Department of Labor. Overtime Protection

Today the Department of Labor announced a proposed rule that would extend overtime protections to nearly 5 million white collar workers within the first year of its implementation.  Failure to update the overtime regulations has left an exception to overtime eligibility originally meant for highly-compensated executive, administrative, and professional employees now applying to workers earning as little as $23,660 a year.  For example, a convenience store manager, fast food assistant manager, or some office workers may be expected to work 50 or 60 hours a week or more, making less than the poverty level for a family of four, and not receive a dime of overtime pay.  Today's proposed regulation is a critical first step toward ensuring that hard-working Americans are compensated fairly and have a chance to get ahead.

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.

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.

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.

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.  

Is Gender Bias Alive And Well?

Gender Bias n. unequal treatment in employment opportunity (such as promotion, pay, benefits and privileges), and the expectations due to attitudes based on the sex of an employee or group of employees.  Gender bias can be a legitimate basis for a lawsuit under anti-discrimination statutes.

 

Gender bias begins at an early age.  From the pink or blue outfits children receive at infancy, the influence of toy selections, to how teachers respond to a child in school, or the books we read them at bedtime. (An April, 2011 study of gender bias in literature examined nearly 6,000 children's books published from 1900 to 2000.  Of those, 57% had a central male character compared with only 31% female protagonists.  Presumably animals of an indeterminate gender led the rest.)  So how do we respond to gender bias in the workplace?

 

First let's understand that gender bias is more subtle than sex discrimination.    Bias occurs because of personal values, perceptions and outdated, traditional views about men and women.  We may encounter gender bias in many forms and degrees.   For example, both men and women tend to view women who express anger more negatively than they view men who express anger.  Even when the members of both sexes use the same words and body language to express that anger.  Gender bias exists where men or women are evaluated or perceived differently depending on whether their actions violate expectations of how they should act or expectations of what behaviors are required for a role they have assumed.  Whether the subject of bias is male or female, the effects of gender bias can be devastating.

 

Beginning in as early as 1982,  state judiciaries began to address gender bias by creating a variety of research committees and task forces.  Since that time, attention around gender bias in the workplace has continued to grow in every industry.

 

Then:

"Gender bias exists in many forms throughout the Massachusetts court system.  Sexist language and behavior are still common, despite an increased understanding that these practices are wrong."  New England Law Review.  Volume 24, Spring 1990.

"The New Mexico Supreme Court is greatly concerned over manifestations of gender bias in the court environment within the State of New Mexico."  "In 1987, the State Bar of New Mexico established The Task Force on Women and the Legal Profession and requested that the Task Force examine the needs of women lawyers, their acceptance by the Bench and Bar in general. . . . . The Final Report, issued November 2, 1990, documented gender bias not only directed toward women lawyers, but affecting female litigants, witnesses, and court employees."

The State of Florida, Gender Bias Study Commission:  Executive Summary, found that "during it's two years of hearing and study, that gender bias -- discrimination based solely on one's sex -- is a reality for far too many people involved in the legal system.  (1990)

In 2011, a team at Yale University asked 127 professors at six U.S. research universities to judge the merits of college graduates.  The graduates were applying for a position as a lab manager before heading to graduate school.  While using identical resumes, of which half were obviously female applicants, the participates were significantly more likely to hire the man, and at a higher salary.  Interestingly enough, the bias was equally strong among both the female and male scientists and did not vary by age, race or discipline. (www.sciencemag.com)

 

Now:

"The Supreme Court's decision on the Walmart case - in which five justices, all male, sided with the company in denying 1.5 million female employees the right to pursue a class-action sex-discrimination lawsuit - showed a truly stunning obliviousness to the way gender bias actually plays out in the workplace."  The Daily Beast.  "The Supreme Court's Cluelessness on Gender Bias."  June 22, 2012.

 

MSLGroup currently has a class action lawsuit pending alleging gender pay discrimination.  The $100 million class action lawsuit was filed in February 2011 and represents women who worked at the agency from 2008 until the date of judgement.  Of the 33 total plaintiffs, two are current MSL employees.  One, Sheila McLean, is currently a SVP and a 12-year veteran of the firm.  The lawsuit alleges that MSL paid female professionals less; did not promote women at the same rate as male counterparts; and conducted discriminatory demotions, terminations and reassignments for female staffers during the agency's 2009 reorganization.

