HR 101 - What all employers need to know

© 2011 The Weston Group, LLC. All Rights Reserved.

HR 101What all employers

Need to Know…


Agenda

•The Evolution of the HR Profession

•An Overview of Core HR Leadership Competencies

•Effective Recruitment & Selection Techniques

•Compensation and Benefit Issues & Answers

•The Legal Arena and HR Law

•Labor & Employee Relations

•Recordkeeping – An outline of What to Keep and Commonly Accepted Record Retention Strategy

•Risk Management – ADA / FMLA / Workers’ Compensation

•HR Metrics: How to Measure Your Success

•Training & Development for Effective HR Management


SABRINA MEIERHENRY J.D.President & Principal

[email protected]

• Sabrina is a seasoned attorney and serves as the President and a Principal Consultant for The Weston Group.

• Sabrina has received specialized training from the US Equal Employment Opportunity Commission in employment discrimination issues.

• Sabrina is also a partner in the law firm of Meierhenry Sargent, LLP.

• Membership involvement includes:• South Dakota Bar Association Professional Liaison Committee • State Bar Alternate Dispute Resolution Committee• South Dakota Bar Association• Second Circuit Bar Association• U.S. Federal District Court• U.S. 8th Circuit Court of Appeals.


PATRICIA DOUGHERTY RN SPHRSenior Vice President & Principal

[email protected]

• Ms. Dougherty is a recognized “change agent” who welcomes the need for positive change, is willing to champion the cause and motivate people to see the benefits of the outcome.

• Trish utilizes a combination of practical, in-depth experience with sound leadership strategies to successfully manage difficult and complex change within an organization.

• Experience includes Vice President of Human Resources for 10,000+ employees in multi-state locations as well as Director of Nursing and Recruiter experience.

• Former Commissioned Officer in the United States Army Nurse Corps.

• Certified as SPHR and currently licensed RN

• Professional Affiliations

• Wharton School of Business – University of Pennsylvania -Research Advisory Group Participant

• Society of Human Resource Management (SHRM)• American Association of Healthcare HR Administrators (ASHHRA)• Twin Cities Human Resource Association TCHRA)


RICHARD KREYERVice President of Service Delivery

[email protected]

• Mr. Kreyer has over 20 years experience in human resource management.

• Mr. Kreyer has an extensive background in leadership, strategic planning, budget & project management, labor relations and negotiations, organizational development as well as creative problem resolution.

• Experience includes Vice President of Human Resources and Labor Relations with the St. Paul School District where he provided overall leadership for the Labor Relations, Compensation, HR Information, Benefits and Staffing functions.

• Mr. Kreyer’s experience also includes Vice President of Labor Relations and Workforce Development with the Minnesota Hospital Association.

• Education & Civil Involvement

• University of Minnesota, Masters Degree in Industrial Relations

• University of Minnesota, Bachelors Degree in Psychology (I/O psychology emphasis)

• Ongoing professional conferences, seminars, memberships, reading, college instructor and conference presenter.


The Weston Group Provides:

• HR Risk Assessments-Analysis & Identification of People Management Systems-Identify Value Added Enhancements to Current Processes

• Conflict Management & Organizational Effectiveness-“Change Experts” to Manage Major Change-Assistance with Staff Reductions & Organizational Re-Design-Merger & Acquisition: People Facilitation-Litigation Avoidance-Turnover Reduction

• HR Support & Coaching-Executive Coaching-One-on-one Mentoring for HR Staff


The Weston Group Provides:• Recruiting & Staffing

-Executive Searches-Applicant Tracking-ROI Benchmarks/Cost Per Hire-Decrease Time to Hire-Monitor Turnover & Trend with Recruitment & Selection Practices

• Productivity Management-Benchmarks and Metrics-Identifying Opportunities for Productivity Improvement

• Labor Relations-Creating & Maintaining Positive Relationship between Management & Staff-Assistance with Negotiations

• Employee Handbooks-Compliant with Latest Employment Law Changes-User Friendly & Customized for your Culture-Comprehensive, Professional and Practical


The Weston Group Provides:• Job Descriptions

-ADA Compliant-Exempt vs. Non-Exempt Classifications-Job & Interpersonal Skill Competencies

• Compensation/Benefits-Wage & Hour Assessments-Salary Surveys-Compensation Management-Benefit Negotiations

• Performance Management-Orientation Effectiveness-Corrective Action & Discipline-Delivering Difficult Feedback

• Training & Development-Managing Attendance-Employment Law-Dealing with Conflict-Managing Difficult Personalities


The Weston Group Provides:

• Legal & Regulatory-Employee File Review-EEOC & DOL Response to Claims-Workplace Investigations-ADA/FMLA/WC-Dispute Resolution Prior to Claims-Record Retention Requirements


Evolution of the HR Profession

What is HR?

