, employers need to be particularly cautious in this area.
Because an arrest record is not of itself evidence of criminal guilt, arrest records should generally not be used as definitive grounds for rejection.
In the absence of a controlling federal or state law, employers should generally consider the following before making any negative employment decision based on an applicant's or employee's criminal record:
•The length of time since a conviction
•The nature of the crime
•The relationship between the job to be performed and the crime committed
•The number of convictions
•Rehabilitation efforts
•Subsequent employment history
This article was edited and summarized from an edition of HR Daily Advisor Tip
If you need more information on developing a sound hiring process for your company, please contact me at TheWhitfordGroup@aol.com or 704 905-7749.
Saturday, January 2, 2010
Happy New Year!
New Year's Resolutions: Twelve to Consider
New Year's resolutions top many to-do lists each holiday season. I personally prefer to call them goals instead of resolutions. I’ve discovered over the years that I rarely stick to “resolutions” but tend to be tenacious about my goals. I also believe it is important to write them down and share them with others. For me a goal that has not been communicated is simply a wish and wishes seldom come true.
Call them resolutions or call them goals, here are a few to consider.
1. Be good to yourself this year. Just do it!
2. Do something you love to do every single day. Again, just do it!
3. Do something just for you every single day. Resolve to set time aside for yourself every day to exercise, relax, reflect, cook a gourmet dinner, eat ice cream, write in a journal, garden, walk your pet or do any other activity that you enjoy. Just make sure the activity is different than what you already do all day long. Enjoy life.
4. Give yourself credit and a pat on the back when you deserve it. If you don’t get praise from others, give it to yourself. You deserve it. It is important that you recognize yourself for excellent efforts. One way to do this is to keep a file of positive notes, thank you letters and reminders of successful ventures. I call mine my, “I Love Me File”.
5. Strive to learn something new every day. It is easy to get bogged down in the same old, same old. Read an article; a book; have an interactive discussion with friends or colleagues. Talk to your kids!
6. Make professional contacts and network. Look up friends and colleagues with whom you have lost touch. Make sure you attend at least one networking meeting each month. You will benefit from the friendships and relationships you develop from active participation. It is not enough to “join.” You need to participate.
7. Practice courage by stepping out of your comfort zone. You know when you are in your comfort zone. An issue occurs. You hear yourself making up excuses in your mind about “why” you shouldn’t speak up or make a change. When you find yourself in this situation, state what you are really thinking or want to do. Once you have begun breaking through your own self-imposed barriers, you will find that exercising courage builds your self esteem and can be exhilarating. Plus, it gets easier every time!
8. Listen more than you talk. The old adage about one mouth and two ears is generally true. In Stephen Covey’s words, seek first to understand, then to be understood.
9. Develop a method to track your life goals, your daily engagements, and your to do list. Using a planner, whether in Microsoft Office Outlook on your laptop or on your smartphone, allows you to empty much of the daily detail from your mind. This gives your mind room for more important thinking.
10. Read. Try to read widely and broadly. Get out of the business books once in awhile to see how other subjects enhance your point of view.
11. Take up a new hobby or activity. If something has always intrigued you and piqued your interest, resolve to take the first steps in participating this year. You’ll add a new dimension to your world.
12. Take yourself a little less seriously. As we strive for business success, we can get bogged down in serious deliberation, advising and problem solving. Take time to laugh, especially at yourself.
Feel free to contact me at TheWhitfordGroup@aol.com or visit my website at TheWhitfordGroup.com
HAPPY NEW YEAR!
New Year's resolutions top many to-do lists each holiday season. I personally prefer to call them goals instead of resolutions. I’ve discovered over the years that I rarely stick to “resolutions” but tend to be tenacious about my goals. I also believe it is important to write them down and share them with others. For me a goal that has not been communicated is simply a wish and wishes seldom come true.
Call them resolutions or call them goals, here are a few to consider.
1. Be good to yourself this year. Just do it!
2. Do something you love to do every single day. Again, just do it!
3. Do something just for you every single day. Resolve to set time aside for yourself every day to exercise, relax, reflect, cook a gourmet dinner, eat ice cream, write in a journal, garden, walk your pet or do any other activity that you enjoy. Just make sure the activity is different than what you already do all day long. Enjoy life.
4. Give yourself credit and a pat on the back when you deserve it. If you don’t get praise from others, give it to yourself. You deserve it. It is important that you recognize yourself for excellent efforts. One way to do this is to keep a file of positive notes, thank you letters and reminders of successful ventures. I call mine my, “I Love Me File”.
5. Strive to learn something new every day. It is easy to get bogged down in the same old, same old. Read an article; a book; have an interactive discussion with friends or colleagues. Talk to your kids!
6. Make professional contacts and network. Look up friends and colleagues with whom you have lost touch. Make sure you attend at least one networking meeting each month. You will benefit from the friendships and relationships you develop from active participation. It is not enough to “join.” You need to participate.
7. Practice courage by stepping out of your comfort zone. You know when you are in your comfort zone. An issue occurs. You hear yourself making up excuses in your mind about “why” you shouldn’t speak up or make a change. When you find yourself in this situation, state what you are really thinking or want to do. Once you have begun breaking through your own self-imposed barriers, you will find that exercising courage builds your self esteem and can be exhilarating. Plus, it gets easier every time!
8. Listen more than you talk. The old adage about one mouth and two ears is generally true. In Stephen Covey’s words, seek first to understand, then to be understood.
9. Develop a method to track your life goals, your daily engagements, and your to do list. Using a planner, whether in Microsoft Office Outlook on your laptop or on your smartphone, allows you to empty much of the daily detail from your mind. This gives your mind room for more important thinking.
10. Read. Try to read widely and broadly. Get out of the business books once in awhile to see how other subjects enhance your point of view.
11. Take up a new hobby or activity. If something has always intrigued you and piqued your interest, resolve to take the first steps in participating this year. You’ll add a new dimension to your world.
12. Take yourself a little less seriously. As we strive for business success, we can get bogged down in serious deliberation, advising and problem solving. Take time to laugh, especially at yourself.
Feel free to contact me at TheWhitfordGroup@aol.com or visit my website at TheWhitfordGroup.com
HAPPY NEW YEAR!
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