Strategic HR Lawyer

Human resources professionals are often referred to as “they.” Usually when described in such a way, there is usually a finger pointing to “over there.” This infers that human resources is somehow distinct and separate from management and employees. When this happens on the part of management it usually stems from the perception or belief that human resources is not business. More specifically, from the belief that human resources cannot help managers solve a business problem they are facing.

Getting involved in business is always easier when you are the new kid on the block. When you are the new human resources professional, you just start getting involved those nonbelievers who would have challenged you if you had been there for a while, will give you the courtesy of getting involved in their business – at a minimum to see what you can come up with.

As the new human resources professional if you are confronted with a manager who is not used to having human resources involved in the management of their business, start with something small that has people/employee implications. This may include:

• Modifying the staffing in the department in order to control overtime.
• Creating job descriptions where they didn’t previously exist.
• Analyzing performance issues, before they come to human resources, which may indicate a training need.
  

The key is to use your expertise to solve THEIR problem. At this point “no” is not a word in your vocabulary.

As the human resources professional who has been around for a while, you need to make a paradigm shift. Assume the worst and start small.

• Take baby steps to get to know your managers.
• Start with a new manager who has joined your organization and make him or her your biggest fan.
• Start with an employee who has just been promoted to management and coach him or her along.
  
• Start with a manger you trust.
  

The key in all of this is to have little successes. These little successes will create fans throughout the organization. Little success will lead to bigger ones and before you know it, you will be well entrenched in the business of the business solving big problems and making lots of money.

Posted By Diane Pfadenhauer In HR Strategy | Permalink

One would think that the decision to call an attorney to guide an employee relations issue or a workplace investigation would be made logically and would be dependent upon the seriousness of the issue or complaint. Unfortunately, however, organizations make such decisions based upon a variety of factors unrelated to the seriousness of the issue or complaint. Much of this failure has a great deal to do with failing to recognize the seriousness of the risk itself and concluding that the organization and its staff are fully capable of handling the matter. All too often the result is the “half-baked” investigation. The organization forges ahead on its own, begins the investigation, and somewhere down the line realizes that the matter is well beyond its capabilities. At this point, counsel is called in who reviews and, at times, modifies the strategy and ongoing investigation. The result is internal turmoil and uncertainty as the investigation must, at times, be begun anew, witnesses are interviewed again and erroneous conclusions undone.

Occasionally, the organization fails to call in the attorney for fear of spending money. Here, the clock watching bean counters get in the way and hope that the organization can muddle through the firestorm without the attorney’s clock running. Organizations that have this concern can do one of two things – replace the bean counters or replace their attorneys. Time and again, this type of thinking is penny wise and pound foolish. Hindsight being 20/20 always advises that in the throes of litigation, the organization would have been far better off from both a fee perspective and organizational dynamic perspective calling in the attorneys to assist it in resolving the issue or complaint at the outset.

For more, see my book:  Workplace Investigations: Discrimination & Harassment

Posted By Diane Pfadenhauer In Workplace Investigations | Permalink

One of my biggest pet peeves and one of the biggest things that human resources professionals rely upon as a source of power is touting the law. The law gives you power. The law makes you look smart. If you tell your managers that they cannot do something because it’s illegal, they actually listen to you. On the other hand, if you tell them not to do something because it just makes sense, you are ignored. So what do human resources practitioners do? Cite the law as the basis for all of their decisions and communicate in that manner.

I once knew a human resources manager who cited her outside labor and employment counsel continuously, all the time, to the point where it was nauseating. She forgot several important concepts. First, lawyers give advice on the law. Business people run businesses. This means that lawyers don’t actually tell you what to do. Your job is to interpret what they say and apply it in your business. Second, most of the time when a lawyer tells a human resources person something it is a recommendation. Companies ignore lawyers all the time. Trust me, I know this. Lastly, using lawyers in this fashion gets really expensive. If the human resources professional is calling the lawyer to figure out how to run human resources, that’s a problem.

