Marketplace Notice

The ACA mandates that employers subject to the Fair Labor Standards Act (FLSA) provide a notice to employees with information regarding their coverage options, including those available in the Marketplace, by October 1, 2013.  The ACA added section 18B to the Fair Labor Standards Act (FLSA) requiring all employers subject to the FLSA to send the Marketplace Notice. 

Employers must send or provide the Notice to all employees, regardless of whether or not they are eligible for or enrolled in coverage under an employer-sponsored health plan.  Therefore, employers must send or provide the Marketplace Notice to part-time, seasonal, or temporary employees in addition to sending or providing the Notice to full-time employees.  While the initial notification is required to be provided to all current employees by October 1, 2013, employers must also send or provide the notice to new employees hired after October 1, 2013 within 14 days of such employee's date of hire.

Pursuant to the Affordable Care Act (ACA), individuals and employees will be able to access health insurance coverage through a private health insurance market - the Health Insurance Marketplace - beginning on January 1, 2014.

Living Wage for Washington Vetoed

Washington, D.C.'s Mayor Vincent Gray on Thursday vetoed the so-called "living wage bill" that would have required big-box retailers such as Wal-Mart to pay workers at least $12.50 an hour.

“While the intentions of its supporters were good, this bill is simply a woefully inadequate and flawed vehicle for achieving the goal we all share,” said Gray in a statement. Formally called the Large Retailer Accountability Act of 013 (LRAA), Gray's statement said the bill would have harmed job growth and economic development.

The bill had set up a clash between the mayor, the bill's supporters and the big retail chains that was being watched closely by labor and other cities across the nation. Workers at retailers and fast food restaurants have been holding increasingly large and vocal protests to boost the federal minimum wage of $7.25 an hour. Businesses have argued that raising the wage would end up harming workers by reducing jobs.

Wal-Mart had said it would not build three of six planned stores if the D.C. bill became law. The D.C. Council approved it in July on an 8-5 vote, which is one short of a veto-proof majority. Major U.S. retailers, also including Target Corp. and Home Depot Inc., had opposed the bill.

The bill would only affect retailers with stores of 75,000 square feet or larger, at least $1 billion in annual sales and non-unionized workforces.

The bill isn't totally dead, however. Washington, D.C.'s council can override the veto with a two-thirds vote within 30 days, according to The Washington Post. That vote could come as early as Tuesday.

Jobless Claims - Data Clouded by Technical Glitch

The number of new U.S. jobless claims fell sharply last week but much of the decline appeared due to technical problems in claims processing, clouding the last major reading of labor market health before a Federal Reserve meeting.

Initial claims for state unemployment benefits slipped 31,000 to a seasonally adjusted 292,000, the Labor Department said on Thursday.

That was the lowest level of claims since 2006, confounding analysts' expectations for a mild increase.

But a department analyst said the majority of the decline appeared to be because two states were upgrading their computer systems and did not process all the claims they received during the week. One of the states was large and the other small, the analyst said.

While the drop in claims should be taken with a grain of salt, it doesn't change the view that employers appear to have ended a long cycle of elevated layoffs that began around the 2007-09 recession.

That has helped shape the view of Fed officials that the labor market is improving, and fueled expectations the U.S. central bank will start reducing a massive monetary stimulus program as early as its policy meeting next week.

The four-week moving average for new claims, which smoothes out volatility, had in prior weeks already fallen to its lowest levels since 2007. Last week, it fell by 7,500 to 321,250.

The claims report showed the number of people still receiving benefits under regular state programs after an initial week of aid fell 73,000 to 2.871 million in the week ended August 31.  (As reported by NBC news.)

Unemployment and Older Workers

The unemployment rate for workers aged 55 and over was 5 percent in July, according to the most recent data available from the Bureau of Labor Statistics.  That's still higher than historical averages but it's much lower than the overall unemployment rate of 7.4 percent, and below the unemployment rate for any younger group of workers.

Workers aged 55 and over also are the only ones to have seen their ranks grow substantially since 2007, the year the nation went into recession.  There were 31.6 million employed people aged 55 and over in July, according to the BLS, up from 25.9 million in July of 2007.  That's partly demographics:  As baby boomers age, more are becoming part of the 55-plus group.

The unemployment rate for Americans 55 and older is lower than for any other age group the government tracks, and far below the national average.  But if an older workers loses a job, the length of time that person will stay unemployed is typically much longer than for any other age group.

The government is scheduled to release August unemployment numbers on Friday, and forecasters are expecting the economy to have added around 200,000 jobs.

Unemployment, August 2013

U.S. employers added 169,000 jobs in August and much fewer in July than previously thought.  The Labor Department said Friday that the unemployment rate dropped to 7.3%, the lowest in nearly five years.  But it fell because more Americans stopped looking for work and were no longer counted as unemployed.  The proportion of Americans working or looking for work fell to its lowest level in 35 years. 

July's job gains were just 104,000, the fewest in more than a year and down from the previous estimate of 162,000.  June's figure was revised to 172,000, from 188,000.  The revisions lowered total hiring over those two months by 74,000.

Employers additionally have added an average of just 148,000 jobs in the past three months, well below the 12-month average of 184,000.

Another concern is that most of the hiring in August was in lower-paying industries such as retail, restaurants and bars, continuing a trend that began earlier this year.  Retailers added 44,000 jobs and hotels, restaurants and bars added 27,000. 

Recognition of Same-Sex Marriages for Federal Tax Purposes

As a follow-up to the overruling of the Defense of Marriage Act (DOMA), the Internal Revenue Service recently released IR-2013-72 which announced the U.S. Department of Treasury and IRS will recognize same-sex marriages and treat the couples as married for federal tax purposes.  Revenue Ruling 2013-17 applied regardless of whether the couple lives where same-sex marriages may or may not be recognized.

According to the Treasury and the IRS, additional guidance for employers will be forthcoming.  Employers can expect guidance for filing refund claims for payroll taxes on previously taxed health insurance and fringe benefits provided to same-sex spouses.  Other agencies may release similar guidance affected by the Internal Revenue Code.

Key points on the ruling may be found at the IRS website.

DOMA Decision

Lower courts have begun to issue rulings based on the Supreme Court's June 26, 2013, Defense of Marriage Act (DOMA) decision, with two district courts recently extending the ruling's application.  In addition, the Department of Labor revised a fact sheet on qualifying reasons for leave under the Family and Medical Leave Act (FMLA), in response to the Supreme Court's historic decision this summer striking down Section 3 of DOMA.

Employee Accountability

I ran across a definition for accountability that I feel truly identifies its precise meaning; ". . . the responsibility of the employee to accomplish with integrity the defined and assigned tasks required by his/her job within a reasonable time in order to assist the organization to fulfill its goals." 

Is employee accountability important?  Yes!  Employee accountability is important to a business's success as a whole.  It is the cornerstone of business success.  A Gallup poll estimates that the lost productivity that stems from disengaged and unaccountable employees costs American businesses between $287 and $370 billion annually.  This is through customer loss due to poor service, high employee turnover and quality control issues, just to name a few impacted areas.

How can you engender a culture of accountability in your workplace?  Through the effective communication of goals, expectations, success and failures.   These are the fundamental tenants of accountability. 

Establish the beliefs and values required for accountability in your organization.  Behavior will follow belief.

• Communicate accountability
• Coach accountability
• Practice accountability

DOMA (Defense of Marriage Act)

First the history lesson.  The Defense of Marriage Act was enacted September 21, 1996, allowing states to refuse to recognize same-sex marriages granted under the laws of other states. 

Section 3 of the Act was ruled unconstitutional in June, 2013 thereby allowing same-sex married couples to be recognized as "spouses" for purposes of federal laws, and allowing them to receive federal protections such as Social Security, health insurance and retirement savings.  Essentially, same-sex couples who are legally married deserve equal rights to the benefits under Federal law that go to all other married couples. 

