30 Questions Every Employer Should Answer to Determine Their Risk Factors
1. Briefly describe the nature of your business. How many locations?
2. How many employees?
3. Do you use temporary help or independent contractors?
4. Do you anticipate increasing or decreasing your workforce within the next 6 months? If yes, by approximately what percentage?
5. How many employees are currently in supervisory or management positions?
6. How are the majority of your employees paid? (hourly, salary or other basis?)
7. What procedures are in place to distinguish between exempt vs. nonexempt employees?
8. Do you have a specific hiring process in place?
9. Do you have a specific corrective action and termination process in place?
10. Do you have job descriptions for each position?
11. Do you have an employee handbook?
12. Do you have written grievance procedures and policies?
13. Are you currently utilizing a performance review system?
14. Have supervisors and managers received formal training in sexual harassment avoidance or other anti-discrimination procedures?
15. Do you have a health plan?
16. How are you managing COBRA compliance?
17. How are you managing HIPAA compliance?
18. Do you use consumer reports, such as background checks, credit, DMV, criminal or other reports to make hiring or promotion decisions? Do you reference check each potential new hire?
19. Do you extend credit or allow your clients, vendors, employees to pay for products or services over time?
20. Do you maintain any or all of the following personally or financially identifying information regarding your clients, vendors, employees and applicants such as maiden name, address, social security number, date of birth, bank account info, credit card info, etc.?
21. Who in your company has access to this information?
22. What security steps are in place to protect personally or financially identifying information?
23. What procedures do you currently have in place to notify clients, vendors, employees and applicants if unauthorized access is gained to their protected information?
24. Have you experienced a data breach either paper or electronically in the past year?
25. Have any employment-related claims, grievances, administrative proceedings, demands or lawsuits been made against your company in the last 5 years?
26. How are you currently managing your human resources, employment law and privacy law compliance functions?
27. What are your most pressing issues regarding being an employer?
28. How are you currently addressing these issues?
29. What do you believe the consequences might be if you are out of compliance with federal, state and local employment laws?
30. Based on your answers to the above questions, do you believe you could benefit from the assistance of a highly qualified human resources, employment and privacy law specialist?
If you would like a complimentary risk evaluation of your answers, please contact me at:
TheWhitfordGroup@aol.com
704 905-7749
Monday, November 9, 2009
Saturday, November 7, 2009
FTC Red Flags Rules Enforcement Date Extended
For those of you who have been following the multiple effective dates of the FTC's Red Flags Rules it will come as no surprise that the date has been extended once again.
The latest enforcement date was to be November 1, 2009, however, on October 30th the decision was made to extend the effective date to June 2010.
A reprieve, not really, the extension is to provide covered businesses additional time to get their policies, procedures and practices in place before enforcement begins in June.
Please let me know if you need my assistance in determining whether or not you are subject to the Rules and in getting ready for the enforcement deadline. I'm glad to assist.
TheWhitfordGroup@aol.com
www.TheWhitfordGroup.com
704 905-7749
The latest enforcement date was to be November 1, 2009, however, on October 30th the decision was made to extend the effective date to June 2010.
A reprieve, not really, the extension is to provide covered businesses additional time to get their policies, procedures and practices in place before enforcement begins in June.
Please let me know if you need my assistance in determining whether or not you are subject to the Rules and in getting ready for the enforcement deadline. I'm glad to assist.
TheWhitfordGroup@aol.com
www.TheWhitfordGroup.com
704 905-7749
Saturday, October 31, 2009
New EEOC Compliance Poster Requirement
EEOC Releases New Compliance Poster
Last week, the Equal Employment Opportunity Commission published a new version of its "Equal Employment Opportunity is the Law" poster. The poster must be displayed by all employers subject to federal EEO laws, generally meaning those with 15 or more employees. The new poster contains updates addressing the ADA Amendments Act and the Genetic Information Nondiscrimination Act, which takes effect on November 21.
In addition to the new poster, the EEOC has published a supplement that can be placed alongside the 2002 version of the EEO poster. While many private vendors sell these compliance posters to employers, they can also be obtained free of charge through the EEOC's Website, www.eeoc.gov/posterform.html.
ParkerPoe, EmployNews, Issue 544, October 30, 2009
Last week, the Equal Employment Opportunity Commission published a new version of its "Equal Employment Opportunity is the Law" poster. The poster must be displayed by all employers subject to federal EEO laws, generally meaning those with 15 or more employees. The new poster contains updates addressing the ADA Amendments Act and the Genetic Information Nondiscrimination Act, which takes effect on November 21.
In addition to the new poster, the EEOC has published a supplement that can be placed alongside the 2002 version of the EEO poster. While many private vendors sell these compliance posters to employers, they can also be obtained free of charge through the EEOC's Website, www.eeoc.gov/posterform.html.
