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Category Archives: Compliance

Stay Calm & Carry On: Tips for Dealing with Workplace Disputes

You say this, they say that. You think something is obvious, but your employees seem to think otherwise. One of the great challenges in dealing with workplace disputes is that, as the business owner or manager, 99% of issues that arise appear to be cut-and-dried as far as you’re concerned. You tell employees to be on time. You ask them to be courteous to customers. You require them to report certain things accurately and consistently. This should be straightforward, right?

And yet, these assumptions – now matter how justified you may feel (or be) in having them – set the wrong foot forward, because they immediately make any situation that arises into an oppositional dispute that can rapidly escalate out of control.

Remember, the goal in dealing with any workplace problem is to do what is best for the business — not what feels best for the business owner. Here are five tips you can keep in mind the next time you confront an unexpected situation with your employees:

1. Don’t get upset. No, really. Don’t get upset.

It’s so easy to take affront (especially when you’re caught off-guard) that you often don’t realize you’ve already acted in error until it’s too late. Your routinely late and on-the-verge-of-being-fired employee comes in one day and files for a disability claim. Ten seconds later, your pulse is racing, your blood pressure is 1,000 over 500, and you’re about to explode.

Don’t. In fact, if you must, just leave and take a walk (not a drive – we don’t want you driving angry!). Take a breather and take a step back. The only correct response when these situations arise and you’re about to lose your cool is to tell the employee that they need to document their concern or issue in writing, and hand it in formally for review. Conversation over. That’s it.

2. Less is more. So say less. Much less.

While we’re on the topic, this is NOT the time to unload. “Well, Frank, it’s pretty convenient that you’re filing for disability now that you’ve been late twenty days in a row, isn’t it?” would be the wrong response. The right response is none at all. Again, don’t say anything.

Remember, you don’t have to say anything! You’re being notified of a situation, so take the notification and put it somewhere (like on your desk). Then let it sit until you’re ready to review it — with your HR director, in the conference room, with all related documents and procedures in front of you.

3. Follow the law. Don’t assume that you are the law.

One thing we discuss regularly on this blog is that, while you have many rights as an employer, your rights can be quickly curbed when you least expect it. Employees may be able to use office email to organize, they might be able to put up posters in your break room about their grievances, and they might even be able to claim that the blue sky is currently red instead. To you, it’s all nonsense — the sky is blue, the business is yours, they are just lucky to have a job, etc. etc. etc.

That’s exactly the situation when employers assume they “have the law on their side” without knowing if they really do. Remember, the law can be on your side one moment and then, as soon as you do something out of anger, that same law can run away, hand a victory to a disgruntled employee, and leave you in the dust (or worse).

The best way to know if the law is on your side is to speak with the professionals who will know – your HR director or consultant, and your attorney. Don’t do anything they don’t advise you to do. Your job is to follow the law, not try to take it into your own hands.

4. Don’t discuss an issue publicly, in person or online.

Don’t. Discuss. It. Trust us, you’ll start doing so without even realizing it, because when we’re angry our frustrations tend to squeeze out of every corner in our minds and mouths. That’s why you need to be aware of this up-front and place yourself under a self-imposed gag order.

Don’t discuss it means don’t discuss it directly with employees (including other managers, if doing so doesn’t apply to following your written procedures). It also means not inferring it or implying it, no matter how indirectly. It means zero, and we mean zero, disparaging remarks or innuendos. It means no social media postings – and no blog articles! It also means no discussion or venting with your CEO peer group (like Vistage), either.

5. Let the documents drive the process.

A well-managed HR operation is properly prepared for any situation that may arise because it has two kinds of documents in-hand and updated at all times. One kind is your policies and procedures, which will dictate how the process of responding to the situation which has arisen should go. And the other kind is the employee-specific documents such as a personnel file, time cards, hiring forms, etc. which provide a clear and unambiguous record upon which to build your response.

Bottom Line: The goal in dealing with any employee dispute is to protect the business, not burst a blood vessel. Let your well-formulated processes and procedures, backed by complete and accurate documentation, guide the response to any situation that arises. Then, take yourself personally out of the middle so that the frustrations can subside and you see the situation objectively, rather than personally and emotionally. Finally, before doing anything, consult with your HR professional and business attorney for proper counsel.

