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On April 20, 2015, the U.S. Equal Employment Opportunity Commission (EEOC) issued a proposed rule that would amend the regulations and interpretive guidance implementing Title I of the Americans with Disabilities Act (ADA) as they relate to employer wellness programs. The proposed rule amends the ADA regulations to provide guidance on the extent to which employers may use incentives to encourage employees to participate in wellness programs that include disability-related inquiries and/or medical examinations. The EEOC will accept public comments on the proposed rule until June 19, 2015, following which final regulations will be issued.
The EEOC has released a series of 10 questions and answers which outline the issues at hand, define terms involved in the proposed rule, and explain how wellness programs interact with regulations such as the ADA, the Health Insurance Portability and Accountability Act (HIPAA), and other federal nondiscrimination laws.
Employers do not have to comply with the proposed rule at this time; however, until final regulations are formulated, employers should take a careful look at their wellness programs to ensure compliance with the ADA, as many of the requirements set forth in the proposed rule are already requirements under the law.
At this time, employers should not:

• Require employees to participate in a wellness program.
• Deny health insurance to employees who do not participate in a wellness program.
• Take any adverse employment action or retaliate against, interfere with, coerce, or intimidate employees who do not participate in wellness programs or who do not achieve certain health outcomes.

Further, employers should ensure that all employees are equally able to participate in any wellness programs or incentives offered, and that those employees needing reasonable accommodations to participate are offered those accommodations.
ThinkHR will continue to monitor and report on developments in this area.

Don Phin, Esq. is VP of Strategic Business Solutions at ThinkHR, which helps companies resolve urgent workforce issues, mitigate risk and ensure HR compliance. Phin has more than three decades of experience as an HR expert, published author and speaker, and spent 17 years in employment practices litigation. For more information, visit www.ThinkHR.com.

What do employers need to know about the Supreme Court’s pregnancy accommodation decision last week in Young v. United Parcel Service?
So, now federal law requires employers to make reasonable accommodations for pregnancy? 
Yes.
Always?

Not necessarily. There may be legitimate reasons for employers to accommodate some conditions (such as disabilities within the meaning of the Americans with Disabilities Act, or work-related injuries) while not accommodating pregnancy. Maybe.
Did the Supreme Court say anything about what might or might not “fly” from a pregnancy accommodation standpoint?

Very little. We know that inconvenience or expense is not a legitimate reason for an employer to fail to accommodate pregnancy or related conditions. The Supreme Court majority also said that courts could consider (1) whether the employer made accommodations in other types of cases but not pregnancy, and (2) whether the employer had multiple “accommodation” policies while having nothing for pregnancy.
Speaking of the SCOTUS, what was the breakdown on this decision? I assume the liberals were in favor of accommodation and the conservatives were against it.

I hate to use those labels, but I understand what you’re saying. You’re right about the “liberals” — Justice Stephen Breyer wrote the majority opinion, and he was joined by Justices Ruth Bader Ginsburg, Elena Kagan, and Sonya Sotomayor. But Chief Justice John Roberts also joined the majority. And Justice Samuel Alito did not join in the majority opinion, but he separately agreed that the case should be sent back for a determination as to whether Ms. Young should have been accommodated. Both Roberts and Alito were Bush appointees and are viewed as relatively “conservative.”
It’s probably not surprising that Justices Antonin Scalia and Clarence Thomas dissented, but maybe a bit more surprising that Justice Anthony Kennedy – generally seen as a “swing” vote – joined in the dissent. (Kennedy also wrote a separate dissent emphasizing that he was not opposed to pregnancy accommodations as a matter of principle.)
Don’t a lot of states and cities already have laws requiring pregnancy accommodation?

Yes. According to a January 2015 article on the Pew Charitable Trusts website, the following states currently require some form of pregnancy accommodation: Alaska, California, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Louisiana, Maryland, Minnesota, New Jersey, Texas (government employees only), and West Virginia.

