HR Forum

That knock on your office door may be Homeland Security

In a move that disturbed many employers, but surprised few, Homeland Security has indicated that they are stepping up inspections and enforcement for I-9 Form violations.

You remember I-9 Forms, right? Those fun "prove to me you're allowed to work in the U.S. even though you were born in Queens, and have a Brooklyn accent and I've lived next door to your Aunt all my life" forms? The ones where employers get to look over bad driver's license picture and even worse Passport pictures and try and decipher crumpled birth certificates? Yeah, those forms.

Well, according to the people who create and enforce that kind of thing, those forms and the supporting documentation are no laughing matter, and they intend to prove it to you with a big boost in random door-knocking and file-reviewing.

So what is an employer to do? You could just hope that the only knocks on your door are from customers, Candygram delivery people and whoever it is who's giving out those oversized checks and balloons these days. Or you could:

1) Make sure the I-9 Forms you're using are the right ones. There have been several changes to the I-9 over the past few years, so check the version number and date on yours.

2) Review your I-9 files. Make sure you have completed I-9's on file for all current and past employees for the required record retention period. That includes temps, too.

3) Make sure you have not violated I-9 rules by copying documents, requiring too many types of documents, or accepting disallowed types of documents as verification for work-eligibility.

4) Keep all of your I-9 forms in a separate file or binder to allow for quick and easy inspection should your business come under the auditor's review.

5) Get a good guide to the I-9 Form and the I-9 audit process. This could be a trustworthy and up-to-date employment law book or the advice of your employment law attorney.

6) Designate one person in your business to keep track of I-9 changes, requirements and record retention.

If you're on top of the rules, and current with your I-9 records, an audit shouldn't be any problem. And who knows -- the next knock after that could be a Candygram!

Posted via email from G-Neil's Posterous

Under new proposal, COBRA premium subsidy would be extended again

As part of its proposed federal budget for fiscal year 2011, the Obama administration is recommending another extension to the COBRA health insurance premium subsidy – a move that Congress will most likely support.

If approved, employees laid off from March 1 through December 31, 2010, would be eligible for the 65% premium subsidy for up to 12 months. (Currently, employees who are involuntarily terminated from September 1, 2008, through February 28, 2010, can receive the premium subsidy for up to 15 months.)

“As long as unemployment remains at high levels and access to health insurance coverage remains spotty, the willingness to extend COBRA assistance will remain strong and persistent,” says Frank McArdle, a consultant with Hewitt Associates Inc. in Washington. workforce.com

More and more employees are opting for COBRA as a result of the 65 percent premium subsidy – part of a broad economic stimulus package Congress approved nearly one year ago. In fact, Hewitt discovered in a survey of 200 large employers that the number of employees choosing COBRA more than doubled to 39 percent during a nine-month period last year.

According to the Society for Human Resource Management (SHRM), only laid-of workers who could not get coverage under another group health plan (such as a spouse’s plan or Medicare) would be eligible for the subsidy. In addition, premium assistance is only available for individuals with incomes under $145,000 and families filing jointly with incomes under $290,000.

If you’re a little bewildered about the various extensions and how to communicate them to employees, you’re not alone.

"… as originally passed, the subsidy was provided for a period up to nine months. In December 2009, the period was extended to a total of 15 months, and under the latest proposal it would be 12 months," says Karen Frost, health and productivity solutions leaders at Hewitt Associates in Chicago. "That's three different time frames and three different provisions." shrm.org

As far as what this means to you as an employer, Frost suggests that the hardest part – adjusting to the original subsidy – is over.

"For the first extension, we just had to modify what we were already doing in terms of the subsidy. And the efforts around a second extension would be very similar. It's a modification; it's not a brand new game."

Until a possible second extension is approved, G.Neil recommends that you display a poster informing employees of their COBRA subsidy benefits to date.

Playing the labor law poster game

If you own or manage a business, odds are you know about the labor law poster shuffle. It's that game we all play where we try to get the right labor law posters in the right spaces by the right deadline, and then wait, breathless, to make the dash again when the feds or a state agency decide to change the posters because they changed a microscopic date located on the bottom 1/16" of the lower right hand corner -- you know, that spot that gets hidden by the poster frame, right?

Or they have rearranged the boxes containing the information no employee has ever read, or could understand because it's written in government legalese which is twice as bad a regular legalese because it's the government. And now because of those rearranged boxes (because heaven knows, our elected officials and heads of agencies have nothing else to worry about like health care reform or campaign reform or an economy that's tanked...) every business person must scramble to tear down the old no-longer-valid posters and replace them with new valid-for-the-next-10-minute labor law posters.

And as if the shuffle wasn't bad enough, there's the trying to find out about the changes. Never mind that you're trying to run a business in the aforementioned tanked economy, managing a bunch of sick employees who can't afford to see a doctor so they came to work to cough all over you. You have to spend hours searching state and federal websites for minute changes in labor law posters and posting requirements and then rush to order the new ones before they too are outdated. Then hope that you found all the right sites and all the right posters! It's kind of like trying to dance with the music on mute -- you know it's there, but it's impossible to hear it, so you're just kind of stumbling around the dance floor.

Only in this case, one wrong step in the labor law poster shuffle and you could get slapped with some pretty hefty fines or an employee lawsuit, or maybe both. Kind of makes the trips and falls on "Dancing with the Stars" look like a fun time, doesn't it?

