Your Employee Matters

The genius that happens every day in the offices of the world requires a certain amount of focus. Unfortunately, most offices are awash with both physical and mental distractions that pull our attention away from the task at hand. To help you identify common pitfalls, we’ve zeroed in on the top five productivity killers in the modern age. Better still, we gathered expert advice on ways to block out the noise and get to work.

Social media

Rieva Lesonsky, CEO of GrowBiz Media & com, admits her primary distraction is self-inflicted. “Social media can take me off task, especially Twitter. (I’m addicted.)”

It happens to the best of us. You’re at a lull in your work, and you get that nagging sensation that something amazing might be happening on Facebook. Why not take a quick peek, just to make sure the world’s not passing you by? These brief breaks may seem harmless enough, but making compulsive social media checks during the day can add up to hours a week of lost time.

Instead of checking Facebook or Twitter throughout the day, try scheduling your social media time after lunch and limit it to 15 minutes. Having a special time slot for checking out the latest hijinks of Grumpy Cat will leave the rest of your day free for more productive endeavors. And if you really can’t help trying to scratch that itch, consider blocking your most visited social websites with your browser’s security settings.

A crazy commute

If you live or work in a large city, the morning commute can be an exercise in extreme frustration. What should be a 15-minute drive can turn into an hour or more of unproductive stress during rush hour.

Fortunately, thanks to cloud computing, working remotely is easier than ever. With web-based software and collaboration tools, office workers can get everything done even when they’re miles away from home base. More and more, corporate leaders are warming up to the idea of telecommuting as remote employees report higher productivity and morale. Even if you can’t work remotely all the time, you may be able to slightly shift your work schedule so you’re not traveling at rush hour, or just handle the first hour of your workday from home before you hop in the car.

Loud-mouthed colleagues

Who can’t relate to this scenario: you’re just settling in for some hard-core focus time to bang out a monthly report when the guy in the next cubicle starts in on a high-volume recap of last night’s episode of Game of Thrones—and you haven’t seen it yet (spoiler alert!). Working in an office can be great for collaboration and easy communication, but not so great when you’re doing focused solo work. Diplomatic requests for quiet might buy you a few minutes of peace, but let’s be realistic: some people do not possess an inside voice. Treat yourself to a pair of noise-canceling headphones and crank your favorite background tunes or soothing sounds from a white-noise website like Noisli.

The unfocused workday

You may have a truckload of work, but without a clear plan of attack, you may leave the office that night wondering what you got done and why you spent time on the wrong tasks. Ramon Ray of Smart Hustle Magazine zeroes in on the root of the problem. “Lack of clear understanding and planning. When I’m clear and highly organized, things flow!”

Jeff Marcoux, CMO lead for Worldwide Enterprise Marketing at Microsoft, agrees. “Randomization is the killer of productivity.” To get his house in order, he spends the first 10 minutes of his day making an explicit to-do list, following guidelines set out in this Harvard Business Review article. If you have trouble organizing your tasks, check out a mobile productivity tool like ToDoist or LeanKit.

Email

It’s impossible to avoid in the modern workplace, but email is as much a hindrance as it is a help. Andy Karuza, owner of BrandBuddee, notes, “being ‘too connected’ can be a major productivity killer. This is because task switching wastes lots of time from having to reset your train of thought and pick up where you left off on the previous task.”

Answer emails and social media messages together at the top of the hour. Knock them all out at once and then wrap yourself up again in that Excel spreadsheet you were working on.

Your email inbox forces you to switch focus from your task at hand, wasting precious minutes of your targeted energy. Karuza suggests taking a structured approach. “Answer emails and social media messages together at the top of the hour. Knock them all out at once and then wrap yourself up again in that Excel spreadsheet you were working on.”

You may also be doing work that is better done by a machine. Try to automate some basic email tasks to help you prioritize your inbox so those sprints of replying to email are as efficient as possible.

Whether you’re working from home or at the office, there’s always something there to distract you. Identifying your own biggest distractions is the first step to eliminating them.

