Strategic HR Lawyer

All too often when HR professionals are looking to conduct background checks on applicants, they first delve into the issue of price and then, maybe but not likely, delve into the issue of competence, integrity and accuracy.  An interesting post over at fellow Lexbloggers and friends at Bond Schoeneck & King's New York Employment Law Report demonstrates the concerns associated with complying with  both the Federal and the New York Fair Credit Reporting Acts.  Author, Kristin Smith,  who notwithstanding her youthful appearance in her corporate mug shot (young enough to be my daughter, perhaps) reveals the sad truth in this area: "state law contains more restrictive requirements. For that reason, it is a mistake to assume a background check vendor has all the technical requirements covered."

I cannot tell you how many times I have had a client question me about background investigations.  I look at the documentation and everything is written surreptitiously to protect the company doing the background investigation, not the employer.  With all vendors, HR professionals must be diligent in ensuring that their company's interests are protected, that the responsibilities for performance for engaged services are met and that areas of potential liability are not dumped upon the employer in the small print.  The CYA approach to doing background investigations puts employers at risk and it is important to fully and completely understand both the federal and state requirements that are imposed on employers.  Don't expect your vendor to educate you and assume any risk - and be responsible!

For a more comprehensive discussion of state and federal law requirements in this area, see Kristin's post here:  Avoid A Few Common Mistakes When Conducting Background Checks

For a detailed discussion on general employment law requirements imposed on New York Employers, see my latest book:  The Employer's Guide to New York Employment Laws

Posted By Diane Pfadenhauer In Policies & Procedures , Staffing, Recruitment, Selection | Permalink

My blogging has been scarce of late due to grading finals and papers, but it should be noted that yesterday President Obama signed into law HR 3326 which extends the C.O.B.R.A. subsidy provisions under A.R.R.A.  Technically HR 3326 is the Department of Defense Appropriations Act of 2010.  But for those willing to scroll down to page 64 of the 67 page statute you will find the COBRA provisions in Section 1010.

I'll attempt to summarize and clarify the unwieldy statute in the near future, once I emerge from my grading....  In the mean time for the brave and daring.....go to page 64 of the statute by following the link above.

Posted By Diane Pfadenhauer In Compensation & Benefits | Permalink

Lovely.  Let's [NOT] thank our fine New York State Department of Labor for its communication skills! 

A few weeks ago, they managed to put everyone into a tizzy by announcing that employers had to use their own poorly written, misleading form to inform employees about their wage rate on hire.  Now, with NO fanfare, announcement or anything, they've back-peddled on the whole idea and haven't told anyone!

Here's the text from the DOL press release on 10/29: The notice must be provided on a form available from the New York State Department of Labor, and must be given to new employees before they do any work.

Here's the where the link from the press release takes you ( with key language I have highlighted in bold).  Language regarding the use of their notice - GONE - with no fanfare or updated announcement:

Starting on October 26, 2009, employers must give newly-hired workers written notice of the rate at which they will be paid and their regular payday, under Section 195.1 of New York’s Labor Law. The notice must be given to new employees before they do any work.

The written notice must also include the employee’s overtime rate of pay, if they qualify for overtime. Most employees must receive overtime pay at one-and-a-half times their regular rate of pay for all hours they work over 40 in a given week. A very few occupations are not covered by the overtime provisions of labor law, such as farm workers and professionals.

No particular form is required.  Employers may create their own forms, or use and/or adapt a sample form available at the link below.  In the near future, sample forms for a variety of pay agreements (salaried, prevailing rate, exempt, and others) will be provided here.

Hey, I'm all about protecting employees from unscrupulous employers.  However, I am not at all a fan of issuing regulations and requirements that are not carefully thought through, misleading, poorly communicated and add additional expense for my clients to do business - particularly in this economy.

Posted By Diane Pfadenhauer In New York Law | Permalink

For those who haven't heard, there is legislation pending that would extend ARRA's COBRA provisions.  HR 3930 would:

• Permit individuals who are involuntarily terminated between April 1, 2008 and December 31, 2009 to continue group health benefits under COBRA for a period of 24 (instead of the usual 18) months. If the individual’s coverage has expired by the time the legislation is enacted, the individual would have the right to elect COBRA coverage for the additional 6 months.