If you have followed the DOMA case, you know by now that the ruling will have far-reaching implications.  The recent ruling which mandates that all officially recognized marriages be treated equally under the law, has immediate legal ramifications for the 12 states that already allow same-sex marriages.  Opponents of same-sex marriage are bracing themselves for a wave of legal challenges in the states that do not recognize marriages of gay and lesbian couples. 

What does all of this mean for Human Resources and Texas employers?  Well, here in Texas marriage is defined as the "relationship between a man and a woman."   While the Supreme Court removed the federal definition of marriage, it left it to the states to decide whether to honor other states' laws on the matter.  This does not mean that Texas is required to legalize same-sex marriage.  Texas Family Code 6.204 states same-sex marriages performed in other states are void in Texas.  For Texas, there isn't a huge impact immediately.  However, employers should revisit the definition of "spouse" in their benefit plans to ensure that the definition is consistent with the employer's intent, in light of the Windsor decision.  With regard to qualified pensions, plan language and procedures will need to be considered because same-sex spouses have additional rights to federally protected benefits. 

Terminating With Dignity

One of the less enjoyable aspects of my job is having to terminate an employee.  While the decision to terminate may be the best step for the organization, one of HRs goals should be to maintain the employee's dignity throughout the process.  When it is necessary to terminate an employee, here are a few guidelines that I recommend:

1. Consider the timing.  NEVER terminate on a Friday.
2. Always plan out the termination.  Who is terminating the employee and what should be said. 
3. During the termination process, provide the employee with positive feedback about some aspect of their work performance.  They need the kind words!  "Even in the termination based on performance, prompted by the fact that acquired skills were not adequate for a particular situation, the person's assets and liabilities can still be acknowledged," wrote Richard Bayer in Business Horizons.
4. Have an information package available for the employee.  It should contain items such as a termination letter outlining the reasons for the termination (remember to stick to the facts).  Discuss severance, compensation for unused vacation, unemployment compensation, benefits, any type of outplacement assistance, etc.
5. Don't allow yourself to be caught up in the emotions of the termination process.
6. Allow the individual to vent if necessary. After they have vented, allow them a decompression period.  They need to have some control over their departure!
7. Always, always, handle with compassion.

Please remember that each termination decision that is made carries a profound impact on at least one human being's life.  Handle with care.

Working Families Flexibility Act (H.R.1406)

(Not to be confused with the Flexibility For Working Families Act)

Over heavy opposition by the Democrats, a hotly debated bill was passed May 8th by House Republicans that will potentially loosen federal overtime laws.  The bill would amend long-standing labor laws (the 75 year old FLSA) by allowing private-sector employers to offer compensatory time off in lieu of time-and-a-half pay for overtime.  (The protections under FLSA were put in place to prevent employers from abusing the system and avoiding paying overtime to workers who put in more than 40 hours per week.)

The supporters of the bill have pitched it as an update to federal law, with the obligatory fluff that "it's about helping working moms and dads, providing the ability to commit time at home," per Rep. Martha Roby (R-Ala). 

Under the bill, employees may use their comp time only at the employer's convenience.     If a business is necessarily inflexible when it comes to scheduling time off as the business may relay on a small number of employees for an entire function, then comp time may not be a viable alternative.  For the small employer, the concern may be the potential lost productivity and the additional paperwork for tracking comp time accrued and used.

Yes, the bill has put in provisions to protect against abuse, and only offers the workers a chance to opt for the extra time off if that's what they want.  But I side with the Democrats that such an option is ripe for abuse by unscrupulous employers.  The bill is a potential way for extra work to be imposed on workers with no additional cost to the employer. 

Vicki Shabo is the Director of Work and Family Programs of the non-partisan National Partnership for Women and Families.  Her organization is staunchly opposed to H.R. 1406 and sees it as a wolf dressed in sheep's clothing.  "This is a dangerous proposal that pretends to be something that will help working families.  It will take money out of worker's pockets for overtime pay that they otherwise would have received in wages and instead replace it with possibly an empty promise or a mirage of time that's out in front of them that they may never be able to take."

"For the record, there are many ways for Congress to improve both worker pay and work life balance, including raising the minimum wage, instituting paid sick leave, ending discriminatory pay practices, easing the formation of unions and promoting advance notice for worker scheduling,  The House bill ignores what is helpful and embraces what is harmful."  The New York Times, May 10, 2013.

I highly doubt that this bill will go much further. The White House stated in early May that the president would be advised to veto such legislation on the grounds that it would weaken protections in the Fair Labor Standards Act.

Texas to Begin Drug Testing Applicants for Unemployment Benefits

In June, Gov. Rick Perry signed Senate Bill 21 which will require mandatory drug screening as a condition for the receipt of unemployment compensation benefits by certain individuals. 

SB 21 authorizes drug screenings for those receiving unemployment benefits in Texas who work "in an occupation designated by the United States Department of Labor regulations as an occupation that regularly conducts pre-employment drug testing."  A written drug screen assessment will determine the likelihood that an individual is using a substance regulated by the Texas Controlled Substances Act.  If the TWC determines a positive finding, the claimant will have to submit to and pass a state-administered drug test to receive benefits.  The Texas Workforce Commission will develop the program, in line with federal guidelines. 

The law becomes effective September 1.

The Flexibility for Working Families Act (H.R. 2559, S. 1248)

Rep. Carolyn Maloney (D-NY) and Sen. Bob Casey (D-PA) have reintroduced legislation that would provide employees with a statutory right to request flexible work terms and conditions.  "To permit employees to request, and to ensure employers consider requests for, flexible work terms and conditions and for other purposes."  (Govtrack.us)  If passed, the act would authorize an employee to request a change in the terms or conditions of employment relating to: (1) the number of hours the employee is required to work; (2) the times when the employee is required to work or be on call for work; (3) where the employee is required to work; or (4) the amount of notification the employee receives of work schedule assignments.

To be eligible under this bill, an employee would have to work an average of at least 20 hours per week, or at least 1,000 hours per year.  Employers with fewer than 15 employees would be exempt.  The measure additionally contains anti-retaliation provisions.

The act would require:

1. Notification/request from employee to employer.
2. Employer would be required to hold a meeting with the employee to discuss the application.
3. Employer must provide a written decision to the employee regarding the application "within a reasonable period" after the meeting.
4. If the application is rejected, the employer would be required to provide a reason for the denial.  The employer would be permitted to propose an alternative change to the employee's hours, times, place and amount of notification of schedule assignments.
5. If the employee is dissatisfied with the proposal and has a second supervisor, the employee has the right to have the second supervisor reconsider the alternative schedule.

Current status:  The bill has been assigned to a congressional committee as of June 27, 2013. 

FMLA Abuse and Employee Surveillance

An increasingly prevalent area of surveillance that the courts seem to be upholding is the hiring of private investigators to conduct surveillance on employees that are suspected of taking leave dishonestly under the Family Medical Leave Act.  While still a relatively new development, this is one in which the courts are, so far, siding with employers.  With that said, however, this is a very delicate topic as it deals with surveilling employees when they are not at work.  In most cases, there are heavy suspicions of the employee abusing their FMLA leave before any surveillance is conducted, and it is highly encouraged that employers seek legal counsel before considering this option.  (Virginia Business Law Blog)

The FMLA prohibits an employer from interfering with, restraining, or denying the exercise of or the attempt to exercise any right given under FMLA.   And, it is one of the largest employee abuse areas for employers.   One of the bases upon which an employer can defeat an FMLA "interference" claim is obtaining supporting documentation/evidence by the employer that an employee did not, in fact, take leave for a purpose authorized under the FMLA. 

I personally had a case 4 years ago in which an employee was placed on FMLA.  A week later we found out that the employee was moonlighting for another company.  After careful investigation, I found that the employee was performing the same tasks for the second company that the employee was restricted (medical requirements) from performing for us, his primary employer.

Employer surveillance of employees outside the workplace is an extremely touchy subject.  And, there are confusing legal issues to tackle.