Although many women work through their pregnancies without difficulty, some of them with physically demanding jobs or complicated pregnancies might seek accommodation at some point. However, the Americans with Disabilities Act (ADA) does not define pregnancy as a disability or disorder, but as a natural process related to reproduction.

If pregnancy is not a disability, are pregnant women entitled to accommodation? What about women with pregnancy-related impairments? Are they covered by the ADA Does the Pregnancy Discrimination Act (PDA) entitle pregnant women to the accommodations they need to continue working during pregnancy? Are there state laws that entitle pregnant women to accommodation? These are the types of questions are being examined by the National Women’s Law Center (NWLC) and other women’s legal organizations. According to NWLC, both the ADA and the PDA often require reasonable accommodation for pregnancy.

Let’s start with the ADA. The regulations interpreting the ADA Amendments Act (ADAAA) state that pregnancy-related impairments can meet the definition of disability if they substantially limit a major life activity. Pregnant employees with impairments that meet the definition of disability will be entitled to an accommodation under the ADA. Because the ADAAA has broadened the definition of disability to include many temporary and less severe impairments, more workers with pregnancy-related impairments will now qualify for direct coverage.

In addition, the interaction between the PDA and the ADA will often result in a heightened duty to accommodate even pregnant employees who do not meet the ADA’s definition of disability. NWLC argues that the PDA requires employers to treat pregnant women at least as well as other employees with similar limitations in their ability to work. Because the ADA requires employers to accommodate a wider variety of medical conditions, pregnant women will often have similar limitations to people who are entitled to accommodations under the act – which means that they’ll be entitled to accommodations as well. For example, the Equal Employment Opportunity Commission (EEOC) has made it clear that the ADA requires reasonable accommodation of a temporary back injury that leaves an employee unable to lift 20 pounds for a few months. Because pregnant workers must be treated as well as employees with similar work limitations, a worker who has been instructed not to lift weights of more than 20 pounds because of her pregnancy must also be accommodated, according to NWLC.

To ensure that employers’ legal obligations to provide accommodations are unmistakable, the NWLC and a broad coalition of groups from the health, disability, and women’s rights communities are urging Congress to pass the Pregnant Workers Fairness Act (PWFA) – draft legislation which states that pregnant women are entitled to reasonable accommodations that can be provided without undue hardship to an employer. These are the same types of accommodations that are available to people with disabilities under the ADA. In addition, some state laws already give pregnant workers’ rights to workplace accommodations, as described in a recent report by Equal Rights Advocates.

Accommodating pregnant employees is also in the financial interest of employers. The NWLC provides several sound business reasons why employers should accommodate their pregnant employees in the same way that they do for workers with disabilities. Data show that the costs of these accommodations are likely to be minimal, and that providing them will have bottom- line benefits to the employer: including reduced workforce turnover, increased employee satisfaction and productivity, and lower Workers Compensation and other insurance costs.

Despite the legal and financial arguments, some employers are still not accommodating pregnant employees. This is why the EEOC recently identified “accommodating pregnancy-related limitations under the ADAAA and the PDA” as a priority area for its enforcement efforts through 2016.

In an interesting Freakonomics podcast, authors Levitt and Levine discuss whether expensive wines are worth the price. Their conclusion: They are not. Here’s an example of an interesting experiment. Participants were asked to rate two different wines. All they knew was that one was a $10 bottle and one was a $50 bottle of wine, when in fact it was the same $20 bottle. The participants overwhelmingly chose the $50 bottle as having the better taste. Interestingly, some participants asked the testers if it could, in fact, be the same bottle of wine. When told that they’d have to decide for themselves, most of them reached the “logical” conclusion that they had to be different wines because of their different pricing – so they rated the more expensive wine as better.