Lavender states have pregnancy accommodation laws now. Green states will be considering them this year.
In addition, New York City, Philadelphia, and Central Falls and Providence, Rhode Island, have local laws requiring pregnancy accommodation.
Pregnancy accommodation laws will be considered this year, according to the article, by legislatures in Georgia, Massachusetts, New York, North Carolina, Pennsylvania, Rhode Island, and Wisconsin.

Let’s say, just for the sake of argument, that my company is in Hawaii, a “lavender” state. How does the Supreme Court decision affect us?

First of all, if your company is in Hawaii, then we hate you. (Kidding – we’re just jealous!)

Seriously, if you’re in any jurisdiction that already requires pregnancy accommodation, then comply with your applicable state or local laws. They may provide more protection to pregnant employees than federal law does. If so, then compliance with your state or local law should automatically put you in compliance under the new federal standard. (But make sure that your state or local law really is more pro-accommodation.)
OK, then let’s say my company is in Kansas instead. According to your little map, Kansas doesn’t have a pregnancy accommodation law. What should we do?

Since you don’t have a state or local law that applies, you are governed by federal law — that is, the Young decision and how it may be interpreted by lower federal courts in the future. Based on Justice Alito’s concurrence, you may have an argument that you don’t have to treat pregnant employees the same way that you treat employees with ADA disabilities or employees with work-related conditions. But this is a risky position to take. The Equal Employment Opportunity Commission doesn’t agree with it, and it’s not clear that the SCOTUS majority does, either.

If you prefer not to incur significant legal risk, then you probably ought to assume pregnancy accommodation is required if you make accommodations for any other reasons — including ADA accommodations and accommodations for work-related injuries.
Use the principles you’ve learned in making disability accommodations under the ADA.

Also, and this is important: Be sure to use what you’ve learned in dealing with disability accommodations under the ADA – no need to accommodate at all unless the employee asks for it, or if the need is obvious. If you think there is a need to accommodate, begin the “interactive process” with the employee to figure out what will work best. Presumably, you’ll be able to choose the least expensive, least disruptive alternative that is still effective (in other words, the alternative that lets the employee continue working). Although the legal analysis is different for pregnancy, I doubt that a court will require you to displace another employee, or provide personal equipment, or violate a seniority policy to make a pregnancy accommodation. The same presumably goes for creating a job that doesn’t already exist, although if you “create” light-duty jobs for employees with workplace injuries and if you have to do the same for pregnant employees, then you might have to “create” a job for the pregnant employee even though the ADA would not require that for an employee with a non-work-related disability.
I run a day care facility, and about 75 percent of my employees are young women of childbearing age. We’re covered by federal law, but just barely (25 employees). What am I going to do if I have 3-4 teachers getting pregnant at once, which happens all the time?

That’s tough, but I think your best bet is to try to accommodate. This could include providing a chair or stool so the teacher didn’t have to be on her feet for long periods of time, more frequent breaks, and help with lifting toddlers. You might also have to shift teacher’s aides around so that you don’t have two pregnant women needing accommodation who are assigned to the same classroom. Again, use what you’ve learned in dealing with the ADA.
Didn’t the EEOC issue something on pregnancy accommodation last summer? Did this Supreme Court decision invalidate it?

Yes, and not clear. I’m not convinced that the Young decision will have much of a substantive effect on the EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues, which was issued last July. The majority opinion did criticize the EEOC for making a dramatic change in its prior position on pregnancy discrimination without providing an adequate explanation for the change. It also criticized the EEOC for issuing the Enforcement Guidance after the Supreme Court had agreed to hear the Young case.
But the majority did not appear to criticize the EEOC’s substantive position, which is that employers are required to accommodate pregnancy and related conditions if they make any other accommodations – including ADA accommodations and offering light duty for work-related injuries.
The EEOC will have to update its Enforcement Guidance document in light of the Young decision. We’ll see.
Article courtesy of the Constangy Law Firm by Robin Shea
Don Phin, Esq. is VP of Strategic Business Solutions at ThinkHR, which helps companies resolve urgent workforce issues, mitigate risk and ensure HR compliance. Phin has more than three decades of experience as an HR expert, published author and speaker, and spent 17 years in employment practices litigation. For more information, visit www.ThinkHR.com.

