What You Don’t Know About Managing Your Direct Hire Agency Spend

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Learn more!  

For more HR News, please visit: What You Don’t Know About Managing Your Direct Hire Agency Spend

Source: News from HR Morning

OT lawsuits: When signed time sheets aren’t enough to protect you

OT lawsuits: When signed time sheets aren’t enough to protect you

employer mandate, obamacare

When is asking employees to sign off on their time sheets before they’re submitted to Payroll for processing not enough to protect you from an overtime lawsuit? When this happens. 

Here’s when you can get nailed: A manager knows or should’ve known that an employee worked more hours than he or she claimed to have worked.

A recent lawsuit shows just how hard it can be to defeat employees’ claims that they weren’t paid proper overtime.

Never spoke up

Meet Jose Garcia and Raymond Sutton, two employees for SAR Food of Ohio, which runs several Japanese restaurants — under the names Sarku Japan and Sakkio Japan — that are located in shopping center food courts.

Both workers sued SAR. They claimed that despite their initial acknowledgement/certification that the work hours they were paid for were correct, they actually weren’t paid for all the time they’d worked.

SAR posted employees’ work schedules at the beginning of every work week. Often times, the schedules called for employees to work more than 40 hours in a week — and there was no dispute that when employees’ schedules and subsequent payroll submissions indicated that they’d worked overtime, they were paid for the time indicated.

But Garcia and Sutton claimed they frequently worked beyond their scheduled shifts and didn’t claim the additional hours on the payroll submissions. Garcia and Sutton gave several reasons for not claiming the additional hours — including not wanting “to seem petty,” feeling “intimidated” and not thinking it was worth pointing it out.

‘But our managers knew’

The court, however, appeared to give little weight to the flimsy reasons Garcia and Sutton gave for not speaking up about their hours.

Instead, it decided to focus on a bigger fish: The fact that their managers may have known they were working undocumented hours.

Garcia and Sutton painted a picture in which it appeared as though they worked side-by-side with their managers, and their managers had a pretty good idea of the true hours the pair worked.

SAR moved for summary judgment in an attempt to get the workers’ lawsuit thrown out. It said that they were given multiple opportunities to inform management that their time sheets were inaccurate and claim the additional work hours (again, there was no despite that SAR paid employees for all the hours they claimed).

On top of that, SAR pointed out that every paystub issued to the workers said “Any questions concerning your pay, please call … Sarku Japan Payroll Department.”

But in the end the court said that didn’t matter.

‘What would a jury say?’

The court said the plaintiffs’ testimony presented evidence that “could allow a reasonable jury to conclude that the store supervisors were aware that Plaintiffs were working after their scheduled shifts, but nonetheless knowingly submitted time sheets indicating that no such work occurred.”

Bottom line: The lawsuit was allowed to proceed.

But what about Garcia and Sutton, weren’t they culpable for failing to point out the unpaid hours? Not if management knew they weren’t paid for time they’d put in, according to the court.

The reason the court gave:

“If an employer with knowledge of uncompensated time could evade FLSA liability where the employee failed to follow procedures, an employer and employee could effectively contract around the FLSA by contriving for the employee to simply not report all time he worked.”

The court also said SAP and its managers, “cannot sit back and accept the benefits [of Garcia and Sutton’s work] without compensating for them.”

The ruling closely mirrors another ruling that HR Morning reported on earlier this summer in which a court allowed an employee’s unpaid overtime claims to proceed based solely on his testimony that he’d worked overtime and hadn’t been compensated for it. (In fact, the Garcia v. SAR court cited this case in its ruling).

In that case, the court asked itself the very straightforward question:

“Where Plaintiff has presented no other evidence, is Plaintiff’s testimony sufficient to defeat Defendant’s motion for summary judgment?”

The answer: Yes.

What can employers do?

Both of these rulings set a high bar employers have to meet to get employees’ unfair pay claims thrown out of court.

So, naturally, the best thing for employers to do is avoid the courtroom altogether.

