Email. It’s one of the most indispensable tools in business today. It’s also the bane of existence for countless employees and employers alike, as we all find ourselves fighting feverishly to survive the inbox onslaught that plagues our daily lives.
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What constitutes work? This may seem like a simple question, but for employers – especially those managing an hourly workforce – the question can become surprisingly tricky. Ever since a 1947 amendment to the Fair Labor Standards Act (FLSA), the definition of ‘work’ has been a moving target in many ways. Why is this important? Because you are required by law to pay your employees when they are working. And you are not required to pay them when they are not working.
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Employers in the Central Pennsylvania region and beyond have been avoiding the pitfalls of Accidental HR for the last decade thanks to the work of the region’s leading human resource services firm, HR Resolutions.
HR Resolutions celebrated its 10th Anniversary on Thursday, January 15th with an evening reception at the WITF Media Center in Harrisburg, PA. Held in partnership with the Harrisburg Regional Chamber & CREDC, the celebratory event included live jazz entertainment and brought a record attendance of more than 150 regional business owners and executives.
Karen Young, SPHR, President of HR Resolutions, received three commendations including recognition from Dave Black, President & CEO of the Harrisburg Regional Chamber & CREDC.
In addition, the firm is celebrating its updated mission statement, which focuses on its mission-critical role. The revised mission statement is:
“At HR Resolutions…we work side by side with employers, helping them create workplaces where Employees WANT to come to work ~ every day!”
Would you ever hire a convicted criminal to work for your company? How about a person who has been adjudicated through the courts, or an individual who has served time? Each of these phrases essentially means the same thing – that a person has been found guilty of a crime in a court of law.
The problem is that how you word this question (as we just saw) – as well as what kind of crime a person has been convicted of, what kind of sentence they received, and when in the past they were convicted – can all have a dramatic impact on your perception of their potential hireability.
Protecting Employer Rights while Improving Opportunities for Candidates
Approximately one out of every twelve Americans has at some point been convicted of a crime, and nearly one out of three adult American males has been arrested at least once. In a nation as judicially active as ours, it’s not hard for a very wide range of people to run afoul of the law.
From ‘stupid mistakes’ in the teenage years to minor but legally significant convictions for traffic errors, the number of ways to become a convict in the U.S. is dramatic. And a recent study identified more than 38,000 punitive regulations and provisions that make it difficult for people to overcome the impact of carrying a criminal conviction in areas ranging from employment to housing, and from voting to obtaining credit.
Eliminating the Question about Criminal Convictions from Employment Applications
One standard practice on virtually every employment application for has been to include a checkbox or yes/no statement next to the sentence, “Have you ever been convicted of a crime?” And in response to this question, many employers have historically eliminated applicants who answer in the affirmative.
As a result, a national movement called “Ban-the-Box” has sought to eliminate this practice and achieve reform in this area of hiring in order to improve access to employment.
As of August 2014, 66 cities and counties and 11 states as well as the District of Columbia had passed ‘Ban-the-Box’ legislation. While legislation varies between jurisdictions, generally speaking these laws:
– Require employers to remove the check box on employment applications asking whether the candidate has ever been convicted of a crime.
– Require hiring managers to put off asking about a candidate’s criminal history until after an interview has been conducted or a provisional job offer has been extended.
In addition, some states also restrict employers from using criminal history as a sole disqualifier for employment; require employers to notify a job candidate if they are rejected for consideration on the basis of their criminal history; provide a copy of the documentation used to determine the presence of a criminal history to the candidate for their review; and/or restrict employers from making a hiring decision on the basis of criminal history unless the record has a rational relationship or clear connection to the duties of the position being sought.
States in the Northeast who have implemented some form of Ban-the-Box law include Connecticut, Delaware, Maryland, Massachusetts, New Jersey and Rhode Island. Within the Commonwealth of Pennsylvania, the City of Philadelphia has also implemented its own Ban-the-Box ordinance, applicable within the city’s jurisdiction. This is a good example because even if your company is not based in one of these jurisdictions , should you have a remote employee, sales rep or field office in one (such as Philadelphia), you are subject to these laws.
How One Ban-the-Box Ordinance Works
So, what does this mean for you as an employer? Let’s take the Philadelphia ordinance as a good example. In Philadelphia, Ban-the-Box regulates employer hiring practices as follows:
– Requires employers to remove questions about criminal convictions from job applications.
– Requires employers to avoid asking questions about criminal convictions during an applicant’s first job interview.
– Requires employers to delay performing a criminal background check on a given candidate until after the applicant’s first job interview.
– Requires employers to never make employment decisions (including termination decisions) on the basis of a closed case that did not result in a criminal conviction.
At same time, the Philadelphia ordinance allows the following practices by employers:
– Employers may ask a candidate about a criminal record after an application is received and after a first interview has been completed.
– Employers are not required to guarantee a job to a person with a criminal conviction.