So what are you supposed to do? Well, you can save a few bucks and keep trying to find those posters and stay ahead of the mandatory labor law poster game. Or you can go with a labor law poster service and take just one thing off your already heaping-piled-overflowing-never-get-through-it-all plate. Your choice.

We've got a good service at G Neil. Pretty cheap, given that it covers a full year and covers any fines you get if we mess up. Pretty simple too. Just sign up, pay once, and you're good for a year. Second year and on gets even cheaper. Wanna try it? Take a minute, step out of the shuffle and see how easy labor law poster compliance can get.

Posted via email from G-Neil's Posterous

Independent contractor vs. employee: Proposed bill would toughen classification standards

In mid-December, 2009, Senator John Kerry introduced a bill in the Senate that focuses on employers misclassifying workers as independent contractors. The bill, called the Taxpayer Responsibility, Accountability, and Consistency Act of 2009 (S.2882), would amend Section 530 of the Revenue Act of 1978.

The “safe harbor provision” of Section 530 gave businesses some leeway in classifying workers as independent contractors for employment-tax reasons. If certain requirements were met and the business had a “reasonable basis,” it could treat an individual as an independent contractor without having to resort to the IRS’ 20-factor common-law test.

But that could change with Kerry’s proposed legislation. Under the Taxpayer Responsibility, Accountability, and Consistency Act, a business would have a “reasonable basis” for classifying a worker as an independent contractor (and not be held to the common-law test) only if it met these two new standards:

1) The employer didn’t treat any worker in a substantially similar position as an employee since December 31, 1977

2) The independent contractor classification was based on a written statement from the Department of Treasury that the worker was not an employee, or on an IRS examination that concluded the worker was not an employee

The bill would also require you to issue a Form 1099 to anyone your business pays more than $600 annually, in addition to giving workers classified as independent contractors the right to obtain a determination of their status from the Secretary of the Treasury.

So what’s your status, Gladys?

If a worker is classified as an employee, you are required to withhold income taxes, and pay Social Security, Medicare and unemployment taxes. With independent contractors, however, you do not have these same obligations.

Yet if you misclassify an employee as an independent contractor, you may pay dearly down the road.

Basically, the questions in the IRS’ common-law test fall under three categories:

1) Behavioral control – Does your business direct or control how a person’s work is done through instructions, training or other means?

2) Financial control – Do you direct or control the business aspects of a person’s job, such as reimbursing expenses or providing supplies?

3) Type of relationship – What is the relationship between your business and the worker, such as written contracts or employee-type benefits like insurance and vacation pay?

In most cases, if your level of control extends to what is done by an individual – as well as how it is done – then that worker is an employee and not an independent contractor. An independent contractor, as a sole proprietor, directs many aspects of the business relationship.

Getting this right is critical – and could become more so under the Taxpayer Responsibility, Accountability, and Consistency Act. Misclassify a worker and you could be looking at a substantial tax bill and penalties from the IRS. There’s also the possibility of a misclassified independent contractor suing you for not providing the necessary overtime, meal periods or rest breaks that an employee would receive.

$1 million in back wages nothing to cluck about for poultry processor

The U.S. Department of Labor (DOL) recently reached a settlement agreement in a back wage case against the country’s largest poultry processor - Texas-based Pilgrim’s Pride Corp. Under the terms of the agreement, Pilgrim’s Pride will pay more than $1 million in overtime back wages. The recovered wages affect nearly 800 former and current processing workers at the Dallas facility, where the company failed to pay its employees for all hours worked under Fair Labor Standards Act (FLSA) guidelines.

Of particular interest in this case was the fact that employees were not properly paid for the time spent “donning and doffing” work-related protective gear.

Donning and doffing – now that’s a term you don’t hear everyday. Basically, employers must pay employees for the time spent on preliminary and/or post-shift activities that are an “integral and indispensable part” of the employees' principal activities. Especially relevant in the food-processing industry, this includes the time it takes employees to put on and take off protective gear, like smocks, gloves and rubber boots.

Regarding the Pilgrim’s Pride case: "These low-wage workers were not paid for time donning and doffing at the beginning and end of the workday and before and after meals," said Cynthia Watson, regional administrator for the Labor Department's Wage and Hour Division's Southwest Region.

The takeaway for employers, then, is that you take stock of your current pay practices to be certain you’re complying with this FLSA requirement. Just as important as providing the appropriate protective gear to your staff is paying them for the time it takes to don and doff the gear!

Hiring to come out of its deep freeze as economy warms up

According to CareerBuilder’s 2010 Job Forecast, employers will be revisiting their hiring strategies in the new year, largely due to the dark cloud of the depressed economy beginning to lift.

"There have been many signs over the past few months that point to the healing of the U.S. economy, especially the continued decrease in the number of jobs lost per month, a trend that will hopefully carry over into the new year," said Matt Ferguson, CEO of CareerBuilder.

In its survey of more than 2,700 hiring managers and human resource professionals nationwide, CareerBuilder uncovered some very encouraging hiring predictions for 2010, including:

=> 20% of employers plan to increase their number of full-time, permanent employees
=> 11% of employers plan to add part-time employees
=> Employers in the West plan to increase their headcounts the most of any other region, with nearly 24% saying they will add full-time workers (compared to 21% in the Northeast, 20% in the South and 16% in the Midwest)
=> Hiring is expected to increase the most in these industries: information technology, manufacturing, financial services, professional and business services, and sales
=> The types of jobs that employers plan to hire for most frequently are technology and customer service, followed by sales, research/development, business development, accounting/finance, and marketing

Hiring isn’t the only area being resuscitated in the new year. According to the CareerBuilder survey, companies will be “making up for lost ground caused by the recession” by pursuing 10 additional key trends.

