Smaller firms breathe easier after Obama signs new ACA law

President Obama just signed into law the Protecting Affordable Coverage for Employees (PACE) Act, a bill that received rare bipartisan support. For many smaller employers, the law comes as welcome news.  

Because of PACE, employers won’t have to worry about an upcoming health reform provision that was slated to alter the definition of “small group employer” in 2016.

Definition remains unchanged

Under the ACA, the definition of small employer was slated to increase to any business with one to 100 employees on January 1, 2016.

For the purposes of the exchange and the insurance market ACA regs, a small employer is currently defined as one with one to 50 employees. Under PACE, that definition remains intact. However, under the new law, states do have the option of using the 100-employee threshold if they wish.

PACE will also limit participation in Obamacare’s SHOP exchanges to employers with no more than 50 employees (unless states expand the threshold).

The 100-employee threshold would have forced “mid-sized” firms (51-100 employees) into the small group market where plans are subject to a number of additional ACA requirements. This, critics argued, would drive up healthcare costs.

For more HR News, please visit: Smaller firms breathe easier after Obama signs new ACA law

Source: News from HR Morning

Another harassment suit, another expensive settlement

The EEOC continues to crack down on allegations of sexual harassment in the agricultural industry. Latest settlement cost: $450,000.  

Two potato packing companies will ante up the cash and furnish other relief to settle a lawsuit for sexual harassment and retaliation brought by the U.S. Equal Employment Opportunity Commission, the agency announced.

EEOC charged Smokin’ Spuds, Inc., d/b/a MountainKing Potatoes, and Farming Technology, Inc., d/b/a MountainKing Potatoes, with violating federal law by subjecting more than a dozen women to regular verbal sexual harassment and unwelcome physical contact from a supervisor.

EEOC also claimed that the companies unlawfully discharged three of the women in retaliation for refusing to submit to the harassment or making complaints about the harassment to other management officials.

The two companies operate a potato packing plant in Monte Vista, CO.

The EEOC suit alleged that supervisor Samuel Valdez engaged in various sexually inappropriate actions, including making sexual comments and gestures, propositioning female employees, touching them on their buttocks and breasts, and in at least one instance, pulling a female employee onto his lap.

Complaints to management went unheeded, according to EEOC, and in some circumstances, women were actually fired after complaining. As a result, the harassment continued unabated for several years.

Third win

This is the third case in which the EEOC has successfully settled charges of harassment in the agricultural industry. The first case, EEOC v. Spud Seller, Inc., settled for $255,000 and a consent decree was entered on Jan. 31, 2013. Just last month, EEOC obtained a $17 million jury verdict in its sexual harassment case against Moreno Farms, Inc.

In addition to paying the $450,000, the defendants in the recent case are also subject to a three-year consent decree which enjoins them from engaging in any future employment practice which discriminates on the basis of sex, including sexual harassment, and from retaliating against individuals who oppose such practices.

Additionally, the decree requires:

  • extensive training for employees, supervisors and human resources officials on employment discrimination laws
  • letters of regret to the affected women
  • posting a notice regarding employees’ rights to be free of harassment and retaliation
  • distribution of EEO policies, including Spanish versions, and
  • establishing a consent decree monitor with various oversight responsibilities.

The companies will also report to EEOC regarding compliance with the decree.

They’ve also agreed to part ways with Samuel Valdez.



For more HR News, please visit: Another harassment suit, another expensive settlement

Source: News from HR Morning

Another ADA checklist: The common interactive process pitfalls

Recently, we ran a post outlining seven areas you need to cover when navigating the interactive process of the ADA. This time around, a look at the landmines you need to avoid.  

These guidelines come courtesy of attorney Kelli Gemelli of JacksonLewis, writing on the California Workplace Law blog.

The reasonable accommodation process “can be tricky,” she says in a masterpiece of understatement, and mistakes are easy to make. Some of the most common:

Not recognizing an accommodation request was made. Sounds outrageous, but think about it: Managers don’t always pick up on what employees say, and employees don’t always express themselves clearly. “A best practice is to have a policy that requires employees to consult with your human resources department – rather than supervisors – if they need an accommodation,” says Gemelli.  “By doing so, companies limit the amount of confidential information being reported to supervisors.”