In the Seventh Circuit Court decision, Vail v. Raybestos, "employers are allowed to spy on their employees not only when they are suspicious the employee is taking fraudulent leave under the FMLA, but also in any situation where the information gained by surveillance may be used as evidence to support the employer's honest belief the employee is taking fraudulent leave."    Diana Vail received more than 33 days of approved leave for chronic migraines.  The company noticed a pattern in regards to her leave and engaged the services of an off-duty police sergeant to monitor her activities.  The employee was found working for her husbands business during peak times.  The court dismissed her claim for interference stating that the plaintiff must show she took leave "for the intended purpose of the leave."

In Colburn v. Parker Hannifin (1st Cir., 2005), the employee claimed to be too dizzy to drive to work, but was caught working out at the gym while on leave.  The court found that the employer's surveillance did not violate the employees FMLA leave.

Tillman v. Ohio Bell Telephone, (6th Cir., 2011).  This case is note-worthy in that the employer sent the surveillance footage to an outside medical consultant for analysis before it made its employment decision. The consultant issued a report of her findings in which she concluded that, in her professional opinion, Tillman's activities on his days off were inconsistent with the medical restrictions.

When presented with evidence of suspected FMLA abuse, you must first independently investigate the issue before taking any action.  Avoid any conduct that interferes with FMLA.  Validate the accuracy of your suspicion before taking an adverse action against the employee.  Secondly be sure that any surveillance does not go too far and invades the privacy of the employee or the employee family members.

Legal Mistakes by HR (Part 4)

Here's my last, and no less important, potential area of litigation for you.  The performance appraisal conversation.  Managers dread it, employees fear it.  Sometimes the talk is effective, sometimes it isn't.  Unfortunately during the performance evaluation process supervisors may tell little white lies to protect an employees feelings or to avoid a confrontation.   Like our mother's taught us, honesty is always the best policy. 
 
4.  Misleading performance evaluations. Ensure you always document employee performance / behavior problems.   If under-performing employees are not properly rated, you won't have a legal leg to stand on if termination becomes a necessity. You'll be in a courtroom explaining why you gave a positive evaluation to an employee that you later terminated.

If you want to shape behavior, you have to give honest feedback.   If an employee doesn't know that something is wrong, the behavior becomes acceptable.

Legal Mistakes by HR (Part 3)

Employers often mandate pay secrecy restricting employees from discussing wages with their coworkers.  The school of thought being that salary discussions would affect morale and company productivity.   Here's the potential legal mistake:

3.  Mandating confidentiality of wage information.  Remember the National Labor Relations Act?  Under Section 7 of the NLRA, employees may now legally discuss wages in the workplace with limited exceptions.     By maintaining a policy or practice that restricts employee freedom in this regard, an employer violates Section 8(a)(1) of the Act.

Now, here's where the "limited exceptions" comes into play.  Employees are legally allowed to have such discussions, but the law does not require that employers allow employees to do so during assigned work hours.  Caution:  If you prohibit employees from discussing pay during assigned work hours, ensure that you are placing the same prohibition on other conversations that are unrelated to work.  Other limits pertain to the content of discussions (protected information) as well as how the employee came into possession of the information (unauthorized access to employee information), etc.

Review your policies and practices to ensure you're not in violation. 
 

Legal Mistakes by HR (Part 2)

Many employees are unaware that their computers can be monitored without their knowledge. If they have a computer, it's the employer's window into their workspace. Employers should take steps to notify employees that monitoring is taking place. 

2.  Permitting an expectation of electronic privacy.   Remember to advise your employees that there is no expectation of privacy on their company computers.   "With businesses losing billions to computer crime and employees wasting considerable time on their computers looking at sports updates, the latest fashion trends, and even less appropriate websites, business are cracking down by monitoring their employees.  The efforts are to ultimately reduce scams, identity theft, computer crimes, fraud, sexual abuse, piracy, and threats.  As a result, many businesses have resorted to online monitoring of their workplace computers"  (Texas Business Today, Fourth Quarter 2012). 

While the Electronic Communication Privacy Act (1986) comes close to creating a starting point for a legal foundation of what can and cannot be done, legal and ethical debates on electronic monitoring and surveillance in the workplace continue. 

*There may be additional rights for employees in California given specific statutes of that state.

Legal Mistakes by HR (Part 1)

Yes, it happens.  We have a host of responsibilities and every once in awhile, HR can make a mistake.  Oftentimes multi-tasking results in our missing a step in a sequence or forgetting something.  We simply allow something to fall through the cracks.  Over the next couple of days I am going to focus on a handful of mistakes that I see as real landmines.   

1.  Failure to train supervisors.  Unintentional or not, supervisors say or do things that put the entire company on the hook.    A seemingly harmless question during the interview process such as "what church do you attend" or "how old are you" can spark a discrimination lawsuit.   Ignorance may be bliss, but it's not an excuse (or defensible in a court of law).

Ensure supervisors learn how to listen for leave requests that may fall under the FMLA umbrella and trigger FMLA protections. Remember, employees don't have to specifically ask for FMLA.  It is extremely important to train your management staff and front line supervisors on what constitutes notice of FMLA.  Further, the supervisors have an obligation to take action if they suspect an employee has provided notice. 

Why is training so important?  Let's take a look at the discount chain Target for just a moment.   Multi-cultural tips (via a controversial document) recently distributed at one Target location has sparked claims of discrimination by three employees.  The document which Target claims is not part of it's company-wide training program, called “Organization Effectiveness, Employee and Labor Relations Multi-Cultural Tips," was distributed to managers.  The document included subtitled sections like "intercultural differences."  What were the intentions of the managers?  You can only guess.  Here's an excerpt from the document:

1. Food: not everyone eats tacos and burritos
2. Music: not everyone dances to salsa
3. Dress: not everyone wears a sombrero
4. Mexicans (lower education levels, some may be undocumented)
5. Cubans (Political refugees, legal status, higher education level)
6. They may say “OK, OK” and pretend to understand, when they do not, just to save face.

Recognize the potential areas for training within your organization.  One size doesn't fit all so tailor your training needs to your organization. 

New York Surveillance Of "Texting" Drivers

We all know that if an employee uses either your cell phone or theirs and causes an accident while doing business on the cell phone, your company could be held liable for damages.  That's why we have policies prohibiting employees from using cell phones while driving.  You have a policy?  Right?  We also know that different states have different laws regarding cell phone use, extending to texting while driving? Right?   Well New York is now taking some rather unique steps to catch drivers in the act of texting.

Officers are going stealth mode by using undercover state police cars that are designed to sit higher than a normal SUV.  This fleet of slightly elevated SUVs joined the statewide $1 million anti-distracted driving effort designed to crackdown on texting drivers.  Called "Concealed Identity Traffic Enforcement" (CITE) vehicles, they come in a variety of colors and look like any other SUV.

The penalty for texting while driving?  Under the law, new drivers with probationary or junior licenses can have their licenses suspended for 60 days if caught texting while driving.  Those same drivers could have their licenses revoked for up to six months if caught a second time.

Healthcare Reform

The Affordable Health Care Act, a health care law, was passed in 2010.  By 2014 several health reform provisions will come into effect.  Unfortunately, with so many unanswered questions and loopholes, healthcare reform continues to confuse and bewilder employers.  Hopefully the below will provide some guidance.

For fully insured employers with 51+ employees, 2012-2013 health reform provisions include:

1. Limit employee contributions to FSAs.  Starting in 2013, employee salary reduction contributions to health FSA's will be limited to $2,500 per plan year, with indexed increases allowed in future years to adjust for inflation.
2. Employers who file 250 or more employee W-2 forms will be required to report the cost of employee's health benefit coverage on the employee's 2012 W-2 forms that are distributed in January 2013.   This requirement is informational only and does not mean that employees will be taxed on these dollars.
3. Provide written notice about Health Benefit Exchanges (Exchanges).  In late summer or fall (future guidance is expected on complying with this notice requirement), employers must provide written notice to current employees, and going forward, new employees, to inform them of the Exchanges and the circumstances under which they may be eligible for health insurance subsidies.
4. Assess health plan offerings.  Employers should begin assessing their health plan offerings to determine whether they meet the minimum value requirements that will become effective in 2014.  If plans do not meet the requirements, employers will need to explore alternative plan options/or the impact of paying assessments.
5. Requirements for providing the Summary of Benefits and Coverage (SBC) to your employees.  On or after September 23, 2012, group health plans and health insurance issuers offering group or individual health insurance coverage are required to provide an SBC that accurately describes the benefit and coverage under the applicable plan or coverage. The final regulations require that the SBC be provided in several instances (upon application, by the first day of coverage if there are any changes, special enrollees, upon renewal, upon request and off-renewal changes.)

