NLRB Issues New Poster Requirements for Most Employers - Effective 11/14/11
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
Remember Three Simple Words - Water, Rest, Shade - and Prevent Heat Illness on the Job
Every year thousands of workers face the hazards of working outdoors and becoming sick from heat exposure. What is heat illness? During hot weather, the body cannot sufficiently cool itself by it normal sweating process. The body temperature can rise to dangerous levels if safety measures are not taken; and heat illnesses can range from heat rash and cramps to heat exhaustion and heat stroke.
The US Department of Labor’s Occupational Safety & Health Administration (OSHA) has put together a campaign to raise awareness to prevent heat-related illness among workers and employers about the hazards of working outdoors in the heat and the steps needed to prevent heat-related illness.
OSHA has developed heat illness educational resources as well as materials for workplace training for heat illness. This information, available in English and Spanish, provides information and resources on heat illness, how to prevent it, and what to do in an emergency. They are also partnering with the National Oceanic and Atmospheric Administration (NOAA) with weather service alerts, incorporating safety precautions when these alerts are issued, and worker safety information.
Be aware of the types of heat illnesses, who is at risk, and prevention when working outdoors:
Types of Heat Illnesses:
• Sweaty skin
• Fast heart beat
• Nausea, vomiting
• Red, hot, dry skin
• High temperature
Who is at risk?
• Workers exposed to hot and humid conditions
• Workers doing heavy work tasks or using bulky protective clothing and equipment
• Those who have not built up a tolerance to the heat or are in poor physical condition
• Older workers
• Workers with heart disease, high blood pressure, or those taking certain medications
Some very simple tips for preventing illness when working outdoors:
• Drink plenty of fluids and water often – even if you aren’t thirsty
• Wear a hat and lightweight light-colored clothing that reflects heat and sun
• Adjust work/rest schedules for breaks and limited time in the heat
• Rest in the shade
• Watch out for each other - Look for and report heat symptoms early
• Know what to do in an emergency
Do the Right Thing When it Comes to Hiring Summer Help
Are you considering hiring teens this summer? The US Department of Labor website provides useful information for compliance with state labor laws … it may be time to review child labor rules and regulations.
The Department of Labor monitors child labor and enforces child labor laws and under the Fair Labor Standards Act (FLSA). These rules vary depending upon the age of the worker and his or her occupation. With the FLSA – Child Labor Rules Advisor one can view an introduction to federal child labor rules and link to discussions on the US DOL Wage and Hour Division State Labor Laws.
The US DOL Wage and Hour Division also provides a summary of Employment/Age Certification Issuance Practices Under State Child Labor Laws. The Federal government does not require work permits or proof-of-age certificates for a minor to be employed. However, many states may require them for workers of certain ages. These certificates help to protect the employer from prosecution for employing an under-aged worker. Having these age certificates constitutes a good faith effort to comply with minimum age requirements.
For employers in New York, in addition to the many resources available on the Department of Labor Wage and Hour Division State Labor Laws site we referenced above, you can visit additional links specific to the New York State Department of Labor as they relate to Laws Governing the Employment of Minors.
Don’t make a mistake when it comes to hiring minors this summer – do the right thing.Posted By Diane Pfadenhauer In Employment Law , New York Law , Policies & Procedures , Staffing, Recruitment, Selection , Wage & Hour | Permalink
Social Networking Sites and Employment: Watch Out for GINA
There has been quite a buzz of late on the use of information found on social networking sites in employment. Often the concern arises when information that may become the basis of an adverse employment decision is found and relates to a protected characteristic. In other words, the employer didn't mean to stumble upon certain protected information when "google-ing" the applicant but did so. And the next question usually relates to how the employer might demonstrate that this newly found information concerning a protected characteristic did NOT play into the employment decision.
The Genetic Nondiscrimination in Employment Act makes the mere collection of the information illegal. In other words, and ably explained by Megan Erickson in her Social Networking Law Blog,
"With respect to social media issues specifically, GINA makes the mere acquisition of genetic information illegal. Because the Act broadly defines the term “genetic information” (including even medical conditions of family members), checking out an employee’s or applicant’s Facebook profile could easily result in a violation. For example, if an employer found an employee’s status update saying he is raising money for multiple sclerosis in honor of his father who is suffering from it – just getting that information could be a violation."
We are still awaiting the final regulations under GINA. In the mean time, be careful!Posted By Diane Pfadenhauer In Employment Law , Policies & Procedures , Staffing, Recruitment, Selection | Permalink
Executive Order 13496 Requires Notice to Employees of Right to Organize
Make room on your corporate bulletin boards. Federal contractors and subcontractors are now required to inform employees of their rights under the National Labor Relations Act (NLRA). The notice, prescribed in the Department of Labor's regulations, informs employees of Federal contractors and subcontractors of their rights under the NLRA to organize and bargain collectively with their employers and to engage in other protected concerted activity. Additionally, the notice provides examples of illegal conduct by employers and unions, and it provides contact information to the National Labor Relations Board. Federal contractors and subcontractors are required to post the prescribed employee notice conspicuously in plants and offices where employees covered by the NLRA perform contract-related activity, including all places where notices to employees are customarily posted both physically and electronically.
The notice must be posted by June 21, 2010.
Follow this link to the poster: Employee Rights Under the National Labor Relations ActPosted By Diane Pfadenhauer In Federal Contractors , Labor Relations , Policies & Procedures | Permalink
Caution When Conducting Background Checks
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 LawsPosted By Diane Pfadenhauer In Policies & Procedures , Staffing, Recruitment, Selection | Permalink
Traveling Applicants: Catch-22
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
More on Texting While Driving
So, maybe the federal government is smart after all. President Obama recently signed an Executive order that bans texting while driving for federal government employees. It immediately affects 4.5 million federal and military personnel.
Even more interesting, however, is that:
"Separately, the federal government plans to ban text messaging by bus drivers and truckers who travel across state lines, and may also preclude them from using cellphones while driving, except in emergencies."
For those employers who have not yet addressed this issue from a policy perspective - including addressing the use of other technology (like cell phones) while driving, it's time to wake up. Not only will such employers reduce potential liability as the result of reduced accidents, they will free employees from the pressure of feeling as though they have to respond immediately while on the road.
Follow this link: Texting While Driving Banned for Federal StaffPosted By Diane Pfadenhauer In Policies & Procedures | Permalink
Working from Home: Some Thoughts for HR
With the price if gas inching north again and the recession upon us, more and more employees are working remotely. While the availability of technology provides the tools to enable many of us to work at home, it will not work for all of us. The fact that it will not work for all of us really has nothing to do with technology - it's us. For those HR practitioners in the throes of evaluating work-at-home arrangements, the following are some considerations to explore with your employees (and their managers) who are advocating to work at home which should raise flags about the ultimate effectiveness of the arrangement:
1. They are dependent on face-to-face interaction when acquiring information.
2. They are afraid of technology.
3. They need supervision to get things done.
4. They equate busy-ness with productivity.
5. They are not organized.
6. Their work ethic is largely dependent on moods.
7. They can’t say no. Teleworking requires the ability to prioritize ruthlessly.
Thanks to Web Worker Daily for these great considerations.Posted By Diane Pfadenhauer In Policies & Procedures | Permalink
More on the Fringe of Employer Liability
This time, the question is whether an employer can be held liable for injuries occurring in a car accident in an employees commute home? Well, if you are in California, the answer may be yes. In an interesting case involving Warner Brothers, an employee was traveling his usual commute home, although this time from a business conference (not his regular job) and was involved in an accident resulting in several injuries. Injured pedestrians sued Warner Brothers for the negligence of its employee. An appellate court found liability on the part of the employer by noting that the drive home from the conference was more like a "special errand" for the employer rather than a commute home (even though it was essentially the same route) and thus fell within the scope of his employment.
Follow this link to: C. Jeewarat, et. al. v. Warner Brothers EntertainmentPosted By Diane Pfadenhauer In Employment Law , Policies & Procedures | Permalink
USCIS E-Verify Guide Issued Specifically for Government Contractors
As everyone knows, government contractors are now required to use use E-verify. The requirement to use E-verify went into effect on September 8th. In an effort to assist contractors who have not previously used the system, USCIS has issued a comprehensive guide specifically for contractors. The guidance provides specific information with respect to how contractors must use the system, which employees are affected and when the verification rule applies. It also provides a time line for compliance for new contractors or those awarded new contracts.
Follow this link to: E-Verify Supplemental Guide for Federal ContractorsPosted By Diane Pfadenhauer In Federal Contractors , Immigration , Policies & Procedures , Staffing, Recruitment, Selection | Permalink
CDC's Latest H1N1 Communication Toolkit for Businesses and Employers
The Centers for Disease Control has made available a Communication Toolkit for Businesses and Employers in order to provide tools to deal with what is predicted to be a heck of a flu season this year - possibly affecting half of us! The guidance is a hefty 37 pages and contains the following:
- Quick Reference for Business 2009 H1N1 Flu Planning and Response
- A Fact Sheet for Employers - Actions Steps to Keep Your Business and Employees Healthy
- A Fact Sheet for Employees - 8 Ways You Can Stay Healthy at Work
- A Poster for Workplace Entrances to Remind Sick Employees to Go Home
- 3 Template E-mails (or Letters) for Businesses to Send to Employees
- Text Messages for Businesses to Send to Employees
- Additional Communication Resources for Businesses to Share with Employees
- Additional Web Resources for Businesses to Use for Planning
Now is the time to start thinking about how you will handle and possibly modify your HR policies.
Thanks to Jeanne Stewart, SPHR, President of SHRM-HRNY for bringing this to our attention.Posted By Diane Pfadenhauer In Policies & Procedures | Permalink
Fall is Coming and So is the H1N1/Swine Flu
Just as we try to enjoy the last few weeks of Summer, it's not to late to be contemplating the possible effects of the HINI Flu Virus. The EEOC has also gotten on the bandwagon by making available guidance information under the Americans With Disabilities Act. The Guidance addresses infection control, pre-employment inquiries, and provides a brief FAQ so that you can begin preparing for the effects of a possible pandemic.
The Centers for Disease Control has also made available comprehensive information on its website. It recently, for example, issued guidance relating to school closures. You can bet that such closures will have an impact on employee attendance. In addition, you will also find guidance on how long a victim of the flu should be kept away form others (give this one to your work-aholics).
Follow this link to the EEOC's Guidance: ADA-Compliant Employer Preparedness For the H1N1 Flu Virus
Follow this link to: The CDC's Web Page on H1N1 Flu (Swine Flu)Posted By Diane Pfadenhauer In Policies & Procedures | Permalink
Lawsuits Spur from After Hours PDA Use
As predicted, the concerns about after-hours cell phone and PDA use without compensation have come to full fruition. According to a recent WSJ article, several employees of T-mobile have sued the firm alleging that they were required to respond to messages after work and did not receive compensation for it. In addition, several months ago an employee of CB Richard Ellis made similar allegations.
While the article suggests that employers may be promoting the practice of employees conducting business on their cell phones and PDA's after hours, I think one of the real concerns is the employee who sets up and utilizes such tecnology on his own. Many employees use their own cell phones and check email from home. The unwary employer may find that this same seemingly hard-working employee may become disgruntled and turn that extra time of which the employer was not even aware into an wage and hour claim.
Follow this link to: Lawsuits Question After-Hours Demands of Email and Cellphones
Thanks to Labor Prof Blog for bringing this to my attention. I actually never had time to read my WSJ yesterday. Just got back from a Carribean vacation and figuring out how to drive on the right side of the road again!Posted By Diane Pfadenhauer In Policies & Procedures | Permalink
Text Messages Increasingly Used as Evidence in Sexual Harassment Claims
Textual Harassment? I recently reviewed a friend's cell phone bill. Her 14 year old son had sent 2500 text messages that month. Seems now that such frequency is not limited to 14 year olds. Your employees are texting and they're not being very nice. It used to be that email was considered the smoking gun of workplace investigations. If that's so, then text messages are now the exploding cannon!
According to a recent article in the National Law Journal (subscription required), “Perhaps the biggest culprits...are male bosses who are sending scandalous text messages to female employees, asking them out on dates or promising promotions in exchange for sexual favors. These texts are explosive evidence in lawsuits, and pretty tough to dispute.”
The article further cites a recent case where two collegiate athletes received a large settlement from a university after alleging that they were sexually harassed by their coach. He had apparently sent text messages which were useful in helping their claims.
As we've said here before, social media and technology policies are a must for every organization!
Posted By Diane Pfadenhauer In Employment Law , Policies & Procedures , Trends | Permalink
Facebook: Almost 30% of All Users are Between 35 and 54
It's time to button up those technology, web and social networking policies! Contrary to popular thinking, only about 25% of Facebook users are under 35. 24- to 34-year-olds represent only about 25 percent of users. The reasons for this growth in the older population signing on is attributed to more job networking (or perhaps seeing what their children are doing on there). Since January, the number of new users between ages 35 to 54 grew 190 percent, to 20.2 million, according to a study by iStrategyLabs, an online marketing firm. New users 55 and older grew 590 percent, to 5.9 million.
These are the core of your employees. And, why is it that there are still a fair number of people who have yet to embrace these policies? I suspect that while the number of people who use social networking sites is exploding, there are still a fair number of luddites out there. Some blogs have been around since the last decade (including this one for almost 5 years) and yet there are still people who have no idea what a blog is.
I attended a major networking meeting featuring a renowned speaker a few weeks back who swore that Twitter was just a flash in the pan and would soon disappear. So perhaps this brilliant speaker is right. Even if that were the case, there would be other sites and technological advances to replace it and those firms that don't adapt their policies will soon find themselves dealing with the perils that can come when trade secrets are lost or other damage occurs to the company through the errant use of these sites.
