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February 29, 2012

Happy Leap Day!!

Filed under: General HR Buzz — Joyce Marsh, HR Consultant, SPHR @ 6:00 am

Leap Day is today and that will mean business as usual as most of us will spend our “extra” day at work, perhaps billing more hours or selling more widgets potentially increasing profits for 1st quarter.  So in honor of Leap Day, I did a little research.  Leap Years were introduced over 2,000 years ago with the transition from the Roman Calendar to the Julian Calendar in 45 BCE (Before Common Era).

It used to be that this extra day would cause havoc on systems dependent on date tracking, such as payroll.  However, now the occurrence of a Leap Year is handled easily by our sophisticated systems which have adjusted 2012 to have 52 weeks and 2 extra days, as compared to other years which have 52 weeks plus 1 extra day.   This year that translates into an extra Sunday and Monday in December.   If your payday falls on either of those days, depending on your pay cycle you could get an extra check in 2012.  Don’t get too excited – your pay rate will remain the same.

Ever since Leap Years were first introduced, there have been age-old Leap Day tradition and folklore.  So just for fun, I’ve included some of those folk traditions:

  • Listen up, women:  In the British Isles, it is a tradition that women may propose marriage only on Leap Years (so you have all year – not just one day)!  Supposedly a 1288 law by Queen Margaret of Scotland required that fines be levied if a marriage proposal was refused by the man.
  • In many European countries, it is said that if a man refuses a woman’s proposal on Leap Day he has to give her 12 pairs of gloves.  By wearing gloves, the woman can hide the embarrassment of not having an engagement ring.
  • However, if you are in Greece, marriage in a Leap Year is considered unlucky.  Apparently this is taken to heart as one in every five engaged couples in Greece will plan to avoid getting married in a Leap Year.

If you are lucky enough to be born on Leap Day, you may be referred to as a “leapling” or a “leaper”.  As such, you are invited to join The Honor society of Leap Year Day Babies where everyone can legitimately underestimate their age as they celebrate fewer birthday anniversaries than the rest of us.

Sources:  Wikipedia, Time and Date.com, Wall Street Journal

 

Wall Street Journal

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February 28, 2012

How’s Your Wellness Plan Moving Along? Part 1 of 2

Filed under: Benefits,General HR Buzz,Wellness — Nancy McGee, HR Consultant @ 6:00 am

So, you decided to implement a wellness program for 2012.  Your employees had to complete a health risk assessment and you had vendors come in to give flu shots and conduct biometric screenings.  Some of you went even further and offered a financial incentive for completion of the questionnaire.   And ultimately, some of you are now offering reduced premiums for meeting certain health standards, such as not smoking.

Employees jumped through all of the hoops you asked to reap their rewards, yet we still need to ask: Do you really have a wellness program in your organization that will lead to improved health and well-being?   Now is the perfect opportunity to review your annual plan to keep employees engaged and to ensure they are taking advantage of the tools and services available to them; services typically being paid for as part of their health insurance coverage.  It’s also the perfect time to align your wellness goals with your communications and activities.

Here are the first of seven idease to consider as you develop and refine your plan:

  • Purpose.   Is the purpose of your program to reduce healthcare spending and thereby reduce the cost of insurance for your company?   Or are healthier employees happier and therefore more productive?  Does the way your plan is structured support these purposes?  Do you have a means of measuring results?
  • Visible Leadership.  Are all levels of the organization walking the talk of wellness?   Employees need to see visible steps (no pun intended) being taken by senior leadership.  Or have you considered a wellness champion for different departments, branches or locations?
  • Ongoing Communication.  How will you continue to communicate about the program throughout the year?  Make sure the message is repeated and understandable and that the benefits of the programs are clear.

On Thursday, March 1st, I’ll post the remaining four items on the list . . . stay tuned.

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February 27, 2012

Does an Anti-Harassment Policy Really Make a Difference?

As organizations, we spend a lot of time writing policy manuals and employee handbooks. These generally cover the gamut from the company mission statement to termination procedures. Also generally included (and should be) is an anti-harassment policy prohibiting all types of harassment in the workplace.

Sometimes we wonder if our policies really do their job in outlining correct procedures and protecting the company if a claim is filed. In the case of Crawford v. BNSF Railway Company, 8th Cir., No. 11-1953 (Jan. 11, 2012), the policy did its job as the proper procedures were carried out as prescribed.

