Archive for the ‘Obligations & Responsibilities’ Category

Is Your Company Preventing Workplace Harassment Claims?

Wednesday, March 24th, 2010

Employers must be ever-vigilant in providing a safe workplace for all employees. That responsibility includes a workplace harassment policy. Harassment is unlawful and can get an employer in trouble if it goes unmonitored or unpunished.

What is Workplace Harassment?

  • It’s an unlawful form of discrimination, based on the Civil Rights Act of 1964.
  • It’s defined as unwelcome verbal or physical conduct based on race, color, religion, sex, national origin, age, disability, sexual orientation or retaliation that results in a hostile work environment or a change in an employee’s status or benefits.
  • It can affect anyone.
  • Is not limited to male on female sexual harassment.

Harassment can range from offensive language or remarks to comments about a fellow employee’s body, skin color, or religion, to inappropriate touching, jokes, gestures, or even emails.

Increase in Sexual Harassment Claims by Men
A growing number of sexual harassment complaints have come from men since the start of the recession, according to the Equal Employment Opportunity Commission (the EEOC). Litigation, including harassment cases, tends to increase during economic downturn, when jobs are harder to find. In the past, men might have responded to sexual harassment by leaving a hostile workplace for another job—but now, when they’re not easily finding other employment, a harassment suit is more likely to be filed.

Harder-hit states for unemployment, like Michigan and California, saw bigger increases in the percentage of sexual harassment claims by men: Michigan’s cases rose 10% from 2007 to 2009, and California’s cases rose 5%.

While the stigma around claiming sexual harassment is huge for both genders, it is even more so for men, say the experts. Men can be seen as weak or unmanly when claiming sexual harassment, so the numbers of reported incidents are most likely lower than what actually occurs.

Employers are often in the dark about harassment; often employees are laid off for economic reasons, and file claims months or years later. Developing and enforcing a strict no-harassment policy is vital. And remember to broaden your definitions to include same-sex harassment. Many employees are more sensitive to what they say around the opposite gender, but might think that sexual jokes and banter among their own gender is okay—but it’s not.

As unemployment continues to hover around 10%, employers could face rising harassment claims—so now is the best time to review your company’s policy and tighten it up as needed. Communicate to and train employees on the policy. Strict workplace harassment policy enforcement is the best way to mitigate risk to your business.

How They Made the List: Tips from Fortune’s “Best 100 Places to Work”

Thursday, March 4th, 2010

With a glance through the companies on Fortune Magazine’s list of The 100 Best Companies to Work For, similar themes arise, even though the 100 firms represent a wide range of industries. Businesses of any size can use these themes to make their workplace one of choice for their employees, too. Reducing turnover reduces costs, increases productivity, and makes everybody happier.

Do the right thing:

  • The #1 company on the list is SAS, a software firm. Employees get unlimited sick days, free medical care, a free fitness center and summer camp for their kids. The CEO believes in the trust between the company and the employees. Perks are probably a big expense, but SAS is very profitable (it’s the world’s largest privately owned software company) and turnover is a low, low 2%—the lowest in the industry.
  • Johnson Financial Group, keeps pay in place if staff must be out of work for a crisis. The CEO says they will always “do what is right.”
  • Arkansas Children’s Hospital sponsors a summer camp for sick kids—and awards extra vacation to employees who volunteer there.

We’re all in this together (even in a tough recession year):

  • Edward Jones, the investment firm, froze salaries but continued profit sharing and did not lay off a single employee or close a single office.
  • Wegmans Food Markets has never had a layoff, and didn’t end that streak. 11% of its employees have been with the grocery chain for over 15 years.
  • Shared Technologies, a phone and data systems company, limited layoffs by cutting pay for employees (5%) and management (10%). The CEO of AFLAC, the insurance firm, gave up a $2.8 million bonus—and maintained all employee benefits.
  • Nugget Market, a small chain in California, helped employees through the recession with 5% discounts on groceries; management showed appreciation by washing all the associates’ cars one day.
  • Men’s Wearhouse demonstrated a team approach with pay cuts at the top: the CEO took a 20% pay cut, the SVPs, 5%, and the board of directors 10%.

