Archive for May, 2010

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A.D.A. Compliance Quiz – What Would You Do?

Thursday, May 27th, 2010

Many of us take for granted that we have a basic understanding of HR law, and can rely on common sense in most employment interactions. Well, here is a typical HR issue that comes up often – let’s see how you do!

The Scenario

Certain positions are maintained in your Company as light duty positions to help keep workers’ compensation costs down. An employee who is currently working in one of these positions has been released by his physician to return to work with no restrictions, and his claim has been closed. You are preparing to return him to his regular position when he informs you that he is unable to perform certain duties in his customary work and cannot return. He confirms that statement with a note from another doctor. Since these positions are reserved for workers’ compensation cases, you refuse his request.

Was this proper?

Yes - You have met your obligation by offering to reinstate him to his original position.

No - Why not?

The Answer:

No – you have failed to consider the ADA and reasonable accommodation, and are risking a disability discrimination claim. The ADA does not require you to create a position, or provide light duty that does not exist. Obviously however, light duty does exist in this case since he has been working in a modified capacity. As our main article discusses this month, you cannot separate the ADA and workers’ compensation unless the employee’s medical condition is not a disability under the ADA definition. You should provide this employee with the Physician/Health Care Provider Form to first determine whether his injury continues to substantially limit a major life activity, and if so, begin the Interactive Process and be ready to extend his light duty status.

Source: EPLI Pro, May 2010 Newsletter

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2010 Employment Laws Update – Webinar Recap

Monday, May 24th, 2010

Last month, Joshua Sable, Esq., CPEhr’s in-house General Counsel, conducted a webinar covering important changes to labor laws affecting small businesses. The “2010 Employment Law Updates” webinar covered a wide range of HR topics, including the HIRE Act, health care reform, disability discrimination, harassment claims, arbitration agreements, spying on employees, and trade secret protection.

Key points of various topics appear below. To hear the complete presentation, follow this LINK.

The HIRE Act.

The Act provides a wide range of incentives for employers including a tax holiday for hiring “new” workers and a tax credit for retaining such workers. The goal of the plan is to stimulate the economy and bring people back to work.

The key highlights of the “Tax Holiday” are:

•    Relieves a “covered employer” of its obligation to pay its 6.2% match for Social Security on the first $106,800 of wages (potential savings of $6,622)
•    Applies to those workers hired after 2/3/10 but before 1/1/11 on wages paid between 3/19/10 and 12/31/10

Health Care Reform.

Two bills were signed into law on March 23rd and 26th, 2010 – The Patient Protection and Affordable Care Act and the Health Care and Education Affordability Reconciliation Act, respectively. Both laws have important consequences for employers and group health plans.

Effective 01/01/2014 employers with 200 or more fulltime employees must automatically enroll new hires in health coverage. Employers with more than 50 fulltime employees that do not offer coverage must pay a penalty of $166/month per employee (excluding first 30).

Disability Discrimination.

Recent California case law has changed the playing field, once again, in regards to disability discrimination. The two key updates are:
1.    In the event an employee has been previously granted special accommodations for a disability, the employer has a continuing duty to inform new supervisors of these accommodations. Failure to do so can place the employer at risk of being sued.
2.    Employers are required to actively identify and offer available positions to disabled employees – it is not sufficient to merely “allow” the disabled employee to apply for a new position.

Harassment Claims.

Attorneys have previously advised managers that “being a jerk” on the job, while impolite and unprofessional, does not violate the law, so long as the negative behavior was work related. However, a recent case made its way to the California Supreme Court (Roby v. McKesson) wherein an employee claimed her manager demonstrated particular hostility towards her, despite the fact that the behavior was in the context of job and performance criticism. The Court ruled in favor of the plaintiff, stating the manager’s behavior created a hostile work environment. The clear message to managers: don’t be a jerk to your staff in the office!

Additional topics covered included defending discrimination cases, arbitration agreements, spying on employees at work, protecting business trade secrets, and non-solicitation of employees and customers.

Once again, if you missed the presentation, we highly encourage you to hear it at your convenience. It can be downloaded HERE.

If you have any questions about these, or any other HR related topics, do not hesitate to contact a CPEhr Human Resources Outsoucing Representative.

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4 Steps to Creating a Successful and Operational Team

Thursday, May 20th, 2010

Guest Post By Beth Schneider, http://processprodigy.com/

I used to have a recurring nightmare. I would find myself sitting in a high school classroom. I’d be chatting it up with friends I hadn’t seen in a while when suddenly the teacher would announce it was time to take the final exam. Suddenly I would remember that I hadn’t been in class all semester. My hands would start to sweat as I had no idea how to answer any of the questions and surely I was going to fail. I’d wake up in a panicky, nervous sweat because I didn’t know what to do.