In yet another “top 10 list” in a January blog post (!), these key initiatives include:

1. Replacing lower-performing employees
2. Focusing on social media to strengthen brand
3. Rehiring laid-off workers
4. Providing flexible work arrangements
5. Cutting perks and benefits
6. Rehiring retirees and postponing retirement
7. Turning to freelance or contract hiring
8. Adding green jobs
9. Stepping up bilingual recruitment
10. Reducing business travel

So what about your business? Will hiring come off the back burner and make an appearance again in 2010? And what about the other trends CareerBuilder revealed in its survey? Will you be taking any of the same steps?

When is it OK to ignore the OSHA posting deadline?

The OSHA posting deadline is less than a week away! From February 1 to April 20, 2010, most businesses will be required to post OSHA Form 300A – a summary of job-related injuries and illnesses that occurred in 2009.

Notice that I said “most.” That’s because employers that fall under certain Standard Industrial Classification (SIC) codes are exempt from keeping OSHA injury and illness records (unless requested, in writing, by OSHA, the Bureau of Labor Statistics (BLS) or a state agency operating under OSHA or the BLS). These businesses should be aware, however, that if a workplace incident results in a fatality or the hospitalization of three or more employees, they must report the accident to OSHA.

Check out the list of exempt industries here. From apparel stores and barber shops to photo studios and used car dealers, there are approximately 56 types of establishments that don’t need to hustle to get their OSHA Form 300A posted by this Monday.

For those of you who aren’t exempt, meet this upcoming posting deadline and other OSHA recordkeeping requirements with our mandatory forms and convenient recordkeeping tools.

How to steer clear of legal landmines in the new year

Protecting your business and “not getting sued” are topics that come up again and again on this blog. Whether you’re an HR professional, business owner or people manager, you’re all too aware how one legal misstep or compliance lapse can lead to much bigger trouble down the road.

That’s why my interest was piqued when I ran across a spot-on article by Susan K. Lessack, a labor and employment law partner with Pepper Hamilton LLP.

In her “Top Ten Things to Do in 2010,” Lessack discusses some important actions for minimizing the risk of employment-related litigation in the new year. In a nutshell, she suggests that you:

1. Make sure your company has a pandemic plan
2. Check your policies to ensure they’re a friend of GINA
3. Be sure you comply with the regulations issued by the Office of Federal Contract Compliance Programs (OFCCP) if you’re a federal government contractor
4. Ensure that disability leave policies do not contain inflexible provisions
5. Audit your wage-and-hour practices
6. Review relationships with independent contractors to evaluate whether those individuals are classified properly
7. Consider having a policy that advises employees who need a reasonable accommodation to request one
8. Review existing communication systems to ensure that employees have a way of raising concerns, and train manager to be effective in listening to and addressing those concerns
9. Develop a policy concerning employee use of social media, such as blogs, Facebook, MySpace and the like
10. Remember to document and communicate to employees any performance problems

Do yourself a favor and check out Lessack’s article for a quick snapshot of the best tactics for keeping your hands clean of any messy legal snafus. Many of the suggestions have been covered in this blog before, but they’re all points worth repeating. As are Lessack’s final words of advice for the litigation leery: “Remember that employees who feel they are treated fairly and with respect are less likely to bring claims against their employers.”

Here's to a glass half full in 2010

I know it’s January 14, but you’re not already jaded about the new year, are you? You’re still happy to put the challenges of 2009 behind you, and are focused on a big and bold 2010, right?

I’m glad to hear that. And so is Terry Starbucker, the voice behind the blog, Ramblings from a Glass Half Full. A senior operations executive for a service business, Starbucker is committed to spreading “realistic optimism” through a philosophy he calls “Half-Fullism,” or to put it another way, “Dealing with the literal world in a favorable way.”

In his first-of-the-year post, Starbucker shares a New Year’s checklist of 10 things leaders can do in the coming year to make it great. If you're a leader at your company:

1. Don’t Dive in Head First – Take the time to review the year you just experienced, celebrating the victories and learning from the setbacks. Discuss these insights with your team now, before the new year kicks into high gear.

2. Study Up – How familiar are you with the details of your business or project plan for 2010? Absorb the full scope of what you plan to accomplish, so you’ll start the new year on solid footing.

3. Read Your Fine Print – Every leader’s strengths, left unchecked, can have a dark side (something Starbucker calls the “fine print”). For example, a hard-charging, assertive leader could have a tendency to become inpatient or steamroll over people. You must constantly self-correct to make sure you’re striking a healthy balance.

4. Put the Right Team on the Field – While you’re assessing your own strengths and weaknesses, review those of your team, too. Are there any unresolved issues from the previous year? Can you make changes now, before it gets too busy, that will improve everyone’s chance for success?

5. Keep Raising the Bar – In select areas, set higher targets than the year before. Even if a team experienced a “best ever” year, they can strive for better results the following year – and hit them.

6. Synthesize Goals – Reduce your business or project plan to four or five smaller pieces and communicate these goals through the organization. Talk up these goals heavily and be sure to keep everyone posted on their progress.

7. Calibrate Your Accountability Meter – Make sure your teammates know what is expected of them for the year; then, be prepared to lead using the full spectrum of accountability – encouraging and motivating them, but also taking appropriate action if they’re underperforming.

8. Clean Out Your Ears – In a non-stop, multi-tasking environment, this can be tricky, but it’s important to shut out the noise and listen - really listen - to what your teammates are sharing.