Let’s keep having fun:

  • The Scooter Store, in Texas, keeps celebrating with quarterly pep rallies and birthday parties every day.
  • Mattel, the toy maker, keeps employees happy with potluck breakfasts, volunteer days, picnics and milk-and-cookie parties.

Benefits for all:

  • Build-A-Bear Workshop gives part-time employees access to health insurance.
  • CISCO offers on-site child care.
  • Methodist Hospital System gives out bonuses based on patient satisfaction each quarter.
  • PCL Construction focuses on healthy employees with gym memberships, unlimited sick time and paid life insurance.

Maybe these ideas will inspire other employers to think creatively and hang on to your valuable employees longer!

FMLA Overview

Wednesday, February 24th, 2010

The Family and Medical Leave Act became effective in August, 1993 and is enforced by the U.S. Department of Labor Standards Administration, Wage and Hour Division. We hear from employers who are not sure whether or not they are covered by the FMLA. It can be a confusing set of rules to decipher. Here are the basic tenants of the FMLA:

  • The FMLA covers most employers—but not most small businesses. Only private employers with 50 or more employees in 20 or more weeks in the previous calendar year must abide by the FMLA.  The act also applies to all state and federal government employers, local governments and education employers.
  • The FMLA allows for up to twelve weeks of unpaid leave for qualified employees in a 12-month period. In essence, the FMLA protects those workers’ jobs. While employers are not required to pay employees during the twelve weeks of leave, they cannot fire or lay them off because of a family or medical issue that is specified in the Act.
  • Qualified employees are defined as those who have worked for a covered employer for a total of 12 months, with at least 1,250 hours worked in the preceding 12 months.
  • Employers must restore employees back from FMLA to either their former position or an equivalent, and they must maintain any group health insurance benefits while the employee is out on FMLA.
  • The FMLA’s covered family and medical conditions include a serious health problem requiring the employee to take medical leave; the birth and care of a newborn child; the adoption of a son or daughter; caring for an immediate family member with a serious health problem; and needs arising due to a family member’s call to duty through National Guard.
  • Employees who are spouses and share in the birth or adoption of a child or the care of a family member together may only take a combined twelve weeks in a 12-month period.
  • Employees who wish to use FMLA must provide the employer with a 30-day notice prior if possible. They must also provide the employer sufficient information to determine whether the FMLA applies to the employee’s situation.
The best pre-employment screening process includes employee background checks, employee credit checks, and criminal background checks. You’ll know you’re hiring safe when you screen employees before offering a position.

U.S. DOL Hires 250 Investigators

Friday, October 16th, 2009

money-and-gavel on employee screening blogThe US Department of Labor announced last month the hiring of 250 investigators, tasked with looking into wage and hour violations by employers. The influx of investigators is partially based on a recent report compiled out of a 2008 survey of over 4,000 low-wage workers in three major U.S. cities: Chicago, Los Angeles, and New York City. Researchers focused on more vulnerable workers, such as immigrants and cash employees, who often slip through the cracks of data gathering.

The goal of the survey was to produce accurate estimates of workplace violations, like minimum wage abuse and unpaid overtime.

According to the report, 26% of workers were paid less than the legal minimum wage; and 60% of them were underpaid by more than $1 per hour.

Of the 25% of survey respondents who worked more than 40 hours in the previous week, 76% were not paid the legal overtime rate. Employees averaged 11 hours of overtime that were underpaid or not paid at all.

Additional violations revealed were workers performing work off the clock, and not being paid for it (25%/70% respectively); workers who received no meal breaks or were required to work during their meal breaks (69%); and workers who received no documentation, such as a pay stub, of their earnings and deductions (57%).

The report goes on to describe employers who stole their workers’ tips, who forced workers to pay for damages to tools, and who retaliated against employees when they complained about working conditions. These are not the types of employers anyone would want to work for!

The report’s first recommendation for a solution is to “Strengthen Government Enforcement of Existing Employment and Labor Laws.” Thus, the hiring of 250 new DOL investigators.

