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
Tuesday, July 20, 2010
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
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