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November 21, 2014

Top Fourteen Ways to Make a Plaintiff’s Lawyer Happy

Filed under: General HR Buzz — Charisse Rockett, PHR, HR Content Manager @ 1:30 pm

An employment lawyer who typically represents employees against employers recently published this list (on HR Daily Advisor) of the top fourteen things employers do that make it easier for a plaintiff’s lawyer to sue them and win. Here is the list:

1)     the employer gives no reason for termination or relies on at-will employment;
2)     the employee is fired for performance but recently got a good evaluation;
3)     the timing of the termination is bad, (e.g. an internal protected complaint is followed closely in time by termination);
4)     the employer ignored prior notice of a legal issue;
5)     the company had prior complaints about the same issue or person;
6)     the employer did an internal investigation that was superficial;
7)     the employer believed the employee was just trying to get in the retaliation protection bubble, (e.g. “She’s only bringing up her complaint because she just got written up.”);
8)     the employer submits an Equal Employment Opportunity Commission (EEOC) charge response that is not well written;
9)     the employer does not follow its own policies;
10)  the company issues a gag order once a charge is filed;
11)  the company ignores a pre-lawsuit letter from a lawyer, thus missing a chance to make a lawsuit go away;
12)  company witnesses seem ill-prepared, too clever, or even clueless while testifying about what happened;
13)  the employer humiliates or dehumanizes the plaintiff; and
14)  the employer documents are missing or inadequately prepared.

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November 13, 2014

News Reports Say Positive Employee Drug Tests On the Rise

Filed under: Drugs,Hiring & Jobs — Charisse Rockett, PHR, HR Content Manager @ 2:26 pm

A national employment law firm news site is reporting that the rate of employee positive drug tests has increased for the first time in about a decade. The entity making the study handles drug testing from employers all across the country. The study indicated that use of marijuana and amphetamines have fueled the increase, notably in the states of Colorado and Washington where recreational marijuana use is now legal under state law.  You can read the news report here.

With the voters in two more states, Alaska and Oregon, along with Washington D.C. recently passing recreational use of marijuana, we aren’t likely to hear the end of this topic any time soon.  Keep your eye on this subject, as other states have pending legislation.

 

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November 5, 2014

Train Now or Be Sorry Later!

Filed under: ADA & Disability,Compliance,Discrimination — Tags: — Charisse Rockett, PHR, HR Content Manager @ 2:20 pm

Can a one-armed security guard be effective?  A jury recently found for the Equal Employment Opportunity Commission (EEOC) who sued an employer for unlawfully discriminating against a licensed security guard who lost his right arm in a car accident.  The employee, Alberto Tarud-Saieh, was removed from his post because of a customer complaint about his disability.  In fact, it was the president of a community association that stated, “This company is a joke.  You sent me a one-armed security guard.”  The company responded by removing Tarud-Saieh from his post and not reassigning him to another post, thus terminating his employment.

Treating a disabled individual based on customer preferences, stereotypes, and assumptions as to what the employee can and cannot do is a violation of the Americans with Disabilities Act (ADA).  Instead, a disabled individual should have the opportunity to be considered based upon their actual abilities to perform the job.  Tarud-Saieh was awarded $35,922.  Besides the award to their former employee, the company must also engage in training and implementing anti-discrimination employment policies.

This is a good example of how sound policies and a little training can go a long way to protect your company from charges of discrimination.  Training managers to understand what constitutes discrimination under the ADA is vital to ensure an equal employment opportunity for all.

 

Source:  www.eeoc.gov.

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October 31, 2014

6 Easy Ways to Violate the FLSA – Mistakes 4-6

Filed under: Compease,Compensation,FLSA — Charisse Rockett, PHR, HR Content Manager @ 9:44 am

In yesterday’s blog, we discussed the first three mistakes that lead to Fair Labor Standards Act (FLSA) violations.  Today, we will take a look at the last three, featured that is; there are many more!

Mistake #4:  Asking Nonexempt Employees to “Work Off the Clock”

More recently, asking an hourly employee to “work off the clock” is considered wage theft.  The FLSA requires employers to keep accurate time records.  Tight budgets often prompt managers to request that employees “work off the clock” by asking them to come in early or stay late and not compensating them.  Such a practice can create huge liabilities for an organization.

Mistake #5:  Prohibiting Employees from Discussing Compensation Issues

Although many employers prefer that compensation rates and other pay issues remain private and even write policies to that effect, forbidding such discussion by employees may be in violation of the law.  The National Labor Relations Act (NLRA) prohibits employers from banning wage discussions as it is interpreted as interfering with employees’ right to engage in protected concerted activity.  The National Labor Relations Board, the government agency that enforces the NLRA, has been watching these actions closely, especially with the more prevalent use of social media.

Mistake #6:  Failing to Properly Pay Nonexempt Employees for Meetings and Training

This is a puzzling one for many employers – knowing whether or not they are required to pay for meetings and training sessions.  Attendance at meetings and training is not counted as “hours worked” if all four of the following criteria are true:

  • Attendance is outside of the employee’s regular work hours;
  • Attendance is truly voluntary;
  • The course, lecture, or meeting is not directly related to the employee’s job; and
  • The employee does not perform any productive work while attending. 

