Proposed FMLA Regulations

The Department of Labor (last month) announced proposed changes to the FMLA. These proposed changes would impact regulations associated with Military Leave, Flight Crew FMLA Eligibility and the manner in which employers calculate increments of FMLA leave.

The proposed rule regarding employer calculations, if finalized, will require employers to calculate FMLA leave using the shortest increments they use to track time. Some of the key proposed changes include:

• Expands military caregiver leave to cover eligible employees whose family members are recent veterans with serious injury or illness;



• Allows FMLA military caregiver leave for eligible family members of veterans with serious injury or illness who were active members of the military (including National Guard and Reserves) within the past five years;



• Expands the definition of serious injury or illness for both current service members and veterans to include pre-existing conditions aggravated in the line of duty; and,



• Includes hours of service eligibility requirement for airline flight crew employees based on unique scheduling requirements of the airline industry.

On February 15th those proposed changes were published in the Federal Register which means that the public has 60 days (until April 16, 2012) to comment on them. I have provided the link to the Federal Register (below). But be prepared, it's a 61 page document.

Proposed changes can be found as follows:
Page 2 - D: Updates to the Military Family Leave Provisions
Page 3 - E: Amendments to Eligibility Criteria for Airline Flight Crewmembers and Flight Attendants.

http://www.fmlainsights.com/FMLA%20proposed%20regs%20Feb%202012.pdf

Probationary Employment Status

Probationary period. Introductory period. Trial period. No matter what you call it, the meaning is essentially the same. You have a new employee under scrutiny! (Personally I dislike the term "probationary." I recommend using "introductory." Some HR professionals, myself included, believe that there is a rationale that a probation period could imply that, once the "probation" period has been completed, some type of employee - employer relationship exists. )

There are no particular laws requiring employers to have an employee category identified as "probationary." Realistically, if the employer has an at-will employment relationship with its employees, the employer can terminate with or without cause (unless such decision is based on prohibited grounds). And yet, many employers have a time frame identified as a probationary period for new employees. Whether or not there is a benefit to having one, let's discuss the employer's purpose for the probationary period.

A probationary period allows a company to establish guidelines and performance expectations for a new employee and to determine if the employee will be granted continued employment. It allows the employer to answer the question: Is the individual suitable for the job? (Yes, there are those managers that use the probationary period to determine if THEY have made the right hiring decision.)

During the probationary period managers should continually evaluate the skills, progress and how well these individuals adjust to their cultural environment. The manager should foster a mutual understanding of expectations, standards of performance and ultimately the evaluation process. Remember to evaluate the employee's performance in accordance with applicable policies, procedures and contracts.

As an employer you should take the following steps for the new employee:

1. Provide continuing, ongoing feedback regarding performance.
2. Document the performance.
3. Provide the right training for their position.

In closing, another reason to use the term "introductory" is that probation can have another meaning. And, oftentimes, it’s not a pleasant one. The use of the term probationary period may relate to performance issues.

I'm going to step "off topic" here for just a minute. Wikipedia, please note. I take exception to your statement relating to employee probation that “Challenges or appeals to the human resource department by the worker are usually ineffective as human resource departments usually side with and support management.” No, we don't. HR professionals take the role of the mediator or negotiator. We consider what is in the best interest of the organization. Not the business, the manager, the owner or the employee. We are oftentimes between a rock and a hard place. Remember, we have to balance the needs of the organization, the employee and workplace legislation.

HIPAA

The Accountability Act of 1996 (HIPAA) requires that at least once every three years, each health plan as defined in the law, must notify covered individuals of the availability of the plan's Notice of Privacy Practices for Personal Health Information and how to obtain the notice. *Whew*

As an employer, ensure that you meet this requirement and distribute the notice to all covered employees (yes, even those on COBRA). If you are obligated under a Qualified Medical Child Support Order, or National Medical Support Order, ensure you provide a copy of the Privacy Notice to the custodial parent or legal guardian.

More posts coming soon!

EEOC and Pepsi Beverages

EEOC Update:

In August of 2011 The Pepsi Bottling Group, Inc. agreed to pay $120,000 to settle a disability lawsuit filed by the EEOC. According to the lawsuit, Pepsi terminated Eldridge Davis, a driver at its Hayward, CA facility, for "job abandonment and violation of the company attendance policy." Sounded straightforward. Right? Wrong! Davis had followed proper procedure to inform his supervisor and the company that he could not finish his route due to his disability and he needed to take medical leave. Davis, who was 48 at the time, had been with Pepsi since October 1996. Well, Pepsi settled and agreed to implement preventative measures.