To sum up the case, 5 mid-level supervisors at BNSF were subjected to frequent sexual and racial harassment in early 2008. Although they were aware and had been trained on BNSF’s “zero tolerance” policy on workplace harassment, they failed to report anything until filing discrimination charges with the EEOC in October 2008, months after the alleged harassment had begun.

Within two days of BNSF receiving the complaint, they placed the alleged harasser on leave. Upon completion of their investigation, the employee accused of harassment was terminated.

The employees stated BNSF was aware of the harassment, even without them reporting it or filing complaints, and did nothing about it. The court stated because BNSF had a published policy that provided a procedure for reporting suspected harassment, the supervisors had to invoke the procedure in order to have “actual notice.”

Policies are a form of insurance for an organization and not only do they need to be written effectively, they should also be distributed to employees, easily accessible, and appropriate training be provided. This is true in the case of BNSF. To read more about this case, please click here.

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February 24, 2012

HR Fact Friday: Around the States

Filed under: Employment Law,General HR Buzz — Paul Hendrycks, VP Sales and Marketing @ 6:00 am

Two states had recent legislation in the area of Equal Employment Opportunity. On February 7, 2012, the U.S. Court of Appeals for the Ninth Circuit ruled that a November 2008 California voter-enacted constitutional amendment – Proposition 8 - defining valid or recognized marriages in California as only between a man and a woman is unconstitutional.  The circuit court’s ruling on Proposition 8, however, is on hold pending possible further litigation.   In Washington, effective 90 days after adjournment of the 2011-2012 legislative session, Washington law recognizes same-sex marriages and revises provisions related to recognition of equivalent legal unions.

Effective February 1, 2012, Indiana is a right to work states.  This means that employers generally cannot require employees to join a union or remain union members as a condition of getting or keeping employment.  Employers also cannot require that employees pay dues, fees, or assessments to unions or third-party alternative organizations in lieu of dues or other payments normally required of union members.

Several states are now added to the list as states requiring E-Verify participation.  At the start of this year, E-Verify requirements went into effect in Georgia, Louisiana, South Carolina, and Tennessee, and all employers in Alabama must implement E-Verify by April 1, 2012.  Other states currently requiring E-Verify participation include Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Mississippi, Nebraska, North Carolina, Oklahoma, South Carolina, Utah, and Virginia.  It is anticipated there may be other states added to the list during 2012.

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February 23, 2012

Is Your Attendance Policy Compliant With ADA?

Filed under: ADA & Disability,Compliance,Discrimination,EEO,Employment Law — Joyce Marsh, HR Consultant, SPHR @ 10:09 am

None of us want to believe our employees have taken advantage of our attendance policy.  We seek to demonstrate flexibility with our employees and encourage a healthy balance with work and life.  As hard as we try, it’s natural to be concerned: Careerbuilder’s latest annual survey shows that at least three in 10 employees have called in sick to work with a fake excuse in the last year.

While some employees are all too ready to share their unusual reasons for using sick leave – from a headache caused by attending too many garage sales to accidentally drinking anti-freeze – employers must be cautious when requesting documentation for sick leave.

The federal district court in California recently ruled that the Dillard’s retail chain violated the Americans with Disabilities Act (ADA) with its attendance policy.  The chain’s policy stated that any employee who missed more than four days per year unexcused was subject to termination, and employees were required to submit a doctor’s note that identified the underlying cause of their condition in order for the absence to be excused.

The subject in this case was an employee who was absent from work due to an illness for six days.  She provided her manager with a note from the doctor that stated she was to remain off work for the week, and could return the following week.  The manager would not accept the note because it did not identify the underlying reason for the absence.  The employee refused to provide any more information, and was supported by her doctor.  She was terminated for absenteeism.

The Court ruled that Dillard’s policy was unlawful because it permitted managers and the company to conduct inquiries related to disability in violation of the ADA.  Dillard’s argued it was a business necessity to require more detail in order to verify the legitimacy of excused absences.  The court rejected Dillard’s arguments, stating that it did not need to know the reason for the medical absence.  Prior to the case, Dillard’s had already amended their policy to remove the requirement of disclosure of specific medical conditions.

Best practice for employers:

  • When requesting a doctor’s note to support sick leave absences, outline a standard number of days after which you will require a note, such as three days.  The doctor’s note should only state the employee is under care by the doctor and the date he or she may return to work.
  • When a supervisor receives notification that an employee is sick, advise them to limit questions to those that relate specifically to the employee’s ability to perform his or her job responsibilities.  Even innocuous questions regarding an illness and those stated out of concern can be construed as discriminatory by a court.

