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September 26, 2008

HR Fact Friday: Inappropriate Jokes at Workplace No Laughing Matter

Filed under: Harrasment — Paul Hendrycks, VP Sales and Marketing @ 8:45 am

Is it okay to allow even minor racial comments, crude or sexual jokes or similar derogatory behaviors at the workplace if nobody objects? One of the risks of including verbage in anti-harassment workplace conduct policies such as, “is unwelcome” is that it conveys the impression that the company condones such conduct until such time that it offends someone and only then must it stop.

Another flaw in this ill-conceived lithmus test of offensiveness is its’ reliance on the notion that all employees are comfortable speaking up if something they overhear, read in an email, or is said to them is offensive. Many employees are not comfortable being the whistle blower especially if they are a new employee or in any kind of workplace staff minority.

In February 2008 a telephone survey conducted by Novations  Group, a Boston-based consulting firm, found that 45% of men and 38% of women heard sexually inappropriate comments at work in 2007. The survey found that 38% of employees between the ages of 18 and 34 heard age-related ridicule while only 16% of those over age 55 heard such ridicule. This data suggests that employees are more likely to make innappropriate remarks when in the presence of those least likely to take personal offense.

Employees who make these inappropriate remarks might assume they would not be subject to discipline if the group they are associating with do not take offense at such remarks. So should managers intervene to stop such behaviors? Absolutely, and here is why. By not taking action to stop any conduct that could be considered degrading based on sex, race, or another statutorily protected characteristic a manager, and by extension, the company is seen as endorsing bias and creating a potentially hostile work environment.

If an employee pursues a harassment claim against the organization, that claim will more likely succeed with evidence that managers were aware of but failed to stop discriminatory remarks or behaviors in the workplace even if that conduct was not directed at the employee.

The bottom line is don’t wait for a complaint to intervene and stop any occurence of conduct that could test the definition of workplace harassment. A policy isn’t enough. Be the example and step in. Don’t let the joke be on you or your company.

Source:  HR Magazine, September 2008, Not Funny – Remove the Welcome Mat for Inapporpriate Jokes, by Elaine Herskowitz

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September 24, 2008

Part 2: ADA Amendments Act of 2008 – Change on the Way

Filed under: ADA & Disability — Jane @ 6:50 am

This posting is part two of two - See Monday, 9/22 for part one.

What’s Been Changed?
1.  The definition of “disability” must be broadly interpreted in the future.  The Amendments strongly state that “the Act shall be construed in favor of broad coverage of individuals…to the maximum extent permitted….”

2.  The definition of “major life activity” is expanded.  Before the Amendments the ADA did not specify examples of major life activities.  The Amendments define major life activities to include, but not limited to:  caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking ,standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. Additionally, the Amendments add new major life activities that involve “major bodily functions.”  Those functions include such things as “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.  Major life activities just got a whole lot more inclusive.

3.  Mitigating measures won’t be considered any longer.  The Amendments provide that disability status is to be determined without considering mitigating measures (e.g., medication, prosthetics, hearing aids, assistive technology) that might improve or correct an individual’s condition.  One small exception is made for ordinary glasses or contact lenses.

4.  The definition of “regarded as” is broadened.  In the past, an individual would have to show that an employer regarded him as substantially limited in a major life activity.  The Amendments loosen that standard, permitting an individual to meet the “regarded as” standard whether or not an impairment limits a major life activity. Note that the Amendments make clear that the “regarded as” test doesn’t apply to impairments that are minor or lasting 6 months or less.

5.  “Substantially limits” will be given a broader definition consistent with the Amendments.    The new law rejects the strict definition used by many courts in considering whether a disability “substantially limits” a major life activity.  No new definition was included in the law.  We’ll have to wait to see how the EEOC and courts will handle this mandate and loosen the definition.

6.  Episodes or impairments in remission may be protected.  Under the new law, an impairment that is episodic or in remission is a disability if it would substantially limit a major activity when active.

7.  No reverse “lack of disability” discrimination.   Under the new Amendments an individual can’t sue because he believes he was discriminated against because he didn’t have a disability.

What should you do now?
Most organizations will need to make changes in their policies and procedures to ensure compliance with the new law. Therefore it’s important to become familiar with the Amendments, watch for new EEOC regulations, and check your state law to see if it imposes even greater requirements.  It’s also a good time to plan an ADA training update for managers.

Additionally, managers should prepare to take a more liberal view of who may be covered under the ADA and what additional accommodations may be necessary.  A cautious approach that errors on the side of the employee may be wise until the effect of the changes becomes clearer. That of course requires more regulations and more court cases.  Stay tuned.