• Simply: A “resource” to our “humans”

• Human Resource Management (HRM) as a function should assist the organization to maximize return on investment (ROI) of human capital & minimize financial risk


HR: The Past 100 YearsThe Reactivity of HR in Its Evolution

Decade Business Realities HR Name Changes Issues

Pre-1900 Small Business & Guilds

Did not yet even exist Owners owned the HR issues

1900 Industrial Revolution Labor Relations People as interchangeable parts

1920 Civil Service & WWII Industrial Relations Workers’ rights and more formalized processes

1940 Scientific Management & WWII

Personnel Administration Efficiency experts and more highly evolved HR processes

1960 Civil Rights & Compliance

Personnel Legal compliance and reporting; “policy police”

1980 Human Relations, the Knowledge/Service Economy and Mergers & Acquisitions

Human Resources Relevance in a fast-changing world; motivation and “human relations” theories abound

2000 Modern Organizations Organization Effectiveness? Human Capital?Organizational Capability?

No new official names, but lots of “morphing” as the transactional p arts get outsourced and the transformational parts get defined

2010 Global Economy and E-Enabled Technologies

TBD Still Evolving, Focus on Talent; Capability; Culture; Consulting – Challenged to Be an Effective Internal Consulting Organization


Old HR vs. New HROld HR (or Personnel)

• You saw them only when hired or fired

• Paper pushers

• Rule makers and rule monitors

• Local, internal organization focused

• Focused on the present only

• “Overhead”


Myths That Keep HR from Being Valued

People go into HR because they like people Anyone can do HR HR deals with the soft side of a business and is therefore

not accountable HR focuses on costs, which must be controlled HR’s job is to be the “policy police” and the health and

happiness patrol--“fluffy" HR is full of fads HR is staffed by nice people HR is HR’s job


Traditional Human Resource Department Structure

…silos of experts?

Hiring Firing BenefitsSalary


Human Resource Functional Areas Job Analysis and Job Evaluation

Job Descriptions

Recruiting

Employee Interviews

Background and Reference Checks

Employee Orientation

Wage and Salary Administration

Benefits


HR Functional Areas (cont.)

Employee Records Management

Vacation/Leave Policy and Administration

Performance Appraisal Processing

Promotion/Transfer/Separation processing

Disciplinary Procedures

Labor Relations/Negotiations


HR processes HR Function Assessment

HR Strategic Planning

HR Planning

Organizational Development

Creating the Value Proposition

Labor Relations

Workforce Management

Selection & Staffing

Performance Management

Employee Relations

Exit Management

HR Administration

H & W Administration

Benefits Administration

Compensation Administration

Information Management

Payroll Administration

Compliance


Old vs. New HR

New HR:

Generalists (know business, not just HR)

Integrated into business units & decisions

Coach management/employees for higher individual/organizational performance

Good communication; customer skills

Broader focus: organization, community

Current & future focus

Adds value (and ROI) to the organization

NOT STRATEGIC ENOUGH


Richard BeattyRutgers University

Strategic Partner

“Strategy development is important for HR, but strategy execution is far

more important”


Strategic Partner – Why HR Hasn’t Been One

Activity Based - # applications, # hired, etc.

Cost Emphasis - budget/EE, Cost/hire

The Legal System - risk adverse vs. problem solving

Employee Advocate - work for the employee

NOT ENOUGH STRATEGY


“If HR wants a seat at the table, it better bring something to eat!”

Ray Weinberg2000 SHRM

Thought Leaders ConferenceProvidence R

A seat at the table . .


Where do you spend your time?Strategic HR Management

HR is a major contributor to business strategy• Design HR strategies to align with business

objectives• Consultation in the development of the

organization’s values, mission, business planning• Member of management team contributing to

business decisions• Participation in quality process; leads efforts for CEO

in people quality • Participates in business task forces (e.g., ISO 9000)• Program management of workforce planning, skills

assessment, succession planning, diversity, retraining

• Foster systems thinking/quality focus

Change Management

HR partners with line managers to lead and facilitate change.• Change management facilitation• Consulting for increased organization effectiveness

(assessment/diagnosis, contracting, action planning, evaluation, follow-up)

• Organization design• System/process redesign• Reconstructing/Re-engineering• Competency analysis• Long-range team and management development

HR Services Delivery

HR provides more service, better quality and greater accessibility resulting in lower cost and increased customer satisfaction.• Wage review• Requisition tracking• Applicant sourcing/interview• Benefits program/delivery• Reclassification/promotions• Data base maintenance and transaction processing• New program introductions• Data reporting and analysis• Classroom training delivery• Interviewing logistics

Employee Commitment

HR facilitates, measures and improves the quality of management and teamwork.• Champion Organizational Way• Facilitate employee surveys• Promote inclusive environment• Promote work/life balance• Management coaching• Communication with employees• Investigation of open door issues• Performance evaluation review• Corrective actions with employees and managers


What HR Can Be

A more strategic view


• Financial commitments• Strategic priorities Efficiency Quality Innovation Customer Service Brand/image• Business transformation Acquisitions/alliances Business model change

• Required organization capabilities

• Critical positions and value relationships

• Objectives and guiding principles

• Alignment: Source, deploy, engage, reward, develop

• Prioritization and change plan

• Human capital metrics

• Measurable Outcomes Efficiency Quality Innovation Customer service Brand/image• Financial performance Revenue ROI Operating margin TSR

Business Plan Workforce Strategy Business Performance

• Attraction• Retention• Engagement

Employee Behavior

• Attraction• Retention• Engagement

Customer Behavior

24

HR Effectiveness Framework — aligning human resource strategy to drive

better business performance


Summary

People are often the most expensive part of running an organization

HRM linked to the Company’s goals is crucial to attaining organizational performance and improving results

Your HR Department should be creating a strategy that is aligned with organizational goals and supported by the Administration and Board

So how do you get there?