Employment law attorney Abizer Zanzi has further opinion as to why this case is so significant:

“First, it is one of few opinions interpreting the ADA’s prohibition on disability-related inquiries.  As the court noted in its decision, only two federal circuits—not including the Seventh Circuit (which covers Illinois)—have addressed this issue in depth.  As previously reported, recent legislative and regulatory amendments expanding the definition of “disability” are expected to result in many more ADA cases being decided on the merits.  Second, the fact that the EEOC chose to prosecute this case reflects the agency’s current enforcement priorities, which are heavily focused on disability claims.”

 

Careerbuilder Survey: Are Employees Sick – or Do They Have The 9-to-5 Bug?

EEOC v. Dillard’s

EEOC Announces Strategic Plan for FY 2012-2016

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February 22, 2012

What Would Make You Stay?

Filed under: Communication,Engagement,General HR Buzz,Hiring & Jobs,Management Practices — Tags: , — Joyce Marsh, HR Consultant, SPHR @ 6:00 am

Recently in our blogs, we have been discussing the subject of turnover and effective tools to utilize in reducing turnover.  Our blogs have included capturing turnover and other items using HR metrics, effective interviewing skills, and onboarding practices.   During the termination process, something that always puzzled me was why companies went to such great lengths to conduct elaborate exit interviews.  At that point, who cares why the employee is leaving and what really happens with the information once it is gathered?

So when I began reading about stay interviews, I was really intrigued.  The most important and proactive approach to finding out what people want is to ask them while they are still there.  After all, as part of ensuring employees have a positive experience after joining the organization; it is management’s responsibility to check in with employees.  The responses given during an exit interview are sometimes simple fixes that could have been resolved prior to the departure of the employee.  If only we had asked.

However, stay interviews do not come without risk.  Oftentimes there is a gap between what employers believe are the reasons employees stay (mainly compensation) versus why employees do stay.  That is exactly the point.  We as employers cannot solve problems or issues we are unaware of.

Questions asked during a stay interview should focus on trying to find out how you can build a long-term employment relationship with the employee.  The manager should be asking the questions and it can easily be tied into an annual performance evaluation.  Typical questions include:

  • Why do you stay?
  • When you travel to work each day, what things do you look forward to?
  • What can we do to ensure you continue to stay with the company?
  • How can we make your work more satisfying?
  • What are you learning here?  What do you want to learn?
  • Are there specific reasons you can think of that could cause you to leave us?

Companies that have implemented stay interviews have realized decreased turnover by double digit percentage points.  These conversations should occur on an ongoing basis during the employee’s tenure, not during the exit interview.  This needs to be considered a necessary part of your retention strategy.

 

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February 21, 2012

EEOC Issues Clarification on High School Diploma Requirement

Filed under: ADA & Disability,Employment Law — Joyce Marsh, HR Consultant, SPHR @ 9:29 am

Employment law fascinates me.  I’ve never felt that I wanted to argue in front of a judge and other attorneys about it, but I admit: I spend lots and lots of time thinking about it.  I receive many email newsletters, but the ones I look at first always have employment law stories at the top.  I also enjoy reading the Equal Employment Opportunity Commission’s (EEOC) so-called informal discussion letters.  These letters, and subsequent question and answer documents, are provided to help employers interpret the many ins and outs of employment law.

The latest question and answer document is intended to clarify an informal discussion letter issued by the EEOC last November.  The letter addressed whether a requiring a high school diploma had a disparate impact on individuals with disabilities.  The letter itself is not a new law or reinterpretation; rather, these letters are issued in an attempt to address questions about the law.  As with most documents issued by government, it’s not surprising that many employers found the guidelines confusing.

Here are some of the takeaways from the Q & A document:

  • Employers are not prohibited from issuing a requirement that a job applicant have a high school diploma.
  • Individuals without high school diplomas are not covered by the Americans with Disabilities Act (ADA) for that fact alone.  The ADA protects individuals who are not able to obtain a high school diploma because of their disability.
  • Employers, as always, should select the most qualified person for the job; they are not required to give preference to an individual with a disability.
  • Employers may request documentation of the disability as it relates to the individual’s inability to obtain a high school diploma.

Best practices for employers:

  • Review job descriptions – Determine whether or not you want to include the requirement of an individual to have a high school diploma on every job in your organization on the description.  There are many jobs in which a high school education is not necessary to perform essential functions.
  • For jobs that do require a high school diploma – Proactively review the job to determine ways that an individual could demonstrate proficiency and ability to perform those duties.  Consider past positions and job previews as well.

