The Complete Guide to HR Management

Facilitator: Lisa Smith

3/10/2015

3/10/2015

3/10/2015

If you wanna’ catch the Smart Fish,

you’ve gotta’ use the Smart Bait!

What are your challenges?

Legislative NewsSexual Orientation Protected by SCOTUS/EEOCDiscrimination: The Protected Classes **

‘Spouse’ redefined for FMLA

FMLA Notice Decisions – Email, Snail Mail?Family Medical Leave Act

State Parental Leave Movement

Ban the Box signed for ‘State of GA’ applicants

3

Background Checks

Employment Law Hot SpotsLily Ledbetter Fair Pay Act 2009◦ Changes the time frame for filing Equal Pay

discrimination suits (180 days)

Disability Discrimination◦ Verizon settlement is one of the largest

discrimination settlements to date - $20 millionDisability Discrimination and Accommodation for Managers

ADA https://www.pryor.com/trainingrewards/Training/OnDemand/46138

National Labor Relations Board (NLRB)◦ Protected concerted activity and social mediaThe Impact of Social Media Within Your Organization

3

Employment Law Hot Spots

Misclassification of Workers◦ Contractors◦ White Collar Exemptions

FLSA Rules, Regulations and Classification Standards

QETP – Questionable Employment Tax Practices

DOL “Hot Goods” Provision

3

Who is An Employer?

FLSA defines and ‘employer’ as “any person acting directly or indirectly in the interest of an employer in

relation to an employee.” 29 USC §203 (d).

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Penalties can be assessed against the employer or a

‘person acting on behalf of an employer.’

2011-2013 – the courts re-defined ‘employer ‘ in

all employment law issues. States also followed.

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Audit-SecureYour Business!

What will the Auditors

find swimming in

YOUR waters?

Have you caught your fish?

1. Reasonable Basis File◦ Professional Resources

◦ Government Resources

◦ Desk References/Software/Templates

◦ Training Resources

◦ Consultant/Attorney advice in writing

2. Standard Operating Procedures◦ Step by step guidance for each position

◦ Follow a Rule of 3 + and reference your Reasonable Basis

◦ Must contain update and revision dates

◦ Include employee training dates

3. Employee Handbook – Policies/Procedures◦ Must reflect federal and state laws

◦ Must include specific company policies when law is silent

◦ Must include documentation of review and updates annually

4. Job Descriptions◦ Not optional

◦ Must detail Essential Functions and BFOQs

◦ Must detail Exempt qualifiers - especially duties

◦ Must be accompanied by interview checklists for EEOC compliance

◦ Review annually – minimum – document

5. Internal Audit Documentation *KEY*◦ Annual audit documentation for each area

◦ Must include corrective action plan and outcome

Rule of 3s!

Audit-Secure Checklist

16

We are the ONLYSURVIVORS!!

IMPORTANT ANNOUNCEMENT!!!

Executive Order 11246 (1964) - Affirmative Action

Applies to companies with federal government contracts over $10,000 annually

Must abide by equal opportunity, refraining from discrimination of minorities, women, handicapped persons, and Vietnam era and special disabled veterans

4

Civil Rights Act 1964Original Protected Groups

Cannot discriminate on the basis of:

Race

Color Discrimination: The Protected Classes

Sex

Religion

National origin

5

Civil Rights Act of 1991Money for damages

Defines employer “good faith” defense

Further defines discrimination

Extend anti-discrimination to US citizens working abroad for US-owned companies

Prohibits test score norming. Employers cannot inflate or vary test scores of protected group members to bring them in line with nonprotected group members.

5

Protected Groups Added

Also cannot discriminate on the basis of:

Handicap (later broadened to “disability)

Age

Pregnancy

Veterans

Genetic Information

5

Equal Pay Act

Designed to bring salaries of both men and women to equal

levels for those employed:

In the same establishment,

For work requiring substantially equal skill,

For work requiring equal effort,

For work requiring equal responsibility, and

For work performed under similar working conditions.

