February 2, 2012

Consistency: A Resolution You Need to Keep

Filed under: Compliance,Employment Law — Olivia @ 11:50 am

With the warm weather we’ve been having in Kansas – 65 degrees yesterday, when a year ago it was ice and snow – it’s really difficult to believe today is Groundhog Day, and Punxsutawney Phil prognosticated six more weeks of winter.  I know I’m not the first one who has wondered why we need a groundhog to tell us something the calendar tells us every year.

But yes, it is February.  Did you make any resolutions at the start of 2012?  How are your business resolutions holding up?  I read yesterday that about one third of all people who made a resolution have already dropped the ball and gone back to their old ways.

Regardless of your resolution results, today is a new day and can be a new start.  Recently, I came across a blog at SHRM’s We Know Next, written by Jonathan Segal.  He discussed EEO termination claims and the danger of inconsistent policy application.

We all know the importance of consistency when it comes to policies.  There is no company that is perfect at consistently applying policy every single time – companies employ people, and people (despite what they may think about themselves) are not perfect.  So, what can you do?

Start today with a documented commitment to apply policies consistently and fairly.  Regardless of how things may have been handled in the past, effective today you will consistently apply policies.  Aside from the benefit of being fair to your employees, you are reducing future legal risk that could be posed with unfair or inconsistent policies.

“This does not eliminate the legal risk.  But it should minimize it materially.  And the legal risk that remains must be balanced against the business risk of tolerating substandard conduct to avoid any legal risk.”

Here are a few other tips to keep in mind:

  • Review policies and procedures on a regular basis – at least annually.
  • Employment law is always changing – be sure your policies reflect the most current laws.
  • Request feedback from managers regarding policy wording – Are policies concise and easy for them to understand?
  • Conduct training for new managers (and reviews for other managers) to ensure they have an understanding of the basics of employment law and how it applies to their treatment of employees.
  • Take your employee opinion survey results to heart – Do your employees believe managers fairly and consistently apply policies?
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January 31, 2012

DOL Proposed Amendments to FMLA to Affect Military and Airline Crews

Filed under: Employment Law,FMLA — Olivia @ 3:38 pm

The Family and Medical Leave Act of 1993 (FMLA) has undergone several amendments over the years intended to expand its reach and simplify administration.  From the Department of Labor:

“The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. Eligible employees may take up to twelve workweeks of FMLA leave in a 12-month period for the birth, adoption or placement of a child, to care for a family member with a serious health condition, or because they are unable to work due to their own serious health condition. The FMLA was amended in 2008 to provide an expanded leave entitlement to permit eligible employees who are the spouse, son, daughter, parent, or next of kin of a servicemember (National Guard, Reserves, or Regular Armed Forces) with a serious injury or illness incurred in the line of duty to take up to twenty-six workweeks of FMLA leave during a single 12-month period to care for their family member (military caregiver leave), and to add a special military family leave entitlement to allow eligible employees whose spouse, child, or parent is called up for active duty in the National Guard or Reserves to take up to twelve workweeks of FMLA leave for “qualifying exigencies” related to the call-up of their family member (qualifying exigency leave). The Department issued an earlier set of regulations implementing and interpreting these amendments.”

This week, the DOL announced its intention to publish a Notice of Proposed Rulemaking that would implement and interpret some statutory amendments to the FMLA.  This NPRM is now available for public comment.  The major provisions of the NPRM include:

  • the extension of military caregiver leave to eligible family members of recent veterans with a serious injury or illness incurred in the line of duty;
  • a flexible, three-part definition for serious injury or illness of a veteran;
  • the extension of military caregiver leave to cover serious injuries or illnesses for both current servicemembers and veterans that result from the aggravation during military service of a preexisting condition;
  • the extension of qualifying exigency leave to eligible employees with covered family members serving in the Regular Armed Forces;
  • inclusion of a foreign deployment requirement for qualifying exigency leave for the deployment of all servicemembers (National Guard, Reserves, Regular Armed Forces);
  • the addition of a special hours of service eligibility requirement for airline flight crew employees; and
  • the addition of specific provisions for calculating the amount of FMLA leave used by airline flight crew employees.

Once available, the public is invited to submit comments via Regulations.gov.

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January 30, 2012

W-2 Changes for 2012 – Prepare Now!

Filed under: Benefits,Compensation,Compliance,Employment Law,General HR Buzz — Joyce @ 2:31 pm

We heard it was going to happen and now it is just around the corner.  What am I referring to?  The requirement as part of the Patient Protection and Affordable Care Act (PPACA) which mandates employers must report on employess’ W-2 forms the cost of their group health insurance coverage.  This information must be furnished on 2012 W-2 forms, which generally must be provided to employees by the end of January 2013.

Although this is a year away, some of the calculations may be time consuming so it is advised to begin capturing this data now in order to be prepared when January 2013 rolls around.  The new reporting requirement applies to employers that file 250 or more W-2s.  The reported amount should reflect the aggregate cost of all reportable benefits that the employee received under all group health plans that the employees’ participated in during all or part of the 2012 plan year.   What does this include?  Some examples are:

  • Major medical benefits
  • Integrated vision plan coverage
  • Executive physicals

For more specific information, please go to the IRS’s website and review  Notice 2012-9.