– Employers are not subject to civil monetary or other judgments when a candidate files a human rights complaint with the City of Philadelphia, although employers may be fined by the City of Philadelphia itself. In addition, the Philadelphia ordinance exempts employers with fewer than ten employees, or those employers engaged in government criminal justice functions such as law enforcement, prisons and courts. It also specifically enables employers to evaluate and research criminal background for any position in which state or federal law proactively requires such action by the employer.
Preparing Proactively to Stay in Step with Changing Laws
Over the next 2-3 years, many analysts following the field expect a majority of states to enact Ban-the-Box laws, which means that the smart thing to do is to prepare now and make changes in your hiring practices across the board.
Smart steps to take now may include:
1. Removing criminal conviction questions from your standard application form.
2. Making sure that all existing versions of your standard application form are updated and revised accordingly, and that all prior versions are destroyed or deleted.
3. Implementing a written hiring policy that includes specific guidelines for when questions about criminal history are appropriate to ask. Remember that employers may legally identify criminal history information during a standard background check, so verbally asking this question may or may not be necessary depending upon your hiring process and specifics.
4. Providing guidance to all hiring personnel on how, when and what to ask (or not ask) regarding such questions, and requiring written indications (on a form or report) that a given candidate’s application has been received, and that a first interview has been performed/completed.
5. Implementing a written procedure for responding to the identification of a criminal history either through voluntary verbal indication by the applicant, or through the background check process. This should include any procedures you may wish (or be required) to institute regarding notification of the applicant.
6. Ensuring that hiring decisions are not made solely on the basis of criminal history, and that any decision to disqualify a candidate based even in part on this factor are documented and clearly connected to the job requirements and objectives.
7. Reviewing documented hiring procedures and standards to ensure that policies do not indicate that convicted persons should be eliminated from consideration across the board. These so-called ‘blanket’ statements could subject an employer to liability and the potential of a lawsuit from the U.S. Equal Employment Opportunity Commission (EEOC).
8. Ensuring that your organization stays informed about proposed and enacted Ban-the-Box in the states, counties and local jurisdictions in which you do business – including locations where you have a field office or remote personnel. For example, the State of Maryland has passed a Ban-the-Box law but within that state, a number of counties are considering ordinances that may apply additional regulations to employers above and beyond the state’s requirements.
Some trade organizations have responded to the Ban-the-Box movement with counter efforts designed to slow, stop or reverse such legislation. These include the National Retail Federation, some chambers of commerce and a number of other business organizations nationally, as well as at the state and local levels.
However, regardless of how you may feel about the issue, the important priority is to ensure that your hiring processes are prepared to operate effectively in an environment of change on this issue. By proactively implementing Ban-the-Box strategies now, you can stay ahead of the shifting seas of regulatory change; increase internal awareness within the company on this important issue; and enable your organization to transition effectively so that your team becomes comfortable and effective with a new approach.
Selected Sources:
Ban-the-Box Movement Goes Viral
http://www.shrm.org/hrdisciplines/safetysecurity/articles/pages/ban-the-box-movement-viral.aspx
Ban-the-Box: An Overview for Private Employers
http://mn.gov/mdhr/employers/banbox_overview_privemp.html
Growing ‘Ban-the-Box’ Movement Impacts Hiring Practices
http://www.businessnewsdaily.com/6969-criminal-history-job-applications.html
What it Means to ‘Ban-the-Box’
http://takingnote.blogs.nytimes.com/2013/10/30/what-it-means-to-ban-the-box/
Paying a Price, Long After the Crime
http://www.nytimes.com/2012/01/10/opinion/paying-a-price-long-after-the-crime.html
“Ban-the-Box” Employment Law Gains Ground in 2014
http://jurismagazine.com/ban-the-box-employment-law-gains-ground-in-2014/
Ban-the-Box: Philadelphia Commission on Human Relations
http://www.phila.gov/HumanRelations/DiscriminationAndEnforcement/Pages/BanTheBox.aspx
Editor’s Note: This article provides general information based upon HR Best Practices and does not constitute legal advice. Consult a human resource professional or speak with your attorney for questions specific to your circumstances.
You’ve developed stronger position descriptions, beefed up your budget for competitive pay, established a clear profile for your ‘best-fit’ job candidates, and ramped up recruiting efforts. Now, you just have to select the right people. After all, once you find the perfect candidate, they’re going to all but trip over themselves to join – and stay with – your team, right?
Wrong. Many business owners think that in a challenging economy with lots of people in the labor market looking for work, that candidates should be eager to work for a company with a middle-of-the-road benefits program. What this discounts is that during a down economy, people are more worried than ever about taking a job with a weak or unstable employer. Giving your employees a mediocre benefit package is akin to labeling your business with ‘caution’ tape – and it will result in more declined offers and short-term tenures by top candidates than almost any other factor.