ParkerPoe, EmployNews, Issue 544, October 30, 2009
Tuesday, October 13, 2009
EEOC Issues Proposed ADAAA Rules
The Equal Employment Opportunity Commission (EEOC) issued proposed regulations implementing the ADA Amendments Act of 2008 (ADAAA). The ADAAA was a Congressional response to a series of U.S. Supreme Court decisions viewed as narrowing the scope of the Americans with Disabilities Act (ADA) by limiting the definition of protected disabled persons. The new law expands and clarifies the definition of who is and who is not disabled.
The proposed rules contain a number of important interpretations of the Americans with ADAAA by the EEOC. These interpretations are important for employers because federal courts generally defer to EEOC regulations when making disability determinations in individual cases.
Some of the important provisions of the new rules include the following:
The proposed rules contain a number of important interpretations of the Americans with ADAAA by the EEOC. These interpretations are important for employers because federal courts generally defer to EEOC regulations when making disability determinations in individual cases.
Some of the important provisions of the new rules include the following:
- A declaration by the EEOC that certain medical conditions will be ADA disabilities in all cases. This appears contrary to the law's requirement for individual impairment assessments.
- Refusal by the EEOC to establish a clear duration requirement for disabilities, bringing into question coverage of short-term impairments such as pregnancy complications.
- Declination by the EEOC of Congress' invitation to clearly establish a definition of significant impairment of a major life activity. These determinations will be left up to individual federal courts.
Comments to the proposed rules must be submitted to the EEOC by November 23, 2009. The ADAAA is already in effect, and regardless of any changes to the proposed rules, the new law significantly expands the ADA coverage to persons not considered to be adequately impaired before the legislation's enactment.
Paraphrased from Issue 539, September 25, 2009, EmployNews, Parker Poe Adams & Bernstein
Monday, September 21, 2009
Can You Still Tell a Joke in the Office?
Jokes in the Office
What about jokes? Can jokes still be told in the office? Yes, but there are a number of topics that are out of bounds.
Discriminatory jokes, jokes about racial issues, gender stereotypes, sexual preference, or any protected class.
Then there are mean-spirited jokes, such as "ugly" jokes. They may not rise to the level of harassment, but its bad judgment to tell them.
If employees forward an inappropriate e-mail joke, that's the equivalent of telling it.
Blonde jokes are inappropriate because they are about women, not hair color, and they tend to demean women. Usually they are not severe or pervasive enough to be illegal. Nevertheless, down the road they could be used as evidence of bias.
Six Critical Messages for Your Supervisors
1. Refrain from engaging in harassment and other inappropriate conduct.
2. Report all complaints of harassment and other inappropriate conduct to Human Resources or a member of management, even if the employee:
• Requests that nothing be done, they are legally obligated to report it.
• Asks for absolute confidentiality, confidentiality cannot be guaranteed. Confidentially will be
to the "degree possible" in the course of an investigation.
• The employee does not use legal buzz words to describe the harassment, i.e. (discrimination.)
3. Respond proactively to harassment and other inappropriate conduct, even if there is no complaint.
• Remember that silence equals tacit support.
• Consult with an HR professional to discuss remedial action.
4. Put an immediate stop to harassment and other inappropriate conduct.
5. Refrain from unlawful retaliation. This is broadly defined, and might include:
•Tangible adverse employment actions
•Other actions affecting material terms and conditions of employment
•Actions independent of employment
6. Respect. Treat your employees respectfully and you'll likely avoid problems.
Paraphrased from: HR Daily Advisor Tip by: Jonathan Segal, a partner in the law firm of Duane Morris LLP in Philadelphia
Jokes in the Office
What about jokes? Can jokes still be told in the office? Yes, but there are a number of topics that are out of bounds.
Discriminatory jokes, jokes about racial issues, gender stereotypes, sexual preference, or any protected class.
Then there are mean-spirited jokes, such as "ugly" jokes. They may not rise to the level of harassment, but its bad judgment to tell them.
If employees forward an inappropriate e-mail joke, that's the equivalent of telling it.
Blonde jokes are inappropriate because they are about women, not hair color, and they tend to demean women. Usually they are not severe or pervasive enough to be illegal. Nevertheless, down the road they could be used as evidence of bias.
Six Critical Messages for Your Supervisors
1. Refrain from engaging in harassment and other inappropriate conduct.
2. Report all complaints of harassment and other inappropriate conduct to Human Resources or a member of management, even if the employee:
• Requests that nothing be done, they are legally obligated to report it.
