Your Employee Matters

PRE-TERMINATION CHECKLIST

(PDF)

Before asking “if I can fire them” review this checklist! (HR That Works Users can access this form in Word format by logging on to the site).

Read this great article, written by Albert J. Weatherhead, that sums up our philosophy in these challenging times.

The National Employer Lawyers Association (NELA) files what they call “amicus” briefs, in which they weigh in on a particular cutting-edge issue. The most recent report identified some of these concerns:

• Maintaining the right to bring class action wage and hour claims.
• Protecting employees for being fired for cooperation with an employer’s internal sexual harassment investigation.
• Obtaining “mixed motive” instructions in Title VII and other cases.
• Fighting a return to work following medical/disability leave requirement that employees be 100% healed (although this might work in a Workers Comp case, it poses significant problems under the ADA).
• Continuing to push glass ceiling arguments, such as those that resulted in the Wal-Mart case. These issues include “tap on the shoulder” promotions, failure to post job openings, too much discretion in compensation policies, gender stereotyping, statistical patterns, and the absence of effective accountability structures to address such disparities.
• Preventing employers from making blanket classifications that employees are exempt from overtime. Instead, employers must make individual analysis of specific employees.
• Reviewing the availability of attorneys fees, punitive damages, and other sanctions and penalties.
• Misclassifying employees as independent contractors for wage and hour, benefit, and other purposes.
• Undermining the arbitration process.

NELA’s 2009 Workplace Heroes include: The person who blew the whistle on the IRS, Lilly Ledbetter — whose case encouraged the passage of the Ledbetter Act so that women can bring fair pay claims, and a union organizer who led a group of workers that locked themselves into a shut-down plant. You can learn more about the NELA agenda at www.nela.org.

After the Supreme Court ruled against Lilly Ledbetter, the Congress got busy passing the Ledbetter Act. With a Democratic majority and president, it was passed into law this year. Section III of the Ledbetter Act amends Title VII as follows:

For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice … Liability may accrue and an aggrieved person may obtain relief as provided in subsection (g)(1) including recovery of back pay for up to two years preceding the filing of the charge …

This means that employers are now subject to a possible two-year exposure for unequal pay claims even when that exposure was generated many years ago. What’s an employer to do?

In a sense, this situation is like finding out you had a wage and hour violation for misclassification of an employee and failure to pay overtime. The only difference is that under the Ledbetter Act the statute of limitations never really expires. Somebody can wait a long time to finally claim that they were treated unfairly and then seek the difference between pay scales of men and women during the past two years as their damages. Employers basically have three choices:

1. Ignore the difference and hope it goes away. Since there’s a “rolling” statute of limitations which starts and expires every day for a two-year period, theoretically the claim of anyone who has worked for you for a while doesn’t expand much.
2. Try to pay a “caught up” rate and hope that the employee doesn’t file a claim.
3. Reimburse the employee for the difference during the past two years.

The court basically said that a woman can go as far back in time to show where the pay disparity started and how it affected her career. As a result, some attorneys are advising clients to save payroll records and compensation decisions forever. Since this is a brand new act, it will be interesting to see how the courts interpret it.

According to the 19th Annual Retirement Confidence Survey published by the Employee Benefit Research Institute (www.ebri.org), a record low 13% of Americans say they’re confident that they have enough money to live comfortably in retirement. The percentage of those feeling confident about retirement has tumbled by half in the past two years.

In light of today’s economic realities, 28% of workers said they expect to retire later, and 72% will be seeking to supplement their income during retirement by working. According to the report, workers are reducing their expenses (81%), changing the way they invest (43%), working more hours or a second job (38%), saving more (25%), and seeking advice from a financial professional (25%).

Savvy employers should be aware of how addressing these needs can impact hiring and retaining a maturing workforce.