Here’s the point: We often value things more simply because we pay more for them. If this holds true for wine and cars and dates, then why wouldn’t it be true for employees? Employers have tried to finagle with compensation systems from Day 1. What’s the right mix of compensation to help generate the greatest return on investment of an employee or workforce? Because it’s a mistake to underpay or overpay employees, how do we decide just how much to? Here’s an easy three-part solution:

1. Identify the market rate. What does the “average” employer pay for a certain level of employee? You can learn this by going to the statistics at BLS.gov, your state labor agencies, sites such as Salary.com, or your local employers’ group. You might also have industry-related associations and can hire some competitive intelligence to provide these rates. In my experience and opinion. to pay anything more than 25% above grade is essentially throwing away money. For example, in the fast food industry if $8.50 is the norm, it might make sense to pay $10.50, as In-N-Out Hamburger does in California, or the premium Costco pays its employees. However, it doesn’t make sense to pay even 1% above grade if it’s not going to buy you a more productive employee. Perhaps there are other ways to attract productive employees. You might be able to attract them by being the most outrageous or flexible or cutting-edge workforce.

2. Think team bonuses. When I perform employee surveys at companies, I always ask whether employees prefer incentives based on individual performance, on that of a team, or of the entire company. Over the years, I’ve found that where there’s a great deal of trust, people prefer team-based incentives. If trust is low, they prefer individual incentives. Of course, we trust those people to whom we’re closet. As an owner, if I wanted to help generate trust, I would offer team-based incentives. As the saying goes, “A rising tide floats all boats.” I would recommend a bonus (say 10% of net profits) and then distribute it based on employee’s gross compensation. For example, if one employee makes $50,000 per year and one employee makes $25,000, the person making $50,000 gets twice the bonus. This is a simple formula that avoids a lot of wasted time and energy trying to finagle 2% here, 4% there, etc. If an employee displays outstanding performance, the chances are that they’re in line for a raise or promotion. This is how you manage going forward.

3. Award people immediately on an individual basis when they go the extra mile. According to Barber’s 1001 Proverbs, “The greatest benefit is the one last remembered.” Don’t underestimate the power of: (a) rewarding what you want to reinforce, and (b) doing it immediately. These rewards need not be expensive; they’re as much about acknowledgment as they are about money. Of course, a little bit of cash helps too.

I just finished listening to an interesting podcast by the Freakonomics authors about the risks that gun use presents. For example, they indicated that the odds of a gun causing a person’s death are about 1 in 10,000, while the chances of a backyard swimming pool causing a death are some 100 times greater. Does this mean that we should focus on swimming pool control and forget about gun violence? Although I doubt that anyone would suggest this, it does give food for thought.

For the past dozen years, I’ve been in a catbird seat observing the incident of employment practices liability exposures and lawsuits. My conclusion: Employee Liability Practices Insurance cannot cover the major personnel practice exposures facing businesses. For example, there’s no risk mitigation for making poor hires, fostering low productivity, triggering high turnover, or failing to have workers play like a team. The frequency of such exposures, and their expense, far exceed those associated with employee lawsuits.

Let me share another statistic. In 2012 the U.S. had one of the worst years ever for mass shootings, with approximately 700 fatalities (four times the annual average toll). As you might expect, these sensational and painful cases grabbed plenty of headlines. However, in the same year, roughly 20,000 Americans committed suicide using guns, killing some 11,000 other people in the process – and garnering little, if any, media attention.

The same thing holds true for workplace risk exposures. How many articles are you going to read about the impact of bad hires or productivity left on the table every day? Where’s the drama in that? However, a, juicy lawsuit in which a sexual harassment claimant gets a multi-million dollar verdict will get plenty of press.

Likewise, more than half of the discussions at any HR conference will involve compliance exposures. Meanwhile, the greatest risk to your company’s survival has little or nothing to do with compliance litigation. In my 30 years as an attorney, I’ve seen only a handful of small businesses go under because of employee lawsuits – and hundreds of companies of all sizes go out of business because of poor management practices.

As with the gun/swimming pool example, we need to understand the relative probabilities of the various risks employers face.

None of us need the horror of mass shootings or nasty employee lawsuits. These events make for good press (as they say, “if it bleeds, it leads.”) When we run 75 mph as a society, it’s hard for us to connect without doing so through a mass pity party. The media taps into this social reality on a daily basis with sensational headlines and lead stories, making it all too easy to divert business owners and managers from focusing on significant employment risk management issues.

Food for thought…

Do any of these sentences pop up into your head when you’re arriving at the workplace?

