Top 10 HR Issues of 2014

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Count down my top ten HR issues of 2014. Check out not only the issues, but also the answers!

Challenge #1

FAIR LABOR STANDARDS ACT

Not that most supervisors ever get any training on the FLSA. “Just pay the employee a salary and you don’t have to worry about overtime.” Wrong!! “Well just make sure the overtime is authorized or it won’t be paid.” Wrong!! “Well when did all this stuff change?” Actually, in 1938! This law isn’t new. “You mean we’ve been doing this wrong for 60 years?” Yes, but you’re not alone. Most supervisors are struggling to overcome years of risky pay practices.

Solution

Time worked is time paid. This sounds simple enough but employees are becoming better informed on the wage & hour laws than supervisors. When I became a supervisor for the first time, there was no training on wage & hour regulations. I always thought that if an employee was on the clock, then I had to pay overtime and if they were on salary, they had to work until they dropped dead with no overtime pay. Surprise, surprise – it doesn’t work that way. Employees are classified exempt from the Fair Labor Standards Act based on their job duties, not just on how we pay them. You can’t make someone exempt or nonexempt. The job duties must fit one of the more
than 60 classifications to be exempt from the FLSA.

There is no such thing as volunteered work. If you notice a ton of work on Friday and it’s all gone on Monday morning, you can’t assume little elves came in and did the work. If the employee is nonexempt, you must verify all the hours and adjust the time card to reflect the actual hours worked.

If you sign the time card as a supervisor knowing that it is not an accurate reflection of the hours worked, then you can be responsible for the money. In reality, this doesn’t usually happen because supervisors don’t have enough money to pay the employees their pay/overtime. It doesn’t make a difference whether you “authorized” the overtime or not, it must be paid. You can discipline, or even fire someone for working unauthorized overtime, but you’ve got to pay them first.

Talk the language of business. The language of business is money. If you’re having trouble convincing your boss or the owner that your concerns are legitimate, talk money! In a worst case scenario, The Department of Labor could go back three years and double the damages of unpaid overtime for all current and former employees.

WAGE AND HOUR CHECKLIST

__ Are you sure that your exempt salaried employees qualify for the exemption? Exempt and nonexempt classifications are determined by job duties, not by how you pay them, and those classifications were updated in August of 2004. Check out dol.gov for more information on the FLSA.

__ Are you paying nonexempt employees overtime wages equal to one and one-half times their regular hourly wage? This is a requirement of the FLSA. Your state may require even more.

__ Are all your nonexempt employees recording all hours actually worked? When you sign the timecard you’re agreeing it’s an accurate reflection of the hours worked.

__ Are employees taking lunches at their desk or in their work area? If they work during lunch, they have to be paid.

__ Are exempt employees docked for hours not worked within a workday?Don’t treat exempt like nonexempt. In most cases, this type of docking jeopardizes the exemption.

__ Are you granting “comp time” in lieu of overtime? In the private sector, “comp time” may be a problem. Check with local legal counsel to remain safe.

COMPANY POLICY

It is our policy to comply with the salary basis requirements of the FLSA. Therefore, we prohibit all company managers from making any improper deductions from the salaries of exempt employees. We want employees to be aware of this policy and that the company does not allow deductions that violate the FLSA.

If you believe that an improper deduction has been made to your salary, you should immediately report this information to your direct supervisor, or to [insert alternative complaint mechanism(s)].

Reports of improper deductions will be promptly investigated. If it is determined that an improper deduction has occurred, you will be promptly reimbursed for any improper deduction made.

Challenge #2

DOCUMENTATION

The burden of proof is heavily on the employer. It’s not your word as a supervisor against the employee. It’s your word against your ability to prove you didn’t discriminate and to prove you did communicate.