 

After all the steps we have taken, all the studies, polls, research papers, etc., gender bias is still alive and well in the workplace.  As an employer, you need to be aware if gender bias exists in your workforce.  Train your employees to identify it, and to acknowledge it.  Secondly, call attention to the bias.  Make a commitment to eliminating it in your workforce.

 

 Title VII prohibits discrimination "because of" an employee's sex. As an employer we may not take adverse action against an employee because of their sex. Sex can not play a role in any aspect of their employment including hiring, transfers, promotions, pay, disciplinary action, suspensions, and discharges. It's also important to understand that while Title VII was originally understood to apply only to women, that is no longer the case. It also prohibits discrimination against men. For example, when a male employee is denied a promotion in favor of a female employee, and the male can prove that the reason was "because of his sex," there may be claim for sex discrimination.

Wage & Hour Division: Right To Know Rule

Previously DOL's Wage and Hour Division announced plans to update recordkeeping requirements that are associated with the Fair Labor Standards Act.  The DOL stated that it “proposes to update the recordkeeping regulations under the Fair Labor Standards Act in order to enhance the transparency and disclosure to workers of their status as the employer's employee or some other status, such as an independent contractor, and if an employee, how their pay is computed.”  

Identified as the "Right to Know" rule, the DOL’s original timeline for the regulation was October 2011.   In the most recent edition of the Unified Regulatory Agenda, published on January 20, 2012, the DOL moved the “Right to Know” rules into a category labeled “Long Term Actions.” The DOL defines “Long Term Actions” as those items “under development but which the agency does not expect to have a regulatory action within the 12 months after publication of this edition of the Unified Agenda.” That initially put off any action on the Right To Know until at least January 2013.

With the re-election of Obama, the "Right to Know" rules are expected to re-emerge as a major issue to workers and we can now expect the department to move forward once again on this proposal.

Under the FLSA, employees are entitled to overtime unless they're executives who manage, hire and fire employees; administrators who make key decisions; or professionals with advanced degrees, among other criteria.  (Also exempt are IT workers and sales representatives.)  Rank and file employees are commonly and wrongly classified as exempt.   These low-level employees, with limited responsibilities, are dressed up to look like managers so that employers don't have to pay for overtime.   U.S. workers are putting in more than 40 hours per week through a variety of practices including:

• Jobs misclassified as exempt;
• Smartphones and other technology allowing business to bleed into personal time; and,
• Employees working off the clock.

Acting Wage and Hour Administrator Nancy Leppink called the Right to Know rule one of the Wage and Hour Division's priorities, stating "We're continuing to work on that regulation," and that "We're learning about what the issues are" from the Department's ongoing misclassification enforcement initiative.

A record-high 7,064 FLSA suits were filed in federal court during the year-long period ending March 31st.  The WHD reported that over $225 million in back wages for FLSA violations were collected during this period.   These numbers provide reinforcement for the belief that FLSA claims will continue to gain momentum into 2013 and beyond.  

Employers know that FLSA collective actions are more prevalent than ever and they are costly to defend or resolve.  With the majority of the lawsuits pertaining to employee misclassification, it's an incentive to the employer to carefully review how employees are classified. 

 

Sorry, I'm Not Going To Tell You What You Want To Hear

I upset an executive the other day when I advised him that a tactic he wanted to take with an employee really wasn't the best approach.  When I explained why a different approach was needed, the response from the executive was anything but supportive. 

 

To quote Dilbert, "Do you want a realistic. .. that will ruin your day, or a lie that will allow your ignorance and your happiness to lock arms and square dance to the next cubicle?"

 

It's human psychology. Most times we hear what we want to hear. We want things to align with our vision of how the world works. However, Mr. Executive, if someone is brave enough to give you honest input, take a moment to recognize it. Don't shoot (or shun) the messenger.   Don't just turn to confidants who will tell you what you want to hear. My recommendation is that you turn to several sources for information and obtain several points of data.