To receive regular HR news and legal updates subscribe to our free monthly HR whitepaper or twice monthly HR Legal Update e-newsletter. To subscribe go to: http://www.hrnonline.com/promo/freeNewsletter.asp

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September 22, 2008

Part 1: ADA Amendments Act of 2008 – Change on the Way

Filed under: ADA & Disability — Jane @ 2:34 pm

This posting is part one of two – Check back on Wednesday, 9/24 for part two.

Congress has passed the The ADA Amendments Act of 2008.  The Act, which received final Congressional approval on September 17, will significantly expand coverage of the Americans with Disabilities Act.  President Bush has indicated that he will sign the bill which is effective on January 1, 2009.  The legislation was in response to criticism of court decisions that excluded many individuals who it was thought should be covered under the ADA.

The new law will undoubtedly increase the number of individuals protected under the ADA and likely spur more litigation.  It also will require changes by employers to ensure compliance and avoid time consuming and costly employee complaints and lawsuits. The ADA applies to organizations with 15 or more employees, including part time and temporary workers. You’ll remember that under the ADA an individual may be considered to have a “disability” if she,

1.       Has a physical or mental impairment that substantially limits one or more major life activities;

2.       Has a record of such impairment; or


3.       Is regarded as having such an impairment.

Among other things, the new law will change how these disability definitions will be interpreted and applied.

Check back Wednesday to see specifically what’s been changed.

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September 19, 2008

HR Fact Friday: Gap Exists in HR Recruitment Priority vs. Funding

Filed under: Hiring & Jobs — Tags: , , , — Paul Hendrycks, VP Sales and Marketing @ 9:15 am

It makes sense to think that an organizations top performance priority would receive proportionally allocated funding to achieve its mission. I’m in marketing and my top priority objective is lead generation. Therefore it should come as no surprise that when I prepare a strategic plan and budget forecast that the largest wedge of budget pie sought is to fund lead generation initiatives. That just makes sense.

That’s why the results of a recent HR priority vs. funding survey from BNA took me by surprise. Why would human resources priority vs budget allocation equation be any different?

Case in point: Recruiting and Retention. Human resources executives most commonly cite their department’s performance in recruiting and retaining employees as the primary factor in how top management evaluates HR’s contribution to the organization. But despite the importance assigned to recruiting, budgets are stagnant and the systems deployed are often inadequate.

In the BNA survey, which covers a broad range of HR metrics, 48 percent of HR executives cite recruiting and retention as the top criterion in C-suite assessments of HR’s overall performance. Partnering to implement key organizational goals, often noted as a high priority for HR, falls in second place, with 39 percent of the HR executives citing this factor as the leading factor for management’s evaluation of HR’s contribution.

The BNA study, conducted annually for more than 20 years, is based on responses from 607 HR executives. Despite the softer economy and lower overall employment growth, 34 percent of HR executives identified recruitment and retention as their top priority for 2008, followed by only 13 percent citing strategic planning and management and 12 percent noting training and development. The importance assigned to recruitment and retention varies little by organizational size or industry sector.

Although the priority placed on recruitment and retention is clear, the BNA study reveals a disjuncture between this priority status and actual practices. For example, HR executives are more likely to plan and measure the results of their compensation and benefits programs than their staffing programs.

Fifty-nine percent reported that they regularly track compensation and benefits, compared with 52 percent who regularly use measurement and planning tools for staffing. In fact, Median HR expenditures increased to $1,082 per employee in 2007, up marginally from $1,056 per worker in 2006, according to the BNA study. Although 54 percent of the surveyed organizations reported that they increased HR expenditures in compensation and 52 percent increased spending for benefits, only 44 percent boosted spending for employment and recruiting in 2007.

The same percentage reported they will increase spending for recruitment in 2008.

Forty-seven percent reported that their budget allocation for recruiting in 2008 will not change, and 9 percent reported that it will decline, the largest percentage reporting a drop in spending for any HR task.

In addition, despite widespread coverage of increased outsourcing, recruiting and related tasks remain largely in-house, including tasks that are not part of core recruiting work. HR departments are most likely to outsource background investigations, but only 27 percent report that they use vendors for this work. Only 23 percent outsource drug testing and only 15 percent outsource pre-employment testing.

Recruiting responsibilities for lower-level positions also remain largely in-house. Responsibilities for non-college recruiting rests solely with HR at 53 percent of employers; 39 percent share the responsibility with other departments; and only 5 percent outsource the task. At companies with 2,500 or more employees, 45 percent give HR sole responsibility for non-college recruiting.

HR handles all college recruiting at 41 percent of employers and shares the responsibility with other departments at an additional 25 percent. Interviewing remains a joint effort, with 87 percent of the organizations reporting that HR and other departments share this responsibility.

During the past decade, recruiting has gained greater attention in the C-suite as top executives increasingly realize that corporate growth hinges on hiring the best talent for key positions in the organization. Meeting the mandate for effective recruiting, however, means that HR executives and recruiting directors in many organizations will have to make a successful case for additional resources.

