HR Forum

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!

Has the No-Match Rule met its match with E-Verify?

In a bit of a “I told you so” move, the Department of Homeland Security (DHS) proposed a new regulation on August 19 that could kill the controversial Social Security Administration (SSA) No-Match Rule. As you recall, the rule established a “safe harbor” provision allowing employers 90 days to resolve any employment eligibility issues identified in a No-Match letter or notice from DHS. (Typically, an employee’s name and Social Security Number - as provided in a W-2 earnings report - not matching SSA records.)

Most employers aren’t sad to see the rule go. This is largely due to the fact that even though millions of undocumented immigrants receive No-Match letters every year, so do legal workers, due to clerical errors, unreported name changes and other discrepancies. Regardless of the circumstances, the No-Match Rule would have put employers in the hot seat, requiring them to penalize or fire workers who were unable to correct their Social Security records in time.

In the rule’s place, the DHS plans to focus its enforcement efforts on employer participation in E-verify. This free, Web-based system, operated by DHS in partnership with the SSA, compares employee information from the Employment Eligibility Verification Form (Form I-9) against federal databases. “E-Verify is a smart, simple and effective tool that reflects our continued commitment to working with employers to maintain a legal workforce,” says DHS Secretary Janet Napolitano.

Like I mentioned earlier, it’s not like we didn’t see this coming. In a July 8 press release from the DHS, it was revealed:

DHS will be proposing a new regulation rescinding the 2007 No-Match Rule, which was blocked by court order shortly after issuance and has never taken effect. That rule established procedures that employers could follow if they receive SSA No-Match letters or notices from DHS that call into question work eligibility information provided by employees. These notices most often inform an employer many months or even a year later that an employee’s name and Social Security Number provided for a W-2 earnings report do not match SSA records—often due to typographical errors or unreported name changes. E-Verify addresses data inaccuracies that can result in No-Match letters in a more timely manner and provides a more robust tool for identifying unauthorized individuals and combating illegal employment.

What to do in the meantime?

Even though it looks like the DHS will not be mandating a “safe harbor” process for responding to No-Match letters anytime soon, you should still follow some basic precautions when screening and verifying an employee’s eligibility to work.

By law, you may not:

Set different standards for verifying employment eligibility or require that different documents be presented by different groups of employees. For example, you cannot waive I-9 requirements for individuals appearing to be U.S. citizens.

Require applicants to provide I-9 documentation before making a job offer. Legally, job applicants do not have to verify their identity or employment eligibility until they actually start work.

Specify or select which documents must be provided. The I-9 form lists the specific documents an individual may provide to establish his/her identity and work authorization. Employers must allow individuals to choose from this list of permissible documents.

Discriminate against individuals with “temporary” work authorization status. Temporary resident aliens and individuals who have asylum typically have documents that expire, but they ordinarily obtain extensions.

Overtime lawsuit could pack a huge financial wallop for UPS

Remember last week’s post on overtime pay – and the spike in employee lawsuits to recover “lost” overtime wages? And how important it is to properly classify employees as exempt or non-exempt, according to FLSA regulations? Well, no one is feeling the pain of this more than UPS right now.

Filed August 19 in federal court, a class action lawsuit claims that United Parcel Service (UPS), the world’s largest package delivery service, failed to pay as much as $100 million in overtime wages to its account managers. The plaintiff, a UPS employee since 2005, says she has regularly worked 60 hours a week but was only paid a straight salary. She adds that UPS misclassified her and other account managers as outside salespersons or administrative employees exempt from overtime pay. And therein lies the problem:

The suit says UPS' account managers don't make sales or obtain contracts nor do they perform managerial type work, and therefore shouldn't be classified as outside salespersons or administrative employees. (The Boston Globe)

To make matters worse, the lawsuit also claims that account managers were not given mandatory meal and rest breaks – and that UPS doesn’t keep accurate records of hours worked.

As a result, UPS is facing a potential jury trial, more than $100 million in damages and the payment of attorneys' fees. The class-action suit also seeks to represent other UPS employees facing a similar situation.

So I’ll wrap up today’s post with the same suggestion as last week: Check out the ComplyRight Now E-Guide, Determining Exempt vs. Non-Exempt Employees (and other FLSA compliance tools) for help figuring out whether an employee is exempt or non-exempt. With overtime lawsuits growing at a breakneck pace, now is the time to be absolutely certain you’re following FLSA exemption rules to the letter of the law.

Can employees vent their workplace frustrations on personal blogs?

Jane had an awful day at work, butting heads with her manager about how she handled a particular project. Later that evening, still fuming about the run-in, she signs into her personal blog account and lets loose about how much her manager irritates her. And she doesn’t stop there: She continues her blog post by trashing the company and how they treat their employees.

As an employer, can you restrict employees from blogging about workplace concerns – and if you learn of negative or damaging posts, can you act on them?

The answer may depend on whether you’re a private or public employer.

In a 2006 survey co-sponsored by the American Management Association, it was revealed that nearly 2% of employers have fired workers for offensive blog content, including posts on employees’ personal, home-based blogs.

“Employee bloggers, who can be fired, or “dooced” in blog parlance, for blogging at work (and at home on their own computers) face increasing risk of termination by employers struggling to keep a lid on legal claims, regulatory fines, and security breaches. With the blogosphere growing at the rate of one new blog per second, industry experts expect the ranks of dooced employee bloggers to swell.”

And for those employees who feel this type of action is a violation of their rights to free speech under the First Amendment, Nancy Flynn, author of Blog Rules and executive director of The ePolicy Institute, shares:

“Employee bloggers mistakenly believe the First Amendment gives them the right to say whatever they want on their personal blogs. Wrong! The First Amendment only restricts government control of speech; it does not protect jobs. Bloggers who work for private employers in employment-at-will states can be fired for just about any reason—including blogging at home on their own time or at the office during work hours.” (American Management Association)

Ms. Flynn points out an important distinction here and it concerns the actions private employers can take. But what about public employers? Do they have the same right to terminate an employee for improper blogging?

In the paper, Blogging While (Publicly) Employed: Some First Amendment Implications , Paul M. Secunda compares the First Amendment free speech implications for public and private employers – and what the future holds for employees who choose to blog about their workplaces. He explains:

“While private-sector employees do not have First Amendment free speech protection for their blogging activities relating to the workplace, public employees may enjoy some measure of protection depending on the nature of their blogging activity. The essential difference between these types of employment stems from the presence of state action in the public employment context.”