 

 

 

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January 27, 2012

HR Fact Friday: FLSA Companionship Exemption To Be Narrowed?

Filed under: Compliance,Employment Law,FLSA,General HR Buzz — Paul @ 6:00 am

For many years, the DOL has recognized an exemption from the Fair Labor Standards Act (FLSA) for persons employed as domestic companions. The exemption excluded many home care and personal assistance workers, who provided companionship services for the sick and elderly at home, from FLSA’s overtime and minimum wage requirements. A detailed DOL discussion of the existing exemption can be found here: http://www.dol.gov/whd/regs/compliance/whdfs25.pdf. DOL is proposing the change this exemption. Here is DOL’s own summary of its proposed changes: “The Department is proposing to revise the regulations to accomplish two important purposes. First, the Department seeks to more clearly define the tasks that may be performed by an exempt companion. Second, the proposed regulations would limit the companionship exemption to companions employed only by the family or household using the services. Third party employers, such as health care staffing agencies, could not claim the exemption, even if the employee is jointly employed by the third party and the family or household.” A more detailed summary of the proposed DOL changes can be found here: http://www.dol.gov/whd/flsa/whdfs-NPRM-companionship.htm.

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January 24, 2012

Six Trends in 2011 That Will Shape Employment Law in 2012

Filed under: EEO,Employment Law — Olivia @ 4:19 pm

Two major class-action rulings in 2011 have far-reaching and enormous financial risks.  Seyfarth Shaw, an employment law firm, recently released its annual Workplace Class Litigation Report, and they predict the current economic conditions could lead to even more in 2012.

The annual report is written by the firm’s labor and employment attorneys, and analyzes the leading class-action and collective-action decisions in 2011.  The claims involved were brought against employers in federal court under Title VII, Age Discrimination in Employment Act (ADEA), the Fair Labor Standards Act (FLSA), Employee Retirement Income Security Act (ERISA), and other federal employment laws.  Also included are actions brought under state law.

The report identified six key trends:

  1. Both major class-action rulings, Wal-Mart Stores v. Dukes and AT&T Mobility v. Concepcion, had a “profound influence” on the course of class-action rulings in 2011.  Dukes brought to bear a higher standard for the types of allegations that could be brought in one action.  Concepcion upheld the enforceability of class-action waiver provisions in arbitration agreements.
  2. More discrimination charges were filed with the Equal Employment Opportunity Commission (EEOC) in 2011 than in any previous year since the commission was founded in 1994.
  3. Continuing economic problems in 2011 fueled more class-action and collective-action litigation.
  4. Wage and hour litigation outpaced all other types of litigation, as it has in the past.
  5. The plaintiff’s class-action bar has created new theories of classwide liability and new approaches to class certification.
  6. Even with increased ERISA class actions and government enforcement actions over 2010, the settlement of employment discrimination class actions were less frequent and smaller than in previous years.  This means we are already seeing the impact of Dukes.

“The lesson to draw from 2011 is that the private plaintiffs’ bar and government enforcement attorneys are apt to be equally, if not more, aggressive in 2012 in bringing class-action and collective-action litigation against employers,” the report concluded.

As always, the best approach defense against a lawsuit is to protect your company from liability as best as possible.  Keep those policy manuals up to date and be sure those policies are applied fairly across the board.

Source: SHRM

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January 13, 2012

HR Fact Friday: EEOC Letter Causes Diploma Controversy

Filed under: EEO,Employment Law,Hiring & Jobs — Tags: , , — Paul @ 1:40 pm

An informal discussion letter from the Equal Employment Opportunity Commission (EEOC) is generating some controversy over whether an employer can require a high school diploma as an employment prerequisite. The informal letter (without the force of a law or regulation) was written in response to a question about persons who are unable to earn a diploma because of learning disabilities, thus making them ineligible for jobs that require a high school education. The EEOC said that a diploma requirement that screens out someone based on a disability must be job related and consistent with a business necessity or it may violate the Americans with Disabilities Act (ADA). If it meets this requirement, the employer must then show that the person denied the job could not perform its essential functions, even with accommodations. Thus, according to the EEOC, while an employer need not prefer an individual with less qualifications (e.g. someone without a diploma who could not earn one due to a disability), it cannot flatly refuse to even consider him/her if they could perform the job with accommodations.

Is this type of information of interest to you? If you would like to recieve twice monthly HR legal updates such as that featured in this post you can sign up to recieve the HRN HR Legal Update eNewsletter. Simply go to: http://www.hrnonline.com/HR/WhitePapers/whitepaper-newsletter.asp.