An Overview of Core HR Leadership Competencies


Essential HR Management Competencies

When Interviewing, we use checklists and structure questions to look for competencies.

What competencies should we look for in HR people?

For starters, here are nine top contenders

And one final thought…


HR Key Skill #1: Organization

Organized files

Strong time management skills

Personal efficiency

Avoid “the black hole” syndrome


HR Key Skill #2: Multitasking

On any day, an HR professional will deal with an employee’s personal issue one minute, a benefit claim the next and a recruiting strategy for a hard-to-fill job the minute after

Priorities and business needs move fast and change fast, and colleague A who needs something doesn’t much care if you’re already helping colleague B

You need to be able to handle it all, all at once.


HR Key Skill #3: Discretion and Business Ethics

Human Resources professionals are the conscience of the company, as well as the keepers of confidential information

You need to be able to push back when they aren’t, to keep the firm on the straight and narrow

You must be objective, therefore HR has to juggle “friendships” vs. “profession” (especially difficult in small companies)


HR Skill #4: Dual Focus

HR professionals need to consider the needs of both employees and management

There are times you must make decisions to protect the individual, and other times when you protect the organization, its culture, and values

Biggest mistake of HR departments – Lack of objectivity

HR does not make decisions, we should provide guidance for both employees & management


HR Key Skill #5: Employee Trust

Employees expect Human Resources professionals to advocate for their concerns

The HR professional who can pull off this delicate balancing act wins trust from all concerned

Remember, management staff are employees too

You can make everyone successful or achieve win-win if possible?

Give employees “choices”. Give management “guidance”


HR Key Skill #6: Fairness

Successful HR professionals demonstrate fairness

Voices are heard

Laws and policies are followed

Privacy and respect is maintained

Look at entire organization & track precedence to ensure fair & consistent decisions


HR Key Skill #7: Dedication to Continuous Improvement

HR professionals need to help managers coach and develop their employees

The goal is continued improvement and innovation as well as remediation


HR Key Skill #8: Strategic Orientation

Forward-thinking HR professionals take a leadership role and influence management’s strategic path

Proactive vs. reactive – TRACK & TREND

Have the answer before you have the problem


HR Key Skill #9: Team Orientation

Once, companies were organized into hierarchies of workers headed by supervisors

Today, the team is king

HR managers must consequently understand team dynamics and find ways to bring disparate personalities together and make the team work


Nine Skills, But Also One Caveat

The nine skills are not prioritized here, because no general list of skills can take into account the business strategy at your particular organization

Which leads to the caveat: “HR should serve the business strategy. It’s important for HR people to know what that strategy is and what makes the business tick so the approach to HR can be tailored accordingly for your country

You should never think of HR in isolation, because if Human Resources professionals think of themselves as “just HR,” that’s what the rest of the organization will think too.


HR Leadership Competencies Visionary

Strategic

Communicator

Organizer

Team Builder

Mentor

Mediator

Evaluator

Problem Solver


HR Leadership - Vision HR staff needs to have the ability to see where the

organization and their people need to go to meet future needs


HR Leadership - Strategy

HR staff needs to create the strategy needed to move people and resources to accomplish that vision


HR Leadership –Communication

HR staff must have the ability to listen and respond to employees with respect and appropriate communication


HR Leadership – Skillful Organizers

Establish a goal, communicate it accordingly

Schedule workloads accordingly

PLAN! (allocate time & resources)◦ Proactive vs. reactive

Track the progress of a project

Follow-through is critical to build credibility


HR Leadership-Team Builder

Good team builders respect their staff and give them recognition for work well done

They are courteous in their dealings, provide support and direction when needed, and offer constructive criticism in private

Good team builders strive to be fair and respectful when resolving conflicts among staff.


HR Leadership-Mentor

Encourage and motivate employees to reach their potential

Provides empathy not sympathy

Confronts negative behaviors and attitudes

Encourages self-awareness

Maintains high standards of professionalism in interpersonal relationships with employees


HR Leadership-Mediators

Creates a respectful setting and safe environment for discussion

Remains objective!

Identify the real issues (focus on problem, not person)

Provides consequences for choices

Monitors interpersonal interactions and intervenes when appropriate


Effective Interviewing&

Employee Selection


The WHY of Effective Interviewing

Getting the right person for the right job

Increased retention = decreased cost

Increased productivity of the team (right fit)

Increased customer satisfaction

Decrease orientation

Decreased management time


Why the RIGHT questions are important

Select and design questions carefully

to get the information needed to make quality hires

while avoiding discriminatory intent.


