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• Top 2019 Compliance
Challenges for HR:
• Ready, Set, Go
• January | 2019
What Affects Workplace
• Society
• Culture
• Technology
• Government
• Legal landscape
• Generational changes
Increased Compliance Obligations/Requirements
• Laws
• Regulations
Today’s Workplace Evolving Rapidly
Significant Changes Affecting Workplace
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• Civil fines
• Criminal penalties
• Administrative actions – EEOC charge, unfair labor practice
• Litigation
• Harm to business reputation and professional image
• Bad publicity/negative press and social media
Risks of Noncompliance
Employers Face High Stakes
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• XpertHR conducts an annual survey of HR professionals Fall 2018
• Received over 800 responses from small, medium and large employers
• Wide variety of industries, all geographic areas of the country
• Information provided guidance to compile list of top challenges and whitepaper
• Will touch on several specific findings throughout today’s presentation
XpertHR Survey
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Challenge #1: Federal Challenges
Changing Federal Focus
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• Fundamental shift with Trump presidency employer friendly policies
• Under Obama – pro-employee sentiments, greater agency authority
• Now smaller role for government, decreased regulations, driving oversight to states
• Roll back agency authority – EEOC, NLRB, OSHA, DOL
Challenge # 1: Federal Challenges
Areas of Concern
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Affordable Care Act
• Obligations and uncertainty continue to burden employers
• 39% viewed preparing for future of healthcare and ACA
as very or extremely challenging
Immigration/Travel Ban
• Hardline stance/restrictive policies in light of increasingly diverse society
• Increased compliance obligations, I-9 audits and raids by ICE
• 31% viewed hiring of workers on visas very or extremely challenging
Challenge # 1: Federal Challenges
Areas of Concern
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Conflict Federal/State Marijuana Laws
• Employers unsure how to handle
• 34% were very or extremely challenged by conflicting laws
LGBT Rights
• Trump administration Title VII does not protect sexual orientation and gender identity
• Rescinding bias protections
• Protecting religious liberty at expense of individual rights
Supreme Court
• Conservative Justices appointed by Trump Gorsuch and Kavanaugh
• 28% viewed impact on employment law as very or extremely challenging
• Closely monitor developments new Congress both House and Senate 2019
• Anticipate new regulations GINA and ADA wellness, overtime
• Comply with the laws and regulations that are on the books, at least until they are changed
• Comply with immigration requirements
• Practice inclusion regarding LGBT rights
• Maintain detailed adequate records/documentation regarding employees/employment actions
• Legitimate business reason for each employment decision
Challenge #1: Federal Challenges
What an Employer Should Do
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• Minimum wage increases
• Paid sick leave/paid family (parental) leave (small number states)
• Medical marijuana (33 states and growing, expanding conditions), recreational marijuana (10 plus states)
• Harassment protections increased (i.e., California, Delaware, Maryland, New York, New York City)
• Predictable/predictive scheduling
Challenge #2: State and Local Issues
Trending and Emerging Issues
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• Salary history ban/equal pay (i.e., CA, Hawaii, Illinois, Massachusetts, New Jersey, Oregon, Washington)
• Breastfeeding/pregnancy accommodations (i.e., Illinois, Massachusetts, New Jersey, Utah, San Francisco)
• Gun laws/weapons in the workplace
• Military protections (i.e., California, New Jersey, Massachusetts, Missouri, South Dakota)
• Domestic violence leave (i.e., Vermont and Washington)
• Ban the Box for private employers
Challenge #2: State and Local Issues
Trending and Emerging Issues
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38% very or extremely challenged by paid sick
leave laws
36% very or extremely challenged by paid family/paid parental
leave
32% very or extremely challenged by medical
and recreational marijuana laws
30% viewed investigating
harassment complaints as very or extremely
challenging
29% very or extremely challenged by equal pay
and wage disclosure laws
Survey Says
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• Carefully monitor existing/emerging state and local law developments stay on top of trends
• Know which state/local laws apply to workplace – create comprehensive strategy to manage conflicting laws
• Determine how to handle conflicts/address state and local differences in employee handbooks/ policies
• Determine how to handle legal updates
• Train supervisors and employees on need-to-know state and local laws and key differences
Challenge #2: State and Local Issues
What an Employer Should Do
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• Workforce planning the process of aligning business needs with workforce needs to ensure legal compliance
• Internal and external factors shape recruiting, hiring and retention
• Economy and market factors
• Laws and regulations on federal, state and local level
• Technology/mobile devices improve communications and productivity
• Increase in flex work/gig economy/alternative work arrangements greater work/life balance/control
• Scientific advancements - automation, robotics, artificial intelligence challenging traditional workers
• Changing societal demographics aging Baby Boomers, Millennials/Gen Z, managing multiple generations
• Global society and global marketplace
• Using HR data- predictive analytics
Challenge #3: Workforce Planning
21st Century Workforce Trends Affecting Employment