• I really dread coming in here today
• I’m afraid of that __________ today
• I feel tired just walking into this place
• This place is a disaster waiting to happen
• I wish it was Friday
• I wish I was anywhere but here
• I’m ready for the fight because I know I’m right
• I don’t care if they fire me today, they’re going to learn how I feel about it
• I have to get so much done and I don’t know when I’m going to be able to do it.

Guess what? These thoughts pop up in the heads of your employees too. My question is what will you do to turn it around?

Many folks will wallow in a horrible complacency. Others will realize that if it’s going to change, they have to create this change. It’s both an inside and outside job.

Look at your situation like a new employee excited about the opportunity!

Wage claims keep rising. According to the Seyfarth Shaw law firm, there were 7,764 federal lawsuits alleging the failure to pay overtime and other wages in the year ended March 31, 2013 –a record high, up 10% from the previous year.

An article in Corporate Counsel magazine discussing the Seyfarth Shaw report, state that these claims usually fall into one of three categories:

1. Salaried employees who believe they are owed overtime pay
2. Hourly workers who contend that they weren’t paid for all hours worked
3. Restaurant workers who claim that they received no additional pay under the FLSA “tip credit” provision

According to Seyfarth Shaw partner Noah Finkel, DOL investigators have been focusing on hospitals and restaurants. Finkel points out that although these cases have been traditionally filed in California and Florida, states such as New York, Missouri, Georgia, and others are experiencing more and more claims. He and other attorneys suggest that you conduct an audit or assessment of your wage and hour practices.

Here are some additional recommendations:

• If you’re uncertain whether employees are exempt or nonexempt, treat them as if they were nonexempt. They can end up getting paid the same amount at the end of the year as long as you calculate the appropriate wage rate when including overtime payments.

• Use a tool such as the Employee Compliance Survey to find out if there are in fact any concerns about wage payment and follow-up on any “yes” answers.

• Consider the hours worked by employees both before and after work. For example, in a recent case, a warehouse that required all its employees to go through a security search before they left had been required to pay wages for employees going through that screening.

• Know the rest and meal period requirements in your state. Because federal law doesn’t govern this, make sure you that you know your state provisions Check out your BNA State Law Summary on HR That Works.

This question was recently asked of the ThinkHR Hotline team: What benefits must be continued while an employee is on Family and Medical Leave Act (FMLA) leave? What should we do with an employee who is not making his share of the copayments while out on leave?

Their expert answer: Family and Medical Leave Act (FMLA) regulations require that employers continue to provide group health benefits under the same terms and conditions as if the employee was actively at work. There is no requirement under the FMLA to continue other types of benefits offered by the employer. Whether or not an employee’s other benefits continue depend on an employer’s established policy. Any benefits that would be maintained if the employee was on another form of leave should be maintained while the employee is on FMLA leave.

Part of the requirement to continue health insurance benefits “under the same terms” means that both the employer and employee must continue to pay their portions of the group health insurance premium, unless the employer has a different policy for managing premium payments during leaves. The employer is required to notify the employee of the payment requirements while on leave, including the amount of the payment, date due, and where the payment should sent. If the employee fails to pay his or her portion of the premium, the employer may be able to suspend group health benefits for the remainder of the FMLA leave.

In order to suspend benefits for someone on FMLA leave, the employer must allow the employee a 30-day grace period to make payment after the original payment due date. The employee must receive written notice at least 15 days prior to the actual suspension, and the best employer practice is to send a pending suspension notice once the employee is 15 days past the payment date. One important item to note is that even if an employer suspends an employee’s health coverage under these terms, the employer is required to restore coverage without penalty or delay once the employee returns from FMLA leave to a level of coverage that is equal to what the employee had prior to the leave and had not missed premium payments. If the employee does not return from FMLA, the employee whose coverage was suspended for failure to pay premiums during the leave would be eligible for COBRA continuation coverage.

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.

On September 7, 2015, President Obama issued Executive Order (EO) 13706, which requires federal contractors and subcontractors to provide paid sick leave to their employees. The EO applies to contracts entered into after January 1, 2017 that are procurement contracts for services or construction; contracts for services covered by the Service Contract Act (SCA); contracts for concessions; or contracts in connection with federal property or lands and related to offering services for federal employees, their dependents, or the general public. The EO adds to the small patchwork of state and local paid sick leave laws scattered across the nation.