6

Fair Labor Standards Act

Responsible for TOP audits and investigations in the USA

Employers must be clear on who is exempt from OT

White collar exempt tests are changing soon

State and federal wage and hour laws may differ

Covers child labor laws, too

Fair Labor Standards Act Parts 1 and 2

7

The TruthRegularly, 75% of employers make payroll errors! – SHRM

Approximately 1 million workers each week suffer a

payroll error = $56,000,000 per week x 52 =

$2.9 Billion/year.

- The Payroll Answer Book

Most Errors Come from FLSA Violations

Estimated 80% of employers are getting it wrong.

- Department of Labor

Executive Exempt

Science and Learning Exemption

Must have 4 year degree – Usually

Must always need the degree for the job

---------------------------

Court in California held:

A receptionist cannot be exempt just because a degree is held in business communications or a person is highly experienced in public relations.

Artistic and Creative

Computer Professional

Administrative Exempt

Sales Exemptions

Exempt Salary Deductions

I-9 FORMS# 3 AUDIT AREA

Nationally!

Are your I-9s Compliant?

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Age Discrimination in Employment Act

Designed to bring salaries of both men and women to equal

levels for those employed:

In the same establishment, Age Discrimination in Employment Act

For work requiring substantially equal skill,

For work requiring equal effort,

For work requiring equal responsibility, and

For work performed under similar working conditions.

8

Americans with DisabilitiesADA Amendment Act of 2008◦ Establishes ‘rules of construction’ for determining

whether an employee is substantially limited in performing a major life activity

◦ Makes it easier for an employee to establish coverage under the ‘regarded as’ part of the definition of disability

◦ An individual must be covered under ‘actual disability’ or ‘record of disability’ to qualify for reasonable accommodation

9

Disability Discrimination and Accommodation for Managers

Americans with Disabilities

Current drug and alcohol users are not protected

Alcoholics covered unless under influence in the workplace

Cannot require a medical test pre-offer

Can require a drug test pre-offer

9

Family and Medical Leave Act FMLA is unpaid, job protected leave (12 weeks)

Applies to companies with more than 50 employees, public

agencies and schools

Employers can require employees to use accrued paid

leave first – Paid leave and FMLA run concurrent

Military Caregiver Leave (26 weeks)

Qualifying Exigency – Call to Active Duty Leave (15 days)

10

Military FMLA

Application in Action - Exercise

3/10/2015

11

2382

Platinum Package

Build your own pack if you like!

4+ items = Special Pricing.

3 Payments

Trainer Bonus Giftswith any order placed during this seminar

SOP Development GuideWith samples of W-4 SOP and others

Affordable Care Act UpdatesTwo documents – Total 17 pages of updates/checklists

FMLA5 Part FMLA Webinar Series

Front Loading PTO Policy

Safe Recruitment Strategies

List job openings with outplacement firms, minority recruiting

sources, and social media

Do not rely solely on social media for recruitment – it may

constitute disparate impact

Review recruitment materials for disparate impact and

discriminatory advertising

Monitor advertising and recruitment results for disparate impact

12

Exercise:Replacing an Aging Workforce

Reasons to hold on to older workers

Challenges older workers face and your solutions

Ways to approach the conversation of retirement

13

Be a TOP Place to Work!1. Flex time2. Home commute3. Job sharing4. Compressed work week

Create a Culture of Accountability/RecognitionBudget for training and development

Tuition assistance programsProvide ‘low to no’ cost incentives

Definition: Who are WE?