Attendance is not considered voluntary, however, if the employee believes that his working conditions or employment opportunities would be adversely affected if he did not attend.

Even the most experienced HR professionals have difficulty navigating the FLSA.  However, failure to do so can be costly in terms of dollars, time spent fixing problems, bad publicity, and lower employee morale.  Focusing on a few of the most common FLSA mistakes and steering your organization away from them is definitely time well spent.

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October 30, 2014

6 Easy Ways to Violate the FLSA – Mistakes 1-3

Filed under: Compease,Compensation,FLSA — Charisse Rockett, PHR, HR Content Manager @ 4:32 pm

No doubt, most employers have a battle with the Fair Labor Standards Act (FLSA), which establishes the standards for how to pay their employees.  The FLSA governs overtime pay, the minimum wage, and child labor.  Many are simply unaware of the maze of requirements, some try in good faith to act in accordance with the law but fall short, and a few simply ignore the Act, hoping that nothing comes back to bite them.  But ignorance of the law is not bliss…or an excuse.

FLSA enforcement by the Department of Labor’s Wage and Hour Division recovered just shy of $250 million in back wages for 2013, with 269,250 employees receiving back wages. Another interesting fact is that the average days to resolve a complaint is 110.  This means the Wage and Hour people are very interested in the way you pay your employees and even enjoy perusing your records.

Here are six ways (and believe me, there are many more) in which you could find the DOL knocking on your door:

Mistake #1:  Misclassifying Employees

Nearly every employer must decide which positions are considered nonexempt under the law and must be paid overtime (for hours worked beyond 40 in a workweek), and which positions are exempt from overtime. The FLSA establishes overtime pay requirements by outlining a series of tests that qualify employees as exempt from overtime and minimum wage requirements in these categories:  executive, administrative, professional, outside sales, and certain high-level computer positions.

Mistake #2:  Thinking, “If I make everyone ‘Salaried,’ I won’t have to pay overtime!”

Genius, not.  Be careful.  “Salaried” is not equivalent to “exempt.”  An employer must satisfy an FLSA job duties test mentioned in number 1.  Remember too, that job positions should be reviewed regularly to ensure they still meet the requirements of nonexempt or exempt as the position requirements may change.

Mistake #3:  Failing to Pay Nonexempt Employees for Unauthorized Work

If a company “allows” employees to work, they must pay for this time and include it as “hours worked” for overtime purposes. When an employee who begins work early, stays late, takes work home, or works through the lunch break without authorization to do so, must be paid for unauthorized work (even if the company has a policy prohibiting it).  The employee, though, may be subjected to disciplinary action for violating the policy.

Watch for Mistakes 4-6 in tomorrow’s blog!

 

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October 23, 2014

Employee Handbook – A Tool You Shouldn’t Be Without

Filed under: Communication,Compliance,Engagement,General HR Buzz — Charisse Rockett, PHR, HR Content Manager @ 3:52 pm

Employee handbooks serve many purposes in an organization.  They can be considered tools for risk management, communication of expectations, and a guidebook of general rules for the workplace.  Employees are not the only ones to benefit from handbooks, but managers and employers also gain an advantage from a well-written and professional-looking handbook.  Here is how:

  • Employees – The handbook should outline how employees are to behave and what the consequences are if they don’t.  It will teach them what needs to be done in their job to be successful in the company.  The handbook should serve as a protection to employees by outlining a process for complaining about possible harassment, reporting an on-the-job injury, and promoting awareness of workplace violence.  Other areas that should be covered are the absence reporting process, how to request time off from work, what dress is appropriate, and how the company feels about complying with all employment laws.
  • Managers – Consistency is key for managers.  They must have a set of standards for how to handle organizational issues.  This should not be step-by-step instructions they must follow, but should consist of principles they can apply consistently in employee relations, performance management, and other areas within their scope of responsibility.
  • Employers – The handbook is a mouthpiece for employers to openly communicate their behavioral expectations for employees and managers alike.  It gives clearly defined parameters for personal conduct, acceptable behaviors, and company expectations.  It is also an effective tool for communicating a summary of the benefits of employment with their organization, (e.g. paid time off, medical and other insurance coverages offered, tuition reimbursement, retirement planning, etc.).  

Ensuring employees have easy access to the employee handbook and have acknowledged its receipt can go a long way to protect an employer in a lawsuit.  Sometimes copies of the policy violated and the acknowledgement of the handbook receipt are all that is needed to dispute an unemployment claim.  Now is the time to minimize your risk by having an up-to-date, legally compliant, and tailored to your company handbook.  It conveys to your employees you care about them and their success!

 

Source:  Brannen, D. Albert.  “Why Your Company Needs a Handbook.” Fisher & Phillips Attorneys at Law.  Available here.

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October 17, 2014

What You Post May Be Held Against You!

Filed under: Hiring & Jobs — Tags: — Charisse Rockett, PHR, HR Content Manager @ 8:15 am

A recent CareerBuilder.com survey reported that employers are turning more often to social networking sites to screen potential candidates.  In fact, 51 percent of employers said they did not hire a candidate because of the content they found on the candidate’s social media.  If social media wasn’t enough to get the scoop on an applicant, 45 percent of employers responding use Google search engine to dig up whatever shows up on candidates.