Accrual of Sick Leave

Pursuant to the EO, sick leave accrues at a rate of one hour for every 30 hours worked. Employers may cap accrual at 56 hours (seven days) per year. Unused sick leave will carry over from one year to the next and must be reinstated for employees rehired by a covered contractor within 12 months after a job separation.

Unused accrued sick leave does not have to be paid out upon termination.

Use of Sick Leave

Employees may use paid sick leave:

1. For the employee’s own illness, injury, medical condition, or when an employee needs to obtain diagnosis, care, or preventative care.
2. To care for a child, parent, spouse, domestic partner, or “any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship” who has an illness, injury, medical condition, or who needs to obtain diagnosis, care, or preventative care.
3. For domestic violence, assault, or stalking situations resulting in an illness, injury, or medical condition or the need for obtaining diagnosis, care, or preventative care.
4. To obtain additional counseling, seek relocation, seek assistance from a victim services organization, take related legal action for the employee or one of the above-listed individuals in domestic violence, assault, or stalking situations.

Employers are prohibited from interfering with or discriminating against an employee for taking or attempting to take paid sick leave, or for assisting any other employee in asserting his or her rights to sick leave.

Requests for Leave

Requests for sick leave may be made orally or in writing and must include the expected duration of the leave. If the need for leave is foreseeable, employees must provide at least seven calendar days’ advance notice. If the need for leave is not foreseeable, notice must be provided as soon as practicable. Paid sick leave cannot be made contingent on the requesting employee finding a replacement to cover any work time to be missed.

If an employee is absent for three or more consecutive days on paid sick leave, the contractor is permitted to request a certification from a health care provider (if the absence is related to a medical condition) or from an appropriate individual or organization (if the absence is related to domestic violence, sexual assault, or stalking). The certification must be provided no later than 30 days from the first day of leave.

Going Forward

The EO mandates that the Department of Labor issue regulations concerning the paid sick leave requirements by September 30, 2016. ThinkHR will continue to monitor and report on developments on this issue.

Question: We are currently downsizing as part of our company reorganization and are considering redesignating some of our employees as independent contractors. Are there any potential ramifications for making the change?

Answer: It is possible to change a worker’s status from employee to independent contractor provided that the worker meets the legal requirements of an independent contractor. Whether a worker is an employee or independent contractor is determined through a series of legal tests established by state and federal courts and agencies. For example, for federal tax purposes the IRS uses common law rules to determine whether a worker is an independent contractor. The common law rules examine various facts regarding the degree of direction and control the employer has over the worker and the amount of independence the worker has in regards to performing the work. The more direction and control an employer exerts over the worker, the more likely the worker is an employee. Conversely, the more independent the worker is, the more likely the worker is an independent contractor. It is important to note that there is no single factor that is determinative. The determination is based upon the totality of the circumstances.

While there are other tests at both the state and federal levels, most of them look at the same factors contained in the common law rules and focus on the amount of direction and control the employer has over the worker. The major difference is how many factors the court or agency looks at and how much weight is given to particular factors. For comparison, consider the factors used in the economic realities test, which is used by federal courts and the U.S. Department of Labor (DOL) to determine whether a worker is an employee or independent contractor under the federal Fair Labor Standards Act (FLSA).

Employee misclassification is one of the top enforcement issues for the U.S. DOL’s Wage and Hour Division (WHD). This is because under state and federal laws employees are provided protections and benefits that are not provided to independent contractors, such as minimum wage, overtime, family and medical leave, discrimination and harassment protections, unemployment insurance, workers’ compensation, and medical coverage. By misclassifying an employee, the employee is denied access to benefits and protections to which he or she is entitled. In addition, the employer avoids withholding income tax and paying into programs such as Social Security, Medicare, unemployment insurance, and workers’ compensation.

While making sure employees are properly classified can be a huge task, the consequences for misclassifying an employee can be devastating. If the WHD/IRS perform an investigation or audit of an employer, they will examine all employees and independent contractors for a three-year period.