But let’s face it – benefits are expensive. How can a small company or one in a highly competitive market compete when it comes to creating a powerful package? Here are six strategies you should consider:
1. Stop Paying Employees to Get Their Own Insurance
Thanks to the ongoing evolution of the Affordable Care Act and its IRS-related implications for tax and business regulations, continuing to pay your employees cash to ‘reimburse’ them for their own out-of-pocket costs for insurance could run afowl of federal regulations. But even putting that aside, employees hate getting their own individual coverage, and for good reason. Group plans offer a wider range of services, and usually a strong provider network. And employees often perceive that an employer who reimburses for securing individual coverage is no different from an employer that doesn’t offer insurance. Remember, in most cases you can find a group plan with as few as two or three employees!
2. Add an Employee Wellness Program
Once you’ve bitten the bullet and replaced an ‘everyone for themselves’ approach to insurance with a proper group health plan, go an extra mile and build in some further value for that investment. You could offer to pay for employees’ monthly gym membership fees, or you could do something even simpler like inviting nutritionists, massage therapists and other health practitioners to come to your place of work to give free talks or, in some cases, offer discounted services to your employees.
3. Provide Access to Voluntary or Supplemental Insurance
In addition to your traditional, employer-provided health and related coverages, you can also consider offering voluntary insurance as an added perk. Voluntary insurance programs provide optional coverage – that employees pay for on their own – but that they access through their employer, and at a lower rate than they would be able to access individually. You’re providing a benefit with a monetary value, but the value is achieved by virtue of your role as an employer, and not necessarily through a cash investment on your part. These may include accident insurance, extended-illness coverage, hospital indemnity insurance, short-term disability and more.
4. Amp Up the Education and Fringe Benefits
Fringe benefits have been shown to dramatically impact employee satisfaction – even if they are small investments and/or require little management or maintenance. On the one end of the spectrum, you could offer an employee transit subsidy for commuting. On the other end, you could deliver an employer-provided vehicle (company car) for an employee’s use. The best fringe benefits are those that improve the quality-of-life of the employee, whether that be in terms of time saved (such as an office concierge or on-site dry cleaning and laundry pickup/drop off) or opportunities experienced (such as educational or training reimbursement). Don’t be afraid to ask your employees what THEY would appreciate!
5. Negotiate Employee Discounts and Special Offers
Loyalty is built on opportunity, and one of the secret weapons you have to build employee loyalty is the opportunity to give them special offers and deals that will make their day just a little brighter. Talk with a local restaurant owner about offering a monthly employee discount for your staff and their families. Consider offering employees discounted or subsidized membership to a business or social club. What about using your frequent flyer miles to help support a personal travel benefit for a deserving staff member and their family? And, don’t forget about your local Chamber of Commerce. In most cases, if your company is a member, your employees can attend chamber events too!
6. Increase Awareness & Utilization of Your Benefits
One great irony is that many employers invest in comprehensive benefits, only to have employees underutilize them. The problem with this is that a benefit that no one uses rapidly becomes a benefit that no one remembers. Do things like offering regular in-office workshops or lunch-and-learns; holding competitions to encourage employees to use the full range of preventive-care benefits and resources; provide a benefit planning ‘office hour’ timeslot when employees can review and consult with HR or a benefits administrator on how to use their benefits more effectively; and more. If you offer any type of a retirement plan, I’ll bet your advisor will be more than glad to talk with your employees. Plus, it’s your fiduciary responsibility to provide this type of training if you offer these programs!
Build a Stronger Culture by Providing Better Benefits
When you’re crafting your benefit strategy, remember that it’s about much more than just attracting and retaining solid employees – it’s about building the right culture in your company. Taking one or more of these steps toward success will empower your team to deliver a stronger, more proactive benefit offering to your current and future employees. And that, in turn, will help prepare your company and its people for a dynamic and successful future.
For more information on how your business can develop and implement effective benefit and employee retention strategies, contact HR Resolutions today for a free initial consultation to discuss how on-site, on-call and as-needed HR outsourcing can work cost-effectively in your business, or call us at 717-652-5187.
Editor’s Note:
At HR Resolutions, we don’t just share great ideas and recommendations with our clients and friends; we implement them ourselves. For example, we’re improving our own 2015 benefits program to include higher salaries to offset the taxable income rule affecting employee insurance purchases; offering new, company co-paid life/disability insurance; and implementing a company car benefit for select employees.
Selected Sources:
Keep Your Best Employees With Better Benefits
http://smallbiztrends.com/2013/08/keep-employees-with-better-benefits.html
Providing Employee Fringe Benefits Can Increase Job Satisfaction and Performance http://www.bizfilings.com/toolkit/sbg/office-hr/managing-the-workplace/fringe-benefits-can-increase-employee-satisfaction.aspx
Voluntary Insurance 101 http://www.aflac.com/insights/articles/voluntary_insurance_101_individuals.aspx
One of the greatest challenges businesses face is to develop an effective process for attracting, recruiting, evaluating and hiring talented employees for the company.
Studies show that the number one problem with most job interviews is that the employer talks too much…often reducing the candidate’s contribution down to a few nods and mumbled statements of agreement.
Hiring managers are often so eager to fill a critical position and so excited about meeting their team’s needs that they forget to actually interview their candidates properly.
