July 2015, Page 3 Archive

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This new court ruling is a clear shot across the bow of the National Labor Relations Board (NLRB). 

As we’ve reported several times now, the NLRB has been on a scorched-earth crusade to find and stop any employer activity or policy it believes might stymie employees’ rights under Section 7 of the National Labor Relations Act.

Two of the biggest mandates of Section 7:

• Employers cannot prohibit employees from wearing union clothes on the job, and
• Employers cannot prohibit employees from participating in concerted activities meant to improve working conditions.

Recently, the Communication Workers of America, the union representing AT&T employees, filed charges with the NLRB claiming the communications giant violated Section 7 when it asked employees to remove union shirts before going face to face with employees.

The shirts were white with black lettering. The front of the shirt said “Inmate#” and the back of the shirt said “Prisoner of AT$T,” with several vertical stripes above and below the lettering.

The company allowed employees to wear the shirts in non-customer-facing positions, but instructed employees not to wear them when interacting with customers or working in public.

The company said the shirts could:

• alarm or confuse customers
• cause them to believe that AT&T employees were actually convicts, or
• harm the company’s public image.

Employees suspended

When 183 customer-facing employees disobeyed the company’s orders to remove the shirts, they received a one-day suspension. The union then filed an unfair labor practice charge with the NLRB, claiming AT&T’s disciplinary actions violated Section 7.

AT&T argued its actions fell under the “special circumstances” exception to Section 7, which says a company can prohibit employees from displaying messages on the job that it reasonably believes may harm its relationship with customers or its public image.

An administrative law judge disagreed with AT&T, and ruled the company’s actions violated Section 7. The judge’s ruling was then upheld by the NLRB.

The judge said the company’s actions didn’t stand up to the “special circumstances” exception because the shirts “would not have been reasonably mistaken for prison garb” and that “the totality of the circumstances would make it clear” that the technician wearing the shirt was “not a convict.”

Therefore, according to the judge and the NLRB, the shirt was unlikely to damage AT&T’s relationship with customers or its public image.

AT&T responded to the rulings by taking its case before the U.S. Court of Appeals for the District of Columbia. Whose side was it on?

NLRB was ‘unreasonable’

The court sided with AT&T and said it was well within its rights to punish the employees who wore the union shirt. It vacated the judge’s and NLRB’s rulings.

But in doing so Judge Brett Kavanaugh, who wrote the court’s decision, had some pretty harsh things to say about the NLRB.

The first sentence Kavanaugh wrote: “Common sense sometimes matters in resolving legal disputes.”

Ouch!

Kavanaugh then went on to say that the NLRB applied Section 7’s “special circumstances” exception in an “unreasonable” way. He said the appropriate test of special circumstances “is not whether AT&T’s customers would confuse the “Inmate/Prisoner” shirt with actual prison garb, but whether AT&T could reasonably believe that message may harm its relationship with its customers or public image.”

And, according to Kavanaugh, “given the straightforward evidence that AT&T introduced of the shirt’s message and the circumstances under which customers interact with or can see employees wearing the shirt, the Board should have held that ‘special circumstances’ applied here.”

In the court’s conclusion, Kavanaugh fired one final shot at the NLRB, when he wrote: “As this Court observed in Medco Health (a past case), however, the Board’s ‘expertise is surely not at its peak in the realm of employer-customer relations.’”

Double-ouch.

Takeaway for employers: While the NLRB may isn’t shy about interpreting Section 7 very broadly, and can be a bit heavy-handed when ruling on Section 7 matters, it should provide relief to know that some courts clearly aren’t in the same corner as the board.

Cite: Southern New England Telephone Company (AT&T subsidiary) v. NLRB

Ah, the irony: A major Midwest healthcare organization has agreed to pay $80,000 to a woman whose job offer was withdrawn — because of her medical condition.  

Aurora Health Care, Inc. will fork over the $80k and furnish other relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission, the agency has announced.

The EEOC’s lawsuit charged that in 2009, Aurora withdrew a job offer it had made to Kelly Beckwith for a position as hospice care coordinator upon learning during her pre-employment medical examination that she has multiple sclerosis, a serious disease which affects the body’s neurological system.

Beckwith had been diagnosed with MS some years earlier, but had not yet developed major symptoms. At the time she applied, Beckwith was working as a nurse.

Aurora claimed Beckwith failed to disclose her MS, but the EEOC alleged that the condition was properly disclosed and that Beckwith’s MS was the true reason for the withdrawal of the job offer. The EEOC alleged that Aurora discriminated against Beckwith because of her disability by misusing confidential medical information to discriminate against her, and by using a qualification standard that tends to discriminate against those who are disabled.

The U.S. District Court for the Eastern District of Wisconsin approved a two-year consent decree.

In addition to the $80,000 in monetary relief to Beckwith, the decree contains an injunction prohibiting the company from withdrawing job offers from disabled individuals based on information learned during pre-employment medical examinations and from retaliating against employees who exercise their rights under federal law.