Asking for too much medical information. Federal and state law limit how deeply employers can dive into employees’ medical files. The guideline: Ask only for information that directly relates to the employee’s limitations in performing the essential duties of his/her job.

Denying an accommodation request because the employee did not provide a solution. Even if the employee can’t define what he or she is seeking, the employer is still required to go through the interactive process. It’s entirely possible a reasonable answer might be found during the process.

Ending the accommodation dialogue because you can’t find a reasonable accommodation that would allow the employee to perform the job’s essential functions. “If an employee cannot perform the essential functions of the job, the employer should see if other accommodations can be made such as reassigning the employee to an open position, allowing the employee to work part time or providing the employee with an unpaid leave of absence,” says Gemelli.

Invoking the “we’ve never done things that way before” defense. No way that flies in court. A reasonable accommodation is a reasonable accommodation, no matter what company history says.

Failing to document the process. You saw this one coming, right? As the saying goes, “No paperwork, no defense.”

Stretching the “undue hardship” parameters. It’s important to remember, Gemelli says, that cost alone rarely qualifies as an undue hardship on an employer.



For more HR News, please visit: Another ADA checklist: The common interactive process pitfalls

Source: News from HR Morning

5 times it’s OK to fire an employee on FMLA leave

5 times it’s OK to fire an employee on FMLA leave

FMLA leave

Of course, you’d never to fire someone for taking FMLA leave. But perhaps the termination had been in the works long before the person took FMLA leave. It’s still a sticky situation, but a court recently outlined when it’s safe to say goodbye to someone on FMLA leave. 

The danger is, obviously, FMLA interference and retaliation claims. You never want to make it look like the taking of FMLA leave was a motivating factor in the decision to terminate someone (not that it would be).

Still, an FMLA lawsuit may likely be forthcoming if you terminate someone while they’re on, or just returning from, FMLA leave. It’s kind of a go-to move for employee-side attorneys: “Oh, you were on FMLA leave when they fired you. That’s interference and retaliation.”

But courts will side with you if you can prove the employee, FMLA leave aside, had it coming — e.g., the person was embezzling money, harassing the secretary or lying to customers.

When it’s safe to cut the chord

The U.S. Court of Appeals for the Tenth Circuit recently highlighted five separate cases in which it threw out a worker’s FMLA lawsuit against an employer after finding “undisputed evidence that the employee in question would have been terminated even if FMLA leave had not been taken.”

In then pointed out the element each employer in those five causes had on its side that allowed the court to toss the claims against it. If you can prove one of these elements exist when weighing your decision to terminate an employee on FMLA leave, it’s generally safe to say “you’re fired”:

  • employee failed to comply with a direct and legitimate order from supervisors
  • there was overwhelming evidence of performance issues that predated the leave
  • employee had repeatedly been tardy and was non-compliant with absence policy on the date she was terminated
  • employee, prior to leave, had been tardy, absent from her desk, failed to timely pay invoices or update list of services received from vendors, and
  • evidence was unequivocal that the reduction-in-force decision had already been made before the employee took FMLA leave.

The court of appeals cited these while issuing its ruling in an FMLA interference and retaliation lawsuit brought against Tulsa Winch Inc. (TWI).

Fired after returning from leave

Paul Janczak was the general manager of Canadian operations for TWI when he took FMLA leave to recover from an auto accident.

Immediately upon his return from FMLA leave, Janczak was fired. He then filed an FMLA interference and retaliation suit.

The company tried to get his lawsuit thrown out claiming it was considering a reorganization of its management structure and eliminating Janczak’s general manager position prior to his taking leave.

As the court documents indicate, it does indeed appear as though the company had started evaluating whether or not to eliminate Janczak’s position prior to his leave.

But here’s where TWI’s case fell apart: The decision to eliminate the general manager position hadn’t yet been made prior to Janczak’s leave — thus leaving room for doubt as to whether or not his need for leave actually factored into the final decision to eliminate the position.

As a result, the court said Janczak’s interference claim should proceed to trial, where TWI faces either a costly court battle or settlement.

The court said in order for it to dismiss Janczak’s interference claims before a trial, TWI had to show that his termination would’ve definitely occurred regardless of his leave.

Takeaway: Don’t evaluate whether or not someone should be eliminated while he or she’s on FMLA leave. That’s a decision that must be made prior to the person’s leave — or well after, to enable enough time to pass for the resulting termination not to appear linked to the person’s FMLA leave in any way.