Whether your team is made up of employees or independent contractors if you find yourself barking orders, giving partial instructions or simply ignoring them for long periods of time you are probably making them feel like I did from that nightmare.

But even if your team members aren’t breaking out in hives or taking medication for stress control, there are some key things you can do to make sure everyone on your team performs like the superstar you know they are.

Focus on What Went Right. For some reason it always seems easier to point out (and harp on) the things that went wrong. I’m not saying you should ignore mistakes, but you also need to remember the flip side. Point out the good stuff that happens. When someone does a good job, say thank you and tell them you are appreciative of a job well done. Let them know you’ve taken notice of the things they’ve done, especially when they go above and beyond. You like it when someone compliments your work right? So why wouldn’t your team be the same. Praise and acknowledge good work on a regular basis.

Have a “No Surprise” policy. Keep everyone on the same page by having regular team meetings. Share the current goals, the projects in the works and the high priorities with everyone at the same time. Then let everyone chime in with their ideas and what support they need from other team members to achieve the goals. Communication, buy in and participation all in one fell swoop.

Give Clear Directions. Be specific about what you need accomplished. Here’s a simple example, if you say to someone, “please pick me up some lunch,” who knows what you will get; soup, pizza, a hamburger, a salad. The choices are endless. Instead, be specific about what you want. Say something like, “please go the deli down the street and pick me up a corn beef on rye with extra mustard.” See the difference. You are more likely to get what you want if you ask for it.

Give Everyone a Little Personal Time. Have a one-on-one check in with each team member. Book 15 to 60 minutes each week to check their progress, give new assignments and answer any questions. It gives you the opportunity to work through all the tasks and projects at one time, which will save you time while showing them that you are approachable.

Acknowledgement, communication, clarity and approachability are the keys to building your own superstar team.

About our guest aurthor: Beth Schneider, President and CEO of Process Prodigy, is a highly sought after, internationally known Systems expert. Beth works with small business owners, showing them how to squeeze 2 to 3 times the results from their existing business so they can work less, make more money and create Outrageously Effective Systems in their businesses. Her client list reads like a Who’s Who of the small business world because of the results produced by her work. Process Prodigy clients have seen remarkable growth; often adding 6-figures or more to their bottom line and increasing productivity by as much as 600%.

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Six Factors to Determine If An Intern Must Be Paid

Wednesday, May 19th, 2010

As the summer approaches, you may be considering using interns within your organization. Interns are not only an inexpensive source of labor, but they can provide valuable insights or bring new ideas to your company. It is estimated that 15%-20% of companies use interns on a regular basis. [1]

Most Interns Must Be Paid

Did you know, however, that most internships must be paid? Internships have recently become a focus of audits for the U.S. Department of Labor. The DOL has issued a fact sheet on internships describing the criteria which must be met for it to be unpaid. An internship can be unpaid only if it is training solely for the educational benefit of the intern.

The determination of whether an internship or training program meets this narrow exception depends upon all of the facts and circumstances of each situation. Below are the criteria which must be applied when making the determination as to whether an internship is for the educational benefit of the intern:

  1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
  2. The internship experience is for the benefit of the intern;
  3. The intern does not displace regular employees, but works under close supervision of existing staff;
  4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion, its operations may actually be impeded;
  5. The intern is not necessarily entitled to a job at the conclusion of the internship;
  6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

Companies are still free to have interns, but if the internship does not meet these criteria, the intern must be paid at least minimum wage. If you are considering utilizing interns in your company, please contact an HR Consultant today to assist you with the process.

[1] Financial Planning Association Survey 2006

Source: EPLI Pro News, May 2010

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Proactive Measures Employers Should Take to Protect Themselves Against the DOL

Monday, May 17th, 2010

In our last post, guest author Stephanie R. Thomas, Ph.D., discussed the Department of Labor’s new ‘We Can Help’ campaign. In this post, she examines some of the proactive steps employers should take to protect themselves.

Take Proactive Measures Now

The Department of Labor’s ‘We Can Help’ campaign highlights the importance of taking a proactive stance and meeting this challenge head-on. It is more important than ever for employers to review their classification of employees, pay practices and compensation document creation and retention policies. Employers, in conjunction with legal counsel, should perform self-audits to identify any potential problem areas, and take corrective action where required. It’s important to involve legal counsel in the self-auditing process at its inception. There are a variety of privilege issues that need to be addressed, and legal counsel is best positioned to advise employers on these issues to protect both the employer and the employees.