Additionally, the decree requires the company to adopt a written policy with standards and procedures for investigating allegations that a job applicant was dishonest or failed to disclose something during the medical examination. Aurora must keep records for all individuals whose job offers are rescinded based on information obtained in the medical examination or under its new policy and report this information to the EEOC.

According to its website,  Aurora is a private, not-for-profit health care provider operating 15 hospitals and 159 clinics in Wisconsin and Illinois, with 30,000 employees.

There are certain things that will never, ever mix well like oil and water or corporate team-building activities and ISIS execution reenactments. But that didn’t stop these finance employees from trying the latter.  

As reported by The Sun, six HSBC employees were fired for a video they released during an apparent team-building exercise. The video shows five of the workers pretending to be members of ISIS and “beheading” a sixth worker, who played the role of hostage and worn an orange jumpsuit like many of the victims in actual ISIS executions.

In the video, which was posted on Instagram and later taken down, the ISIS-impersonating employees donned jumpsuits and balaclavas and used a coat hanger as a knife-substitute.

During the video, the hostage kneels down to be “executed” while one executioner/banker yells out “Allahu Akbar,” which is Arabic for “God is great.”

Other victims of social-media stupidity

As you can imagine, HSBC didn’t find the bankers’ idea of team-building amusing and a company spokesman told The Sun (Note: British spelling in the quote):

We do not tolerate inappropriate behaviour. As soon as The Sun brought this video to our attention we took the decision to sack the individuals involved. This is an abhorrent video and HSBC would like to apologise for any offence caused.

Of course, the HSBC bankers are hardly unique. There are scores of workers who lost their jobs due to poor social-media decisions. Rolling Stone offers a brief history of the most memorable firings in recent memory, which include Paula Deen, that Taco Bell employee who got caught urinating  on food and a paramedic who took selfies with corpses.

Planning on adding staff this year? A lot of companies are — and it looks like they’re going to have plenty of people to pick from. 

According to CareerBuilder’s recent Midyear U.S. Job Forecast, both employers and job seekers are feeling confident in their prospects these days.

Nearly half of employers surveyed plan to hire full-time, permanent staff over the next six months and one-third plan to hire temporary or contract workers – both improvements over 2014.

At the same time, workers are looking to take advantage of a labor market that has produced 245,000 jobs per month on average in the last year. Three in ten workers (29%) plan to change jobs in the next 12 months, up from 25% last year.

A breakdown of what companies have in mind for the second half of 2015:

• 49% of employers plan to hire full-time, permanent employees in the second half of 2015, up from 47% last year
• 28% plan to hire part-time employees in the second half of 2015, up from 27% last year, and
• 34% plan to hire temporary or contract workers in the second half of 2015, up from 33% last year.

Where the jobs will be

Information Technology (56%), health care (56%), hospitality (54%), financial services (52%), manufacturing (52%) and retail (50%) are among the industries expected to outperform the national average for full-time, permanent hiring in the back half of the year.

The top functional areas where employers will be adding jobs in the second half of 2015 include:

• Customer Service – 31% of hiring managers
• Sales – 23%
• Information Technology – 22%
• Production – 18%
• Accounting/Finance – 12%
• Marketing – 11%, and
• Human Resources – 9%.

Some of the in-demand areas employers will be recruiting for include those tied to mobile, search or cloud technology; cyber security; social media; wellness; financial regulation; managing and interpreting big data; content strategy for the Web; alternative energy sources and robotics.

Small Business Hiring

Hiring managers in small businesses are indicating a greater sense of confidence when it comes to recruitment plans. Hiring is expected to increase three percentage points over last year for companies with 50 or fewer employees.

Quick breakdown:

• 50 or fewer employees – 27% hiring full-time, permanent employees, up from 24% last year, and
• 250 or fewer employees – 37% hiring full-time, permanent employees, up from 35% last year.

Among with more than 500 employees, three in five hiring managers (62%) plan to add full-time, permanent employees, up from 61% last year.

Hiring By Region

The Northeast displayed the biggest increase in the percentage of employers planning to add full-time, permanent headcount in the second half of the year. Hiring in the other regions is expected to experience a slight shift or stay in line with last year.

The breakdown:

• Northeast – 52% hiring full-time, permanent employees, up from 48% last year
• South – 49% hiring full-time, permanent employees, up from 48% last year
• Midwest – 46% hiring full-time, permanent employees, on par with last year, and
• West – 46% hiring full-time, permanent employees, down from 47% last year.

Starting Salaries

Nearly half of employers (47%) expect to increase starting salaries on job offers over the next 12 months. Around 1 in 6 employers will raise starting salaries by 5% or more.

Some people just don’t appreciate art. A U.S. District Court judge in Georgia has ruled that male strippers don’t qualify for exempt status as “creative professionals.”   

Shocking, but true.

A group of current and former male strippers sued the owners of an adult nightclub, saying they were incorrectly classified as independent contractors and were entitled to at least minimum wage. The club owners disagreed, and claimed that the strippers wouldn’t be protected by the FLSA because they fell under the “creative professional exemption.”