2014 Health Reform Provisions.  Although the below provisions will not become effective until 2014, it is important for employers to know what is coming and what action is required!

1. Offer Minimum Essential Coverage (MEC).  Employers will want to consider whether they need to make changes to the cost and quality of the coverage offered to avoid penalties that will apply if that coverage is considered unaffordable or low in value.  Beginning in 2014, employers with 50-plus full-time employees may be subject to a penalty if an employee receives a premium credit or cost-sharing subsidy. The penalty is calculated as follows:
1. Employers not offering coverage.  If an employer does not offer MEC and one or more full-time employees receive a premium credit or cost-sharing subsidy through the Exchange, the penalty is $2,000 per year per full-time worker.  When calculating the penalty, the first 30 full-time workers are subtracted from the payment calculation.
2. Employers Offering Coverage:  If an employer offers MEC and one or more full-time employee receives a premium credit or cost-sharing subsidy through the Exchange, the penalty is $3,000 per employee who receives a premium credit or cost sharing subsidy.
2. An employer-sponsored plan that satisfies the ACA's reform requirements must:
1. Be affordable to the employee (premium must not exceed 9.5 percent of household income.  The IRS, however, has issued a safe-harbor allowing employers to substitute the employee's W-2 income for household income).
2. Provide minimum value, which is at least 60% of the total allowed cost of benefits.

Global Mobility and Crisis Planning

One of the most devastating things that can happen to a family is the unexpected death of a loved one.   You can't plan for it, death tends to come as a surprise.  And when the death occurs overseas the experience is even more traumatic.  The cultural and legal aspects of death and dying are varied across the globe.  Local customs, laws and procedures may not be clearly understood, creating barriers during an already trying time.

While we don't like to talk about the subject of death abroad, and I don't wish to be morbid, we must plan for every possible scenario.   Develop an Emergency Response Plan detailing steps to be followed addressing the death of an employee or any other crisis event such as a disappearance.  When building a plan, consider the following:

Disappearance:

1. Gather information (when/where last seen?  Last contact?  How traveling?  Was s/he seen with someone?  What search efforts have been initiated?)
2. Advise the U.S. State department.

Death:

1. Begin an event log, gathering background information and report crisis developments and responses.
2. Confirm status through local agencies (police, hospital, consulate)
3. Establish communication with family.
4. Seek assistance from U.S. Embassy/Consulate.
5. Contact local police and/or other law enforcement authorities in the country.
6. Coordinate the repatriation of remains. 

On the domestic front we plan for emergencies such as floods and tornadoes.  We follow OSHA guidelines in the workplace for the safety and protection of our employees.  Companies doing business on a global level should review their travel policies and ensure that a protocol has been established for dealing with the illness, injury and/or death of an employee. Ensure that it addresses the medical evacuation and/or shipping of the remains. 

NLRA

Let's talk NLRA for a moment.  There appears to be some lingering confusion.

The federal National Labor Relations Act governs the rights and responsibilities of unions and private employers.  Excluded, with some exceptions, are public employees, independent contractors, employees of Federal, state or local government, etc. 

An employee doesn't have to be a member of a union to be protected under the NLRA as it protects the rights of employees to engage in "concerted activity."   "Concerted activity" takes place when two or more employees take action for their "mutual aid or protection regarding terms and conditions of employment."  This protection can extend to work-related conversations conducted on social media such as Facebook and Twitter.

Many employers prohibit employees discussing compensation or wage levels in the workplace, often communicating that such information is confidential.  These same employers would be surprised to learn that this policy or practice would violate federal labor law.    The National Labor Relations Act contains a provision, Section 7 (29 U.S.C. § 157), that gives all employees the right to "engage in concerted activities", including the right to discuss their terms and conditions of employment with each other. Section 8(a)(1) of the NLRA (29 U.S.C. § 158(a)(1)) makes it an unfair labor practice for an employer to deny or limit the Section 7 rights of employees. Based upon those two provisions, the National Labor Relations Board (NLRB) has taken the position for decades now that employers may not prohibit employees from discussing their pay and benefits, and that any attempts to do so actually violate the NLRA.

A couple of tips:

1. You can't prohibit employees from discussing compensation or benefits, but you can prohibit them from holding such discussions during assigned work hours.
2. Clearly communicate that employees are protected in discussing their own pay as well as pay and benefits of secondary employees if information was obtained through ordinary conversation with the second party. 
3. If information was accessed in a manner that was restricted, such as access to confidential files or other off-limit information, the company can take steps to uphold confidentiality.

Exel and EEOC

An Atlanta jury awarded $500,000 ($25,000 in compensatory damages and $475,000 in punitive damages) in a sex discrimination suit against Exel, Inc., a Westerville, Ohio-based warehouse and distribution company.

According to the EEOC's suit filed in U.S. District Court of the Northern District of Georgia, Excel, Inc. violated Title VII of the Civil Rights Act of 1964 by refusing to promote a female, Contrice Travis, to an inventory supervisor position in 2008.

During the course of the trial, the EEOC presented evidence that:

1. Male employees were routinely promoted after verbally requesting consideration from open positions while Travis, who was indisputably recognized as the most knowledgeable in inventory control, was denied the inventory supervisor position.
2. Travis's former supervisor testified that when he recommended Travis for the position, the general manager informed him that he would never put a woman in that position.
3. Travis was told that the inventory supervisor position would not be filled.
4. The male selected for the position was told by management and a human resources official that the position would be filled, but that he would be selected only if he kept it a secret.
5. The selectee, Michel Pooler, required training by Travis because he had no inventory experience.

This isn't the first, or last,  potential violation by Exel.

On April 9th of this year, The Columbus chapter of the Council on American-Islamic Relations filed a federal employment discrimination lawsuit.  The plaintiff, Yusuf Sufi, was fired by Exel in May, 2012.   The federal complaint states that Sufi repeatedly asked Exel to provide him with an accommodation under which he could attend his Friday afternoon prayer services.   His employment was ultimately terminated by Exel in May 2012 when he asked for the accommodation a second time.  (It appears that Exel missed the memo.  Both state and federal law requires employers to accommodate the religious practices of their employees unless it creates an undue burden on the company.)

"This is not the first time Exel has discriminated against employees when they have asked for religious accommodation. Our office filed 18 charges of discrimination with the EEOC last month relating to the denial of religious accommodation for Muslim employees who worked at the same facility at which Mr. Sufi worked," said CAIR-Ohio Legal Director Jennifer Nimer. "This pattern of discriminatory behavior continues to be a problem at Exel." 

A massive review and overhaul of Exel's practices, policies, training and personnel needs to occur.   Both management and human resources have failed on a massive level.  Human resources is there to protect employee rights and employer rights.   In the case of Ms. Travis, HR took the side of the wrongdoer and supported a discriminatory selection process.  Human Resources didn't take steps to eliminate discrimination or reduce company liability in either case.

Pending Legislation in Texas

Below is a small sampling of employment-related legislation filed in the Texas Legislature.   If passed and signed into law, these will have a tremendous impact on Texas employers.

HB238/SB237
Prohibition of employment discrimination on the basis of sexual orientation or gender identity or expression.

HB321
Deferred adjudication may not be used as a factor in employment decisions, housing or issuance of state licenses.

HB667
Puts leave for foster children on same basis as leave for biological or adopted children.