This is, of course, a pretty serious problem because it renders the interview process essentially useless. But if you can believe it, there is one thing an interviewer can do that’s actually worse than not asking any questions…and that is asking the wrong questions.
Here are twelve questions that you – and your team – should never ask a job candidate. That means that, even if you know these points and are doing a great job interviewing, you need to ensure that every employee in your company who interviews or meets potential future hires knows that these are all prohibited questions as well.
The ‘dirty dozen’ of prohibited employer interview questions include:
1. Race – Whether the question is blunt and direct (such as “What race are you?”) or perhaps more innocent or indirect (such as “Oh, your skin is so beautiful, are you part black or part Indian?”), any question about race is prohibited.
Note: In very rare instances, a company (such as a modeling agency) may ask applicants to submit a photo or otherwise reveal their race during the hiring process, but in order for this to be legal it must constitute a Bona Fide Occupational Qualification (BFOQ) under the law. Even then, however, it remains illegal for employers to ask job candidates about race or skin color.
2. National Origin – Questions about where a candidate was born, whether or not a person is a U.S. citizen or remarks about language style or accents are all prohibited. Again, the law does not distinguish between direct inquiries and more conversational questions: prohibited is prohibited. The only question you may ask along these lines is whether a candidate is eligible to work in the United States (something you will later verify with an I-9 form).
3. Gender – Potential employers cannot ask questions pertaining to gender, and these can be subtler than you might think. For example, this means that questions asked of male and female candidates must be identical, and that questions about plans regarding marriage and children are also off-limits.
4. Marital, Parental or Family Status – Speaking of marriage and children, this is all strictly off limits as well. Remember the old days when people actually specified their marital status on resumes? Those days are gone. Not only can you not ask about marital status, but you can’t ask questions that would likely reveal marital status (such as “Oh, what’s your maiden name? I think I might know your family.”, “Is that your wedding ring?”, “What a beautiful engagement ring! When are you tying the knot?” or “Oh, are you divorced?”.
5. Age – Questions about a candidate’s age are not only prohibited, but they get their own law too. The Age Discrimination in Employment Act (ADEA) protects persons over the age of 40 who work in companies with more than 20 employees, specifically from any form of age discrimination. And ADEA is often further backed by state laws that extend those protections. Like marital status, age cannot be targeted directly or via indirect questions (such as “When did you graduate from high school?” or “What class were you at the state university?”).
6. Disability – Not only must questions about disabilities be avoided, but the law (specifically the Americans with Disabilities Act as Amended or ADAA) also requires employers to provide reasonable accommodation for employees who have disabilities. There are lots of questions here that are red flags. Think of questions such as “How often were you out sick at your last employer?” or “When was the last time you filed for worker’s compensation?” Also, any questions about medical history, prescription medications or family medical issues are also strictly off-limits.
7. Religion – You’d think this one would be obvious, but alas it is not always that clear to people. Again, it can pop up in indirect but illegal questions such as “Oh, do you go Saint Mark’s in downtown? I think I may have seen you there recently.” or “Does your family observe Rosh Hashanah?”
8. Arrests – Not everyone understands how our criminal justice system works, so let’s start with a pretty important distinction: An arrest is not the same as a conviction. Until a person is convicted of a crime, they are considered innocent until proven guilty, which means that you cannot ask a job candidate about their arrest record. Employers in some cases will include a question about felony convictions on a job application, but while the law allows this to be identified, the EEOC requires employers to weigh a number of factors when considering a candidate, and not reject a candidate on the basis of criminal history alone.
9. Birthplace – While we’ve been on the topic of not prying into a candidate’s personal life, where they were born is also one of those things not to delve into. Don’t go and ask them what hospital they were delivered in, or what town they hail from – it’s not legal.
10. Military Service – Naturally, if you are considering a military veteran for a position, you will probably be aware of that status. However, you may not ask questions about the nature of a person’s military discharge (i.e. whether or not it was honorable or dishonorable). You may, however, ask about ranks achieved, skills acquired, etc. — job-related inquiries about the work itself.
11. Personal Finances – This is dangerous territory on many levels. Discussing a candidate’s personal finances is not appropriate and usually illegal. In addition, there is a movement underway to further restrict employer use of this kind of information. Questions that are clearly off-limits include those regarding home ownership, bankruptcy, wage garnishments, etc. Employers may (in most states and jurisdictions) perform a candidate credit check, but only where good credit is a directly applicable requirement for the position.
12. Organizational Affiliations – This is a broad category that indirectly covers many of the issues we’ve already addressed. For example, you cannot ask questions that may reveal associations the candidate has with a political party, social cause, church or religious group, or union or organizing effort.
And three more just for good measure…
13. Height or Weight – Personal details associated with a candidate’s physical stature or health are not permissible and are to be avoided at all costs. Don’t, for example, ask a candidate questions such as “Oh, have you ever tried Jenny Craig?” or “My cousin has diabetes too – do you want me to introduce you to her?”