 

For just a moment please understand that HR isn't here to offend you.  We all know that in the business world, unintentional violations do not excuse wrongful behavior.   No, I'm not here to provide you with legal advice. But, I am here to advise you where you may face potential liability.  So,  I'll question tactics, suggestions or orders that may appear to be unlawful.   I will ask questions and seek clarification.  I will then tell you what works best based on my knowledge and experience.  I'm going to follow my instincts.

  
In May, Forbes published the "10 Commandments for Delivering Bad News."  In brief (and the link has been provided) the commandments are:

1. Thou shalt always treat people with respect and dignity.
2. Thou shalt always follow up and follow through
3. Thou shalt always remember your multiple audiences
4. Thou shalt always bring solutions
5. Thou shalt always look for the silver lining
6. Thou shalt always justify
7. Thou shalt always put in writing
8. Thou shalt never hide the facts
9. Thou shalt never delay
10. Thou shalt never surprise

Any successful employee strives to anticipate the boss's needs and then deliver them.  Telling people what they don't want to hear is risky.  I can sit here, nodding, and maintain the status quo.   But that's not what you hired me to do.   I'm not going to hide the facts and I am going to provide you with solutions.

http://www.forbes.com/sites/forbesleadershipforum/2012/05/30/10-commandments-for-delivering-bad-news/

Exempt / Non Exempt

If your organization is struggling with the exempt / non exempt issue, the below article by Business Management Daily provides some good advice.

'Explosive' growth in wage lawsuits; cases hit all-time high

U.S. employees filed a record 7,064 federal wage-and-hour lawsuits in the fiscal year ending June 30, "a continuation of the explosive growth in these suits that has marked the past decade,” according to attorney analysts at the Seyfarth Shaw law firm.

The three most common triggers: misclassification of employees, unpaid off-the-clock work and miscalculation of overtime pay. In its recent report, the firm said that class actions under the FLSA are dominating the legal scene. Another notable trend is the increase in back-wage suits on behalf of higher-income employees, such as those in financial services.

In both types of suits, the key is the time an employee puts in outside regular work hours. Companies should be particularly careful about hourly employees working extra time while off the clock. Even five or 10 minutes worked voluntarily off the clock can add up to a large verdict when multiplied out over a period of years.

Advice: Make it clear to all hourly employees that you prohibit any work over breaks, or before and after shifts.

In one recent lawsuit, a company allowed administrative staff to track their own hours on time sheets. It also allowed them to take comp time. It could only rely on handwritten time records when disputes arose over how much time employees had worked, how much the em­­ployer owed them and whether some of the comp time should have been overtime. In such cases, the employer loses because it's the employer's responsibility to keep proper records.

Record-keeping requirements for exempt employees differ from those for nonexempt workers.

Exempt records to keep

Because you don't pay exempt em­­ployees by the hour, you shouldn't track the exact number of hours they work on a daily basis. Doing so might appear to a wage-hour auditor as if you are indeed basing pay on the number of hours worked, which might raise the question of whether the employee is truly exempt.

However, just because a worker is exempt doesn't mean your company is freed from keeping records on him. With exempt workers, you should keep records that describe the workweek and the wages paid for that period. Specifically, you should keep the following records concerning exempt staff:

• Personal information, including name, home address, occupation, gender, birth date for workers under age 19 and the person's workplace identification number
• Time of day and day of the week when the workweek begins
• Total wages paid each pay period
• Date of payment and the pay period covered by each payment.

Your records for exempt employees also can track the days employees use for sick, vacation and personal leave.

 

Exempt records to keep

Because you don't pay exempt em­­ployees by the hour, you shouldn't track the exact number of hours they work on a daily basis. Doing so might appear to a wage-hour auditor as if you are indeed basing pay on the number of hours worked, which might raise the question of whether the employee is truly exempt.

