HR Forum

"Keep your hands off my egg salad sandwich!"

It never fails. Every six months or so, HR is forced to send an e-mail that reads something like this:

"It has been brought to our attention that food is missing from the refrigerators in the Lunch Rooms. It is our hope that this is an isolated situation and will cease from occurring. Please be sure the food you take from the refrigerator is yours, and if it does not belong to you, that you not take it."

Every time I receive this e-mail, I am appalled that 1) coworkers would swipe each other's food and 2) HR has to remind a group of adults not to swipe each other's food.

What possesses someone to sneak into a lunch room, rummage through the refrigerator (looking over his or her shoulder the entire time) and then snatch another person's lunch? "Hmmmm, what am I craving today? Let's see ... an apple, a PB&J sandwich, a bag of corn chips ... ooooh, what's this, leftover lasagna? Yummy!"

I know times are tough and we're watching every penny, but c’mon. I would think most of us holding down full-time jobs can afford to pack lunches or go out for a midday meal. And if it's a case of the munchies, surely you have a few quarters laying around for a sweet or salty snack from the vending machines (which are located right next to the refrigerators reserved for food that's already spoken for!).

And while I've never been the victim of a ham-sandwich heist, I know how upset I'd be to find my lunch missing. Not only would I be irritated because I'm starving, my blood sugar is plummeting and my lunch is nowhere to be found, but I'd also seriously question the judgment of my coworkers. If someone is capable of lifting a lunch, what else is considered "fair game"? Do I have to worry about Bill or Sandra visiting my office and "borrowing" a pen, a few paper clips or the frames around my family photos? Shouldn't we be able to assume "what's mine is mine" and that someone's workspace is not an office supply closet - and a communal refrigerator is not an open buffet?

Again, I don't know what's worse: someone pilfering another’s chicken panini - or HR reminding employees to keep their hands off my brown bag!

Texas oil refinery receives record-breaking OSHA fine

A mind-boggling $87,430,000. That's the amount the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) is proposing in penalties to BP Products North America, Inc. The reason? Failure to correct potential hazards to its employees.

BP's Texas City, Texas, refinery experienced a massive, fatal explosion in March 2005 that killed 15 workers and injured 170. In September of that year, BP entered into a
settlement agreement, committing to corrective actions that would eliminate the types of hazards responsible for the 2005 incident. Yet, after a recent six-month inspection,
OSHA is not satisfied with BP's efforts and has now issued this record-breaking $87 million fine.

"When BP signed the OSHA settlement from the March 2005 explosion, it agreed to
take comprehensive action to protect employees. Instead of living up to that
commitment, BP has allowed hundreds of potential hazards to continue
unabated," said Secretary of Labor Hilda L. Solis.

Solis also shared this stern message regarding BP's safety oversights:

"Fifteen people lost their lives as a result of the 2005 tragedy, and 170 others
were injured. An $87 million fine won't restore those lives, but we can't let
this happen again. Workplace safety is more than a slogan. It's the law. The
U.S. Department of Labor will not tolerate the preventable exposure of workers
to hazardous conditions."

Watch out for witches at work today ... and every day

In fun-loving, Halloween-celebrating workplaces across the country, employees showed up today dressed as blood-sucking vampires, lumbering zombies, mischievous clowns and full-grown babies. Donning elaborate makeup, masks, outfits and accessories, many of us get a kick out of this once-a-year opportunity to shed our normal persona and “try on” an alter ego.

But this got me thinking. How different, really, are some of the characters we're seeing today from what we see daily at work? I don’t know about you, but I’ve encountered vampires, zombies, clowns and babies in the workplace on many occasions. They're just cleverly disguised in office attire and regular routines. On good days, these creatures can create an interesting, challenging work environment; on bad days, they can be downright frustrating and confusing. But people are people, so we all have to learn to get along no matter how ghoulish the circumstances. In smart, well-functioning workplaces, it definitely pays to play off each others' strengths (while understanding weaknesses) to keep peace and productivity humming along.