Posted By Diane Pfadenhauer In Policies & Procedures , Trends | Permalink
Layoffs, Severance and Other Questions
I have been doing a fair amount of writing lately on the subject of layoffs, severance and related issues. No wonder with unemployment reaching 8.5%. In addition to an upcoming article which will appear soon in the Daily Bankruptcy Review, I have also written a lengthy article on planning and communicating for layoffs that will appear in the Journal of Private Equity.
More than occasionally I am questioned by individuals regarding severance and layoff issues and I was recently quoted in the technology job board, Dice and also eFinancial Careers on individual options when negotiating severance.
There is a slew of other information out there from attorneys who represent individuals, including, for example, the Ottinger Firm right here in New York, which has a recent post on The Top Five Questions and Answers About Layoff and Severance. Since so many of us have been or know someone who has recently been or is about to be laid off, a little bit of knowledge may go a long way.Posted By Diane Pfadenhauer In Policies & Procedures | Permalink
Transit Benefit Increase
Part of the AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 deals with the subject of transit benefits. Previously, employers could offer a benefit to employees to permit them to spend $120 of pre-tax income in an employer-sponsored commuter benefits program and then use this money to pay for mass transit. ARRA raises the commuter mass transit benefit to $230 per month which is equivalent to over $1000/year. I know when I was commuting daily to New York City a few years ago, the $120 barely made a dent in my commuting costs. With the seemingly annual increases in subway and train fares, this is a badly needed increase.
The new amount is intended to be equivalent to the amount previously available for parking and is intended to be indexed in 2010.
See the following - page 13 - for a brief summary of the subsidy. THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009 – FEBRUARY 12, 2009 - FULL SUMMARY OF PROVISIONS FROM SENATE FINANCE, HOUSE WAYS & MEANS COMMITTEESPosted By Diane Pfadenhauer In Compensation & Benefits , Employment Law , Policies & Procedures | Permalink
Ban on Cell Phones While Driving
The state of New Jersey is have a nice time patting itself on the back regarding what it touts as the success of its hand-free cell phone ban. About a year ago, the state made driving with a hand held cell phone a primary offense which means that instead of trying to find another reason to pull you over if you were talking with a hand-held cell phone, they can now target the cell phone offender without another violation. The result has been about 109,000 summons. Those adding comments to the news article are annoyed that there hasn't been a claim of saved lives, but perhaps just more revenue for the state through summonses. Here in New York, I see more drivers than not yammering away on their cell phones. Every time I see someone driving a bit "off," I invariably notice he/she is yakking away on a cell phone plastered to the ear. And, I can tell you from my own experience having one car with an integrated bluetooth enabled system and one without, I dread talking on the phone in the one without due to the distraction of making and answering calls, even with a headset.
So for those of us responsible for human resources policies, make sure yours addresses driving with cell phones and complying with state and local laws.Posted By Diane Pfadenhauer In Policies & Procedures | Permalink
IRS Mileage Rate for 2009 Goes DOWN to 55 Cents
The IRS recently announced the mileage reimbursement rate for 2009. It is going from 58.5 cents/mile this year down to 55 cents/mile next year. Here are the details from the IRS announcement:
Beginning on Jan. 1, 2009, the standard mileage rates for the use of a car (also vans, pickups or panel trucks) will be:
55 cents per mile for business miles driven
24 cents per mile driven for medical or moving purposes
14 cents per mile driven in service of charitable organizations
The new rates for business, medical and moving purposes are slightly lower than rates for the second half of 2008 that were raised by a special adjustment mid-year in response to a spike in gasoline prices. The rate for charitable purposes is set by law and is unchanged from 2008.
The business mileage rate was 50.5 cents in the first half of 2008 and 58.5 cents in the second half. The medical and moving rate was 19 cents in the first half and 27 cents in the second half.Posted By Diane Pfadenhauer In Policies & Procedures | Permalink
Final Rule on the Family & Medical Leave Act
For Military Personnel:
- Military Caregiver Leave (also known as Covered Servicemember Leave)
- Qualifying Exigency Leave
- Two new DOL certification forms that may be used by employees and employers to facilitate the certification requirements for the use of military family leave.
Changes to the Overall Regulations:
- Modification to penalty provisions
- Changes to the how Light Duty is treated in connection with FMLA
- Waivers of FMLA rights
- Six individual definitions of “Serious Health Condition”
- Substitution of paid leave for FMLA leave
- Attendance awards
- Employer and Employee Notice requirements
- The Medical Certification process
- Fitness for Duty Certifications
For more information on the Final Rule, follow these links:
An Overview: DOL's Final Rule on Family and Medical Leave
From the Federal Register: The Family & Medical Leave Act of 1993; Final Rule
Posted By Diane Pfadenhauer In Employment Law , FMLA , Policies & Procedures | Permalink
Rub a Dub Dub?
Ahhhhh, the dangers of social networking sites. Well, on second thought, I'm rather glad this story was uncovered! According to Fox News,
"Several Burger King employees in Ohio are looking for new jobs after an Internet video surfaced of one worker bathing in a restaurant sink..." "The video, which was posted on MySpace.com by an employee calling himself “Mr. Unstable,” shows the teen taking a nude bubble bath in a large stainless steel sink as other employees and a store manager looked on..."
If you dare, follow this Link to the BK Tub Boy.Posted By Diane Pfadenhauer In Miscellaneous , Policies & Procedures , Weird News | Permalink
Mileage Reimbursement Rate Increases to 58.5 cents/mile
The Internal Revenue Service recently increased the standard mileage rates for the final six months of 2008. The rate increases to 58.5 cents a mile for all business miles driven from July 1, 2008, through Dec. 31, 2008.
This somewhat unusual for the IRS to make this adjustment mid-year. However, according to the IRS press release announcing the new 2008 mileage reimbursement rates, "Rising gas prices are having a major impact on individual Americans. Given the increase in prices, the IRS is adjusting the standard mileage rates to better reflect the real cost of operating an automobile," said IRS Commissioner Doug Shulman. "We want the reimbursement rate to be fair to taxpayers."
New I-9 Form Issued
Here is a link to the revised form:
Posted By Diane Pfadenhauer In Immigration , Policies & Procedures | Permalink
NLRB Reduces Rights of Employee Union Advocates to Use Employer Email
For more commentary by fellow Lexbloggers see:
- Michael Moore's commentary on the Pennsylvania Employment Law Blog
- Christopher Onstott's commentary on the California Labor & Employment Law Blog
Technology & Data Security From the Inside
IRS Mileage Rate Increases to 50.5 Cents for 2008
Posted By Diane Pfadenhauer In Policies & Procedures | Permalink
USCIS Accounces Requirement to Use New I-9 Form
Follow this link to the USCIS Press Release: USCIS Reminds Employers to Transition to New Employment Eligibility Verification Form by Dec. 26, 2007
Follow this link to the new I-9 form: I-9 Employment Eligibility Verification Posted By Diane Pfadenhauer In Policies & Procedures | Permalink
Proving Dependent Status for Benefits Coverage
According to this article, audits are conducted in a variety of ways.
- Some companies start with an amnesty program, permitting workers to quietly remove those who don't belong on the plan.
- The employers will take step of requiring workers to submit proof of eligibility before family members can remain on the plan.
- Some audits have all workers fill out a questionnaire about dependents but only later collect documentation from a random sample.
Here's the kicker:
5 percent to 10 percent of dependents will come off the rolls after an audit, including those dropped because workers didn't submit the paperwork. Some companies with more generous benefits plans have seen 20 percent of dependents dropped.
All you have to do is "do the math" on this one and it's obvious why employers would do audits.
Posted By Diane Pfadenhauer In Compensation & Benefits , Policies & Procedures | Permalink
E-Verify Picking Up Steam
The basic idea of the system is for employers to be able to verify the information contained in documents submitted for I-9 purposes. It recently added the ability to verify photographs as well.
While participation is now voluntary, employers will need to register for the program in order to use it. In addition, it's possible that all government contracts will need to use it some day. Posted By Diane Pfadenhauer In Policies & Procedures | Permalink
Thanks to Technology, Workplace Gossip Flourishes
- the office break room (36%),
- at a co-worker's desk, workstation or office (33%),
- through e-mail or instant messaging (10%).
- only 1% of employees say they head to the water cooler to learn what's really going on.
Article on Plant Closings and the WARN Act
Perhaps some recent employers in the news with significant layoffs could learn a thing or two... Posted By Diane Pfadenhauer In Corporate Turnaround , Employee Relations , Employment Law , HR Strategy , Policies & Procedures | Permalink
Lack of Trust in Telecommuting
Nearly one-third, or 31 percent, said their organizations are concerned about document safety regarding telecommuting. Fears of lowered productivity and trust issues were close behind, at 27 percent and 25 percent, respectively.Seems that there are still several perceptions out there that prevent some from embracing telecommuting:
- The idea that it's a perk. It's NOT a perk. It is something that is used when appropriate for a given organizational culture, and a job whose design makes it a viable alternative.
- Security is an issue. Why not take all that money you are saving in real estate costs and put it into data security? There are plenty of companies that have figured out how to operate major functions virtually with a little creativity.
- Workers' Compensation. Why not come up with a policy to deal with potential problems in this area rather than presuming it can't work?
- Are people actually working? There we go with that face time problem again. Certainly, while all jobs are not appropriate for telecommuting, if we evaluate employees on face time, we're missing the whole point. We should be evaluating employees on results and effectiveness, not how much we saw their faces.
- It's not as effective - I hear this all the time when I teach online classes. The fact of the matter is that there are plenty of students who fall asleep in class, just like there are employees who don't accomplish much on a given day in the office. I'd rather have an employee or student who is fully engaged regardless of the setting, than one who just shows up to show their face!
EEOC Interested in Employer Testing and Screening Procedures
“Today employers commonly use a range of employment tests and other screening tools to make hiring, promotion, termination or other employment decisions,” said EEOC Chair Naomi C. Earp. “With the growth of technology, buttressed by post-9/11 security concerns, it is important that employers review their applicant selection procedures to ensure they are non-discriminatory.”Discussion topics included:
- written tests
- criminal and credit histories as a basis for selection
- medical exclusions in hiring
- employer best practices
- the increased use of personality and integrity tests.
"Following an EEOC determination that the city’s use of the examinations violated Title VII, the Justice Department conducted its own investigation and determined that the city’s use of the [written] examinations also constituted a pattern or practice of discrimination against both black and Hispanic applicants."Posted By Diane Pfadenhauer In Employment Law , Policies & Procedures , Staffing, Recruitment, Selection | Permalink
Being Too Connected
This reminds me of one of my pet peeves about cell phones and driving. We have a hands-free law here in New York, which, in my observations, is largely ignored. I routinely see drivers yammering away on their cell phones, holding them up to their ears. What's most ridiculous, however, are the drivers that think they are complying when they use the speaker feature of their phones, hold them about a foot away from their heads and yell into them. Somehow, I don't think this is what our legislators envisioned when they wrote the "hands-free" law. Do you think these drivers ever heard of a headset????
Hopefully, this will prompt everyone to review their technology, cell phone and related policies to make sure employees are engaging in this dangerous behavior.
Posted By Diane Pfadenhauer In Employment Law , Policies & Procedures | Permalink
10 Things to Remember if You have to Fire Someone
Posted By Diane Pfadenhauer In Policies & Procedures 1 Comments | Permalink
Another Background Check Blunder
This stuff always annoys me. There were probably plenty of other qualified people over the years that she competed with and took jobs away from. The Background Checks Blog raises an interesting point here. Even though she joined MIT in 1978, she didn't become dean until 1997. Why didn't they conduct a background check as a standard practice when considering her for promotion? The school could have avoided all of this embarassment.
Posted By Diane Pfadenhauer In Policies & Procedures | Permalink
The Importance of Perception in Administering HR Policies
So, even if the employer works hard to make sure that the system is administered fairly, it's won't help if the employees don't believe it. It's just like the workplace investigation that the employer conducts, in an attempt to find the facts, that the employees believe is a sham to cover up wrong doing.
Lesson to be learned: Part of the administration of any policy is an understanding by all employee sectors of the fairness of the policy and communicating with the skeptics so that an employer's good intentions are not for naught.
Posted By Diane Pfadenhauer In Policies & Procedures | Permalink
Employee Fraternization Policies Held to Violate the NLRA
In it's discussion, they note that:
Employees were not permitted to "fraternize on or off duty, date or become overly friendly with the client's employees or with co-employees." A local union challenged Guardsmark's "fraternization rule" on the grounds that it discouraged protected labor activity—such as the right to join a union or bargain collectively—in violation of section 8(a)(1) of the NLRA, by prohibiting employees from meeting with each other to discuss the terms and conditions of employment. The National Labor Relations Board sided with Guardsmark. The Board found that Guardsmark employees reasonably understood that the non-fraternization rule was designed solely to prohibit interpersonal relationships that could compromise a security guard's judgment and, therefore, did not preclude protected labor activity.
The Court of Appeals for the District of Columbia disagreed, and held that the plain language of Guardsmark's "fraternization rule" could be reasonably interpreted as prohibiting protected activity.
Follow this link for Sheppard Mullin's thorough discussion on non-fraternization policies, and the NLRA.
Posted By Diane Pfadenhauer In Labor Relations , Policies & Procedures | Permalink
Working Under the Influence of Alcohol
The Research Institute on Addictions has studied addictions since 1970 and a research center of the University at Buffalo since 1999.
