HR Forum: September 2009

Keeping workplace tensions from turning deadly

While many of us consider the workplace a safe haven in a sometimes uncertain world, the reality is that violence can strike at any time, anywhere. Consider the recent tragic death of Yale graduate student Annie Le by an animal lab technician at a medical research building where they both worked. A senseless crime possibly motivated by an earlier dispute between the colleagues.

From the msnbc article:

“Since 2008 there has been a rise in workplace violence due to increasing pressure in the workplace,” said Sara Begley with Reed Smith, a law firm representing employers. “Drastic reductions in force, fewer people to perform same workload, no bonuses, economic downturn, lost 401(k) accounts. While workplace homicides have declined, assault, threats, bullying, cyberbullying and sexual harassment and stalking have increased.”

Combine these pressures with certain high-risk occupations and you have a recipe for disaster. Especially vulnerable are occupations that involve exchanging money with the public, delivering goods and passengers (like taxi drivers), or working alone or late at night (like nurses).

But regardless of occupation, the bottom line is that any workplace can become the scene of violence at the hands of a disgruntled or unstable employee. That’s why every employer needs to be proactive and train employees on how to spot early warning signs and report potential problems. The importance of prevention through proper education and training cannot be overemphasized! The Workplace Violence Kit provides comprehensive training and helpful support materials (like reinforcement quizzes and posters) to keep your workplace safe and out of the headlines.

EEOC has beef with meatpacking company that violated civil rights of Muslim workers

The Equal Employment Opportunity Commission has determined that the U.S. unit of Brazilian meatpacking giant JBS SA violated the civil rights of more than 100 Muslim Somali workers in plants in Colorado and Nebraska, unlawfully harassing them and firing them based on their religion.

According to the Reuters article,

"The dispute began last year during the Muslim holy month of Ramadan when the
workers walked off the job after managers denied them a prayer break at sunset.

Supervisors had initially agreed to adjust work schedules to accommodate
the requests by Muslim workers but later reversed their decisions after
non-Muslim workers protested the changes.”

Under Title VII of the Civil Rights Act of 1964 (which prohibits workplace discrimination based on religion, ethnicity, country of origin, race and color), employers must reasonably accommodate the religious practices of an employee or prospective employee, unless doing so would create an undue hardship for the employer. Some reasonable religious accommodations that employers may be required to provide workers include leave for religious observances, time and/or place to pray, and ability to wear religious garb.

Yet in the past 15 years, claims of religious discrimination filed with federal, state and local agencies have doubled – spiking a record 15% in 2007. Perhaps as surprising, these numbers are growing faster than claims based on race or gender.

With workplace disputes over religion on the rise, it’s essential that you include diversity awareness and training in your anti-harassment initiatives. Be certain you’re taking active steps to prevent religious discrimination and harassment in the workplace and when necessary, are accommodating employees’ religious beliefs and practices.

New HIPAA Breach Notification Rules kick in today

With medical data breaches on the rise, the federal government is taking action to help stem the problem. The Department of Health and Human Services (HHS) recently issued new regulations requiring health care providers, health plans, and other entities covered by the Health Insurance Portability and Accountability Act (HIPAA) to notify individuals when their protected health information (PHI) is breached. The HHS regulations came two days after the Federal Trade Commission (FTC) issued regulations outlining similar requirements for personal health record (PHR) vendors, PHR-related entities and third-party service providers.

“This new federal law ensures that covered entities and business associates are
accountable to the Department and to individuals for proper safeguarding of the
private information entrusted to their care. These protections will be a
cornerstone of maintaining consumer trust as we move forward with meaningful use
of electronic health records and electronic exchange of health information,”
said Robinsue Frohboese, Acting Director and Principal Deputy Director of OCR.
(HHS Press Release)

Under the new rules, businesses must immediately notify individuals of a breach, as well as the HHS (or the FTC) and the media when a breach affects more than 500 individuals. This new notice requirement is designed to help consumers make informed decisions when their health information is released to unauthorized users, while also prompting companies to enhance security. Businesses are also required to update their HIPAA policies and train employees on new procedures.

What is a breach?

A breach occurs when 1) there has been “unauthorized” access, use or disclosure of PHI, which violates the HIPAA Privacy Rule and 2) the disclosure “compromises the security or privacy” of the PHI, which means that it “poses a significant risk of financial, reputational or other harm to the individual.”

Let’s say, for example, your company sponsors a group health insurance plan and a laptop containing enrollment information constituting PHI is lost or stolen. You most likely would be required to notify the affected individuals. Or perhaps you operate a HIPAA-covered medical practice and a staff member impermissibly downloads patients’ PHI to his personal computer. Again, you would need to notify the affected patients.