 

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January 6, 2012

HR Fact Friday: NLRB Poster Deadline Postponed Again

Filed under: Compliance,Legal Issues,Unions/NLRB — Paul @ 2:27 pm

The National Labor Relations Board (NLRB) recently imposed a new requirement that employers post a notice to employees informing them of their rights under the National Labor Relations Act (NLRA).  The new NLRB requirement was supposed to take effect as of November 14, 2011 but that deadline was later delayed until January 31, 2012.  The NLRB has delayed the deadline again, and it now is set at April 30, 2012.  The most recent delay is a related to a court request to postpone the effective date pending a legal challenge to the new requirement.  If you want more information, follow this link to the NLRB’s FAQ on this new posting requirement: https://www.nlrb.gov/faq/poster

A copy of the new poster is available here: https://www.nlrb.gov/poster and here: https://www.nlrb.gov/sites/default/files/documents/1562/employee_rights_fnl.pdf

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December 30, 2011

HR Fact Friday: HR Trends in 2012

Filed under: Compliance,Employment Law,General HR Buzz,Management Practices — Tags: , — Paul @ 6:00 am

Are we really just one week away from the turning of the calendar to the year 2012? We work in and provide services to an industry [HR] where someone on the outside looking in may not think much ever changes. HR professionals know differently. Benefits administration, employment law, integrated talent management solutions, compensation programs, etc., etc. The list goes on. I would venture to say that every year at least one major HR program changes dramatically in most every company. And this goes equally for companies providing technology and consulting solutions to the HR marketplace like HRN.

So what predictions does Bersin & Associates see on the short horizon for 2012? According to a report published in November, 2011 and partially reprinted on SHRM.org, the following trends and changes are predicted to occur that will affect small businesses:

  • Deep integration of talent acquisitions—recruiting and staffing—into talent management.
  • Social tools and ads for finding talent will grow dramatically in 2012, forcing staffing agencies and job boards to re-engineer their offerings.

(more…)

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December 21, 2011

Reflections on Job Satisfaction

Filed under: Employment Law,General HR Buzz,Hiring & Jobs,Management Practices — Joyce @ 12:40 pm

The end of the year is a time of reflection for me.  I look back on the year and typically do a mental review of the activities and occurrences in my personal life and my work life.  Oftentimes I wish I could have a few “do-overs”, but overall I am fortunate that I have more occurrences I would like to relive than do differently.  As I reflect on my career, some years I may have questioned if I was in the right field.  Other years I may have questioned if I was with the right company and satisfied with my job.  I have to admit, I tend to be fairly analytical so these mental discussions sometimes became rather intense and oftentimes I would end up with more questions than answers.

When it comes to job satisfaction, this is an area that is very important to most employees.  With the onset of a new year, and based on headline news the possibility of new jobs, many of your employees may be reflecting on their personal job satisfaction.  The Society for Human Resource Management (SHRM) recently released the 2011 Job Satisfaction and Engagement Research Report.  Good news!  The research showed the 83% of U.S. employees reported overall satisfaction with their current jobs.  Where the room for improvement comes is in the area of career development and advancement opportunities.  Only 40% of employees were satisfied in this area.

As employers, this should concern us.  Mark Schmit, SHRM’s vice president for research states “As we slowly come out of the recession, the war for talent will be back on.  When that happens, there is the potential for turnover given the dissatisfaction that employees seem to have with the real or perceived lack of advancement opportunities.”

When you reflect at the end of the year, it would be a good idea to think ahead.  What are you going to do as an employer to ensure your employees are satisfied with their jobs?  What opportunities exist in your company for career advancement and development?  We’d like to know what you are doing in your organization, so please share.

Source:  SHRM 2011 Job Satisfaction and Engagement Research Report

Other Sources:  WorldatWork

 

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December 14, 2011

Weekly Wednesday Acronym – Another One with Potential Class Action Exposure!

Filed under: Compliance,Discrimination,Employment Law,General HR Buzz — Joyce @ 3:20 pm

I’m sure you are aware of the Fair Credit Reporting Act (FCRA), which regulates the scope and flow of information between “users” and “furnishers” of consumer information.  Not only does the FCRA regulate the exchange of consumer credit information between the credit bureaus and creditors in connection with mortgage lending, but it also regulates the exchange of consumer information between employers and credit reporting agencies that provide background reports.

These regulations are triggered when an employer orders a background check report, criminal, or motor vehicle records check.   For many years, it was relatively uncommon to see lawsuits or FTC enforcement actions against employers for alleged violations of the FCRA. Now, times have changed. In the past few years, there has been an unprecedented spike in class action and single-plaintiff lawsuits against employers for alleged violations of the FCRA. As a result, compliance with the various provisions of the FCRA is essential for all employers that use background reports even in part to make hiring and employment decisions.

Earlier this year, the Federal Trade Commission (FTC or “the Commission”) staff published a report entitled, 40 Years of Experience with the Fair Credit Reporting Act: An FTC Staff Report with Summary of Interpretations.  This report highlights critical portions which “provide important guidance on issues of statutory interpretation”.

As such, this is another area that we need to become familiar with and watch our P’s and Q’s.  I’m going to add this to my stack of reading, at least for a cursory review, so I will be familiar with what the findings are suggesting in terms of compliance.  If you would like to review the report, you may find it by clicking here.

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