Source: Workforce Management Online, Survey Data Emboldens Cry for Recruiting Funding, by Fay Hansen, August 2008

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September 16, 2008

It’s That Political Time of Year

Filed under: Employment Law — Jane @ 6:34 am

Both major party conventions now are over and the race to the White House and for control of Congress is in its final two month sprint.  So, whether you are an Obamamanic or a Bidenator, raising McCain or hailin’ Palin,  it’s time to remember that ‘tis the season for employees to engage in political activity.  Right on cue, the National Labor Relations Board (NLRB) has issued a reminder to employers that political advocacy by employees may be protected concerted activity allowed by federal law.  Thus, employees engaging in political activities that have a direct connection to employee conditions and/or problems in their own workplace (e.g. advocating for passage of equal pay reform when equal pay is a perceived problem in the workplace) may well be engaging in protected concerted activity.  Such activity must still be non-disruptive and within the limits of neutral workplace rules (i.e. occurring during non-work time and in non-work areas).  Employee political activity is also protected under many other state laws.  Consult with legal counsel before engaging in employee discipline regarding any such circumstances.  And make sure you register to vote and vote this year!

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September 12, 2008

HR Fact Friday: Flirting to Seal or Sour The Deal

Filed under: General HR Buzz — Tags: , , — Paul Hendrycks, VP Sales and Marketing @ 12:39 pm

Hot off the press in the latest issue of HR Magazine it reads on page 12 . . . “Why it Hurts to Flirt”. What follows is a short blurb on whether flirting at work will help or hinder your ability to negotiate a deal.  Let see what SHRM has to say on the subject shall we. A common stereotype about women  is that they are less effective negotiators than men — so much so that popular lore suggests that women do well to bring men with them when they buy a car.

In contrast, women are widely viewed as adept flirters; in a recent Harper’s Bazaar survey of 500 professional women, for example, 86% said they would “happily flirt with a male colleague if it meant they got their own way.”

So can flirting enhance women’s effectiveness as negotiators? That would be a big “NO,” an academic research study confirms. In fact, when it comes to obtaining a good deal, flirting has a detrimental effect, up to 20%, even though flirtatious bargainers, particularly women, are judged “more likable” than non-flirts.

In a series of experiments, University of California-Berkeley Haas School of Business professor Laura Kray and doctoral candidate Connson Locke had professional actors, both male and female, play the roles of sellers of a fictional bio-tech business. Each actor recorded two videos with the same script, but one was delivered with flirtatious gestures. Both male and female “buyers”  who viewed the videos offered the flirts 20% less, on average, than they offered the neutral sellers. The female flirts fared worst, receiving the lowest offers from both males and females. Male sellers, however, were penalized only by male buyers.

Being flirtatious wasn’t all bad. Subjects agreed that flirts were “more likable.” But what is more important in a professional environment — a likable disposition or an ability to bargain?

Source: HR Magazine, Sept. 2008, page 12, Why it Hurts to Flirt.

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September 11, 2008

Disability Discrimination Law Update

Filed under: ADA & Disability — Jane @ 8:23 am

The Equal Employment Opportunity Commission (EEOC) has issued a new guidance addressing how the Americans With Disabilities Act (ADA) applies to a wide variety of performance and conduct issues, see:  http://www.eeoc.gov/facts/performance-conduct.html

The EEOC says, “The new guide makes clear that employers can apply the same performance standards to all employees, including those with disabilities, and emphasizes that the ADA does not affect an employer’s right to hold all employees to basic conduct standards.  At the same time, however, employers must make reasonable accommodations that enable individuals with disabilities to meet performance and conduct standards.”

Other topics addressed include issues related to attendance, dress codes, and drug and alcohol use, and the circumstances in which employers can ask questions about an employee’s disability when performance or conduct problems occur.   The Senate is considering (and the House has already passed) significant amendments to the ADA.  If passed, the new ADA is expected to dramatically increase the number of disability discrimination claims filed by employees.    

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September 10, 2008

Join HRN for HR Comp and Performance Management Webinar

Filed under: HRN News — Paul Hendrycks, VP Sales and Marketing @ 1:59 pm
HR Industry Webinar Invitation

Attend a free 60 minute educational webinar Hosted by HRN:

Linking Compensation to Employee Performance

As a service to fellow HR professionals that HRN Management Group has proudly served for 19 years, you are invited to join HRN President and CEO Jerry Nelson on Tuesday, September 30th at 3:00 PM (Eastern Daylight Time) for this informative discussion.

Jerry will discuss the components and strategies of a meaningful employee performance management program AND how to effectively link performance to compensation for maximum employee satisfaction and ROI.

Mr. Nelson has given this information-packed presentation at several industry trade shows and received excellent reviews. HRN is offering you the opportunity to receive this same information from the comfort and convenience of your office via the online webinar format.