It should be noted that, regardless of whether an employee works for a private or public business, certain speech about unionization or working conditions is protected. For example, it could be a violation of the law for an employer to take action against an employee blogging about an experience with sexual discrimination at work. It could also be a violation to retaliate against an employee for complaining about workplace safety issues. Obviously, an employee would enjoy greater protection under these circumstances if he or she issued a formal complaint with the employer before sharing information on a personal blog.

(Check your state laws, too, since many states prohibit employers from disciplining or firing employees for activities they pursue offsite, on their own time. These “off-duty conduct” statutes often contain language protecting employees who “use legal products” (such as cigarettes) off-duty, as well as protection against any employee conduct that doesn’t break the law. This coverage could apply to employees who keep a personal blog. )

One important step you can take to discourage negative or damaging blogging by your employees is to include a written policy in your employee handbook. With Gradience Handbook Manager Software, you can easily create a comprehensive, legally compliant handbook that addresses, among other things, the issue of blogging. One of the recommended policies, “Use of Company Communication Systems”, covers employee blogging/social networking sites and provides guidelines for employees to follow, such as “(Company) expects that employees will be respectful to the Company, fellow employees, our customers, partners and competitors. Employees must not post materials that violate the privacy or publicity rights of another individual or entity.”

Gerber to pay $900,000 settlement for discriminatory hiring practices

Gerber Products Company in Fort Smith, Ark. will pay $900,000 in a hiring discrimination suit involving 1,912 minority and female applicants rejected for entry-level positions, according to an announcement from the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP).

From the announcement:

During a scheduled compliance evaluation of Gerber Products in Fort Smith, OFCCP investigators found the hiring disparity was in part caused by inconsistent selection procedures for entry-level positions. Additionally, OFCCP found that Gerber used pre-employment tests that negatively impacted minority applicants and determined that there was insufficient evidence of validity to support Gerber's use of the test. Gerber has discontinued its use of the test in the hiring process for entry-level positions.

The test that Gerber used was the TABE, or Test of Adult Basic Education – a test that is primarily used by adult education centers to evaluate a student’s reading and math skills. Elizabeth Todd, spokeswoman for the Labor Department at Dallas, said the aptitude test, with its pass-or-fail results, “significantly impacted minorities.”

In addition to paying $900,000 in back pay and interest to the applicants, Gerber will:

Provide 61 entry-level positions (11 of whom have already been hired)
Undertake extensive self-monitoring measures to ensure they fully comply with the law when hiring, and promptly correct any discriminatory practices
Comply with Executive Order 11246 recordkeeping requirements

Employers can learn a few lessons from this case, most notably that the OFCCP, which is “responsible for ensuring that contractors doing business with the Federal government do not discriminate and take affirmative action”, can be a strict enforcer of employment discrimination laws. The agency monitors federal contractors to ensure they provide equal employment opportunities without regard to race, gender, color, religion, national origin, disability or veterans’ status.

Further, because recipients of federal funds must adhere to specific information reporting and auditing requirements, their hiring practices can fall under even tighter scrutiny with the OFCCP than with the Equal Employment Opportunity Commission (EEOC). Proper training for your hiring managers is essential, including a careful review of the tests and practices used to screen and select applicants for hiring.

“This settlement … should put all federal contractors on notice that the Labor Department is serious about eliminating systemic discrimination,” said Labor Secretary Hilda L. Solis.

Can salaried employees receive overtime pay?

Towering billboards and catchy advertisements shout the message: “Unpaid overtime hours? Wronged by your employer? You may be entitled to money!”

Class action lawyers are enjoying a brisk business targeting employees who believe they haven’t received their entitled overtime pay – and helping them recover these “lost” wages in court. With the Department of Labor (DOL) estimating that a staggering 70 percent of employers aren’t in compliance with the Fair Labor Standards Act (FLSA) in some manner, now is the time to review one of the biggest areas of vulnerability for employers: misclassifying employees as exempt vs. non-exempt.

The DOL states that:

The FLSA, which prescribes standards for the basic minimum wage and overtime pay, affects most private and public employment. It requires employers to pay covered employees who are not otherwise exempt at least the federal minimum wage and overtime pay of one-and-one-half-times the regular rate of pay.

Determining those employees “who are not otherwise exempt” is the tricky part, however. Problems may arise if it appears you’re avoiding paying an employee overtime pay by misclassifying the non-exempt employee as an exempt employee. In some cases, salaried employees are entitled to overtime pay; the distinction is whether the employee is “exempt” according to FLSA requirements. While most exempt employees must receive a salary, salaried workers aren’t necessarily exempt from being paid overtime for working more than 40 hours in a week.

Generally speaking, employees who work in an executive, administrative or professional capacity - as well as certain employees in computer-related positions and outside salespeople -are exempt. To qualify for an exemption, these employees must meet certain tests regarding their job duties and be paid a salary of at least $455 per week. Job titles do not determine exempt status. Rather, an exemption applies when an employee’s specific job duties and salary meet all the DOL regulations.

Check out the ComplyRight Now E-Guide, Determining Exempt vs. Non-Exempt Employees, for help figuring out whether an employee is exempt or non-exempt – and to steer clear of FLSA-related employee lawsuits.

Thanks to ADA, NBA may employ oldest player in history

Alan Rupe is a 59-year-old, 5-foot-ten attorney, who claims he can have his dream job as a professional NBA player and you can too, thanks to the Americans with Disabilities Act (ADA).

His strategy – leverage some recent court decisions “guaranteeing” equal employment rights under the ADA in his favor. All he needs to do is find a mental or physical disability protected under the ADA.

His plan – find an ADA protected mental or physical disability. After proving that he suffers from a covered disability, the NBA will essentially be forced to accommodate his limitations.

Sound crazy? Maybe crazy like a fox…

Take a look at the recent appeals decision of Tobin v. Liberty Mutual. Plaintiff Tobin claimed his bipolar disorder caused a lack of focus and concentration. He couldn’t complete work on time, prioritizing was difficult and stress worsened his symptoms.

After 11 months of Liberty working with Tobin to accommodate his disability, he was fired for “consistent poor performance” that the company said lasted for years. Long story short – Tobin sued. Tobin won more than $1 million.