Source: http://www.eeoc.gov/eeoc/newsroom/wysk_high_school_ada.cfm

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February 17, 2012

HR Fact Friday: Add GINA Safe Harbor Language To FMLA Forms

Filed under: Employment Law,FMLA,General HR Buzz,Genetic — Tags: , — Paul Hendrycks, VP Sales and Marketing @ 6:00 am

FMLA forms were developed before recent developments in the federal Genetic Information Nondiscrimination Act (“GINA”). GINA prohibits employers from discriminating based on genetic information and from gathering such information about an employee and/or his/her family member. Recent GINA regulations help provide employers with a potential “safe harbor” from liability under the law if certain disclosures are made to employees and their health care providers. I have seen numerous legal commentators recommend that employers add the GINA safe harbor language to their FMLA forms. Here (below) is the language I have seen recommended:

(more…)

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February 16, 2012

Effective Interviews Reduce Costly Employee Turnover

Filed under: Hiring & Jobs — Joyce Marsh, HR Consultant, SPHR @ 3:56 pm

Employee turnover is one of the high costs of doing business for any organization.  According to the most recent Bureau of Labor Statistics information, employees who voluntarily terminate from their positions account for nearly half of all separations.  One of the most effective ways to control your organization’s turnover costs is to hire the right person for the right job in the first place.

Although we can never guarantee the perfect hire, there are ways to increase the chance that the candidate selected is the right person for the job.  Once you’ve gotten past the initial screening of the mountain of résumés, you face the interview process.

Arguably the most critical part of the selection process is the job interview.  Whether you have one interview, or a series of different types of interviews, this is the first opportunity you have to see the “live” version of the person who grabbed your attention with an outstanding résumé.  Most organizations utilize a couple of interviews along the process to narrow the field of applicants down to one candidate.

If you can do it effectively, the interview enables you to determine if the applicant’s knowledge, skills, abilities, experience and personality will match with the job’s requirements.

Before you set hiring managers free to interview their applicants, it is best practice to review the types of questions that can and cannot be asked as part of the process.  Anyone who will have contact with the applicant should be familiar with guidelines to minimize the organization’s risk of discrimination or bias in hiring claims.

Many organizations start by conducting an interview over the phone with several applicants.  In some companies, these interviews are conducted by a member of the HR staff, and in others these interviews are conducted by the individual who will make the hiring decision.  The phone interview serves a way to further narrow down the candidate pool of those who will be invited in for an in-person interview.  A phone screening interview should:

  • Clarify any items that are not clear from his or her résumé.
  • Determine the reason for any gaps in employment or frequent job changes.
  • Provide an assessment of the candidate’s basic communication skills.
  • Candidly discuss salary requirements of the position.

The first round has been completed.  The list of candidates is down to a manageable number and you are ready to invite several in for an in-person interview.

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February 15, 2012

FLSA and “Matters of Significance”

Filed under: Compensation,Compliance,FLSA,General HR Buzz,Hiring & Jobs — Joyce Marsh, HR Consultant, SPHR @ 10:29 am

Q.  The FLSA administrative exemption really confuses me.  I understand the first part of the exemption – that an employee’s primary duty must consist of the performance of office or nonmanual work directly related to the management or general business operations of the employer or the employer’s customers.  But then it goes on to say the primary duty must also include the exercise of discretion and independent judgment with respect to “matters of significance.”  How am I supposed to know what matters of significance means?

A.  Out of all the exemption tests, the administrative exemption is considered to be the most ambiguous in terms of interpretation.   According to the Department of Labor (DOL), the term “matters of significance” refers to the level of importance or consequence of the work performed. An employee does not exercise discretion and independent judgment with respect to matters of significance merely because the employer will experience financial losses if the employee fails to perform the job properly. Similarly, an employee who operates very expensive equipment does not exercise discretion and independent judgment with respect to matters of significance merely because improper performance of the employee’s duties may cause serious financial loss to the employer.

So what do matters of significance mean?  To start with you can ask yourself if the employee in the position:

  • have authority to formulate, affect, interpret, or implement management policies or operating practices?
  • contribute to long-term or short-term business objectives?
  • represent the company in handling complaints, arbitrating disputes, or resolving grievances?
  • have authority to waive or deviate from established policies and procedures without prior approval?

The answers to these questions will assist in determining if matters of significance are part of the employee’s position.  As always, it is recommended to review exempt status with your employment law attorney before making a final determination.  The DOL also has a fact sheet regarding the Administrative Exemption which you can access by clicking here.

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