HB950
Incorporates federal law in the Lily Ledbetter Fair Pay Act of 2009.

HB1829
Relating to safe patient handling and movement practices at hospitals and nursing homes.  No retaliation or discrimination toward staff members who refuse to participate in unsafe handling of patients.

HB1188
Relating to limiting the liability of persons who employ persons with criminal convictions.  Tightens up on standards for proving negligent hiring and supervision of employees with prior convictions.

HB494/SB741
Extends to two years the time limit for filing a wage claim with Texas Workforce Commission.

SB340
If TWC finds bad faith on employer's part for failure to pay wages, it "shall" impose a penalty (instead of "may").

Happy Birthday to the Equal Pay Act

50 years ago today the Equal Pay Act was signed by President John F. Kennedy.  While equal pay is the law, the nation still faces gender wage disparities.  In 2012, women generally earned 77 percent of men's wages.  For African-American and Latina women, the number is even lower.    We have made progress, but it's not enough.

The Equal Pay Act requires that men and women in the same workplace be given equal pay for equal work.  The jobs need not be identical, but they must be substantially equal.  Remember that job descriptions and titles are irrelevant. 

On the front line of this battle is the EEOC who has made enforcing equal pay laws one of its six priorities as outlined in the Strategic Enforcement Plan.

Mother-Friendly Employers

While driving home I heard a radio commercial advertising Mother-Friendly Employers here in Texas.  We've come a long way.  Who would have thought that companies would advertise their support of breastfeeding in the workplace?  Or that a work-site might obtain "Mother-Friendly" designation?

The Texas House of Representatives passed HB 741 in early May.  HB 741 requires public employers, school districts, cities, counties and state agencies, to accommodate employees who need to express breast milk at the work place.  Under current law, working mothers who are hourly employees have federal protections in place for when they need to express milk in the workplace.  (The Federal Health Care Reform Bill, signed in March 2010, contained an amendment to the FLSA requiring employers to give breaks for nursing.)  However, salaried employees have no protections in state or federal law.  House Bill 741 seeks to close this loophole.

Insubordination

We have all heard the term "insubordination," an employee's willful disregard for a supervisor's direct orders.  But what does insubordination really mean?  How do you determine whether insubordination has occurred and what should you do about it?  Simply complaining about an assignment does not constitute insubordination. 

Insubordination can be active or passive.  Active insubordination may be the refusal to do something, challenging the directive, confrontational behavior, the use of abusive language or even physical violence.  Passive insubordination may be exhibited by the employee's willing failure to complete a task. 

To prove insubordination you must establish three important elements:

1. It has to be recognized as a direct order. 
2. The employee received and understood the order.
3. The employee refused to obey the order through an explicit statement of refusal or through nonperformance.  

A few words of caution.  Before any claims of insubordination are raised, take a moment to:

1. Assess how the order was issued.  It can't be a suggestion.  Whether verbal or written, did it clearly communicate the who, where, what and when? 
2. To establish insubordination, the order must relate to work being performed.  Always validate that the order was reasonable.
3. Could other factors influence the employee's actions?  Perhaps the employee did not willfully intend to disobey.  Does the employee have a pattern of unacceptable behavior?
4. An employee has the right to refuse an order if they are being asked to do something illegal or dangerous, or in violation of a published safety rule. 
5. The employee must be told that failure to perform the task/assignment is grounds for disciplinary action on the basis of insubordination.
6. Allow employee adequate time to comply with order before discipline is imposed.  You can't ask an employee to complete a 2 hour task in 30 minutes.

Abusive language by employees towards supervisors can also be considered insubordination.  However, you must always consider the context in which the incident occurred.  To confirm that an employee was engaged in insubordination, the abusive language:

1. Was not provoked by the manager.
2. Occurred in the presence of other employees or customers.
3. Was not an example of "shop talk" in the workplace.

While our first reaction to insubordination may be to fire the employee immediately, allow a cooling off period.  Take the time to review your disciplinary policy. Review the employee's past history. Carefully consider all the facts, all the actions, prior to punishing the employee.   On occasion employee insubordination can be attributed to a breakdown in communication.   While termination may still be the correct course of action, you'll have all your facts in place.   
 

Is Your Office Hazardous To Your Health?

The personal injury law firm of Brent & Adams Associates released a list of the most common worker's comp-worth maladies:

• Repetitive stress injuries, such as carpal tunnel syndrome
• Lifting injuries
• Slip and fall injuries
• Injuries resulting from tripping on stairs or loose carpeting.
• Deep-vein thrombosis, caused by prolonged sitting.
• Strains from bending or falling out of unstable desk chairs.

Who knew that working in an office environment could be so hazardous? 

When people think of occupational safety and health needs, they picture dangers around constructions sites or factories.  However, office workers face many unique challenges to their safety and health.  As an employer you should provide your employees with training and education to improve their workplace safety and health.  Need a resource?  Look to OSHA for guidance.

Summer Workers

CareerBuilder's annual Summer Job Forecast shows that the summer's hiring expectations reflect a continued improvement over the years immediately following the recession.  Nearly three in 10 employers report plans to hire seasonal workers.  That's an increase from an average of 21% (2008 - 2011) to 29%.

Most likely to hire seasonal workers:

• 47% leisure and hospitality
• 34% manufacturing
• 34% IT
• 33% retail

Employee Absenteeism

When I mention measuring employee absenteeism the first thing that comes to your mind is firing employees because they missed too many days at work.  Right?  Well, maybe it shouldn't.  You can measure absenteeism for many purposes including workforce planning, lost wages and reduced productivity.  But can you also use it to measure employee morale?

Employee absenteeism is a major concern for employers.  Yes, there is oftentimes a sense of entitlement in the workplace that it's okay to be absent.   And where there is an excessive pattern, or a trend in the days the employee is absent, then it is time to take action. But, we also need to acknowledge that people get sick.  In those situations where you perceive a pattern of excessive absenteeism is developing, I highly recommend a discussion with the employee in order to determine if there is a potential FMLA, ADA issue to be addressed.

Absenteeism can be due to a variety of reasons.  If an employee is stressed about their workload, this may manifest itself through absenteeism.  Stress with the job routine and/or job satisfaction, the environment (cold, hot, noise) even with management (style, personality traits).  If stress is a factor, you need to discuss strategies to resolve the stressor.  If one employee is experiencing stress, perhaps others are as well.  We all have more to do and less time to do it in today's business environment.

In those instances where there appears to be an unacceptable level of absenteeism:

1. Meet with the employee.
2. Express your concern.
3. Provide the employee with an opportunity to explain themselves.

Some random statistics for you:

According to a 2012 global workforce survey, "highly engaged employees have lower 'presenteeism' (lost productivity at work) and less absenteeism than disengaged employees. The former lose an average of 7.6 days per year to presenteeism, compared with an average 14.1 days for the disengaged employees....

According to a 2010 Metlife report, "employees with eldercare responsibilities were more likely to report missed days of work. This was driven by the much higher absenteeism among younger caregiving employees, ages 18 to 39. Overall, 9% of non-caregivers missed at least one day of work over the past...

According to a 2009 survey by the National Alliance for Caregiving, "over seven in ten caregivers were employed at some time when they were caregiving (73%). Among them, two-thirds (66%) have gone in late, left early, or taken time off during the day to deal with caregiving issues (66%). One in five...

Territorial Behavior in Employees

When we were children we were taught to share our toys.  Through sharing we learned patience (waiting our turn), problem solving (who gets to play with what) and social skills (discussing and reaching solutions). 

Now, let's fast-forward a few years into the work environment where one of the most important assets any organization has is the combined knowledge and expertise of its employees.  "Combined knowledge" would infer that information is shared in the workplace.  Where information is not shared, information silos develop having a profound effect on your ability to develop a cooperative work environment.