In another case, Titus v. Home Depot, a store manager suffered an injury on the job that caused permanent damage. The manager requested Home Depot make “reasonable accommodations” for him that included a promotion. The company declined, the manager sued and won.

Under the ADA, employers must “provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, unless to do so would cause undue hardship.” (EEOC)

“Unless an employer can prove it would suffer “undue hardship” in the operation of the business, the employer is required to provide the requested accommodation,” says Rupe.

As it turns out, the older Rupe gets, the better chance he has at joining the NBA. Like I said, crazy like a fox.

New amendments to the ADA effective January 1, 2009, expanded the definition of disability. And as some experts predicted, reasonable accommodation requests have become more frequent and complicated.

Be prepared to handle and know how to document reasonable accommodation requests with tools like the ComplyRight ADA Administration System. With this supply of ADA forms, information and tip sheets, you’ll be ready to manage employee requests.

With Rupe on the way, maybe the NBA should look into it, too.

Wellness investment yields better than 1:1 return

For companies to commit financially to anything these days, executives first need to know that the return on investment (ROI) is worth getting involved. Even internal investments such as employee wellness programs, which have lacked hard ROI data in the past, must prove that they’re a sound investment.

If you’re one of those searching for wellness program ROI data, you’ll be happy to hear that recent research suggests companies that invest in employee wellness get their investment back, and then some.

A survey of 225 employers by Health2 Resources revealed that 73% of companies successfully measured the ROI of wellness programs. Of those that measured ROI, 83% said their programs had a return of better than 1:1 on their investment.

"Employers are becoming more sophisticated about measuring the return on investment from wellness and disease management programs, and today's economic outlook dictates that these programs bring a positive ROI," said Sean Sullivan, president and CEO of the Institute for Health and Productivity Management.

"No other kind of health management program has been given the same scrutiny as health and productivity management in measuring its effectiveness in reducing total health-related costs, including sick days, disability claims and impaired performance at work. Employees are too valuable a human capital investment for companies to take their health and productivity for granted."

The survey also found that most employers with and without wellness programs in place believe that paying employees to participate boosts program success and return value. An estimated two out of three U.S. companies offer programs dedicated to employee health, and 66% of those with programs also use incentives.

Other key findings:

The most commonly used incentives are premium reductions followed by merchandise/tokens and gift cards.
Smoking cessation programs are the most popular health and wellness program to offer, with weight management and physical activity programs a close second.
Some organizations with as few as 210 employees are offering incentives valued at $1,450 per year to keep employees healthy.
Diabetes programs are the most popular disease management program offered in 2009.

Does your company offer any health and wellness programs for employees? What kind of incentives, if any, are promoted to get employees involved? Have they seen a positive ROI?

Please leave a comment and let us know about your company’s experience with wellness programs.

Mastering the tools of engagement

Your employees show up to work every day, and most of them are doing a great job. But as five o’clock inches closer, you notice that they’re counting down until the workday ends. If more employees were excited to be at work, rather than thinking about quitting time, the company could do a lot better. Raising salaries isn’t an option right now and you feel stuck. What can you do?

Budgets have shrunk and our belts are so tight it’s hard to breathe; traditional motivators like performance bonuses are out of the question. So, what can managers do to improve employee commitment when dollars are in short supply?

The good news – managers can use many tools to improve morale, boost employee motivation and raise the level of engagement, even when there seems to be no room in the budget.

These tools fall into one of four basic categories:

What is said?
What is permitted?
What is encouraged?
What is offered?

Find out how to leverage the tools of engagement in G.Neil’s free white paper, The Tools of Engagement: Boosting Employee Commitment When Money is Tight (.pdf).

In it you’ll find suggestions on improving employee engagement on a budget and examples to help you identify what’s missing in your workplace. No registration required, read the white paper (.pdf) today.

Economy shrinking workers’ paychecks

More than one in three U.S. workers (39%) said that they had not received a raise or that their compensation had decreased as a result of the economic downturn, according to a new survey.

As part of their Tell It Now poll, ComPsych asked workers: “Has the economic downturn impacted your work? If so, in which area have you experienced the greatest impact?”

The highest number of workers (39%) said they haven’t received a raise or their compensation had actually decreased this year as a direct result of the economic downturn.

One in five workers (20%) reported increased conflict and stress among coworkers since the economic recession began.

Another 11% of workers said they’ve had to take on more work due to company layoffs. The added work has about 10% more workers reporting that they’re working more hours and unable to take as much vacation time as they usually do.

Just 20% of respondents said the economic downturn had no impact on their work.

We’d also like to know – Has the recession impacted your work? If so, which area has been impacted the most?

DHS strengthens employment verification, contractors must use E-Verify

Federal contractors have about six weeks left to start using the government’s E-Verify system to check employee work authorization.

On July 8, Department of Homeland Security (DHS) Secretary Janet Napolitano announced the Administration’s support for a regulation that will award federal contracts only to employers who use E-Verify.

“E-Verify is a smart, simple and effective tool that reflects our continued commitment to working with employers to maintain a legal workforce,” said Secretary Napolitano.
“Requiring those who seek federal contracts to use this system will create a more reliable and legal workforce. The rule complements our department’s continued efforts to strengthen immigration law enforcement and protect critical employment opportunities. As Senator Schumer and others have recognized, we need to continue to work to improve E-Verify, and we will.” (DHS press release)

E-Verify is the free web-based system operated by DHS in partnership with the Social Security Administration (SSA) that compares employee information from the Employment Eligibility Verification Form (Form I-9) against federal databases to verify workers’ employment eligibility.

Starting on September 8, 2009, the federal contractor rule will extend the use of the E-Verify system to all covered federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds.

Read the full DHS press release for more information.

Federal agencies improving work/life balance, setting precedent for private sector

A number of federal agencies, including the Office of Personnel Management (OPM), are implementing new programs to improve work/life balance issues for the thousands of workers they employ.

Earlier this month, three federal department and agency heads, including OPM Director John Berry, met to discuss how to improve the work environment within each organization.

Berry, who said that he would give the OPM’s current work/life balance programs a “generous” grade of D+, is working with the Interior Department and the General Services Administration (GSA) to create a set of model programs for the 7,000 employees at the agencies’ neighboring headquarters.