Fast forward to January 11, 2012.

Pepsi Beverages (formerly known as Pepsi Bottling Group) has agreed to pay $3.13 million and provide job offers and training to resolve a charge of race discrimination filed in the Minneapolis Area Office of the EEOC.

The EEOC's investigation revealed that more than 300 African Americans were adversely affected when Pepsi applied a criminal background check policy. Such policy disproportionately excluded black applicants from permanent employment. Under this new policy, job applicants who had been "arrested pending prosecution" were not hired for a permanent job even if they had never been convicted of any offense.

“When employers contemplate instituting a background check policy, the EEOC recommends that they take into consideration the nature and gravity of the offense, the time that has passed since the conviction and/or completion of the sentence, and the nature of the job sought in order to be sure that the exclusion is important for the particular position. Such exclusions can create an adverse impact based on race in violation of Title VII,” said Julie Schmid, Acting Director of the EEOC’s Minneapolis Area Office. “We hope that employers with unnecessarily broad criminal background check policies take note of this agreement and reassess their policies to ensure compliance with Title VII."

Pay Compression and Senior Employees

As a follow up to my earlier blog on pay compression, let’s talk about its impact on longer-tenured employees.

One major challenge that many organizations face is attracting new, desired talent. We all know that compensation for new hires is determined by the external job market. Pay compression occurs when new employees entering the organization are paid at similar or higher levels to existing employees. Because current employees have their wages set by an “internal” job market, typically their salaries are not keeping pace with the “external” market.

As new employees are bought in, the question arises: Why aren’t we increasing the compensation of the older employees in line with those of the new employees? The older employees are quite often tasked with providing on-the-job training/mentoring of the new employees. Is a workplace conducive to the spirit of teamwork and harmony when the new employees are taking home more than the old?

Of concern are those employees whose salaries are significantly below the external job market wages (for their skills and experience), and who may begin to seek other job alternatives outside the organization. Sometimes a market starting salary increases so much that the existing employee is punished by not moving. The question then becomes “to get a good raise, do I need to quit?” Employees will be more likely to see opportunities for increasing their salaries outside their present organization.

As an employer, a possible solution is to adjust your “internal job market” salaries based solely on job values and performance (and always ensure that you audit for non-discrimination). Change your terminology from “merit increases” to “adjustments.” If the pay compression is simply one of timing due to changes within the organization, communicate with the employee! Let the employee know that the inequity is only temporary and will disappear shortly.

While we won’t be able to win them all, we may be able to reduce the damage if we take the proper steps.

Pay Compression

Pay compression occurs when you have small differences in pay regarding experience, skills, level or seniority. Most often employers are unaware that pay compression exists until a problem arises.

Some examples of pay compression are:

- Newly hired “green employees” are paid more than existing employee in same position;
- A subordinate is paid more than or equal to his/her boss;
- The salary of an employee in a lower graded job is paid more than employee in higher.

Employees are concerned with how their compensation levels relate to that received by others in an organization. And further, that their pay is a reflection of their performance and abilities. If an employee believes this his/her contribution to an organization is undervalued, this can lead to emotional issues such as resentment, depression or disengagement. Another factor to consider is a subordinate earning more than his/her supervisor may not respect their supervisor if s/he is aware of the salary compression.

While there are other issues such as tenure-based pay, general increases, etc., that create pay compression, oftentimes pay compression is the result of a poorly maintained salary structure. Is there a solution? Yes. Establish a salary structure. Ensure it is updated regularly and use it as a guide when setting compensation levels. Take steps to benchmark your salaries regularly to keep pace with market rates. If your salary program is not in sync with your market, my bet is that your employee salary levels are as well.

In closing, a word of caution. There are potential legal issues associated with pay compression. These may arise when a protected class is at the wrong end of a pay compression issue.

Do You Bully Your HR?

In late 2011 a workplace survey was conducted by the Kentucky chapter of SHRM (Society for Human Resource Management). The results of this survey indicated that some HR professionals (31.4% of the respondents) have been "bullied" simply because they worked in HR!


Here's some results:
- 42.4% subjected to work interference or sabotage;
- 33.3% suffered verbal abuse; and,
- 24.2% experienced offensive conduct (threats, humiliation and intimidation).

The survey participants felt such conduct may be a result that HR:
- Must often tell managers "no"
- Role is misunderstood and/or not appreciated
- Is perceived as lacking business acumen
- May be perceived as a threat by insecure managers
- May sometimes lack professional credentials/education, or
- May be perceived as lacking "organizational fit."

Only one minute of self-pity is allowed.