• Asks for absolute confidentiality, confidentiality cannot be guaranteed. Confidentially will be
to the "degree possible" in the course of an investigation.
• The employee does not use legal buzz words to describe the harassment, i.e. (discrimination.)
3. Respond proactively to harassment and other inappropriate conduct, even if there is no complaint.
• Remember that silence equals tacit support.
• Consult with an HR professional to discuss remedial action.
4. Put an immediate stop to harassment and other inappropriate conduct.
5. Refrain from unlawful retaliation. This is broadly defined, and might include:
•Tangible adverse employment actions
•Other actions affecting material terms and conditions of employment
•Actions independent of employment
6. Respect. Treat your employees respectfully and you'll likely avoid problems.
Paraphrased from: HR Daily Advisor Tip by: Jonathan Segal, a partner in the law firm of Duane Morris LLP in Philadelphia
Wednesday, August 26, 2009
Bullet Proof Documentation - Disciplinary Process – Sometimes You Have to Terminate – Part II
You’ve followed you disciplinary process and you’ve documented your efforts. The employee is still falling short of expectations. Termination of employment is your next reasonable step.
Before you terminate, consider the following:
1. Determine if the employee is in one or more protected classes.
2. Determine the exact basis for the termination. Don’t make it easy on yourself by sugar coating it or think that you can embellish or give the real reason(s) later if the employee files for unemployment benefits or a regulatory charge. You are stuck with whatever you gave as the “reason”. If you later change the reason, it will probably be determined to have discriminated against the employee on whatever basis they alleged.
3. Review the facts and documentation to ensure all your bases are covered. (See part 1, Bullet Proof Documentation).
4. Consult with your HR professional or employment attorney to ensure legality and defensibility of this employment action.
The Termination Meeting:
1. Select the proper setting.
2. Treat the person with respect.
3. Have at least 2 people present, be prepared if you suspect the person may become violent.
4. State the specific reason(s) for the termination.
5. Do not argue or apologize regarding the decision to terminate. Its okay to hear the employee’s side, but do not let it escalate. Additionally, stating that you are sorry you have to terminate implies that the decision was a mistake.
6. Discuss the employee’s final paycheck and severance pay if applicable.
7. Discuss vacation, sick leave or other benefits including COBRA or State Continuation.
8. Have the IT department remove the employee’s access to the computer system while the meeting is in progress.
9. Collect company property.
10. End the meeting.
An employee termination should never be a surprise. A progressive discipline process and an effective appraisal system should have been followed up to this point.
Do not tape record the meeting or allow the employee to record. However, always be mindful that the employee may have a hidden tape recorder and record without your knowledge. Ensure your statements and conduct are always defensible, always assume you are being recorded. If you wouldn’t want your words or actions described in exhibit A in a court room, don’t do it or say it.
The Whitford Group can assist you with any employee relations issue as well as all other employment law related compliance.
Please call or e-mail for your free, no obligation Risk Analysis to determine where you may be out of compliance. Call 704 905-7749 or e-mail TheWhitfordGroup@aol.com
Pleas visit our website at TheWhitfordGroup.com
You’ve followed you disciplinary process and you’ve documented your efforts. The employee is still falling short of expectations. Termination of employment is your next reasonable step.
Before you terminate, consider the following:
1. Determine if the employee is in one or more protected classes.
2. Determine the exact basis for the termination. Don’t make it easy on yourself by sugar coating it or think that you can embellish or give the real reason(s) later if the employee files for unemployment benefits or a regulatory charge. You are stuck with whatever you gave as the “reason”. If you later change the reason, it will probably be determined to have discriminated against the employee on whatever basis they alleged.
3. Review the facts and documentation to ensure all your bases are covered. (See part 1, Bullet Proof Documentation).
4. Consult with your HR professional or employment attorney to ensure legality and defensibility of this employment action.
The Termination Meeting:
1. Select the proper setting.
2. Treat the person with respect.
3. Have at least 2 people present, be prepared if you suspect the person may become violent.
4. State the specific reason(s) for the termination.
5. Do not argue or apologize regarding the decision to terminate. Its okay to hear the employee’s side, but do not let it escalate. Additionally, stating that you are sorry you have to terminate implies that the decision was a mistake.
6. Discuss the employee’s final paycheck and severance pay if applicable.
7. Discuss vacation, sick leave or other benefits including COBRA or State Continuation.
8. Have the IT department remove the employee’s access to the computer system while the meeting is in progress.
9. Collect company property.
10. End the meeting.
An employee termination should never be a surprise. A progressive discipline process and an effective appraisal system should have been followed up to this point.
Do not tape record the meeting or allow the employee to record. However, always be mindful that the employee may have a hidden tape recorder and record without your knowledge. Ensure your statements and conduct are always defensible, always assume you are being recorded. If you wouldn’t want your words or actions described in exhibit A in a court room, don’t do it or say it.