Those interviewed were asked:
- how often during the previous year they drank alcohol within two hours of reporting to work and how oftern they drank during the workday, worked under the influence or worked with a hangover
Based on those responses, the study estimates that:
- 2.3 million workers (1.8 percent of the workforce) have consumed alcohol at least once before coming to work
- 8.9 million workers (7.1 percent of the workforce) have drank alcohol at least once during the workday.
- 2.1 million workers (1.7 percent of the workforce) worked under the influence of alcohol
- 11.6 million workers (9.2 percent of the workforce) worked with a hangover
Some additional findings:
- workplace alcohol use and impairment was more prevalent among men compared to women.
- working under the influence of alcohol or with a hangover was more prevalent among younger workers compared to older workers and among unmarried workers compared to married workers.
- among the broad occupation groups showing the highest rates of workplace alcohol use and impairment were the management occupations, sales occupations, arts/entertainment/sports/media occupations, food preparation and serving occupations, and building and grounds maintenance occupations.
- workers on the evening shift and night shift and those working a nonstandard shift involving irregular or flexible work hours were more likely to report drinking before coming to work compared to workers on a regular day shift. Those working a nonstandard shift were also more likely to use alcohol during the workday and report being at work under the influence of alcohol.
March Madness and the Workplace
- According to the FBI, the amount wagered on the NCAA men's basketball tournament this year will be $2.5 Billion.
- The estimated loss of productivity in the workplace for American employers will be $1.2 million.
Take a look.
Posted By Diane Pfadenhauer In Policies & Procedures , Trends | Permalink
New OSHA Guidance on Dealing With an Influenza Pandemic
The guidance discusses:
- The Difference Between Seasonal, Pandemic Influenza and Avian Influenza
- How a Severe Pandemic Influenza Could Affect Workplaces
- How Influenza Can Spread Between People
- How to Maintain Operations During a Pandemic
- How Organizations Can Protect Their Employees
- Steps Every Employer Can Take to Reduce the Risk of Exposure to Pandemic Influenza in Their Workplace
- What Employees Living Abroad or Who Travel Internationally for Work Should Know
Consistency in Background Checks
Lesson to be learned? If you set up all of these policies to protect yourself follow them consistently.
Thanks to the Background Checks Blog for bringing this to our attention. Posted By Diane Pfadenhauer In Policies & Procedures | Permalink
Monday's Super Bowl Flu
Those Who Work at Home
The Workers' Comp Insider highlights the important subject of workers who work out of their homes. Two issues - independent contractor or employee status and workers; compensation - are subjects that can trip up the unwary employer.
All too often, it is not uncommon for an employer to consider someone working at home to be an independent contractor. They don't work on the employer's premises, they most likely operate independently, and the employer may feel as though they have little control over them. Unfortunately, however, many times these individuals will meet the status of an employees. The WC Insider identifies a list of best practices for employers to consider before the individual starts work. Things to include:
- develop time sheets which document hours on task (these can usually be incorporated into the log on /log off process)
- require approval for any proposed overtime
- set ergonomic standards for at-home workstations
- clarify in writing the benefits available to at home workers, including travel reimbursement, sick leave and severance pay
- outline the explicit criteria for exempt and non-exempt employees, so the at-home worker understands his or her status
Last but not least, the Insider discusses the perils of not addressing Workers’ Compensation issues for those working at home, noting:
“Employees are covered by workers comp while they are "in the course and scope of employment." In other words, they are covered while working at home, even if they set their own hours and despite the fact that they have no direct supervisors. This raises some intriguing issues: what if I slip and fall or trip over a box in my home office? What if my work station is ergonomically risky? What if I burn myself making a cup of coffee? What do I report to my manager and how?”
Add this to your list of things to address.
Posted By Diane Pfadenhauer In Policies & Procedures | Permalink
Direct Deposit - How Uncle Sam Can Encourage Employees to Use It
Posted By Diane Pfadenhauer In Compensation & Benefits , Policies & Procedures | Permalink
ADR Policies - Hot Off the Press
Mileage Reimbursement Rates for 2007
- 48.5 cents per mile for business miles driven;
- 20 cents per mile driven for medical or moving purposes; and
- 14 cents per mile driven in service to a charitable organization.
Thanks to the folks at Shaw Valenza for reminding me of this.
Posted By Diane Pfadenhauer In Policies & Procedures , Trends | Permalink
OSHA Avian Flu Guidance
The guidance also includes links to helpful Web sites with additional information, and a list of technical articles and resources, including a history on flu pandemics, symptoms and outcomes of various strains of the avian flu, a summary of the bird importation regulations, and details on the transmission of the virus.
Posted By Diane Pfadenhauer In Policies & Procedures | Permalink
It's Party Time!
"Ninety-four percent of businesses are planning a holiday celebration this year, up from 87 percent in 2005. Meanwhile, holiday "spirits" may be more common at company holiday celebrations this year, as 86 percent of businesses are planning to serve alcohol, up from 75 percent last year."According to BLR, quoting a survey on holiday parties:
* 77 percent of holiday celebrations will be held off siteNow is the time to see if your company is up to snuff!
* 74 percent will be evening events
* 52 percent will be limited to employees only
* 37 percent will include spouses of employees
Posted By Diane Pfadenhauer In Policies & Procedures | Permalink
Starbucks - The Latest Company Missing Laptops With Confidential Data
This makes me think of the obvious. I am sure that there must be some study out there that supports the premise that most people probably become victims of identity theft not because of dumpster diving, but from the theft of data held by corporations. So then why am I shredding all that stuff at home?
Posted By Diane Pfadenhauer In Policies & Procedures | Permalink
New New York Law Protects Privacy of Social Security Numbers
The new law is actually comprised of three different laws and protects consumers by:
- prohibiting the sale, fraudulent transfer, or solicitation of a consumers telephone records without consent from the consumer.
- placing limits on the use and dissemination of this Social Security numbers – it,
- prohibits the intentional communication of an individual’s SSN to the general public;
- restricts businesses’ ability to print an individual’s SSN on mailings or on any card or tag required to access products, services, or benefits;
- prohibits businesses from requiring an individual to transmit his or her encrypted SSN over the Internet; and
- requires businesses that possess Social Security Numbers to implement appropriate safeguards and limit unnecessary employee access to them.
- New York State’s Penal Law has been revised as it pertains to the unauthorized use of computers. This law strengthens existing law to allow for the prosecution of those who intentionally disrupt, steal personal information, and plant malicious programs on consumer’s computers without authorization.
- The Security Freeze Law - which allows consumers, who are either identity theft victims or are concerned that they might be at risk of having their identities stolen, to cut off an identity thief's access to credit, loans, leases, goods and services by placing a “freeze” on their consumer credit report.
- The Disposal of Personal Records Law - requires any business to properly dispose of records containing personal information through one of the following means: shredding, destruction, modification, or other reasonable action to ensure that no unauthorized person will have access to the personal information.
- The Anti-Phishing Act of 2006 - prohibits the deceptive solicitation of personal information through electronic communications. “Phishing” accounts for nearly 25% of all Internet fraud.
For the actual text of the new law, go here.
Posted By Diane Pfadenhauer In Employment Law , New York Law , Policies & Procedures | Permalink
Drug Free Work Week
•How to Implement a Drug-Free Workplace ProgramPosted By Diane Pfadenhauer In Policies & Procedures | Permalink
•Promoting your Drug-Free Workplace Program
•Remind employees about the availability of EAP services
•Offer health screening
•Publicize available community treatment resources
•Review your health insurance policy
•Allow employees time to volunteer in community drug prevention efforts.
•Create a Drug-Free Workplace Display
•Feature Drug-Free Work Week in the employee newsletter or Intranet
•Distribute a payroll message listing helplines or a reminder about Drug-Free Work Week for employees
•Hold a social event celebrating safety and health
Perils of the Graveyard Shift
- The divorce rate for night-shift workers is as much as six times higher than the rest of the population.
- Late shift work often leaves children without chaperones as children are often unsupervised by a sleeping parent.
- Even if night workers do get sufficient sleep, their sleep is of less quality than those of us who sleep at night. Because of our natural circadian rhythms, our body expects to sleep at night. When we reverse it, we may sleep, but not as deeply.
- Sleep apnea is twice as prevalent among night shift workers than the general population
- Night workers are 20% more likely to suffer a severe accident at work.
- 24 hours of sleep deprivation is equivalent to a blood alcohol level of .10.
- Some studies show a higher rate of cancer, heart disease, and gastrointestinal disorders.
HR 101 - How NOT to Fire Your Employees
"The workforce reduction notification is currently in progress...unfortunately your position is one that has been eliminated."
So what happened to "we're sorry to see you go; this is a difficult decision; thanks for all of your hard work?" What about the telephone? This is actually a store that sells them, so I can't imagine they don't have them! Couldn't they spend a few minutes calling every employee? Seems to me that's the very least they could have done. So where is their HR leadership and how did this happen?
Posted By Diane Pfadenhauer In Policies & Procedures | Permalink
Disaster Preparedness - Planning for The Next Hurricane
With the height of the hurricane season upon us, employers should be considering strategies to deal effectively with business disruptions and other disasters. Employers must have a plan - I've been through things as advanced planning for a possible earthquake in LA (which thankfully never happened), dealing with the "big" blackout in the Northeast from 2003 (and trying to figure out how employees could best get home in a 90 degree plus heat wave), floods along the Ohio River which destroyed businesses and homes, other major power outages, and, of course, 9/11.
After visiting New Orleans last year to help out in the aftermath of Katrina, this type of planning was really driven home for me. The folks at Jones Walker (the largest law firm in Louisiana) have prepared an article entitled Disaster Preparedness and Response: An Employer's Checklist which provides details of the the thing you should be thinking about. We all know that when the disaster occurs, everyone turns to human resources. It shouldn't matter if you are not on the east coast or not in a big city, take a look anyway and have a plan. And, although sadly I have seen some in management dismiss the idea of having a comprehensive plan, you should still have your ducks in a row.
Some of their recommendations, which I have simplified here, include:
Before the Crisis:
- Put your plan in writing and disseminate it to all employees.
- When warning systems are in place for a potential disaster include a time line in your plan for certain preparatory tasks to be completed. Conduct drills regularly to prepare employees for the real thing.
- When you establish your time line for workplace preparation and closure, consider that employees will need to prepare their families and take care of personal matters as well.
- In advance, establish a communication plan that will work regardless of the nature of the disaster.
- Identify critical employees and make sure they understand what’s expected of them
during a disaster.
- Develop a plan to allow your payroll, benefits, and HR functions to continue during and after a disaster or during any period in which access to your workplace is restricted.
- If employees will have to return to your workplace to assist in the recovery process obtain an adequate supply of water, nonperishable food, first-aid supplies, generators, cleaning supplies, batteries, flashlights, and other necessities.
- Update your employee contact information regularly and at the beginning of any season
during which natural disasters are more likely.
- Consult with your labor attorney about pay practices that are applicable during and after a disaster.
- If you have a large number of employees or multiple work sites, consider establishing a recovery team or core group of employees responsible for specific work sites or specific
- Arrange a meeting or conference with executives, department heads, and key managers in advance to review your plan and identify any areas that need adjustment or improvement.
After the Crisis:
- Designate one or more employees as soon as possible to be responsible for receiving calls, e-mails, and messages from employees and collecting information about their whereabouts and plans and to communicate important information and updates about your business to your workers.
- Keep your company’s leadership visible and stay firmly in charge.
- Give your employees the tools and time they need to tend to their personal affairs after a disaster
- Organize community relief or other charitable efforts and allow your employees to participate.
- Following a disaster, identify your plan’s successes and failures, and work together to build a better plan for the future.
This is a great list, but always remember that flexibility is key in such uncertainty.
Posted By Diane Pfadenhauer In Policies & Procedures | Permalink
More on Cellular Phone Safety While Driving
The cell phone users - drove slightly slower (whether hands-free or not), were 9 percent slower to hit the brakes, displayed 24 percent more variation in following distance as their attention switched between driving and conversing, were 19 percent slower to resume normal speed after braking and were more likely to crash.
The legally drunk drivers (with a blood alcohol level of .08) - followed cars more closely and braked later and more forcefully than other test groups, but they did not have higher accident rates than normal drivers.
Thanks to folks at Whatnot At Work for bringing this to our attention.
Posted By Diane Pfadenhauer In Policies & Procedures | Permalink
Part Time and/or Flexible Work Hours - A Growing Trend or Thing of the Past?
Newsday had an interesting article discussing the continuing firestorm surrounding the Nassau County District Attorney's recent mandate that all part time employees either beging working full time or resign. For those of you who have not been following this story, Kathleen Rice, Nassau's recently elected D.A. issued this mandate fairly recently claiming that since criminals don't work part time, her ADA's shouldn't either. She's been taking quite a few pot shots because of this. As a single person with no children, she's been accused of not appreciating the issues concerning working mothers. She also made the decision to change this long standing policy of her predecessor which permitted part time work - a policy that for all intents and purposes seemed to work.
I spoke to Carrie Mason-Draffen at Newsday last week who was writing an article on the subject and shared my views (some of which she kindly quoted at the end of the article). Seems to me that many law firms have adapted quite nicely to the concept of employees working part time. In fact, the article discusses one law firm here on Long Island that recegnizes many of the benefits. Bottom line - flexibility is something that employers will need to provide more of not less!Posted By Diane Pfadenhauer In Policies & Procedures , Trends | Permalink
The Benefits of Effective Employee Communication
Often effective communication with employees is touted as advantageous, beneficial,and the stuff that makes the warm and fuzzy types happy. The 2005/2006 Watson Wyatt Communication ROI Study™ shows that effective communication is a leading indicator of an organization’s financial performance. Some of the findings:
- Companies that communicate effectively have a 19.4 percent higher market premium than companies that do not.