Key areas employers should be examining include:

•    Misclassification of employees as exempt
•    Misclassification of employees as independent contractors
•    Failure to pay otherwise exempt employees on a salary basis
•    ”Off the clock” work
•    Proper calculation of the regular rate of pay
•    Donning and doffing activities
•    Unpaid on-duty meal breaks
•    Miscalculated commissions and bonuses

The U.S. Department of Labor has estimated that approximately 80% of employers are not in compliance with applicable wage and hour laws. The risk of being targeted for a wage and hour lawsuit is now greater than ever. Wage and hour litigation is expected to remain a source of significant exposure to employers well into the future. The old adage “an ounce of prevention is worth a pound of cure” couldn’t be more appropriate. Don’t wait for a lawsuit or an investigation – take action now.

CPEhr Offers DOL Compliance Services

“Take action now” is perhaps easier said than done. Where to begin? With whom to consult? CPEhr’s Human Resources Consulting services offer a turn-key HR compliance system, that will walk you through every step of the process.  From job descriptions and classifications, to payroll worksheet audits and review, CPEhr’s compliance team will help protect you against a DOL audit, and will work vigilantly to remove a claim, should one arise. Contact CPEhr today for more information.

(This guest post was authored by Stephanie R. Thomas, Ph.D. the Director of the Equal Employment Advisory and Litigation Support (EEA/LS) Division of Minimax Consulting. Her division specializes in the application of economics and statistic to employment decisions and employment related issues. Stephanie can be reached at http://www.theproactiveemployer.com.)

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Increased DOL Enforcement Calls for Proactive Measures

Wednesday, May 12th, 2010

Guest post by: Stephanie R. Thomas, Ph.D.

When Hilda Solis was sworn in as Secretary of Labor in March of 2009, she reiterated her goal that workers receive fair treatment, a safe and healthy workplace, and receive the wage they deserve. She stated:

“To those who have for too long abused workers, put them in harm’s way, denied them fair pay, let me be clear – there is a new sheriff in town.”

A New Sheriff In Town

There has definitely been a change in attitude at the Department of Labor. They are taking a far more aggressive stance, increasing enforcement efforts, prosecuting more aggressively, and seeking larger recoveries from employers. The Department of Labor has received a significant amount of funding in its Fiscal Year 2010 budget, and is requesting even more in its proposed Fiscal Year 2011 budget. According to Secretary Solis, the majority of this funding will be used to hire new investigators. These investigators are in addition to the hiring of 250 wage and hour investigators announced by Secretary Solis on November 19, 2009. In her March 10, 2010 testimony before the Congress, Secretary Solis stated that the Department of Labor “intend[s] to reduce the prevalence of misclassification and secure the protections and benefits of the laws we enforce.”

‘We Can Help’

In April of 2010, Secretary Solis announced the national “We Can Help” campaign, a public awareness campaign aimed at informing workers about their rights. The campaign includes a new website providing information on how to file a complaint with the Wage and Hour Division, and encourages employees to provide copies of pay stubs, hours of work, and other information related to the employer’s pay practices.

At the campaign launch, Secretary Solis reaffirmed her commitment to helping the nation’s low-wage and vulnerable workers:

“I’m here to tell you that your president, your secretary of labor and this department will not allow anyone to be denied his or her rightful pay – especially when so many in our nation are working long, hard, and often dangerous hours… We can help, and we will help. If you work in this country, you are protected by our laws. And you can count on the U.S. Department of Labor to see to it that those protections work for you.”

Experts are predicting a surge in wage and hour enforcement efforts. I have spoken with several employment attorneys, and all of them have indicated that wage and hour issues are the nation’s fastest growing type of litigation. One said that “multi-plaintiff wage and hour lawsuits pose the greatest employment litigation threat to American businesses today.”

The Wage and Hour Division is responsible for enforcing some of the nation’s most comprehensive federal labor laws regarding minimum wage, overtime pay, record keeping, youth employment, special employment, family and medical leave, migrant workers, lie detector tests, worker protections in certain temporary worker programs, and the prevailing wages for government service and construction contractors.

Take Proactive Measures Now

The Department of Labor’s ‘We Can Help’ campaign highlights the importance of taking a proactive stance and meeting this challenge head-on. In our next post we will review some concrete actions you can take to prepare your business.

(This guest post was authored by Stephanie R. Thomas, Ph.D. the Director of the Equal Employment Advisory and Litigation Support (EEA/LS) Division of Minimax Consulting. Her division specializes in the application of economics and statistic to employment decisions and employment related issues. Stephanie can be reached at http://www.theproactiveemployer.com.)

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