14. Social Media Passwords – Don’t even think of asking candidates for their social media passwords. Certainly, what a person shares publicly online is one thing, but courts are increasingly cracking down on prospective employers demanding (or even asking nicely for) access to candidates’ social media accounts.
15. Sexual Orientation – Some jurisdictions have laws specifically prohibiting employment discrimination on the basis of sexual orientation, and some do not. However, the EEOC recognizes many forms of discussion about sexual orientation as forms of gender bias. Put another way, regardless of the law in your locality, asking questions or implying preferences over sexual orientation is a good way to run into legal trouble, either with the government or through a lawsuit. Just like all questions about gender, health and personal status, these should remain strictly off the table.
As you can see, there are a lot of ways to get into trouble when interviewing a potential job candidate.
Remember, a little small talk to break the ice when you start an interview is a sensible thing. But beyond that, you need to keep the interview on-task and on-point.
Prepare a list of key questions ahead of time and run the meeting with those presented clearly, in order. Listen more than you talk. Take notes. Observe social cues.
And stay away from these illegal topics or you’ll find yourself practicing a dangerous form of Accidental HR in no time.
For more information on how your business can properly and legally implement effective recruiting and candidate interviewing procedures for new job candidates, contact HR Resolutions today for a free initial consultation to discuss how on-site, on-call and as-needed HR outsourcing can work cost-effectively in your business, or call us at 717-652-5187.
Article Sources:
Ten Questions You Should Never be Asked in an Interview
https://www.experience.com/alumnus/article?channel_id=Interviews&source_page=additional_articles&article_id=article_1150295002556
Job Interview Questions You Should NOT Answer (Or Ask)
https://www.linkedin.com/today/post/article/20140403061420-64875646-job-interview-questions-you-shouldn-t-answer-or-ask
Facts about Discrimination Based on Marital Status, Political Affiliation, Status as a Parent, Sexual Orientation, or Transgender (Gender Identity) Status
http://www.eeoc.gov/federal/otherprotections.cfm
Image Credit: quinnanya (Flicker @ Creative Commons)
We’re pleased to announce that Karen Young of HR Resolutions will be the featured speaker for a seminar series presented by Stambaugh Ness, CPAs in November and December 2014. The series will include in-person events in York, Camp Hill, Lancaster and Abbottstown Pennsylvania and will also have an online webinar option as well.
As part of the Passion 4 Payroll Series, Stambaugh Ness is thrilled to once again offer a Payroll Year-End Seminar. The team of Stambaugh Ness and HR Resolutions will help you usher in the new year, confident that your company is compliant and knowledgeable in all aspects of your most valuable corporate asset – your employees.
Topics will include:
– Annual tax changes – Federal, State, Pennsylvania and Maryland, Local
– 1099s
– 941 Deposits
– Year-End
– Wage Garnishments
– Exempt vs. Non-Exempt Worker Classifications
– Defense of Marriage Act (DOMA)
– Affordable Care Act (ACA)
– Employee Handbooks
– Personnel Files
– Workplace Landscapes
– Compensable Time
– HR Risk Management
– How to Handle Employee Terminations
…and much more
For more information or to register, please visit:
http://www.stambaughness.com/events-main-page/2014-payroll-update/
You run a foodservice business – one that is part of a national franchise network whose brand is built on the promise of clean, fresh, tasty food made to-order. Some of your employees decide to begin an organizing effort, in part to protest the lack of paid sick days currently provided to them.
And, as part of that effort, they put up posters implying that maybe, just maybe, the food your business sells to customers could be made by someone who is sick. In fact, the posters even appear inside your restaurant, on a community bulletin board.
Makes you want to fire them, doesn’t it?
Well, if you did – you’d be breaking the law, according to an August 21st ruling by the National Labor Relations Board that forced a Minnesota Jimmy John’s franchisee to rehire the employees he did fire, and potentially face other legal sanctions as well.
The franchising industry often attracts people with accumulated capital and a palpable commitment to building a high-growth business, which is in part why the model is so successful. On the other hand, often times the entrepreneurs who become new franchisees may have had little to no prior experience managing an hourly workforce, and chances are they have no idea how unionization or any other aspect of labor relations works.
Once you begin hiring and managing hourly employees for your business, those employees are protected by the Fair Labor Standards Act (FLSA) and the National Labor Relations Act (NLRA). Many employers think that the latter law only impacts them if employees choose to unionize, or even once a union is voted in. That is not the case. Even non-union employees are protected by provisions of the NLRA.
Your employees have rights as well as responsibilities
If you’re a first-time franchise owner and you’ve never encountered the complexities of American labor law head-on before, just keep in mind that while your business is your business, your employees are not entirely your employees. They have rights and protections afforded to them for good reason, but those protections may at times seem strangely at odds with what you think is clearly in the best interests of the business.