- Shareholder returns for organizations with the most effective communication were over 57 percent higher over the last five years (2000-2004) than were returns for firms with less effective communication.
- The 2005/2006 study found evidence that communication effectiveness is a leading indicator of financial performance.
- Firms that communicate effectively are 4.5 times more likely to report high levels of employee engagement versus firms that communicate less effectively.
- Companies that are highly effective communicators are 20 percent more likely to report lower turnover rates than their peers.
- Two-thirds of the firms with high levels of communication effectiveness are asking their managers to take on a greater share of the communication responsibility, but few are giving them the tools and training to be successful.
- Global firms are not customizing their messages to meet local needs or cultural sensitivities.
- On average, firms within the financial and retail trade sectors rank among the most effective communicators. Health care, basic materials, telecommunications and other service companies rank among the least effective communicators.
I've gotten on the communication bandwagon myself, having written a few articles on the subject in the context of corporate turnaround and mergers/acquisitions. See the sidebar on the left for some of these.
Thanks to the Human Resources Blog.Posted By Diane Pfadenhauer In Corporate Turnaround , Employee Relations , Mergers and Acquisitions , Policies & Procedures | Permalink
A Step Backward for Telecommuting
The IT people at Hewlett Packard are taking a giant step backward by eliminating the option to work form home for all IT employees. The idea here seems to go back to the old "face time" requirement. If you aren't in the office, you're not really working. Seems to me that Hewlett Packard should be at least progressive enough to recognize the benefits of telecommuting (notwithstanding the fact that gas is running about $3.25 for regular here in my hometown and a recent survey shows an need for an increase telecommuting, not less). Also, they fail to recognize something vitally important - just because you are in the office doesn't mean you are actually working. I thought we were getting away from the idea of face time as a measure of productivity!
Thanks to the HR Marketer Blog for their thoughtful commentary.Posted By Diane Pfadenhauer In Policies & Procedures , Staffing, Recruitment, Selection | Permalink
More on Stolen Laptops and Data Security
"The records included names, dates of birth and Social Security numbers for millions of people, although the exact number has not been clear. At first, the department said information on 26.5 million veterans was affected. Later, it said the number included forces on active duty, as well as veterans. Last week, the agency lowered the number of people at risk to 17.5 million, saying the earlier estimate had not taken into account deaths and duplication of records."In the mean time, the Wall Street Journal (registration required) reported on the growing trend for organizations to monitor laptops, their whereabouts and their security. Included in these activities are:
- More restrictions on who can take secure data out of the office
- Training on how to keep data secure
- Boeing requires that laptops be physically locked with a cable to a stationary object at all times including in cars, offices and conference rooms
- Restricting the use of employee-owned personal digital assistants that link to an employer's computer systems, including disabling USB ports so that these gadgets cannot be connected
- More than 88 million Americans have been put at risk because of data security breaches
- Data breaches costs organizations an average of $5,000,000 per incident in direct costs
Corporate Blogging Trends
Thanks to Micro Persuasion for the tip. Posted By Diane Pfadenhauer In Policies & Procedures , Trends | Permalink
Proposed Regulations for Social Security "No Match" Letters and Electronic Storage of I-9's
The Department of Homeland Security (DHS) has issued proposed regulations which will provide guidance to employers when they receive a "no match" letter from either the DHS or the Social Security Administration (SSA). The DHS sends out such a letter to an employer when the immigration-status or employment-authorization documentation presented or referenced by the employee is inconsistent with its records. The SSA sends out a "no match" letter when the combination of name and social security number submitted for an employee does not match.
Here's how the new regulation would work. Upon receipt of such a letter, an employer would be required to take "reasonable steps" or the DHS could take the position that the employer has "constructive knowledge" that the individual's status was in violation of immigration law. These reasonable steps would include:
- Within 14 days, correct and clerical errors in an employee's records or other communications with the government (such as transcription errors); Request that the employer confirm the correctness of the previously provided information and instruct him/her to resolve the issue directly with the SSA; Verify with either the SSA or DHS that the matter has been resolved by providing relevant documentation.
- After 60 days, if the employer still cannot verify the legal status of the individual, it must then, within 3 days, attempt to verify the employee’s identity/work authorization. This might include having the employee complete a new I-9 form. However, if relying on the I-9:
- the employer cannot rely upon a document which contains the Social Security number or alien number identified in the no-match notice
- the employer cannot rely upon a receipt of an application for a replacement for the document in question.
- the document relied upon by the employer must contain a photograph of the employee in order to establish identity or identity and employment authorization
- If, at this point, the no-match issue cannot be resolved or the work authorization verified, the employer would be required to terminate the employment of the individual or face government action.
- Following these procedures is considered a Safe Harbor under the regulations. An employer who follows these would be deemed to have acted in "good faith." In addition, failure to respond to a no-match letter in a timely and appropriate manner would now be considered evidence of “constructive knowledge” that an employee is an unauthorized alien.
The comment period for these proposed regulations is August 14th. In addition, these proposed regulations were announced with another proposed regulation on electronic storage of I-9 forms. For more information, follow these links:Posted By Diane Pfadenhauer In Employment Law , Policies & Procedures | Permalink
Cellphones in the Workplace
My view is that there's nothing wrong with a workplace policy that actually provides that employees should be working and not interrupted by cell phones. Why all this sensitivity around this issue? I don't get it. Posted By Diane Pfadenhauer In Policies & Procedures | Permalink
IRS Fact Sheet on Proper Worker Classification
The Internal Revenue Service has issued a new Fact Sheet regarding classifying employees properly. According to the Fact Sheet:
"The rash of natural disasters that have hit the United States in the last several months have caused many businesses to hire additional workers to help them meet increased demand for their goods or services. These businesses must make sure they treat their workers properly to make sure everyone can meet their tax obligations.
Most workers fall into two categories: Independent contractors or Common-law employees
The main factor a business must use in determining how to classify its workers is the degree of control the business has over its worker. The more control the business has over a worker; the more likely it is that the worker is an employee rather than an independent contractor."
The Fact Sheet also provides links to other available detailed information on this subject from the IRS.
It's amazing to see how many organizations are still confused about this issue. I can't tell you how many times, I hear people refer to people that work for them as (my pet peeve!) "1099 Employees."
Thanks to Benefitsblog for bringing this to our attention.
You can register for the event by accessing their website here. Posted By Diane Pfadenhauer In Policies & Procedures , Speaking | Permalink
Even More on the Military Personnel Security Breach
I've been following the recent debacle of the loss of military personnel information. Now it seems the problem is bigger than ever: seems that that personal information about 430,000 members of the National Guard and 645,000 members of the Reserves now on active duty may have been compromised. The New York Times has a series of articles on the subject. In the mean time, we'll keep you updated here.Posted By Diane Pfadenhauer In Policies & Procedures | Permalink
More on the VA's Security Lapse
As a follow up to my recent post on the Veteran's Affairs security lapse, CNN reported yesterday two interesting developments: First, the VA learned of the security breach through office gossip, and second, the employee reportedly improperly had the confididential material at his home for three years. For more on the spitting match going on the Senate hearings, see the CNN article here.Posted By Diane Pfadenhauer In Policies & Procedures | Permalink
Veterans Affairs Security Breach
The Department of Veteran's Affairs informs us that there has been a security breach of confidential veteran information. After a break in at an employee's home confidential information regarding as many as 26.5 million veterans and some spouses was stolen. This information contained data such as name, social security number, date of birth.
"Authorities believe it is unlikely the perpetrators targeted the items because of any knowledge of the data contents," a VA statement said. "It is possible that they remain unaware of the information which they possess or of how to make use of it. However, out of an abundance of caution, VA is taking all possible steps to protect and inform our veterans."
Lessons to be learned:
-Make sure you have a data security policy
-Make sure your employees know what it is
-Make sure you know what is stored on employee laptops and personal computers used at home (or on other digital media)
-Remind employees periodically of your policy so they do not become complacent with confidential information
Fourth of July Holiday Practices
This is one of those years when companies have to consider their options when planning the Fourth of July Holiday. Since the holiday falls on a Tuesday this year, some employers will be giving Monday and Tuesday off, while others will be giving only Tuesday off. This survey from my buddies at HRNY (the SHRM Chapter in New York City) shows that:
- 45.9 percent of respondents will give both Monday and Tuesday off
- 54.1 percent of respondents will be giving just Tuesday off
So, let me guess how many people required to work on Monday will really be working hard.....
The results of the HRNY Fourth of July Holiday Survey can also be found on their website.Posted By Diane Pfadenhauer In Compensation & Benefits , Policies & Procedures , Trends | Permalink
Don't Think "It Can't Happen Here"
There has been a fair amount of press lately on things getting out of hand in the workplace and in sports. Recent coverage of the employee spanking at a training session and coverage of the Duke lacrosse scandal are only the tip of the iceberg. This story of yet another office prank which went a bit too far suggests that without the proper oversight, this kind of thing can happen anywhere, despite the belief by many that "it can't happen here." In addition, with all of the focus on Duke, this site (not for the faint of heart) shows that questionable behavior occurs in more places than you think.
As we conduct workplace investigations at my firm, we periodically find that the corporation has no idea that inappropriate behavior was occurring. The reality, however, is that remote locations, without proper oversight can develop cultures and mores of their own, some of which are not the type that the organization will want portrayed on the front page of the newspaper.
We all certainly did foolish things as kids in college. However, when this apparent lack of judgment spills over into the workplace, we often wonder what happened. The truth is that it is all around us and now is the time to start thinking about it and doing something before your firm ends up on the front page of the newspaper with people saying "what were they thinking?"Posted By Diane Pfadenhauer In Policies & Procedures , Trends | Permalink
Gas Prices and Telecommuting
The recent spike in gasoline prices and the prediction that prices will either remain this high for some time or even increase as the summer approaches has fueled an increase in telecommuting. Tonight, I filled up my tank for a trip tomorrow at $3.19 for regular unleaded. It was only $3.04 a week ago when I last filled up. The Christian Science Monitor has a comprehensive article discussing this trend toward telecommuting. According to the article, there are 26 million Americans that work from home at least one day per month. That notwithstanding, there still seems to be resistance based on the premise that the boss needs to be looking over employees' shoulders lest they goof off.
On the one hand, employees who are not in the office may miss the opportunity for impromptu meetings and chatter, but on the other hand they need not spend countless hours in the car in traffic. What do commuters do in the car while they're commuting? Talk on their cell phones, read their email - all things we know are inherently dangerous, but because we feel compelled to be available 24/7, traffic is perceived as wasted time and we respond by multi-tasking.
The article also offers these tips to handle requests for telecommuting and those considering requesting the option of telecommuting:
For Employees: Ask yourself: Do I have the self-discipline necessary to work at home with minimal supervision? Am I well organized? Does my job lend itself to telecommuting?
- If the answers are yes, prepare a written proposal for your manager. Outline specifically how the plan will work and how it will benefit the company.
- Indicate that it is often possible to be more productive at home, where there may be fewer interruptions than in the office.
- Assure your manager that you will be available for conference calls and meetings by phone.
- Suggest a trial period. If it doesn't work out, the arrangement will end.
- Be sure you have adequate technology at home, as well as appropriate work space. The kitchen table won't do.
For Managers: Weigh the pros and cons of telecommuting by asking:
- Does this employee have the right temperament to work alone?
- Am I willing to be open-minded and give the arrangement a chance to succeed?
- How will I keep in touch with telecommuters?
All of this will be much easier when we stop judging most of our employees by face time and focus on deliverable, measurable results.Posted By Diane Pfadenhauer In Policies & Procedures , Trends | Permalink
More Pandemic Flu Planning
As a follow up to my recent post on a possible flu pandemic, and in their quest to save their little corner of the world, the Workers' Comp Insider has put together a comprehensive post on available resources and tips to prepare for a flu pandemic. It's worth the read.Posted By Diane Pfadenhauer In Policies & Procedures | Permalink
Room Sharing: Bean Counters v. Common Sense
I've been in this business for a few decades now and just when I think I've seen everything, something else comes along.... Some companies, in an effort to "save money" and "build camaraderie" are requiring staffers to double bunk. Michael Fox, points us to a New York Times article describing the supposed rationale for the double bunking and provides us with an example of why this policy makes absolutely no sense whatsoever. This quote from the NYT article should be enough to make your head spin:
"At the Kaye/Bassman International Corporation, an executive search firm based in Plano, Tex., room-sharing is encouraged as a way to build camaraderie, said Jeff Kaye, chief executive and president. "There is absolutely a cost-savings benefit" to having the company's 100 employees share rooms, he said. But Mr. Kaye said the practice also helped employees get to know one another better; executives are encouraged to bunk with people they do not know for that reason, he said. "When the C.I.O. ends up rooming with a salesperson and the finance guy ends up rooming with a guy in operations, they learn stuff about each other," Mr. Kaye said. "You find out who's a snorer and who's got wacky bedtime rituals. It allows you to discover a greater human element in someone you previously didn't know."
This practice is clearly is ill advised and demonstrates a clear lack of understanding of its dangers. In all of the workplace investigations I've done, I've heard enough stories about hotels and hotel rooms to write a book. Now we're going to ask our employees to share hotel rooms or pay out of their own pockets if they refuse? How absurd! If I want to get to know my colleagues, there are plenty of other less risky ways of doing that and if my company can't afford to buy me my own room, perhaps I shouldn't be traveling. Just one bill for the defense costs of a lawsuit will change this policy in these organizations instantly.