The retaliation claims?

Janczak’s retaliation claim, however, didn’t survive. Why?

The court noted that, typically, retaliation occurs after an employee has been restored to his or her position only to suffer an adverse employment action after that fact.

But in Janczak’s case, he was never restored to his prior position; therefore his claims fell under the interference theory.

Cite: Janczak v. Tulsa Winch Inc.

For more HR News, please visit: 5 times it’s OK to fire an employee on FMLA leave

Source: News from HR Morning

Here’s how trashing resumes, applications can come back to bite you

How long do you retain job seekers’ application materials? Why does it matter? A recent EEOC lawsuit against Coca-Cola reveals why you must keep them (for a while, at least) and what can happen if you don’t. 

The Coca-Cola Bottling Company’s bottling plant in Mobile, AL, is under fire from the EEOC.

The agency is suing the soda maker, claiming Coke violated federal law — twice — when it refused to hire Martina Owes.

Here are the charges levied against Coke, according to the EEOC:

  • Sex discrimination. The EEOC claims Coke violated Title VII of the Civil Rights Act by discriminating against Owes on the basis that she’s a woman. The lawsuit alleges that the company, after refusing to hire Owes for two vacant warehouse positions, hired two less-qualified men to fill the positions. The EEOC alleges Owes had all of the warehouse and forklift experience required for the positions.
  • Recordkeeping violations. The agency also claims Coke violated federal recordkeeping requirements by not preserving all of the application materials related to those positions.

The EEOC filed the lawsuit after failing to reach a settlement through its conciliation process. Our only guess as to why Coke didn’t settle is because it feels it has a strong defense and can show a court it had a non-discriminatory reason for denying Owes employment.

Still, based on cases like this we’ve seen in the past, it’s likely difficult for Coke to prevail on the recordkeeping charges. After all, it either has the records or it doesn’t.

What to keep, and for how long

Regardless of the outcome, this case highlights the importance of retaining application materials. Chances are when the EEOC starts snooping around for wrongdoing in your hiring process, it’s going to request all of your hiring materials — past and present. And you’d better be able to produce them, or expect the agency to come after you.

So how long do you have to keep application materials, anyway?

The rule under the Age Discrimination in Employment Act is a minimum of one year. But if you’re aware the applicant is over 40, it’s smart to retain them for at least two years. This rule also applies to resumes, references checks and background check materials.

What about personnel and employment records?

The EEOC requires you to keep them on file for at least a year.

Payroll records?

Three years.

Now if your company is to be charged with some form of wrongdoing, then you’ve got to keep all of these materials until the matter is resolved.

In the EEOC’s lawsuit against Coke, the agency is seeking back pay, front pay, compensatory and punitive damages, a job for Owes and an injunction against future discrimination.

For more HR News, please visit: Here’s how trashing resumes, applications can come back to bite you

Source: News from HR Morning

Seemingly innocent interview questions that might spark an age-bias claim

You know better than to ask a job candidate how old he or she is. But employee-side lawyers are crafty, and can build an age discrimination lawsuit around queries that seem a lot more innocent. 

What not to ask

Some examples from a recent post on The EmpLAWerologist blog:

  • How long would you stay with us?
  • How long do you plan to work?
  • How’d you feel about working for someone younger than you?
  • When did you graduate?
  • How many years of experience do you have?

Obviously, these questions are dangerous because they could draw out someone’s approximate age.

And they’re also kind of dumb. What response can you expect if you ask a candidate, “How long would you stay with us?” “Well, just until I get enough dough together to run away to Mexico”?

Nonetheless, these kinds of questions do get asked of candidates on a depressingly regular basis. And if a rejected candidate sues for age bias, it’ll be hard to prove you didn’t base your decision on his or her answers.

A couple additional reminders

Obviously, you need a lot of information before deciding to hire someone. And that means asking a lot of questions.

Much of the problems come in the phrasing. Everything you ask should be related to the person’s ability to do the job, but some questions might inadvertently come out in a way that reveals off-limits details on things like race, religion, disabilities, etc. You need to phrase those questions in a way that only addresses the work-related details.

