Investigators now coming after you … in disguise

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Investigators now coming after you … in disguise

ada, disability discrimination

One government agency has just taken the wraps off a new way its officials intend to enforce employment laws. If this tactic spreads, it could be very costly for employers. 

New York City employers are now faced with the possibility of having government officials poking around their hiring practices disguised as job applicants.

Mayor Bill de Blasio (D) just enacted a new law (Bill 690-A) that requires the city’s Human Rights Commission to conducted “matched-pair” testing of at least five employers’ hiring processes between Oct. 1, 2015 and Sept. 30, 2016 — although there’s no limit to how many of these tests the commission can conduct.

The “matched-pair” testing will work like this: The commission will have two “testers” apply for, or inquire about, the same position at the same company. The testers will have similar qualification, but the major difference will be that one will have a characteristic protected by the city’s Human Rights Law.

The protected characteristic may be, among other things, the person’s:

  • race
  • color
  • creed
  • age
  • national origin
  • alienage or citizenship status
  • gender/gender identity
  • sexual orientation
  • disability
  • marital status
  • partnership status
  • criminal history
  • unemployment status, and/or
  • status as a victim of domestic violence, stalking or sex offenses.

The testers will be required to report any incidents of discrimination to the commission’s Law Enforcement Bureau.

More aggressive approach

While it’s not uncommon for government enforcement agencies like New York City’s Human Rights Commission to use investigators, their primary duties up until now have been to investigate complaints filed by aggrieved individuals.

This new action marks one of the first times an agency will actively seek out discrimination on its own, and this massive shift in mindset should have employers worried.

These investigations will be conducted without provocation or warning, and if they turn up significant employment law violations, you can bet this is a model that will be adopted by other government agencies across the U.S..

Caroline Berdzik, an attorney who chairs the employment and healthcare practice at Goldberg Segalla, told Crain’s New York Business, “This agency is supposed to enforce discrimination law, not create new actions. … This is going to open a whole can of worms.”

Other law firms, like Jackson Lewis P.C., are saying that while employers should obviously be doing everything they can to prevent discrimination in hiring and employment actions already, they must how approach every applicant as if he or she’s one of the investigators.



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Source: News from HR Morning

Millennials more susceptible to depression than other generations: Study

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It’s no surprise that depression is a leading cause of workers seeking help from their companies’ employee assistance programs. But you might be shocked to hear which group is most often affected: Millennials.  

Depression and Work: The Impact of Depression on Different Generations of Employees, a recently-released white paper from EAP provider Bensinger DuPont & Associates (BDA), found that depression accounts for 17% of users of EAPs.

One in five Millennials reported experiencing depression, the highest of any generation. Depression appears to decline with age, as Gen X and Baby Boomers were less likely to report depression.

The study, which explores the relationship between depression and decline in work performance through a multigenerational lens, is the second in a 4-part series of white papers examining generational differences in the impact of anxiety, depression and risky alcohol use on work performance.

To assess the impact of depression on the workforce, BDA investigated the relationship between reported depression and declines in work performance by generation. The data was taken from a cumulative report of 7,883 individuals seeking EAP services from January 2013-June 2014.

Other findings in the study:

  • Presenteeism is the most common decline in work performance experienced across each generation, followed by absenteeism, disciplinary action, and relationship issues.
  • Depressed Millennials reported the highest rates of presenteeism among the three generations; Boomers reported the lowest.
  • Boomers with depression reported the lowest rates of absenteeism. Gen X reported the highest rates of absenteeism, slightly edging out Millennials.
  • Boomers were the most likely to report conflict in their relationships at work –almost twice as likely as Gen X and Millennials to report declines in workplace relationships due to depression.



For more HR News, please visit: Millennials more susceptible to depression than other generations: Study

Source: News from HR Morning

The evolution of job interviews (INFOGRAPHIC)

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The evolution of job interviews (INFOGRAPHIC)

We could write tens of thousands of words on how the job interview process has changed since the dawn of employment. Instead, here’s what the evolution looked like. 

Video interview software maker Spark Hire’s created the following witty infographic to depict just how the job interview process has evolved as humans have evolved.

It also provides a look at what the next stage in the evolutionary process is likely to be.