However, just because a worker is exempt doesn't mean your company is freed from keeping records on him. With exempt workers, you should keep records that describe the workweek and the wages paid for that period. Specifically, you should keep the following records concerning exempt staff:

• Personal information, including name, home address, occupation, gender, birth date for workers under age 19 and the person's workplace identification number
• Time of day and day of the week when the workweek begins
• Total wages paid each pay period
• Date of payment and the pay period covered by each payment.

Your records for exempt employees also can track the days employees use for sick, vacation and personal leave.

Nonexempt records to keep

With nonexempt, hourly employees, you need to collect more details:

• Personal information, including name, home address, occupation, gender, birth date for workers under age 19 and the person's workplace identification number
• Time of day and day of the week when the workweek begins
• Regular hourly pay rate for any week when overtime is due (include an explanation of the way wages are paid—such as per hour, per day, per week, per commission—plus the amount and nature of each payment that's excluded from the regular rate)
• Hours worked each day and week
• Total daily or weekly straight-time earnings (not counting overtime)
• Total weekly overtime earnings
• Total additions to or deductions from the employee's wages each pay period, plus an explanation of the nature and dates of those additions or deductions
• Total wages paid each pay period
• Date of payment and the pay period.

If employees are working under a special certificate that allows you to pay below minimum wage—such as a "training” wage for students—your records must note that fact, too.

And for how long

The FLSA requires you to keep the following records for at least two years:

• Basic employment and earnings records
• Work-time schedules (timecards)
• Wage rate tables
• Order, shipping and billing records
• Records of additions to or deductions from wages paid.

In addition, keep these records for at least three years:

• Payroll records
• Employee agreements, such as collective bargaining agreements and individual contracts
• Sales and purchase records.

Yes, Congress has tinkered with the FLSA over the years.

Yes, the Labor Department has issued pages of regulations, interpretations and examples.

Yes, these changes are often confusing for employers and workers alike.

Is that an excuse for misunderstanding the law? No.

The FLSA is complicated and full of traps for unwary employers. And attorneys who represent unhappy workers are ready to take advantage of any misstep you take. Your best protection is awareness. Make sure you understand the fine points of the law, and work to ensure that your business is in compliance.

From the Ground Up, The Performance Appraisal

We all know how important a PA process is even if the annual process is about as much fun as a root canal.  It's a necessary evil for all businesses.  Employees need formal feedback.  When they don't have it they feel ignored. If they feel ignored, do you think they'll be motivated to go the extra mile?  Probably not.

Now, take a company with 100+ employees that has no PA program in place, and the fun begins.  The entire PA process has to be developed from the ground up. 

Process:  What type of process should be used?  An on-line appraisal?  Paper-based appraisal?  Electronic or manual tracking program?   What type of rating system will be used?  Should a software program be purchased?

Manager Training:  The value of the PA process.  Legal aspects.  Manager PA preparation.  Conducting the PA.  Rater Errors.  Setting Goals/Objectives.  What are the do’s and don’ts of the PA?  And, most importantly, what is the definition of leadership? 

Timing:  Focal/Common Review Dates or Anniversary Review Date?  What are the pros/cons of each?  What option is best for the organization?  For the employees?   Will the performance appraisal process be tied to annual compensation increases?

Assessment:   What are the competencies that should be addressed?  Adaptability?  Analytical skills?  Conflict resolution?  Dependability?  Motivation?  Teamwork?  Will the competencies be different for salaried and hourly employees?

Objectives:  Develop a training program for the managers.  Discuss SMART objectives.  Why are objectives necessary?  What are the company goals?

Performance Improvement Plan:  Develop a process that will tie to the PA.  Train managers in the proper application and development of a PIP.   Discuss potential liabilities in a PIP.  Can I have different completion dates for different employees on a PIP?  What if the employee doesn't successfully complete the PIP? 

Salary Increases:  Merit increase?  Equity pay adjustment?  Discretionary pay increase?  COLA?    Do the managers require training in identifying the different types of increases?  Develop an approval and reporting process for any compensation adjustment.  Are there salary bands in place?  Do we need to develop competitive pay bands? 

The above are just a few of the issues that will need to be addressed.  And I'm sure the list will grow!