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64% viewed finding high quality applicants
as very or extremely challenging
52% very or extremely challenged by
ensuring employees and supervisors have
the necessary skill sets
50% very or extremely challenged when it came to creating a succession plan
49% found increasing employee engagement,
morale and satisfaction very or
extremely challenging
49% viewed retaining employees as very or extremely challenging
47% viewed managing performance and
providing professional development
opportunities as very or extremely challenging
43% viewed aligning talent retention
strategy with business objectives as very or
extremely challenging
40% very or extremely challenged by handling
mergers and acquisitions
Survey Says
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• HR should play an active role in shaping the evolving workforce and identifying right people for the right
positions at the right cost
• Understand the unique factors affecting business and assess short and long term goals
• Align HR objectives with business objectives
• Utilize data analytics in all phases to track progress (recruiting/hiring, performance, retention)
Challenge #3: Workforce Planning
What an Employer Should Do
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Hiring
• Focus on industry experience, skills, competencies, talent
• Keep budget/business goals in mind
• Consider gig and contract workers
• Utilize technology and mobile apps in recruiting
• Remember new laws (salary history, ban the box)
Training
• Focus on professional development/education and building long term skills
• Provide leadership opportunities/mentoring/support to move into higher position
• Highlight key competencies and how they can benefit organization
Challenge #3: Workforce Planning
What an Employer Should Do
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Performance
• Who will conduct reviews and how often
• Consider goals of performance reviews/what to accomplish
Engagement/Retention
• Assess who the employer is losing and why
• Identify risks
• Consider how to retain (increased compensation/benefits/work-life balance)
Managing Generations
• Consider retirement options for Baby Boomers – packages/benefits offered
• Account for unique skills/talents of younger generations – Millennials and Generation Z
• Retain older workers in changed capacity
Challenge #3: Workforce Planning
What an Employer Should Do
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• Expanding federal, state and local level leave laws
◦ Federal FMLA, ADA, USERRA
◦ State and local level paid sick (MD, NJ, VT, MI), military, domestic violence, bereavement, organ
donor, school activities, emergency responder, crime victim leave – (new – NYC proposal paid time off)
• Managing their complex interrelationship
• Consider leave as a benefit/perk
Challenge #4: Employee Leaves
Various Types of Leave Now Legally Required
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• Injured employee may be subject to FMLA- ADA – workers compensation
• Sick employee may be subject to State and local paid sick leave laws- ADA
• Pregnant employee/new parent may be subject to FMLA, state family leave laws, paid family leave
insurance
• Military employee may be subject to USERRA – ADA- family military leave- state military leave laws
Challenge #4: Employee Leaves
Intersection of Leave Laws
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47% found tracking and complying with rapidly
changing state leave laws to be very or extremely
challenging
46% found tracking and complying with rapidly
changing local leave laws to be very or extremely
challenging
40% found determining if the employer will offer
uniform leave benefits or comply with various law to
be very or extremely challenging
39% found determining an overall business strategy
for leave to be very or extremely challenging
Survey Says
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• Determine which leave laws apply to each workplace and how laws work together
• Provide proper notice of leave laws - policies and procedures, employee handbooks, notices/posters
• Review all paid time off, vacation or other paid leave policies and reasonable accommodation policies to
determine if other policies may need to be created
• Avoid blanket policies – leave room for discretion
• Train supervisors - handling leave requests, tracking
• Understand how different leave related laws intersect
• Determine comprehensive approach if multistate employer
• Decide if you will go beyond legal requirements – may reduce turnover/absenteeism and increase
productivity/retention/morale
• Avoid wrongfully denying leave request – could lead to employer liability
Challenge #4: Employee Leaves
What an Employer Should Do
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Advantages
• Benefits can help attract/retain employees
• Increase employee engagement
• Provide competitive advantage
• Decrease absenteeism/tardiness
Challenges
• Compliance with ERISA, COBRA, ACA, HIPAA, GINA
• Effectively communicating to workforce/ understanding requirements
Challenge #5: Benefits/Health/Wellness
Important to Have Happy & Healthy Employees
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48% very or extremely challenged by
employee mental health issues
40% believed preparing for the future of healthcare and ACA was very or extremely
challenging
39% very or extremely challenged by
communicating the value of benefits to the
workforce
38% found adjusting benefit offerings to
attract a diverse workforce very or
extremely challenging
36% very or extremely challenged by aligning
employee benefits offerings with
business objectives
30% very or extremely challenged with respect to
determining which voluntary/supplementary benefit programs provide
best ROI
28% found implementing wellness
programs very or extremely challenging
Survey Says
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• Evaluate benefits – Competitive? Latest trends? Match organizational needs? Generational needs?