There is much thought being given to what makes people happy at work. This is a response to the overwhelming evidence that most employees feel disengaged from their jobs. It’s hard to feel happy if you’re feeling disengaged.

Work can be stressful. As Joseph Campbell put it: “A life draining affair.” The right stress and it helps you grow. Pass the tipping point and that same stress makes you depressed. One of the greatest antidotes to stress is a good laugh. As Abraham Lincoln stated “were it not for my little jokes, I cannot bear the burdens of this office”.

Finding happiness is not rocket science. It begins with personal choices we make. As Abraham Lincoln stated “people about as happy as they choose to be”. Do you make the conscious decision to be happy while you work? Or do you take yourself too seriously and think happiness is somehow unprofessional? We have all seen people do very stressful jobs where they maintained an engaged attitude. Whether they be policeman, fireman, doctors, lawyers or retail clerks. This is also true for owners, leaders, managers, and supervisors too.

Here’s a list of ways to increase your happiness at work:

1. Put on a happy face. Start the day off with the attitude it will be a happy engaging and fruitful one. As the saying goes “make your day”. We know what it feels like when an employee enters the workforce in less than a happy mood. That energy is infectious and not in a good way. Conversely, if you come to work with a great attitude it will infect those around you and help make everybody’s day.
2. Find what’s motivating about the work you do. No matter what it is. Find the good and it find the meaning in it. At some level all the work we do helps contribute to human well-beingness. Wherein the meaning lies. Understand how your work makes a difference and you too will be motivated by it
3. Find the humor in your work. As Andrew Carnegie stated “there is little success where there is little laughter.”  Drew Tarvin, who has the website Humor that Works, reminds us when engaging in humor ask: is it the right medium, the right audience, and done with the right purpose? If you can pass that test then humor away!
4. Quit complaining. When we run 75 miles an hour we nitpick.. Complain enough and we can become masters of dis-encouragement. In the book Leadership and Self-deception, the authors point out that while our self-talk is we have a good sense of humor and encourage the people around us, our actions are quite the opposite. Ask yourself how many times you have made positive deposits over the last week? How did you show somebody you care?
5. Surround yourself with happy people. This begins in the hiring process. Find out what make people happy about the work they do. Think One CEO I met told me he has every job applicant submit a joke with their resume. He said it’s difficult enough reading dozens of resumes and the humor helps. He also says the request gives great insight into applicants. Those who do not submit a joke can’t follow instruction and won’t be hired. Those who tell inappropriate jokes will not be hired. Asking some to submit a joke gives instant insight into their personality

Don Phin, Esq. is VP of Strategic Business Solutions at ThinkHR, which helps companies resolve urgent workforce issues, mitigate risk and ensure HR compliance. Phin has more than three decades of experience as an HR expert, published author and speaker, and spent 17 years in employment practices litigation. For more information, visit www.ThinkHR.com.

For years, I’ve been in a cat-bird seat understanding human resource risk management. One message I’ve preached to clients and readers is the uninsurable risks in HR dwarf the insurable ones (i.e. employment practices liability claims).

What Companies View as Their Greatest Human Resource Concerns

1. Hiring people you can trust
2. Getting people to produce
3. Retaining good employees
4. Training them to become more productive
5. Team building and motivation
6. Discipline and termination
7. Compliance

One of the challenges we face as HR executives or risk mangers is the “if all you have is a hammer, everything looks like a nail” problem. When I first left my litigation practice after seventeen years, I was out there preaching employers should be deathly afraid of employment practices liability claims. While I may have high marks for my presentations, it wasn’t a motivating subject for business owners who are, by nature, extremely motivated and anything but risk averse. What I finally woke up to is that the greatest risk facing any business owner is this: not growing their business! Every other risk is a distant second, third, fourth, etc.  And when you think about it, the HR risks presented above are arranged in order of the most important factors required to grow a business. Let me touch on each one in more detail.

