HR Forum

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.

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