Michael's simple post on this subject, quoting a recent lawsuit filed in Texas regarding this practice, demonstrates the dangers and just about says it all.Posted By Diane Pfadenhauer In Policies & Procedures 1 Comments | Permalink
Blocking RSS Feeds: The New Focus of Your IT Security
Regina, has this post today about a trend for companies to block employees from viewing RSS feeds at work. If you don't know what an RSS feed is we have a simple explanation HERE. She points us to Shel Holz's blog which discusses the seeming extensive measures employers will take to limit employee use of workplace computers. Some interesting tidbits:
¬?According to one article, next year companies will shell out over $6 billion for applications that monitor and/or block web surfing, instant messaging, keystrokes, and now RSS, according to an IDC study.
¬?A TopTech News article paraphrases Websense VP and General Counsel Mike Newman as saying - "The rationale behind monitoring employees, according to Newman, is that a computer at work is a corporate tool for enhancing the employee's productivity. Because some people abuse that privilege by sending personal e-mail and viewing movies during working hours, employers feel they have little choice but to monitor what their workers are doing."
Shel also shares his thoughts regarding why some of this is a bit overboard:
¬?"The measure of productivity is how much work is getting done, not how much time an employee spends on non-work-related activities. Employees will stay late, come in early, or take work home. They won't simply let it slide. Nobody wants to lose his job so he can check sports scores on ESPN.
¬?Nobody ever got fired for checking sports scores at work in the New York Times. The web is the new newspaper.
¬?An employee's home computer is a personal tool, but it gets used for work all the time. Work-life integration is the name of the game today. If you expect me to take work home, then expect me to live part of my life at work.
¬?Telling employees you don't trust them‚Äîany of them‚Äîis a great way to earn some of the lowest engagement scores in the business world. (Trust is a key determinant of engagement and commitment.) Companies with large populations of highly engaged employees earn double-digit growth. Those with large populations of actively disengaged employees earn zero or negative growth. So which is preferable: locked down computers and no growth or open access and double-digit growth?"
Regina also points out:
¬?"RSS feeds may actually increase employee productivity ‚Äî info about customers, competitors easily and quickly accessible.
¬?RSS feeds may actually increase employee understanding of your company's media attention, brand, reputation, new products and services, etc.
¬?RSS feeds may be used internally to enhance your key company messages but if employees can only subscribe to internal feeds it seems hypocritical to only pump out company propaganda
¬?RSS will be built into future technology and become part of the way people manage their lives (attention) and information - it will become harder for companies to control in the future."
I'd have to say I agree with both Regina and Shel. I am certainly an advocate protecting company trade secrets, protecting the organization from hackers, phishers, etc, but if we don't incorporate some kind of balance in our policies, we're in big trouble. The sad reality is that many times employees use their personal email addresses and computers at home as work-arounds to the limits of the employers systems. If fact, I just received an work related email from someone this week from confessing that she was using her personal email because the spam blockers on her company's system were so "effective" she doesn't get half of the important email she needs. So why aren't the HR people involved in the development of such policies?Posted By Diane Pfadenhauer In Policies & Procedures | Permalink
Reminding Us of the Importance of Background Checks
When the US military subcontracted security work to private contractors, some of them failed to conduct background checks on their employees. According to an article appearing in the Washington Post, these security personnel were assigned to 46 different military installations around the country. According to a report by the Government Accountability Office, 89 guards were hired at two bases even though they had criminal records, including assaults and other felonies. The Army has, thankfully, changed its procedures.
The Background Checks Blog for bringing this to our attention.Posted By Diane Pfadenhauer In Policies & Procedures | Permalink
What's on YOUR Laptop?
This scary little article about a Fidelity laptop containing confidential information regarding almost 200,000 participants in Hewlett-Packard's pension and 401(k) plans should have us thinking. Although the article describes affirmative steps that Fidelity had taken to thwart retrieval of information in the event of a theft like this, how many other firms are not so careful? My suggestions - start asking these questions:
1. Do you know what is on your employees' laptops?
2. Have precautions been taken to either secure or encrypt the information or remove it when it is no longer needed?
3. Are laptops themselves secured in the office?
4. Do laptops have proper passwords and other security measures in place?
All too often employees pass along files and information containing either confidential employee or customer information or trade secrets. Think about how often these employees clean this stuff off of their hard drives. Probably never!
Avian Flu Pandemic Planning
As I was writing this post, I realized that Michael Fitzgibbon had a similar post a while back. Since the article is a worthy read, I'll include it anyway. This article, written by Littler attorney, Dale Deitchler, discusses the need for proper advance planning in the event of an avian flu pandemic. He notes that, should this occur, up to 40% of employees could be out sick at one time. His advice:
1. Employee relations - employers need a communicable disease policy to deal with the need to adjust benefit and time off policies to respond to a pandemic. In addition, companies must anticipate what they will do in the event employees use all of their available time and what they will do to adequately staff to get the work done.
2. OSHA - Employers must comply with OSHA when dealing with communicable diseases in the workplace.
3. Privacy - Don't forget about HIPAA's privacy requirements when dealing with employee health information.
Time Off Policies Undergoing Change
Employers have begun to rethink their time off policies and the trend is away from specific days off for specific reasons and toward more of a universal time bank. Under the universal time back theory, employees are given a set number of days to use for any reason they wish. They no longer need to classify the time as vacation, sick or personal.
This article goes on to suggest that more employers should be looking at policies in connection with disasters and disruptions, noting that most companies have no policies on this subject. That notwithstanding, in the face of disasters many companies are very generous, continuing pay as long as they can.
One of the big problems here is the seemingly inflexibility of our nation's wage and hour laws. If we dock an exempt employee who works at any point during the week, the Department of Labor will have a fit!Posted By Diane Pfadenhauer In Compensation & Benefits , Policies & Procedures , Trends | Permalink
It's March Madness - Hit the "Boss Button"
This is one of the most significant times of the year for betting in the workplace. Some HR professionals go into hiding in January during sign ups for the annual the Super Bowl Pool, March Madness probably ranks a close second in office betting. To complicate matters, CBS Sportsline's March Madness on Demand now makes it possible to follow webcasts of games live on a PC. To complicate matters, there is allegedly a "boss button" that you can hit when someone comes up near you. The game turns off and a spread sheet pops up. I haven't tried it (I hate those sites that require that I register), so let me know if it works!
As I think about the lost productivity associated with all of this, I'm reminded that we regularly read about fancy studies that have been done throughout the year predicting the loss of productivity in connection with various situations or events. In this case, March Madness is supposed to result in a loss of $4 billion. What about the Super Bowl, the Olympics, any other sporting event, shopping around the holidays, etc., etc.? It's amazing anything gets done!Posted By Diane Pfadenhauer In Policies & Procedures | Permalink
Employee Web Surfing - Upping the Ante When the Employee Reads Porn
A recent case in New Jersey raises the obligation of employers who learn that one of their employees is surfing illicit pages on the web. In Doe. v. XYC Corporation an appellate court in New Jersey held that when an employer has notice that one of its employees is using its work computer to access pornography (or in this case child pornography) that it has the obligation to investigate and put a stop to it.
The court held:
"We hold that an employer who is on notice that one of its employees is using a workplace computer to access pornography, possibly child pornography, has a duty to investigate the employee's activities and to take prompt and effective action to stop the unauthorized activity, lest it result in harm to innocent third-parties. No privacy interest of the employee stands in the way of this duty on the part of the employer"
In this case, the employee had a history of using his workplace computer to view pornographic sites. In addition, he transmitted several photographs of his stepdaughter on his workplace computer to a child porn site. He was later arrested.
The Court further noted:
"...Given the public policy against child pornography, as reflected in these statutes, and the fact that "public policy favors the exposure of crime," ..., we agree with plaintiff that defendant had a duty to report Employee's activities to the proper authorities and to take effective internal action to stop those activities, whether by termination or some less drastic remedy."
All too often I hear of companies with less than stellar computer security systems turning a blind eye to employees who use the internet on company computers inappropriately. Perhaps they will now take more affirmative steps to stop the misconduct, even if it does not rise to the level of child pornography.Posted By Diane Pfadenhauer In Employment Law , Policies & Procedures | Permalink
The Importance of Background Checks
The recent resignation of David Edmondson, Radio Shack's CEO, reminds us of the importance of conducting background checks. According to this AP article:
"Edmondson had claimed that he received degrees in theology and psychology from Pacific Coast Baptist College in California, which moved in 1998 to Oklahoma and renamed itself Heartland Baptist Bible College.
The school's registrar told the Star-Telegram that records showed Edmondson completed only two semesters and that the school never offered degrees in psychology. The school official declined to comment to The Associated Press.
Edmondson said last Wednesday he believes that he received a theology diploma called a ThG, but not the four-year bachelor of science degree listed on his resume. He could not document the ThG diploma."
Thanks to the Background Checks Blog for this reminder.Posted By Diane Pfadenhauer In Policies & Procedures | Permalink
English Only Rules
Many organizations find themselves confronted by seemingly conflicting regulations when it comes to whether it is permissible to mandate that only English be spoken in the workplace. Often employers consider such a requirement as a result of safety concerns, because of regulation in their particular industry or the desire to mitigate employee relations problems which may arise as a result of cultural differences in the workplace.
The EEOC provides some specific guidelines in this area and, not surprisingly, frowns upon such rules where they prohibit employees on breaks and meal periods from speaking a language other than English. There is a fundamental difference between requiring employees to only speak English in the workplace and a requirement that they have the ability to read and write English. The latter does not prohibit them from speaking other languages while the former does. Follow this link for more on the EEOC's guidance on English Only Rules.Posted By Diane Pfadenhauer In Employee Relations , Employment Law , Policies & Procedures | Permalink
Using Love Contracts to Avoid Sexual Harassment Claims
Love Contracts are essentially agreements entered into by employees engaged in a relationship acknowledging that the relationship is consensual and reiterating the employer's harassment policy. Some contracts go further, to specify what behavior is appropriate or inappropriate in the workplace - perhaps these details are necessary when an amorous relationship becomes more than apparent and potentially offensive behavior is exhibited at work. Employers use these to avoid sexual harassment claims later on or to avoid future claims of favoritism by others.
A recent survey by SHRM, noted that 19% of respondents asserted that workplace dating resulted in sexual harassment claims. Vault.com, in its 2005 survey, noted that 58% of employees have been involved in an office romance. So, on Valentine's Day, take note of all of the roses and flowers being delivered around the office - love is in the air.Posted By Diane Pfadenhauer In Policies & Procedures 1 Comments | Permalink
Employees: Your Most Dangerous IT Threat
Companies' most significant threat to the integrity of their technology systems is not hackers and other outsiders trying to steal information - it's the employees. From stealing trade secrets to something as seemingly careless as sending confidential information through unencrypted email, according to this WSJ article (registration required), this is what keeps the IT experts in companies awake at night. The article notes that about 29% of security incidents originated from in-office employees or remote employees. Some of the more typical practices observed include: leaving open email unintended, sending confidential information over insecure servers, keeping passwords on post-it notes nearby, etc.
Many organizations attempt to minimize these threats by asking their IT departments to draft comprehensive policies. However, without coordinating these efforts with human resources, there is often a lack of focus on training and reinforcement. When the information technology department and the human resources department work together on an important issue such as this, organizations can significantly reduce their risks.Posted By Diane Pfadenhauer In Policies & Procedures 1 Comments | Permalink
Martin Luther King Holiday Practices
Almost one third of businesses will recognize Martin Luther King Day as a paid holiday on Monday, January 16th. According to this survey, this continues the trend where more and more employers are choosing to recognize this holiday.Posted By Diane Pfadenhauer In Policies & Procedures , Trends | Permalink
Workers' Comp - How Do You Get Answers from the Employee's Doctor?
Our friends at Lynch Ryan had an interesting post last week addressing how to obtain information from an employee's doctor. We're not talking about doing something unethical here. All too often when there is a workers' compensation case and an employee is out, there is a great deal of confusion concerning whether and when the employee can return and whether there are any restrictions. This post provides great guidance on getting the answers an employer needs so that the employee's benefits are not disrupted. Well worth the read.Posted By Diane Pfadenhauer In Compensation & Benefits , Policies & Procedures | Permalink
New USERRA Regulations
The Department of Labor has issued new regulations under the Uniformed Services Employment and Reemployment Rights Act (USERRA). For those of you interested in reading the 268 page document available on the DOL's website, go here. However, an easier way to understand the regulations is also available - go to the DOL's USERRA Information Page. Thanks to Professor Ross for bringing this to our attention.Posted By Diane Pfadenhauer In Employment Law , Policies & Procedures | Permalink
Flexible Work Schedules Positively Impact the Bottom Line
Often those requesting flexible work schedules are labled as loafers more interested in their personal lives than being committed to the daily grind. This interesting article in the Christian Science Monitor suggests that flexible work schedules can, in fact, have a positive influence on the bottom line. Some interesting findings:
- Deloitte saved $41.5 million in employee turnover costs in 2003, based on the number of professionals who said they would have left if they didn't have flexible work hours.
- AstraZeneca found that "commitment scores" - measures of employee attitudes that affect their effort and performance - were 28 percent higher for employees who said they had the flexibility they needed than for those who said they did not.
- A pilot program at a PNC Financial Services Group operations center compressed each employee's workweek into four 10-hour days. Because of employees' cross-training and staggered days, customers were served for an extra hour and a half each day, and the time for completing certain transactions was cut by 50 percent or more. Absenteeism and turnover declined.