Hiring- Who you hire is the tipping point in the employment relationship. Most human resource risks can be solved by an effective hiring process, and yet, for the typical small to mid-sized company, hiring is viewed as something to “get done with quickly” and little more. For such firms, hiring becomes a randomized, ad hoc event, rather than a measured, systematic process. There is a wide variance in the effectiveness process among these firms.

What an employer can do:

• Make sure you have a formalized hiring process.
• Take a checklist approach, containing all of the key hiring elements, including: skill testing, personality assessments, extensive background checks, thorough interviewing, pre-hire fit for duty exams, and drug tests.
• Always ask my favorite interview question during the hiring process: “Tell me what felt unfair to you at your previous jobs?”  There is no more powerful and revealing question to ask to avoid a risky hire.
• Find out what strategies and techniques the best companies in your industry are utilizing to attract and hire the most talented employees. Many employers unnecessarily aim at the middle of the pack, instead of trying to adopt or model truly great hiring practices.

Productivity- Now that you’ve hired somebody you can trust, it’s time for them to get busy. In the book 100 Percenters, based on extensive surveys, author Mark Murphy concludes that the typical employee works at just a 72% level. This means that, on average, 28% of every employee’s productivity is literally left on the table—every day. And if you’re trying to grow a business in today’s hyper-competitive environment, that’s a big risk!  This is a classic case of “death by a thousand cuts,” because a person who captures just 72% of their potential productivity level, while clearly not one of a company’s star performers, may still be doing just enough not to raise any red flags. And yet, the person’s far-from-optimal performance level is, over time, slowly draining the company dry.

What an employer can do:

• Conduct a thorough examination of the performance management process. Find out what’s working and what isn’t.  Conduct surveys and focus groups to obtain answers.

• Create standard operating procedures (SOP’S) for all activities, including what is being done and how it is done best. Then, you have something you can continually improve upon, preferably through monthly process improvement meetings.

• Create benchmarks of good performance as they relate to a process or result.

• Rewards results, not activities. Remember: don’t mistake activity for productivity.

Retention/Turnover-Now that you’ve got somebody you can trust, who is highly productive, they are in a position to help grow the business. The last thing you want to do is lose one of these valuable employees. Whether it’s called retention or turnover, it’s really the same thing and it comes back to a question I ask all the time: “If they were to quit, would you be relieved or upset?” If the answer is the former, then it’s time to let him go. If the answer is the latter, then it’s time to redouble your retention efforts.

Turnover can be contagious. When a manager is highly effective, he or she invariably develops similarly capable staff/team members. If you lose this caliber of team leader or manager, you can lose the whole team as well. Similarly, if one of your top sales people leaves, their support staff will typically be out the door soon after.

What does it take to keep great employees? Ask them! Again, conduct surveys and focus groups. I’m not a big fan of anonymous statistical surveys. I’d rather ask people open-ended questions they respond to in writing or on a face-to-face basis, such as: “What’s going well, what could go better, and what would you change if you were in a position to do so?” Remember- it’s the dialogue you’re after.

What an employer can do:

• Analyze the extent to which their current resources are going towards retention efforts. How much are we spending on benefits, wellness, training, continuing education, incentives, bonuses, gifts, etc. and then ask a simple question, “Are these expenditures giving us the best bang for the buck?”
• Many employees leave because of a failed relationship with their manager. But most managers are poorly trained (see below). Get them to management training!
• We have a Retention Program Possibilities spreadsheet which helps analyze retention programs based on the formula of: cost x ease of implementation x impact to help determine where to best spend retention dollars. If you would like a copy, email me at dphin@thinkhr.com.

Training- We work in an information-driven environment.  So it’s little wonder we must learn more to earn more. As Dr. Deming stated when asked about the return on investment (ROI) of training, “You either believe that education has the greatest leverage to it or you don’t.” Chances are, if you’re reading this article, you’re highly educated and well paid. It’s your education that is the most important factor in having gotten you where you are today. While perhaps you may be self-motivated to obtain additional education on your own, sadly, the vast majority of employees do little to educate themselves once they graduate from school. Training is crucial because it addresses directly the three most important needs stated above. When you train people, they become more trustworthy, productive and stay longer as they can see possibilities for career growth. When those three things happen they don’t sure you.