According to author Francie Dalton, founder and president of Dalton Alliances, Inc., a Maryland-based business consulting firm specializing in communication, management and behavioral sciences, most coworkers fall under these general personality types:

Commanders
Curt and controlling, commanders don't waste time on niceties. While they don't mean to offend, they often forsake tact to get their point across. As bosses, commanders often fail to delegate important assignments and as subordinates, they can seem overly aggressive. “Value and validate commanders for their ability to overcome obstacles, to implement, and to achieve results,” says Dalton.

Drifters
Averse to structure, drifters often have trouble with rules, work hours and deadlines. They lose track of details and can neglect to see a project through to completion. While they're warm and affable, their disorganization can be off-putting. “Value and validate drifters for their innovation and creativity, their ability to improvise on a moment's notice, and their out-of-the-box thinking,” says Dalton.

Attackers
Ill-tempered and contemptuous, attackers can have a dampening effect on workplace morale. They tend to criticize others in public, believing themselves to be superior. “Value and validate attackers for their ability to take on the ugly, unpopular assignments no one else has the mettle to do, and for their ability to make unemotional decisions,” says Dalton.

Pleasers
Considerate, sociable and friendly, pleasers rarely deny the requests of others and think of colleagues as extended family members. They have trouble coping with conflict, avoiding it as much as they can. “Value and validate pleasers for the way they humanize the workplace, and for their helpful, collaborative work style,” says Dalton.

Performers
Witty, charismatic and outspoken, performers engage and entertain others in the workplace. They are skillful at promoting themselves, taking credit - even when it's not due - for successful projects and appearing to be in a rush to get important things done. “Value and validate performers for their ability to establish new relationships, and for their persuasive and public speaking skills,” says Dalton.

Avoiders
Clinging to the status quo, avoiders shy away from increased responsibility because they fear it will make them more visible and accountable. Reticent and reserved, they thrive when working alone and establishing safe, closed-off environments. They do as they're told and do not take initiative. “Value and validate avoiders for their reliability, for their meticulous attention to your instructions, and for getting the job done right the first time, every time,” says Dalton.

Analyticals
Meticulous, thorough and cautious, analyticals can get mired in details. When presented with a new idea, they tend to focus on the reasons why it will fail and should not be pursued. They feel compelled to check, doublecheck and triplecheck their work for any inaccuracies. “Value and validate analyticals for their commitment to accuracy, and for their ability to anticipate and evaluate risk far enough in advance to allow risks to be reduced,” says Dalton.

So here’s wishing you all a Happy Halloween – and a workplace where attackers and analyticals, witches and werewolves, can put aside their differences and get along! Wouldn’t that be a treat?

Home Depot employee fired over "politically driven" pin that violated dress-code policy

In yet another real-life reminder of why it’s so important to maintain an employee handbook with crystal-clear workplace policies, a Home Depot employee claims he was fired for expressing his personal beliefs though an American flag button he wore on his apron. The former cashier of the Okeechobee, FL, store says he had the right to wear the “One nation under God, indivisible” button, while his employer argues that he DID NOT – and the reason being the company’s written dress-code policy forbidding it.

Whether you feel the pin and its message was religious, political or just patriotic (and as such, acceptable in the workplace) is a matter of interpretation. And it’s because of this sort of interpretation that employee policies exist.

“The issue is not whether or not we agree with the message on the button," says
Craig Fishel, a Home Depot spokesperson. "That's not our place to say, which is
exactly why we have a blanket policy, which is long-standing and
well-communicated to our associates, that only company-provided pins and badges
can be worn on our aprons."

While the employee’s lawyer is suing Home Depot for religious discrimination, the case probably won’t go very far. As Michael Masinter, a civil rights and employment law professor at NOVA Southeastern University in Fort Lauderdale, explains:

"Because it's a private business, not one that's owned and operated by the
government, it doesn't have to operate under the free speech provisions of the
First Amendment."