So, why do some employees guard information so carefully?    On a very basic level, its job security.    If knowledge is power, sharing knowledge is a loss of power.  Company information is seen as intellectual property for the individual. Territorial employees control the flow of information in an effort to make themselves irreplaceable.    If the employee feels threatened, he/she may become territorial and retain information or information is meted out in meager portions.  Be observant.  Territorial behavior isn't restricted to only employees.  It can be observed between managers and even departments. 

End your turf wars.   Work with your employees to foster an environment of sharing. 

Safeguard the Front Door

Great title, right?  In response to my recent blog on Candidate References, an associate forwarded an article to me for my reading pleasure.  While I can't identify who wrote it or when, I felt I needed to share a portion of it.  He/she did a fabulous job in writing this.  So, here goes .. .

"Rule one in minimizing risky behavior is to prevent questionable job candidates from ever becoming employees.  It isn't enough to study resumes closely; studies have shown that over 50% of them contain inaccuracies.  Basic controls include employment and background checks.  As a recent example, a simple background check would have saved the Yahoo board the trouble of ousting Scott Thompson, the company's fourth CEO in five years, because he falsely claimed a computer science degree.  A growing number of companies conduct behavioral and honesty testing to screen employees."

Paperwork people.  It's all about paperwork. 

Managing with Questions

How do you show your employees that their opinions matter?  Ask questions.  It's as simple as that.  Questions such as:

• What made you mad today?
• What took too long?
• What caused complaints today?
• What was misunderstood today?
• What cost too much?
• What was wasted?
  What was too complicated?
• What was just plain silly?
• What job involved too many people?
• What job involved too many actions?

Communicating with your employees will improve organization communication.  I know that you're tired of me saying that any organizations greatest resource is its people.  But there, I said it again!  Remember, employees feel appreciated and valued when they are listened to!

Candidate References

Checking references is critical in the decision making process and oftentimes will assist the employer in cutting down on selection errors.  While applicants may distort their employment history and accomplishments, reference checking will allow you to assess the accuracy of their claims.   Most importantly, it will allow you to assess if the candidate can do what s/he claims to be able to do.  Be clear with candidates from the beginning that you will be checking references. (Bear in mind that some employers have internal policies restricting the amount of information provided, oftentimes limiting the information to dates of employment and role within the organization.) 

Create a standardized process for checking references.  Ask questions pertaining to the candidates previous position.  What responsibilities did s/he have?  Discuss the responsibilities of the new position and if the reference feels the candidate could effectively fill the role.  Were there attendance issues?  Is the candidate a team player?   Would the reference rehire the candidate?   In what capacity was the reference associated with the candidate?  Most importantly, should you hire the candidate?  Avoid any inappropriate questions relating to health problems, disabilities, children, child care arrangements, etc.  (For the professional level employee, refine your reference process to encompass topics such as leadership, employee relations, oral and written communication, managerial skills and decision making, just to name a few.)

 

Remember, a candidate's past performance can be used as a predictor of future performance.   Increase your success rate in the employment selection process by conducting thorough reference checks. 

 

To avoid any questions regarding your hiring methods, ensure you maintain detailed records of your reference checking activities.  These may be helpful should you run into a negligent hiring claim later.

New Employment Eligibilty Verification Form I-9

On March 8, 2013 the U.S. Citizenship and Immigration Services (USCIS) released a revised Form I-9.  Employers are encouraged to begin using the revised form immediately.  However, since some employers may need to update internal processes, USCIS is allowing 60 days from March 8, 2013, during which time employers can continue to use prior versions.  Beginning May 7, 2013 only the new Form I-9, with the revision date of March 8, 2013, may be used.

The new Form I-9 can be found on the USCIS website at www.uscis.gov under the Forms tab.

What 9/11 Taught Me

During the height of the 9/11 attacks, my then supervisor/president contacted me from the other side of the world.  His three words to me, "find our people."  An international company, we had people that traveled 80%+ of the time and their safety was always of significant importance to us.  At that time, traveling on the domestic front, we had people in New York, North Carolina and Massachusetts. 

 

As an employer, we are responsible for the safety of a traveling employee.  Employees who travel for international business are exposed to risks above and beyond those experienced in domestic travel.   (In a USA April, 2012 report, in 2011 International SOS and its partner, Control Risks, evacuated more people - 3,052 - for security reasons than the U.S. State Department. The two firms evacuated 1,500 people from Libya, 1,250 from Egypt, 149 from Tunisia, 127 from Bahrain and 26 from Japan. The State Department says it assisted more than 2,800 who evacuated foreign countries in 2011 and 16,700 in 2010. The State Department, which charges for its evacuations, says it charters transportation when commercial transportation isn't available but "encourages people to prepare their own plans to depart unstable or dangerous situations.")

When your employees travel, do you know where they all are?  Do you have their schedules?  Do you have a way to locate them?  Do you have a way to contact them?  While we cannot eliminate all the risks, there are steps we can take to ensure the safety of our employees when they travel: 

1. Ensure you have a copy of the employees travel itinerary so that you can monitor his/her progress.  Have their meeting schedule and all appropriate contact information.
2. For international travel, have the employee contact the US Embassy at their location.
3. Arrange for periodic check-ins on a regular basis.  If the employee fails to call in, this is a prompt for you to follow up.
4. Maintain a travel roster outlining employee travel schedules and contact information.  Ensure that contact times/dates are tracked.
5. Alternatively, have a dedicated travel website where the employee can advise of their safe arrival at the destination as well as allow for daily self-report.  The same website can provide employees with updated alerts/safety information.   It can generate alerts to the employer of missing self-reports, or travel rosters for all company employees.

What did the events of 9/11 teach me?   My lesson was that it's all about communication.  At a time when I needed to quickly ascertain the location of traveling employees, processes I had put in place served their purpose. 

Communication: A Recipe for Success

Earlier this week I met with an employee who had reached a high level of frustration with his supervisor.  A very quiet and reserved individual, this employee is extremely career-driven and a perfectionist.   His frustration surrounded a recent project that the supervisor had returned with instructions that the paper looked bad and to change it. The supervisor offered no specifics as to what looked bad or what changes were desired, just to get the job done.  From the employees perspective, there was no understanding of what needed to occur or why.  From our conversation I gathered that this wasn't an isolated incident.

 

Communication is the act of passing on ideas and information. To increase productivity, the message must be clear and complete. It has to provide the receiver with everything they need to take action, it must provide the key points. The advantage of clear communication is that people will understand your message.   It will allow employees to collaborate effectively and complete a task efficiently.   The employee won't spent precious time figuring out what you're trying to tell them. Clear communication requires us to be direct.

 

For employees, when frustration rises in the workplace often there is no sanctioned place to discuss (or vent) those frustrations.   Employees may not disclose that they are frustrated or are concerned that their frustration may fall on unreceptive ears.    These employees may show a reduction in motivation, and in the worst case scenario, leave in search of greener pastures.   HR should encourage open communication and feedback.  We should acknowledge the employees concerns and take steps to diffuse the employee frustration.  Always listen to the employee and then categorize the problem - can it be remedied?  Ask the employee, what needs to be better?  Allow the employee to make recommendations.   In this situation my recommendation was to sit down with the supervisor, discuss not just this project, but the on-going communication difficulties and figure out a goal to overcome the problem.  If resolution can't be reached, HR is always ready to step in and assist.

Communication is an essential part of any successful business.  Remember, to get your message across, use clear communication.

Policies: Do the Employees Get It?

Earlier today I had a long-tenured employee ask “What are the procedures for documenting sick leave?”  “ .. . . I realize it is documented someplace but I’m not sure where and I thought you would know it off “the top of your head” saving me the trouble of finding it.”    I smiled.  This document in question is located in both the employee handbook as well as a standalone policy on the HR portal.

Companies devote substantial time and resources in developing policies.  Once policies are developed we roll them out in meetings, post them, put them on the company intranet, distribute them via email, and/or hard copy distribution.   We obtain the signed acknowledgement as proof that the employee received and is aware of the policy - thereby negating any future claims from the employee that s/he "didn't know."   But no matter how or how often policies are communicated, sometimes it seems the company falls short in the communication of the policy.  Are the policies then wasted?  No, but perhaps we need to better understand our audience.  How are our employees receiving the information we are communicating?  Words must always be carefully chosen; nuances must be considered. 