The article further notes that fewer than half of all companies in the United States offer flextime plans. As we spend more and more time at the office or attached to work through email, pagers, Blackberries, PDA's and the like, our ability to attend to personal issues on nonwork time is compromised. As a result, employees are forced to take time off to attend to issues when flexibility in scheduling would enable them to plan their lives to meet all of their demands. Makes sense to me!Posted By Diane Pfadenhauer In Policies & Procedures , Trends | Permalink
What the Employer Giveth, the Taxman Taketh Away
For those employers giving gifts to employees this holiday season, the IRS, according to this article, follows the general rule that a gift an employer gives to its employees is treated as compensation for services, past or future, and falls within the definition of wages for income tax withholding and payroll tax purposes. So does that mean you have to add the value of the turkey to the employees' gross incomes? Not so fast. There are three exceptions, discussed in more detail in the article:
De minimis fringe benefits - any property or service, the value of which, makes accounting for it unreasonable or administratively impracticable. This might include occasional personal use of an employer's copying machine, occasional cocktail parties, traditional birthday or holiday gifts of property (not cash) with a low fair market value, coffee and soft drinks, local telephone calls, flowers or similar property provided to employees under special circumstances (e.g., on account of illness, outstanding performance, or family crisis). Cash, however, is never excludable as a de minimis fringe benefit because it is never administratively impractical to account for cash. This is true even if the cash is given so that the employee can obtain property that would be excludable as a de minimis fringe benefit - like the coupon for the turkey, instead of the turkey itself.
Qualified Disaster Relief Payments - any amount paid to or for the benefit of an individual to reimburse or pay reasonable and necessary personal, family, living, or funeral expenses incurred as a result of a "qualified disaster" (i.e. declared by the President). Think Hurricanes Katrina, Rita and Wilma...
Employee Achievement Awards. These include awards that are given for length of service or safety achievement.
New York's Spread of Hours Regulations
Bet you never even heard of it! Why? Because it's not found in any New York wage payment law. The regulation applies when an employer pays employees at or near the minimum wage Generally, the rule applies when:
- The employee's spread of hours' exceeds 10 hours (from the start of the day to the end of the day, including meal and break time).
- When the employee works a split shift in the workday with nonconsecutive work hours. Meal periods of one hour or less don't count to interrupt the continuity of the shift.
The employer is obligated to pay one hour of additional pay for each hour in excess of 10 hours and for each split shift. If both situations occur, the employee gets 2 hours additional pay. In other words, if the employee works 11 hours at NY's current minimum wage ($6.00 until January 2006 when it will go up to $6.75), it owes the employee 12 hours of pay. If those 11 hours were the result of a split shift, it would owe the employee 13 hours pay for those hours. These additional hours where the employee did not work are paid at the minimum wage.
So how does the employer get around this? They should pay $6.60/hour if their work schedules would result in the instance where one additional hour would be owed (spread of hours or split shift), or $7.20/hour in the instance where work schedules would result in 2 hours being owed.
For those of you who want to try to figure this out yourself, good luck! I actually can't even provide a link to the regulation as the state doesn't have it online!! But, it can be found here 12 N.Y.C.C.R. Sec. 142-2.4 (if you remember what an actual library is!).Posted By Diane Pfadenhauer In Compensation & Benefits , Employment Law , New York Law , Policies & Procedures | Permalink
Background Checks - Are They Really Accurate?
There has been an explosive growth in background checks conducted by employers, since 09/11, on applicants and, more recently, current employees. All to often, however, employers who are looking to skimp on price may find that the report is inaccurate or incomplete or that the company was sloppy in its collection of information. This article in the Christian Science Monitor describes some of these problems.
So who is doing background checks and what are they finding? According to the article, approximately 80% of employers now conduct some sort of background check. The results of these checks are interesting. According to one survey, 41.6% had motor vehicle violations, 39% had bad credit, 26% had discrepancies on their resumes, 8% had criminal records, 8.2% had inaccuracies about their education and 3.3% tested positive for illegal drugs.
The article reminds us that not all is so rosy in the industry. Often, I suggest that you get what you pay for. So many times I have seen background screens come back with questionable flags only because the company failed to verify or continue to search for accurate information. It's the automated process of searching potentially inaccurate public record databases, human error or just plain negligence on the part of the screening company. Much of this is caused by employers who don't want to spend the money to work with a reputable firm upon whose results they can rely.
Lest we also forget that the FACT Act also applies to background checks conducted by third parties. There is a link on the sidebar on the left for more information. In addition, see one of my previous posts on this subject here.Posted By Diane Pfadenhauer In Employment Law , Policies & Procedures , Trends | Permalink
Severance Pay Trends = Less
According to the outplacement firm, Lee Hecht Harrison, there is a continuing downward trend in the amount of severance pay provided by companies to laid off employees. According to the survey, discussed here,
- Packages with two or more weeks pay per year of service fell from 55 percent in 2001 to 51 percent this year among executives, still well above 37 percent in 1998.
- Packages among managers and functional staff declined from 40 percent to 38 percent this year, compared to just 29 percent in 1998.
- Thirty-three percent of administrative staff (secretarial and support staff) were given packages with two or more weeks this year, compared to 29 percent in 2001 and 23 percent in 1998.
- The percentage of companies giving less than one week severance pay per year of service increased. Such packages were given to 13 percent of executives this year, compared to 4 percent in 2001 and 6 percent in 1998. Sixteen percent of managers and functional staff received such packages, compared to 6 percent in 2001 and 7 percent in 1998 and 15 percent of administrative staff received such packages this year, compared to 9 percent in both 2001 and 1998.
- Forty-nine percent of companies offer severance to some part-time employees, up from 39 percent in 2001.
- Median minimum severance has remained relatively stable since 1998 at four weeks for senior executives and executives, three weeks for managers and functional staff and two weeks for administrative staff.
- Median maximum severance has increased to 52 weeks for senior executives and to 28 weeks for executives, both up from 26 weeks. Median maximum severance remained at 26 weeks for managers and functional staff and administrative staff.
The Downside of Our Electronic Leashes
CNN had an article recently on some of the downside of all of the wireless technology available to us. The article suggests that in the past we would go to a conference or on a business trip and be way from the office, returning calls upon our return. Now, if we email someone at 5:00 p.m., we're disappointed if we don't have a reply by the following morning. I am often struck by how much people need to check their blackberries and the like. For example, when I teach graduate classes on Saturday, many of my students run to the hall on their breaks and immediately get on the phone. For what?
The article suggests that because of all of this technology, the barriers between work and time off have blurred considerably. According to the article:
"About 71 percent of America's 108 million households own at least one cell phone, according to Forrester Research Inc. More than 25 million households now own laptop computers, according to Forrester. And 5.3 million households have wireless Internet access. "That doesn't sound like a big number, but it is up from zero a couple of years ago. That is rapid growth," said Charles Golvin, a principal analyst at Forrester."
The good news is that we can connect when necessary and be very productive virtually. The bad news is that we often never get a chance to separate ourselves from all of our work demands.Posted By Diane Pfadenhauer In Policies & Procedures , Trends | Permalink
Black Monday: Will Anyone be Working?
The Monday after Thanksgiving has become known as "Black Monday" following it's cousin "Black Friday" immediately following Thanksgiving Day. Also, known as "Cyber Monday," it has become the biggest shopping day of the year - online. The Wall Street Journal had an interesting article (registration required) discussing the following trend:
"With the rapid expansion of the Internet, the Monday after Thanksgiving has grown to be the all-important kickoff of the online holiday shopping season. On that day, consumers head back to work -- and their computers -- ready to shop after the long holiday weekend... Retailers and analysts say it is fueled largely by consumers taking advantage of high-speed Internet connections at work to do their holiday shopping, sometimes after spending the long holiday weekend roaming brick-and-mortar stores, comparing prices and exchanging gift suggestions with relatives.
The article further notes that 86% of Americans who use the Internet at work have broadband connections there, and about 64% of home users now have broadband. This year, about 52 million people said they will use Internet access at work to browse or buy gifts online, according to Shop.org.
Previously I've posted (here) about the use of the internet at work and also contrasted that with the trend for employees to work eve-increasing hours (here). It's likely that employers will choose between the prospect of appearing as Scrooge during the holiday season if they choose to clamp down on employees surfing and shopping and quietly overlooking what may be an increase in the amount of time that employees spend on the web at work. However, to make matters even worse for productivity, for each purchase, there will likely be a conversation among co-workers discussing the deal, the color, the size and the free shipping.
Bottom line - employees will likely be shopping online at work more throughout the month of December. Hopefully employers will balance that against the hard work employees do throughout the rest of the year. However, if an employer thinks employees don't work hard enough to deserve a little slack, it seems to me they have bigger problems than holiday online shopping at work.Posted By Diane Pfadenhauer In Policies & Procedures , Trends 1 Comments | Permalink
Thanksgiving Day Holiday Practices
Every year the Bureau of National Affairs conducts a survey regarding Thanksgiving Holiday Practices. According to the survey (available here), 69% of employers will give two paid holidays on Thursday and Friday of this year. For those employee required to work on Turkey Day, 52% will get overtime only, 14% will get overtime pay and comp time, 9% will get comp time off only. Lastly, 14% of employers will give some sort of gift to employees in honor of the holiday, but only 2% will actually be giving a turkey.Posted By Diane Pfadenhauer In Miscellaneous , Policies & Procedures | Permalink
Instant Messaging Concerns
Instant messaging and other forms of electronic communication can pose serious problems for organizations. This little article I wrote for Law Technology News describes some of the pitfalls. If you think email is too informal, look at what your employees are writing in instant messages! Many employers have found that their employees are using IM utilizing their private (AOL, MSN and the like) accounts. What's the problem with that you ask? Read on (free registration required)...Posted By Diane Pfadenhauer In Employee Relations , Employment Law , Policies & Procedures | Permalink
Watch Those Emails
If this isn't a good lesson for the workplace, I don't know what is. Seems that about 1000 emails have surfaced from FEMA as Hurricane Katrina slammed into the Golf coast. Rep. Charlie Melancon, whose district south of New Orleans was devastated by the hurricane, posted a sampling of e-mails written by Federal Emergency Management chief Michael Brown on his Web site on Wednesday. The emails, available here, clearly are an embarrassment and have given critics of FEMA's response sufficient fodder to make their case. It is the careless communication styles inherent in email that demonstrate how dangerous it can be to an organization.Posted By Diane Pfadenhauer In Miscellaneous , Policies & Procedures | Permalink
Interesting article here citing some statistics on the effects of driver distractions. According to the article:
"Distracted driving behaviors are responsible for 20 to 30 percent of the nearly three million crashes that occur in the country, according to the National Highway Traffic Safety Administration."
According to the Department of Labor:
"Almost one third of occupational (on the job) fatalities are from motor vehicle related crashes...Motor Vehicle crashes have quite an impact in terms of economic impact for the employers."
"An average, on the job motor vehicle crashes costs an employer $16,500, according to AAA Travel."
So, while you are updating your cell phone policies to discourage your employees from driving and talking on their cellphones, you should consider expanding it to deal with other distractions such as fiddling with the radio and eating. Let's not forget the times we've all sat in traffic and seen women applying makeup (can't say I ever understood applying mascara in a moving car....), reading the newspaper, and the list goes on.Posted By Diane Pfadenhauer In Policies & Procedures | Permalink
Relief for Workers at the Pump
USA Today had an article reporting on recent efforts by employers to help employees with the surging price of gas. According to a survey by SHRM, here are some of the things employers are doing in light of that fact that gas is about a dollar more than it was a year ago and Hurricane Rita is barreling through the Golf of Mexico:
- Raising their mileage reimbursement rate to the new IRS rate of $.485/mile (interestingly, I read somewhere that the rate should be upwards of $.80/mile...)
- Offering public transportation discounts
- Organizing car pools
- Offering telecommuting
- Letting employees work from home
I'd say let's hope that Rita steers clear of the coast, that people are not harmed and the oil production facilities are not damaged. Unfortunately, it appears that is not likely to happen with the latest weather predictions. Hopefully lessons learned from Katrina can be quickly implemented in the face of yet another deadly storm.Posted By Diane Pfadenhauer In Miscellaneous , Policies & Procedures , Trends | Permalink
Record Retention Programs
As a follow up to yesterday's post on the FACT Act disposal rules, consider this comprehensive article I ran into from Vedder Price on the subject of establishing a record retention program. It provides a wealth of information and considerable insight on the need for a comprehensive program.Posted By Diane Pfadenhauer In Policies & Procedures | Permalink
A Few Workplace Lessons from Katrina
Watching the news last night made me think of various tragedies, disasters, and other misfortunes we have endured and their impact on the workplace. HR practitioners are often looked to to provide leadership during and after these events to ensure employee safety, to help get the organization on track and to do things like find and communicate with employees. For those who question the value of HR, this is often a time at which HR pros are put the test and demonstrate their true leadership skills.
After 911 when we realized how difficult it was to communicate with our employees here in NY, many HR departments adopted seemingly simple solutions to the communication problem.
- Staff members made sure employees updated emergency contact information - if there is a disaster, how will you find an employee? What if there is an area of the city that is unreachable? What if employees cannot get to work?
- One company HR staff member told me about the employee list in a shoe box under her bed at home - not the stuff that makes data security experts happy. However, by having this information at home, and having the list pre-sorted and updated, the HR staff was able to call 1500 employees in a matter of hours to communicate important information. Not only did this provide valuable information to employees, it communicated to them that the company cared about their well-being.
- Many departments established pre-arranged offsite meeting places, contingency plans to operate, who would be the first to try to get into the office, etc.
- Organizations soon realized the effect of lack of communication on decision making. While cellular phones and blackberries enabled us to become closer and find leaders faster, when they don't work decision making can come to a halt. Organizations need to develop plans for decision making when senior leaders are unreachable.
- Today I found this site (which is being accessed/posted to largely by text messages as a result of the poor cellular service as a result of the hurricane). It's is allowing people to communicate, just as blackberries did after 911.