He clarifies the matter of religious displays and expression, too, for those who feel Home Depot’s pin-banning action was a form of religious discrimination:

“But we're not talking about religious displays here," he said. "This sounds
more like a political message ... Wearing a button of that sort would not easily
be described as a traditional form of religious expression like wearing a cross
or wearing a yarmulke."

As a private business, Home Depot has a right to protect its image by not promoting different employee opinions via pins and badges - opinions that might offend customers who are as diverse as the employees serving them.

Some important details in this case: The employee was first asked to remove the pin. He refused. He was also offered a company-approved pin that said, “United We Stand,” but he declined.

It would appear that Home Depot did everything right, from an HR standpoint, in this situation. They based their actions on company policy, they confronted the employee first (and hopefully documented the exchange) and when all was said and done, the employee refused to cooperate with policy. Thus, the employee was fired.

What do you think? Do you agree with Home Depot’s actions? Please leave a comment - I’d love to hear your thoughts on the matter!

New Federal EEOC poster released - All covered employers must post to comply!

On October 23, 2009, the Equal Employment Opportunity Commission (EEOC) released the revised “Equal Employment Opportunity is the Law” poster, which includes the new Genetic Information Nondiscrimination Act (GINA) and ADA Amendments Act regulations. The EEOC posting change is mandatory for all covered employers.

Effective November 21, 2009, GINA prohibits employers with 15 or more employees from:

• Using genetic information to discriminate against an individual through hiring, firing, compensation, promotions and other employment decisions

• The collection and disclosure of genetic information

• Retaliation against individuals who exercise their rights under GINA

Now is the time to get into compliance with this mandatory posting update, as well as learn more about GINA and its impact on your business.

When you enroll in Poster Guard® Compliance Protection, you’ll enjoy the promise of complete, worry-free posting compliance – immediately, with the revised EEOC poster and in the future, with automatic posting replacements anytime mandatory changes affect your federal or state postings.

For an overview of GINA and clear explanations of how it affects you as an employer, download the ComplyRight™ Now E-Guide: New Genetic Discrimination Law: What It Means for Employers.

Tricked-out job titles: Creative morale booster or unprofessional fluff?

What if we gave all those stuffy, vague job titles the boot and let people craft new titles that capture what they’re really about?

That’s what many businesses are doing these days – and their employees couldn’t be happier about it. In his blog post, More death to job titles, Alexander Kjerulf (Chief Happiness Officer, incidentally), argues that job titles are “a waste of time and contribute nothing to our productivity, creativity or happiness at work. In fact, job titles can be the source of a lot of disputes and bickering in the workplace.”

Alexander’s post inspired the Web Marketing Director at Quicken Loans so much that he challenged his Web Marketing Team to come up with new job titles that express who they are and their impact on the business and their teammates. The results? Whimsical titles like:

• Royal Storyteller & Propaganda Minister
• Supreme Challenger of the Status Quo & Wicked Web Site Innovator
• Innovation Maven and Revenue Raiser
• Mastermind of Possibilities, Visual Linguist, and Czar of the High Fiber Revolution
• Art Juggler
• Flasher
• Idea Launcher
• Conceptologist
• Head Brother In Charge of Chat
• Reality Check Provider

What do you think? Is this something that can work in the right environment, allowing for greater self-expression in the workplace? Or could titles like these backfire, leading to more confusion than clarity? According to one person’s comments to Alexander’s blog post, “Job titles are important in my opinion. They should be concise, professional and define what the person does. If I got an email from someone and in the signature it said they were a Conceptologist or a Wicked Website Innovator, I would not take them or their company seriously …”

Perhaps a compromise is in order. In What’s In A Job Title? More Than You’d Think!, a recent survey by Pearl Meyer & Partners is cited, where 95% of respondents said that job titles were important, whether for conveying corporate hierarchy or for recognizing valued employees when funds are limited.