Some points of note on mankind’s past:

  • In the 18th and 19th centuries, professions were passed on from generation to generation, eliminating the need for the interview process altogether.
  • In 1917, the first personality test was created to evaluate World War I solders. A similar test was soon adopted by businesses.
  • In 1921, Thomas Edison created a test to evaluate job seekers’ knowledge, and it was leaked to the New York Times (test your knowledge using some of the questions listed on the infographic below).
  • In 1969, the Internet is born, although it’s not released to the public in its current form until 1991.
  • In 2003, LinkedIn is born.
  • Two years later, YouTube is born.

Predictions for the future:

  • Smart watches will allow face-to-fact interviews to be conducted on the go.
  • Short-form interviews, lasting only a matter of seconds, will become popular.
  • Holograms will take the place of in-person, face-to-face interviews.

For more on our past — and our future — check out Spark Hire’s graphic below:

The-Evolution-of-the-Job-Interview-Infographic-972Source: Spark Hire



For more HR News, please visit: The evolution of job interviews (INFOGRAPHIC)

Source: News from HR Morning

Careful — ignoring oral complaints can get you in big legal trouble

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Careful — ignoring oral complaints can get you in big legal trouble

oral complaints

Quick tip: An oral complaint about an alleged employment law violation is just as valid as an official, written one.  

We recently saw confirmation of that in Greathouse v. JHS Security Inc. A look the the case:

Darnell Greathouse worked as a security guard for JHS Security Inc. Greathouse His boss was Melvin Wilcox, president and part-owner of JHS. During his employment with JHS, Greathouse was, according to court papers, the victim of a number of improper employment practices, including non-payment and late payment of wages, and improper payroll deductions.

Although Wilcox repeatedly told Greathouse that he would receive his outstanding paychecks, the checks never arrived.

Finally, Greathouse complained to Wilcox that he had not been paid in several months. Wilcox responded, “I’ll pay you when I feel like it,” and, without warning, drew a gun and pointed it at Greathouse.

Greathouse took that encounter as a signal that his employment with JHS was at an end.

Invalid complaint?

Greathouse later filed a complaint in the U.S. District Court claiming various FLSA and New York State law violations, including missing and improperly reduced wages and retaliation for complaining about not getting paid.

After neither party appeared or filed an answer, the clerk of court entered defaults against both. The District Court then referred the matter to a magistrate judge to evaluate Greathouse’s claims for damages.

The Magistrate Judge recommendied that the district court enter a damages award in the total amount of $30,658.50, plus prejudgment interest, for Greathouse’s claims for unpaid overtime, unpaid wages, improper deductions, and liquidated damages.

As to the retaliation claim, however, the Magistrate Judge concluded that since Greathouse had not filed a complaint with any government agency or other prosecutorial authority — but had merely confronted his employer in person to demand his missing wages – his FLSA complaint was invalid.

The district court agreed.

Bowing to the High Court

But things were different when the case got to federal appeals court. There, the judges — which had previously held that an oral complaint was valid only if it was made directly to a government agency — bowed to the judgment of the Supreme Court ruling in Kasten v. Saint Cobainin in 2011.

In that case, the court held that an oral complaint is protected by FLSA’s anti-retaliation provision if the complaint is “sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.”

And in the Greathouse case, the complaint fit the criteria.  So the case is remanded to the district court to hear Greathouse’s lawsuit for retaliation.

Ignore oral complaints at your peril

The takeaway from this decision? Here’s some guidance from attorneys  Esteban Shardonofsky and Howard M. Wexler from Seyfarth Shaw:

Following Kasten, and now Greathouse, it is even more important for employers to be sensitive to employees’ intra-company oral as well as written complaints regarding wages, overtime, and hours worked.  Managers and supervisors should be trained to recognize complaints under the FLSA and corresponding state laws and to respond to them appropriately. 

Whether an internal complaint rises to the level of protected activity is a context-specific inquiry.  While the courts continue to assert that there are no “magic words” that an employee must use to assert a complaint and that generalized statements or complaints regarding pay practices may not rise to the level of protected activity under the FLSA (or even under the National Labor Relations Act), this should not embolden employers to ignore vague complaints. 