Are you planning ahead for what’s coming your way? If you’re a human resource executive, or at least responsible for this role, you should be aware of these trends and have a plan to manage them:

1. An aging workforce – Do you have a plan to keep your current employees well trained so they don’t become dinosaurs? Have you allowed your older employees to act as mentors and to be mentored by younger employees comfortable with technology skills? Have you considered possible phased retirement plans? Or “stepped down” roles within the organization (think Wal-Mart greeters)?
2. An increasingly female workforce – More women than men are coming out of professional schools. Women will continue to demand flexible work schedules so they can perform their nurturing roles at home. Do you have a plan for flexible scheduling? Do you support day care and elder care needs? Have you allowed folks to “job share” or continue to collect benefits while working part-time?
3. Heavier demand for retirement planning – Most Americans do a poor job of planning for their finances and health. Due to the recession, many employees can’t retire as planned. Many more employees won’t be able to retire because they failed to engage in retirement planning. As we grow older, health becomes a greater issue and impacts attendance as well as finances. To what degree have you brought in wellness programs, retirement advice, and so on? I predict that as we move forward, the most that many employers can afford to provide employees in these areas is an education.
4. Continued outsourcing – As business structures continue to evolve, look for more and more outsourcing to PEOs and contingent workers. Remember this adage: If it walks and talks like an employee, it probably is one. You might be responsible for joint employment obligations and misclassifications. If you engage in these relationships, please read the HR That Works Special Reports on Contingent Workers and Independent Contractors.
5. Technological innovation – We’re in a constant battle to keep up with the latest and greatest technology. Many employees are reluctant to learn new technologies; savvy companies will plan for this learning. Just as important, once employees are trained technologically, don’t lose them to a competitor looking for someone with this experience. I remember one head-hunter looking for people trained in SAP telling me that he calendared the date when a company got its SAP contracts and then two or three years later recruited SAP trained employees away from that company.
6. Increasing minority presence in the workplace – Despite the fact we have an African American president and a shrinking percentage of white workers, the number of racial discrimination and harassment claims has grown significantly during the past six months. It’s not just African Americans filing these claims; more Hispanics and Asians will do so as well. White employees who feel that they’ve faced systematic discrimination will go to court, as did the New Haven firefighters who recently won their discrimination case before the US Supreme Court.
7. Growing spirituality – More people are bringing their religion to work. Whether it’s owners or the rank and file, there’s far more discussion of spirituality in today’s workplace. The 60 million or so “cultural creatives” are seeking a deeper significance out of their daily grind. The employer who has a plan for tapping into this need will certainly attract these employees. As an employer, you’ll need to bring greater “meaning” to the workplace, while at the same time, avoiding claims of religious proselytizing or persecution.

These “mega-trends” affect the workforce no matter what business you’re in. The bottom line: Have a plan with goals and action items.

VIDEO SURVEILLANCE POLICY
(PDF)

More and more employers are using video to monitor employee and customer activity. Use this checklist to make sure you get it right.

(HR That Works Users can access this form in Word format by logging on to the site).

The DOL has created an online tool to help determine when you have to pay for “On-Call Time.”

Click here to learn more.

Repetitive Strain Injury (RSI) is the No. 1 occupational health problem in the U.S., resulting in more than $20 billion a year in Workers Compensation costs (according to OSHA), plus another $100 billion in lost productivity, employee turnover, and other expenses (Agency for Health Care Policy and Research).

RSIs develop as a result of repeated exposure to ergonomic risk factors, one of which is the risk associated with the improper set-up of an employee’s workstation. Thousands of people are diagnosed each year with some kind of impairment directly related to poorly designed workstations.

RSIs result from an accumulation of tension and strain in the body. Ergonomics is the practice of adapting a job or the work environment to the person so that they can work without harmful strain or injury. Effective ergonomics reduces discomfort and injuries, while increasing job satisfaction and productivity (University of Washington, Environmental Health & Safety). When bodies are able to perform work that is within their appropriate range-of-motion, less strain is absorbed by the muscular-skeletal system.