But there’s a twist. According to the survey, many companies assign formal, “official” job titles, while also allowing the use of alternative, “working” titles. Managers and their employees can customize these less-traditional job titles to reflect an individual’s responsibilities, preferences and just as important, personality. Many employees will then take it upon themselves to create business cards with these alternative job titles or use the tweaked job titles on social networking pages such as LinkedIn.

So maybe your company isn’t quite ready for titles like “Propaganda Minister” or “Innovative Maven”, but how about something a little more descriptive than “Creative Director” or “Communications Coordinator”? Your employees are unique and multi-dimensional - why shouldn’t their job titles be, too?

Flex time: How far are you willing to bend?

The traditional, 9-to-5 workplace model is going the way of the typewriter, shoulder pads and pocket calculators. Flexible workplace scheduling - whether letting employees telecommute, work part time or leave early one day a week - is becoming more commonplace.

In fact, nearly all of the 1,100 companies polled by the nonprofit Families and Work Institute in a 2008 report provide at least one type of flexible work option. The Families and Work Institute considers flexibility “a way to define how and when work gets done and how careers are organized”. For employees, this may include:

• having traditional flex time (setting daily hours within a range periodically)
• having daily flex time
• being allowed to take time off during the work day to address family matters
• being able to take a few days off to care for a sick child without losing pay, having to use vacation days or make up an excuse for the absence
• being able to work some regular hours at home
• being able to take breaks when one wants to
• having a work shift that is desirable
• having complete or a lot of control over the work schedule
• being able to work part-time (if currently full-time) or full-time (if currently part-time) in one’s current position
• being able to work a compressed work week
• being able to work part-year in one’s current position

It’s no surprise that employees support flexible scheduling, where the payoffs include higher job satisfaction and commitment to their work, coupled with lower stress and job burnout.

"We know from the research that if you have choice or autonomy and you have the
support to make those choices and you're held accountable, those are the
things that most affect how you feel about your employer, as well as your
health and well-being," says Ellen Galinsky, President of the Families and
Work Institute.

To promote flex time in your workplace, Ilyse Shapiro, founder of the job search website MyPartTimePRO.com, recommends:

1. Make sure your organization’s culture supports work/life initiatives. “Flexibility” shouldn’t be just a catchphrase but a concept embraced throughout the organization.

2. Effective work/life balance programs should be nondiscriminatory, available to all employees, male or female, with or without children, regardless of income level, job title, exempt/nonexempt status or marital status.

3. Career advancement and training opportunities should be offered to those with flexible schedules as well as to those with traditional schedules.

What type of flexible work options do you extend to your employees? What are the challenges, if any, you’re facing? Post a comment and tell us more.

Happy Boss's Day! - 7 attributes management and employees love about leaders

Long gone are the days when dictatorial management delivers top-notch results. Sure, CEOs want leaders who boost the bottom line, but they also want mentors who develop the next generation of leaders by showing employees how it's done. Employees, on the other hand, want a player's coach, someone who understands them as a person and creates an environment in which to thrive. Is a combo of the two possible? You betcha!

According to Jim Collins in his best-selling book, Good to Great, the most effective bosses fall into the category of "Level Five Leaders". These managers recognize their personal strengths and weaknesses, hire/place employees in roles where they shine, and set really high (and achievable) long-term goals that employees believe in. The key to success for these leaders? They inspire employees to willingly and passionately do more with less, which makes CFOs downright giddy. Here are seven characteristics that make bosses great to both management and employees:

1. Great bosses understand corporate goals and skillfully explain them to their teams – “this is why we're here, this is what we need to do and this is how we're going to do it.” Setting a clear vision and informing employees that they will be held accountable for the task at hand sets expectations everyone can rally around. It also helps employees keep each other accountable.