Final Pay

Contrary to popular belief, employers are NOT required by Federal law to give former employees their last paycheck immediately.   However, states may regulate the timing of final pay so employers are always cautioned to check their state regulations.

In Texas, the timing of final pay is regulated by the Texas Payday Law, Section 61.014.  Under the Texas Payday Law, the timing of final pay is based upon the circumstances of the employees termination.   Did the employee resign or was the employee terminated?

In those situations where an employee voluntarily resigns, quits, retired or other wise leaves employment voluntarily, the final pay is due on the next regularly-scheduled payday following the effective date of resignation.  However, if the employee is laid off, fired, or in any way involuntarily separated from employment, the final pay is due within six (6) calendar days of the discharge.

 

States differ with respect to the handling of final pay.  For instance, in California if an employee is fired, s/he must receive their check immediately.  If the employee quits, s/he must receive their final check within 72 hours.  For Connecticut, final pay is due on the next business day if the employee is fired.

 

One of the most frequent questions I am asked pertains to withholding funds from an employee due to loans, cost of company equipment, etc.  As an employer, legally you can NOT make such a deduction unless you have the employees written authorization prior to making such a deduction.  Additionally:

• Depending on the state where you and/or your employee reside, there may be additional restrictions.
• Even where deductions are authorized, the employer may not reduce the worker's final check below the applicable minimum age.

In closing, carefully check your state laws to ensure that you handle an employee's final pay properly.

The 10 Most Common Legal Mistakes HR Makes

Business Management Daily recently ran this great article outlining common legal mistakes that "HR makes."  Well, those mistakes can be made by any employer, supervisor, and/or business leader out there.  Not just "HR."  While a lot of this is just plain common sense, we all get busy from time to time and make a mistake. 

 #1: Advertisements, Interviews, and Offer Letters

Mistake: improper language in job advertisements. Too many employers still use inappropriate terms — such as "girl," "boy," or "young" — in their job advertisements. This is particularly true when managers, rather than HR, write the ads.

Mistake: unlawful interview inquiries. Too many hiring managers ask about personal and/or protected characteristics during job interviews, which sets the employer up for a discrimination lawsuit if the applicant is not hired.

Mistake: inaccurate description of the job. Some hiring managers work so hard to get top-notch recruits in the door that they fail to be realistic with their description of the job. The unhappy employee will leave, and it will have been a shameful waste of the employer's time and money.

Mistake: inadvertent creation of contractual promises. Too many employers include language in their job offer letters that inadvertently creates an employment contract. For instance, mentioning a yearly salary implies a yearly contract.

#2: Wage and Hour Issues

Mistake: misclassification of workers. Exempt vs. non-exempt status: Finding and correcting these mistakes are an Obama administration priority. While there are many factors to consider, you're basically basing your determination on the employee's level of responsibility and/or training, and a salary test.

Mistake: mandating confidentiality of wage information. Prohibiting employees from discussing their wages is a violation of the National Labor Relations Act.

#3: Privacy Assumptions and Violations

Mistake: permitting an expectation of electronic privacy. Too many employers fail to advise employees to expect no privacy on their computers. If you asked employees, "Do you think the stuff you put into that computer is private?" you might get some interesting answers.

Mistake: improper electronic monitoring. Some states have statutes that require employers to give employees notice if they are being monitored electronically.

Mistake: inadvertently revealing private employee information. HR possesses a great deal of sensitive information about individual employees. It is your duty to keep that information confidential.

#4: Training and Performance

Mistake: failure to train supervisors. When supervisors are not trained, they're the ones who get you into trouble. They may say rude, racist, or sexist things, or be unintentionally discriminatory, and because they are in a supervisory position, the entire company is on the hook.

Mistake: misleading performance evaluations. If you try to discipline an employee for a performance/behavior problem that was never noted on their evaluation, your hands may be tied.

#5: Rough Beginnings and Sharp Endings

Mistake: sloppy start. Among HR's common errors in this area are: failing to submit the state notice of a new hire; failing to tell the employee the key terms and conditions of employment; and providing the employee with a misleading description of working conditions.