Employers must be fully aware of labor and wage laws; if there is a question regarding a specific situation, researching the answer is pretty simple: the Internet, the IRS and the DOL have loads of information for employers. You can also check with a labor attorney. There is no excuse for breaking labor and wage laws; and violations will result in stiff fines and penalties.

Be sure to check out our Pre-Employment Screening services. Protect your business, increase your peace of mind and lower turnover by hiring smart!

Employee Cell Phones Mean Employer Liability

Thursday, October 8th, 2009

Employees texting while drivingEmployers are liable for most of their employees’ actions, especially when they put others in harm’s way. Most employers know that having staff members driving company-provided vehicles, or their own vehicles if on company business, must protect themselves with proper liability coverage.

Over the past several years, distracted driving by employees has been named the culprit in several liability cases—and employers have had to pay big settlements. In these cases, the cause of distraction was the ubiquitous—and dangerous—cell phone; these employers where found to be liable for permitting employees to use cell phones while driving for business:

In Florida, a jury awarded $16 million to a woman struck by a salesperson who was talking on the phone while driving. The employer was found liabile.

A Virginia court allowed a claim against a law firm for $30 million when an attorney struck and killed a 15-year-old girl while talking to a client on the phone. The law firm settled for an undisclosed amount.

Another case involved International Paper Company, who paid a defendant over $5 million after she was rear-ended by an employee who was talking on a cell phone.

The IPC case is interesting because the company had a policy in place that only allowed employees to use hands-free phones in their company vehicles. Obviously, the policy didn’t protect the company from the lawsuit!

Several states have either banned or are regulating use of cell phones while driving. Employers everywhere are following suit, especially in light of several tragic mass-transit accidents where operators caused injuries and fatalities because of texting.

Last week, President Obama banned federal employees from using cell phones to call or send text messages while driving federally owned vehicles, using cell phones to conduct federal business while driving private vehicles, or using federally-owned cell phones in any manner whether driving public or private vehicles.

Well, that ought to cover it. Employers might consider using the federal ban as a guideline to protect their own companies, their employees, and the public from needless accidents and lawsuits. The important lesson is to institute a cell phone use policy, communicate it, and enforce it!

Criminal Employees Slipping through the Cracks

Wednesday, September 30th, 2009

criminal employee falls through the cracksOne might think that the Capitol Police Department would know enough about criminals, persons of risk and habitual liars to avoid placing them on their staff. But last year, halfway through a 12-week training period, fifteen newly-hired recruits were asked to return to DC and resign—or be fired. The problem? They had either lied on their application, failed a criminal background check, or failed a psychological examination—but were hired anyway!

Despite what the Capitol Police describe as a “stringent recruiting process,” including a written exam, application review, interviews, background investigation, polygraph, medical exam and psychological evaluation, each of the fifteen recruits had made it through the hiring process. The result? Not only was the HR Director fired, but also affected were the fifteen families that had been relocated from all over the country. Fortunately, even more damage was prevented by the forced resignations—who knows what could have resulted from hiring these fifteen officers?

In another case, an adult home in Virginia was ordered to pay $750,000 to a disabled resident after he was sexually assaulted by a Certified Nursing Assistant employed there. The CNA had a criminal history before he was hired, and continued to rack up charges, including assault and battery and public intoxication while working for the facility.

Another scary example includes a teacher hired to teach middle school in Nashville, TN, even though he had been suspended from another Tennessee school system after allegations surfaced that he was engaging in misconduct with minors. Even more shocking is the fact that the teacher was hired despite having outstanding warrants for his arrest on sexual battery and rape charges. Not surprisingly, at the new middle school, he was accused of additional crimes involving two 14 and 15 year old students.

Hiring employees is no easy task; there are many risks involved, too.  Employers must take every available precaution when hiring staff, especially when the safety and well-being of at-risk populations, children, and the public are hanging in the balance. The lack of proper background screening in each of the above cases resulted in serious consequences for the employers—and unnecessary suffering for the innocent victims.

FAQs About FLSA From the US DOL

Thursday, September 10th, 2009

faqs on employee screening blogWhew! That’s a mouthful of acronyms, but it means we have some great information for you. As an employer, you might be facing unprecedented challenges to keep your business running and your employees paid. If you’re furloughing employees, or reducing hours and/or leave, you need to be sure you’re within legal guidelines. The U.S. Department of Labor (DOL) has published a list of Frequently Asked Questions (FAQs) to help employers stay within the guidelines of the Fair Labor Standards Act (FLSA).