2. Great bosses listen more than they talk. Leaders who employ Stephen Covey's mantra "seek first to understand before being understood," will always serve their employer and employees better than know-it-alls. The best ideas to improve efficiency or enhance products often come from line employees. Bosses who listen, listen, listen are the ones who can move great ideas through the pipeline quickly.

3. Great bosses take an interest in each employee as an individual. They get to know the person and his or her personal life. They spend time understanding employee career goals and guide them on a path to get there. They remember birthdays and anniversaries and they ask, "How'd your son do in his Little League game last night?"

4. Great bosses hold employees accountable. When goals aren't met or deadlines are missed, the issues are addressed immediately to find out the whys. Inspired bosses always look for ways to improve and move forward, rather than punishing in the moment. They also move quickly to dismiss under-performing employees, which always makes management happy. Staff members are thrilled, too, with quick assessment and action, because they usually recognize poor performance before managers do.

5. Great bosses don't seek personal accolades. They never take credit for the work of the team and are always looking for ways to recognize and reward their staffs. They write hand-written thank you notes and recognize superior efforts with tickets to the ball game or an afternoon off.

6. Great bosses manage individuals based on strengths rather than weaknesses. Collins calls this "putting the right people in the right seats on the bus." Having people do what they do best always enhances productivity and efficiency. Too many managers spend months trying to shoehorn people into roles they're not prepared for or skilled in, rather than finding someone with the right skill set for the task. Managing to strength is a win-win for the company, the boss and the employee.

7. Great bosses hire people who are better than them in the areas where they don't perform well. Bosses who are good with strategy and not execution are always better served in surrounding themselves with doers, and vice versa. They also go out of their way to acknowledge their deficiencies rather than cover them up: "I wouldn't be successful without your contributions."

If you have leaders in your company who exhibit these traits, consider yourself extremely lucky! And go out of your way today, National Boss’s Day, to let them know how much you appreciate them.

Recession is lifting - competition for jobs isn't

While most economists believe the recession is over and recovery has begun, unemployment rates remain alarmingly high. As a result, the number of U.S. job seekers competing for a single opening has reached the highest point since the recession began.

“There are about 6.3 unemployed workers competing, on average, for each job
opening, a Labor Department report shows. That's the most since the department
began tracking job openings nine years ago, and up from only 1.7 workers when
the recession began in December 2007.” (msnbc.mns.com)

The msnbc article states that the employment crisis will most likely get worse as companies remain sluggish to hire. In fact, many economists expect a “jobless recovery,” which will lead to added pressure on President Barack Obama and congressional Democrats to stimulate job creation.

"Fewer people are facing job loss," said Heidi Shierholz, an economist at Economic Policy Institute in Washington, "but once you have lost your job, you are in serious trouble.”

Shierholz says the economy faces a "jobs gap" of almost 10 million — the 7.2 million jobs lost plus the roughly 125,000 per month that would have been needed since the recession began just to keep up with population growth.

To close that gap and get back to pre-recession levels in two years would require more than 500,000 new jobs per month, a pace of job creation that hasn't been seen since 1950-51, Shierholz adds.

What about your business? How much of your workforce did you have to cut during the recessionary downturn? And are you feeling enough of an economic boost to start replenishing those positions – or even adding new positions? Or are you sitting tight and not hiring until the recovery is more robust?

Substance abuse in the workplace, Part 2: Honoring Drug-Free Work Week

In our last post, we looked at the destructive effects of substance abuse in the workplace. That was the bad news. But today, we’ll focus on the good news: What you can do to protect your company from the dangers of substance abuse – and in turn, help preserve employee productivity, morale and safety.