• Offer creative benefit options (beyond health/dental/vision)
◦ Tuition reimbursement
◦ Flexible work time
◦ Job sharing
◦ Commuting benefits
◦ Gym membership
◦ Concierge services (child care, pet care, dry cleaning),
◦ Student loan assistance
◦ Financial planning
• Assess vendors and offerings, redesign or eliminate if not working
Challenge #5: Benefits/Health/Wellness
What an Employer Should Do
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• Consider supplemental and voluntary options/ personalization and customization
• Comply with ACA reporting requirements/obligations in accurate and timely manner
• Understand increased use of technology and mobile applications, telemedicine, AI
• Effectively communicate benefit options to workforce
• Focus on employee wellness and employee assistance programs (not easily detected)
• Make sure that any wellness programs are compliant
Challenge #5: Benefits/Health/Wellness
What an Employer Should Do
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• Rapid pace of technological developments/omnipresent internet/mobile devices
• Positive impact mobility, communication, productivity and efficiency, but enhanced risks
• Tremendous amount of information digitally stored belonging to employer, employees, customers/clients
• HR needs to take steps to minimize risk of cyber breaches/ protect confidential digital information
Challenge #6: Data Security & Privacy
Critical to Safeguard and Protect Confidential Data and Information
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State Efforts
• All 50 states have data security law in place
• Employers required to provide notice when personally identifiable information acquired without authorization
• Information extends to name, SSN, drivers license number, credit/debit card information, bank accounts
• States like California and New York taking additional steps to protect privacy of data and information
• Biometric privacy laws
European Union
• Organizations that collect/transfer data of workers in the EU have compliance obligations affecting HR data
• Must ensure data processed for permissible reason, provide notice when processing
• Allow workers to access, correct, object to delete or restrict processing of personal data
• Implement organizational/technical privacy measures
• Implement security safeguards/security incident response plan
Challenge #6: Data Security & Privacy
Legal Efforts to Protect Data and Information
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51% very or extremely challenged when it came to preventing cyber breaches and
data security
41% very or extremely challenged by
managing mobile devices, wearable
technology and the internet of things
39% very or extremely challenged when it came to managing
technology and social media at work
34% very or extremely challenged regarding the impact of block chain on recruiting,
hiring, payroll, productivity
31% viewed preparing for use of robotics, AI
and automation to replace workers as very or extremely
challenging
31% very or extremely challenged when it came to protecting
employee information from data breach
30% viewed complying with state data breach
laws as very or extremely challenging
28% very or extremely challenged by GDPR
compliance
Survey Says
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• Take stock of confidential information/ensure it is secure by:
◦ Using security tools- firewalls, 2 step/biometric authentication, encrypted data
◦ Encouraging 3rd party vendors, partners, providers to take similar same security measures
◦ Limiting access to private/confidential data and only on a need-to-know basis
• Work closely with IT to develop, implement and enforce policies- confidentiality, privacy, mobile devices,
social media, employee conduct, business ethics
• Utilize non-disclosure agreements
Challenge #6: Data Security & Privacy
What an Employer Should Do
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• Conduct background screenings – look out for red flags fraudulent conduct
• Train employees and supervisors
◦ Safety when using employer’s networks
◦ Suspicious emails/links
• Monitor/observe employee activity
• Conduct exit interviews make sure equipment/technological devices are returned, access terminated
• If breach occurs must critically assess, remediate, discipline
Challenge #6: Data Security & Privacy
What an Employer Should Do
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• Marijuana conflict federal law prohibits marijuana use vs. state law allows medical/ recreational purposes
• Recreational laws strictly regulate – ban public use, prohibit on the job use, do not require accommodation
• Some users may be protected as individuals with a disability
• Efficiency, safety and productivity priority especially for safety sensitive positions
• Marijuana use leads to increased workers comp claims/insurance , absenteeism, tardiness, inattention
• Drug testing impacted
• May implicate off duty conduct laws
Challenge #7: Marijuana/Drug Testing
Changing Marijuana Laws and Drug Testing Key Area of Concern
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41% were very or extremely challenged
with respect to managing conflict of federal and state marijuana laws
34% were very or extremely challenged by maintaining a drug free
workplace in light of changing laws
34% were very or extremely challenged
with respect to understanding the federal policy towards marijuana
33% were very or extremely challenged by
managing employees who use marijuana