My recommendation, schedule assessments of your company policies at regular intervals. This will allow you to assess the employee understanding of the policies and to obtain feedback.

Yes, you will still have the rare employee who finds it easier to ask HR than look something up.  But, after all, that's why we're here!

Update: Affordable Care Act

Federal Government Releases Proposed Rule on 90-day Waiting Period

On March 18, the federal government issued a proposed rule on the 90-day waiting period that would implement the 90-day waiting period limitation and make technical amendments to the Affordable Care Act's (ACA) health care coverage requirements.

Under the proposed rule, for plan years beginning on or after Jan. 1, 2014, employers that provide a group health plan or health insurance issuer offering group health insurance coverage cannot require an otherwise eligible employee (or dependent) to wait more than 90 days before coverage becomes effective.

The proposed rule also clarifies that any period before a late or special enrollment by an employee is not a waiting period.  The proposed conforming amendments make changes to existing requirements and other portability provisions that are either no longer applicable or need to be changed because of new market reform protections under ACA.

The proposed rule will be published in the Federal Register today, March 21st.  Comments will be due 60 days after publication.

Workplace Violence

"Workplace violence is now recognized as a specific category of violent crime. . . "  FBI, Workplace Violence, Issues in Response.

 

It is believed that 2 million American workers are victims of workplace violence each year.  2012 statistics reflect that nearly 1 out of 5 occupational fatalities is attributed to workplace violence.  In 2011, 780 fatalities (attributed to violence) occured with men making up the majority of fatal workplace injuries.   Media coverage has a tendancy to create an impression that workplace violence is more widespread than it is.  While incidents of workplace violence are serious, the rates of workplace violence have dropped sharply since the mid-90s.

 

Whether harassment or intimidation, the threat of physical violence or other threatening behavior, the prevention of workplace violence is a major concern for employers and employees.  Employers should train managers and supervisors to recognize the warning signs of potential workplace violence. 

 

Here's a couple of basic steps you can take:

1. Communicate, Communicate, Communicate.  Ensure that the employee has an outlet for frustration.  Allow the employee to vent.  If your organization offers an Employee Assistance Program, ensure employees are aware of it and can use it as needed.
2. Assess your business climate.  Be aware of what's going on in your workplace. Pay attention to unusual changes in employee behavior. Has there been any recent events which could increase the sensitivity of an employee?   (Devil's Advocate here.  A couple of questions.  Do you know the spouse's names of your employees?  How many children they have, their names?  Are they going through a divorce or other life trauma?  If you can't answer these questions, you don't know your employees.  If you don't know your employees, how can you tell if there is something wrong?)
3. Prevention.  Employees spend the majority of their lives in the workplace.  Disagreements are always going to happen, how you handle those disagreements is key.  Potential aggressors can be identified - just look for the warning signs. Warning signs can include strange behavior such as the employee becoming reclusive, erratic behavior, deteriorating appearance.  Other observable warning signs can be emotional problems and/or performance problems.

The 2012 documentary, Murder by Proxy: How America Went Postal, is framed around the USPS shootings that took place in the 80s and 90s. I found the documentary interesting as a provided the perspective of a postal carrier who survived a shooting in 1991 (Royal Oak, Michigan) and his ongoing efforts to urge lawmakers to pass legislation designed to curb workplace employee "abuse."  Not just a film about mass murders, the documentary addresses some of the underlying issues within the workforce that drove individuals to begin killing at random.   

 

In the closing minutes of the documentary, possibilities other than mass workplace shootings are considered.   James Alan Fox, Ph.D., Lipman Professor of Criminal Justice at Northeastern University, states; "Sabotage could be even more deadly and a greater risk to safety than bringing a gun to work." "It could be poisoning products, creating environmental contaminants. . . "  (September 1982 seven people in the Chicago area were killed by Tylenol capsules laced with potassium cyanide.  I don't believe this case was ever solved, so I can proffer the scenario that this could have been the work of a disgruntled employee. )

 

The bottom line? Workplace violence needs to be proactively dealt with.   We can't completely eliminate it, but we can mitigate risk for violence by educating and training our managers, supervisors and employees.

Religious Accommodation

Good Friday is right around the corner.  That day will always serve as a reminder to me of the event forever referred to as The Employee Mutiny of 2011.  In 2011, I upset a few employees by converting the Good Friday Holiday to a floating holiday.  Yes, change is difficult, no matter how small the change.  But with proper communication the employees came to understand that they didn't lose the day, it was just handled a bit differently. 

 

Religious discrimination by employers is expressly prohibited by Title VII of the Civil Rights Act of 1964. Although employers don't have to satisfy an employee's every desire in accommodating his/her religious beliefs, employers are required to make "reasonable accommodations." The most common such accommodation is granting an employee time off to observe a religious holiday.

 

My goal in converting this to a floating holiday was to allow other employees, with different religious beliefs, to have a holiday for their use.  As any organization grows, you want to be able to recognize all religions.  (Another basic step is to modify the vacation/PTO policy to reflect the use of available vacation time for religious holidays not normally recognized by the company.)

 

We live in a beautiful and diverse world!  There's Christmas, Hanukkah, Kwanzaa, the feasts for Santeria.  We have Hindu holidays, Muslim holidays and even Pagan holidays.  Employers and HR professionals all struggle with how to celebrate them, how to recognize the diversity of these religious beliefs and practices.  With care, communication and understanding, the process is easy!

 

Exit Interviews

Exit interviews get a bad rap.  Some people think they have value to the organization, others don't.   I read an article once by a headhunter who stated that "exit interviews fascinate me like cockroaches do."  His explanation was that no one knows why they exist, can justify or eliminate them and are likely to continue to survive.

Cockroaches aside, exit interviews are intended to help the company understand the full scope of reasons behind a voluntary separation.    With this information, an organization can determine and implement strategies to increase retention and reduce turnover.   If effectively structured, an exit interview will provide information that will:

1. gauge the effectiveness of current employment and business practices;
2. identify problems that contribute to turnover;  
3. manage employee expectations; and,
4. allow for the proper incorporation of new employees into the organization.

 In structuring an exit interview program the employer must decide:

1. Who:  Voluntary resignations?  Involuntary Resignations?  Or all departing employees?  (Not all turnover is undesirable.  As an employer you should be strongly interested as to why a valued employee quit.)
2. When:  Before or after the employees scheduled departure date?
3. How:  Face to face?  Questionnaire?  Third party platform?
4. Participation:  Mandatory or Voluntary?

One final recommendation, if you have an exit interview program develop a list of standard and open ended questions for all employees.  Ensure that no privacy rights (health related issues) are violated.  And most important, listen rather than talk. 

Confidential Data at Risk

In May of last year I blogged about data leaving company networks through non-secure mobile devices  ("Data Breach").  A hot topic, companies are increasingly concerned about losing trade secrets and proprietary information to competitors and thereby loosing competitive advantage. 

 

Conducted by Ponemon Institute in October 2012 and just released is Symantec's survey What's Yours is Mine: How Employees are Putting Your Intellectual Property at Risk.    Survey results reflect that half of employees who left or lost jobs in the last 12 months kept confidential data, 40% planning to use that data in their new jobs.    Only 38% of employees surveyed said their manager views data protection as a business priority, and 51% think it is acceptable to take corporate data because their company does not strictly enforce policies.  More and more we see that employees' attitudes and beliefs about intellectual property (IP) theft are at odds with the vast majority of company policies.

Survey highlights: 

1. 62% respondents:  Feel it is acceptable to transfer work documents to personal computers, tablets, smartphones or online file sharing applications.  The majority never delete the data they've moved because they see no harm in retaining the information.
2. 44% respondents:  Feel that a software developer who develops source code for a company has some ownership in his or her work and inventions.  42% respondents do not feel it is a crime to reuse the source code, without permission, for other companies.

