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

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

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

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

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

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

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

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

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

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

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

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

So how do you get out of this mess?

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

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

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

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

So how do you get out of this mess?

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

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

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

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

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

So, how do you get out of this mess?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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

Hurricane Preparedness for Employers

2. FEMA's website on Hurricane Preparedness

3. Weather Safety Awareness from Weather.com

4. National Hurricane Center

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

6. NYC Office of Emergency Management

7.  NYC Office of Emergency Management Hurricane Guide

8. NYC Evacuation Zone Finder

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

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

Good luck and be safe!!

My Previous Blog Entries on the WTPA

NYS Department of Labor FAQ's on the WTPA

I'll be presenting on the Legal Panel today at #NYSSHRM11.  Looking forward to presenting with Dan Morris of Clifton Budd, Linda Carlozzi of Jackson Lewis and Jennifer Loftus of Astron Solutions (@astronsolutions)

For more guidance see: IRS Notice 2010-59 Section 105 — Amounts Received Under Accident and Health Plans, Section 106 — Contributions by Employers to Accident and Health Plans, Section 125 — Cafeteria Plans, Section 220 — Archer MSAs, Section 223 — Health Savings Accounts

THE FORM 1099 REPORTING REQUIREMENT

Prior to its repeal, the provision would have been effective January 1, 2012, and required employers to issue a Form 1099 to any vendor from whom the employer purchased $600 or more of goods or services in a calendar year. We all know that we already have to issue 1099’s to individuals who receive payments in excess of $600 in a year.

THE FREE CHOICE VOUCHER IS NO MORE

The free choice voucher provision would have been effective January 1, 2014, and required employers to offer certain employees a free choice voucher to opt out of the employer’s health plan and enroll in coverage through an exchange. To be eligible for a voucher, an employee’s premium contributions had to be between 8 percent and 9.8 percent of household income, which could not exceed 400% of the federal poverty level. The voucher would have equaled the employer’s contribution to the plan for which the employer pays the largest portion of the cost of the plan. Employees eligible for vouchers would have been able to use the voucher to obtain health coverage through an exchange and keep any remaining voucher amount as taxable income.

So why do we care? Some of these provisions would have been onerous on employers but would have enabled the federal tax government to collect more taxes in order to offset the cost of health care reform. In addition, the loss of the voucher system could remove a potentially valuable deduction for employers.

For more, follow this link

Earlier this month the U.S. Department of labor launched its first smartphone application – the DOL-Timesheet. This timesheet application, available in English and Spanish, provides a timesheet that will assist employees with tracking their work hours and determine wages owed. Users can track regular work hours, break time, and overtime hour for one or more employers; they will be able to add comments on information related to their work hours, view a summary in a daily, weekly, and monthly format, and email the summary of work hours and gross pay as an attachment.

What makes this opportunity significant is that instead of relying on employer records, workers can now keep their own records. This information could prove to be invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.

Should employers be reviewing their time keeping systems? And, could this lead to more complicated situations challenging the employer with details of time records that disagree?

This free app is compatible with the iPhone and iPod Touch; the Labor Department will be looking into updates that would allow similar versions for other smartphone, such as Android and Blackberry, as well as other pay features that would provide for detail on tips, commissions, bonuses, deduction, holiday pay, pay for weekends, shift differentials, and pay for regular days of rest.

For those who don’t have a smartphone, the Wage and Hour Division has a printable work hours calendar. This calendar, available in English and Spanish, allows an employee to track rate of pay, work start and stop times, and arrival and departure times. It also includes information about workers’ rights and how to file a wage violation complaint.

Both the app and the calendar can be downloaded from the DOL’s Wage and Hour Division homepage.

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:

Heat Exhaustion:

Symptoms include:
• Dizziness
• Headache
• Sweaty skin
• Fast heart beat
• Nausea, vomiting
• Weakness

Heat Stroke:

Symptoms include:
• Red, hot, dry skin
• High temperature
• Confusion
• Fainting
• Convulsions

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