What the human resources manager in the above example failed to realize is that she did absolutely nothing to help her credibility. In fact, she made herself look incompetent. She could not convince someone to do something because it was right, ethical correct, reasonable, or based on good judgment. Eventually, everyone ignored her and gave up asking her anything.
The problem here becomes even further compounded because once the human resources professional falls into this trap, the constituents begin to question his/her answers. All it takes is one person who knows more about the law than the human resources professional or for the human resources professional to answer incorrectly or mislead someone and he/she will never be believed or trusted again. The biggest insult usually occurs when the human resources professional touts the law to someone at the senior level of the organization who gives up and calls the lawyer themselves.

What the human resources professional in this trap also does not realize is that in most instances her or she is not a lawyer and lacks any and all credibility giving legal advice. So in conversation after conversation, the human resources professional says something is illegal or says that the lawyer made them do it. Eventually the constituents give up and either stop asking or just call the lawyer themselves.

So how do you get out of this mess?

• Become a lawyer. I did. But, it’s really expensive.
• Focus on employee performance and solving real business and employee problems as your source of power.
  
• Use the law to educate managers and employees. It’s not a secret area of knowledge that only you know about.
  
• When you cite the law, cite the law first. Then, discuss with your fellow managers the possible solutions and outcomes to the problem. Your job is to make sure employees are treated in a manner that is fair and equitable. You can advocate for salvaging an employee or to fire an employee. Use judgment and facts in your arguments once everyone is clear what the law is. For the control freaks among us, this is often the hardest. The human resources professional that touts the law is often using it as a way to control or as a crutch.

Posted By Diane Pfadenhauer In HR Strategy | Permalink

As a follow up to my previous thoughts on managing the company holiday party, consider this about facilities, security or the front desk:

Just because you are an expert in managing people, that does not make you an expert in managing security or facilities.  Unfortunately, however, many human resources professionals gravitate toward the thrill of taking on more responsibility (probably under the guise of feeling like they are appreciated or being duped into a false promotion) by taking on the job that most other people don’t want.  Seriously, do you think anyone else in their right mind in your organization would be crazy enough to voluntarily deal with bathroom issues, complaints about the heat or air conditioning, whether someone brought in their identification card today, etc?  Not on your life.  They usually explain that they are too busy doing real work – this could include making money for the company, solving business problems and the like. 

Worse than facilities and security is managing the front desk.  This thrusts the human resources professional into a world of insanity – scheduling the answering of phones, managing the receptionist and worse yet, when the receptionist is out sick, guess who ends up answering the phone?  Someone in human resources. 

So now that the human resources professional has taken on this new responsibility guess who gets all of the nonsensical questions?  You guessed it.  I once heard of a regional human resources manager who received a complaint from another manager about the fact that the toilet paper in the rest room did not rip on the perforation.  Two college degrees, advanced certification and twenty years of experience led to this kind of existence!

So how do you get out of this mess?

• Give it to the CFO.  He or she is likely controlling the budget anyway.  And when the toilet paper does not rip on the perforation, he or she can increase the budget to buy better toilet paper.
• Delegate to someone in your department and let them manage it.  Address only those things that are critical to corporate security, significant issues of safety and the like.
• Hire professionals.  If you have to be tasked with these responsibilities manage them professionally.

Posted By Diane Pfadenhauer In HR Strategy | Permalink

Investigations of workplace misconduct require orderly and methodical practice to ensure that they will pass the scrutiny of lawyers, governmental agencies and other stakeholders if they are challenged.  All too often, investigations are handled in a manner that leaves them open to criticism and challenge.  I should know. I do many of them and, well, am used to others trying to poke holes in my investigations.  After years of doing these, I have found that many of these errors committed are predictable, preventable and repeated over and over again. 