13

Audit Applications and Job Descriptions

Use one standard application

Eliminate references to protected classes

Provide more than one means of completing/submitting

(See Sample in Appendix 11)

Job Descriptions

1. Determine job-related criteria.

2. Examine bona fide occupational qualifications and essential job functions. Screen them for adverse impact.

3. List job experience and knowledge in order of requirement.

4. Identify core functions of the job and list in order to weight and importance.

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Interviewing QuestionsBehavior-based – examine past behavior and predict future performance

Open-ended – encourage the applicant to talk and provide an assessment of verbal skills

Close-ended – give the interviewer complete control

Probing – used to gather additional information

Hypothetical – evaluate knowledge and core performance abilities

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Make the Hiring DecisionAt-will – Really?

Contractual wording: ‘Permanent Employee’

Non-competes limit the employee’s ability to find work.--------------------------------------------------------------

Match the job criteria to the candidate’s tangible and intangible qualities.

Use a checklist and a comparison grid.

Meet with all involved in the selection.

Consider the fit

Document decision

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Background ChecksBackground Checks

1. When is it necessary?

2. Observe privacy issues and Consumer Credit Reporting Reform Act.

3. Use an outside vendor.

4. Identify job-related criteria to search for.

5. Share only that the best suited/most qualified candidate has been chosen – and no other information

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Manage Contract LaborAppoint a Decision Maker

Use ABC Test - Checklist

Require proof of business entity

Identify job parameters in a contract

Require a W-9

If using a “sourced” contractor, directly deal with the outsourcing agency, not the contractor for employment issues

Do not require a non-compete

Consider charging usage fees for office, support, etc. if working at your job site for an extended period

Secure OSHA Training

19-20

Manage Contract Labor9. Do not require independent contractors to attend company meetings.

10. Do not require independent contractors to work only for your organization.

11. Structure independent contractor agreements with a specific beginning and end date. Do not use automatically renewing agreements.

12. Terminate independent contractors only as outlined in the contract agreement. Do not discipline.

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Reverse Discrimination

Hiring someone who is less qualified than another JUST because of a protected class.

Example:

Hiring a 42 year old woman when a 35 year old white man is clearly more qualified.

21

True Story!Reverse Discrimination or Not?

You Make the Call!

A Latino dentist hires a white woman over a Latina woman. The white woman is less qualified. They are the same age.

Why might this happen?

Is this discrimination and / or something else?

Exercise:Application in Action

3/10/2015

22-23

Issues in Health InsuranceHIPAA Changes 22 HIPAA Videos◦ Updates to requirements

Domestic partner qualification/benefits eligibility:◦ Create a policy defining coverage

◦ Provide health insurance to partner and dependents as defined by the policy

◦ Use the consistency rule

◦ Err on the side of being lenient

24

COBRA1. What are the responsibilities if a former employee is late with COBRA payments?

a. Send a letter notifying the employee of intent to terminate coverage at thirty days late.

2. How are COBRA benefits handled when an employee divorces?

a. Benefits are to be extended to spouse of covered employee and can continue under the plan for a maximum of 36 months.

3. What about military leave?

a. If active for more than 30 days, the employee and dependents will be covered by military health care.

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Accidents Not Covered by Worker’s Compensation

Injuries arising as a result of: Introduction to Accident Investigation

1. Intoxication by alcohol or drug use

2. A felonious act committed by the employee

3. An aggressive altercation by the injured employee

4. Self-inflicted harm or suicide

5. Careless or imprudent behavior

6. Personal travel

Appendix – 7,8,9

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IRS Section 125 Cafeteria Plan Qualified Benefits

◦ Employer provided accident and health

◦ Group term life insurance

◦ Short and long term disability

◦ Dependent care FSA

◦ 401(k) contributions

◦ Health FSAs

◦ AD&D policies

◦ Contributions to HSAs

◦ COBRA premiums

◦ Adoption assistance programs

◦ Individual accident and health policies

27

Flextime and Off-Site ConsiderationsFlextime employees

Set up a defined work schedule

Closely monitor workflow and productivity

Require attendance at department/company meetings

Off-Site Employees

Review and monitor the cost to set up the off-site office

Schedule regular office hours and availability

Require periodic on-site meetings

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Flextime and Off-Site Considerations

Benefits of Off-site workers◦ Promotes environment of trust and respect.