In the Jimmy John’s case, the franchise owner made a clear and compelling argument that the posters his protesting employees distributed (there were, by some accounts, more than 3,000 posters in all) were defamatory and malicious in their intent. In fact, he said that the posters actually threatened the livelihoods of all of the other employees whose jobs would be lost if the business failed due to a false perception of food safety danger created by the posters, in the eyes of the buying public.
It certainly makes sense on the one hand, and chances are no business owner would consider the posters tame or ‘okay’. But the National Labor Relations Board (NLRB) looks at things from the context of the “concerted activity” involved, and asks how the activities of the employees do or do not accord with that intent under the law.
In this case, the NLRB decided that the core statement on the posters (i.e. that employees at the restaurant did not receive paid sick time) was “factually accurate”, and that the actions of the employees demonstrated that they were “motivated by a sincere desire to improve their terms and conditions of employment”.
The Board also found fault with the franchisee because one of his supervisors encouraged some employees to disparage a fellow worker who was pro-union on Facebook.
What does this mean for your business?
Quite simply, it means this: When your employees request, press or demand changes to their labor conditions and they join together to represent themselves or appoint a representative in an organized fashion, you need to know the law and follow it carefully.
The NLRB calls this Protected Concerted Activity, and specifies that “The law we enforce gives employees the right to act together to try to improve their pay and working conditions, with or without a union. If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away.”
What the Jimmy Johns case proves is that the NLRB is fully committed to protecting every employee’s right to concerted activity, and that such activity is protected by a very wide berth.
Managing employees is complicated enough when everyone is generally happy and the morale of your workforce is genuinely positive. But when things begin to get the least bit complicated, many business owners are completely unprepared.
If you’re new to the world of managing an hourly workforce or if your business is beginning to experience changes that could complicate the nature of your employee-management relationships, take the smart step and proactively seek professional assistance – like working with a dedicated, professional human resources consultant who can review and advise on your policies, procedures, benefits and other aspects of your work culture.
Want to learn more about the National Labor Relations Act? You can, by visiting the official website here:
National Labor Relations Act
http://www.nlrb.gov/resources/national-labor-relations-act
For more information on how your business can maintain an effective employment environment in the midst of ever-more-complex federal, state and local laws, contact HR Resolutions today for a free initial consultation to discuss how on-site, on-call and as-needed HR outsourcing can work cost-effectively in your business, or call us at 717-652-5187.
Article Sources:
NLRB judge finds Jimmy Johns franchisee in Minnesota illegally fired employees for protected activity
http://www.nlrb.gov/news-outreach/news-story/nlrb-judge-finds-jimmy-johns-franchisee-minnesota-illegally-fired-employees
NLRB: Jimmy John’s Can’t Fire Workers for Icky Sick-Leave Protest
http://www.businessweek.com/articles/2014-08-25/nlrb-jimmy-johns-cant-fire-workers-for-icky-sick-leave-protest
MN Jimmy John’s Workers Call Foul; Owner Refutes
http://tcbmag.blogs.com/daily_developments/2011/03/mn-jimmy-johns-workers-call-foul-owner-refutes.html
Rights We Protect: Protected Concerted Activity [NLRB]
http://www.nlrb.gov/rights-we-protect/protected-concerted-activity
Image Credit: nateone (Flickr @ Creative Commons)
It’s that back-to-school time of year and for many of us, school always meant the Three R’s, which stood for “Readin’, Ritin’ and ‘Rithmetic”. However, if you’re managing human resources for a company then the Three R’s might actually stand for “Reporting, Regulations and Requirements” instead.
Why? Well, for one thing, it’s time to make sure you’re on top of a number of deadlines and compliance priorities essential to the smooth running of your HR operations. Here are some key reminders you and your team should work on as the fall unfolds:
Don’t Forget Your EIR for the EEOC
The end of this month – September 30th – is the filing deadline for the U.S. Equal Employment Opportunity Commission (EEOC) annual Employer Information Report, also known as the EEO-1. The EEO-1 is a compliance survey report that is required under mandate by federal law, and requires companies to report on employment data by race or ethnicity, gender and job category.
The EEO-1 is required for all companies that are subject to Title VII of the Civil Rights Act of 1964, as amended, with 100 or more employees and those subject to the same law who are under 100 employees but operate as a division or affiliate of another company that has 100 or more employees. Also required to submit the report are federal government prime contractors or first-tier subcontractors who are subject to Executive Order 11246, as amended, with 50 or more employees and a prime contract or first-tier subcontract with a value of $50,000 or more.
There are two ways to file the EEO-1. One is via a paper report, and the other is through the EEOC’s Online Filing System or via electronically transmitted data file. The EEOC strongly encourages online filing, and offers more details on the filing process here:
EEO-1: How to File [U.S. EEOC]
http://www.eeoc.gov/employers/eeo1survey/howtofile.cfm
Address New Veteran and Disabled Requirements in Your AAP
If your organization does business with the federal government or is otherwise implementing an Affirmative Action Plan (AAP) due to affirmative action obligations as defined by EEOC, then be aware that there are significant new requirements impacting your efforts to recruit and retain veterans and disabled persons.