There are two steps you can take to do this:

  • Step 1: Tell your managers that they cannot turn a blind eye to the hours employees work — no matter the hours an employee signs off on having worked. Managers should be reviewing time cards and engaging employees in conversations if they believe time cards are inaccurate.
  • Step 2: Discipline employees for performing unauthorized work or failing to follow your procedures when it comes to reporting work time. As long as employees are paid for all the hours they work, it’s within your rights to punish workers for these actions.

Cite: Garcia v. SAR Food of Ohio Inc.

For more HR News, please visit: OT lawsuits: When signed time sheets aren’t enough to protect you

Source: News from HR Morning

Could you pass a business school ethics test? Give it a try

In the wake of the Great Economic Meltdown — and the cheating that preceded it — business schools began using an ethics test before sending grads into the real world. Would you pass it?

The test — based on real-life situations — was developed by Babson College, Yale and the Aspen Institute, and was offered to 80 colleges nationwide. Ready for it? Here goes (answers at the bottom):

Scenario #1

You’re a rising executive just promoted to corporate controller. Shortly after you land the new job, several senior executives pressure you to distort the company’s restructuring charges in a way that would be misleading but not criminal.

What do you do?

  1. Politely explain to the senior execs that you won’t stand for fudging the numbers.
  2. Modify the charges. Since it’s not illegal, you can draw the line later when you have more experience in the job.
  3. Research what the company has done in similar situations in the past and follow suit.
  4. Go over the senior execs’ heads right to the CEO.

Scenario #2

You join a nonprofit firm in a junior accounting role. As you review the year’s corporate donations, you quickly realize that no standard procedure exists to determine the value of in-kind donations (gifts in the form of goods or services rather than cash). Some of your most prolific donors inflate valuations to deceive the IRS. Your overworked executive director makes a point of emphasizing relationships above data.

What do you do?

  1. Nothing. What the donors tell the IRS is their business and your organization can’t afford to alienate them.
  2. Bring up the problem at the next staff meeting. Since you’re in a junior role, you can only do so much.
  3. Find an ally in a senior position and keep pushing for a solution.
  4. Develop your own system to value each major in-kind donation in time for next tax season, and present what you’ve done to the senior executives.

Scenario #3

You’re a junior employee at a large investment bank. Hours before a client meeting, a portfolio manager tells you to review the portfolio of one of the bank’s smallest customers and find a new benchmark that will make it look like the portfolio had performed better than it really had. You know that the client remains with the bank as a favor to a friend who works there.

What do you do?

  1. Point out that misleading the client risks getting the manager in trouble, and the client isn’t going anywhere. Be frank: underperformance happens in uncertain markets.
  2. Don’t take a chance with a manager who asks you to lie. Immediately take your concerns to another manager.
  3. Find the new benchmark. As long as you footnote it, you haven’t done anything illegal.
  4. Duck the request to mislead the client and prepare a presentation that encourages the client to focus on the future.


Scenario #1. Correct choice: 4.

Several arguments could justify inaction: You’re too new; you need to wait until you’re more settled into the role and have the trust and confidence of the senior execs. Plus, raving about ethics to the team is a sure way to establish antagonistic relationships only a few days into the job.

On the other hand, if you wait to speak up until you’re fully entrenched, it could be much more difficult to reverse course. In the real-life situation that inspired the case study, the comptroller used his newness in the position as a way to break with the status quo. He went directly to the CEO with a new guiding vision for the finance department emphasizing its commitment to integrity. He focused on wanting to ensure the long-term survival of the company and rather than ask, the comptroller simply assumed that he and the CEO would be on the same side. It worked; the CEO supported his plan and in the process the comptroller successfully established his authority in the new role.

Scenario #2. Correct choice: 3.

In this kind of a scenario, junior employees typically can’t get past the feeling of powerlessness, says Mary Gentile, a Babson College researcher who helped develop the ethics curriculum. They’re low on the totem pole, so they “question their standing, their judgment, and their legitimacy” in taking a stand against unethical behavior that has become part of the company culture, she says.

In this case, the new hire decided to use his naïveté to his advantage. He approached the executive director and simply asked, “How do we standardize our donation valuations here?” The director never did act on his concerns, and soon left the nonprofit. The junior employee finally took his questions to the lead accountant and an outside auditor. He worked with them to establish an “average cost per box” formula the company would use if donors didn’t submit a written audit. Since it was a formal policy change, donors did not see it as a personal affront.