Selected Sources:

10 Tips for Dealing with Workplace Problems
http://www.arlnow.com/2015/02/09/legal-insider-10-tips-for-dealing-with-workplace-problems/

Grievance Procedures and Internal Dispute Resolution
https://www.nonprofitrisk.org/library/articles/employment01002000.shtml

Resolving Employment Disputes
http://corporate.findlaw.com/human-resources/resolving-employment-disputes.html

Image Credit: kurtb (Flickr @ Creative Commons)

Flaps Over Files: Employees and Access to Personnel Files

Personnel files. They’re sort of like school grades and medical records – everyone knows they’re important and that they contain private information, but no one’s really sure who can see them, or when. Considering that personnel files are one of the most critical assets your company maintains, it’s important to take a moment on this question so you know what to do.

The most common situation that raises questions is when an employee asks to see, review or obtain a copy of her or his personnel files. Do they have a right to this information? The answer is…it depends.

In Virginia, current law does not give employees the right to review or obtain a copy of their personnel files. However, in Pennsylvania, the state’s Personnel File Act does give employees the right to view their personnel files and take notes, within certain boundaries.

For one, Pennsylvania employees are not allowed to make copies of the files or their contents. In addition, employers are only obligated to provide access to an employee once per year, at a mutually convenient time, i.e. “during the regular business hours of the office where these records are usually and ordinarily maintained, when sufficient time is available during the course of a regular business day, to inspect the personnel files in question”.

Employers may also require requesting employees to use their own free time (i.e. not paid time) to perform the viewing session, and employers may opt to require employees to request permission writing and explain what they want to see and why.

By the way, we should take a moment and note what is and is not in a personnel file, according to the law. A “personnel file” under the statute does *not* contain:

– Records pertaining to any criminal investigation
– Letters of reference
– Documents relating to civil, criminal or grievance procedures
– Medical records
– Information available separately through the FCRA

Finally, it’s important to note that employees may not remove the personnel file from the employer’s offices.

Also… if you are a federal government contractor or if your entity is a local, county, state or federal agency, different (or additional) rules may apply. This is also true if your employees are represented by a collective bargaining agreement with additional applicable provisions negotiated into the labor contract.

There is another reason why knowing the law is important – and that’s that you should take this opportunity to make sure your personnel records are actually in existence…and are being properly maintained. An incomplete, inaccurate or woefully disorganized personnel file could trigger unexpected litigation, so keeping your records in order is of paramount importance.

Bottom Line:

Know the laws for each state in which your business operates, and consider establishing a uniform policy that meets all applicable requirements. Then, ensure that your employee records and personnel files are accurately maintained and fully compliant.

Note: This article discusses laws and requirements that vary by state and jurisdiction. Interpretations and recommendations presented as general suggestions only, are based upon HR best practices and do not constitute legal advice. Consult with a professional human resources advisor and/or your attorney for applicable recommendations specific to your business.

Selected Sources:

Pennsylvania Personnel File Act (Inspection of Employment Records Law)
http://www.portal.state.pa.us/portal/server.pt?open=514&objID=552987&mode=2

Can PA employees access their personnel files upon request?
http://www.theemployerhandbook.com/2011/04/can-pa-employees-access-their.html

Employee Rights Under the Personnel Files Act
http://www.wolfbaldwin.com/Employment-Articles/Employee-Rights-under-the-Personnel-Files-Act.shtml

Are Employees Entitled to their Personnel Files in Virginia?
http://www.arlnow.com/2015/02/23/legal-insider-are-employees-entitled-to-their-personnel-files/

Image Credit: stopnlook (Flickr @ Creative Commons)

Not So Sweet: Subcontractor Employees May Still Be Your Responsibility

You’ve built a first-class company with state-of-the-art operations, a global reputation for environmental stewardship and an enviable supply chain that is the toast of your industry. You also possess a brand worth billions based on smiles and good times, all rooted in an historic ‘company town’ that is a tourist destination in its own right. What could possibly go wrong?

Well, if you’re the Hershey Company, quite a lot. Like many companies that produce and distribute consumer products and goods on a global basis, Hershey operates a vertically distributed supply chain.

That means, for example, that the company’s massive “Eastern Distribution Center III”, a state-of-the-art warehouse facility located in Palmyra, Pennsylvania, is actually operated under contract to a third-party logistics (3PL) that manages the facility on Hershey’s behalf. In turn, the 3PL provider hires a small army of staffing companies to provide workers in the facility, some of whom in turn rely on yet other staffing services, recruiters and the like to deliver the workforce.

When all is said and done, it is entirely understandable that a “Hershey warehouse” which contains only Hershey products, receives deliveries only from Hershey trucks and ships out products just for Hershey customers, nonetheless has nothing, legally speaking, to do with Hershey the company.