The Office of Federal Contract Compliance Programs (OFCCP) issued two new rules in late 2013 that took effect as of March 2014. The new rules change and widen the affirmative action requirements for covered veterans and disabled persons. These changes primarily impact federal contractors with contracts or subcontracts with a value of greater than $100,000 and/or those with 50 or more employees, although they may also impact companies who provide products or services that are ultimately deployed through federal contracts (such as a manufacturer whose products are used in defense systems, for example).
In the past, applicable employers were required by provisions in the Vietnam Era Veterans Readjustment Assistance Act of 1974 (VEVRAA) and Section 503 of the Rehabilitation Act of 1973 to do two key things: (a) Pursue ‘good-faith’ efforts to recruit and retain covered veterans and persons with disabilities, and (b) encourage them to self-identify as such. Now, a third requirement is added, specifically that employers establish targets for hiring these individuals, collect and retain data pertaining to their efforts to reach those targets, and provide the data for review, analysis and documentation purposes.
The new requirements are in effect today, but for most companies the reporting component becomes significant on the date when their next Affirmative Action Plan (AAP) must be filed, which varies depending upon the employer.
Don’t Be Surprised By Requests from the BLS
Even when you don’t have a requirement that says your company must comply with a law or file a form, the federal Bureau of Labor Statistics (BLS) may still send you a survey. Operating within the U.S. Department of Labor, the BLS is the principle data collection agency for information on the workforce in the United States, and has a major role to play in economic forecasting and labor policy decisions.
In order to provide that information, it collects data from employers. Many of the BLS surveys are designed to compile information from a random sample, which means that – much like jury duty – you just never know when you’re going to get a letter in the mail asking you to participate in the Occupational Employment Statistics (OES) Survey or the Survey of Occupational Injuries and Illnesses.
Generally speaking, the request for your participation is not really a request – it’s a cheerful and nicely-worded requirement. The OES is technically voluntary, although in many states employer participation is mandated by state law and is subject to penalties. The Survey of Occupational Injuries and Illnesses, which is managed by BLS in partnership with the Occupational Safety & Health Administration (OSHA) is indeed always required under federal law.
Remember, if cleanliness is next to godliness, then regular, complete and accurate reports are the keys to compliance heaven. Take time this fall to organize and properly structure your internal data collecting and reporting procedures to ensure that your human resources program is in compliance and up-to-date on all fronts.
For more information on how your business can benefit from leaving the gaps, gremlins and gripes of “Accidental HR” behind, contact HR Resolutions today for a free initial consultation to discuss how on-site, on-call and as-needed HR outsourcing can work cost-effectively in your business, or call us at 717-652-5187.
Article Sources:
EEO-1 Survey [EEOC]
http://www.eeoc.gov/employers/eeo1survey/
EEO-1 Survey: Who Must File [EEOC]
http://www.eeoc.gov/employers/eeo1survey/whomustfile.cfm
Employer Information Report (EEO-1): What You Need to Know
http://alltrustisallin.com/employer-information-report-eeo-1-need-know/
Unpacking OFCCP’s Final Rules for Veterans and Individuals with Disabilities
http://www.cooley.com/unpacking-OFCCPs-final-rules-for-veterans-and-individuals-with-disabilities
Major Changes to Affirmative Action Requirements Effective March 24, 2014
http://www.employerlawreport.com/2013/10/articles/eeo/major-changes-to-affirmative-action-requirements-effective-march-24-2014/
Occupational Employment Statistics (OES) Survey [USDOL]
http://www.bls.gov/respondents/oes/home.htm
Survey of Occupational Injuries and Illnesses (SOII) [USDOL]
http://www.bls.gov/respondents/iif/home.htm
Reporting Fatality, Injury and Illness Information to the Government [OSHA]
https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=12786
When you’re running at full speed and trying not to trip, it’s often the little things that mess you up. And when it comes to human resources, these gremlins are particularly dangerous when you’re practicing “Accidental HR” – the unplanned, unbudgeted and unsupported business of ‘doing’ HR in a catch-as-catch-can manner, buried under a task list of understandably critical priorities like making payroll, getting more customers and generally running your business.
One of the many gremlins you need to be aware of is the classic confusion over employee classification. Every time you hire someone or shift an employee’s professional role, the question comes up: Are they Exempt or Non-Exempt? And for that matter, what exactly do these terms mean? Some business owners resolve this question with nothing more than simple coin toss or less-than-educated guess.
But we want you to stay classy…and compliant when it comes to these things!
Here’s a quick summary on how to better evaluate whether or not an employee is Exempt or Non-Exempt.
First, you need to know that the whole exempt/non-exempt question arose because of a law called the Fair Labor Standards Act (FLSA). Almost all employers are covered by the FLSA. The key question raised by FLSA in this regard is how to treat those employees who exceed 40 hours of work in a given week (i.e. overtime). Exempt” means “exempt from overtime under this law” and Non-Exempt, naturally, means “eligible for overtime”.