◦ Increases productivity

Challenges◦ Decreases personal interaction. Employee can inadvertently

be left out of the communication loop

◦ When working with hourly employees, workflow can extend to more than 40 hours - difficult to monitor.

28

Case Studies

29

Organizational Development and Training

Create a program that allows advancement based on training and performance

Clearly define organizational ethics and integrity values – in writing

Provide multiple training formats and opportunities

Evaluate training and development payoff to the organization

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Organizational Development and Training

Do Outsource:◦ Interviewing ◦ Background and reference checking

Don’t Outsource:◦ Succession planning - this is at the heart of organizational

development and should be a part of the management planning process.

◦ Documentation and preparation for court - you are on the hook for employment decisions and must document first-hand. Likewise as your HR, managers, or supervisors are closest to any issue that would go to court, those closest need to do the advance preparation and will most likely be the ones called on to testify.

30

ArbitrationTo successfully use arbitration and avid having the courts allow an employee suit, structure arbitration agreements that allow the employee to vindicate his/her statutory rights and provide for the following:

1. Neutrality of arbitrators

2. Adequate discovery

3. A written decision that provides for limited judicial review

4. A limitation on costs, requiring that the employee pay no more than the cost would have been to litigate the claim.

32

Personality StylesWorkers must be spoken to in a way they understand.

Each worker will have a unique experience and must not be handled in a cookie cutter way.

Adapting for DISC Styles – multi-part series

Who Am I?Who Are They?

FOUR Main Personality TypesRob and Mary Hambleton

RED

YELLOW

GREEN

BLUE

My Role in Life

I am the ___________________ in my peer group.

◦ Mother◦ Father◦ Child◦ Organizer◦ Student◦ Teacher◦ Nurse/Doctor◦ Patient◦ Counselor……………..

Difficult Personality TypesDr. Rick Brinkman and

Dr. Rick Kirschner

Know It AllThinks They Know It AllTankPassiveGrenadeSniperWhinerYes PersonNo Person

Which one are you?

RED GREEN

YELLOW BLUE

Dr. Tony Alessandria's Platinum RuleWhen Dealing with Difficult Personalities:

Treat other as THEY would like to be treated.

Be Adaptable

Master the Art of Pacing

Find Common Ground

And MOST of All……………

Which Personality am I?

Handle Depression in the Workplace

Take Action:

Tie behaviors to performance

Meet with employee to identify source

Refer to outside assistance if needed

Provide ongoing points of contact and support internally

Set small goals; encourage and evaluate

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35-36

Conflict Resolution?

D.A.N.C.E . IT OUT!

D.A.N.C.E.

DDon’t Right Fight

D.A.N.C.E.

A. Acknowledge the other person’s view or opinion

D.A.N.C.E.

NNegotiate

a workable

solution

D.A.N.C.E.

cCooperate

With the solution

D.A.N.C.E.

eExpect

APositive outcome

D.A.N.C.E.

Where we can use this system:Work

School

Spouse/partner

Kids – especially teens

Social circle

When dealing with the public

Or in Any other type of conflict

D.A.N.C.E.

Go on….Dance it Out!

Implement Diversity Training The Latest Thinking on Company-Wide Diversity Training

What to avoid:

• Training focused to a defined group

• Assimilation training

• Training exercises with a “how does it feel” context

• Training in an emotionally charged situation

Valuing Diversity for Managers – 8 videos

38

Covered Employers

Occupational Safety and Health Act

of 1970 (OSHA)

29 CFR 1975.4(a)

General.

Any employer employing one or more employees would be an "employer engaged in a business affecting commerce who has employees" and, therefore, he is covered by the Act as such.

39-41

General Duty Clause

5. Duties

(a) Each employer --

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;

(2) shall comply with occupational safety and health standards promulgated under this Act.