Mistake: sloppy finish. Regardless of whether a termination is voluntary or involuntary, always allow the employee to leave with dignity.

#6: Investigations

Mistake: failure to oversee supervisory investigations. As an HR professional, you know that timeliness and thoroughness are important in an investigation. But what about when a supervisor is the one investigating, not HR? It's still HR's responsibility to provide oversight.

#7: Record-Keeping/I-9 Issues

Mistake: failure to document past practices. Courts love to know not only whether the treatment of an employee was against the law or company policy, but whether it was in line with past practices.

Mistake: failure to comply with Form I-9 requirements. Failure to complete the I-9 form properly and failure to keep the form in a separate file are common mistakes employers make.

#8: Breakdowns In Communication

Mistake: failure to keep employees in the loop. Forgetting to notify employees about policy/procedure changes, outcomes of investigations/discipline issues, or unsatisfactory behavior or work quality can be a costly slip-up.

#9: Accommodations

Mistake: failure to explore accommodations. "Accommodation" can be defined as "a determination in favor of the employee." Employers should explore accommodation options when an employee: has a disability, is pregnant, is called to active military duty or has a family member called to active military duty, or wants to engage in a religious observance/practice.

#10: Non-Compete Agreements

Mistake: unreasonable scope. Obviously, an agreement prohibiting an employee from working at any position in the same general industry forever and ever isn't going to hold water.

Mistake: lack of consideration. Legally, contracts are valid only if both sides give something. If the employee gives up their right to compete, the employer must also give something. Too often, the employer gives nothing, making the non-compete agreement invalid in a court of law.

Paycheck Fairness Act Fails In Senate

Senate Republicans blocked the Paycheck Fairness Act which would have ensured that women are paid the same amount as their male counterparts.  The final vote was 52-47, effectively killing the bill for the time being.  Senate Republicans voted against the measure in the belief that it would adversely affect businesses if employees attempted to file pay-related lawsuits.

The bill would have required employers to prove that any discrepancies between male and female pay are job-related and not based on discrimination, and was pushed in part by a census report which concluded that women typically earn 77 cents for every dollar their male counterparts earn for the same position.

Senate Majority Leader Harry Reid (D-Nev.) used a procedural maneuver that gives him the ability to reintroduce the bill at a later date.

Paycheck Fairness Act 2012

Headline “Republicans voted no to equal pay for women: Act goes to Senate June 5^th.” And that's a recent May, 2012 headline. And if you don’t believe me, follow the link to the actual article: www.allvoices.com/contributed-news/12275353-the-paycheck-fairness-act-up-for-vote-next-tuesdaytell-your-senator-its-time-women-receive-equal-pay

This isn’t a new topic, or a new bill. Remember, a Paycheck Fairness Act was previously pitched in 2010. It failed 58– 41.

Let’s talk about Gov. Romney for a moment. Teamsters General President Jim Hoffa called on GOP presidential nominee Mitt Romney and the Republican Party to prove they haven't declared war on women and workers by supporting the Paycheck Fairness Act. Romney has refused to take a stand, or respond. Even the Washington Times has been unable to get a response to the five messages they’ve left him. He’s rather silent on the issue, which I feel says it all.

 

 

Gender bias in action? Yes? No? Who knows? All I know is that I agree in paycheck fairness no matter your sex, race, religion, etc. Data suggests that women make .77 on every dollar that men do. Claycord Congressman George Miller stated that women in California earn 84 cents for every dollar a man earns. That means California women have been paid $8,151 less than men by the end of that year. Same experience, skill, education,title, etc. And yet the pay differs.

Since I’m blogging from the great State of Texas, let’s look at Texas statistics.

• In 2010, the typical woman in Texas working full time, year round, was paid only 80 cents to every dollar paid to a man working full time, year round. That's 3 cents narrower than the nationwide wage gap of 77 cents.
• The wage gap persists at all levels of education. In 2010, women in Texas with a high school diploma were paid only 67 cents to every dollar paid to men with a high school diploma. Comparing women and men in Texas with a bachelor's degree, the figure was 69 cents. In fact, the typical Texas woman who has received an associate's degree or completes some college still isn't paid as much as the typical Texas man who only graduated from high school.
• The wage gap exists across occupations. For example, Texas women working full time, year round in 2010 in management, business, and financial occupations were paid only 71 cents to every dollar paid to men in the same occupations, and Texas women working full time, year round in sales and related occupations were paid only 57 cents to every dollar paid to men in the same occupations.