Behavioral Based Interviewing

FACT

Previous performance is the best indicator of future performance

55% predictive of future on-the job behavior

vs. traditional interviewing

provides only 10% prediction



Provides in-depth information of the candidates job related:

Experiences Behaviors Knowledge Skills and abilities

Simply change your questions!“Give me an example of……”


First, Know Your Own TraitsAssertive

Results OrientedIndependent

Likes tangible rewardsBe in charge

Direct approachTask-driven

AdaptableInterdependent

Be involvedResponsive approachRelationship-Driven

SocialEnthusiastic

AnalyzeAutonomy

Be in controlReserved approach

Methods-drivenConsistency

Detail oriented

AssessFreedom

Be informedQuestioning approach

CreativePlannersVisionary


Be a Good Listener

Constructive listening

• Nonverbal communication Watch their body language

• Eliminate bias views Watch your body language

• Do not interrupt


•

Behavioral-Based Interviewing

Professional Capacity

Leadership◦ Mentoring◦ Critical Thinking◦ Time Management◦ Conflict Resolution◦ Change Management◦ Diversity

Financial Management◦ Accountability◦ Budget Review

Operations◦ Safety◦ Client Relationships◦ Technical Skills◦ Legal & Regulatory◦ Service Development

Other◦ Community Involvement◦ Professional Organizations


Examples

Give me an example of a difficult client/customer relationship and how you worked through it

Describe a decision you made that was unpopular and how you handled implementing it

Give me an example of a time when you set a goal and were able to meet or achieve it

Give me an example of how you delegate duties to others. How do you hold individuals accountable?


Topics and Questions to Avoid Age

Arrest Record (you can ask about convictions)

Marital and Family Status

Religion

Disabilities

Race

National Origin

Military status


Laws that affect the interview process

Title VII of the Civil Rights Act of 1964 ◦ Race◦ Sex◦ Color◦ Nation of Origin◦ Religion◦ Vietnam Veteran ◦ Pending—Sexual Orientation

Age Discrimination in Employment Act (ADEA)

Americans with Disabilities Amendment Act (ADAA)

Immigration Reform and Control Act (IRCA)◦ Citizenship◦ Nation of Origin


Laws that affect the interview process

National Labor Relations Act (NLRA)◦ Union membership

Uniformed Services Employment and Reemployment Rights Act (USERRA) ◦ Membership or service in the uniformed

services

Bankruptcy Act

Child Support Enforcement Amendments


What to ask and not ask

Age

◦ Instead of: When did you graduate? When do you intend to retire?

◦ Ask: Are you old enough to do this type of work? Can you supply transcripts of your education?


Disability

◦ Instead of: Do you have a disability? Have you ever filed a workers compensation claim? Do you have a history of drug or alcohol abuse?



Disability

◦ Ask After reviewing the job description, “Can you do the

duties listed in the job description, with or without accommodation?”

◦ Must do Employers must provide reasonable accommodation to

candidates who have disabilities.



Race

◦ A candidate’s race will usually be at least somewhat evident, but race related discussions or questions may imply a preoccupation with that factor




Religion

◦ Instead of: What outside activities do you participate in?

◦ Ask: What professional associations are you a member of?



Sex/marital status

◦ Instead of: Are you married? When do you plan to start a family? Do you have children?



Ask:

Are you available to travel frequently? Can you work overtime with no notice? Can you work evenings and weekends? When we check references/do a background check, are

there other names we should look under?


National Origin/Citizenship

◦ Instead of: Are you a citizen of the US? What country are you from? Where is your accent from? What nationality is your last name? When does your visa expire?



Ask:

If you are hired, are you able to provide documentation to prove that you are eligible to work in the US?



Financial Status

◦ Instead of: Do you own a home/car? Have you ever filed for bankruptcy? Are you subject to any garnishments or child support

orders?

Ask: Will you sign a form authorizing us to perform a credit

check?



Military

◦Instead of: Please provide the status of your military

discharge Will you miss work to perform military service?

◦Ask: What experience did you gain in the uniformed

service that is relevant to the job you would be doing?



Arrests and convictions

◦ Instead of: Have you ever been arrested?

◦ Ask: Have you ever been convicted of a crime? You must qualify this question by stating that a

conviction will not automatically disqualify a candidate



Closing the Interview

Ask the candidate if he or she has any questions

Summarize the next steps in the process

Avoid making any promises or commitments to the candidate

Thank the candidate for his or her interest in the position


Post Interview

Review your notes

Summarize your overall impression of the candidate immediately after the interview while your memory is fresh

Consider other open positions for which the candidate may be a good fit



Evaluation Rating System

5. Excellent

4. Good

3. Acceptable

2. Poor

1. Very Poor/Unacceptable

Average scores for objective ratings


Choosing the Right Person

Compare/contrast the candidates◦ You may use a formal ranking system providing you are

comparing the same criteria/responses

You may have other managers or your staff interview the final candidates

Gather input from others but remember, it’s ultimately YOUR decision


MAKING THE OFFER

Don’t misrepresent opportunities

Offer letter

Condition job offer on tests, references, etc.


REFERENCE AND BACKGROUND CHECKS

What to check for

Where to check

References

Negligent hiring

By the way, The Weston Group offers a cost effective background checking service…


KEEP THEM THE BEST AND MAKE THEM BETTER

Orientation

Training

Performance improvement


In Conclusion...

Treat the candidate fairly

Make the interviewing environment as comfortable as possible

Ask relevant questions

Probe for work-related events that detail the person’s experience, skills and knowledge

Keep an open mind…and an appropriate sense of humor!