9. Give Feedback Early & Often – Even when everything is moving full-steam ahead, you need to pause periodically to give your teammates feedback - and make adjustments early in the process, when it’s easier.

10. Practice Patience, Tolerance & Engagement – Last, but certainly not least, it’s important to keep yourself in check and not become impatient, intolerant of criticism or adverse to conflict. Things won’t always go your way, and as a leader, you have to rise above it and stay calm, open-minded and understanding.

A new year, a new decade – what better time than now to take stock of what’s working and not working in your company – and challenging yourself to “lead” in a more positive, dynamic direction? With the right tools, training and mentoring, you can keep your glass half full and put the power of optimism to work for your business.

When wicked winter weather grounds your workforce

“Oh the weather outside is frightful/But the fire is so delightful/And since we’ve no place to go/Let it snow! Let it snow! Let it snow!”

No place to go? What about employees trying to get to their jobs! What are they supposed to do when the wind is howling, the snow is drifting and the roads are icing over?

With much of the country dealing with the blustery weather that is so common in the months of January and February, now might be a good time to review your HR rights and responsibilities when crippling snowstorms are in the forecast.

The main issue for most employers is whether or not they must pay employees who don’t - or can’t - come to work because of weather conditions. And if you can charge them with vacation or other PTO for missed work.

Like many pay issues, this depends on the exemption status of the employee. Under FLSA guidelines, employers should use discretion before docking the pay of exempt employees who miss work for weather-related reasons. Basically, if you remain open during bad weather and an employee does not report to work, you may make pay deductions for full-day absences only. (If the employee works any part of the day, you must pay him or her for the entire day.) Yet if you shut down your business, you should pay exempt employees their regular salaries. Keep in mind, however, that you have the right to require employees to use accrued time off to cover the missed work – assuming they have vacation or PTO available to them.

Regarding non-exempt hourly employees, it’s up to you whether to pay them for snow days. Basically, the FLSA doesn’t require you to pay them for hours they would have worked if severe weather wasn’t a factor. But again, you may require non-exempt employees to use vacation or PTO to cover their absence. Also, it’s up to you whether you allow hourly employees to make up any weather-related lost work.

Next order of business: Does your employee handbook contain a severe weather policy? If not, you’ll want to develop one ASAP that covers:

Closing the business – How you’ll determine whether to shut down for severe weather (snowfall more than six inches, local school districts are closed, etc.)

Communication – How you'll communicate a business closure to your employees (call-in number, website with instructions, etc.)

Employees with children - Whether employees who are able to report to work, but who have children whose schools or daycare facilities are closed, may bring their children to work

Telecommuting - Whether employees who are unable to report to work may work from home - and the conditions surrounding this arrangement (such as remaining accessible via computer or telephone)

A final note: While not a policy issue, you may also want to provide a list of cold-weather precautions for your employees, such as how they can protect themselves in frigid temperatures, safe-driving trips (including emergency tools to stow in their vehicle, like a snow scraper, flares and flashlight) and what to do in case of an accident.

OUCH! Survey reveals that nearly one out of every two employees is unhappy at work

Do you enjoy your job? If you answered “yes,” consider yourself lucky – and in a very narrow majority. According to a survey of 5,000 households by the Conference Board research group, only 45% of Americans are satisfied with their work – the lowest number ever recorded by the organization in its 22 years of studying the issue.

“It says something troubling about work in America. It is not about the business cycle or one grumpy generation,” says Linda Barrington, managing director of human capital at the Conference Board. USA Today

What is it about, then? What’s causing such discontent for so many Americans? While some of the malaise can be blamed on the worst recession since the 1930s (and the difficulty in finding rewarding and suitable jobs), there’s something more at play here. Worker dissatisfaction has been increasing for more than two decades for additional, non-recession reasons, the biggest being:

=> Fewer workers consider their jobs to be interesting
(Only 51% of workers currently find their jobs satisfying, compared to nearly 70% in 1987)
=> Incomes have not kept up with inflation
(Average household incomes, adjusted for inflation, have been dropping since 2000)
=> The soaring cost of health insurance has cut into worker’s
take-home pay
(The average employee contribution for single-coverage medical care benefits rose from $48 a month to $76 a month between 1999 and 2006)

Continuing the nearly 50/50 split of satisfied/dissatisfied workers, here are some of the other key findings of the survey:

=> 43% of workers feel secure in their jobs
=> 56% of workers like their coworkers
=> 56% of workers are satisfied with their commute to work
=> 51% of workers are satisfied with their boss

Add it all up and you have a trend that is not only troubling for employers, but also for the nation. Economists worry that long-term job dissatisfaction could squash innovation and damage America’s competitiveness and productivity.

When dissatisfaction hits home (or work)

Which brings us to another point: How concerned should you be about employee satisfaction in your organization – and what can you do to help reverse these numbers within your own four walls?

Obviously, this is no easy task, and a bit of a moving target. While you can’t control the recession or rising health care costs – or please all of the people all of the time, for that matter – you can take positive steps to ensure your employees are engaged and motivated. It’s a brand-new year, the perfect time to take a good, hard look at what’s working (and not) with your most valuable resource – your employees.

In a previous post on this very subject, we talked about how employee engagement is a key factor in determining the long-term success of a business, with studies indicating that engaged employees perform at much higher levels than disengaged employees. At the same time, we're assuming that engaged, high-performing employees are happier, more satisfied employees.