In 2011, this highly efficient and yet byzantine business model created an unexpected consequence when it came to light that a sub-sub-sub-contractor had recruited international students through a U.S. State Department cultural exchange program. Furthermore, many of the students paid hefty fees (often ranging from $3,500 to $6,000 or more) to participate in the program, secure the necessary J-1 visa, and come to the U.S. Then, upon arrival for their intercultural business experience at a major American company, they found themselves instead operating as warehouse laborers performing physically demanding – and sometimes dangerous – tasks at the “Hershey-but-not-Hershey” facility.

Muddying the waters in the case was the fact that the students were paying exorbitant rents on top of the extensive fees and, in the end, often actually pocketed less than minimum wage on an hourly basis, once all ‘required’ costs paid to the exchange program management company were taken into account.

Once the situation came to light, matters started to take a turn for the worse. Initially, Hershey representatives said that they had little to no input in the matter – after all, the workers didn’t work for Hershey. That…didn’t quite fly.

So, the students staged a walkout protest, negatively impacting Hershey’s distribution operations. And the irony of students from countries such as China and former Soviet republics claiming that they were being exploited as “slave labor” in the supposedly ‘free’ United States marketplace was not lost on the media or the public.

As we alluded to earlier, the legal arrangement technically involved Hershey contracting the operations of the distribution center to a 3PL provider, which in turn subcontracted labor management to a regional staffing company, who in turn subcontracted recruiting and contracting of the workers to the organization that recruited the students in the first place.

The U.S. Department of Labor, the Occupational Health & Safety Administration (OSHA) and the State Department all stepped in and investigated the situation, with the major fallout being that the federal government required the various companies to pay more than $213,000 in back wages, $283,000 in OSHA penalties and $143,000 in labor penalties while also coordinating to solve a number of additional violations and grievances.

The civil penalties were assessed to the 3PL company, even though that company’s officials claimed quite understandably that they were not directly involved in or aware of the issues at hand. Nonetheless, the federal rulings also required the 3PL firm to make fundamental operating changes across its entire network of 500 distribution centers nationwide, and the company shared the cost of the employees’ back wages with the other two companies involved. Ultimately, the federal government fined every company that was a party to the process – except Hershey.

Hershey stayed relatively removed from the issue for as long as it could, but the company did negotiate to provide paid leave to the student workers and agreed to host them for a ‘business and cultural exchange’ for one day. While Hershey did remain legally isolated from the federal investigations and their direct impacts, the long arm of the law came much closer to the company than most analysts had predicted, considering that every other company involved ended up directly susceptible to multiple federal legal actions.

The reputational impact of the matter ended up causing bigger headaches for Hershey as well, since the “slave labor” claims taking place in bucolic Central Pennsylvania ended up dredging up longstanding concerns that the company’s suppliers use child labor in the harvest of cocoa used to make Hershey’s chocolates, thus fueling a renewed global labor rights campaign against the company to boot.

Bottom Line: Subcontracting services to other companies only goes so far to insulate your business from responsibility for employment-related wrongdoing. This case also proved that small businesses serving much bigger companies can also become caught up in a ‘dragnet’ disaster when things go wrong around them. The moral of the story is simple: When in doubt, find out. You need to know what’s going on in the workplaces your company is connected to, regardless of whose name appears on the employees’ paychecks.

Selected Sources:

Foreign students protest slave labor at Hershey’s
http://rt.com/usa/students-protest-exchange-hersheys/

Foreign Students in Work Visa Program Stage Walkout at Plant
http://www.nytimes.com/2011/08/18/us/18immig.html?pagewanted=all&_r=0

Pleas Unheeded as Students’ U.S. Jobs Soured
http://www.nytimes.com/2011/10/17/us/hershey-foreign-exchange-students-pleas-were-ignored.html

Feds say they will collect back wages for foreign students who claimed exploitation at Hershey warehouse
http://www.pennlive.com/midstate/index.ssf/2012/11/hershey_fines_international_st.html

Hershey Warehouse Working Conditions Questioned As Foreign Students Protest
http://www.huffingtonpost.com/2011/08/18/hershey-foreign-students-protest_n_930437.html

OSHA Cites Hershey Co. and SHS Staffing Solutions with Workplace Safety and Health Violations
http://employmentlawgroupblog.com/osha-cites-hershey-co-and-shs-staffing-solutions-with-workplace-safety-and-health-violations-following-complaints-made-by-foreign-students-for-exploitive-and-unsafe-working-conditions/

Hershey’s Packer Is Fined Over Its Safety Violations
http://www.nytimes.com/2012/02/22/us/hersheys-packer-fined-by-labor-department-for-safety-violations.html

Photo Credit: thatedeguy @ Flickr (Creative Commons)

10 (or 11) Things You Need to Do Now for Successful Year-End HR and Payroll Planning

It’s that time of year again. A time for hot cocoa, family gatherings, warm fireplaces, tacky sweaters, and of course, shopping! It’s also time for those of us in the HR and payroll fields to double-shot our espressos and buy a much larger coffee mug, because while everyone else is celebrating the holidays, we’re preparing for…year-end!