Scenario #3. Correct choice: 4.

You could justify not saying anything because the bank creates the benchmark and as long as you footnote it, you’ve done nothing illegal. Plus, given the size and relative importance of the portfolio, in all likelihood the manager simply overlooked it. If you refuse to lie on moral grounds, you’ll offend the manager and he will just ask another associate to take care of it anyway.

The woman in the case tried a different approach. She explained to the portfolio manager that she wouldn’t have time to provide an analysis for the new set of numbers before the meeting. Instead, she offered to provide data explaining the portfolio’s underperformance, which the manager could use to suggest a more suitable investment plan for the client. To her surprise, he agreed.

For more HR News, please visit: Could you pass a business school ethics test? Give it a try

Source: News from HR Morning

EEOC slaps two employers for mishandling disability accommodation requests

When an employee asks for an accommodation for a disability, the EEOC expects management to go through the full process of determining whether or not a reasonable arrangement can be made. Two health-related firms recently learned that lesson the hard way.  

Brookdale Senior Living Communities, Inc. of Denver will pay $112,500 and furnish other relief to settle a disability discrimination lawsuit, the agency announced.

Bernadine Adams worked for Brookdale as a health and wellness director.  After Adams took leave from work due to symptoms of fibromyalgia, Brookdale refused her request for a temporary modified work schedule, an ergonomic chair, and adjustments to the lighting in her office, the EEOC alleged.

Brookdale also required Adams to remain on leave until she was able to return to work without any restrictions or accommodations.  After further requests for accommodation and a discrimination charge, Brookdale fired Adams via letter.

The EEOC filed suit in U.S. District Court for the District of Colorado after efforts to reach a settlement failed. After the lawsuit was filed, however, the company agreed to:

  • pay $112,500 to Adams to resolve the case
  • train employees and district managers on the ADA’s requirements, including the need to provide reasonable accommodation to qualified individuals with disabilities, and
  • report to EEOC if there are any further complaints of disability discrimination or retaliation.

The court approved the settlement and will retain jurisdiction for purposes of compliance for two years.

According to its website, Brookdale Senior Living operates 1,150 communities nationwide, offering independent living, assisted living, dementia care and skilled nursing, with 80,000 associates serving about 100,000 residents.

Price tag for refusing ‘interactive process’: $100K

In a somewhat similar case, Mississippi HomeCare of Picayune, a major home healthcare provider in the Picayune, MS area, will pay $100,000 and enter into a consent decree to settle an EEOC disability bias lawsuit.

EEOC brought suit on behalf of Kristy Sones, a former Mississippi HomeCare employee, who suffered an epileptic seizure while working at the facility. Returning to work following her seizure, Sones requested an accommodation to help her perform certain job-related computer tasks — tasks she was having difficulty completing because of the temporary side effects of her seizure medication.

The lawsuit alleged that Mississippi HomeCare ignored Sones’ request, failed to engage in an interactive process to discuss reasonable accommodations, and provided no accommodation. Mississippi HomeCare then terminated Sones less than a month after her request for an accommodation.

In addition to $100,000 in monetary relief, the two-year consent decree requires the employer to provide training to its employees on its obligations under the ADA, and enjoins the company from engaging in any discrimination or retaliation on the basis of disability. The consent decree also requires the company to allow the EEOC to monitor compliance during the decree’s two-year term.



For more HR News, please visit: EEOC slaps two employers for mishandling disability accommodation requests

Source: News from HR Morning

A template for handling tricky workplace investigation interviews

A template for handling tricky workplace investigation interviews

workplace investigation

You may have a lot of experience interviewing candidates for open positions, but interviewing employees as part of a workplace investigation is another animal entirely.

Bernard J. Bobber of Foley & Lardner LLP authored a guide for HR pros to follow when they need to interview a staff member following an employee complaint.