Great, but how do you know if your employees are committed to their work? Ask them!

This earlier post suggests you start a conversation with employees to find out how they are handling the recession and their jobs, even going so far as to conduct an informal employee survey. Not to state the obvious, but this won’t work if managers and supervisors only inquire about their employees’ well-being at review time. They have to sit down with their employees on a regular basis and give them the attention they deserve.

If you go the route of a written survey, here are some of the statements you can ask employees to rate, which will provide a clear snapshot of where you stand in building satisfied employees:

1. Management is providing good leadership and guidance during difficult economic conditions.
2. My job is mentally stimulating
3. I understand how my work contributes to the company’s performance.
4. There are future opportunities for growth at my company.
5. My company affords me the opportunity to develop my skills.
6. I receive recognition and reward for my contributions.
7. There is open and honest communication between employees and managers.
8. I see professional growth and career development opportunities for myself in this organization.
9. I know how I fit into the organization’s future plans.
10. Considering the value I bring to the organization, I feel I am paid fairly.

Once you’ve asked the tough questions, you’ll want to spend time with upper management and other decision-makers to review the results and figure out ways to fill in the gaps. From training and mentoring employees - to recognizing and rewarding your workforce for their contributions – make 2010 a year for turning those frowns upside down! Your employees will be happier, and your business will be more successful as a result.

Looks like we made it - Saying goodbye to 2009 and hello to 2010

So here we are, ushering in 2010 … a fresh, unspoiled year … a blank slate waiting to be filled with new experiences and opportunities. The year ahead feels like that shining, new employee you just hired, coming to you with impeccable credentials and a winning personality. Will the new year, like that new employee, be everything you hoped for?

In addition to wishing you a "Happy New Year" in this first blog post of 2010, I feel like I should express my congratulations, too. Congratulations on enduring a year that was anything but dull, thanks to a lingering recession, the swearing in of a new, Democratic president and heightened labor law enforcement under the Obama administration. Many of you successfully kept your businesses afloat with fewer employees, fewer resources and budgets that were cut to the bone.

Lest you forget your strength and resilience during such trying times, let us take a quick walk down memory lane to revisit the changes that hit employers the hardest in 2009 (and that were covered in HR Forum):

=> New Family and Medical Leave Act (FMLA) rules become effective in January, with expanded military coverage and revised guidelines on determining FMLA eligibility and handling leave requests.

=> In his first piece of legislation as President, Barack Obama signs the Lilly Ledbetter Fair Pay Act into law in late January, an equal-pay bill designed to make it easier for employees to sue for pay discrimination.

=> In response to the nation’s dire economic situation, President Obama signs a $787 billion stimulus package that includes a COBRA subsidy for laid-off workers, hiring incentives via tax credits for certain types of workers and other new HR requirements.

=> Just as most businesses are preparing to update their employment verification practices to incorporate newly updated I-9 Forms, the Department of Homeland Security (DHS) pushes back the scheduled update by two months (to April 3).

=> In late April, Secretary of Homeland Security Janet Napolitano urges employers to aggressively prepare for another outbreak of swine flu to prevent it from becoming a full-fledged pandemic.

=> The U.S. Immigration and Customs Enforcement (ICE) launches a bold initiative in early July as part of its stepped-up enforcement, alerting 652 businesses nationwide that ICE agents will be inspecting their hiring records.

=> Beginning September 8, all federal contractors and subcontractors are required to use E-Verify, a free, web-based system, that compares employee information from the Form I-9 against federal databases to verify a worker’s employment eligibility.

=> Also in September, all businesses covered by HIPAA - or that offer products or services that interact with protected health information – must notify individuals when their health information has been breached, along with updating their HIPAA policies and procedures.

=> In October, OSHA announces a national emphasis program (NEP) on recordkeeping to assess the accuracy of injury and illness data recorded by employers, largely due to unusually low incidence rates in traditionally high-rate industries.

=> The provisions of the Genetic Information Nondiscrimination Act (GINA) go into effect in November, which includes an updated EEOC “Equal Employment Opportunity is the Law” poster – the fifth federal-level posting change in five years.

Awareness and action in 2010

While the new year is starting on a high note – with many experts indicating that the recession is lifting – we can most likely expect a similar level of labor law reform and increased enforcement under the Obama administration in 2010. Check back here often for insights on the latest legal and HR issues affecting your business, including solutions to help you meet every challenge like a seasoned pro.

Happy holidays, everyone!

A hearty hello to all my HR friends out there in the big ol’ blogosphere. Just wanted to let you know that I will be “offline” for the next week or so, enjoying the holidays with friends and family. I hope you’re doing the same – and that the holiday season is a festive, fulfilling time for you.

Speaking on behalf of everyone at G.Neil, I appreciate you stopping by to read this blog, sharing your thoughts and working together to tackle your HR challenges, big and small. I look forward to continued dialogue in 2010 – delving deeper into the day-to-day issues and looking at solutions from G.Neil that can make your work life a whole lot easier.

Thanks, again, for all your support in 2009. Best wishes, and “chat” with you soon!

They're back! Employee benefits slo-o-o-o-wly returning as economy rebounds

Like a slumbering bear awakening from his long winter’s hibernation, the economy is showing signs of life again. It’s still a little sluggish, but it’s stirring and has stepped into the light of day.