Space is limited so you are encouraged to enroll early. Participation is free and open to all HR professionals.

To register go to: http://www.hrnonline.com/bigwebinar/

To receive additional information about HRN Management Group go to: http://www.hrnonline.com/contact.asp

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September 5, 2008

HR Fact Friday: Survey Reveals Lack of Generational Workplace Interaction

Filed under: General HR Buzz — Paul Hendrycks, VP Sales and Marketing @ 8:36 am

I’m feeling somewhat old today. Technically, I am classified as a baby boomer. This evening I am heading out for a quick weekend trip back to my hometown for my (dare I say it) thirty year high school reunion. Doing some quick math, and not counting my college years, that would mean I have been working full-time for 26 years. Many of my colleagues and contemporaries are planning for retirement; and most, if not all new employees at our company, are considerably younger than myself.

As the HR experts and pundits would have the world believe, I am the custodian of experience and knowledge that is not being shared with younger co-workers to help in their skill and leadership development. This got me thinking. Am I holding out? Am I an active contributor to the succession planning knowledge gap. No, of course not. I enjoy working with team members from diverse backgrounds and age groups. If information and leadership skills are not being shared it’s because organizations as a whole are not stressing collaboration.

Today there are fewer workers with more specialized roles who are often geographically dispersed from one another. To further cloud the waters today’s company org charts often have dotted line reporting relationships, shared resource teams and 3rd party vendors responsible for entire operational components from sales and marketing to development and customer support. So the issue isn’t training or mentoring and knowledge sharing by older workers with younger workers; the issue is providing opportunities for workers of all ages to collaborate and work together towards achieving a common goal.

This month Atlanta-based Randstad USA released its annual 2008 World of Work survey which found that the four generations now in the U.S. workforce—Generation X, Generation Y, baby boomers and “matures” (those born 1900 to 1945)—rarely interact with one another.

That lack of communication, the study found, is keeping key institutional job knowledge held by the boomer generation from filtering down to younger workers.

The isolation among workforce generations is credited to a lack of recognition of the others’ skills or work ethic. According to the Census Bureau, the Gen Y’ers in today’s workforce—born 1980 to 1988—total 79.8 million, which outnumber the baby boomers, or those who were born 1946 to 1964. Those boomers, which total 78.5 million people, are considered the keepers of the institutional job knowledge in companies across the nation.

Randstad conducted the U.S. survey in December and January among 3,494 adults, 1,295 of whom were employers and 2,199 were employees. Employees came from businesses with at least five staffers. Employers sampled were involved in human resources strategies at their companies for at least six months.

Given this scenario, businesses are faced with cultivating more interaction among generations in their workforce.

The study found that although boomers have a lot of knowledge and experience to share with Gen Y workers, 51 percent of them and 66 percent of matures reported little or no interaction with their Gen Y colleagues. And the three younger generations reported little or no interaction with matures on the job.

Other key findings include:
• Gen Y’s reputation as an overly demanding workplace generation no longer applies; since 2006, they have become more realistic about job expectations.
• Gen Y has the lowest expectations among the four generations for “soft” workplace benefits of satisfying work, pleasant work environment, liking the people they work with, challenging work and flexible hours.
• Gen Y describes co-workers of their own generation as positive socially but not necessarily competent.
• With strong social skills, Gen X has the most potential to bridge the knowledge gap between boomers and Gen Y’ers.
• Pressure for people to do more with less creates a stereotype barrier. Employers need to be aware that people just don’t have time to interact.

Source: Workforce Management Online, July 2008, Survey Reveals Alarming Lack of Generational Workplace Interaction by Mark Larson

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September 4, 2008

English Only on the Golf Course?

Filed under: Title VII — Jane @ 9:21 am

Increasing diversity in the workplace has brought many opportunities and challenges. Ensuring effective communication among employees and with customers or vendors is one of them. Some employers have attempted to address the issue by establishing “English only” rules.  Such rules must be non-discriminatory, narrow in scope and application, and justified by business necessity.   The EEOC takes a dim view of such requirements.

The Ladies Professional Golf Association (LPGA) is the latest group to make news in the “English only arena.”   It has adopted a new rule that beginning in 2009 requires all golfers who have been on the tour for 2 years to pass a test evaluating spoken English.  Apparently there are over 120 international golfers on the tour.  Is English essential to be a golf professional?   The LPGA says it’s important to attract corporate sponsors.  However the issue of discrimination based on national origin has been raised by a number of civil rights groups.   They also ask:  What about international athletes in other sports?  What about American golfers who participate in tournaments outside the U.S?  Do they need to learn the local language?  Stay tuned.  This could get interesting.

For more information on English only rules in the workplace go to the EEOC’s website at: http://www.eeoc.gov/policy/docs/national-origin.html#VC

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