“Establishing work/life programs and creating a better work environment is critical, particularly in the public sector, where managers don’t control pay and benefits, Berry says.” (Workforce)

Berry started by setting up “The Wolf Pack,” a group of 12 employees to give insight into what work/life balance issues the OPM workforce is most concerned with.

Among the list of top priorities is providing day care for employees’ parents and expanding the OPM health clinic. OPM has since devoted $300,000 in upgrades to the clinic. He is also working to expand and broaden the organization’s telework program, of which 34% of OPM employees already participate in.

“Experts believe that if Berry’s programs are successful, not only will other federal agencies adopt them, but private employers will as well, as they realize they need such programs to compete for talent.” (Workforce)

Read more about the OPM’s work/life balance initiatives in their recent press release: Four Federal Agencies Combine Forces To Create a Model Federal Work-Life Campus.

More laid-off workers returning to old employers

More laid-off employees are finding new work in their old jobs, according to the latest labor statistics that show almost a fifth of displaced employees return to the company they were laid off from.

About 18% of laid-off workers who found work were rehired by the same employer that issued their pink slip, up 5% from 2005, according to Right Management’s outplacement services. (CNN Money)

"In some instances, organizations are realizing that they may have cut too deep and are bringing people back in consulting roles or for project work," Melvin Scales, senior vice president for global solutions at Right Management, said in a statement.

"Former employees have the organizational knowledge and skills to jump back into roles quickly to get the job done," Scales said.

Scales recommends that employers consider redeploying workers as an alternative to layoffs. "It's a way of leveraging the skills and talents of existing employees and reassigning them to new roles within the organization. It provides an opportunity to retain valued talent, reduce the cost of turnover and leverage knowledge transfers within the company," he said. (CNN Money)

Over the past two years, the U.S. labor market has experienced widespread job cuts. In the first half of this year nearly 3.4 million jobs have been lost, on top of the 3.1 million lost in 2008.

DOL celebrates ADA anniversary with new disability site

Marking the 19th anniversary of the signing of the Americans with Disabilities Act (ADA) the Department of Labor (DOL) yesterday announced the re-name and re-launch of its disability-related informational website, Disability.gov.

The improved site, managed by the DOL, is designed to better inform and serve the more than 50 million Americans with disabilities, along with their families and friends, veterans, employers, educators, caregivers and anyone interested in disability-related information.

"The Department of Labor is pleased to be the managing partner of Disability.gov and to help advance the independence and full participation of people with disabilities in the workforce, the classroom and their communities," said Kathleen Martinez, assistant secretary for the Labor Department's Office of Disability Employment Policy (ODEP).

Disability.gov has pulled together content from 22 federal agencies and utilizes social media tools that enable user interaction. Visitors can sign up for personalized news and updates, participate in online discussions and suggest new resources for the site.

The DOL has also set up a Twitter feed, RSS feeds, a blog, social bookmarking and a user-friendly way to access information on such topics as employment and job accommodation. The Department has plans to add more tools in the coming months.

"Far more than just a directory of federal resources, Disability.gov is a meeting ground for Americans to learn, respond and communicate about a wealth of critically important disability-related topics," said Secretary of Labor Hilda L. Solis. "The new site has been vastly enhanced to provide more information in as efficient and interactive setting as possible."

Read the DOL press release and visit Disability.gov for more information.

Employees just say ‘no’ to management

Preparing the next generation of managers has become one of the leading workplace issues since the recession began, but many employees are lacking preparation and/or interest in taking the next step toward management.

In 2009, 52% of employees surveyed for the annual Randstad World of Work survey felt there are not enough qualified managers in their organizations and 45% see a shortage of qualified managers in the future.

The survey also revealed that a majority of employees don’t want to become managers.

“It’s roughly a 50/50 split but it’s still a pretty startling realization. Up until now the assumption has been every employee aspires to become management, to work up the corporate ladder and end up in the corner office with a window. But it seems they don’t. And at this point, the people with the most experience are the least likely to want to become a manager.”

Why not? Increased stress was the number one reason why employees don’t want to enter management. When asked why they don’t want to be managers, employees said:

- Increased level of stress (82%)
- Handling disgruntled employees (74%)
- Increased paperwork (63%)
- Having to terminate or layoff employees (63%)

What can be done to change employees’ perception of management positions? According to the survey results, it may involve a rethinking of management all together.

The desire to become a manager is not driven by money or power, said most survey respondents. Instead, the top two reasons for wanting to become a manager were sharing knowledge with others and having more responsibility for the success of the organization.

“It seems that employees are asking their companies to reconsider and rethink the job of “manager” and how that person relates to the workforce. Just over half of the employees surveyed in 2009 felt the roles of managers need to change. Fifty-two percent saw a difference between the managers of today and the ones of tomorrow. Employees are looking for more than a new generation of managers; they are looking for a new generation of role models.”

Small businesses report steady or improved morale, despite recession

A new workplace survey suggests that efforts by small businesses to maintain employee morale throughout the recession are paying off.

More small businesses believe that employees’ work environment has more impact on job satisfaction than financial factors like benefits or compensation, according to the TriNet quarterly HR Trends Survey.

More than 75% of the 250 small businesses surveyed said employee morale has held steady or improved during the second quarter. Another 41% believed that employee morale in their companies has remained unchanged from a year ago. More than one-third (34%) felt that employee morale in their organizations improved during the past year.

Survey respondents cited company culture and reputation as the top contributor (36%) to employee morale, followed by flexibility and work/life balance (23%) and job security (22%). The bottom of the list included advancement opportunities (4%), benefits (5%), or compensation (9%).

Well over half of employees (60%) said their employer successfully built and maintained a positive employment brand through good communication and quality management practices.

“These results prove that employees are happier and more likely to stay with their companies due to the quality of their management,” said Burton M. Goldfield, president and CEO of TriNet. “Companies that develop the skills of their leaders boost employee morale, which then positively contributes to the company’s overall employment brand.”

How do you think the recession has impacted employee morale at your company? Over the past year, has it improved, remained steady or declined? Please leave a comment and let us know how your organization is handling it.

Social recruiting grows popular among recruiters

We may still be in a recession, but many companies still have open positions to fill and the most preferred method for finding promising candidates is shifting. Instead of spending their time on job boards like Monster and CareerBuilder, many HR pros and recruiters are turning to social networking sites.