(b) Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct.

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Results of Abusive or Violent Behavior◦ Decreased morale

◦ Increase in number of violent incidents

◦ Increased stress

◦ Increase in employee turnover

◦ Injury

◦ Decreased productivity

◦ Legal action

OSHA’s Workplace Violence Prevention Program

Establishments Affected by Workplace Violence

According to the Bureau of Labor Statistics, the

highest number of homicides occur in night retail

establishments.

The highest number of nonfatal assaults occur in

the health care and social service sectors.

What Is Workplace Violence?

Any physical assault, threatening behavior, or verbal abuse

occurring in the workplace.

The workplace may be any location either permanent or temporary

where an employee performs any work-related duty.

Acts of AggressionWhich May Indicate Risk

Disorderly conduct, such as shouting, pushing or throwing objects, punching walls, or slamming doors;

Verbal threats to inflict bodily harm including vague or overt threats;

Fascination with guns or other weapons, demonstrated by discussions or bringing weapons to workplace;

Acts of Aggression Which May Indicate Risks (Continued)

Obscene phone calls;

Intimidating presence; and

Harassment of any nature.

Types of Workplace Violence Incidents

Based upon the relationship between the assailant/worker/workplace, violent incidents can be divided into categories:

◦ Violence by strangers

◦ Violence by customers/clients/patients

◦ Violence by co-workers

◦ Violence by personal relationship

The Affordable Care Act – ObamaCare – says we must begin interviewing patients for

Domestic Violence to meet Meaningful Use.

Domestic Violence and the Workplace

1 in 3 women will be abused by an intimate partner.

1 in 4 of these women will tell someone.

2-5% of men will be abused by their female partner.

Race has no bearing on the statistics.

74% of working women in abusive relationships will be confronted at work on some level.

DV causes Americans to miss 175,000 workdays each year.

DV costs employers $5.8 billion annually

A woman is battered every 9 seconds in America

Domestic Violence and the Workplace

How to recognize signs of abuse:◦ Coming in late or very early

◦ Crying

◦ Excuses

◦ Strange calls or visits

◦ Incessant calls or texts

◦ Odd ways of thinking – child-like

◦ Defensiveness

◦ Easy to startle

◦ Court dates

◦ Extreme concern regarding ◦ errands for partner

Reduce Company Liability◦ Screen employees

◦ Enforce a zero tolerance policy

◦ Provide a confidential reporting process

◦ Train and educate

◦ Review and assess workplace safety regularly

◦ Limit workplace accessibility

◦ Supervise termination sessions

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Reduce Company LiabilityRecognize the triggers:

◦ Performance counseling◦ Discipline◦ Being passed over for promotion◦ Criticism or harassment from co-workers◦ Failed romance (particularly with co-worker)◦ Personal crisis◦ Termination◦ Domestic crisis and violence that comes to the

worksite

41

Overcome Substance Abuse in the WorkplaceTesting Guidelines

Test randomly

Test for cause

If testing pre-offer, test every applicant or candidate

Keep results confidential

Consistently follow the discipline/termination process for a positive test

Only use a reputable lab for testing - false positive tests can come back to bite you; the lab must be able to provide chain of evidence and results ties to the employee tested.

Do not test in the application stage.

Substance abuse in the workplace

42

Harassment in the Workplace1. Hostile Work Environment2. Quid Pro Quo – This for That

Understanding the 5 Levels ◦ Remarks◦ Touching◦ Solicitation◦ Textbook harassment – This for That◦ Assault

Understanding Harassment - Levels of Sexual Harassment

43-44

Workplace BullyingRepeated, intentional, and malicious abuse of an individual

Abusive use of words or deeds to discredit, discourage, harm the spirit, dignity, reputation, or integrity of an individual