Drug-Free Work Week is October 19-25, which means now is the perfect opportunity to launch a successful drug-free workplace program. Here are some ways you can make the most of it:

Implement a drug-free workplace policy – A workplace policy is the foundation of any drug-free workplace program. If you don’t already have one, you should create a policy that addresses how your organization defines substance abuse, what behavior is expected of employees, who is covered by the policy, when the policy applies (work hours only or at after-hours events, too?), who is responsible for enforcing the policy, and whether the policy includes any form of testing for alcohol or other drugs.

Promote your drug-free workplace program - Once you have a program, you’ve got to get the word out and get employees involved. Hand out Substance Abuse Fact Sheets to remind employees about the effects substance abuse can have on the workplace.

Train supervisors and educate workers - Be certain supervisors understand your policies (as outlined in a supervisor-specific handbook) for addressing substance abuse. In addition, provide guidelines and support materials that help supervisors deal with substance abuse legally and effectively.

Remind employees about the availability of employee-assistance services - These free, confidential services can help employees overcome substance abuse problems.

Offer health screenings - Let employees know about the resources available to them
to evaluate whether they have a substance abuse problem. Consider giving employees breathalizer alcohol detectors during holiday breaks when alcohol consumption is more likely and encourage them to test alcohol levels before driving.

Review your health insurance policy - Employees are more likely to seek help if your policy includes coverage for substance abuse treatment. Consider the cost benefit of adding such coverage over the cost of an accident and lost productivity.

Allow employees time to volunteer in community drug-prevention efforts - Organize a team of volunteers to help support local drug-prevention programs, or grant time off for employees who are involved in other drug-awareness and prevention efforts.

Create a drug-free workplace display - Dedicate an area of your workplace, such as a breakroom bulletin board, for raising awareness of your drug-free workplace policy through informative posters.

Feature Drug-Free Work Week in the employee newsletter or intranet - This feature can contain helpful information about the impact of drugs on the workplace, sources of help, and things workers can do if they think a colleague may have a substance abuse problem.

Distribute a payroll message listing helplines or a reminder about Drug-Free Work Week for employees - Include a message reminding employees about Drug-Free Work Week that contains a listing of resources available for them to learn more about substance abuse in the workplace.

Hold a social event celebrating safety and health - Put together a pizza lunch or other worktime activity to help reinforce the message that drugs and alcohol aren’t necessary to relax.

Substance abuse in the workplace, Part 1: How big a problem is it?

While certainly not pleasant to think about, the reality is that at this very moment, some of your employees may be high, drunk or hung over. And because of it, their work performance is suffering - as is your business.

According to the Department of Labor, 73 percent of all current drug users aged 18 and older are employed, which includes 6.7 million full-time workers and 1.6 million part-time workers. Construction workers (15.6%), sales personnel (11.4%), food preparation, wait staff and bartenders (11.2%), handlers, helpers and laborers (10.6%,) and machine operators and inspectors (10.5%) reported the highest rates of current illicit drug use.

The destructive, far-reaching effects of substance abuse in the workplace are well-documented. Substance abuse:

Lowers productivity –
Problems related to substance abuse cost businesses around $81 billion in lost productivity in one year.

Employees who abuse substances function at about 67% of their full potential.

Causes accidents and injuries -
Nearly 40 percent of industrial fatalities and 47 percent of injuries are associated with substance abuse.

Employees who use drugs are 3.6 times more likely to get in a workplace accident and 5 times more likely to file a workers’ compensation claim.

Increases absenteeism and turnover –
Approximately 500 million workdays are lost annually due to alcoholism.

Employees who use drugs are 2.2 times more likely to ask for time off or to leave early, 2.5 times more likely to report absences of eight days or more and 3 times more likely to be late to work.

Raises an employer’s medical costs -
Employees who use drugs cost their employers about twice as much in medical claims as non-drug-using employees.

In less than two weeks, October 19-25, employers across the country will be honoring Drug-Free Work Week. If you haven’t already, now is the time to implement a drug-free workplace initiative that will have a positive effect on your company’s safety and productivity. Check out our next post to learn more about what you can do to keep your employees and your workplace “clean.”