After all, although you may believe today that a particular complaint is mere “venting” or “blowing off steam,” a court or a jury may later disagree.  Of course, following an employee’s complaint, employers need to ensure that any adverse action is based on legitimate, non-retaliatory reasons and not in response to the complaint.

 

 

 



For more HR News, please visit: Careful — ignoring oral complaints can get you in big legal trouble

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What employment law violations got this owner 3 years in jail?

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Meet Miguel Castro, 44, of Uniontown, OH. He was just sentenced to 33 months in prison after being found guilty of charges resulting from investigations by the Department of Homeland Security and the Department of Labor. 

Castro was sentenced for “his role in a conspiracy to hire undocumented workers,” according to a news release from the U.S. Attorney’s Office in Cleveland.

He was also charged with:

  • failing to pay workers at least the minimum wage
  • conspiracy to commit mail fraud, and
  • mail fraud.

Castro was the majority owner of a chain of seven Mexican restaurants in Ohio called “Mariachi Locos” and “Mariachi Cocos.”

In addition to his prison sentence, Castro was also ordered to forfeit $100,000 and pay $7,792 in restitution.

The attorney’s office said Castro, along with his wife Monica (a partial owner of the restaurants), hired undocumented workers who were illegally present in the U.S. and tried to shield them from discovery by:

  • paying them in cash
  • excluding them from the restaurants’ payrolls
  • leasing housing for them, and
  • aiding them in obtaining fraudulent work documentation.

In some cases, Castro and his wife only paid the workers in tips, according to the attorney’s office. They also were found guilty of submitting false wage reports to the state of Ohio.

For her role in the actions, Castro’s wife was sentenced to three months in prison and five months of home detention.

According to Cleveland.com, U.S. District Judge Sara Lioi, who levied the sentences against the Castros, said that someone needed to care for the couples’ children, two of whom are under 18. As a result, Lioi ordered that the Castros serve their prison sentences one after the other.

The new releases from the attorney’s office went on to say:

The defendants’ employment practices enabled them to enrich themselves because they paid the undocumented workers less than minimum wage and did not pay these workers for overtime hours worked. In some cases, the defendants paid these workers only the tips that the workers received from their customers, according to court documents.

Both Castros will be on supervised release for three years following their prison sentences.

All but one of their restaurants are now closed, according to Cleveland.com.



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Do you need to change any HSA, HDHP limits for 2016? IRS says ‘yes’

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The calendar hasn’t turned to June yet, but the IRS is already gearing up for 2016 with its latest release. 

Revenue Procedure 2015-30, which was just published, puts forth the 2016 inflation-adjusted HSA contribution limits, HDHP required deductibles and HDHP out-of-pocket maximums.

The changes from 2015 have been highlighted in red for quick reference. The amounts below are effective for calendar year 2016.

HSA contribution maximums (employee & employer combined)

  • Individual: $3,350
  • Family: $6,750 (up $100 from 2015)

(Note: Catch-up contributions for those 55 and older aren’t tied to any automatic-escalators — like the Consumer Price Index or inflation — and will remain at $1,000 unless a statutory change is made.)

HDHP minimum deductibles

  • Individual: $1,300
  • Family: $2,600

HDHP out-of-pocket maximums

  • Individual: $6,550 (up $100 from 2015)
  • Family: $13,100 (up $200 from 2015)

(Note: Out-of-pocket expenses include deductibles, co-pays and co-insurance — but not premiums.)



For more HR News, please visit: Do you need to change any HSA, HDHP limits for 2016? IRS says ‘yes’

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Will DOL’s new rules end fiduciaries’ conflicts of interest?

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Whether it’s money for the advice offered or payments for pushing certain providers’ investment products, the DOL has long contended that investment advisors are in danger of having a conflict of interest regarding the advice they provide retirement plans.  

So the agency just released a 120-page set of proposed rules (the first on this subject since 2010) in the hopes of remedying this situation.

Here are some of the major highlights (so you don’t have to sift through the fed’s document):

Key protections, ‘Carve outs’

The DOL claims theses rules will save billions of dollars over the next decade by:

Expanding what type of retirement advice is covered by fiduciary protections. Under the updated definition, any individual receiving compensation for providing advice that is individualized or specifically tailored to a plan sponsor for making an investment decision will be considered a fiduciary.