• ARRA would be amended to extend the 65% subsidy until June 30, 2010, and the subsidy would end the earlier of up to 15 months or until December 31, 2010.

Follow this link to:  H.R. 3930: Extended COBRA Continuation Protection Act of 2009

Posted By Diane Pfadenhauer In Compensation & Benefits | Permalink

The scenario:  an employer is conducting a search for an important position.  Part of the interview process involves flying candidates to the corporate headquarters to meet the big wigs for the final interview.  The interviews so far have gone well.  The HR staff coordinates the travel arrangements and runs into a slight hiccup:  how to ask the applicant for his date of birth so that staff can make travel arrangements without opening itself up to questions about inappropriate age inquiries.

Recently, the Transportation Security Administration implemented a rule that requires flyers to provide their date of birth and gender when making airline reservations.  This half-brained idea is supposed to allow the TSA to compare reservations with no-fly lists.

As everyone knows, asking an applicant for his/her date of birth raises suspicion, regardless of the reason.  In addition, let's not even address issues relating to privacy concerns which arise as a result of providing confidential information to the employer and then the travel agent.  Who knows who will get their hands on this information.

Too bad this rule flies in the face of other rules that employers are subjected to.  It would have been nice if the left hand spoke to the right hand.  Gee, maybe that's why my passport card  - which was touted by the government as a great idea - says it's not approved for flying.  Lovely, I got one so that I can basically be forced to use other identification 99% of the time anyway.

Posted By Diane Pfadenhauer In Policies & Procedures , Staffing, Recruitment, Selection | Permalink

Alas, it has been so many years since I started this blog that I almost forgot its 5 YEAR anniversary until I was standing in front of 125 participants attending a HRNY (Human Resources Association of New York) talking about recent federal legislation and I remembered a rainy November weekend five years ago when I started this blog (November 12, 2004 to be exact).  I thought it worthy of a little celebration, but it was far too early in the day to break out the champagne.

When I started the blog, it was along the lines of wanting to able to share information with other practitioners that would be free and, hopefully, useful - no subscriptions, no fees, no passwords.  I have also used it as a platform to occasionally rant.  Over the years it has become a searchable data base that I know many people use for a first stab at finding a solution to their problem or issue.  I try to always provide a link where I can to other sources of  information that is hopefully explanatory or authoritative.

As one of the few bloggers at that time, I started the blog using typepad and did everything myself.  There were about a dozen or so regulars out there from Michael Fox, to George Leonard, to the folks at the Workers' Comp Insider and to Michael Fitzgibbon up North. Also, the Labor Prof Blog, and Ross Runkel's blogs.  It was a relatively small community then and over the years there have been many who began blogging and quickly faded away.  Over time, I switched to having Lexblog host it - probably one of their earlier clients.  People thought I was absolutely nuts that I would pay someone to host a blog!  The reality was that I am a big technology fan and spent far too much time tweeking it and playing with it for my own good.

Today law firms and other professional service firms have jumped on the band wagon who have their blogs professionally hosted with the idea of using it as a marketing tool - likely carefully analyzing every word crafted by associates and micro managed through several layers of management before the "official posts" appear.  In addition, we have a few HR bloggers who choose to be controversial or anonymous and use that as a forum to get readers.  I, for one, enjoy the personal commentary provided by those whose passion comes through - unfiltered, written with a desire to contribute to the profession and the community and ultimately providing pearls of personal wisdom and information.  And, I hope I have contributed thoughtfully to that community over the years.

My blog has become an indispensable part of what I do professionally.  I can't imagine not writing! Many of its posts have been adapted to newsletters by my firm (and, I know by others who have "borrowed" from it).  Its information has also been used in books that I have written as well as a source of information for those who hear me speak on employment law and human resources.

I think going forward, what I'll change about it is, well, nothing. Thanks for reading.

Posted By Diane Pfadenhauer In Miscellaneous , Weblogs | Permalink

HR is NOT and should never be, under any circumstances whatsoever, responsible for egg salad sandwiches, toilet paper in the rest room, and other nonsensical issues related to boorish behavior or poor manners.  There, I've said it and feel a little better.