With practical insight, planning and a commitment to a disciplined process, those who are responsible for workplace investigations of misconduct can promote a realistic outcome to what typically amounts to a stressful and often divisive employee relations situation, thereby avoiding the possibility of the situation spiraling quickly in to a sea of uncertainty  Whatever the result or outcome of the investigation, one that is conducted properly not only becomes legally defensible but is also consistent with notions of fairness and justice required by today’s workforce.

I’ll be embarking on a series of tips and techniques to help you the reader more effectively conduct investigations.  While many of these may seem obvious… trust me, organizations and their investigators make these mistakes ALL the time.

For more, see my book:  Workplace Investigations: Discrimination & Harassment

Posted By Diane Pfadenhauer In Workplace Investigations | Permalink

Now that the holiday season is behind us, let’s look at one of my biggest pet peeves for HR practitioners. Many HR departments are sadly tasked with managing the company holiday party. If you are doing this now, delegate to someone else. When I was a senior human resources leader one of my first goals was to get my department out of the party planning business. You will never be respected as a business leader unless you do.

In the eyes of your co-workers, anyone can plan a party. It will take too much of your time that you should be spending doing real work, learning something productive or solving a worthwhile problem. In addition, you do not want to be associated with bad restaurant food, poor catering, or boorish employee behavior at these events.

So, how do you get out of this mess?

• Delegate to someone in your department and distance yourself from it.
• Form a committee of employees from around the company that can plan the party. Then run. Quickly.
• If you have never had a company holiday party or picnic and someone asks you to plan one, say no!

Posted By Diane Pfadenhauer In HR Strategy | Permalink

And you thought that governmental agencies didn't share information? Think again.

On September 19, 2011, the US Department of Labor (DOL) and the Internal Revenue Service (IRS) signed a Memorandum of Understanding that is intended to improve the agencies’ coordination of efforts to end business practices of misclassifying employees in order to avoid providing employment protections. In addition, labor commissioners and other agency leaders in seven states - Connecticut, Maryland, Massachusetts, Minnesota, Missouri, Utah and Washington - have signed similar memorandums of understanding with the department's Wage and Hour Division, as well as the Employee Benefits Security Administration, Occupational Safety and Health Administration, Office of Federal Contract Compliance Programs and Office of the Solicitor. The state labor agencies of Hawaii, Illinois and Montana, as well as with New York's attorney general, have announced plans to sign similar agreements.

Under these memorandums of understanding, the U.S. DOL will now share information and coordinate law enforcement with the IRS and participating states providing an opportunity to “level the playing field for law-abiding employers” and ensuring “that employees receive the protections to which they are entitled under federal and state law.”

These memorandums of understanding arose as part of the DOL’s Misclassification Initiative to prevent, detect, and remedy employee misclassification and also provide an opportunity to “foster, promote and develop the welfare of the wage earners, job seekers and retirees; improve working conditions; advance opportunities for profitable employment; and guarantee work-related benefits and rights.”

Employers have appreciated the advantages of work arrangements with those considered to be independent contractors because these arrangements often allow for cost savings and flexibility.  The “advantages” can be significant, as employers do not pay unemployment insurance taxes, workers' compensation premiums, or the employer's portion of Social Security and Medicare taxes for independent contractors.  In addition, these workers generally are not eligible for other benefits such as insurance and retirement benefits and also are not protected by most employment laws and, therefore, typically give up overtime wages, pensions, and protections from unlawful discrimination.   

So, what do the Memorandums of Understanding and the Misclassification Initiative mean for employers? Employers who use independent contractors should be prepared to defend its classification of these workers as independent contractors. Employers may risk exposure to liability for failure to pay minimum wages and [any applicable] unpaid overtime, unpaid payroll and related taxes and withholdings, as well as liquidated damages, fines, penalties and any potential attorneys’ fees and costs. 

The determination of whether a worker is an independent contractor or an employee can be very difficult and may even vary from law to law.  Visit some of the applicable IRS and DOL websites and review the factors for determining an employment relationship and employee or independent contractor status.