So, what are some of the key priorities you should be planning for as you stare the last six weeks of 2014 down? Here are some top suggestions:

1. Let’s start with the basics. You can’t communicate with your employees effectively if you don’t have their addresses correct. Seriously, when is the last time you updated your employee address records? Maybe it’s time to send a reminder out and ask people to update their records or confirm that you have the correct information.

2. Now that you have the addresses right, it’s time to use them. After all, there are new tax tables; new 2015 W-4 forms applicable if an employee has a major life change such as a marriage, birth of a child, new home purchase, etc.; and so forth.

3. Make sure everyone is clear on how W-2s work, and especially that Box 1 is for Taxable Wages, not Gross Wages. Of course, that means you should explain that Taxable Wages = Gross Wages minus 401K, health, etc. Also, tell your employees that W-2s will be postmarked no later than January 31st but that the exact date is not known (your payroll people will thank you later for pre-empting the normal round of a thousand “When will we get our W-2s?” questions).

4. Since we’re on the topic of W-2s, don’t forget to make sure that Box 3 is not greater than $117,000 and if Box 5 is $200,000 or more, that the Medicare tax taken is 2.35% for any amount $200,000 or more (and 1.45% for any amount less than the $200,000). Also, verify your Box 1 (Taxable Wages) and verify state and local wages.

5. Remember that we’re in Pennsylvania, the state with 2,562 municipalities and 3,195 different entities with the power to levy taxes on your employees. With that many options to choose from, it’s all the more important for you to verify that your local information is properly designated with the correct 2 digit PSD code for each applicable tax collection district. Now is the time to double-check this, while you still have time to make corrections – and while you still have payrolls left in 2014.

6. Get those fringe benefit reports ready and execute them over a range of final payrolls of 2014. This has the advantage of stretching the tax hit over several pays rather than just one or two. This is for things like your Group Term Life policy (the premium on insurance over $50,000), auto fringe, shareholders insurance, etc.

7. Then there are vacations and PTO days. What is your carry-over policy, and do you have accurate records from your department heads and front-line supervisors so that you can count carry-over days for 2015 correctly?

8. Have employees used the funds in their Flexible Spending Accounts (FSAs)? Remember, under changes approved as part of the Affordable Care Act, employees may carry over up to $500 into 2015 if you have modified your plan documents, but that still means that if they have $1,000 in the account, they lose $500. Instead of inciting a riot, send a reminder!

9. If your company will be providing holiday bonuses, now is the time to get those numbers ready for payroll. Do not show up a day before the final payroll run of the year with a laundry list of surprises.

10. So you’re going to hold a holiday party. Great! What are the expectations and limits? Make sure to communicate clearly and don’t set an accidental precedent. For example, if you want the event to be alcohol-free, make that clear. If not, remind employees that responsible conduct is expected at all times. The point is, a firm reminder now is much better than a major regret later.

11. And last but not least, don’t forget to update your new tax tables for Social Security rates, unemployment rates and thresholds, and more – all prior to processing the first pay date of 2015. Happy New Year! Is a list of ten things just not enough for you?

Are you wondering what the other 89 items should be on your 100-point year-end planning calendar? Do you love details more than decorations, and is your idea of a great holiday knowing that your employee records are accurate and your documentation is near-perfect?

Then please join Karen Young, SPHR of HR Resolutions and Tricia Richardson, CPP, SPHR of Stambaugh Ness for a series of FREE seminars being held throughout Central Pennsylvania in November and December 2014. Learn more and register here today:

2014 Year-End Payroll Seminar Series – York | Camp Hill | Lancaster | Hanover
http://www.stambaughness.com/events-main-page/2014-payroll-update/

Photo Credit: evilerin @ Flickr (Creative Commons)

What Employers Should Know About ‘Ban-the-Box’ Laws

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.

Say It Ain’t So: Know What Not to Ask Your Next Future Hire (Accidental HR)

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)

Know Your Rights…and Theirs: What One Jimmy John’s Franchisee Learned the Hard Way About HR (Accidental HR)

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)

Reporting, Regulations & Requirements: Essential Reminders for Your HR Team (Did You Know?)

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

Image Credit: USACEHQ (Flickr @ Creative Commons)

Classify Correctly and Stay Classy: Exempt vs. Non-Exempt Employees (Accidental HR)

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!

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)