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
Saturday, April 10, 2010
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!
Wednesday, December 23, 2009
COBRA Subsidy Extension
SPECIAL ALERT
COBRA Subsidy Extension Requires Employer and Group Health Plan Administrator Action
Earlier this week President Obama signed the Department of Defense Appropriations Act, 2010, (the "Act") which, among other things, extends the eligibility period for and the length of the COBRA premium subsidy (the "Subsidy"). Introduced earlier this year in the American Recovery and Reinvestment Act of 2009 ("ARRA"), the Subsidy aided "assistance eligible individuals" ("AEIs") who were involuntarily terminated by requiring an AEI's former employer (or insurer, as applicable) to pay 65% of the AEI's portion of the COBRA premium for continued group health plan benefits for up to nine months. ARRA defined an AEI as an individual who is eligible for COBRA coverage because of an involuntary termination from employment that occurred during the period from September 1, 2008 through December 31, 2009. Enacted just before the year's end, the Act makes important changes to the Subsidy and its administration.
First, the Act extends the eligibility period for the Subsidy for an additional two months to include qualified beneficiaries who are involuntarily terminated through February 28, 2010. Notably, the new rule does not require that COBRA coverage begin by February 28, 2010 but that the AEI must experience an involuntary termination of employment by February 28, 2010 to be eligible (even if the COBRA coverage does not begin until March 1, 2010).
Second, the Act provides a longer Subsidy period. Under ARRA, an AEI who continued to qualify could receive the Subsidy for a maximum of nine months. The Act increases the maximum period for receiving the Subsidy to 15 months, which gives AEIs an additional six months of the Subsidy.
Third, an AEI who already reached the end of his or her Subsidy period (a maximum nine months) prior to the enactment of the Act can take advantage of the extension and has additional time to pay the reduced premium under the Subsidy to retroactively continue COBRA coverage. In order to continue COBRA coverage, an AEI has until the later of February 17, 2010 (60 days after the enactment of the Act), or 30 days from the date of the required plan administrator notice, to pay 35% of the premium cost and continue coverage. For example, an individual whose nine months under the Subsidy ran out on November 30 and who did not elect to pay the full premium (without the Subsidy) for December now may pay his or her 35% share of the December premium in January and receive retroactive COBRA coverage for December. In addition, an AEI who continued COBRA by paying the full premium after exhausting initial eligibility for the Subsidy must be reimbursed or given credit for the excess payments (i.e., the additional 65% of the COBRA premium).
Fourth, the Act imposes new notice obligations on plan administrators. On or before February 17, 2010, a plan administrator must send a notice explaining the Act and the changes to the Subsidy to any individual who: (i) qualifies as an AEI on or after October 31, 2009, (ii) experiences a COBRA qualifying event (consisting of termination of employment) on or after October 31, 2009, or (iii) previously qualified as an AEI but either did not timely pay the premium for any period of coverage after the individual exhausted the Subsidy or paid the full premium to continue COBRA coverage after the Subsidy ended. A plan administrator must provide a notice explaining the Act and the changes to the Subsidy to those individuals who experience a qualifying event after December 19, 2009 within the normal time frame applicable to COBRA qualifying event notices.
Employers and group health plan administrators should become familiar with the specifics of the Act and be prepared to provide the requisite notices on or before February 17, 2010. Additional clarification on the Act and the implementation of these changes is expected from the Department of Labor (and possibly the Internal Revenue Service) in the coming weeks.
EmployNews, ParkerPoe, December 22, 2009
COBRA Subsidy Extension Requires Employer and Group Health Plan Administrator Action
Earlier this week President Obama signed the Department of Defense Appropriations Act, 2010, (the "Act") which, among other things, extends the eligibility period for and the length of the COBRA premium subsidy (the "Subsidy"). Introduced earlier this year in the American Recovery and Reinvestment Act of 2009 ("ARRA"), the Subsidy aided "assistance eligible individuals" ("AEIs") who were involuntarily terminated by requiring an AEI's former employer (or insurer, as applicable) to pay 65% of the AEI's portion of the COBRA premium for continued group health plan benefits for up to nine months. ARRA defined an AEI as an individual who is eligible for COBRA coverage because of an involuntary termination from employment that occurred during the period from September 1, 2008 through December 31, 2009. Enacted just before the year's end, the Act makes important changes to the Subsidy and its administration.
First, the Act extends the eligibility period for the Subsidy for an additional two months to include qualified beneficiaries who are involuntarily terminated through February 28, 2010. Notably, the new rule does not require that COBRA coverage begin by February 28, 2010 but that the AEI must experience an involuntary termination of employment by February 28, 2010 to be eligible (even if the COBRA coverage does not begin until March 1, 2010).
Second, the Act provides a longer Subsidy period. Under ARRA, an AEI who continued to qualify could receive the Subsidy for a maximum of nine months. The Act increases the maximum period for receiving the Subsidy to 15 months, which gives AEIs an additional six months of the Subsidy.
Third, an AEI who already reached the end of his or her Subsidy period (a maximum nine months) prior to the enactment of the Act can take advantage of the extension and has additional time to pay the reduced premium under the Subsidy to retroactively continue COBRA coverage. In order to continue COBRA coverage, an AEI has until the later of February 17, 2010 (60 days after the enactment of the Act), or 30 days from the date of the required plan administrator notice, to pay 35% of the premium cost and continue coverage. For example, an individual whose nine months under the Subsidy ran out on November 30 and who did not elect to pay the full premium (without the Subsidy) for December now may pay his or her 35% share of the December premium in January and receive retroactive COBRA coverage for December. In addition, an AEI who continued COBRA by paying the full premium after exhausting initial eligibility for the Subsidy must be reimbursed or given credit for the excess payments (i.e., the additional 65% of the COBRA premium).
Fourth, the Act imposes new notice obligations on plan administrators. On or before February 17, 2010, a plan administrator must send a notice explaining the Act and the changes to the Subsidy to any individual who: (i) qualifies as an AEI on or after October 31, 2009, (ii) experiences a COBRA qualifying event (consisting of termination of employment) on or after October 31, 2009, or (iii) previously qualified as an AEI but either did not timely pay the premium for any period of coverage after the individual exhausted the Subsidy or paid the full premium to continue COBRA coverage after the Subsidy ended. A plan administrator must provide a notice explaining the Act and the changes to the Subsidy to those individuals who experience a qualifying event after December 19, 2009 within the normal time frame applicable to COBRA qualifying event notices.
Employers and group health plan administrators should become familiar with the specifics of the Act and be prepared to provide the requisite notices on or before February 17, 2010. Additional clarification on the Act and the implementation of these changes is expected from the Department of Labor (and possibly the Internal Revenue Service) in the coming weeks.
EmployNews, ParkerPoe, December 22, 2009
Subscribe to:
Posts (Atom)