The official description of the exemption:

To qualify as a “creative professional,” an employee must be (i) compensated on a salary basis or fee basis at a rate of not less than $455 per week; and (ii) his or her primary duty must be the performance of work requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor.

And, alas, the strippers’ jobs just didn’t require that much creativity, the court said, citing the testimony of a club manager who said the dancers didn’t need any original moves and most of the dancers didn’t “know how to actually dance.”

Gotta admit, this is a pretty creative approach to try and maneuver around the FLSA. But these kinds of shenanigans rarely stand up in court.

The case continues. We’ll keep you posted.

Cite: Henderson v. 1400 Northside Dr.

 

Almost as important as the benefits offerings you use to drive retention and attract talent are, equally as important is how you communicate those benefits to your staff. Yet, this is an area in which it’s easy to fall short — and to help ensure that doesn’t happen to you, wellness and health management software maker Keas has offered up the five biggest mistakes it sees employers making — as well as tips on how to avoid them. 

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Over the past decade, we’ve seen a trend of HR departments diversifying their benefits vendors in an effort to mitigate rising costs and give their employees the choice and flexibility they crave. This diversification definitely provides value, but it also leads to significant communication challenges.

Here are five common mistakes HR departments make when communicating HR benefits and some tips for avoiding them:

1. Open enrollment, open season

HR teams frequently send out a deluge of benefits information once a year, right around the time of open enrollment. The overwhelming amount of information can seem daunting to employees who put it in a drawer, or worse, in the trash, instead of perusing it carefully.

A more effective approach is to break that information down into more digestible chunks and dole them out regularly over the course of the year. Whether studying for a mid-term exam or reading up on healthcare plan options, people absorb and retain information better this way. The human brain can only take in so much at a time.

HR teams should forego the “cram session” model and provide ongoing learning opportunities. For example, by providing your employees a one-stop-shop portal accessible via the Web and their mobile phones, employees can receive information about their benefits throughout the year. Furthermore, an effective customer relationship management (CRM) system that’s part of a health management platform can be extremely helpful in that it can automate ongoing communications to your employees.

2. Uncoordinated communication

In addition to frequency, HR benefits communication also needs to be cohesive. It should be coordinated and consistent, which is not always easy when multiple vendors want to send information to your employees all year long. This is basically an invitation for employees to tune out and/or for important communication to get lost in the shuffle. As a result, the employees who need the services the most may miss out on important materials.

HR leaders can address this challenge by setting up a system so all HR communication is coordinated in one place. Thinking like a direct marketer, HR and benefits teams can partner with health management firms to determine the right cadence of messaging to drive engagement in health benefits.

3. Overlooking remote workers

By 2016, Forrester predicts that 63 million Americans (43 % of the workforce) will work from home. This means, businesses of every size have workers and teams distributed around the world. This means that HR communication has to extend to these people as well. Sending PDF files or offering a webinar does not cut it as this may reach only a small percentage of your remote population.

Fortunately, health management platforms provide a new and effective way to engage remote employees with their benefits. By providing an easy-to-use and consumer-friendly application, you can make it easy for your employees to access and engage with their health benefits regardless of where they are based. CRM systems can also make targeted benefits information and program information available to remote employees who may not have access to on-site health programs, but who can still take part in local programs or work with a digital coach to resolve their health challenges.

4. Irrelevant suggestions

More diversified benefits choices increases the likelihood that an employee will be able to find offerings that meet their unique needs. That said, greater choice also puts a greater burden of responsibility on the employee to sort through it all and figure out which programs are right for them.

Manually creating individual employee health profiles and matching them to relevant programs is a laborious, time-intensive process. Fortunately, there are now health management platforms that can do this automatically. These platforms integrate data across demographic profiles, health screenings, and activity in order to target the right messages to the right employee at the right time.

5. Ignoring outcomes for employees and employers

Tracking and accountability are essential when you are trying to promote good habits and behavior. Employees’ knowledge that they’re improving their health over a health baseline the company helped establish is highly motivating. Moreover, from the company perspective, it is important for measuring the impact of certain benefits programs.

Most benefits programs today are intended to improve a particular aspect of health, like nutrition coaching or smoking cessation programs, and 55% of employers currently offer biometric screenings as part of wellness incentive programs with a goal to benchmark and optimize population health.

This is great because screening generates a rich data set that can help identify health risks and connect employees with the specific programs they need and monitor their progress — in theory. The reality is that some employers are not taking full advantage of the data at their fingertips. It’s not closely tied to driving health outcomes, which means the benefits and wellbeing programs fail to offer true cost-saving value. By tracking progress and outcomes on an individual basis, and providing both intrinsic and extrinsic incentives along the way, employees will be more engaged in their benefits.
Benefits programs are only as valuable as what you do with them. Don’t let the opportunity to achieve significant cost savings by reducing what amounts to 70% of preventable costs pass you by.

Adena DeMonte is the senior director of marketing at Keas, the maker of a health management platform for employers. Keas also provides wellbeing programs, coaching, benefits integration, and wellness incentives to employers.