medically or recreationally
32% were very or extremely challenged
with respect to medical and recreational
marijuana on the state and local level
25% found implementing wellness programs very or extremely challenging
Survey Says
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• Develop/implement/enforce drug free workplace policies prohibit use of unlawful drugs on employer’s
premises and during working time, prohibit misuse of prescription drugs, safe driving
• Treat drugs like alcohol prohibit on the job use because of effect on safety and productivity
• Train supervisors on warning signs
• Avoid quick decisions on employees who may be using drugs may be protected by ADA
• Provide reasonable accommodations, counseling
• Be careful about taking action based on lawful off-duty conduct
Challenge #7: Marijuana/Drug Testing
What an Employer Should Do
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• Drug testing
◦ Comply with latest laws as rapidly changing area
◦ Depends on industry/position
◦ Consider whether it is essential to test for non-safety sensitive positions
◦ Notify employees of drug testing methods and means
◦ Consider using different mechanisms (i.e., field sobriety tests capture use rather than traces, oral swab
saliva less invasive, less fraud, less cost, quicker turnaround)
Challenge #7: Marijuana/Drug Testing
What an Employer Should Do
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• Communication tool between employer and employees
• Sets forth policies/standards for employee behavior, workplace conduct and performance expectations
• Used by managers/supervisors as a guide to handle common issues
• Incorporate an employer’s goals and mission as well as key policies
• Provides fairness and consistency across board
• Assists in enforcing policies by showing employee consent
• Important tool in preventing and defending against lawsuits
Challenge #8: Employee Handbooks
Essential to Implement and Update Your Employee Handbook
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50% were very or extremely challenged by
ensuring handbooks read or understood by
employees
47% found keeping current with new
laws/trends to be very or extremely challenging
46% were very or extremely challenged by managing
handbooks as a multistate employer including local
requirements and overlapping requirements
38% were very or extremely challenged by
incorporating local requirements into
employee handbooks
31% found aligning employee handbooks
with business objectives to be very or extremely
challenging
Survey Says
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• Monitor developments at federal, state, local level – understand which laws apply
• Be aware emerging issues– EEO, accommodations, leave, smoking, predictable scheduling, equal pay
• Update handbook on annual or semiannual basis
• Take right approach for particular workforce- multistate/multijurisdictional employer
◦ Handbook based on federal requirements, provide state supplements
◦ Use separate handbooks for each state
◦ One handbook with uniform policies across states providing greatest benefits to all
Challenge #8: Employee Handbooks
What an Employer Should Do
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• Draft in clear/concise/unambiguous manner
• Do not infringe upon Section 7 right to engage in protected concerted activity
• Careful about policies - social media, contact with media, confidentiality, investigations, communications
• Make sure readable, relevant, interesting- provide anecdotes/examples/narratives and color/visuals/graphics
• Require employees to acknowledge receipt, consent and understand policies
• Provide frequent training on handbook policies
Challenge #8: Employee Handbooks
What an Employer Should Do
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• Current events mass shootings, bomb threats, terrorist attacks
• Need to implement procedures to take in case of active shooter situation
• Recognize employer duty to protect under OSHA General Duty Clause
• Prepare employees and supervisors mentally and physically to respond to crisis and manage aftermath
• Understand complex set of varying state gun laws and impact on employer weapon policies
• Increase awareness of workplace violence and work to prevent
• Recognize connection between workplace violence and domestic violence
Challenge #9: Workplace Violence
Need to Minimize Risk and Prepare for Active Shooter/Workplace Violence
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45% stated that preparing for or responding to an active shooter or
workplace violence situation was very or extremely challenging
Survey Says
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• Ensure proper policies in place addressing workplace violence, visitors, weapons, domestic violence
• Conduct audit to identify gaps in safety and security such as broken locks and security systems
• Institute controls and make it more difficult to access workplace
• Conduct thorough background screenings but be careful about ban the box/criminal history laws
• Implement clear complaint procedure to report incidents
• Communicate procedures to take in case of violence or active shooter
Challenge #9: Workplace Violence
What an Employer Should Do
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• Provide workplace violence prevention training and drills including information on
◦ Safe spots to take during incident
◦ How to recognize sound of gunshots and react to gunfire
◦ Understand when and where to call 911
◦ React to law enforcement