Employment Law


Federal Employment Law Update

National OriginOSHARace DiscriminationReligious DiscriminationSex DiscriminationSexual HarassmentTitle VIIWARN

Affirmative ActionAge DiscriminationClass ActionsCOBRADisability DiscriminationEmployee BenefitsFLSA & Wage & HourFMLAImmigration


Top Five Risks#1 Misclassification of Workers as Independent

CONTRACTORS

• On Feb. 1, President Barack Obama released his federal budget for the coming fiscal year, including $117 billion for the United States Department of Labor, of which $25 million was set aside expressly to help combat employee misclassification

• Civil penalties against an employer of up to $1,000 per misclassified employee for a first violation and up to $2,500 per misclassified employee for each subsequent violation

• Misclassification of employees as independent contractors can result in substantial liability and penalties for, among other things, back taxes, overtime pay, workers compensation, employee health benefits, and retirement benefits


Misclassification of Workers as Independent CONTRACTORS

• FedEx recently agreed in principle to settle a California lawsuit filed by its workers alleging that FedEx had misclassified them as independent contractors for $26.8 Million

Why Do Employers Do It?

• Benefits to the employer include decreased payroll tax obligations, freedom from minimum wage and overtime requirements, no medical insurance or retirement benefits costs, and other administrative savings.

• Advantages for the independent contractor include flexibility, more money up front and tax benefits unavailable to employees, including deducting legitimate business expenses.


PREVENTION

• Annual risk assessment of pay practices

• Centralize authority to classify workers

• Payroll/HR communicate regularly about red flags

• Educate front line managers and supervisors

• Keep eyes and ears open


Top Five Risks#2 WAGE & HOUR VIOLATIONS

•The Fair Labor Standards Act (FLSA) sets minimum wage and overtime pay standards for employment.

•The Act also gives the U.S. Department of Labor's (DOL) Wage Hour Division (WHD) the authority to investigate and gather data regarding the wages and hours of employment for entities subject to the requirements of the Act.

• Employers that violate minimum wage or overtime pay provisions may have to pay back wages and penalties.

•Recent settlements:• AT&T = $1 Billion • Walmart = $40 Million (in Massachusetts alone!)


Top Five Risks#2 WAGE & HOUR VIOLATIONS

Recent survey of Las Vegas based employees:

• Over 25% of survey respondents reported that they had received less than the minimum wage in the previous week, and 60% of those reported being underpaid by more than $1 per hour.

• More than 75% of survey respondents reported not being compensated for overtime worked in the previous week—and they averaged 11 hours of weekly overtime.

• Almost a quarter worked off the clock (and weren't paid for it), and nearly two-thirds of those entitled to a meal break didn't receive the full, uninterrupted, work-free break required by law.


Top Five Risks

#2 WAGE & HOUR VIOLATIONS

• Just over 40% had deductions illegally taken from their paycheck (for breakage or to pay for tools or other items required for work, for example)

• Exempt vs. Non-Exempt – HUGE

• The DOL has added 250 new investigators and damages/ attorney’s fees will be doubled for “willingly and knowing” violations


PREVENTION

• Annual risk assessment of pay practices

• Centralize authority to classify workers / make policy

• Payroll/HR communicate regularly about red flags




#3 GENDER & RACE DISCRIMINATION

Sexual Harassment in the Workplace: It's Not Always What You Think

Male – Female

Female – MaleFrom 1990 to 2009, the percentage of sexual

harassment claims filed by men has doubled from 8 percent to 16 percent of all claims, according to the Equal Employment Opportunity Commission.

Same sex harassmentMost often settlements EEOC states these are also on the rise




The perpetrator does not have to be part of the same company as the victim.

Any party acting as an agent of the employer such as a real estate agent or consultant can be a perpetrator in a harassment claim.

In addition, a harasser could be a delivery person from another company. The company who sent the delivery person could be

held accountable for the harassment. Likewise a delivery person could sue for sexual

harassment from the actions of one of the companies he delivered to.




The victim does not have to suffer economic or job related injury to file a harassment claim.

Hostile work environment harassment is harassment that typically must be intentional, severe, recurring and pervasive, and interfere with an employee's ability to perform his or her job

Work Place Romance…..



Workplace Romance

In a survey by CareerBuilder.com in 2009, 40% of respondents revealed that they have dated a coworker

When can consensual sex create a hostile workplace environment?

Sexual favoritism

California Supreme Court held that "when such sexual favoritism in a workplace is sufficiently widespread it may create an actionable hostile work environment”



• According to the EEOC’s suit in U.S. District Court for the Northern District of Ohio, Eastern Division (Case No. 1:08-cv-02199), a class of black employees was subjected to racial hostility and discriminatory behavior at Mineral Met’s Cleveland facility. • For example, Quality Control Supervisor Langston

Satterwhite, of Maple Heights, Ohio, had an excellent performance history, but a white supervisor unfairly disciplined him for trivial matters, such as having facial hair or using a cell phone, even though white co-workers were not reprimanded for doing the same things.

• Other black employees were also repeatedly cited for alleged policy violations while white employees were not disciplined for engaging in the same behavior, the EEOC said.


PREVENTION

• Annual training on sexual harassment and respect in the workplace

• Managers should be held accountable for following policy




#4 ADAAA

• The ADAAA, which took effect in January 2009, makes it significantly easier for a plaintiff to establish that he or she is disabled under the ADA

• While the ADAAA retains the ADA’s definition of “disability” as a substantial limitation of a major life activity, it stipulates that its meaning “shall be construed in favor of broad coverage of individuals

Top Five Risks


Top Five Risks#4 Almost everyone is covered by ADAAA

(Disability)

• More people with disabilities filed charges of discrimination against their employers last year than at any other time in the 20-year history of the Americans with Disabilities Act

• USA Today: The number of ADA charges filed in 2009 hit an all time high with almost 21,500 ADA related charges being filed with the EEOC

• The good news: 60% were found to have no basis under its rules, and about half of the cases it did take resulted in an outcome favorable to the employee.