These ideas, and there are certainly many others, show how given the worst of circumstances, people will rise up and find solutions. Obviously many organizations have disaster recovery plans, typically based on technology. An effective plan must also incorporate decision making and people. In the mean time, our thoughts go out to the people in Lousiana, Alabama and Mississippi.Posted By Diane Pfadenhauer In Miscellaneous , Policies & Procedures | Permalink
Employer Obligations Under the FTC/FACT Act Disposal Rules
While everyone was taking time away from the office to hang out at the beach this summer, new regulations went into effect requiring disposal of confidential information. The rule applies to organization that utilize consumer reports. The Federal Trade Commission (FTC) defines a consumer report as:
"including information obtained from a consumer reporting company that is used - or expected to be used - in establishing a consumer's eligibility for credit, employment, or insurance, among other purposes. Examples of consumer reports include credit reports, credit scores, reports businesses or individuals receive with information relating to employment background, check writing history, insurance claims, residential or tenant history, or medical history."
Organizations must adopt reasonable measure to prevent unauthorized access to or use of the information. Such measures include:
- establishing and complying with policies to burn, pulverize, or shred papers containing consumer report information so that the information cannot be read or reconstructed;
- destroying or erasing electronic files or media containing consumer report information so that the information cannot be read or reconstructed;
- conducting due diligence and hiring a document destruction contractor to dispose of material specifically identified as consumer report information. Due diligence could include reviewing an independent audit of a disposal company's operations and/or its compliance with the new Rule; obtaining information about the disposal company from several references; requiring that the disposal company be certified by a recognized trade association; or reviewing and evaluating the disposal company's information security policies or procedures.
The FTC has established guidance (in understandable language) available on its website here.
Management of PTO
The subject of managing vacation time (or other PTO) is typically one that few think about until they look at the balance sheet at the end of the year and realize the tremendous liability on the books. All to often policies are designed in such a way that no one routinely reviews what can be a significant issue. Many companies manage their PTO on an informal basis or do so in a highly decentralized manner. The result is that there is little control and, in many instances, much of the time recorded is in accurate.
This article reminded me of the times when I might go into an organization to do due diligence for an acquisition or to review HR practices in general. Many times the organization cannot account for PTO. Alternatively, they will provide a detailed report showing what they believe to be an accurate accounting, but fail to realize that the process of tracking the time is full of potential problems. According to the article, not having adequate checks and balances can cost firms between 3 and 15 percent of their total operating costs. That's certainly something to think about and it's amazing how many companies aren't.Posted By Diane Pfadenhauer In Policies & Procedures | Permalink
Guns in the Workplace
The Christian Science Monitor had an interesting article last week on the subject of guns in the workplace. Two states prohibit employers from limiting the ability of employees to carry guns onto the premises - Oklahoma and Kentucky. In other words, employers cannot restrict employees who want to bring a gun onto the property. On the one hand is the NRA who feels that it's a Constitutional right to tote a gun wherever you want and on the other hand are employers who want to ensure the safety of the workplace.
According to a study, referenced in the article, by the University of North Carolina Chapel Hill, there was a "statistically significant increase in the chances of having a killing in any workplace that permitted guns."
I used to work for a company with locations in a variety of states - including Kentucky, where the views on this subject differ widely. But, as a New Yorker who periodically rides the subways and has grown accustomed to stringent security procedures and now bag searches on the subway, I cannot imagine guns anywhere near the workplace.Posted By Diane Pfadenhauer In Policies & Procedures | Permalink
Background Checks for Current Employees on the Rise
The Background Checks Blog directs us to a recent article in the South Florida Sun Sentinal which discusses a trend of increasing the number of background checks on current employees (we're not just talking applicants here). According to the article:
"The number of checks on all workers has tripled during the past eight years, experts said, mostly because of growing security concerns, the technological ease in obtaining the information and its declining costs."
Although it sounds a bit like big brother is watching us, our friends at the Background Checks Blog (what an interesting niche, huh?) remind us of the importance of obtaining proper authorization from employees in order to do periodic background checks during employment.Posted By Diane Pfadenhauer In Policies & Procedures , Trends | Permalink
Hands Free Cell Phones Not Necessarily Safer
According to CNN, the use of hands free cellular phones in cars may not necessarily be safer than using the phone the traditional way. Here in New York, where our state law prohibits the use of hand held phone while driving, I constantly see drivers blatantly flouting the law as if it didn't exist. Employers should review their technology policies and rethink whether employees should be yacking on the phone in their company cars while driving - hands free or not. According to the article, it's the talking that creates the distraction, not whether you use your hands.
According to the article:
"National Highway Traffic Safety Administration researchers said devices like head sets or voice-activated dialing led to longer dialing times than for hand-held phones. The delays offset the potential benefit of keeping both hands on the wheel, the report said.
The research adds to a growing body of studies that suggest hands-free cell-phone systems do not deliver the safety benefits automakers and legislators had thought."
I'm imagining a scenario where an employee is driving on company business, talking on his/her cellular phone and is involved in an accident. Even if the employee is compliant with hands-free laws, is he/she still negligent for using the cellular phone while driving??? Something to think about.Posted By Diane Pfadenhauer In Policies & Procedures | Permalink
Cell Phones in the Workplace
I had an interesting conversation with someone last week on the subject of the use of cell phones in the workplace. I suspect everyone has dealt with the notion of employees who have wires hanging from their ears as they sit at their desks, just in case their kids call when they get home from school. Most of us, by this time, have modified our policies to either prohibit cell phone use during work time, or restrict it to emergencies only. The topic of my conversation last week surrounded the use of cameras on cell phones and business security. My Treo 600 can snap a picture and email within seconds. For those concerned about internal security, it is not at all unlikely for someone to be able to snap pictures of the secure areas in the workplace and send them off without anyone knowing.
Like I've said before, technology is always changing. Our policies in this area have to be written in such a way to accommodate the dynamic changes in technology. A good set of policies on security, confidentiality and nondisclosure should serve as the foundation for a company to protect itself.
Even more scary, however, which I've heard no one mention, is the USB drives that record hours of time in MP3 format. Some of my students use these to record classes, which I don't mind. In the workplace, the paranoid should become more so. They're small, fit in a pocket, are barely noticeable and can record hours of conversation and meetings without being noticed.Posted By Diane Pfadenhauer In Policies & Procedures 1 Comments | Permalink
Mandatory Direct Deposit
Someone recently asked me about whether they could require mandatory direct deposit for their employees. Apparently, this was a company with out of state employees. Typically what happens in this scenario is that the payroll is processed centrally and each pay period a pile of checks is mailed to each (typically out-of-state) location. Everything works well until the overnight courier misses the delivery. Payday comes and goes with no paychecks. For the employees who have direct deposit - no problem. For the employees who are waiting for their checks - big problem.
The answer to this question generally is a subject of state law. New York State Labor Law has specific guidance on this issue. While many other state do not prohibit mandatory direct deposit, unfortunately New York limits the ability of employers to mandate direct deposit. Specifically,
S 192. Cash payment of wages. 1. No employer shall without the advance written consent of any employee directly pay or deposit the net wage or salary of such employee in a bank or other financial institution. 2. This section shall not apply to any person employed in a bona fide executive, administrative, or professional capacity whose earnings are in excess of six hundred dollars a week, nor to employees working on a farm not connected with a factory.
For more on New York State's law, go here. For those in other states, be sure to check in with your particular state's law before mandating direct deposit.Posted By Diane Pfadenhauer In Employment Law , New York Law , Policies & Procedures 1 Comments | Permalink
New York's "5 Day Letter"
"...notify any employee terminated from employment, in writing, of the exact date of such termination as well as the exact date of cancellation of employee benefits connected with such termination. In no case shall notice of such termination be provided more than five working days after the date of such termination..."The regulations also provide for some nasty penalties such as a $5,000 fine, AND, where there involves a failure to provide notice of the termination of a group accident or group health policy the claimant can be entitled to an award of "appropriate damages" which may include "reimbursement for medical expenses which were not covered by the policyholder's insurer by virtue of his termination..." In addition, this penalty can be doubled for egregious violation. For the details, go Sections 217 & 218 here. Most large employers satisfy this requirement by sending out a COBRA notice (as long as done within 5, not the 14 days as required by COBRA). Unfortunately smaller employers, who are not subject to COBRA's notice requirements, should make sure their paperwork is in order and be sure to send out these notices. Posted By Diane Pfadenhauer In Employment Law , New York Law , Policies & Procedures | Permalink
An interesting article at workforce.com describes a controversy between Broadcom and Intel. Broadcom had been interviewing Intel's employees for jobs. While this is a seemingly innocent occurrence throughout human resources offices everywhere, Intel accused Broadcom of conducting the interviews in order to obtain Intel's trade secrets. Guess what? The court agreed with Intel and granted an injunction against Broadcom. The author, Christopher Kondon of the LA office of Kirkpatrick & Lockhart, notes the importance of educating interviewers about the importance of confidentiality and trade secrets. In my corporate days as a SVP of HR, I can remember an occasion where I was being aggressively recruited by a competing firm and was subjected to some unusually probing questions which, in light of this case, would be considered beyond the scope of an employment interview. Today, when I teach business law in an MBA program, we deal with this topic regularly. Kondon provides an useful definition in his article of the kinds of information that can be considered trade secrets:
"...trade secrets include a wide range of confidential business or proprietary information, such as chemical formulas, industrial processes, business plans and, under certain circumstances, customer lists. In order to maintain business information as a trade secret, one must take reasonable precautions to prevent the information from becoming generally known to his or her competitors. "Reasonable precautions" usually include requiring employees to execute confidentiality and nondisclosure agreements in favor of the employer."
I find that many employers really foul up in the reasonable precautions area. For example (Diane's quick list of how to lose trade secret protection):
- They fail to secure information that should be maintained in a locked area. For example, financial information, codes, etc. are left out in a department and others have free access as they walk through.
- They fail to mark things as confidential. Information that a competitor would love to get their hands on is transmitted throughout the company in the same manner as all other inter-office communication.
- They fail to obtain non-disclosure agreements when they conduct interviews of candidates who will potentially have access to sensitive information.
- They fail to obtain non-disclosure agreements when they have conversations with potential vendors or suppliers.
- They set up computer systems that contain specific and detailed information and do not restrict access. For example, a sales organization that enables all sales professionals throughout the company to have access to sales information for all other sales professionals, instead of restricting access to divisions or territories.
There are many others, but suffice to say this area is one that is continually evolving and companies should think about how they use and manage this information in order to adequately protect themselves.Continue Reading Posted By Diane Pfadenhauer In Employment Law , Policies & Procedures , Trends | Permalink
Workplace Violence Prevention Resources
The subject of violence in the workplace has become an increasing concern. Over the past few years our heightened national security has the made workplace, particularly in major cities, almost impossible to enter without clearing some sort of security system. All of these barriers notwithstanding, there still remains a threat either from internal employees or visitors who seemingly have a reason to be in a particular location and are therefore able to pass through these security systems.
This topic is also a subject matter that many organizations overlook. Only when something terrible happens are they unfortunately thrown into the realization of how vulnerable they were. Today when we think of violence in the workplace we often think of avoiding terrorism or similar large scale disasters. This focus, unfortunately, causes us to forget that there are many other sources of violence - from the disgruntled employee who strikes a co-worker to the angry spouse who enters the workplace and attacks his/her spouse. This list is quite possibly endless. When such an event happens not only is there potential liability for the employer for failing to prevent the occurrence, but the workplace can become crippled with fear and it may take serious intervention on the part of professionals to get the workplace back on track. The links below will take you to some very useful and detailed sites dedicated to violence prevention in the workplace. It's worth a read.
- OSHA Website devoted to workplace violence.
- Centers for Disease Control - Developing a Workplace Violence Prevention Program and Policy.
- Books available on the subject of workplace violence.
- AFSCME Guidelines on preventing workplace violence.
Even More on Instant Messaging at Work
Yet another article regarding the use of instant messaging, or IM, at work. The Detroit Free Press notes the recent proliferation of IM use in the workplace and the opportunities for increased productivity as a result. However, as previously noted, it's not without it's pitfalls. With over 25 million IM users at work, the article cites a survey by the ePolicy Institute which asserts that... "58 percent of workplace IM users engage in personal conversations. Sixteen percent use it to transmit gossip, rumors and jokes, and 6 percent send pornography. " Further,
" Employees chat, share confidential files, swap dirty jokes and catch computer viruses over AOL Instant Messenger, Yahoo, MSN Messenger and IRC. They do it without asking permission. They do it without their employer's knowledge. And therein lies the problem"
To counter the problems associated with IM at work, the article suggests:
A more feasible solution is to install "gateway management" programs, such as those from IMlogic and Akonix Systems Inc. These programs basically turn free IM software into corporate-appropriate software by putting IT departments in total control.
IM is not going to go away. My suggestion has always been to develop a comprehensive policy encompassing all forms of electronic communication - email, IM, the internet, voice mail, telephone, and what ever else may come along.Posted By Diane Pfadenhauer In Policies & Procedures , Trends | Permalink
Nuances of California's Sexual Harassment Training Law
By this time, everyone knows that California has joined Connecticut in requiring managers to participate in sexual harassment prevention training. Much has been said, but also much has been understated. This legislation will likely result in the birth of a cottage industry of providers seeking to cash in on this new requirement. Many providers will have little experience in the area and will be unable to effectively ensure that participants in the training are adequately trained. Unfortunately, the buyer must beware. Littler Mendelson's ASAP Newsletter on this topic provides some insightful commentary the selection of trainers and the training overall (the important aspects I have highlighted):
The quality standards require an employer to closely examine its training programs. Merely sitting a supervisor down and having her or him view a video or non-interactive web-based product - "show and go" - would likely not meet the statutory requirements to conduct "classroom ... or ... effective interactive training and education." Would classroom training by someone who has done a significant amount of harassment training but who has no practical experience preventing harassment meet the requirement to have the training conducted by those with "knowledge and expertise" in preventing harassment, discrimination, and retaliation? Although not entirely certain, the answer will likely be "no." Given this uncertainty, the most prudent approach is to use trainers and training organizations with both a solid training and harassment prevention background regardless of whether the training is done live or on-line.