The Whitford Group can assist you with any employee relations issue as well as all other employment law related compliance.
Please call or e-mail for your free, no obligation Risk Analysis to determine where you may be out of compliance. Call 704 905-7749 or e-mail TheWhitfordGroup@aol.com
Pleas visit our website at TheWhitfordGroup.com
Sunday, August 9, 2009
Bullet Proof Documentation - Part I
The Disciplinary Process & Bullet Proof Documentation Checklist - Part I
1. Identify the problem specifically. Is it poor performance or misconduct?
2. Review your employee handbook for specific policies and procedures; ensure they are sited.
3. Is a progressive discipline process in place? Is it adhered to consistently?
4. Review any documentation you have on file.
a. Has the employee been written-up for similar issues?
b. Did the supervisor discuss this/these issues with the employee?
c. Did the employee have a reasonable expectation that their job was in jeopardy?
5. Review job description, especially if poor performance is the basis for the discipline. Site the issues specifically in your write-up.
6. Review your past practice. In lieu of written policies, your past practice is your policy. Additionally, even if you have written policies and they have not been adhered to consistently, your past practice still prevails.
7. Investigate thoroughly and document your findings without making bias statements of conclusion during this phase. Summarize your conclusions of misconduct once the investigation is complete and the appropriate corrective action has been decided.
a. Include observable performance or behavior.
b. Document which rule or rules have been broken.
c. Don’t state “bad attitude”, it is indefensible in with regulatory agencies and in court. Again, stick to observable behavior.
d. Make it very clear “what” you are disciplining.
8. Discuss the issues with the employee. Ensure they understand what performance or misconduct standards have been violated. Always, always have a witness. Ideally it should be human resources or another member of management.
9. Develop a performance improvement plan, collaboratively if possible. An employee’s buy in is very important.
10. Set measurable, achievable goal and objectives. Be specific.
11. Determine if additional training, supplies, equipment, etc. are needed in order for the employee to comply with goals and objectives. Make them available.
12. Establish a follow-up procedure. Don’t forget! You run the risk of the employee believing the issue wasn’t that important in the first place and you weaken your defensible position should a regulatory inquiry or lawsuit develop.
Stay tuned for Part II of Bullet Proof Documentation premiering on a blog near you.
For assistance in developing effective policies, procedures, HR best practices, employee relations solutions and 3rd party investigation contact The Whitford Group at www.TheWhitfordGroup.com
You may also request a free, no obligation risk analysis through the website or by emailing to TheWhitfordGroup@aol.com
1. Identify the problem specifically. Is it poor performance or misconduct?
2. Review your employee handbook for specific policies and procedures; ensure they are sited.
3. Is a progressive discipline process in place? Is it adhered to consistently?
4. Review any documentation you have on file.
a. Has the employee been written-up for similar issues?
b. Did the supervisor discuss this/these issues with the employee?
c. Did the employee have a reasonable expectation that their job was in jeopardy?
5. Review job description, especially if poor performance is the basis for the discipline. Site the issues specifically in your write-up.
6. Review your past practice. In lieu of written policies, your past practice is your policy. Additionally, even if you have written policies and they have not been adhered to consistently, your past practice still prevails.
7. Investigate thoroughly and document your findings without making bias statements of conclusion during this phase. Summarize your conclusions of misconduct once the investigation is complete and the appropriate corrective action has been decided.
a. Include observable performance or behavior.
b. Document which rule or rules have been broken.
c. Don’t state “bad attitude”, it is indefensible in with regulatory agencies and in court. Again, stick to observable behavior.
d. Make it very clear “what” you are disciplining.
8. Discuss the issues with the employee. Ensure they understand what performance or misconduct standards have been violated. Always, always have a witness. Ideally it should be human resources or another member of management.
9. Develop a performance improvement plan, collaboratively if possible. An employee’s buy in is very important.
10. Set measurable, achievable goal and objectives. Be specific.
11. Determine if additional training, supplies, equipment, etc. are needed in order for the employee to comply with goals and objectives. Make them available.
12. Establish a follow-up procedure. Don’t forget! You run the risk of the employee believing the issue wasn’t that important in the first place and you weaken your defensible position should a regulatory inquiry or lawsuit develop.
Stay tuned for Part II of Bullet Proof Documentation premiering on a blog near you.
For assistance in developing effective policies, procedures, HR best practices, employee relations solutions and 3rd party investigation contact The Whitford Group at www.TheWhitfordGroup.com
You may also request a free, no obligation risk analysis through the website or by emailing to TheWhitfordGroup@aol.com
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