But consider the cost to defend


#4 Almost everyone is covered by ADAAA (Disability)

The main reasons for the increase:

The Great Recession

Amendment to the ADA that broadened the definition of what it means to be disabled.

Common issues:

Being fired

Complaints include being overlooked for promotion

Not being switched to a job that matches the person's abilities

Not getting accommodations such as computer upgrades to be able to do a job


#4 Almost everyone is covered by ADAAA (Disabiity)

•Employer-caused psychological ills can trigger ADA claim

Recent case: Amelia Ravan claimed that her supervisors at Forest Pharmaceuticals wanted to get rid of her and that she worked in what was essentially a hostile environment.

When she couldn’t take the stress anymore, she was diagnosed with anxiety and depression and took FMLA leave.

When she couldn’t return, she lost her job.

Ravan sued under the ADA, claiming that her employer had triggered a disability and therefore should have accommodated her.

The court hearing pretrial motions said Ravan’s lawsuit will go forward.


PREVENTION

• Ongoing review of ADA cases – be proactive!

• Managers/HR communicate regularly about potential issues –be proactive!

• Have ADA compliant job descriptions



• Have a resource ready for issues/questions


Top Five Risks

#5 FAMILY & MEDICAL LEAVE

• According to WorldAtWork.org, claims related to FMLA have increased by more than 10 percent this year

• More people in the United States are becoming aware of their rights under FMLA or perhaps less companies want to provide family medical leave protection to workers in such tough economic times.



The top reasons for FMLA leave:

• Personal illness or injury

• Care for a child

• Care for an elderly relative.

• Time off for pregnancy

• Time off for the adoption of a child or birth of a child

• Care for a recently injured military member



Most important to remember:

• Determine if employee is eligible• Make employee aware of eligibility• Start the paperwork process• Be sure you get completed paperwork• Access resources if you don’t understand the condition• Track utilization if intermittent• Get re-certification if needed• Track exhaustion of leave• BE CONSISTENT!



• Fitness for Duty: HOW you do it is important

• Charlene Wisbey brought suit against her employer of twenty-seven years, claiming that her rights under the Americans with Disabilities Act (ADA and the Family Medical Leave Act (FMLA), were violated when she was terminated based on the results of a “fitness for duty exam.”

• The court of appeals ruled that it was reasonable for the City of Lincoln, Nebraska (the City), to perform a fitness for duty exam to ascertain the cause of behavior which was interfering with Wisbey’s ability to perform her job functions, as well as rely on the results of the exam when it came to making their decision to continue or terminate her employment with them.


Americans With Disabilities ActFamily & Medical Leave Act

Workers’ Compensation

“THE TORNADO”


ADA / FMLA / WC

ADA – 15+ Employees Department of Justice

FMLA – 50+ employees Department of Labor

WC – 1+ Employee Department of Labor


Easy Steps to Remember

Work related?

How many employees do you have?

How long has employee been here?

Chronic or just serious?◦ Validate the diagnosis

If ADA, FMLA and WC,GET HELP!!!


Common Mistakes Employers Make

Reactive rather than proactive

“Training does not produce revenue”

Improper termination◦ Be sure to have a consistent corrective action policy

Assuming there is no strong basis for immediate termination, giving at least one warning is important to demonstrate fair treatment

Jurors LIKE employees


Common Mistakes Employers Make

Lack of quality documentation

Favoritism

False comfort◦ Employment-at-will

Do the right thing!


Other Hot Issues

Military Rights (USERRA)• Angel Vega-Colon, a member of the Army Reserve, became

employed by Wyeth Pharmaceuticals as a packaging equipment supervisor in 2002. From 2002 to February 2004, Vega-Colon was on active military status and took various leaves from Wyeth for military training. From 2004 to 2007, Vega-Colon was on inactive status with the Army Reserve and took no military-related leaves. However, in February 2006 he received an invitation to return to active duty as a captain, and he informed his supervisor that he was going to return to active duty in the future, with a high probability that he would be mobilized. In April 2006, Vega-Colon applied for a promotion to reliability engineer but was not chosen for the position.


Other Hot Issues

Medical Marijuana-not here…..yet!

• Arizona residents with a wide variety of “medical conditions,” including muscle spasms and patient-defined symptoms such as pain and nausea, would be eligible to obtain marijuana for medicinal purposes.

• Unless a failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination or imposing any term or condition of employment or otherwise penalize a person


Other Hot Issues

Social Networking

• An ambulance service illegally terminated an

employee who posted negative remarks about

her supervisor on her Personal Facebook page,

according to the National Labor Relations

Board’s (NLRB) Hartford, Conn., office, which

announced on Nov. 2, 2010, that it has issued

a complaint against the company.


Hot IssuesPaycheck Fairness Act

• Appears to be one of a handful of bills scheduled for a lame-duck vote in the Senate.