Social networking sites like Facebook and Twitter are quickly becoming top sources for recruiters searching for candidates, according to the results of the second annual Jobvite Social Recruitment Survey.

The survey also found that employers are more satisfied with the quality of candidates from employee referrals and social networks than those from job boards. The majority of those surveyed are planning to invest more in social recruiting in the coming years, according to the Jobvite survey of more than 400 human resource and talent management professionals

You have to complete a quick registration from Jobvite to get the full survey results, but here are some of the highlights:

68% of companies use social networking or social media to support recruitment efforts

The most popular social networking sites for recruiting are LinkedIn (95%), Facebook (59%) and Twitter (42%)

66% of companies have successfully hired a candidate through an online social network

Companies are investing more in employee referrals (76%), social networks (72%) and corporate career sites (64%)

The New York Times recently covered how both unemployed workers and employers looking for a low-cost recruitment method have found success using social networking sites. From the article:

Gladys Stone, a corporate recruiter in San Francisco, says it’s smart for employers to tap into employees’ social networks. This accelerates the personal referral process and widens the field, as many social network users have hundreds of friends or contacts in their networks, she said.

And while some may be disconcerted that software from an unknown company is searching their profiles, Ms. Stone says that most know that information on the Web can be used in ways that people don’t expect, and that LinkedIn, in particular, is built to make professional information available.

Does your company use social networking sites to recruit new employees? Have you been successful? What advice would you give others who may be thinking about recruiting using social networks?

Develop a worksite obesity prevention program with new, free CDC tool

As a follow-up to our Monday post on how a lack of healthy snacks in the office are putting workers’ waistlines to the test, I wanted to share a new resource for businesses wanting to enhance their wellness program this year.

Yesterday, Ann Bares at Compensation Force spotlighted LEAN Works, a new online resource to help employers determine how much obesity costs their business each year.

LEAN Works is a new web-based resource developed by the Centers for Disease Control & Prevention (CDC) full of completely free interactive tools and evidence-based resources to help any organization develop an effective worksite obesity prevention and control program.

The site features an obesity cost calculator to estimate how much obesity is costing your company and how much you could save by using different workplace interventions.

LEAN Works also includes example presentations to help pitch your wellness program within your organization, tools to help collect employees’ baseline health information, workplace health audits and employee interest surveys.

Visit the CDC’s LEAN Works! Leading Employees to Activity and Nutrition.

ICE announces audits, review Form I-9 best practices

Last week U.S. Immigration and Customs Enforcement (ICE) launched a bold audit initiative as a part of the agency’s stepped-up enforcement of employment and immigration laws. ICE issued Notices of Inspection to 652 businesses nationwide to alert employers that ICE will be inspecting their hiring records.

The Department of Homeland Security (DHS) requires employers to verify that all new employees are eligible to work in the U.S. using the employment eligibility verification form (Form I-9). Neglecting to fill out forms or filling out I-9 forms incorrectly can result in fines of up to $1,100 for every incorrect form.

Knowing how to fill out new-hire forms correctly and the rules on how long you must retain those documents will help protect your business in the event of an ICE audit.

Anyone in your organization involved in the hiring process should be trained on the correct way to complete I-9 forms and federal recordkeeping requirements. Training should cover Form I-9 best practices, including, but not limited to:

How to properly complete an I-9 form at the time you hire a new employee. Employees must present identity and work authorization documents within three days of the date of hire.

Expired documents as proof of identification or work eligibility are not acceptable. Review the list of documents that fall under List A of the List of Acceptable Documents.

The importance of keeping I-9 forms separate from employee personnel forms.

How using a binder system for storing I-9 forms, one for current employees and one for terminated employees, can help your business stay in compliance.

To periodically review current I-9 forms to identify employees who need to update their work eligibility status.

Businesses must retain I-9 forms for the duration of a worker’s employment, plus one year, or for a minimum of three years from the date of hire, whichever is longer.

Read more on how to handle I-9 forms and about the most recent changes to the I-9 Form.

ICE announces I-9 inspections at 652 businesses nationwide

U.S. Immigration and Customs Enforcement (ICE) launched an extensive audit initiative on July 1, 2009, by issuing Notices of Inspection (NOIs) to 652 businesses across the U.S., more notices than ICE issued in fiscal year 2008.

The ICE notices serve as an alert to businesses that the agency will be inspecting their hiring records to determine whether they are in compliance with employment eligibility verification laws and regulations.

This initiative shows ICE’s increased focus on holding employers directly accountable for their hiring practices and efforts to ensure they’re employing a legal workforce.

"ICE is committed to establishing a meaningful I-9 inspection program to promote compliance with the law. This nationwide effort is a first step in ICE's long-term strategy to address and deter illegal employment," said Department of Homeland Security Assistant Secretary for ICE John Morton.

In April 2009, the ICE announced that illegal immigration enforcement would be shifting away from undocumented workers and toward employer compliance in order to target the root cause of illegal immigration.

All new employees, including U.S. citizens, must verify their work eligibility with an I-9 form at the time of hire. Employers must retain the verification forms and re-verify existing employees’ work authorization documents that are nearing expiration.

The U.S. Citizenship and Immigration Services (USCIS) recently instructed employers to continue using the current Form I-9 (Rev. 02/02/09) until further notice.

Employers do not need to submit forms to the government for verification, but must hold on to the forms for three years after the employee’s date of hire or for one year after the date the employee leaves the company (whichever date is later).

Order the current version of the Form I-9, along with detailed tip sheets, to ensure your business stays in compliance with federal recordkeeping requirements. Employers can find more tools and information on I-9 recordkeeping practices and completion in the ComplyRight I-9 Bundle.

Limited healthy snack options test workers’ waistlines

Our days are busy, breaks are short and fitting a well-balanced meal in at work can be a tough job. For many of us, eating at work is typically done on the go and we’ve memorized our favorite vending machine combination that will curb our hunger or give us a quick, sugary boost.

Snacking at work is almost a fact of life. It’s going to happen, but unfortunately the most popular snacks at work tend to be unhealthy – full of sugar, fat, salt and oil.

Even for those watching their waistlines, unhealthy office snacks can derail even the strictest diet, according to a recent survey on workplace eating habits.

About two out of three employees find it challenging to eat healthy at work, reveals the Peapod Biz Bites Survey sponsored by Peapod Business Delivery. Only 7% of respondents claimed to eat healthier in the office than at home.