Starting the process …

His three tips for getting each interview underway:

  1. Lay out the purpose of the meeting — without giving away info you might already know. Identify why you’ve asked to speak to the employee in general terms.
    Example: “I’m investigating a claim about supplies missing from the supply closet and I want to ask you and some other employees questions about it.”
  2. Explain the need for full and honest answers. You’ll want to mention two things: your assurance that the worker won’t be retaliated against for giving truthful responses, and the risks – including disciplinary action or even termination — involved with giving false info or lying.
  3. Confirm that the employee understands what you’re asking for. Don’t hesitate to come right out and require a response. If you ask, what else can they say but “yes”?
    Example: Will you give me truthful and complete responses without withholding any information?

These three questions reiterate the importance of being truthful — and the risks the worker willingly takes on if he or she isn’t honest.

…and closing the loop

Bobber’s formula for finishing up a conversation with an employee:

  1. Ask the interviewee for other sources. Once you’ve neared the end of the interview, see if the staff member knows of any other employees who may have additional information.
    Example: Who else do you think might have relevant info, notes, statements, etc., about this? What do you think he or she knows?
  2. Ask a broad question to make sure you’ve received all the information from the employee. The last thing you want is for new information to come out later, either while the investigation has already been going on for some time or, worse, at trial.
    In addition to getting a verbal assurance from the worker that he or she won’t withhold information, you’ll also want to ask a broad question to make sure there’s nothing the staffer may have failed to give you.
    Example: Is there anything else that you think might be possibly relevant to this?
  3. State that you want the employee to come to you if he or she recalls or learns something new.
    Example: If you remember or come across any new information after we’re done here, will you please let me know?
  4. Remind the worker of your anti-retaliation policy. You already said it at the start of the conversation, but reiterate that the staffer won’t be retaliated against for telling the truth — either from you or from anyone else at the company.
    Example: If you experience any backlash, will you let me know right away so I can look into it and get it figured out?
  5. DON’T automatically require confidentiality. Until recently, you could ask a staff member to not talk about your investigation until it was over.
    But the National Labor Relations Board recently turned that on its head, saying that requiring workers to remain quiet could violate their rights. The reason: An employer’s concern with protecting the integrity of the investigation isn’t always sufficient to outweigh employee rights.
    Instead, if you want to require investigation confidentiality, you have to determine if any witnesses need protection, if evidence is in danger of being destroyed, or if there’s a need to prevent a coverup.

For more HR News, please visit: A template for handling tricky workplace investigation interviews

Source: News from HR Morning

People are strange: 14 incredible things employees were caught doing on the clock

One of the great things about writing about HR is the unbelievable range of stupid stuff that human beings do during work time. Here’s a small sampling.  

If you’re thinking, “Oh, I bet this is another one of those CareerBuilder surveys,” you’re right. This one asked 2,175 hiring and human resource managers for examples of the most bizarre things they caught employees doing while they were supposed to be working, and the most common productivity killers in the workplace.

First, the most outrageous behaviors:

  1. Employee was taking a sponge bath in the bathroom sink
  2. Employee was trying to hypnotize other employees to stop their smoking habits
  3. Employee was visiting a tanning bed in lieu of making deliveries
  4. Employee was looking for a mail order bride
  5. Employee was playing a video game on their cell phone while sitting in a bathroom stall
  6. Employee was drinking vodka while watching Netflix
  7. Employee was sabotaging another employee’s car tires
  8. Employee was sleeping on the CEO’s couch
  9. Employee was writing negative posts about the company on social media
  10. Employee was sending inappropriate pictures to other employees
  11. Employee was searching Google images for “cute kittens”
  12. Employee was making a model plane
  13. Employee was flying drones around the office, and
  14. Employee was printing pictures of animals, naming them after employees and hanging them in the work area.

Less unconventional distractions

Thanks to smartphones, chatty co-workers and never-ending Twitter feeds, the obstacles that get in the way of actual work are seemingly endless, the survey indicated. Asked to name the biggest productivity killers in the workplace, employers cited the following:

  • Cell phones/texting: 52%
  • The Internet: 44%
  • Gossip: 37%
  • Social media: 36%
  • Email: 31%
  • Co-workers dropping by: 27%
  • Meetings: 26%
  • Smoke breaks/snack breaks: 27%
  • Noisy co-workers: 17%, and
  • Sitting in a cubicle: 10%.