In addition, the IRS announced, on September 21, 2011, a new program, the Voluntary Classification Settlement Program (VCSP) designed to permit businesses to voluntarily reclassify workers as employees for employment tax purposes for future tax periods with partial relief from federal employment taxes. To participate in this new voluntary program, the taxpayer must meet certain eligibility requirements, apply to participate in VCSP by filing Form 8952, Application for Voluntary Classification Settlement Program, and enter into a closing agreement with the IRS. 

Posted By Diane Pfadenhauer In Wage & Hour | Permalink

Title VII of the Civil Rights Act, the New York State Human Rights Law, and the New York City Human Rights Law all protect employees from workplace discrimination based on religious beliefs and practices. They also impose an obligation on New York employers to provide reasonable accommodation for the religious needs and practices of employees and prospective employees.

On August 30, 2011, New York City’s Mayor Michael Bloomberg signed legislation called “The Workplace Religious Freedom Act” which clarifies the standard that almost all New York employers must adhere to when evaluating an employee’s request for a religious accommodation.  The City law already prohibits employers from imposing any terms or conditions that would require an individual to violate or forego a practice of his or her religion as a condition of obtaining or retaining employment, and requires employers to reasonably accommodate the religious needs of the individual, provided that the accommodation does not cause an “undue hardship” in the conduct of the business.

The New York City Human Rights Law currently does not require an employer to provide a religious accommodation to its New York City employees if doing so would pose an “undue hardship”. It provides the following non-exhaustive list of factors to be considered when evaluating the presence of an “undue hardship”:

• The nature and cost of the accommodation;
• The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of person employed at the facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;
• The overall financial resources of the covered entity; the overall size of the business of a covered entity with regard to the number of employees, the number, type and location of its facilities; and
• The type of operation(s) of the covered entity, including composition, structure, and functions of the workforce of such entity; and the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.

The absence of a definition for “undue hardship” in the City law has, at times, resulted in employers and courts applying the “de minimis cost or burden” standard found in Title VII when interpreting the meaning. The Workplace Religious Freedom Act imposes the following strict standard for establishing “undue hardship” while reiterating that it is the employer’s burden to demonstrate “undue hardship”:

“Undue hardship” shall mean “an accommodation requiring significant expense or difficulty (including a significant interference with the safe or efficient operation of the workplace or a violation of a bona fide seniority system).” Factors to be considered in determining whether the accommodation constitutes an undue economic hardship shall include, but not be limited to:

• The identifiable cost of the accommodation, including the costs of loss of productivity and the cost of retaining or hiring of employees or transferring of employees from one facility to another, in relation to the size and operating cost of the employer.
• The number of individuals who will need the particular accommodation to a sincerely held religious observance or practice, and
• For an employer with multiple facilities, the degree to which the geographic separateness or administrative or fiscal relationship of the facilities will make the accommodation more difficult or expensive.

The Act also provides that employers in New York City can establish that a religious accommodation will result in an “undue hardship” by showing that it will result in the employee’s inability to perform the essential functions of his or her position. 

The remedies and penalties for engaging in unlawful religious discrimination are unchanged by this Act. The remedies for statutory violations may include reinstatement, back pay, compensatory and punitive damages and attorney’s fees. An employer violating the Act also is also subject to a civil penalty of $125,000.

Employers should take caution when determining whether or not a religious accommodation is a “reasonable” one or whether it causes an “undue hardship”. Employers covered by the Workplace Religious Freedom Act should consider taking the following actions:

• Review their procedures and policies, particularly those that prohibit religious discrimination, govern requests for religious accommodation, and/or set requirements with respect to personal appearance, to ensure they are up-to-date and consistent with the standard under the new City law;
• Review job descriptions to ensure that the essential functions of each position are described accurately; and
• Review the need to provide religious accommodations with Human Resources professionals and supervisors to ensure they know to engage in an individualize interactive process with employees who request religious accommodations and consider relevant factors, including those listed in the amended City law, before granting or denying a request.
• Be aware that a request for a religious accommodation, which might have been denied in the past, may need to be revisited to ensure compliance with the City law.