The above statistics provided by National Women’s Law Center. The Importance of Fair Pay for Texas Women. April 2012. www.nwlc.org

The Equal Pay Act was passed in 1963, almost 50 year sago. And yet, unfair pay practices still exist. The new Act will hold employers accountable for pay discrepancies between male and female employees while strengthening incentives to prevent pay discrimination. The employer will have to provide a valid explanation as to why a male employee, with the same qualifications/experience, is making more than his female counterpart. The employer must be able to show that wage differences are job-related, not sex-based, and are driven by business necessity.

Everywhere on the Internet, people are chiming in on this sensitive issue. Petitions are being circulated for signature. www.momsrising.org/member_stories/topic/pay-discrimination-stories/?action_id=10534741&akid=.2017705.N-Qc-v&form_name=act&rd=1

Let’s wait and see how this all unfolds. I’ll have an update for you after June 5^th.

Job Descriptions

Each of you have heard me "rant and rave"  about how important job descriptions are.  I recently ran across a great article that outlines some very important reasons why job descriptions are so important.  In the spirit of sharing:

1.  ADA:  If an employee files an ADA lawsuit, courts will review what the organization has identified as the job's "essential functions" to see if the charges have merit.  Absent a written job description, the court may decide for itself which functions are essential.

2.  Titles carry a great deal of weight in the workplace and in court.  Each position's title should match the level of authority and responsibility. Cross-check it against other titles in the organization.  For example, your "administrative assistant" would be doing most of the same tasks as others with that title.  Don't upgrade employees by giving them inflated titles.  You may regret that when they ask for pay raises or refuse to perform tasks that they consider beneath them.  More importantly, inappropriate titles also factor into discrimination charges.  For example, if your "director of distribution" is really a shipping clerk, be prepared to explain why s/he isn't being paid the same as other "directors."

3.  Essential functions/qualifications:  The key part of JD's is an item-by-item list of the job's duties and responsibilities.  It is important to identify which are "essential" job functions are critical to the job's successful performance.  One KEY legal reason?  Employees can file ADA lawsuits only if they can prove they're legally disabled and can still perform the "essential functions" of the job.  If those "essential" duties aren't detailed in the job description, they're left open to a court's random interpretation.

4.  Results Expected:  Duties are half the equation.  Include expectations relating to deadlines, customer service and company success.  Linking responsibilities to company goals helps the employee see how the position fits into the "big picture."

5.  Use Specific and Clear Language:  Instead of a term like "good communication skills," say the person needs "the ability to communicate company policies to non-managerial groups in person and in writing."

6.  Avoid gender-based language, such as "salesman."

 7.  The bottom line:  Never assume employees know what's expected of them.  Put it in writing and make sure they understand.

Overtime Pay

USA Today ran an article "More American workers sue employers for overtime pay." Did you happen to read the article?

We all know where this is going. .. Lawsuits continue to increase as employees demand compensation for overtime. The technology that exists in the business world today often allows work to infringe into the personal time of employees. Personal computers, Blackberry's, smartphones, all increase the accessibility of employees and increase the off-the-clock demand of their employers.

The DOL responded to this technology by the introduction, in May of last year, of the DOL-Timesheet App. Introduced as a new electronic timesheet that allows employees to track the hours they work (in addition to break time, calculating overtime, etc.) as well as assist employees in determining the wages they are owed. The intent of the app was to provide workers with a tool that they can use to obtain wages they feel they were owed. "This app will help empower workers to understand and stand up for their rights when employees are denied their hard-earned pay," explained Labor Secretary Hilda Solis.

In a survey by the HR Policy Association last year, a third of the 155 large member firms that responded said they've restricted telecommuting as a result of the lawsuits, and 56% said they've curbed the use of communications devices outside the office.