The DOL encourages all employers to address workplace substance abuse because:

“Taking steps to raise awareness among employees about the impact of substance
use on workplace performance, and offering the appropriate resources and/or
assistance to employees in need, will not only improve worker safety and
health, but also increase workplace productivity and market competitiveness.”

Closer OSHA scrutiny requires more careful accident recordkeeping

Due to unusually low incidence rates in traditionally high-rate industries, the Occupational Safety & Health Administration (OSHA) will be cracking down on recordkeeping violations in the coming months. On October 1, OSHA announced a national emphasis program (NEP) on recordkeeping to assess the accuracy of injury and illness data recorded by employers.

The underreporting of workplace injuries and illnesses is a serious issue, one which OSHA hopes to change through this program.

“Accurate and honest recordkeeping is vitally important to workers’ health and
safety,” said acting Assistant Secretary of Labor for OSHA Jordan Barab. “This
information is not only used by OSHA to determine which workplaces to inspect,
but it is an important tool employers and workers can use to identify health and
safety problems in their workplaces.”

Inspections will include a review of records, employee interviews and a safety and health inspection of the workplace. While the focus under the NEP will be on high-rate industries that OSHA suspects is underreporting incidents, all organizations should be on alert regarding their accident recordkeeping practices.

Are you confident your injury and illness records are in full OSHA compliance? OSHA requires you to record incidents on these three forms:

300: Log of Work-Related Injuries and Illnesses. Log each recordable occupational injury or illness on this form within seven working days of learning about it.

301: Injury and Illness Incident Report. On this form, you describe each incident in greater detail. Fill it out within seven days of learning about an incident. An on-the-job injury or illness must be recorded if it results in any of the following: death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness. “Significant” injuries or illnesses, as diagnosed by a licensed health professional, also must be recorded, even if they don’t result in days away from work or any of the other conditions listed above.

300A: Summary of Work-Related Injuries and Illnesses. This form, which summarizes the number and nature of on-the-job injuries and illnesses for a calendar year, must be posted in a conspicuous place by February 1 of the following year and remain on view through April 30. Although the 300A may not need to be posted for a few months yet, filling it out won’t be easy unless you’ve been keeping up to date with the other forms.

Texting while driving a big no-no for federal employees - But how will it be enforced?

President Obama signed an executive order Wednesday night banning federal employees from texting while operating government vehicles or driving their own vehicles on government business. State and local governments are encouraged to pass similar laws against “distracted driving”.

We’ve all seen it. People pecking away on their cell phones while sitting at traffic lights or worse, while hurtling down the highway at full speed. And as long as they’re looking at their cell phones, they’re not watching the road.

A Los Angeles Times article shares a startling statistic: Distracted driving delays reaction time as much as a blood alcohol content of 0.08%, according to research by the University of Utah.

In addition, the National Highway Traffic Safety Administration reports that 15% of driver deaths in the U.S. last year were a result of distracted driving. While it’s uncertain how many of these incidents were related to texting while driving, many experts consider it a growing problem - including Transportation Secretary Ray LaHood.

"To put it plainly, distracted driving is a menace to society,” says LaHood.

Now the hard part. While most of would agree that distracted driving is bad and that any efforts to curb it are good, how will the new ban be enforced? Will federal employers develop an official HR policy on the ban and if so, how will they apply it consistently to all employees? And regarding enforcement, how will cops identify someone texting while driving (especially if the person holds the phone below the window line)? Should cops be allowed to peruse a person’s cell phone to see if it was being used at the time of a traffic violation or accident? And what sort of privacy issues could all this raise?

Even if the ban IS just semantics, perhaps it will act as a deterrent. And perhaps it will lead to more people sharing LaHood’s point of view:

"Driving while distracted should just feel wrong - just as driving without a seat belt, or driving while intoxicated, seems wrong to most Americans."

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!

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.

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