The newsletter further notes that the legislation is merely a floor, not the maximum of what a proactive employer should necessarily do to adequately prevent harassment in the workplace. In other words, it is possible that an employer could adequately comply with the new state law, but fail to adopt the other necessary requirements of a valid Ellerth/Faragher defense for a federal discrimination claim. Thus, while everyone is aware (hopefully) that we now must do training, the obligation really has existed for some time now. It has existed in the context of a variety of other necessary practices that an employer must have in order to adequately defend itself.Posted By Diane Pfadenhauer In Employment Law , Policies & Procedures | Permalink
More on Employee Handbooks
George and Michael have had a series of very helpful posts on the subject of employee handbooks. I feel compelled to add a comment or two....
- Many times employers will develop a company handbook and it is perceived as a human resources document that contains all the "human resources" policies. What this really means is that management and other functional areas of the company typically view it as something outside of their domain, that another department is responsible for and that has nothing to do with them. WRONG! The handbook is a company document that every manager is responsible for. The role of the HR department is to facilitate the composition of the handbook and to facilitate communication.
- The next problem is that these other areas then decide they need a policy of their own - so they develop their own purchasing manual, or travel and entertainment policy, or perhaps an internet policy. Then they go about writing and distributing their own little policy manuals. They collect all these little forms, keep them in a secretary's box in their department and then when they want to discipline someone for violating one of their little policies - guess what? They can't find the pile of forms, the drafting of the policy was never reviewed by counsel and HR hardly knew it existed. NOT a GOOD IDEA! All of the documentation procedures that George mentioned yesterday are just a snippet of details these others forgot. So when the lawyer gets a call about this little charge that was filed, too much time is spent gathering up where all the little piles of boxes are that contain all of those sign off forms and additional time is spent trying to figure out how to get past the drafting nightmare created by the policy.
- The ideal policy system in the company works like this:
- First, HR is the keeper of the policies for everyone. The policies are not HR's policies, but rather are the company's polices that relate to employee practices and can apply to various functional areas throughout the company.
- When there's a problem with a policy, implementation, or compliance, HR is right there to ensure that proper steps are taken.
- Let's not forget that the goal of any handbook or policy system is to COMMUNICATE! Employees expect to receive policy communications from HR. When they start receiving it information from elsewhere, after a while there is no sense or predictability in the internal systems. Worse yet, they may tend to discount its importance. This leaves employees confused, people are left out of the loop and are not aware of the guidelines which govern their work lives.
- Last, but not least, a great HR department is a valuable internal resource that should have a fair amount of expertise in developing and implementing policies and employee communication. If I was a manager in another area who needed to implement a policy, I'd be calling HR first!
Keep up the good comments guys! Although I may chime in here and there.....Posted By Diane Pfadenhauer In Policies & Procedures | Permalink
Annual OSHA Posting Requirement
As of February1, employers are required to post their annual report of job-related injuries that occurred last year. This form, 300A, is available here on OSHA's record keeping page in Adobe PDF or Excel formats. Employers are required to post the notice from February 1 through April 30th. Other requirements for covered employers:
- The summary should list the total numbers of job-related injuries and illnesses that occurred on 2004 and that were logged on the OSHA 300 form.
- Companies with no reportable injuries should post the report with zeros.
- It should also include information about annual average number of employees and total hours worked during the calendar year to assist in calculating incident rates.
- It needs to be displayed in a common area and employers are required to make the notice available to employees who move from worksite to worksite.
For more information about OSHA in general, their website is here at osha.gov.Posted By Diane Pfadenhauer In Employment Law , Policies & Procedures | Permalink
Resources for Employers Operating Internationally
The U.S. Department of State website hosts a tremendous amount of information for employees going abroad. They publish a quartery report which calculates the costs of living abroad, a wealth of other information including information on visas, passports,and travel warnings. If you are an employee planning to travel or live abroad or an employer exploring this staffing option, this website will provide a wealth of information that is updated often.Posted By Diane Pfadenhauer In Policies & Procedures | Permalink
Now it's not IM, it's Internal Networks
A recent article in USA Today cites one of the more interesting threats to corporate networks - not the outsiders, but employees. Several weeks ago, we discussed the risks of IM in the workplace. Now it seems that corporations are waking up to the fact that while they have armored themselves against the outside, they may lack the necessary protection on the inside. One only has to read the headlines to learn about employees stealing the identities of customers, about employees operating file-sharing systems on corporate networks (think music sharing) and the list goes on. The article cites a Computer Security Institute/FBI study which claims that three-fourths of the financial losses traced to security breaches are from inside the business. While many organizations have effective policies to address technology in the workplace, we know that many do not. Moreover, the most effective policies will be the result of a collaboration among legal, human resources and IT staff. All to often the technology policies will be drafted by one or two of these three and, as a result, fail to address important technological, legal or human resources implications.Posted By Diane Pfadenhauer In Policies & Procedures | Permalink
5 Steps to Avoid Litigation
I recently found an interesting little article on avoiding employment litigation. A recent edition of the Fisher & Phillips newsletter cited some eye opening statistics related to employment litigation with some useful advice for all employers on how to stay out of it. They note that today more than 50% of all court filings in federal district court are employment cases. Thus, employers will very likely either be embroiled in employment litigation or become involved in settlement negotiations to avoid litigation. The author cites simple examples of topics such as policy implementation, training of managers, eliminating managers who do not contribute to a workplace of dignity and respect, and creating a credible human resources component. While we've seen many of these recommendations before, effective management is critical for the last two - make sure your managers are worth their salt and treat employees with respect and make sure that even if your organization does not have a high level human resources function that you give someone in management the authority and accountability to handle human resources and employee relations issues. If you view the HR function as an administrative function and don't give it the muscle it requires, you are bound to get into trouble.Posted By Diane Pfadenhauer In Policies & Procedures | Permalink
US Companies Lose $150 Billion Per Year When Sick Employees Come to Work
According to Harvard Business Review, US companies lose $150 billion per year when sick employees come to work. They call this "preenteeism" and the loss amounts to reduced productivity of the the sick employee at the workplace. Many of these illnesses are minor - asthma, colds, headaches. Some are even more debilitating such as arthritis, diabetes, migraines, etc. What is interesting is that the study identifies that companies have been able to demonstrate increases in overall productivity when they invest (or SPEND MONEY) to provide employees with the proper medications and treatment. For example, the article cites the case of Pitney-Bowes who in 2001 sought to REDUCE health care costs. They did this by REDUCING co-payments for allergy and diabetes drugs. They found that the direct costs of treating these invididuals actually FELL 10%. Why? Because patients were more likely to take the more affordable drugs more regularly. Here's the problem - aren't we all now trying to sell our employees on this new "self directed health care" nonsense. So we'll give them big deductibles so they make intelligent health care decisions. Hmmm. I think HBR is on to something. Let's check back in a few years and see where our health care costs have gone. We may be ultimately lowering our short term costs yet have sicker employees and a corresponding drop in productivity.Posted By Diane Pfadenhauer In Compensation & Benefits , Policies & Procedures | Permalink
More on IM @ Work
After my recent post regarding policies surrounding email and instant messaging at work, CNN recently had an article describing the increasing use of IM at work. The article, which is directed toward employees, indicates that more and more businesses are seeing the value of IM because of immediate responses - no need to wait for a party to open email and reply. But, with that convenience comes some risks. The article advises employees to check their company's policy on downloading software. What prudent company would provide download rights on an employee PC anyway? With 53 million American using IM, and 43% of all internet users using IM daily, we'll see more and more of this in the workplace. IT and HR departments will need to continue to collaborate on technology policies which will guide the use of all types of technology in workplace.Posted By Diane Pfadenhauer In Policies & Procedures | Permalink
OnStar or Orwellian Tracking?
I found an interesting, but brief, article on the subject of employer tracking devices and their effect on employee privacy rights. It seems like just yesterday we were arguing about whether employers could review employee email and whether employee's have a right of privacy in their email. If you thought that was interesting, Nixon Peabody's recent Employment Law Alert discussed the use of OnStar tracking devices placed on employer own vehicles. Such devices can disclose the location of a vehicle at all times. The article references a comprehensive article which appeared in the Employee Relations Law Journal last summer. Apparently, as long as the employer discloses the existence of the device, employees have no expectation of privacy when driving a company vehicle. An employee's continued use of the vehicle after the dissemination of an employer policy eliminates any privacy expectations the employee may have. What has been a bone of controversy among rental car companies has now reached the workplace with employer owned vehicles.Posted By Diane Pfadenhauer In Policies & Procedures | Permalink
'Tis the Season... For Corporate Holiday Parties
It's that time of year for corporations to invite everyone to the local hotel ballroom for the annual holiday bash. Human resources professionals will be sipping ginger ale, averting their eyes as their co-workers imbibe just a little too much. According to an article in USA Today, we have much to be thankful for and the trend this year is for more parties - apparently the economy has picked up enough to encourage us all to celebrate more than we have in the past few years when a poor economy put a damper on holiday engagements. While some organizations may be thinking of the bubbly, others (like me) will be thinking of the value to be obtained with holiday parties. Now, I'm not scrooge, but all too often I have attended holiday parties where it is literally the only event all year for the employees to get together. What happens? The CEO or senior officer dodges the microphone and misses the perfect opportunity to engage employees, acknowledge their contributions for the year and to set the stage for next year. Employees appreciate it, and it is often a rare opportunity for employees to mingle with senior executives and feel a part of the organization. So let's hope your CEO's will be using this opportunity to communicate and engage employees rather than dodging the microphone and running out of the ballroom after a brief 15 minute visit.Posted By Diane Pfadenhauer In Policies & Procedures , Trends | Permalink
Watch Those E-Mails and IM's
A recent survey by the American Management Association revealed some troubling statistics regarding employer policies associated with email and instant messaging. While 79% of employers have implemented a written e-mail policy, only 20% have adopted a policy governing IM use and content. This in light of the fact that in 2004 up to 20% of employers have had employee e-mail subpoenaed in the course of a lawsuit or regulatory investigation, up from 14% in 2003. I recently attended a New York State Bar Association CLE class on electronic discovery. What was most troubling was that one of the clear messages was that essentially everything can be found - whether seemingly "erased" or "deleted." In addition, the costs associated with retrieval of this information as well as the litigation expense associated with reviewing countless emails and IM's could make the cost of litigation skyrocket. This is scary stuff, indeed. Employers should not only ensure that they have adequate policies, but they should also make sure they provide additional guidance - bringing policy into practice - rather than distributing a policy that remains unread.Posted By Diane Pfadenhauer In Employment Law , Policies & Procedures | Permalink
Reducing Workers' Compensation Costs
A recent article by the American Society of Safety Engineers demonstrates how proactive steps to promote workplace safety and reduce workers' compensation costs can have a significant positive effect on the bottom line. This isn't just fluff. The article cited a study by Liberty Mutual that found that every $1 invested in workplace safety results in a $3 savings. Human Resources professionals are often involved in workers' compensation management either in conjuction with safety and health professionals or are responsible for the entire process. In service environments, many organizations give no attention to safety or workers' compensation - they view this insurance as a necessary evil that cannot be managed. It's required by statute, so just find a broker to get it for you. With such an approach, employers are missing the opportunity to impact significantly bottom line expenses, promote productivity, reduce absenteeism and positively influence morale. Such an approach will not only reduce accidents and expenses, but will get employees back to work and enable the organization to determine whether such injuries are genuine or suspect.Posted By Diane Pfadenhauer In Compensation & Benefits , Policies & Procedures | Permalink
Guidance for Finding Missing Plan Participants
How many times have plan administrators been faced with the prospect of dealing with seemingly lost plan participants when terminating a plan? The US Department of Labor recently issued guidance for fiduciaries of terminated defined contribution plans who cannot find all plan participants to make final distributions. If a fiduciary is unable to locate a plan participant, the administrator may distribute the account according to the guidelines set forth in the DOL's bulletin. The bulletin sets forth several steps that a fiduciary can take to locate plan participants. Reasonable expenses associated with these search efforts may be charged to the participant accounts. These include:
- using certified mail,
- checking records of related employer plans,
- contacting a designated beneficiary and asking that beneficiary to forward information to the participant,
- using a government letter-forwarding service, or,
- using internet search tools or credit reporting agencies.
For further information, this bulletin is available here.Posted By Diane Pfadenhauer In Compensation & Benefits , Corporate Turnaround , Policies & Procedures | Permalink
Employer Liability for Cell Phone Use While Driving
Employees in the United States feel continuing pressure to remain productive. Those who survived the extensive corporate layoffs of the past several years feel even greater pressure to get more work done. How often have we seen drivers on the road talking on their cellular phones, often in an effort to cram more work into their day? While New York remains one of the few states that require hands-free driving with cellular phones, others are sure to follow. Recognizing the dangers and the potential liabilty based on negligence theory, many companies are also implementing and enforcing policies addressing the dangers of driving while talking on cellular phones - some prohibiting it outright. As a New York driver, I've gotten relatively used to driving hands-free and am often surprised at the number of drivers who continue to use their cellular phones without hands-free devices, despite the law and the known dangers. When I travel to other states, I continue to be amazed at the number of distracted drivers who are focused on their cellular phone conversations instead of the road.Posted By Diane Pfadenhauer In Employment Law , Policies & Procedures | Permalink