The effective date of the new HIPAA Breach Notification Rules is today, September 23, 2009. However, HHS has stated it will not impose penalties until February 22, 2010.

USCIS issues User Manual to clarify E-Verify for federal contractors

In the August 3 post, DHS strengthens employment verification, contractors must use E-Verify, we discussed the federal contractor rule that, as of September 8, 2009, requires all covered federal contractors and subcontractors to use E-Verify to verify the work eligibility status of their employees.

To clear up any confusion regarding the specifics, U.S. Citizenship and Immigration Services has released an E-Verify User Manual for Federal Contractors. The 68-page (!) supplemental guide covers:

• applicable regulations
• instructions on verifying new and existing employees via Form I-9
• E-Verify enrollment and participation as a federal contractor
• exemptions and exceptions for qualifying contractors, subcontractors, independent contractors and affiliates
• enrollment instructions for organizations that qualify for exceptions
• enrollment instructions for contractors not yet enrolled in E-Verify
• instructions for contractors already enrolled in E-Verify

According to the Wall Street Journal, about 169,000 federal contractors and subcontractors (who employ approximately 3.8 million workers) will be affected by the new E-Verify federal contractor rule. The WSJ article explains the key steps regarding the program:

1) After an E-Verify provision is put into its contract, a federal contractor or subcontractor will have 30 days to enroll in the E-Verify system
2) Each employer must sign a memorandum of understanding with the government to use E-Verify
3) Contractors will use a secure Web site to check the legal status of workers involved in a government project, except for some who are exempt because of security clearances
4) In about 97% of the cases, contractors will receive an immediate electronic response confirming the employee's eligibility to work
5) In other cases, contactors will receive a "tentative non-confirmation" notice; contractors and employees will then have eight days to try to address any problems with the Social Security Administration or immigration officials

Unpaid internships: A rip-off or legitimate resume booster?

It seems that Mark Cuban has stirred up a bit of a hornet’s nest with his recent post about unpaid internships. He’s already received 90 comments, ranging from wholehearted approval of his argument (pro unpaid internships) to outright disgust that he’d support such a notion.

He explains:

“This summer, in response to the changing sports media landscape, I wanted to
create a “media pool” for the Mavs. I wanted to assemble a group of unpaid
interns that would acquire video, write game reports, track unique stats, do
interviews, interact with fans, and then compile all of this incremental media
and provide it free to any and every outlet we could think of.”

His justification for taking the unpaid internship route was this:

“One silver lining of a “great recession” that we are now in is that there are a
lot of incredibly talented people without jobs, or who have lost their jobs. I
didn’t care if they were 18 years old or 73 years old. I thought we could
assemble a talented group who would enjoy the internships and could also gain
valuable experience to add to their resumes.”

But his plans were quickly halted when he heard back from his HR department. He learned that to be legal, interns must be paid, unless they are performing work that is of no value to the organization. This didn’t sit well with Mark - that whether or not the trainee would welcome the “on the job” experience, or be willing to work for no pay, does not come into play.

To be clear, the U.S. Department of Labor has developed specific criteria for determining an internship’s pay status. For an internship to be unpaid, it must meet these six legal tests:

1. It must be an educational experience, the equivalent of vocational school
2. It must primarily benefit the trainee
3. The trainee cannot do work that would otherwise be done by a paid employee, and must work under the close supervision of a manager
4. The employer cannot derive immediate advantage from the trainee’s work or profit from it
5. The employer must not promise a paid job at the completion of the training period
6. The employer and trainee must agree (ideally in writing) that no wages will be paid during the training period

On one side of the ring are the people who feel that an internship is a great way for someone to try out a particular industry and gain practical experience – and if that person is willing to get a “foot in the door” for free, more power to him. (A risk vs. opportunity scenario.) On the other side of the ring are the people who feel that it’s wrong for an individual to work for a company, in any capacity, and not get paid. That no one should do the work of a paid employee, no matter what the possible pay-off later, for free.

What do you think? Should the guidelines surrounding unpaid internships be loosened? How does your business handle the matter of unpaid vs. paid internships – and how do you make the most of the employer-trainee relationship so that everyone benefits?

How healthy is your medical leave policy? It may be time for a checkup

The Equal Employment Opportunity Commission (EEOC) has filed a class-action lawsuit against UPS for violating the Americans with Disabilities Act (ADA) when it terminated an employee with multiple sclerosis. According to the lawsuit, this particular employee (as well as a whole class of disabled UPS employees) was unfairly treated under the company’s 12-month leave policy.