"One of the best ways to support healthy lifestyles in the workplace is also one of the easiest," said Cathy Leman, a Chicago-area registered dietitian and certified personal trainer. "When you control the environment that you spend eight-plus hours per day in, you automatically set yourself up for success. That means stocking the break room with healthy, accessible snack foods.” (Press release)

Almost half of employees (47%) surveyed cite having too many tempting unhealthy snack options at work as the top reason they’re not eating healthy at work. Less than one-third (28%) of employees said their workplaces offer enough healthy snack options to keep them satisfied.

What employees want most in the office – fresh produce. However, only 36% of companies provide fresh fruit and vegetables for their employees on a regular basis.

Top nutritionists at WebMD warn against “desktop dining” and unhealthy snacking habits because they hold potentially disastrous health effects. Nutritionists advise putting aside work if possible and take a few minutes to enjoy your food and choose healthy workplace snacks.

“Katherine Tallmadge, a registered dietitian and spokeswoman for the American Dietetic Association, tells her clients to snack up to three times a day but to limit calories to 100-200 calories for each snack.

"I like to recommend snacks that provide a little carbohydrate, protein, and a small amount of fat, if any," she says. (WebMD)

Tallmadge suggests creating a snacking strategy and to have a plan. Keep healthy snack foods at your desk for times when you need a nutritional boost, but may not have the time to eat a full meal.

Keep some of these healthy snack foods handy:

Trail mix and/or dried fruit and nuts
Instant oatmeal packets (low sugar)
Tuna salad kits
Higher-fiber, lower-fat crackers
Low-fat yogurt
Reduced-fat cheese

How do you ensure you’re snacking healthy at work? Does your office provide fresh produce or healthy vending machine snacks? Leave a comment and let us know how well you’re able to snack healthy in your workplace.

Sexual orientation, gender identity discrimination protections gaining legal ground

On Monday, President Obama recognized a 40-year milestone for the gay civil rights movement in the U.S. at a reception for LGBT Pride Month at the White House.

Obama has been criticized by the LGBT community because he has been slow to act on many of the promises he made during his campaign. However, he told the audience at the reception that his administration has taken steps to ensure equal rights for gay Americans and plans to do more.

From CBS News:

"We seek an America in which no one feels the pain of discrimination based on who you are or who you love," he said.

The president noted that he has signed a memorandum extending some federal benefits to LGBT families and is urging Congress to pass the Domestic Partners Benefits and Obligations Act, which would mean the extension of health care benefits.

He also said his administration is working to pass the Employment Non-Discrimination bill and a hate crimes bill named after Matthew Shepard.

"There are unjust laws to overturn and unfair practices to stop," the president said.

Just 10 days before the White House reception for LGBT Pride Month, Rep. Barney Frank re-introduced the Employment Non-Discrimination Act or “EDNA” (H.R. 2981). The bill makes it unlawful to discriminate on the basis of sexual orientation or gender identity.

EDNA would extend federal employment laws, which already protect individuals on the basis of race, religion, gender, national origin, age and disability, to also include sexual orientation and gender identity.

While lawmakers discuss the fate of the legislation, it may be a good time to take a look at your company’s employee handbook. Until now, most have not been written to include how to address harassment or discrimination based on an employee’s sexual identity or orientation.

Though many are late to get started, some of the biggest U.S. companies are ahead of the game. As of February 2009, 423 (85%) of the Fortune 500 companies had implemented non-discrimination policies that include sexual orientation, and more than one-third had policies that address gender identity.

Preventing sexual orientation discrimination in the workplace starts with understanding current laws, examining your policies and procedures, and training employees to abide by those policies. But that’s just the beginning.

For more information on creating gender orientation policies and procedures, read our new free whitepaper Creating a Gender Orientation Policy for Your Workplace (pdf).

Advice for HR in the new economy

How will you handle HR in the new economy? Outsourcing, secret identities, improved strategies, joining the circus?

Here's some advice from some of the most promising human resource professionals of the future:

Hiring, salary freezes to melt within the next year

A majority of U.S. employers plan to reverse some of the changes they’ve made to pay benefits and other HR programs, according to the latest survey results from Watson Wyatt.

The survey discovered that 62% of companies that made hiring freezes and 69% of companies that froze salaries plan to eliminate them within the next 12 months. Almost half (48%) of companies that reduced their employer 401(k)/403(b) matches also plan on reversing their decision within the next year.

Unfortunately, not all of the affected employer benefits will experience the same changes. One in five employers plan to keep salary reductions in place and 46% of employers do not plan on reversing the increases in the percentage that employees now pay for health care premiums.

"While more employers now feel the worst of the current downturn may be behind them, most are not expecting to go back to 'business as usual'," said Laura Sejen, global director of strategic rewards consulting at Watson Wyatt. "The challenge for companies will be to determine which cost-cutting changes can be reversed and which will become ingrained into the permanent business environment." (Yahoo! News)

In the next three to five years, companies expect staffing issues including difficulties in attracting and retaining skilled employees to extend long-term. They also expect staff sizes to be significantly smaller than pre-economic levels.

Compared with pre-economic crisis levels, the companies surveyed expect the following changes within the next three to five years:

45% foresee difficulty retaining critical-skill employees
41% expect increased difficulty attracting critical-skill employees
50% expect no increase to current salary levels
52% expect to see a decrease in staff sixes
76% expect no change in employer contributions to defined contribution plans (e.g., 401(k))

The survey also found that nearly one quarter (24%) of the companies surveyed believed their results have “bottomed out,” double the number of survey participants that said the same in April.

"Laying off workers and cutting back on pay and benefits are never easy decisions to make. Now, companies are now looking to the new economic landscape that lies ahead," said Laurie Bienstock, U.S. strategic rewards leader at Watson Wyatt. "The challenge for employers is to reassess short-term cost cuts and ensure they have the right workforce and resources in place to meet the organization's long-term financial goals." (Yahoo! News)

Form I-9 expiration date extended past 6/30/09

The U.S. Citizenship and Immigration Services (USCIS) recently announced that the current Form I-9 will continue to be valid for use beyond June 30, 2009.

USCIS has requested that the Office of Management and Budget (OMB) approve the continued use of the current version of the Employment Eligibility Verification Form I-9. While the request is pending, the existing I-9 form will not expire.