Along with the kinds of questions listed above, here are another two areas where you need to tread carefully:

“Family responsibility” discrimination

You can’t ask if a candidate has kids. That’ll leave the company open to sex discrimination charges if it looks like you treat men with children differently than you treat similarly-situated women. You’re better off not knowing about familial status. If you’re filling a position that requires odd hours or a lot of overtime, just make sure the candidate understands that and ask if availability will be a problem for any reason.

Disability discrimination

Finally, you should avoid questions regarding health and physical abilities, such as those about height, weight, injuries, disabilities, etc. Instead, ask specific questions about what’s required for the job, for example, “You’d have to carry boxes weighing up to 50 pounds – can you do that?”


For more HR News, please visit: Seemingly innocent interview questions that might spark an age-bias claim

Source: News from HR Morning

A 7-point checklist to smooth ADA accommodation request process

Handling ADA accommodation requests is tricky, as you know. But the better prepared you are before you receive a request, the better your chances for staying on the right side of the law. 

To that end, employment law attorney Patti C. Perez of Ogletree Deakins suggests employers use this seven-point checklist to make sure they’re ready to engage in the ADA’s interactive process:

Define the process. Does your company have an easy-to-follow process for making accommodation requests? Tip: Have one person handle all requests.

Communicate. Begin a conversation with the employee as soon as he or she requests an accommodation, and document all interactions with him or her.

Gather employer documents. Compile relevant documents, like the employee’s job description, department expectations and performance evaluations. The more information you have, the easier it’ll be to create an accommodation plan.

Gather employee documents. Ask the employee for a detailed description of his or her restrictions. Keep the conversation on the restrictions – not on the medical condition itself.

Perform “match analysis.” Based on the employee’s restrictions, does a reasonable accommodation exist that would allow the person to continue to perform his or her job?

Explain your decision. Discuss the finer points of your final decision with the employee.

Follow up. Check in with the employee and managers after the accommodation is in place to make sure everything’s working.

For more HR News, please visit: A 7-point checklist to smooth ADA accommodation request process

Source: News from HR Morning

Millennial Human Resources: The New Frontier

By 2020, half of the professional workforce will be of the millennial generation. Fluent in the language of social media and computer processes, we’ll find plenty of Generation Y on both sides of the interview table. This survey asked individuals to assess the skillset, vision and culture of Gen Y HR pros as they break out onto the office floor.

Click here to learn more!  

For more HR News, please visit: Millennial Human Resources: The New Frontier

Source: News from HR Morning

Ready for an avalanche of resumes? It’s headed this way, experts say

Ready for an avalanche of resumes? It’s headed this way, experts say


Looks like there could be a lot of movement in the job market over the next several months.  

Full-time, permanent hiring in the fourth quarter is projected to be the most robust since 2006 and seasonal hiring is poised to outpace last year’s projections by a healthy margin, according to CareerBuilder’s recent research.

And, as we outlined in a recent post, there’s a substantial number of employees who say they’re actively looking to change jobs — despite being generally happy with their positions and their organizations.

It’s setting up to be the perfect storm of worker mobility.

Thirty-four percent of U.S. employers plan to hire full-time, permanent staff in Q4, and nearly the same percentage (33%) expect to add seasonal staff, according to CareerBuilder. More than half (53%) of retailers plan to hire seasonal workers in Q4, up from 43% last year.

The national survey was conducted online by Harris Poll on behalf of CareerBuilder, and included a representative sample of 2,326 hiring managers and human resource professionals across industries and company sizes.

The numbers from the CareerBuilder research:

Full-time Hiring in Q3 2015

Thirty-nine percent of employers added full-time, permanent headcount in the third quarter of this year, up from 34% in the same period in 2014 and 28% in 2013. Ten percent decreased headcount, on par with last year, while 49% made no change to staff levels and 1% was unsure.

Full-time Hiring in Q4 2015

Looking ahead, 34% of employers plan to add full-time, permanent employees in Q4, up from 29% in 2014 and 25% in 2013. Ten percent expect to reduce staff, on par with 9% last year, while 52% anticipate no change and 4% are unsure.

Seasonal Hiring in Q4 2015

Seasonal hiring activity over the next three months is also expected to show notable year-over-year gains. One third (33%) of employers expect to hire seasonal workers in Q4, up from 26% last year. Fifty-seven percent expect to transition some seasonal staff into full-time, permanent roles, up from 42% last year.