• The proposed legislation would increase employers’ potential liability for compensation decisions.

• Under the proposed law, to defend against discrimination claims, employers must demonstrate that any pay differential is based on a “bona fide factor other than sex, such as education, training, or experience” and is “consistent with business necessity,” among other requirements


Hot IssuesWhistleblowers

• Cheryl D. Eckard worked as the company’s quality manager. She claims that she alerted GSK management about the problems associated with the facility in question and the company fired her rather than address the appropriate issues. Thereafter, Eckard filed a False Claims Act (“FCA”) Qui Tam action in the U.S. District Court of Massachusetts

• GSK agreed to pay the United States and the Medicaid Participating States (“MPS”) the sum of $600 million, plus accrued interest ($436,440,000 will be paid to the United States as the federal settlement and $163,560,000 will go to the MPS). GSK will pay an additional $150 million in criminal fines.


Whistleblowers: Implications for Employers1. The False Claims Act is a Major Weapon for Law

Enforcement: The FCA is one of the federal government’s key weapons for addressing corporate fraud.

2. Employees Have Strong Incentives: Under FCA’s Qui Tam provisions, the settlement agreement provides that Eckard will receive a hefty 22 percent share of the federal settlement amount, which comes to more than $96 million

3. Compliance and Ethics Programs are Essential but must be Managed


PREVENTION• Annual risk assessment of HR management practices

• Keep HR staff up to date

• Know where you can find resources to assist with specifics



• Have internal “hotline” or other mechanism in place so employees can be heard


COMPENSATION BASICS


TOTAL COMPENSATION

Base Pay

Benefits

Ancillary Pay

Retirement Plan


COMPENSATION TERMINOLOGY• Base Pay

• Pay for hours worked in a standard pay period

• Ancillary Pay• Pay in addition to base pay (differentials, incentives etc.)

• Salary Survey• Tool used to collect salary data for a defined market.

Third party consultants are used to administer surveys and collect data so no individual organization’s salaries are known which would violate federal anti-trust laws.


COMPENSATION TERMINOLOGY• General Increase

• A percentage of increase given “across the board” to all employees

• Merit Pay Increases• Increases to base pay driven by performance

• Market Equity Increases• Increases to base pay driven by the market value of a job

with critical skills being higher than current pay rates• Internal Equity

• Increases to an individual’s base pay driven by comparing several factors including the knowledge, skill, experience, relevant training and performance to those of their peers.


Market or Benchmark Positions

These are positions that can be found in other organizations. Examples include positions that you routinely find in health care organizations.

Examples include:

•Secretary•Housekeeper•Food Service Worker•Janitor•Truck Driver


Pay Range Width

The pay range width is the difference between a position’s minimum rate of pay and its maximum rate of pay.

All salary ranges are determined by averaging the MINIMUM wage range gathered from salary survey information

Each facility determines the width of the ranges and how employees move through the range with longevity.


◦ Obama Administration has promised increased enforcement activity and has substantially increased DOL resources

◦ The plaintiff’s bar has launched an aggressive nationwide campaign, using websites to encourage hourly employees to join wage and hour lawsuits

◦ Settlements in private and DOL enforcement actions routinely run in the $2 million to $5 million range, and have exceeded $85 million

Why Compliance Matters


◦ Minimum wage and overtime requirements

◦ Hours of work and how to calculate overtime

◦ Recordkeeping requirements

◦ Exemptions from overtime requirements

◦ Child labor laws

FLSA Basics


◦ Wage and hour issues are critical to the operation of the organization

◦ FLSA determinations may be difficult

◦ The law affects employee compensation

◦ You play an important role in compliance

Why You Need to Know


FLSA Exemptions

◦ Who is exempt? ◦ How do you determine exemptions?


Nonexempt and Exempt Nonexempt employees -Hourly

Exempt employees -$455/week -Cannot be subject to reduction because of

variations in the quality or quantity of work

-Docking issues

WHO DETERMINES CLASSIFICATION?


Minimum Wage

◦ Application

◦ Federal versus state requirements

◦ Minimum wage/overtime posters


What Hours Count?Employees must be paid for

work “suffered or permitted” by the employer even if the employer does not specifically authorize the work.

If the employer “knows or has reason to believe” that work is occurring, the employee must be paid for the hours—even if off-site or off-shift.

MANAGE THE ISSUE


What Hours Count?

◦ Waiting time “engaged to wait” or “waiting to be engaged”

◦ On-call time Who is designated “on call”

◦ Travel time “portal to portal”

◦ “Changing” time


Rest Periods

◦ Meals Required under FLSA? 30 minutes UNINTERRUPTED Automatic deductions

◦ Work breaks 5-20 minutes Not a guarantee

◦ Sleep time


Recording Work Time

◦ Means of tracking hours

◦ Regular starting and stopping times

◦ Discrepancies

◦ Automatic deductions (meal)


Rounding Errors

Issue arises when employer tracks time in 15 minute increments

RULE: 1-7 minutes may be rounded down to 0

8-14 minutes rounds up to 15


Deductions from Pay

◦ Absences due to illness or disability ◦ Absences for personal reasons ◦ Disciplinary suspensions and penalties

◦ First and last weeks of employment

◦ Unpaid leave


Child Labor Laws

◦ Purpose of child labor laws

◦ Workers under age 18

◦ Minimum wage

◦ Overtime


Work Restrictions

◦ Work restrictions for all minors under 18

◦ Other restrictions vary depending on minor’s age


Hours of Work

◦ Restrictions for minors who are 14 or 15

◦ No restrictions for minors who are 16 or 17


Key Points to Remember

◦ FLSA is a federal law that applies to most organizations

◦ This law governs minimum wage, overtime, and child labor issues

◦ Most employees are covered

◦ Be aware of the impact of this law


What is next on the horizon?