The proposed rules also aim to create greater transparency about plan fees by forcing adviser to: “clearly and prominently (disclose) any conflicts of interest, like hidden fees … that might prevent the adviser from providing advice in the client’s best interest.”

This could result in practices like revenue-sharing being greatly altered or eliminated altogether.

Carving out any investment advice that’s provide as general education on retirement savings from fiduciary status.

Carving out “order taking” as a fiduciary activity. In other words, if an advisor simply executes a transaction without providing any advice, it wouldn’t count as a fiduciary activity.

Carving out sales pitches to plan fiduciaries with financial expertise. So, in certain situations, if a plan fiduciary with this expertise from an advisor receives compensation for that advice, it wouldn’t be considered fiduciary activity.



For more HR News, please visit: Will DOL’s new rules end fiduciaries’ conflicts of interest?

Source: News from HR Morning

C’mon — can this ‘no managers’ scheme actually work?

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C’mon — can this ‘no managers’ scheme actually work?

zappos

So it turns out that one in seven Zappos employees opted out of the company’s plan to eliminate managers and job titles. We’re thinking they probably made the right choice.  

Let’s review: A couple weeks ago, Tony Hsieh, CEO of the online shoe retailer, issued an ultimatum to employees — if they didn’t feel they could operate under a new system that did away with traditional managerial roles, they could resign in exchange for at least three months’ severance. They needed to make up their minds by April 30.

Fourteen percent of the workforce took Hsieh up on his offer, according to the Washington Post. Hsieh declined to say how many of those opt-outs were in management or sales positions.

For the remaining 86%, the question looms: Can a totally flat structure — one that operates in “circles” of peer employees — actually get the job done?

‘Everybody’s a leader’

Zappos is relying on a structure called a “Holacracy.”

Here’s a definition of Holacracy, straight off the website:

Holacracy is a distributed authority system – a set of rules that bake empowerment into the core of the organization. Unlike conventional top-down or progressive bottom-up approaches, it integrates the benefits of both without relying on parental heroic leaders. Everyone becomes a leader of their roles and a follower of others’, processing tensions with real authority and real responsibility, through dynamic governance and transparent operations.

As you might imagine, there are those who are skeptical. Take, for instance, Steve Tobak, writing on foxbusiness.com.

Tobak points out that the holocracy idea — “developed by Brian Robertson, a 35-year-old self-taught programmer with little business or management experience beyond running a relatively small Philadelphia-based software services company” — is hardly a simple, self-organizing structure.

First off, “you’d need a team of lawyers to make sense of the Holacracy Constitution, so the company’s website offers a ‘Plain English’ version that is 18,884 words (or about 50 book pages long),” he says. Then there’s a Resource Library full of developer kits, apps and content dictating everything from compensation to nutrition and partnerships.

Add to those a cloud-based tool called GlassFrog that governs meetings, rules, decision-making, checklists, projects, metrics, roles and responsibilities …

Add it all up, and Holocracy “doesn’t sound even remotely like a self-organizing, self-managing system to me. What it does sound like is a grandiose contrivance with all the bureaucracy and administrative minutiae of the federal government combined with the rigid structure of a collectivist cult,” Tobak says.

The final piece

Tobak makes a strong argument, but we think he’s missing a key piece of the puzzle: human nature.

Are we really to believe that “circles” of peers are going to be able to collaborate seamlessly day-in and day-out? That there’ll be no divisive issues that arise during the workday?

That nobody will play politics?

Or throw a co-worker under the bus in order to improve his/her perceived standing?

We’re all for employee empowerment and all of those pie-in-the-sky buzzwords that are so popular now — engagement, self-actualization, onboarding. But for us, it comes down to hiring somebody to do a job and then giving them the room to do it — and more, if they’re capable.

But there has to be a place where the buck stops, and where the hard calls are made.

There has to be a boss.



For more HR News, please visit: C’mon — can this ‘no managers’ scheme actually work?

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Candidate posts job offer online, and here’s how the employer responded …

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Put yourself in this employer’s shoes: You’re searching the Web to see what people are saying about your company and you come across this … 

… a post on the question-and-answer site Quora in which a candidate you recently offered a job to is asking whether or not he should accept the position.

In the post, the candidate compares your firm to another, stating the biggest reason he’s hesitant to accept the position at your company is that it wouldn’t generate as much “buzz” on his resume as the other firm competing for his services.