The Consequences

With so many distractions around, it’s almost surprising any work gets done at all – and sometimes it doesn’t. Survey respondents listed  negative consequences for their organizations, including:

  • Compromised quality of work: 45%
  • Lower morale because other workers have to pick up the slack: 30%
  • Negative impact of boss/employee relationship: 25%
  • Missed deadlines: 24%, and
  • Loss in revenue: 21%.

Not too many surprises there.

For more HR News, please visit: People are strange: 14 incredible things employees were caught doing on the clock

Source: News from HR Morning

5 off-the-clock activities that can get employees fired

A lot of employees, especially your troublemakers (you know who they are), think they’re safe when they leave the work premises. They’re not. 

You can still hold them accountable for a lot of their actions.

Like what?

Employment law attorney and partner at the firm Fisher & Phillips LLP, Shayna Balch, recently answered that question for Phoenix Business Journal.

Here are five actions pointed out by Balch for which companies can terminate employees, unless they have an employment contract that states otherwise:

Harassment and discrimination

Most good employee handbooks explain what the company deems as harassing and discriminatory behavior. Those rules can be applied both inside the workplace and outside the workplace.

Many times when these rules are broken, they’re broken in social settings outside the workplace — especially when drinking is involved.

Post-work happy hours, for example, tend to be a breeding ground for harassment complaints.

In addition, comments made in a group or on social media that are viewed by one employee as joking can be viewed as harassing or discriminatory by another.

Making false statements

Balch’s comments in a guest blog at the Phoenix Business Journal were directed at employees, and she recommended they avoid knowingly making false statements about their employer, customers or co-workers — even in jest.

Another warning she had for employees: Publishing slanderous remarks or defamatory info about anything work-related could also lead to termination.

Revealing trade or customer secrets

Your handbook and policies should outline the kinds of confidential info that employees are prohibited from sharing. And again, these policies remain in effect when employees are off the premises or off the clock.

A violation may be grounds for termination.

Working off the clock

Non-exempt employees must be paid for all the time they work. But that doesn’t mean you can’t punish them for unapproved after-hours work — as long as they’re still paid for it.

Some employees think they’re safe working extra hours and collecting overtime without permission. But they’re not, especially if they’ve repeatedly ignored instructions to get a manager’s approval before working the extra hours.

Moonlighting for the competition

Some employees try to take advantage of every lucrative business opportunity that comes their way — even if that means moonlighting or freelancing for a competitor.

This can be immediate grounds for termination, according to Balch.

For more HR News, please visit: 5 off-the-clock activities that can get employees fired

Source: News from HR Morning

Motel franchisee accused of racial bias, filthy practices

Talk about airing someone’s dirty laundry. After finding out what the linens have been through at this hotel, Tampa-area travelers are bound to seek accommodations elsewhere. 

In a lawsuit filed July 30 in Hillsborough Circuit Court in Tampa, FL, 12 former African-American employees of Days Inn franchisee Jamil Kassim have accused the business owner of racial discrimination — as well as giving some fairly repugnant housekeeping orders.

Lead plaintiff Charlena Williams and her former co-workers have accused Kassim and his managers of using racial slurs to describe them, making threats to fire them based on their race and, eventually, terminating them because they were African-American.

But it gets worse.

Williams said that after reporting that a guest had died in a bed, she was instructed to flip the mattress over — rather than replace it — so the next guest could check in.

The Huffington Post reported that Florida law mandates that any bedding “unfit for use” should be changed.

Safety violations

In addition to the discrimination charges, the lawsuit claims the hotel didn’t use proper health and safety measures to clean blood, vomit and other fluids from the room where the body was found.

This is not the first time Kassim, and his company, Stickbay Inc., have had to deal with accusations surrounding the body.

Williams previously filed a complaint with OSHA after the incident. OSHA then investigated and issued three citations to Stickbay related to having employees handle “contaminated” linens and towels, and failing to make hepatitis B vaccines available to those exposed to the deceased patron.

As a result, Stickbay was assessed $13,685 in penalties, The Tampa Bay Times reported.

For more HR News, please visit: Motel franchisee accused of racial bias, filthy practices

Source: News from HR Morning