Pay for Seasonal Jobs

Seasonal workers will likely benefit from recent minimum wage increases implemented at the federal and state level and among large name brands. Thirty-seven percent of employers say they will increase pay for their seasonal staff, up 10 points over last year. Seventy-two percent of seasonal employers will pay $10 or more per hour while 19% will pay $16 or more.

Half of seasonal employers (52%) say they’re boosting staffs to help with the busier holiday season while others are focused on wrapping up the year (30%) or ramping up for 2016 (31%).

While the number of retailers planning to hire seasonal help in Q4 increased 10%  over last year, companies across industries are hiring for a variety of areas:

  • Customer Service – 46%
  • Administrative/Clerical Support – 23%
  • Inventory Management – 17%
  • Hosting/Greeting – 17%
  • Shipping/Delivery – 16%
  • Accounting/Finance – 15%
  • Marketing – 15%
  • Sales (non-retail) – 11%, and
  • Technology – 10%.

South, Midwest lead regional hiring

Similar to last year’s forecast, the South houses the largest percentage of employers planning to add full-time, permanent employees in Q4. The Midwest reported the largest year-over-year gain with 34% of employers expecting to add full-time, permanent staff, up 10% over last year. The West is leading other regions for seasonal hiring (42%) by a significant margin of over 9% and reported the biggest year over year gain (13%).

Hiring by Company Size

Among employers with more than 500 employees, the percentage expecting to hire seasonal workers in Q4 is up significantly from 31% in 2014 to 42% in 2015. Forty-four percent plan to add full-time, permanent headcount, a solid jump from 35% last year.

Hiring is also expected to pick up pace in small businesses. Among companies with 50 or fewer employees, 23% plan to hire full-time, permanent workers over the next three months, up 7% from 16% last year. Seasonal hiring for this segment is expected to hold steady with 17% of employers planning to add staff.

Among companies with 250 or fewer employees, 26% expect to add full-time, permanent staff in Q4, up from 23% last year, while 25% expect to add seasonal staff in Q4, up from 21% last year.

For more HR News, please visit: Ready for an avalanche of resumes? It’s headed this way, experts say

Source: News from HR Morning

5 adjectives you want to hear job candidates say

It’s difficult to tell what kind of person someone is just by their resume. Heck, it can even be difficult to tell when face to face with the person. But there are some approaches that will do the trick. 

Chances are you want a hire who’s self-motivated, honest and trustworthy — in addition to having the background you’re looking for, of course.

While candidates will likely tell you they’re all those things if asked, it’s also likely they’re doing so because they know that’s what you want to hear (whether it’s true or not).

As a result, Dave Porter, managing partner at Baystate Financial in Boston, a company that holds its recruiters and managers accountable for the results of those they bring on board, says companies should ask candidates to describe their character.

Five words Porter says you want to hear candidates say that indicate they’re made of the right stuff:

  1. Honest
  2. Respectful
  3. Punctual
  4. Curious, and
  5. Accountable.

Whether or not you hear adjectives like these will tell you “how much the candidate cares about others and about doing the right thing,” Porter says in his book Where Winners Live: Sell More, Earn More, Achieve More Through Personal Accountability.

‘When nobody was looking’

Porter has another suggestion as well. Ask candidates this question: When in your life have you made a decision that you’re proud of — when nobody was looking?

If candidates take a while to answer, they’re likely not good fits for Baystate Financial. Porter says, candidates with integrity should have little trouble recalling situations — and the decisions they made in them — that reveal their true character.

In his book, Porter said one candidate, Leonard, told a story about finding a camera in the back seat of a Boston taxi. When the driver told Leonard he was going to keep the camera, Leonard refused to give it to the driver and instead took it to the taxi company’s lost and found. Leonard got the job.

Those are the kinds of stories you want to hear — along with adjectives like those described above.

Bad indicators

What you don’t want to hear, Porter says, are indicators the candidate has what he describes as an “all-about-me” attitude.

Some of those indicators could be dropping adjectives like:

  • Carefree
  • Fun
  • Laid back.

However, describing themselves in those ways aren’t necessarily deal breakers. Those qualities can actually be good things, Porter says, when balanced out by professional attributes. But finding out whether that’s the case requires deeper probing.

For more HR News, please visit: 5 adjectives you want to hear job candidates say

Source: News from HR Morning