Lack of manners and social graces

Psychological or physical violence

Animosity and a lack of respect for individual value

Attempt to control or intimidate an individual

Workplace Bullying – 8 videos

Employee Privacy RightsBest practices:

Publish and follow company policy

Consistently follow precedent

Act conservatively

Keep best interests of the company – and the employee – in mind

Before you act, take time to research

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Case Studies - Exercises

3/10/2015

Employee Self-EvaluationThe benefits:

LBs and NTs

Employee takes ownership of performance

Speeds up the appraisal process

Employee usually more critical and develops improvement plan

Creates a team approach to goals, results, and employee development

360 Degree Feedback – Good or Bad??

48-49

Progressive and Constructive Discipline

Written plan, actions

consistent

A

Written plan, actions

inconsistent

F

No written plan, actions

consistent

C

No written plan, actions

inconsistent

D

How the courts view your management grade:

50

Elements of a Performance Improvement Plan (PIP)

Identify the performance gap

Define the expectations for improvement

Document specific steps to take to improve performance

Prescribe training / development plan

Provide a detailed timeframe for improvement

Detail results and remedies for both failing to improve and achieving improvement

Sign and date by both the employee and manager

50-51

Objective DocumentationNo adjectives

No drawn conclusions

No speculation or inferences

Examples include:◦ “I saw…”

◦ “Caroline stumbled and could not answer questions…”

◦ Conner and Michael raised their voices and Michael punched Conner in the jaw…”

Document immediately while information is fresh

Document Disciplinary Actions

3/10/2015

8. Retain a record to file for a specified period of time depending on the infraction• If a part of the performance improvement plan is to purge the record of a minor

infraction given improved performance, follow through and do so.

9. Note both good and bad performance results in the file. A file that only contains good documentation can create an inaccurate picture when disciplining or terminating an employee for performance problems. • Performance appraisals should always contain suggestions for improvement as

well as kudos on good performance. • Unlawful discharge suits are difficult to defend if the documentation appears to

support the employee claim of unlawful discharge.

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Lawful Termination Guidelines◦ Follow policy and procedure consistently

◦ Inform employee every step of the disciplinary process

◦ Meet in private, but require a witness

◦ Do not apologize

◦ Provide documentation to the employee

◦ Outline specifics of the termination, including benefit information

◦ Terminate at the beginning of the week if possible

◦ Answer questions

◦ Respect the employee’s dignity

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Case Studies - Exercises

3/10/2015

55-56

The Danger of Building a File or Paper Trail

Lampley v. Onyx Acceptance Corp., 7th Circuit Court of Appeals, No. 02-3201, (2003)

What to destroy:

Documents dated beyond record keeping requirement period

Inaccurate or false information

Biased accounts using excessive adjectives - subjective documentation.

Unnecessary documents and information.

Third and fourth party accounts. These are not reliable and considered to be

highly subjective.

HR 0204 # 107 of 50

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Edit Handbooks for Implied Contract Language

◦ Temporary employee

◦ Permanent employee

◦ Probationary period

◦ Only terminated for cause

◦ Promising adherence to disciplinary process,

regardless of circumstances

61

Electronic Distribution of Employee Handbooks

Include verification of receipt process when distributing handbooks on-line

When making and distributing handbook changes, include a memo outlining changes and requiring return receipt of changes

Provide alternative means of distribution for those employees who do not have on-line access

Meet ADA requirements

61

Documentation That Can Be Subpoenaed

◦ Manager notes

◦ Applications

◦ Performance appraisals

◦ Disciplinary records and performance improvement plans

◦ Promotion records

◦ Test results

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Exercise – Course Quiz

64-67

Act Responsibly

◦ Be fair to and treat all employees equally

◦ Treat employees with dignity and respect

◦ Communicate expectations and share information freely

◦ Recognize when you need help and ask for it quickly

◦ Take disciplinary action when required

◦ Keep solid documentation

Thank you !!!

Lisa Smith

CAC # 2382