◦ Adopt survival mindset during crisis
• Designate a team to respond to workplace violence incidents
• Develop emergency response plan to secure premises, contact police, notify employees and families,
address media and provide counseling
• Assemble crisis kits containing radios, floor plans, personnel lists, flashlights
• Train supervisor to recognize potential signs of a violent employee (i.e., paranoid, depressed)
Challenge #9: Workplace Violence
What an Employer Should Do
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• Race/color sex, age, religion, national origin, disability
• Gender identity/sexual orientation
• Political affiliation
• Work experience
• Learning style
• Education
• Family/caregiver status
• Physical characteristics
• Pregnancy/lactation
• Medical marijuana user
Challenge #10: Diversity and Inclusion
Goes Beyond Traditional Notions
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• Obtain best talent possible
• Improve employee productivity and efficiency
• EEO compliance/reduce legal claims
• Improved internal and public image/brand
• Increased customer loyalty/engagement
• Increased sales/profits
• Creativity, innovation and new ideas – viewpoints/ perspectives
• Opportunities for learning, growth, development, challenges
• Increased adaptability/ flexibility - changing marketplace/global world
• Employee retention/ less turnover, mutual understanding/ respect
• More civil workplace –fairness, decrease conflict and reduce complaints
Challenge #10: Diversity and Inclusion
Benefits of Diversity in an Increasingly Global World
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• How to reconcile cultural fit and diversity/inclusion
• Time to manage diversity efforts
• Communication (language/cultural barriers)
• Resistance to change
• Increased conflicts/tension - decreased productivity/turnover
• Stereotypes, prejudice and discrimination
• Perceived preferential/favorable treatment
• Cost/resources -training, accommodation
• Lack of leadership/support from CEO/senior management and leaders
• Not aligned with business strategies/plans/priorities
• Size or location of workplace
• Low turnover
Challenge #10: Diversity and Inclusion
Challenges of Diversity in an Increasingly Global World
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35% were very or extremely
challenged by eliminating
unconscious bias
33% were very or extremely
challenged by recruiting a more diverse workforce
30% were very or extremely
challenged by developing a
workplace culture of inclusion
30% were very or extremely
challenged by achieving diversity and inclusion goals
30% were very or extremely
challenged by moving
women/minorities into leadership
roles
29% were very or extremely challenged
by managing different generations
in the workplace
28% were very or extremely
challenged by managing diversity
as a global employer
26% were very or extremely challenged by aligning diversity efforts with business
strategy
25% were very or extremely challenged
by providing reasonable
accommodations to a protected class
24% were very or extremely challenged
by maintaining a diverse workforce
Survey Says
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• Be proactive and incorporate diversity into the employer’s organization
• Create an inclusive workplace with training and policies to support
• Align diversity with business goals and corporate strategies
• Obtain commitment from key stakeholders and upper management
• Understand benefits diversity can bring to the organization
• Create mentoring programs and opportunities for individuals from different backgrounds can work together
Challenge #10: Diversity and Inclusion
What an Employer Should Do
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• Incorporate diversity into recruiting and hiring process
• Make sure job ads and applications neutral and free of bias
• Cast a wide net – attract candidates through various sources, look beyond geographic pool
• Focus on job requirements, ability, qualifications, performance and how candidate may contribute
• Utilize a diverse panel of interviewers and avoid discriminatory questions
• Be careful about background checks- Ban the Box, discrimination against immigrants
• Onboard into an inclusive workplace emphasizes open door policy, respect, tolerance
Challenge #10: Diversity and Inclusion
What an Employer Should Do
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• Develop and enforce policies and practices encouraging diversity and tolerance
• Prohibit discrimination and harassment
• Provide reasonable accommodations unless undue hardship – disability, religion, LGBT, lactation, caregiver
• Consider utilizing employee resource groups or affinity groups for those who share common traits or
characteristics (i.e., working mothers, LGBT individuals, veterans, Hispanics and individuals with disabilities)
• Provide diversity and sensitivity training to all employees and supervisors – address stereotypes/prejudices
Challenge #10: Diversity and Inclusion
What an Employer Should Do
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• Review and revise their workplace policies and practices
• Develop employee handbooks and distribute policies to employees
• Train supervisors and employees
• Maintain through records and documentation
• Make sure to remain legally compliant
• Be proactive and prepared to respond to changes in a meaningful way
Final Thoughts
Know How to Respond to Challenges
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