The extension will allow employers to use either the Form I-9 with the updated revision date or the Form I-9 with the 02/02/09 revision date at the bottom of the form.

USCIS expects to approve a new version of the Form I-9 before the June 30, 2009, expiration date. Read the full USCIS article here.

It is mandatory for all U.S. employers to verify the employment eligibility of new and existing employees by completing a Form I-9 for each individual.

The G.Neil legal team will continue to watch for news from the USCIS once the extension is approved. Check back here for the most current information available.

Seen the HR Bobbleheads yet?

What would your company look like if it were staffed entirely of bobbleheads? One small tech company in suburban Pennsylvania decided to try it out and put the whole thing on video.

The latest HR Bobbleheads episode examines the differences between the interviewing norms 50 years ago and interviews today. Take a break for a few minutes today and check out some of the previous episodes. They’re funny enough that even the evilest of HR ladies will be cracking a smile.

HR Bobbleheads - Episode 5: Interviews Then & Now from HR Bobbleheads on Vimeo.

Employees putting your data security at risk?

Odds are good that they are, according to the latest research.

More employees are ignoring data security policies and engaging in online activities that could put their employer at risk, according to a survey released by Ponemon Institute. Even more worrisome is knowing that they’re doing it even if they understand it’s wrong.

The top data security offenses include copying secure data to USB drives or disabling security settings on mobile devices like laptops. Some employees admit to losing USB sticks that stored confidential corporate data, but failed to report it to the company immediately, the report said.

Almost 31% of employees surveyed said they also engaged in social-networking activities from work computers. More than half (53%) said they downloaded personal software on company computers, heightening the risk of infecting the corporate network with malicious software.

Mobile technologies that let employees do more while on the road are contributing to the issue, said Larry Ponemon, chairman and founder of Ponemon Institute, in a blog entry. As the use of mobile devices grows, the inability to enforce data security policies could increase the possibility of data breaches. "I'm seeing a confluence of conditions that appear to be contributing to this challenge to data integrity," he said. (PC World)

Negligent online activity puts not only data security at risk, but could also be putting the company’s reputation in a vulnerable position. Remember the Domino’s incident?

About 60% of corporate executives feel they have the right to know how employees portray themselves and their organizations in online social networks, according to the Deloitte LLP Ethics & Workplace survey. However, most employees (53%) say their activity on social networks should be none of their employers’ business.

Whether it’s your data security or corporate reputation you’re looking to protect, having a sound social media policy is your first line of defense. We’re all adults here, but once in a while we all need a friendly reminder of what it means to be responsible online.

Social media policies will differ from company to company, but they all share a few key points: understanding what unacceptable online behavior is, being mindful of the business’ image, using good judgement and knowing that employees represent of the company.

For more help on developing a social media policy, read these past posts:

Bosses concerned over employees’ online behavior, employees say “butt out”

Domino’s employees fired, charged after “gross” video goes viral

The impact of social media on corporate culture

Dangers of using social networking sites to screen applicants

Supreme Court limits worker age-bias suits

The Supreme Court handed down a verdict late last week that would give businesses more strength in employee lawsuits alleging age discrimination.

Employees now bear the burden of proving that age was a dominant factor in his or her firing or demotion in order to win a case. Under the Age Discrimination in Employment Act (ADEA), employees have the burden of proving that age was the “but-for” cause of an employer’s adverse decision.

With age-discrimination lawsuits growing at an alarming rate, the 5-4 ruling (Gross v. FBL Financial Services, Inc.) is considered a win for businesses that face age-bias lawsuits. Before last week, workers had to show only that age was a factor in the decision.

"The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age," Justice Clarence Thomas wrote for the majority. He added this legal rule applies "even when a plaintiff has produced some evidence that age was one motivating factor."

Karen Harned, executive director of the National Federation of Independent Business, said the opinion would help companies defend against age-bias claims. "Requiring claimants to show direct evidence that age played a substantial role in the challenged employment decision is the appropriate and fair standard," Ms. Harned said. (Wall Street Journal)

Since the U.S. economy began to slide downward, age discrimination claims filed with the Equal Employment Opportunity Commission (EEOC) have increased by 29%, a jump from 19,100 in 2007 to more than 24,500 in 2008. (Washington Times)

This case involved a lawsuit brought against FBL Financial Group by Jack Gross, under the ADEA. Gross claimed that FBL violated the ADEA when he was demoted and some of his prior responsibilities were given to a younger worker.

Employers brace for 2010 healthcare cost hike

It’s estimated that U.S. employers will see a 9 percent jump in healthcare costs in 2010 and workers will be footing more of the bill, according to an annual trend report by PricewaterhouseCoopers (PwC).

The annual medical costs trends report also revealed that workers are more likely to utilize their health insurance coverage out of fear that they will loose their jobs. More uninsured and underinsured people are expected to turn to Medicaid for health coverage.

The rise in healthcare costs may be offset partially by cost declines associated with U.S. health care reforms and the potential for high deductible health plans and wellness programs, according to PwC.

Of the 500 employers surveyed by PwC:   

42% plan to increase their workers’ share of healthcare costs in 2010, and
41% said they would change the design of health care plans to increase medical cost sharing.

The study comes at a time when new health-reform legislation is heating up congressional hearings. President Obama has pledged to push his plans to revamp health-care regulation through Congress and Senate hearings this summer. Before anything is approved, it will be up to employers to manage rising costs.

"Employers are squeezing dollars out of their programs to save money," Mike Thompson, principal at PricewaterhouseCoopers global human resource solutions group, said in a statement.

"As the economy recovers, employers will refocus on more sustainable longer term approaches to medical cost containment based on an increasingly shared interest between employers and their workers." (Reuters)

What is your company doing to offset the rise in healthcare costs? Please leave a comment and let us know.

Same-sex harassment complaints growing

Dillard’s, Inc. will pay $110,000 and provide significant remedial relief for a same-sex harassment suit in Florida, according to an announcement from the Equal Employment Opportunity Commission (EEOC) last week.

The EEOC claimed that Dillard’s violated Title VII of the Civil Rights Act by permitting a sexually hostile work environment for men at its Fashion Square Mall store in Orlando, Fla. The EEOC charged that a male sales associate and a young dockworker were verbally and sexually harassed by a male supervisor.