That’s good news, as is the fact that more employers are bringing back the benefits they were forced to freeze during the worst of the recession. During tough times, many companies slashed 401(k) matches, merit-based raises and bonuses, and other employee perks to help cut costs. A recent USA today article, however, shares some encouraging results from a report from human resources consultancy Towers Perrin:

=> Nearly two-thirds of firms that locked in salaries last year will start offering raises again in 2010

=> Approximately one-third of firms that dropped 401(k) matches will increase or restart those company contributions next year

And many of these companies are reinstating these benefits for the best of reasons: To motivate and retain their most valuable employees, so they don’t walk out the door as the economy (and job market) strengthens.

"When you start coming out of a recession, people remember how they were
treated," says Fred Crandall, a Watson Wyatt senior human resource consultant. "Some people who feel like they've been given a raw deal will jump ship." USA Today

Yet many of these benefits won’t be as robust as they once were. Gone are the days of the usual 401(k) match of 50 cents on the dollar, up to 6% of pay. Many companies, like FedEx, will offer smaller matches. Other companies will look at certain factors when adjusting benefits, such as tying 401(k) matches to quarterly or annual financial performance.

And what about raises? They may return in 2010, but not in an across-the-board, one-size-fits-all fashion. Four in 10 employers in the Towers Perrin report stated that they will differentiate among employees when considering salary increases, doling out the highest raises to only the highest achievers. A weak employee may see no raise at all.

While these re-emerging benefits will be a welcome change to employees in the new year, employees shouldn’t assume it’s business as usual in 2010. Most employers will be extremely cautious when reinstating benefits, keeping a close eye on the economy’s recovery.

“More organizations are being much more clear that benefits such as 401(k) matches are discretionary,” says Brad Kimler, executive vice president of Fidelity’s Consulting Services business.

What about your company? Are you in a position to start bringing back some of the benefits you placed on the back burner in 2009? Do you see the economy - and your business - rebounding enough in 2010 to reinstate 401(k) matches, raises and other benefits? We'd love to hear what's happening in your corner of the world!

Inappropriate texting on company equipment a privacy issue - or a policy issue?

Earlier this week, the U.S. Supreme Court announced it would hear arguments in a case involving sexually explicit text messages sent by an employee using employer-provided equipment. After an employee of the Ontario, CA, SWAT unit was warned repeatedly for exceeding the number of texts sent per month, his employers reviewed the content of the texts, setting off a whole privacy debate. The court is to determine whether the employer violated privacy rights by reviewing the messages.

My knee-jerk reaction? Privacy shmivacy. When it comes to privacy vs. policy issues where employees don’t follow the rules, it’s hard to comprehend a reasonable defense.

“But judge, I didn’t understand the privacy policy.”

That’s the only possible explanation, in my opinion. As dim-witted as that may sound, it puts the onus completely on the corporation to defend itself. As HR specialists, it becomes your burden to first, create a comprehensive electronic usage policy that covers all the “what ifs” and then, to ensure every employee has reviewed and understood the policy. It only takes a few employees saying the rules and regulations were never explained to them, or that they didn’t understand what was explained, to create a leak in your airtight policy.

As unbelievable as this kind of court case may sound (the employee blatantly used a company phone to send racy messages!), it further demonstrates the importance of creating a thorough privacy policy review process that engages every employee. In the case of the Ontario SWAT unit, their policy allowed for a certain number of texts per month per employee. If employees exceeded the limit, it was their responsibility to pay for the overage amount. That’s a good policy and one that every officer understood. The issue arose when one officer repeatedly violated the limit policy, prompting his manager to audit the messages for personal use.

What was the purpose of the excessive texts and were they a detriment to the officer’s productivity on company time? Which begs another question: How detailed should your privacy policies be? Enough to cover all the bases. The Ontario SWAT unit was very detailed in their policy in some areas, but lacking in others. If the policy had clearly stated that excessive abuse of the monthly limits would lead to a review of the message content, employees would have been aware that their activities could lead to further scrutiny.

While this case seems cut and dried, it isn’t because it forces HR managers from coast to coast to review, revise and reinforce their privacy policy standards. At the very least, you may want to look at your privacy policies when it comes to corporate-supplied equipment to ensure you have an iron-clad and understandable position.

DOL and EEOC could receive major financial boost in 2010

The House approved a massive $447 billion spending bill that would provide a significant bump in funding for the Department of Labor (DOL) and the Equal Employment Opportunity Commission (EEOC) for fiscal year 2010. The Consolidated Appropriations Act (H.R. 3288), which combines six separate spending measures, passed by a vote of 221-202 on December 10. The bill is now with the Senate and must be passed by December 18 – or extended by a temporary measure to keep it afloat.

Here are a few highlights regarding the proposed funding:

=> $13.3 billion for the DOL, with $1.6 billion earmarked for worker safety and health programs ($121 million more than the amount provided in 2009)

What it means: More financial support for the enforcement and compliance initiatives of the Employment Benefits Security Administration (EBSA), Employment Standards Administration (ESA), the Occupational Safety and Health Administration (OSHA) and the Mine Safety and Health Administration (MSHA) – including the hiring of 600 new, full-time employees. Employers could see a greater presence by OSHA, with more inspections, more audits of safety records and more enforcement of required safety standards.

=> $367 million for the EEOC ($23 million more than the amount provided in 2009)

What it means: More funding to ease the backlog of 70,000+ pending employment discrimination cases. The EEOC received 93,277 private-sector discrimination charges in 2009, the second-highest number in 20 years. Employers could see more employee lawsuits coming their way for discrimination based on race, color, national origin, sex, age, religion or disability.