The ramifications for an employer can vary depending on whether or not the WHD and the IRS determine the misclassification was unintentional or intentional, or even fraudulent. With respect to the FLSA, penalties include liquidated damages (i.e., double back wages) and attorneys’ fees and court costs. In regards to federal taxes, if the misclassification was unintentional, the employer faces at least the following penalties based on the fact that all payments to misclassified independent contractors have been reclassified as wages:

• $50 for each Form W-2 that the employer failed to file because of classifying workers as an independent contractor.
• Since the employer failed to withhold income taxes, it faces penalties of 1.5 percent of the wages, plus 40 percent of the FICA taxes (Social Security and Medicare) that were not withheld from the employee, and 100 percent of the matching FICA taxes the employer should have paid. Interest is also accrued on these penalties daily from the date they should have been deposited.
• A failure to pay taxes penalty equal to 0.5 percent of the unpaid tax liability for each month, up to 25 percent of the total tax liability.
• $50 for each failure to obtain a Social Security number.

If the IRS suspects fraud or intentional misconduct, it can impose additional fines and penalties. For instance, the employer could be subject to penalties that include 20 percent of all of the wages paid, plus 100 percent of the FICA taxes — both the employee’s and employer’s share. Criminal penalties of up to $1,000 per misclassified worker and one year in prison can be imposed as well. In addition, the person responsible for withholding taxes could also be held personally liable for any uncollected tax.

Not to be forgotten, employers may also face tax and other penalties under state laws. For example, in California these penalties include repayment of back payroll taxes, subject to interest and a 10 percent penalty on the unpaid taxes. Failure to withhold and pay payroll taxes can also result in a misdemeanor charge, and the employer can be fined up to $1,000 or sentenced to jail for up to one year, or both. Additionally, Cal. Labor Code § 226.8 imposes penalties of up to $25,000 on employers who misclassify employees.

While employers may choose to navigate the various tests on their own, due to the severity of penalties for misclassification, employers are strongly encouraged to seek counsel when uncertain about the status of certain employees.

People with graduate degrees earn more over their lifetime than people without advanced degrees. Grad school is expensive, though, financially and personally. You have to know if the cost is worthwhile to your career before you enroll.

Consider the Course Expenses

Most graduate schools charge a fee per credit hour, and books can cost thousands of dollars a year. Compare the cost of several traditional and online programs as you calculate the exact expense of grad school. College Scorecard is one helpful website that details the average annual cost of different schools, the average post-graduation salary and loan and debt information.

Find financial aid, too. A variety of options, including free grants, loans and scholarships, exist to help students afford grad school.  Ask your employer about tuition reimbursement, too.

Investigate the Cost of Living

Whether you choose an online or traditional grad school program, your cost of living will change. Consider how it will affect expenses related to your:

• Room and board
• Transportation
• Salary and benefits, including insurance
• Childcare if you have children

Remember that you can always create a budget and get aggressive about repaying debt, cut as many expenses as possible and set up an automatic savings account as you afford grad school. You may even consider taking on overtime hours or a part-time job as a way to boost your savings.

Understand the Grad School Lifestyle

Enrolling in grad school will change your lifestyle since you’ll spend more time studying and have less free time to pursue social and personal interests. You may also need to cut back on work hours. Be honest about your commitment level since grad school will cause significant lifestyle changes.

Calculate Your Future Income

One purpose of grad school is to provide you with more income. Use Payscale.com or Salary.com to look up the average salary of someone with your degree and get a picture of your future income potential.

Determine if You’ll Recoup Your Expenses

With your projected college expenses and future salary, calculate how long it will take you to recoup your grad school expenses. Use the Repayment Estimator provided by the Department of Education as you understand details about your post-grad school finances.

Explore Grad School Alternatives

After doing the research, you may decide that grad school isn’t for you. That’s okay because you can improve your skills and expand your resume when you:

• Take free or inexpensive online courses
• Ask your boss to cross-train you
• Audit local college courses
• Take a part-time position in a different field

Grad school can be a wonderful investment in your career. Consider these factors as you decide if it’s worth the cost for you.