Here’s how to handle a few situations you may not have encountered before:

Q: If I’m having trouble meeting payroll, do I still have to pay non-exempt employees on the regular payday?
A: Yes. In general, an employer must pay covered non-exempt employees minimum wage and overtime due on the regularly scheduled payday. Failure to do so is a violation of FLSA.

Q: Is it legal to reduce the wages or number of hours of an hourly employee?
A: The FLSA does not address reduction of hours or wages for non-exempt employees. It does require that they receive at least the Federal minimum wage for all hours worked. It is not a violation of the Act to reduce wages or hours of non-exempt employees.

Q: Am I required to pay an hourly employee for a full day of work if they don’t work a full day, due to lack of work?
A: No. An employer is not required to pay non-exempt employees for hours they do not work.

Q: Can an exempt employee’s salary be reduced during a business slowdown?
A: In general, the reduction of an exempt employee’s salary will cause a loss of exemption; they must then be paid minimum wage and overtime for all hours worked. In some circumstances, reduction in salary may not cause a loss of the exemption. As long as the employer is not attempting to avoid salary basis requirements, the exempt employee’s salary may be reduced. However, deductions to salary may not be made by the employer based on the operating requirements of the business. This is a complicated question, and full details can be found here.

Q: Can an employer reduce an exempt employee’s leave?
A: Yes. Employers can substitute or reduce an exempt employee’s accrued leave for the time an employee is absent from work, even if the absence is directed by the employer because of a lack of work.

Q: Can a salaried, exempt employee volunteer to take unpaid leave due to a lack of work?
A: Yes, if the employer asks for volunteers to take time off due to insufficient work, and an employee volunteers to take a day or days off for personal reasons (other than disability) the employee’s salary may be reduced for one or more full days of missed work. The employee’s decision must be completely voluntary.

Labor laws can be tricky. This list is meant to be an overview, not a legal guide. For full regulations, please see the Wage and Hour Division website . Remember to check your state’s labor laws as well. Always seek professional legal advice whenever you are in doubt about employment law.

Legislation Keeps Employers on Their Toes

Wednesday, August 12th, 2009

gavel on employee screening blogLegislation is a constantly changing reality for all of us who drive cars, buy and sell property, own a dog, talk on our cell phones, walk down the street, or just inhabit a city, town, county, or any other municipality in the U.S. Laws are something we don’t think about constantly—unless we’re planning to break some.

For employers, legislation is something you must keep up with, or you can really get in trouble. Today we’ll review two laws covering employees that you should already know about, along some new laws that are pending or have passed recently.

First, the newbies:
Lilly Ledbetter: The Lilly Ledbetter Fair Pay Act of 2009 is a result of the namesake’s pay discrimination lawsuit against Goodyear Tire & Rubber Co., which went to the U.S. Supreme Court. The Court heard arguments about a requirement, established by the 1964 Civil Rights Act, that equal-pay discrimination be addressed within a 180-day statute of limitations. The Court ruled it commenced from the day the pay was agreed upon, not the latest paycheck, overturning a lower court’s decision.

The new law amends the CRA to reset the 180-day statute of limitations to begin with every discriminatory paycheck.

Employee Freedom of Choice Act: This is pending legislation in the U.S. Congress, which would amend the National Labor Relations Act to make it easier for employees to form, join, or assist labor organizations. EFCA removes the secret ballot requirement that currently exists if employees want to form a union, guarantees workers a contract if they form a union, and strengthens penalties against companies who break laws during union organizing campaigns and first contract negotiations.

And the oldie, but goodies:
FMLA: The Family and Medical Leave Act gives qualified employees of certain employers up to 12 weeks of unpaid leave per year. During the 12 weeks, the employee’s job and benefits must be protected. FMLA applies to public agencies, public and private schools, and companies of 50 or more employees. Employees must have worked for the employer for at least 12 months, and for at least 1,250 hours over the past 12 months.