Solution

HR types have been screaming at us for years, “Where’s your documentation? Where’s your documentation?” They’re right. A major contributor to losing these cases is the fact you can’t prove you did it right. In order for the documentation to stand up on its own, it has to be signed or initialed or witnessed, by you, the supervisor/manager and the employee. If the employee refuses to sign, get a witness. The witness should be a fellow supervisor, a representative of HR or upper management, as neutral a party as you can find given the circumstances. You can also get sneaky. I know you don’t like to play games. But, you have to be able to take credit for your good work. At the bottom of formal performance improvement plans, you put boxes to check and initial. One is labeled agree. One is labeled disagree. Do you really care? Well yes, you hope they agree. But even if they check disagree, you have proof that you communicated your expectations.

The goal here is to salvage if you can. If your intention is to get rid of the employee no matter what, then don’t waste any more time documenting – take action. Talk to HR/upper management about other options.

You owe it to the good employees to discipline, document and fire (if you have to) the bad ones.

This doesn’t mean you spend all day in the employee’s face. “Here sign this, sign that and why don’t you just sign a blank piece of paper and we’ll fill it in come the end of the day.” You may give four or five verbal reminders and put it on a calendar or in your computer. By themselves they won’t stand up. But, they are a good first or second step. If this works, that’s great. No need to create “drama” where you don’t have to. If it doesn’t work and you go to a more formal performance improvement plan, then in the first write-up, refer back to the verbal reprimands/reminders. This way you can take credit for those reminders.

Challenge #3

ANTI-HARASSMENT POLICY

The EEOC statistics (eeoc.gov) show 13,867 sexual harassment charges filed in 2008.
The agency gathered a little over $47.4 million in non-litigated settlements from employers.

Solution

Starting in 1998, the Supreme Court placed a high value on the establishment and training of procedures to deal with sexual harassment at work. The Court held in the Ellerth and Faragher cases that an employer will generally be liable for harassment by a supervisor that results in a tangible job action. When the harassment is employee to employee, however, the employer has a better chance of avoiding liability if it can show that there was reasonable care to prevent and promptly correct any sexually harassing behavior and the employee failed to use the published complaint procedures in place.

You will start to see court rulings going beyond sexual harassment into age, race, religion, national origin and disability harassment along with accusing employers of an overall “hostile work environment.” Avoid a pattern of “put downs” based on race or age or national origin. A “one-time” incident is usually not enough to get very far. The courts and enforcement agencies are looking for the employer with no policy against harassment, no procedures whereby an employee can complain and a pattern of taking no action when the harassment is brought to their attention.

Don’t allow employees with disabilities to be the focal point of jokes. Don’t threaten to “kill” an employee if the job isn’t done on time. No more yelling and screaming at employees. None of this plays well in court.

OK, where’s the line? What’s reasonable and what isn’t? Think like an outsider thinks. If you wouldn’t do it or say it on 60 Minutes, then don’t do it or say it or allow it to be done or said in your unit. 60 Minutes isn’t always right, but they are everywhere.

Challenge #4 

IMMIGRATION

Congress has failed to reach any consensus on immigration. Therefore State law is taking precedent.

Solution

This legal issue will not be easily or quickly resolved. So let’s talk practical. It is risky to ask "Are you a US citizen?" on an application.
Wait a minute! What are you talking about? I’m sure I've got this on my application!

Go back and check it out. Unless your business is building a bomber for the US Department of Defense (in which case the job would REQUIRE US citizenship) then ask the question…

"Can you give written evidence of the right to work in the US?"

This approach should keep you safe.

Arizona and other States are passing laws and issuing executive orders that are more restrictive than the Federal guidelines. The consequences are severe-ranging all the way to taking away the employers right to do business in the State. Make sure you have local legal counsel to deal with "no-matches" and other legal issues revolving around immigration.

Be sure you have the latest I-9 form.

Check out www.uscis.gov for a copy of the latest I-9 form and more information on E-Verify. 

Challenge #5 

CONSISTENCY

If there is low morale at work, it usually comes down to some inconsistency on the part of the supervisor or upper management.

Solution

DITO DITA. Do It To One, Do It To All. Consistency buys morale. Especially in tough times, people want to know where they stand. Do what you say you’re going to do. Consistency also buys serious legal protection. Attorneys will tell us that we are better off being consistently wrong than being inconsistent.

