HR Forum

Keeping workplace tensions from turning deadly

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

From the msnbc article:

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

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

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

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

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

According to the Reuters article,

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

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

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

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

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

New HIPAA Breach Notification Rules kick in today

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

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

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

What is a breach?

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

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

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

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

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

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

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

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

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

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

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

He explains:

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

His justification for taking the unpaid internship route was this:

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

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

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

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

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

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

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

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

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

From an EEOC press release:

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

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

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

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

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

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

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

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

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

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

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

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

When weak management pushes top performers out the door

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

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

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

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

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

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

Dethroned former Miss California USA sues for religious discrimination

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

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

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

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

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

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

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

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

The Carnival of HR is in town! Welcome!

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

Staging the show

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

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

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

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

What's your show about?

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

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

The cast and crew

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

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

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

When the show goes wrong

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

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

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

Stage directions and union rules

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

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

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

Tricks of the trade

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

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

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

When the lights go down

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

_________________________

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What to do in the meantime?

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

By law, you may not:

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

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

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

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

Overtime lawsuit could pack a huge financial wallop for UPS

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

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

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

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

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

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

Can employees vent their workplace frustrations on personal blogs?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

From the announcement:

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

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

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

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

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

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

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

Can salaried employees receive overtime pay?

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

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

The DOL states that:

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

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

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

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

Thanks to ADA, NBA may employ oldest player in history

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

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

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

Sound crazy? Maybe crazy like a fox…

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

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

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

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

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

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

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

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

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

Wellness investment yields better than 1:1 return

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

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

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

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

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

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

Other key findings:

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

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

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

Mastering the tools of engagement

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

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

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

These tools fall into one of four basic categories:

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

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

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

Economy shrinking workers’ paychecks

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

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

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

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

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

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

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

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