Under FMLA, qualifying reasons for leave include: the birth and care of a newborn child, the placement of a child for adoption or foster care, caring for an immediate family member with a serious health condition, or the employee’s own serious health condition. Another qualifying reason is in the case of an employee’s spouse, son, daughter, or parent’s active duty or call to active duty status as a member of the National Guard or Reserves. Plus, eligible employees may request up to 26 weeks of unpaid leave to care for an immediate family Armed Forces service member with a serious injury or illness.

ADA: The Americans With Disabilities Act of 1990 prohibits employers from discriminating against qualified individuals with disabilities in hiring, firing, advancement, compensation, and job training. The ADA covers employers with 15 or more employees. The ADA also requires employers to make reasonable accommodations to the employee’s disability if it does not impose a hardship on the employer’s business.

In hiring, the ADA prohibits employers from asking job applicants about the existence, nature, or severity of a disability. Applicants may be asked about their ability to perform specific job functions. Medical examinations may be required of an applicant with a disability, but only if the exam is required for all new employees in similar jobs.

That’s the legislative update for now; more to come!

How to Lay Off Employees with Dignity

Thursday, April 9th, 2009

Layoffs Should be a Last Resort

Layoffs Should be a Last Resort

The current economic climate is taking its toll on businesses, and by extension, on workers and their families. Stress levels are high, from top-level management to entry-level workers. Employees who manage to keep their jobs might have a spouse who has lost theirs, or they’re experience the loss of contact with laid off co-workers. Some even feel remorse or guilt for keeping their job.  

There is no doubt that morale and productivity are greatly affected by seemingly unending layoffs. 58% of respondents to a recent survey by i4cp (Institute For Corporate Productivity), indicated they reduced their workforce in 2008, and almost 40% planned a reduction in 2009.  Even companies who don’t necessarily need to reduce their workforces are deciding this is a good time to let people go or restructure their organizations. It is vital that management handle the process effectively to avoid a corresponding productivity decline by remaining employees.

Layoffs should be a last resort. If your problem is too little profit, consider asking employees for help in cutting expenses or brainstorming ways to increase sales. Losing the experience and knowledge of your employees is difficult to overcome. Your company will not be well-positioned for future growth if your first reaction is to cut staff. 

If your problem is too many employees, then layoffs are more difficult to avoid. Here are some Layoff Dos and Don’ts:

Do not implement layoffs without a strategy: first, know what your post-layoff company looks like, including its structure and the staffing levels that will be needed in each department; then, decide exactly when the layoff will occur, how much severance will be paid to each employee, and how far the company will go to assist laid off workers.

Do avoid legal issues: base decisions on the needs of the business, not on head count or seniority. Avoid accusations of discrimination based on age, gender or race.

Do give as much notice as possible: there is no evidence that more notice of a layoff will make workers unproductive or increase chances of harm to the business. On the contrary, too little notice leads to mistrust and feelings of disrespect. Employees have the right to plan their lives, and employers should give them the opportunity to do so.

Do not treat employees like children: Remember you are being watched! Keeping secrets and “trying to act normal” fuels the rumor mill. Be open, dignified and efficient when conducting layoffs. 

Do over-communicate: rather than withholding information, clarify the why, when, and   how.

Do not behave as though nothing happened: employees will talk whether or not management chooses to participate in the discussion. By discounting the layoffs, employers contribute to employees’ feelings of helplessness, and make them wonder what else is being hidden from them.

Do encourage employees to talk about it: honest, open communication speeds recovery and can strengthen ties between surviving employees and management.

Do give employees something to look forward to: share the company’s vision with your remaining employees; focus on what you can achieve in the future, not what you’ve lost.

 

When hiring new employees again, employment background checks will help you attract and retain the best candidates.

Disposal of Background Screening Reports

Monday, November 10th, 2008

All background screening and credit report information must be properly disposed of, according to FACTA (the Fair and Accurate Credit Transactions Act) of 2003. Proper disposal means that any paper records must be shredded or otherwise destroyed so that the information cannot be reconstructed. It also means that if any such information was kept as computer files, those computers must be erased before being sold, donated, or disposed of.