To quote the USA Today report; "Labor has added 300 wage and hour investigators that past two years, increasing its staff by 40% to 1,050." The department "has stepped up its efforts to protect workers," particularly "in high-risk industries that employ low-wage and vulnerable workers," such as hotels and restaurants, says Nancy Leppink, deputy administrator of the wage-and-hour division.

Misclassification of employees is often at the heart of such cases. In November, Oracle agreed to pay $35 million to settle claims by 1,666 software testers, technical analysts and project managers that they were denied overtime because they were misclassified as administrators or professionals. The company did not admit wrong-doing.

73% of Wage/Hour investigations result in findings. The norm is that those findings are to the benefit of the employee. And, depending on the state you reside in, in "unjust enrichment" states, common law may allow the courts to go back up to 6 years for calculating back wage payments.

Yes, the DOL is employee friendly. An an employer you need to take the steps to ensure you have your employees properly classified.

Thanks Keith for the heads up on this article!

Flexible Work Arrangements - Where Are They Now?

In 2010 President Obama said making workplace rules flexible “isn’t” only a women’s issue.  "We know that companies with flexible work arrangements can actually have lower turnover and absenteeism and higher productivity," Obama told guests at a dinner for Fortune magazine's Most Powerful Women conference in 2010.  "This is not just a women's issue, or just a work-family balance issue.  It's an economic competitiveness issue."  The Obama administration is clearly on record as promoting flexibility.

Where are we now?

On February 29, 2012 Rep. Carolyn Maloney (D-NY) and Sen. Bob Casey (D-PA) reintroduced the Working Families Flexibility Act (H.R. 4106, S. 2142), a bill that would provide employees with a statutory right to request flexible work terms and conditions.

This new legislation would authorize an employee to request from an employer a change in the terms or conditions of the employee’s employment.  To be eligible, the employee would have to work an average of at least 20 hours per week or a minimum of 1,000 hours per year.  This new bill would only apply to employers with more than 15 employees.

Under the proposed bill, a flexible work arrangement request from the employee must relate 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.

Upon receiving a request, an employer would be required to hold a meeting with the employee to discuss his or her application and provide a written decision regarding the application “within a reasonable period” after the meeting. 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. If the employee is dissatisfied with this proposal and has another supervisor, the employee would have the right to have the other supervisor reconsider the alternate schedule.

Do flexible work arrangements work?

In 2006 the city of Houston promoted flextime as a way to ease the notoriously congested highways.  The "Flex in the City" program was successful.  It slashed workers' stress, boosting their performance and saving money.   The August 2010 Analysis of Alternative Work Schedules issued by the Texas Comptroller of Public Accounts stated that "AWS benefits retention efforts more than budgets.  Survey responses indicate that while some entities have seen savings from AWS, employee retention and satisfaction are the most common benefits.  AWS should be considered primarily as a means to recruit and retain employees."

Yes, there are challenges to Flexible Work Arrangements.  They may not work in some industries/companies.  But there are benefits.

DOL: Right to Know Rule Delayed

For the past two years the DOL has discussed revising its record keeping regulations under the FLSA. The revision? Requiring employers who classify an employee as exempt to prepare a written justification for the basis for the exemption. (The justification would further provide why an individual is classified as an employee or as an independent contractor and how their pay is computed.) This justification would then have to be provided to the employee and be subject to inspection by the Department of Labor. Many employers strongly disfavor this proposal.

Acting Wage and Hour Administrator Nancy Leppink called the Right to Know rule one of the Wage and Hour Division's priorities, stating "We're continuing to work on that regulation," and that "We're learning about what the issues are" from the Department's ongoing misclassification enforcement initiative. (Recent article in BNA's Daily Labor Report.)

The DOL continues to expand the number of jurisdictions and agencies with which it is collaborating to end employee misclassification. Recently the Colorado Department of Labor and Employment and the Louisiana Workforce Commission has joined the fray.

Employers don't have to worry about this particular issue just yet. It appears the DOL does not plan to take action on its Right To Know rules at least until January 20,2013.