Some details regarding the case: The employee took a leave of absence from her job when she started experiencing symptoms that were later diagnosed as multiple sclerosis. She came back to work for a few weeks after the 12-month leave period, but then needed additional time off to deal with the negative side effects of her medication. It was at this point that UPS fired her for exceeding its 12-month leave policy.

From an EEOC press release:

“One of the main goals of the ADA is to provide gainful employment to qualified
individuals with disabilities. However, policies like this one at UPS, which set
arbitrary deadlines for returning to work after medical treatment, unfairly keep
disabled employees from working. Sometimes a simple conversation with the
employee about what might be needed to return to work is all that is necessary
to keep valued employees in their jobs.”

UPS is defending its 12-month leave policy, calling it “one of the more generous and flexible leave policies in corporate America.” The company claims the employee never asked for an accommodation under the ADA – and that after returning from a year’s leave of paid absence, she basically “abandoned” her position 18 days later, without providing any medical documentation justifying additional time off.

What about your company’s leave of absence policy? Could it pass this sort of ADA scrutiny? Are you prepared to handle and properly administer requests for reasonable accommodations? A quick checkup of your leave policy and ADA administration practices may be in order to ensure they are healthy, stable and could stand up in court.

Courts "weigh" in on controversial employee lawsuit involving injury and obesity

“An Indiana court has ruled that a pizza shop must pay for a 340-pound employee's weight-loss surgery to ensure the success of another operation for a back injury he suffered at work,” says the Huffington Post.

Under the Indiana court’s ruling (and an earlier decision by the state’s worker’s compensation board), Boston’s The Gourmet Pizza must pay for lap-band surgery for the plaintiff. The employee, who weighed 340 pounds at the time of the accident in March 2007, was accidentally struck in the back by a freezer door. He was told by doctors that he needed surgery to alleviate his severe pain, but for the surgery to be successful, he’d first need to lose weight (which rose to 380 pounds after the accident).

While his employers agreed to pay for the back surgery, they declined covering the recommended $25,000 weight-loss operation, pointing out that the employee was already obese before the accident. The courts saw it differently, however. They concluded that the surgery should be covered, since the employee’s weight and the accident had combined to create a single injury.

"There's actually a string of cases across the country that have reached similar conclusions," says the employee’s attorney, Rick Gikas. He cites cases in Ohio, California, Oregon, Florida and South Dakota, including some dating back to 1983.

As you might imagine, cases like these are especially concerning for employers – on both a legal and an emotional level. One, because of the cost implications with workers’ compensation claims and court cases. And two, because it’s easy to conclude that obesity is the employee’s “fault” and that it’s not fair for an employer to foot the bill for expensive weight-loss procedures.

But are these concerns significant enough to influence how you treat overweight individuals in the workplace – not hiring an obese candidate, for example?

"Legally, you cannot refuse to hire this 350-pound person because they're 350
pounds. That's illegal. But you might find some other reason not to hire them,"
says Tom Lynch, CEO of Lynch, Ryan & Associates, a consulting firm that
helps businesses manage workers’ compensation.

With one-third of Americans now considered obese (a body mass index of 30 or more), weight (and weight bias) in the workplace are issues that can’t be ignored. After all, what an employer might overlook or dismiss with obesity-related issues, the courts will not.

When weak management pushes top performers out the door

Steady Eddy. He’s reliable, hard-working and never complains. He’s also very predictable. What you see is what you get – and not a bit more. Then there’s Soaring Sally. She’s a real go-getter – sharp, ambitious, highly motivated. But she’s also impatient and restless, especially when she disagrees with her manager or the company’s decisions.

Chances are, you have a combination of these employees in your company: the “pluggers” and the “top performers.” In his blog, I Quit-Now What?, Steven DeMaio makes an interesting point about the latter:

“… top performers spend most of their time living with the day-to-day decisions
of their direct managers. What distinguishes a top performer is that she often
has the talent to do her manager's job and a keen ability to assess her
manager's choices. That makes her more likely than other employees to seek a
change in her work situation if she perceives those small matters as hindrances
to her performance, even if the big factors pass muster.”