So while we can’t be certain how this bill will play out in the coming months, we do know that President Obama's administration places a high priority on employment and labor law reform, particularly the enforcement of laws designed to protect employees.

Now, more than ever, employers need to step up their compliance and training programs to prevent costly fines and potential lawsuits. In light of this possible funding and renewed enforcement, you would be wise to:

1. Conduct procedural audits and other internal reviews to identify any issues that require immediate action.

2. Review and revise the employment policies in your company’s Employee Handbook and ensure they’re properly distributed. Be certain your policies reflect the many employment law developments in the past year, such as changes to the ADA, FMLA and COBRA.

3. Assess your internal complaint procedures (as well as your employees’ awareness of such procedures). Employees who cannot voice their concerns are more likely to feel powerless and as a result, take legal action against their employers.

4. Provide ongoing harassment prevention and anti-discrimination training to employees and managers. Your company must send a clear message that harassment will not be tolerated in the workplace – and support that message with education on how to recognize and prevent harassment.

5. Maintain up-to-date labor law postings and other specialized, employee-facing posters, which keep your company in compliance and act as a first line of defense in an employee-based lawsuit.

Snuggies in the workplace? Oh no you didn't!

Do HR pros really need to delve deep into dress code decorum to determine that “the blanket with sleeves” is NOT acceptable in the workplace? Should this even be debatable? It’s as absurd as men wearing pleated shorts that expose their sock garters in summer. You just don’t go there … EVER.

But apparently there are those who want to “fight for their right to Snug-gie!”, based on a lively discussion I encountered in a BLR forum. The responses were pretty hilarious.

Here’s the deal, as “IrisD” explains:

"Our facility manager lowered the thermostat to save money. We don't allow space heaters, so some of the women are wearing those "snuggy" blankets and even going outside with them for their smoking breaks.

This has caused kind of a rift between men and women in the office because the men are wearing sweaters and jackets to keep warm, not blankets. One male supervisor told the snuggy wearers to "wear more clothes, not blankets." Emails are flying.

Can we ban snuggys? Or should we? They really don't come under dress codes."

The general consensus, as you might imagine, was that fleecy robe thingys don’t belong in the workplace. Shocking, right? My favorite response:

"Honestly, if your dress code does not rule out blankets-as-clothing, there’s probably something wrong with your dress code. It’s not like this is a question about a man with makeup or a woman refusing to wear hose, or oxfords vs. polos. This is a person in a fabric zip-lock bag with sleeves."

Then there’s the issue of safety, as someone else pointed out: A long, flowy robe might get caught on objects and be a safety hazard for the wearer.

So what we have here is not only a serious fashion faux pas, but also a potential safety risk. And regarding your company’s dress code, I sincerely hope your employees use a little more common sense than those at Iris’ workplace. I know, I know, there’s always that one employee who will push the envelope with his or her wardrobe, but seriously? A brightly colored, one-size-fits-all, floor-length blanket?!?

So let’s do our best to keep the temperature at a comfortable level this winter - and encourage employees to grab their favorite cardigan, blazer, hoodie, shawl - anything but their Snuggie - to fight the chill.

P.S. Did you know that Snuggie ads also suggest you wear this warm, cuddly garment at sporting events, movie theaters and, my personal favorite, night-time pub crawls? Please, unless you’re a college student in the middle of rush week, stop the madness!

P.S.S. I don't own a Snuggie. But now that I live in the Pacific Northwest, I think I could really use one. Royal blue, please. And I promise you, no one will ever see it except my husband and my two Jack Russell Terriers.

Fast-food giant "burned" for mistreatment of transgender applicant

Although it has a strict policy prohibiting any form of discrimination or harassment in hiring, termination or any other aspect of employment, a McDonald’s in Orlando, Florida, is eating its words due to a former employee who overstepped his bounds.

In a complaint filed by the Transgender Legal Defense and Education Fund (TLDEF) before the Florida Commission on Human Relations, 17-year-old Zikerria Bellamy claims she was not hired by the fast-food restaurant because she was a transgender.

When Bellamy filled out the application at the Orlando location, she did not check off the box that asks whether the applicant is male or female (a voluntary question that states, “failure to respond will not subject you to adverse treatment”). Later, when she went in for an interview, she was forced to check off the box indicating her gender. And then, to make matters worse, she received this damaging voicemail: "You will not get hired. We do not hire (expletive). You lied to me. You told me you were a woman.”

McDonald’s quickly defended its position – and policies - forbidding this type of behavior:

"The behavior of the individual in question is not reflective of the employment policies in the organization. Further, this individual acted outside the scope of his authority and was not responsible for hiring.”

Not surprisingly, the individual in question is no longer employed by the restaurant.

Is your company doing enough?

According to the New York-based TLDEF, nearly 50 percent of transgender people in the United States have been fired or refused a job because of their transgender status.

While federal law clearly protects employees and applicants from discrimination based on race, color, religion, sex and national origin under Title VII of the Civil Rights Act of 1964, it doesn’t offer similar protections on the basis of sexual orientation or gender identity. Protection runs deeper on a state level, however, where almost half the states and the District of Columbia have enacted laws prohibiting sexual orientation discrimination in public and private employment. And earlier this year, Rep. Barney Frank (D-Massachusetts) introduced the Employment Non-Discrimination Act of 2009, a proposed federal law that would prohibit sexual orientation discrimination in the workplace.

Legal requirements aside, many employers recognize that in today’s diverse environment, instituting policies and procedures that prohibit this type of discrimination is smart business.