The three factors the government has used to develop and apply its rules for classifying Exempt employees have to do with some key factors:
1. How much you pay an employee
2. How you pay that employee
3. The nature of the work performed by the employee.
Do you pay this employee through a salary, or by the hour? Remember that if you pay someone an hourly wage, it must be at least equal to the legally required minimum wage, and you must pay overtime of 1.5 times hourly pay (at a minimum) for any hours worked beyond 40 in each week.
Hourly employees are considered Non-Exempt and are, therefore, entitled to overtime wages. Salaried employees, who are usually serving in management roles (professional, technical, supervisory or executive) or those who are in outside sales positions (usually paid by commission), are generally considered Exempt (although, interestingly, those in inside sales positions are usually Non-Exempt).
Remember, however, that you can’t just take an employee from a 40 hour-per-week hourly position, pay them the same amount in a salary, and suddenly declare them Exempt. It doesn’t work that way. Item #3 above (the nature of the employee’s work) is the absolute most important part!
In fact, if the FLSA does not specifically provide an exemption for the type of position the employee holds, then you may be violating the law regardless of how you compensate the employee. So, if everyone is Non-Exempt unless the law itself says otherwise, then what does the law actually say? The most common exemptions specified in the FLSA include the following:
1. Administrative employees involved primarily in office-related, non-manual work and who exercise discretion and independence of judgment in their work. You must also pay them a certain amount per week in order for this position to qualify as Exempt.
2. Executive employees who are clearly recognized as responsible for management duties and activities, and who regularly direct the work of two or more other employees and possess significant authority. You must also pay them a certain amount per week in order for this position to qualify as Exempt.
3. Computer employees must be directly involved in consulting, testing, designing, developing, documenting, analyzing and managing computer systems or programs. You must also pay them a certain amount per week in order for this position to qualify as Exempt.
4. High-wage employees who make more than $100,000 per year are generally exempt.
5. The ‘learned’ professions are also generally exempt, such as lawyers, doctors, dentists, teachers, architects, engineers, and the clergy. However, it gets complicated quickly because while an accountant or CPA may be exempt, the bookkeeper working next to her or him may not be. Registered nurses (RNs) may be exempt, but licensed practical nurses (LPNs) may not be. A scientist working in a research lab may be exempt, but the research assistant on the same bench may not be. A registered pharmacist (RPh or PharmD) may be exempt, but the pharmacy technician may not be.
6. Creative professionals are usually exempt, but again this may depend on the nature of their work. Those who are directly involved in the invention, creativity, originality and a unique interpretation or analysis may be exempt. However, the increasingly technical nature of much of this work, coupled with downward wage pressures and more ‘assembly-line’ style work conditions, has created some red flags for the FLSA and employers should proceed with caution.
You can certainly get a clear sense of what the government is trying to do. In short, it’s looking to protect the labor rights of those who need protection, while giving somewhat greater latitude to the nature of the work and compensation relationship between employer and employee where the professional or individual is in a more powerful position.
Remember, too, that the Fair Labor Standards Act was originally written into law in 1938 and is regularly amended and updated, as any law written in 1938 would probably need to be. Ask yourself what the world looked like for you in 1938, and you quickly get the point!
By the way – Since the law is regularly updated, amended, revised and reinterpreted, the information above is just that – information and information only. Specifically, it’s information that, while reasonable as a resource for general guidance and to help you gain a better overall understanding of the law, it is not intended or appropriate for use as an official or complete reference for formal business, legal or other purposes.
The IRS and the U.S. Department of Labor can make your life very unpleasant if either or both conclude that you are cheating at the classification game. The best thing to do next is to consult with an HR professional who is regularly updated, fully informed and constantly reviewing how the law is applied to the widest range of scenarios.
In addition, the best way to learn more about the Fair Labor Standards Act is to go on the web and visit it for yourself, right here:
U.S. Department of Labor – FLSA Overview
http://www.dol.gov/whd/flsa/
So remember: Classify conservatively, commit to careful compliance, and stay classy!
For more information on how your business can benefit from leaving the gaps, gremlins and gripes of “Accidental HR” behind, contact HR Resolutions today for a free initial consultation to discuss how on-site, on-call and as-needed HR outsourcing can work cost-effectively in your business, or call us at 717-652-5187 today.
Article Sources:
FLSA Resources by Chamberlain, Kaufman & Jones LLP http://www.flsa.com/coverage.html
What’s the Difference Between Exempt and Nonexempt Workers? (Monster.com)
http://career-advice.monster.com/salary-benefits/salary-information/whats-the-difference-between-exempt/article.aspx
Exempt vs. Non-exempt Employees (HR Hero)
http://topics.hrhero.com/exempt-vs-non-exempt-employees/#
The Difference Between Exempt & Non-Exempt Employees (CPA Practice Advisor) http://www.cpapracticeadvisor.com/blog/11173480/payroll-the-difference-between-exempt-non-exempt-employees
Image Credit: PFJK @ Flickr (Creative Commons)