A company owner once told me he had never had an employee come in late. He said he gave his employees 3 seconds. He said he did have a few ex-employees come in late. He also had a one-day absenteeism policy. If the employee was sick more than one day, he/she was fired. If you didn’t want to work under these conditions the boss understood, but said the applicant would have to decide up front for there would be no exceptions. When the EEOC came into his operation, they accused the owner of being mean to everyone. They didn’t like the practice. But they couldn’t touch it.

Now, I’m not advocating this as a tardiness or absenteeism policy, but it is a great example of the power of consistency. This was before the FMLA mandated 12 weeks off under certain circumstances. I asked him about someone who breaks their leg or has a baby? This company had a six week short term disability policy, at full pay, to cover those issues. He said, “Hunter, I take care of my people, but they have to follow my rules.”

The reality is, you are going to make exceptions to a policy or a practice, but keep those exceptions few and far between. Make exceptions based on performance and/or behavior. 

Challenge #6

FMLA LEAVE

DON’T refuse to reinstate the employee to the job. If the employee comes back within the allotted time, there is little chance that a job could be denied. Don’t wait for a bad employee to go out on FMLA before you start to document and take action for poor performance or behavior.

Solution

This was supposed to be a simple little law granting unpaid job protection to employees with serious health conditions of immediate family members or themselves. HR professionals will tell you it’s a paperwork nightmare. Supervisors scream they need employees at work. This is not just a women’s issue, but a family issue and is far from settled. California now mandates pay for certain leave time. Check out new leave requirements for military families.

COVERED EMPLOYER

The FMLA applies to most employers with 50 or more employees within a 75 mile radius.

COVERED EMPLOYEE

To be eligible, an employee must have a total of one year employment history with an
employer and at least 1250 hours worked the previous year from the date the leave is
to commence.

DO gather enough detailed information to determine if the absence qualifies for FMLA. Don’t automatically assume that every absence qualifies. Understand there are times when FMLA can be safely denied.

DO make sure HR, or whoever co-ordinates leave, is notified of the situation. Give written and timely FMLA notice to employees. Without this notice it’s hard (though not impossible) for the clock to start ticking. The state law may grant additional time, paid time off, or expand who/what qualifies under state disability/family leave statues.

DON’T ignore employee statements about their medical condition or any situation that indicates an employee’s leave could be potentially FMLA qualified. 

Challenge #7

POOR PERFORMERS

Good employees know who the bad ones are. Good people know that you know as well and they are looking toward you for some leadership. You owe it to the good employees to deal quickly with the bad ones.

Solution

There is such a thing as too much documentation. If you try to defend your actions to one of the enforcement agencies and you have 1300 notes on the employee, the outsiders are going to say, “Where have you been? You played with him/her too long. You should have fired him/her 1290 notes ago.” In a union/government environment this is known as past practice. Forget what the contract says — what is the supervisor’s past practice? If the contract defines excessive absenteeism as 6 days and the supervisor has given the employees 10 days, there is a new definition of excessive absenteeism. It is not the employee’s fault. It’s lousy management. Granted, burdensome bureaucracy can frustrate any supervisor. (We tend to blame the union contract or the government regulations but big business is just as bad.) Don’t give up. That’s exactly what bad employees are counting on. Know the rules better than any employee and hold them accountable to the letter of the policy.

In the private sector this practice of ignoring bad employees is known as implied contract. If you allow the inefficiency, the poor productivity, to go on for a period of time, you’ve established an implied contract that this inefficiency or poor productivity is OK. You can break the implied contract by wiping the slate clean, communicating your expectations for performance and behavior, and then start to hold the employees accountable.

Good management practice, and now the law, is saying to find problem people and deal with them quickly. If you don’t, you may have them forever.

WEEDS

How to know when enough is enough. How do you know when you’re wasting your time and should be moving on to good employees?

DENIAL: Few are going to work toward a solution to a problem they don’t acknowledge.

REFUSAL TO ACT: Every few weeks the pattern of unproductive work or behavior keeps returning.