Three areas of researching social media were examined closely:

Most common reasons not to hire a candidate:

  • Inappropriate photographs – 46 percent
  • Discriminatory comments related to race, gender, religion, etc. – 28 percent
  • Unprofessional screen name – 21 percent

Content that made the candidate look more appealing:

  • Good feel for candidate’s personality; good fit for culture – 46 percent
  • Social media site conveyed professionalism – 43 percent
  • Other people posted positive references about the candidate – 30 percent 

What the candidate posted about themselves and what others posted about them:

  • Profile included links to an escort service
  • Posted a photo of a warrant for his arrest
  • Featured a pig as his closest friend 

Job candidates need to promote themselves on social media, but posts need to be professional and in good taste.  And, don’t forget to Google yourself.  You may be surprised that the angry complaint you posted about a local liquor store three years ago still shows up!  Be careful, because what you post may cost you a job!

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October 9, 2014

“I Trust You”

Filed under: Communication,Management Practices — Charisse Rockett, PHR, HR Content Manager @ 4:08 pm

I was part of an HR department of four.  Our HR Manager had just been asked to resign.  So, without a leader in the department, our executive vice president quickly organized the remaining three of us to run the department and perform “management tasks” for the next few weeks ahead.  It was a great learning experience, and we kept everything going very smoothly right up to when we recruited, hired, and onboarded our new boss, Mary.

I learned more about myself in the time I worked with Mary than I ever knew before.  I learned the difference between a leader and a manager.  In the first week of her arrival, she wasn’t barking orders, changing processes, or micromanaging anything.  Rather, she calmly acknowledged the situation that we had thrust upon us and commended us for carrying the load absent a department manager.  She didn’t know us yet as individuals, she didn’t know how we worked, our personal moral codes, or our competencies, but she encouraged us to continue doing what we had been doing.  Then, she said three words that still ring in my ears today, “I trust you.”

That was a leap of faith on her part to trust three people she didn’t yet know.  Those three words were the biggest motivator I have ever experienced in the workplace.  By her saying, “I trust you,” it was like her reaffirming to us that we were professionals, adults, and we were experts in our area of human resources and capable of anything that we wanted to do.  It was powerful!  As time went by, she continued to demonstrate her trust, not just saying it, but in the way she led us as a team and as individuals.  She was a great coach and always asked the right questions, to move us to reach the proper conclusions.  She fostered autonomy by letting us do the jobs we had been hired to do, only she made us better!  Have you told your employees lately, “I trust you”?

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October 1, 2014

Unlimited Vacation – Is it Really that Easy?

Filed under: Engagement,General HR Buzz,Work/Life Balance — Charisse Rockett, PHR, HR Content Manager @ 6:54 am

In the last decade traditional leave programs have been replaced with Paid Time Off (PTO) programs.  PTO is believed to reduce unexcused absences, since employees may use their time off for vacation, sick, or personal reasons.  Employees have welcomed the added flexibility of using PTO as they want to or need to in their quest for work-life balance.

A new trend, though, is taking hold for a few companies.  Some may explain it as an experimental leave program that employees would take advantage of, but those who have adopted it report increased productivity.  It is called Unlimited Vacation time.  Most recent to join the ranks of those not tracking vacation and time off is Virgin.  Founder, Richard Branson, announced that his company would be offering unlimited vacation following suit with Netflix and a handful of others.

An unlimited vacation program is designed to give employees the ability to decide when they will be gone as they need to recharge and avoid burnout.  However, they are held accountable for completing their work, meeting deadlines, not leaving their team in a bind, and coordinating with other employees to cover for them.  The program encourages autonomy, which boosts morale and creativity, fostering satisfied employees.  And, we all know that happy employees are productive employees!

Is unlimited vacation time for your company?  We’d like to hear your comments.

Read more about this unique time off initiative here.

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September 25, 2014

Executive Orders Mean New Rules for Federal Contractors

Filed under: Discrimination,Legal Issues — Tags: — Charisse Rockett, PHR, HR Content Manager @ 10:20 am

A series of new executive orders from President Obama present some new HR law compliance challenges for federal contractors.

The President recently signed an order requiring that federal contractors not discriminate based on sexual orientation or gender identity. About half the states already prohibit such discrimination in one form or another. Another order mandates such contractors pay a minimum wage of $10.10 per hour. Both rules will take effect after implementing regulations are adopted and finalized later in 2014.

Yet another order requires that certain contractors (those with contracts over $500,000) disclose state and federal labor law violations from the past three years and also gather similar information from their subcontractors. Such violations include problems under the Fair Labor Standards Act, the National Labor Relations Act, the Family and Medical Leave Act, and the anti-discrimination laws. Repeat offenders may not receive federal contracts. The latest executive order also will prohibit companies holding new contracts of more than $1 million from requiring that their employees arbitrate alleged discrimination and harassment claims. The most recent executive order will be implemented on new contracts beginning in 2016.

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