Employers should ensure that all requests for religious accommodation are analyzed on an individual basis and ensure that all applicable policies are carefully reviewed.

Posted By Diane Pfadenhauer In New York Law | Permalink

The National Labor Relations Board (NLRB) has issued  a new poster requirement  (Final Rule for Notification of Employee Rights) which will be effective on November 14, 2011.  Employers should begin posting the notice on November 14, 2011; copies of the notice will be available on the NLRB website (www.nlrb.gov) and from NLRB regional offices (www.nlrb.gov/who-we-are/regional-offices) by November 1. 

All employers covered by the NLRA – union, non-union, federal contractor and non-contractor – will be required to notify employees of their rights under the Act.  Such notification must be made by posting a mandatory notice in conspicuous places and where other government posters are posted.  The posting requirement applies to all private-sector employers (including labor unions) subject to the National Labor Relations Act, which excludes agricultural, railroad and airline employers.  The Board has agreed to exempt the U.S. Postal Service for the time being based on comments received after the announcement of the proposed rule as well as that organization’s unique rules under the Act.  Government contractors and subcontractors who already have a similar posting requirement for a U.S. Department of Labor poster (the Beck Notice), will be deemed to be in compliance if the post the USDOL poster.

The NLRB notice provides employees with general information about their rights and about the obligations of employers and unions under the NLRA.  The notice states that employees have the right to organize, form, join or assist a union, to bargain collectively to improve wages, benefits, hours, and other working conditions, to discuss terms and conditions of employment with fellow employees or a union, to take action with those fellow employees to improve working conditions, and to strike and picket.  The notice also informs workers that they have the right to refrain from any of these activities.  The notice also offers examples of illegal employer and union conduct and instructs employees on how to contact the NLRB with any questions or complaints.

The Board will provide copies of the notice to employers beginning on or before November 1, 2011.  The notice of rights will be provided at no charge by NLRB regional offices or by downloading from the NLRB’s website – www.nlrb.gov.  The copies are can be printed in color or black and white on one 11” x 17” paper or two 8” x 11” papers taped together.  Employers can also satisfy the requirements by purchasing and posting a set of workplace posters from a commercial supplier.

If covered by the rule, employers must post the notice in a conspicuous place where it would be readily seen by its employees.  In addition to the physical posting, the rule requires every covered employer to post the notice on an internet or intranet site if personnel rules and policies are customarily posted there. 

Translated versions will be available and the notice must be posted in English and in another language if at least 20% of employers are not proficient in English and speak another language. 

Failure to post the notice may be treated as an unfair labor practice under the National Labor Relations Act.  The Board expects that, in most cases, employers who fail to post the notice are unaware of the rule and will comply when requested by a Board agent.  If this is the case, the unfair labor practice case will typically be close without further action.  The Board may also extend the 6-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer.  If an employer knowingly and willfully fails to post the notice, the failure may be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the NLRA.

Posted By Diane Pfadenhauer In Labor Relations , Policies & Procedures | Permalink

In light of the predictions about Hurricane Irene and her potential impact on upwards of 80 million people along the east coast, here are some useful links for employers and individuals:

1.  A past post I wrote with a useful link to a comprehensive article on compliance issues: 

Hurricane Preparedness for Employers

2. FEMA's website on Hurricane Preparedness

3. Weather Safety Awareness from Weather.com

4. National Hurricane Center

5.  Long Island Prepares - American Red Cross information for Long Island

6. NYC Office of Emergency Management

7.  NYC Office of Emergency Management Hurricane Guide

8. NYC Evacuation Zone Finder

9. Latest Up-to-date storm guides for NY Metro Area

10.  Detailed PDF Map of NYC Evacuations Zones A, B & C

Good luck and be safe!!

Posted By Diane Pfadenhauer In Miscellaneous | Permalink