The workers accused their supervisor of exposing himself in front of them, making sexual propositions, and making sexually explicit and derogatory comments. According to the EEOC, Dillard’s store managers ignored complaints made by the workers about the harasser.

Dillard’s argued that the store wasn’t liable because the supervisor had been fired and had an anti-harassment policy in place. The court rejected that argument and “found that Dillard's anti-harassment policy could not absolve it of liability if the policy hadn’t been effectively implemented.” (Business Management Daily)

“The EEOC will hold corporate America accountable for failing to prevent and correct employment discrimination,” said Commission Acting Chairman Stuart J. Ishimaru. “Sexual harassment charge filings by men have trended upward over the past decade. Employers must be more vigilant in ensuring that men are not subjected to sexually hostile workplaces.”

In addition to paying $110,000 to the two male victims, the Dillard’s Fashion Square Mall store must:

distribute policies to the workforce on preventing sexual harassment and retaliation;
conduct sexual harassment and anti-discrimination training for all employees;
train employees who are responsible for investigating sexual harassment complaints;
submit to monitoring throughout the decree’s three-year duration;
and post a notice about the resolution of the case.

“Employers must diligently enforce policies to prevent sexual harassment and ensure that managers take same-sex harassment complaints seriously. It is vital to protect both men and women from workplace harassment,” said EEOC Miami Regional Attorney Nora Curtin.

The number of sexual harassment charges filed with the EEOC are up 11% from last year and at the highest rate since 2002. Sexual harassment charges filed by men make up 16% of total charges, a figure that once stood at 12% in the late 1990s.

Sexual harassment is sexual harassment no matter if it’s male-on-female, male-on-male or female-on-female. Even if the harassment doesn’t look exactly like what was taught in the training video, it should still be handled with the same sensitivity and diligence that would be given in any “normal” situation.

According to Mindy Chapman, Esq., of Mindy Chapman & Associates, in a recent Business Management Daily article, companies can learn three major lessons from this case:

Train “it.” Anyone designated in your anti-harassment policy’s reporting procedures needs to know they could be tagged “it” with a complaint. Train them so they know “it.”

Script “it.” The store manager should have responded by saying, “Thank you for letting me know. You are important to us at Dillard’s. I will help you immediately.” Then he should have, in the next breath, contacted the district manager.

Stop “it.” The manager had an obligation that if he saw “it,” heard “it,” or heard about “it,” he should have stopped “it,” but never ignored “it."

Would you work for free to keep your job?

While getting ready for work this morning this story on Good Morning America caught my attention:

About 40,000 people work for British Airways, which means they show up, do their jobs and get paid. But now, the airline is asking workers to do their jobs for up to a month without the "getting paid" part.

British Airways asks its employees to work without pay for up to one month.

In a letter to employees this week, British Airways said, "The airline fights for survival ... people will be able to opt for one-week blocks of unpaid leave or unpaid work."

It's a twist on sacrifices being made by employees around the world. In Connecticut, for instance, Courtney Bosch was given a one-week furlough from Kodak.

"In these times, I was comfortable with it, you know I can honestly say I was happy to still be employed," Bosch said.”

Watch the story here.

Furloughs are one thing, but asking employees to work for free for up to one month is quite another.

With nearly one in 10 U.S. workers without a job, some people are so afraid of joining the ranks of the unemployed that working for free sounds like the only choice they have.

Employers should still use caution when considering such a plan. ABC News workplace commentator Tory Johnson went on to say that expecting people to work for free is “absolutely a slippery slope” for employers.

More than a thousand employees have signed up for British Airway’s “no-pay plan.” The airlines also said there is no sense of intimidation or peer pressure among employees regarding the plan.

Is asking workers to go without pay simply a sign of the times or is there a better way for companies to save money? Would you work for free to keep your job?

Are you prepared to handle flu-related HR issues?

As the World Health Organization (WHO) raises the alert level of the H1N1 flu virus (aka. swine flu), employers’ concern over how an outbreak could affect their businesses has seemingly tapered off.

The WHO officially declared the H1N1 flu virus a pandemic on Thursday by raising the threat level of the virus to Phase 6. The pandemic status of the virus doesn’t mean that it is more dangerous, but that it has infected people in more countries. The Phase 6 threat level means community-level outbreaks have hit more than one continent.

News coverage surrounding swine flu has calmed down and so seems employers’ concern regarding any danger the illness may pose to their organizations. Approximately two in five employers (41%) do not have a human resources policy in place for health-related emergencies, although they have employees working in areas with confirmed swine flu (or Influenza A) cases, according to a survey by Mercer.

“With the continued increase of reported cases of Influenza A [swine flu], it is important for employers to develop a plan for dealing with the myriad HR issues that can arise in the event of a pandemic or other health care emergency,” said Danielle Dorling, a consultant in Mercer’s HR effectiveness consulting business. “In particular, organizations with a global workforce and decentralized HR units need to have a coherent procedure in place for employee care in the event of a health emergency.” (Mercer press release)

Among the key survey findings:

53% of the employers surveyed were considering whether to create back-up and contingency plans in response to the outbreak
43% said they planned to restrict or cancel business travel
41% said they planned to allow employees to work at home
27% opted for voluntary quarantine for employees exposed to risk
24% enforced quarantine on employees judged at risk
24% indicated they were taking no special actions.

Employers also said they would cancel meetings, screen staff members returning from travel, require medical check-ups and review health or insurance plans as a result of the recent swine flu outbreak.

“Business continuity plans should be standardized and employers must be able to communicate in a streamlined, swift and decisive fashion,” Dorling said. “Ad-hoc reaction can lead to confusion, unnecessary panic and expensive global inconsistencies that can expose the organization to significant financial risk.”

In April, Secretary of Homeland Security Janet Napolitano asked private employers to do their part in helping the federal government protect workers from the illness, saying that employers should be thinking ahead about what they would do if affected by swine flu or other contagious diseases.

Before you create policies and procedures regarding the spread of viral infections in your workplace, there are a few legal and ethical issues to consider. Employers should know the rights of exposed employees, if they can order employees to go home and how the Americans with Disabilities Act could come into play, among a list of other important questions.

G.Neil’s free “Flu in the Workplace” white paper explains the answers to those questions along with information on how to protect your employees and business from serious contagious diseases.

Pages

More Resources

G Neil

The Blog Team

Archive

Search

Label Cloud

Subscribe To Our...

Labels :