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

For a quick overview of the issues, check out an earlier blog post, Sexual orientation, gender identity discrimination protections gaining legal ground, and the article in our G.Neil library, Sexual Orientation and Gender Identity Protection.

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

Uh-oh! Overtime oversight puts employer in the legal hot set

A few months back, I talked about how overtime lawsuits are on the rise (Can salaried employees receive overtime pay?), and that employers need to be especially careful with how they classify their employees (exempt vs. non-exempt).

Well, I just learned of a recent court case that highlights just how important it is to get this right. As the blog post, Court of Appeals affirms overtime ruling for non-exempt worker under FLSA, explains, “The Second Circuit has ruled in favor of a worker who was denied overtime pay, ruling that the Fair Labor Standards Act does not exempt workers whose job skills are not customarily the product of advanced educational training.”

Here are the details of Young v. Cooper Cameron Corp.: Andrew Young was a highly skilled “Product Design Specialist II” with 20 years of engineering-type experience when he was hired. His work at Cooper Cameron involved complicated technical expertise and responsibility, including designing hydraulic power units for oil drilling rigs. Like his fellow PDS IIs at the company, however, Young did not have any formal education beyond a high school diploma.

When he lost his job in 2004 in a reduction in force (RIF), he sued the company for the overtime he’d been denied due to his classification as an exempt professional.

The court ruled in his favor.

Why? The issue lies with the definition of “professional capacity,” a legal standard that exempts an employee from overtime pay under the FLSA. According to FLSA regulations, an exempt professional is someone “whose primary duty consists of the performance of work requiring knowledge of an advance type in a field of science or learning customarily acquired by a prolonged course of specialized instruction and study.”

The judgment in Young’s favor was due largely to the fact that although Young had technical expertise, his job did not require a prolonged course of specialized intellectual study. Plus, none of the other product design specialists at Cooper Cameron had advanced degrees – they were all high school graduates with no college training.

Not a good day in court for Cooper Cameron. Young was wrongly classified as an exempt professional and as such, was entitled to overtime pay under FLSA. (To make matters worse, the court found that the company did not act in good faith when it classified Young, changing his job title from a non-exempt position to a title that “sounded” more professional.)

Don’t let the overtime rules overwhelm you! 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 like this.

Does your bereavement policy ease their suffering - or add to it?

If you’ve ever experienced the death of a loved one, you know how devastating the loss can be – and how it turns your world upside down. When you’re feeling a new, raw emotion every few minutes, it’s hard to create any sort of normalcy, especially with your job.

That’s why you should take a considerate, compassionate approach to bereavement and do everything you can to ease an employee’s burden.

During this difficult time, an employee will hear these words again and again, “If there’s anything I can do – anything at all - please let me know.” Well, this is your time to show that you, as an employer, are not just talk when it comes to supporting your employees, during the good times and the bad.

Death, stress and struggling to move on

Based on the stress scale created by psychiatrists Thomas Holmes and Richard Rahe in 1967, the death of a spouse is one of life’s most stressful events, with the death of a close family member not far behind.

And the upheaval it creates is considerable. According to the online resource, MedicineNet.com:

“Symptoms of complicated grief include intense emotion and longings for the deceased, severely intrusive thoughts about the lost loved one, extreme feelings of isolation and emptiness, avoiding doing things that bring back memories of the departed, new or worsened sleeping problems, and having no interest in activities that the sufferer used to enjoy.”

As you might imagine, this level of personal turmoil does not bode well in the workplace. An employee who was once upbeat and productive might become forlorn and distracted after a significant loss. What you do during those first few days and weeks can make all the difference to your grieving employees, and help them get back on their feet that much faster.

How your bereavement policies can boost morale

What types of bereavement benefits and resources can you provide to show you’re a company that cares about your employees and their well-being?

=> Funeral leave for a family member – As a matter of policy, most companies extend up to three paid days off for a full-time employee to attend the funeral of an immediate family member. But is it enough?

“Three days is a tragedy,” says Russell Friedman, author of The Grief Recovery Handbook and executive director of the Grief Recovery Institute. “Some companies are extraordinary and have big hearts when it comes to giving time off after a death, but many are stuck in the dark ages.”

He claims that employees need at least a week to deal with the details surrounding a death and funeral, especially since many people don’t live near their families these days. He also recommends extending your funeral leave policy to part-time employees.

Be sensitive to the fact that every situation is different. Managers should be allowed to adjust this policy to meet the needs of their staff. An employee who just lost a spouse of 25 years in a terrible accident might need more time off than an employee whose grandmother died peacefully at age 94.

=> Thoughtful support from management and peers – It’s not always easy knowing what to say to a grieving employee after a loss. But this is one of those critical times when managers need to push through their own discomfort and reach out to the employee. Now, more than ever, managers and supervisors need to be a stable influence, lending a helping hand and an open ear.

If you’re like most companies, you’ll give the employee a sympathy greeting card, send flowers or make a donation to a special charity.

Be sure to notify fellow employees of a death in a coworker’s family, as well. Share the news face to face with those coworkers who will be most affected by the news – and issue a simple e-mail or memo to the rest of the staff.

=> Remind the employee of your employee assistance program (EAP) – An employee’s need for support doesn’t end when the funeral is over. If your company offers counseling services, encourage the grieving employee to take advantage of them. And keep in mind that an employee’s work performance may be inconsistent in the first few weeks back on the job. If the employee was hard-working and dedicated prior to the loss of a loved one, he or she can get back to that place - with the right amount of support and assistance.

Pages

More Resources