He goes on to list the things top performers deem job drawbacks with management (and that may ultimately lead to their departure), including:

• Managers who “drop the ball” regarding various workplace priorities and expect their employees to pick up the slack and keep these balls in play
• Managers who ignore the tough questions, which can come across as a sign of weakness or poor reasoning regarding the bigger issues
• Managers who rely more on data (“number crunchers”) than a fair assessment of all the factors at hand
• Managers who are uneasy with their employees’ leadership potential, or worse yet, unwilling to groom them to advance

So no surprises here. While a “one-size-fits-all” management approach may keep your pluggers cranking along, it can also squelch the efforts and attitudes of your strong performers. To keep the bar high with your superstars, the bar needs to be that much higher with the managers who are guiding and, hopefully, inspiring them each day.

Dethroned former Miss California USA sues for religious discrimination

It’s been said that, “Beauty is in the eye of the beholder.” And with former Miss California USA Carrie Prejean suing pageant officials this week, so are claims of religious discrimination. Prejean is suing for libel, slander and religious discrimination, asserting that officials told her to stop mentioning God even before her controversial comments regarding gay marriage.

Prejean was fired from her position as Miss California USA in June, just months after the Miss USA Pageant where she spoke out against same-sex marriage. When asked whether she believes in gay marriage, she replied:

“We live in a land where you can choose same-sex marriage or opposite. And you
know what, I think in my country, in my family, I think that I believe that a
marriage should be between a man and a woman. No offense to anybody out there,
but that's how I was raised."

Was it this response that cost Prejean her crown – and ultimately led to her firing? While pageant co-director Keith Lewis claims Prejean’s termination was due to violation of contract (specifically, unwillingness to make public appearances), Prejean’s attorney, Charles LiMandri, says otherwise. He states:

“Over the past two months we have worked hard to provide overwhelming evidence
that Carrie Prejean did not violate her contract with Miss California USA and
did not deserve to have her title revoked by Keith Lewis. We will make the case
that her title was taken from her solely because of her support of traditional
marriage. Keith Lewis has refused to clear her good name or even to admit any
wrongdoing. Therefore, Carrie Prejean is left with no alternative but to take
her case to court where she expects to be fully vindicated.”

Do you think Prejean has a legitimate case here? Was she truly wronged for expressing her traditional religious beliefs? Or is this a carefully orchestrated publicity stunt that will meet its demise in court?

Regardless of your opinion of the “fallen” beauty queen, when it comes to religion in the workplace, the law is clear: Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against individuals because of their religion in hiring, firing, and other terms and conditions of employment. Yet in 2009, EEOC received 3,273 charges of religious discrimination, resolving more than 2,700 of these charges and recovering $7.5 million in damages.

As an employer, you must accommodate an employee’s religious beliefs and take active steps to prevent religious discrimination and harassment in the workplace. Start with a careful review of the current laws and your internal policies and procedures. Then, be sure you’re holding all employees and managers accountable for adhering to these policies.

The Carnival of HR is in town! Welcome!

Step right up! We have an amazing carnival for you today! Experience the thrills of new opportunities, the heartbreak of termination. See the magic shows, costumed clowns and daring feats on the high wire. Welcome to the Carnival of HR!

Staging the show

A great carnival depends upon everyone doing their part to make the show great. And not everyone can be the stage manager. Learning how to be an excellent cast member is the subject of Dan McCarthy’s post on 10 Ways to be a Great Follower

Clowns get to hide behind make-up and costumes, but in our online world, should bloggers get to do the same? Trisha McFarlane explores the concept of anonymous bloggers in her post.

Then blogger Lance Haun deals with other side of the issue in his post on the Workplace Implications of Facebook Friending/Defriending, where he suggests that a little bit of costuming might be preferable to the complete transparency of a Facebook connection with coworkers.

That theme is echoed in Jessica Miller-Merrell post about maintaining a Social Media Mullet (business in the front, party in the back) whenever we connect with colleagues online. And Melissa Prusher serves up advice on using Twitter as a part of that online conversation with clients and colleagues. (No sign of the popcorn and cotton candy, yet, Melissa. Sorry!)

What's your show about?

Every carnival needs a description of the shows, performers and events. And the same applies to the workplace. Creating clear and accurate job descriptions is critical to the success of the show as well as the performers, according to blogger Becky Regan in her post The Single Most Important Tool You Need to Practice Sounds HR Management.

One of the keys to a successful carnival is keeping it fresh. Problems need to be addressed as they arise, shows need to be reviewed and plans need to be made. That on-going process of adjustment works for your employees, too, according to Louise Barnfield in her post on transforming the dreaded annual review into a constantly updated tool for growth.

The cast and crew

Before you accept your role in the carnival as a given, Steve Boese’s HR Technology blog offers advice on getting a better deal at work. We may not be famous athletes or even the star of the show, but his post “Help You, Help You” offers suggestions about applying the techniques professional agents use to negotiate the big bucks.