As technology continues to evolve, organizations face the growing challenge of protecting stored sensitive data from unauthorized exposure. Surprisingly, most companies do not address the danger of stealing electronic information through the use of smartphones such as iPhone, Android or Blackberry.  Symantec ". . . once mostly forbidden by IT, smartphones are now being used by hundreds of millions of employees throughout the world to access corporation information. . . ." 

 

To protect and prevent against the loss of proprietary information, companies may implement the following:

1. Well communicated and enforced Confidentiality and Non-Disclosure Agreements
2. Data Protection Policies that monitor access and use of confidential data
3. Separation Agreements
4. BYOD (Bring Your Own Device) Policy

Most importantly, educate your managers and employees!

The Importance of Training Managers

What is the cost to an employer when a manager doesn't recognize s/he is acting in a discriminatory manner?   Some managers don't seem to understand what discrimination means, or oftentimes how to recognize it.  Discrimination, and the cost of discrimination, is a problem that companies just can't ignore.

In an EEOC Press release of 1/23/2013 the Dallas-based Fries Restaurant Management will pay a former employee $25,000 to settle a religious discrimination lawsuit.  The employee, Ashanti McShan, is a member of the Christian Pentecostal Church which requires women to wear either skirts or dresses.  During the interview process with Burger King, Ashanti requested a religious accommodation to wear a black skirt versus the black uniform pants.  She was told by the interviewing manager that her accommodation would be granted.  However, during her orientation the store manager advised her she could not wear a skirt and had to leave the store.  McShan attempted to contact higher management, and was unable to speak with anyone.  She was later discharged as a result of the accommodation denial.   Title VII of the Civil Rights Act of 1964 prohibits religious discrimination.  It requires employers to make reasonable accommodation as long as such does not pose an undue hardship on the organization.   

Florida Courts:  In Hurley v. Kent of Naples, on or about 2005, Patrick Hurley was diagnosed with depression and related mental health symptoms.  The doctor who provided the diagnosis, and the therapist, both advised that he should take medical leave.   The employee advised the company senior officer that he had been diagnosed with depression and needed time off to deal with it.  Having accumulated several weeks of vacation, the employee requested to take most of the year off on vacation.   His request was denied and he was terminated.  Obviously an FMLA suit, alleging interference with FMLA rights and retaliation, followed and Hurley won.  (FMLA entitles eligible employees to take unpaid, job-protected leave for certain family and medical reasons.)    The estimated judgement:

• $200,000 for actual monetary losses
• $353,901.85 for front pay
• $200,000 liquidated damages
• $233,109.75 for attorneys' fees
• $21,329.36 for "costs."

Texas courts: In an EEOC press release of December 18, 2012, Dillard's will pay $2 million to settle a class action disability discrimination lawsuit. Dillard's Inc, enforced a maximum-leave policy limiting the amount of health-related leave an employee could take. Additionally, since 2005, Dillard's had a national policy and practice that required employees to disclose the exact nature of their medical conditions to be approved for sick leave. Further, Dillard's terminated a class of employees nationwide for taking sick leave beyond the maximum amount of time allowed. This policy violated the ADA which prohibits employers from making inquiries into the disabilities of employee's unless it is job-related and necessary for the conduct of business.  The second violation was that managers/supervisors (or even HR) did not regularly engage in an interactive process with employees to determine if more leave was allowed under the ADA as an accommodation.  (More information is available on the EEOC website.)  While you can't blame the managers for this company-wide form of discrimination, logically HR should have identified the violation and pushed for policy reform.  But, who's to say that they didn't?

When discharging an employee who just revealed the need to take time off for a medical condition, use caution. Make sure the discharge reason is unrelated to the request.  Remember, firing an employee who is pregnant has legal risk.  Firing an employee because she is pregnant is illegal.

Employers can take steps to prevent discrimination claims by ensuring that all managers are properly trained.  Please invest in training your managers. 

"The best way to begin is to begin." 
                        - Benjamin Franklin.

Equity in Pay, In the Animal Kingdom?

What makes us human?  What separates us from other primates?  Scientifically, we have similar anatomy and yes, behavior. Sometimes traits that we view as uniquely human are anything but.   As with humans, within primate groups there is always a pecking order.  A primate is either dominant or submissive which has a direct relationship to ranking in the group.  Access to food, feeding competition mates, etc., is also dependent on ranking. 

What happens in a clinical environment when a Capuchin monkey is asked to do the same job as a second Capuchin, but for different pay?  It appears that we humans are not as unique as we think we are.   It turns out that primate behavior reflects some of the same traits as it does for us humans.  Monkeys reject unequal pay too!

A Capuchin was asked to give a rock to a researcher in exchange for a treat.  The Capuchin complies and receives a cucumber in return.  Initially the Capuchin is perfectly happy with the treat and continues to participate in the test.  But then the Capuchin observes a second Capuchin receiving a grape, a far more attractive reward, for performing the same job.  When confronted with this unequal pay for equal work, the monkey becomes outraged!  Now we have a clear indication of how monkeys respond to concepts of unfairness!

The link is here if you want to laugh.  The UpWorthy.  "2 Monkeys Were Paid Unequally; See What Happens Next."

http://www.upworthy.com/2-monkeys-were-paid-unequally-see-what-happens-next

Tortious Interference?

Employee John Doe has been working for XYZ  for two years, being recognized as nothing more than one of the many cogs in the wheel.    As a result of John's role within the company, he frequently comes into contact with a large number of company clients.  Then one day, something extraordinary happens. One client, Acme, realizes that John is a rising star!  After ensuring that no non-solicitation is being violated with XYZ, Acme extends an offer of employment to John.  John is excited about this new opportunity. It's the next logical step in his career and a nice increase in his compensation.  After all of the necessary pre-employment requirements are completed and the hire date is set, John submits his resignation to XYZ.    But this story doesn't stop here and there's no Cinderella ending.

The President of XYZ is astounded.  Why would you quit?  You're one of our rising stars.  Those last six words astound John, he's never heard them.   The President offers him more money to stay.  The office he'd like to have.   But in John's eyes, this recognition comes a bit too late.  After a lengthy discussion, John is more dedicated than ever to begin his new career with Acme.

Behind the scenes, the following happens.  While no non-solicitation exists in their contract, the President of XYZ calls Acme and schedules a meeting with them.  After a heated meeting and threats of pulling business, Acme is forced to rescind the offer of employment to John Doe.  John, somewhat reluctantly, remains in the employ of XYZ. 

Two months later, still at XYZ, John Doe hasn't received that proposed increase and the office has gone to another employee. 

Would you view this as Tortious Interference by XYZ?   Tortious Interference:  n.  Encouraging a breach, infringing on another's agreement, interfering with contract or contractual commitments, wrongful interference with business relationships.  For there to be liability under this tort you must show some improper or illegal actions as an intermeddler. You must evaluate whether actions, or contemplated actions, can be construed to have an appearance of impropriety.

For the laymen, tortious interference occurs when a person damages another person's contractual relationships or other business relationship on purpose.  Liability ensues where proof of economic injury exists.  The wrongful interference with some right or economic opportunity belonging to a person which causes that person some monetary loss.  Interference with prospective economic advantage.

 

What is your call on this?  Tortious Interference or No?

 

Fair competition is always legal.  An employee may leave employment and avail himself of whatever expertise he has acquired from his former employer.  As long as there is no use of former employer's trade secrets.

For "John Doe."

Concerted Activity

When you think of the term "concerted activity" there is often an automatic assumption that a union, or union activity, is involved.  But that's not always the case.  Section 7 of the NLRA states "Employees shall have the right to self-organize, to form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities. . . " 

 

Protected concerted activity sometimes has nothing to do with unions at all.   Employees who get together and complain to management about their pay or benefits is engaged in concerted activity.   Concerted activity can include internal complaints of discrimination, discriminatory harassment complaints, etc., all of which is protected by Section 7 of the NLRA.