What would you do?

CEO wasn’t happy

Here’s what Zenefits CEO Parker Conrad did when he saw the post: He withdrew his company’s job offer in a reply to the question.

On Quora, members can post questions and have them answered by other site members.

Here’s what the unnamed prospective engineer posted:

“What is the best way to start my career: Uber or Zenefits?”

The candidate then listed some of the pros of each position he was offered, for example:

  • Uber “has people with amazing credentials … “
  • At Zenefits, “I really enjoyed talking to the people. They are people I think I would be more happy to work with”
  • “Uber has a really good reputation. I think that working at Uber will really help me move to companies like Google and Apple, which is something that I want to do in the distant future.”
  • “Zenefits seems to be really aggressive in trying to keep me. They have tried really hard to make me choose them over Uber. And they are paying me a better salary by about 15k (where Uber completely refused to negotiate)”

Now onto the cons the candidate posted, which included:

  • Uber’s attitude towards him so far has been “we don’t really need you. but here is your offer”.
  • Zenefits isn’t “a buzzword like Uber. Most people won’t know what Zenefits is (or so I think). I think that this isn’t as exciting a brand name to have on your resume when applying to the likes of Google.”

Hesitation was a deal breaker

As you can see, it’s not like the candidate was badmouthing Zenefits. His reluctance to take the job seemed to stem from the fact that it may not propel him to his dream job as quickly as working at Uber would.

But therein lies the problem for the Zenefits CEO.

Parker said he rescinded the job offer for two reasons:

  • “We really value people who ‘get’ what we do and who *want* to work here, specifically. … One of our company values is to have a bias towards action — which means that when people are hesitating / going back and forth about whether they want to work here, we usually view that as a bad sign.”
  • “We don’t have terribly high regard for ppl who would choose where to work based on “buzzwords” and how big a brand it is … “

Parker did, however, offer one piece of advice to the candidate in his reply: Apply to Google.

He said if that candidate could pass Zenefits’ engineering interview, he should be able to do the same at Google.

No word yet on whether the candidate’s taken that advice.



For more HR News, please visit: Candidate posts job offer online, and here’s how the employer responded …

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Classifying assignments as ‘men’s work’ and ‘women’s work’? Really?

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Quick tip: Employers who categorize jobs as “men’s work” and “women’s work” are likely to put a frown on the faces of our friends at the EEOC.  

For that and other bias law violations, Chicago-area staffing agency will pay $800,000 under a consent decree resolving two discrimination lawsuits filed by the U.S. Equal Employment Opportunity Commission (EEOC).

In two separate lawsuits, the EEOC charged that Source One Staffing, Inc:.

  1. assigned female employees to a known hostile work environment
  2.  retaliated against two female employees who reported that their supervisor was making sexual advances toward them
  3. categorized jobs as “men’s work” or “women’s work” and assigned employees accordingly
  4. asked impermissible pre-employment medical questions in violation of the ADA, and
  5. failed or refused to assign employees to certain jobs because of their race and/or national origin.

The EEOC filed the suits federal district court in Illinois, after first attempting to reach a pre-litigation settlement through its conciliation process in both cases.

$730k for assignment bias

The consent decree settling the suits provides $800,000 in monetary relief.  Of that, $70,000 will go to the sexual harassment and retali­ation victims. The remaining $730,000 will be distributed evenly to a class of female employees who were not considered for certain work on the basis of their sex.

The decree also requires Source One to take the following affirmative steps:

  1. train its employees on employees’ rights under Title VII and the ADA
  2. report complaints of discrimination during the decree’s three-year term
  3. change its employment policies and practices to conform to federal bias law, and
  4. post a notice of the decree at all of its locations.

The settlement won’t mean the EEOC is going away, officials were quick to point out. “While the consent decree puts an end to four-years of litigation between EEOC and Source One, the matter is far from over,” said John Hendrickson, regional attorney for the EEOC’s Chicago District.  “The EEOC — through the appointment of an independent monitor — will keep a watchful eye on Source One to make sure it fulfills all of its obligations under the decree for the next three years.  If Source One fails to adhere to the decree, the EEOC will do everything in its power to ensure compliance.”



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