Wage Theft Prevention Act (H.R. 3303)

Family-Friendly Workplace Act (H.R. 933)

Living American Wage Act of 2009 (H.R. 3041)

Working Families Flexibility Act (H.R. 1274)

Not realistic before Healthcare Reform and Employee Free Choice (my opinion)


THE RESOURCE SQUEEZE:

137

Managing Employee Benefits

$ $


Aging Workforce

Americans over 65 will make up more than 16 percent of the population within 10 years.

Germany is aging even faster: More than a fifth of the country (21.6%) will be over 65 by the year 2020.

Birth certificates became standard nationwide in 1933, many persons over 100 years of age may not know exactly how old they are, and may have outlived anyone who does.


Occupations with highest median ages:

# 1 = Farmers

Occupations with the next highest median age are:

Real estate agents / property administrators

Ministers of religion

Bus drivers and other transit operators

Senior managers in health, education, social and community services

Senior government managers


Aging Workforce

Rank/State 110 and Older 100-109

1. California 129 -5,341

2. New York 85 -3,997

3. Florida 145 -3,573

4. Texas 113 -2,947

5. Illinois 59- 2,390


Aging Workforce


6. Pennsylvania 46 - 2,400

7. Ohio 41 - 1,910

8. Michigan 40 - 1,535

9. Massachusetts 17 - 1,552

10. New Jersey 38 - 1,514


Aging Workforce


6. Pennsylvania 46 - 2,400

7. Ohio 41 - 1,910

8. Michigan 40 - 1,535

9. Massachusetts 17 - 1,552

10. New Jersey 38 - 1,514


Strategic Initiatives1. Slip and fall prevention

Falls alone account for more than one-third of all injuries sustained by workers 65 and older, and it takes an older worker two to three times longer to recover from an injury than a younger counterpart.

2. Ergonomics Ergonomic evaluations of workstations and

workspaces can identify causes of fatigue and strain for older workers

New computer screens are being introduced, with bigger type

Special shoes Wooden floors


3. Safe driving

Death rates for work-related roadway crashes increase steadily beginning at around age 55, and older drivers (55 and above) are more likely than other drivers to have a crash at an intersection or when merging or changing lanes on a highway.

4. Return to work

Because claim statistics reflect a connection between increased healing time and age, there is a need for highly responsive return to work efforts for older workers.


Employer CostsSeptember 08, 2010 –Bureau of Labor Statistics

Private industry employers spent an average of $27.64 per hour worked for employee compensation in June 2010.

Wages and salaries averaged $19.53 (71%), and benefits averaged $8.11 (29%).

Private industry employer costs for retirement and savings plans averaged $1.31 cents per hour (4.4%) worked in June 2010


Civilian employer costs averaged $2.60 per hour worked for insurance benefits (life, health and disability), or 8.8% of total compensation.

In addition to insurance, the other benefit categories are:

Paid leave (vacation, holiday, sick leave and personal leave), which averaged $2.04 (6.9% of total compensation)

Supplemental pay (overtime and premium, shift differentials and nonproduction bonuses), which averaged 71 cents per hour worked (2.4%)

Insurance and workers' compensation, which averaged $2.30 per hour worked (7.8%).


Health Care Costs


Health Insurance


Health Insurance

* Indicates a significant difference from previous year


Downsizing Statistics

•Federal Reserve Chairman Ben Bernanke declared that the recession was over for the U.S. on September 15, 2009

•The effects of the recession for the U.S. retail industry predicted to extend well into 2010.


Downsizing – Long Term Effects•A lack of executive commitment to their functions

•Confusion about the priorities of their organization

•Increased workloads

•Confusion about their mandate

•A sense of being betrayed by executives and managers

•A profound sense of distrust

•A sense of futility with respect to long-term planning

•Undervalued and unappreciated


Downsizing – Think Before You Cut

3. If you are in the unfortunate position of managing an organization that is "downcycling", you need to be aware of a few things:

First, it will get worse if neglected.

Second, interventions to turn the cycle around must be considered as long-term projects.

Remember that your organization may have been moving downward for a year or two, and that it is going to take a substantial period of time to reverse the process.

Positive change will require a consistent effort on your part, and may require consulting help over a period as long as a year.


Downsizing – Think Before You Cut

1. Proactive management activities are always required when downsizing occurs.

Managers must realize that they "can pay now or pay later", and that delaying actions designed to revitalize the organization will result in a huge cost down the road.

2. Support should be offered to those that are displaced, but, in the long term, help offered to "survivors" will be much more important in determining organizational health.


QUESTIONS

Strategic Human Capital Management

Corporate Office:315 S. Phillips Avenue

Sioux Falls, South Dakota 57104Office (605) 275-4747

[email protected]

www.TheWestonGroup.com

Documents

HR 101 - What all employers need to know