What an employer can do:

• Offer training. Buy books, CD’s, DVDs. Create a company library or training room. Use the ThinkHR Learn program for compliance and leadership training. Send them to night school and industry-related seminars.
• Training is one thing, but implementation of that knowledge is another. “From abstraction to action,” as I say. This is where a company must add additional coaching and follow-up services to make sure people use and implement their training— to get things done.

Playing Team/ Motivation- Let’s call this the “soft stuff.” Team building and motivation have everything to do with the culture of your organization. What standards should you demand? Case-in-point: Zappos is well-known for offering new employees who have completed their initial training program, a $3,000 bonus—to quit! CEO Tony Hsieh realizes that over time, it will cost him less to pay that $3,000 now, than to have somebody working for his company not fully committed to achieving its goals. Given this approach, you can imagine the quality of their team environment. And teamwork and motivation directly drive productivity.

What an employer can do:

• One of the fastest ways to build team cohesion helps team members better understand how they can support each other. An easy to implement and powerful exercise: Find out what are the three most important things the team or team member does every day. Then ask: “How can we support you in doing this better?” When you get the responses add them to your SOP’s and training programs.
• Motivate people towards their needs, not yours. Right out of Maslow 101- survival, security, belonging, ego, self-actualization)
• Show them you care…no matter how you do that.

Discipline and Termination- As mentioned above, I give executives a simple test: “If an employee were to quit, would you be relieved or upset?” Many times they say they’d be relieved. Then, I try to find out why that person is still occupying a seat on the bus. As you can well imagine, their answers are along the lines of:

1. They’ve been with me for a really long time (and I feel a level of indebtedness or know them personally).
2. I don’t know how I’d be able to transfer their knowledge over to a new employee and I don’t know if I can take the hit of their leaving (because we really don’t have well-documented standard operating procedures).
3. I’m concerned they might file some kind of claim against me because they are (fill in the blank)…and no, I haven’t documented their poor performance!

The cost of maintaining a non-performer is enormous. Chances are, they not only fail to do their own jobs capably, but they also suck time and energy out of their more productive co-workers, as well. What I advise employers is this: The longer you keep those folks on the bus, without directly addressing their performance deficiencies, the riskier they get.

What an employer can do:

• Make sure your managers have clearly defined performance expectations. Make sure “the system” is not the problem.
• Demand your managers document substandard performance.
• Put such employees on a performance improvement plan. If they respond positively, fine. But if not, they can allege they weren’t warned or given an opportunity to better. Bottom line: no termination should ever come as a surprise.
• Let poor performers go—sooner rather than later.
• Conduct exit interviews whenever possible. Don’t take no for an answer.

In my experience, when the employee is finally let go, then the owner or manager really learns the truth about him or her. Other employees will say things like, “I’m so glad you let her go because… (you can fill in the gory details).”  Often, a termination removes the cloak that hid things you never previously knew about.

Compliance concerns- Compliance remains a concern of most every organization mainly because HR executives and risk managers have been trained to fear loss. Since this article is about non-insurable risks, I’ll add nothing to this section other than the observation that if you are careful about managing your workforce and follow the recommendations in this article, chances are, you’ll have little or no compliance concerns. Remember this: people who trust each other, don’t sue each other.

Conclusion- The uninsurable risks inherent HR practices, dwarf the insurable ones. There remains an incredible opportunity to help your company or clients to better such practices and grow their bottom line.
Don Phin, Esq. is VP of Strategic Business Solutions at ThinkHR, which helps companies resolve urgent workforce issues, mitigate risk and ensure HR compliance. Phin has more than three decades of experience as an HR expert, published author and speaker, and spent 17 years in employment practices litigation. For more information, visit www.ThinkHR.com.