CONTINUAL CO-WORKER COMPLAINTS: You don’t have to see or hear the behavior that prompts complaints first hand. Once you become convinced by customers or employees you trust, take action. 

Challenge #8

PLAY POLITICS

After the economic crash of 2008, the political mood is one of more regulation, not less. The first bill signed into law by this administration was the Ledbetter Fair Pay Act of 2009. In a time where many organizations are still in survival mode, it will become critical to stay on top of any HR legislative changes and avoid surprises.

Solution

Enployee Free Choice Act. There are various versions of this bill pending in Congress. It’s a good bet something is going to happen
Stay close to your people. Eliminate the practice “We do not discuss salaries at this place of work.” Why are we keeping salary ranges a secret? Because our pay plans are unfair or illegal? This philosophy may put us at odds with the National Labor Relations Act (even in non-union companies).

Review with local legal counsel and update your non-solicitation policy.

(Let me go on record that I am not for or against Unions. I am against abuse, regardless of side … Hunter)

Healthy Families Act. Whether this particular bill gets through Congress or not, it’s clear that time is becoming more valuable than money. The recession has taken some of the edge off this. But employees are scrambling to take care of sick kids and the elderly parents much less themselves. FMLA without pay is lip service. How many people can afford to take 12 weeks off without pay? If you can, you don’t need the leave in the first place! Take a hard look at PTO systems to manage time and attendance. Watch for new legislation on workplace flexibility.

Challenge #9

ACCOMMODATION

When Congress passed the Americans with Disabilities Act, it estimated that over 40 million Americans had one or more physical or mental disabilities, and that this number would increase as the baby boomer generation ages.

Solution

  1. The law prohibits covered employers from discriminating against a “qualified individual with a disability.” A “disability” means, with respect to an individual: 1) A physical or mentalimpairment that substantially limits one or more of the major life activities;
  2. 2) A record of such impairment; or
  3. 3) Being regarded as having such impairment. The statute requires that employers provide “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability, unless doing so would impose an undue hardship on the employer.”

SO WHAT?

Most pre-employment physicals are no longer allowed. The hiring should be conditional – “You’re hired pending successful completion of company physical.” It’s risky to ask an applicant, “Is there anything that would keep you from doing the job as outlined?” The toughest you should get up front would be, “Can you meet the essential functions of this job with or without reasonable accommodation?”

If you catch an employee drinking whiskey on the job, the ADA does not mandate accommodation. Illegal drug users and alcohol abusers at work, based on company policy and practice, have lost their ADA protection. (Careful on this one. Some state courts may rule differently. Check with local legal counsel as you establish and start to enforce any policy.) A disabled worker is not usually entitled to a “reasonable accommodation” that is inconsistent with an employer’s established seniority rules.

You can refuse employment because the disability, based on “objective medical judgment,” poses a direct threat to the individual’s own health or the health or safety of other workers.

Challenge #10

COMPANY HANDBOOK

With no written, consistently applied policies, you’re only as good as your worst employee.

Solution

A well-written handbook is important as a defense in employment litigation.

Handbook Mini-Audit

__ Should contain a clear and conspicuous statement that its policies and provisions don’t create a contractual employment relationship or otherwise modify employees’ at-will status (for at-will employers).

__ Eliminate such terms as “probationary, cause, permanent, career and loyalty” because they could weaken or even negate the at-will relationship.

__ Endorse that you are an equal employment opportunity employer and communicate employees’ rights under the ADAAA.

__ Should make very clear the company stance against illegal harassment and discrimination with a specific complaint procedure and examples of unacceptable conduct and the consequences of such conduct.

__ Clarify your attendance and leave policies against the requirements of the ADAAA and the FMLA, if applicable.

__ Communicate a clear provision pertaining to monitoring e-mail, voice mail, Internet, telephone use and other privacy policies.

__ Contain the company policy on substance abuse and workplace violence.

__ Reinforce that unauthorized overtime will be grounds for disciplinary action.

__ Eliminate the term “attitude” and substitute the word “behavior.” Attitude cannot be measured. If you can’t measure it, you can’t manage it!

 

If you have any questions please feel free to contact me.