Everyone wants to be a star, right? Wrong! Some people are choosing to pass up a chance at that management position, especially when they see current managers struggling with insufficient resources, lack of training and minimal support from higher-ups. That's the subject of HR Bartender Sharlyn Lauby post. (Oh and thanks for the mention in your post! Like all performers, we like seeing our name out there on the marquee...or at least in a post or two.)

We all know there's no show without the performers, right? No matter what their position, making sure your people are committed, content and creative is the message behind Melanie Quinn's post on Keeping Your Employees.

When the show goes wrong

Even in the best of carnivals, shows will flop, rides will break and even the clowns will cry. PunkHR blogger Laurie Ruettimann offers advice on seeing these as chances to grow and develop character in her post Coulda Been a Contender.

And when that crash takes the form of a termination, Gautam Ghosh offers some advice on exit interviews, and why they can't tell as much as we think.

Feeling like your safety net is full of holes? Grab on to your trapeze and fly over those job gaps, lay-offs and career changes with grace, thanks to the advice being offered up in Amit Bhagria’s post on managing resume dilemmas.

Stage directions and union rules

Even in the world of carnivals, there are rules and procedures that keep the rides going and the games stocked with unidentifiable stuffed animals (is it a bear, a dog or a…duck?) The same is true in our HR world (minus the ducks), as we try to stay on track with ever-shifting federal and state rules and regulations.

Blogger Giressh Sharma offers some advice on determining FMLA eligibility amid a fun-house of regulatory changes and employee recordkeeping.

PseudoHR's April Dowling brings us an example of a rule gone mad, in her story of exempt employees required to punch a time clock. Risks of legal repercussions aside, she explains why sometimes what looks like a little rule can do big damage to morale.

Tricks of the trade

Everyone knows that side shows rely on smoke and mirrors to perform their magic. Blogger Wally Brock thinks the current hype around the concept of employee engagement would fit right in with those ever-popular acts.

Jon Ingham offers a different view, with the mirrors stripped away, and a clear spotlight on the value of employees in his post on The People Factor.

Kelly Dingee's post on finding time for sourcing even when there is no time available goes beyond advoce to recruiters, and offers something we all need to do if we want to succeed -- Find the time to do what needs to be done to take our careers, companies and clients to the next level.

When the lights go down

After the crowds leave, it's time to count the money. Cathy Missildine-Martin thinks that even after the economic recovery, CEOs will be expecting a lot more counting and numbers from HR, as the focus on metrics continues.

_________________________

We're stepping out of the ring for now. Enjoy the show, visit all of the talented performers who contributed posts, and let us know what you think.

Thank you all for coming to our carnival. We appreciate the participants, and you the readers. Y'all come back now, you hear?

You can go buy the book, and not go BY the book!

I will not throw away my books!
I will not throw away my books!

I ran across this blog post titled “Seriously if you have ever used a canned performance appraisal you should be fired” where the blogger blasts the use of books (Ready-to-Use Performance Appraisals, specifically) to write employee performance reviews.

“One thing being a manager isn’t? Being a color-by-numbers, manager-in-name-only job. If you’re too “busy” to give an honest performance review, get out of the business of being a “manager.” If you have ever used a canned performance appraisal, you should be fired. If you’re an HR trainer and think it’s okay to teach “managers” to use pre-populated, canned performance phrases…well, you should exit stage right, too.”

Whoa! Those are strong words for the manager who might turn to a book or reference guide for a little inspiration or to get “unstuck” when working on an employee’s annual review. While I agree that using only “pre-populated, canned performance phrases” is no way to appraise an employee (and perhaps even a sign of a lazy, ineffective manager), I also don’t think we need to shelve these books and guides completely.

The way I see it, these books are a tool – one of many in a manager’s toolbox that can be used to fix a problem, measure up a situation or build a better team. Just as a great cook might start with a basic recipe, but add his own flair with a dash of this or a splash of that, so can a great manager refer to a well-written book to create a balanced performance appraisal. Not sure how to address an employee’s time management issues? A book might help. Want to outline some new performance objectives to coincide with an employee’s recent promotion? A book might help. “Help” is the operative word here.

It comes down to this: If you’re a good manager, you shouldn’t treat performance appraisals as a once-a-year occurrence and you shouldn’t expect a book to magically write a review for you.

So when it comes to writing performance reviews, don’t go “by the book,” but don’t toss it aside, either. It deserves a spot in the manager’s toolbox!

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