Employees operating in an ergonomically correct workstation environment can reduce the possibility of acquiring an RSI. Every component of the workstation – seating, keyboard, monitor, mouse; the reach and range and positioning of all a worker’s “tools of the trade;” how employees sit (or stand) or position themselves while working – is critical to managing the amount of strain imposed on the body on a daily basis (and cumulatively, day after day). Employers can use ergonomic assessment to ensure that employees are working at the proper height, angle, and location in terms of seating, keyboards, monitors, and other office equipment.

Ergonomic assessment should be “Job One” whenever a new employee comes on board, a critical piece of the “how” they will perform essential tasks and whether, over time, they acquire an RSI.

Through solving ergonomic problems, an employer can accomplish the primary goal of RSI prevention, while enhancing the productivity and job satisfaction of individual employees. Effective ergonomic outcomes result from identifying the ergonomic risk factors associated with employees and their specific task-set – and then systematically eliminating or reducing their exposure to the identified risk factors.

There are three approaches to this process:

1. Engineering controls: Physical changes to a job that eliminate or materially reduce the presence of RSI hazards, such as changing, modifying, or redesigning workstations, tools, facilities, equipment, materials, and processes, and work practice controls (changes in the way a job is performed). This includes using good body mechanics and lifting techniques, rotating or varying tasks throughout the day to minimize muscle fatigue, and using tools properly.
2. Administrative controls: Management-controlled work practices and policies designed to reduce exposures to RSI hazards by changing the way work is assigned or scheduled (such as employee rotation, job enlargement, and employer-authorized changes in the pace of work).
3. Ergonomic assessment: Employing such tools as The NIOSH Guide to Manual Lifting, postural assessments, risk factor checklists, task frequency and duration assessments, force/weight measurements, dimension measurements, anthropometry data comparisons, energy demand assessment, body mechanics assessment, and assessment of environmental factors. An ergonomic assessment should include an interview of the employee to obtain information about their position duties, an evaluation of their workstation, and observation of them performing work tasks.

Conclusion

To help prevent RSIs, consider workstation ergonomic assessment and modifications as soon as an employee is hired, especially for computer users or other employees who perform repetitive work. For employees who are already working, changes in workstation set-up or purchase of ergonomic equipment can allow them to continue working and possibly avoid a lost-time, lost-productivity injury. Ergonomic assessments that lead to effective workstation and task-process outcomes can improve workstation “fit,” while increasing employee satisfaction and productivity.

Related Job Accommodation Network (JAN) publications:

Accommodation Ideas for Cumulative Trauma Injuries
Accessible Workstations for Office Settings

For additional resources on ergonomics, visit the JAN Resource Page.

Article courtesy of Linda Yost, M.S., CRC, (JAN Consultant – Motor/Sensory Team)

The governments E-Verify System will become effective on September 8, 2009. Under the new system, all contractors and subcontractors working on federal projects will be required to utilize the E-Verify System to ensure that their employees are eligible to work in the United States. E-Verify is an Internet-data system operated by the DHS in partnership with the Social Security Administration. The system allows employers to electronically verify name, date of birth and social security number, along with immigration information for non-citizens, against federal databases in order to verify the identity and employment eligibility of both citizen and non-citizen hires. To read the FAQs click here.

On a related note, Homeland Security Secretary Janet Napolitano announced on July 8, 2009 that the Obama Administration intends to rescind regulations and procedures for employers that receive employee no-match letters from the Social Security Administration. The no-match rules were originally promulgated in 2007. A federal court, however, issued a temporary injunction blocking enforcement of the no-match rules shortly after they were published. The U.S. Senate has taken issue with Secretary Napolitano’s announcement, approving an amendment that prohibits using federal funds to withdraw the regulation. The amendment was attached to the DHS Appropriations Bill (H.R. 2892) which passed the Senate on July 9, 2009. To learn more, read this PDF document and the www.ice.gov.