I stumbled upon a ridiculous blog post about a human resources manager posting a notice in the company cafeteria warning employees not to steal each others' food.   What I found most appalling was not that the employees were stealing each others' food but that the HR manager felt that he/she "had to" post a notice governing refrigerator behavior.  What fools think that it is HR's responsibility to monitor the refrigerator in the employee cafeteria?  And, let me guess, these are the same fools that are upset that they "don't have a seat at the table," that they are "underpaid" relative to their colleagues with similar titles, or that they "don't get no respect."

Come on!  With all of the uncertainty in the economy, health care in its current state, employee engagement at its lowest point in who knows how long, this is not what HR professionals should be focusing on.  Those that do, are missing opportunities to improve the workplace, provide value to their organizations, and make a positive difference in so many other, professional, ways.

Posted By Diane Pfadenhauer In HR Strategy | Permalink

Yesterday President Obama signed into law the National Defense Authorization Act of 2010 which greatly expands the federal Family and Medical Leave rights of military personnel and their families.  Some of the notable changes for private sector employers include:

• Eligible employees will be able to take military caregiver leave for veterans who served in the regular Armed Forces, the Reserves within 5 years of the date the veterans undergoes medical treatment, recuperation, or therapy. This differs from current law in that military caregiver leave is now only available to care for current members of the Armed Forces, Guard, or Reserves.

• Military caregiver leave is expanded to cover aggravation of existing or preexisting injuries incurred in the line of duty while on active duty. Currently, DOL regulations exclude aggravation of existing injuries incurred in the line of duty while on active duty as a basis for taking military caregiver leave. When the serious injury or illness rises to the level of a subsequent injury or illness an employee will be entitled to take military caregiver leave for the same covered service member.

• Qualifying exigency leave is expanded to cover members of the regular Armed Forces who are deployed to a foreign country. Currently, qualifying exigency leave is only available for covered military members in the Reserves or Guard.

The U.S. Department of Labor and Office of Personnel Management will work with the Secretaries of Defense and the Veterans Administration in formulating regulations to carry out the amendments, so be careful!

Interestingly, it is unclear whether the legislation is effective immediately or whether it will become effective with the issuance of implementing regulations.

Thanks to Carl Bosland of the FMLA Blog for bringing this important change to our attention.

Posted By Diane Pfadenhauer In FMLA | Permalink

The New York State Department of Labor has just issued a model notice for employers and a fact sheet (for both employers and employees) explaining the new requirement under Labor Law Section 195 which requires employers to advise new hourly employees of, among other things:

• their hourly rate
• their potential overtime rate

The form also includes notice of pay days which was already required under state law.  The State DOL had previously issued a model notice for temporary agencies.  Interestingly, in a new twist, it appears that the DOL is now requiring that you use their particular form.

You can find these notices/forms here, and should complete them in accordance with your particular organizational situation.

Follow these links:

Notice and Acknowledgement of Wage Rate and Designated Payday Hourly Rate Plus Overtime

Notice of Pay Rate and Payday for New Hires (for employers and employees)

Posted By Diane Pfadenhauer In New York Law | Permalink

It seems that employers and employees don't necessarily agree.  A recent survey suggests that  "...Employers and employees have dramatically different opinions of why workers remain in their jobs, showing US companies may struggle to retain employees in an improved job market."

For employees its 1) benefits, 2) financial compensation, and, 3) their career growth and earnings potential.  Employers, however, believe that management climate, supervisor relationships and culture and work environment keep their employees at work.

In my experience, managers always seems to have a relatively warped sense of their value to employees.  They believe that they are engaging, motivate employees, have open door policies and send messages to employees that they are valued.   For their employees, it seems that according to this survey, nuts and bolts count first, particularly in this economy.  Even if employers do believe this about themselves, many times their actions in practice are contrary to the spirit of these employee-friendly policies.

Not all employers are as misguided as I suggest, but if an employer doesn't even know why employees work there, that's a problem.  And those that think human resources is back office administration, holiday parties and compliance are the ones most likely to fall into this trap and face massive turnover once the economy recovers

Follow this Link:  Firms, workers differ on why people stay in jobs

Posted By Diane Pfadenhauer In Employee Relations , Trends | Permalink