The 2015 Top Trending 4th Quarter HR & Talent Management Resources kit brings together the latest in information, coverage of important developments, and expert commentary to help with your HR and Talent Management related decisions.
For more HR News, please visit: 2015 Top Trending 4th Quarter HR & Talent Management Resources
Source: News from HR Morning
Are you ready for the three most difficult conversations you’ve had in a while? You can thank the DOL for them.
The agency’s changes to the FLSA overtime exemption rules aren’t just going to be a financial headache for employers; they’re also going to be a managerial dilemma.
If the final rules resemble anything close to the DOL’s proposal — which would crank up the minimum salary threshold for all exempt employees to $50,440 — large chunks of companies’ workforces are about to go from exempt to non-exempt.
Financial implications aside, that creates a huge management problem: The change in classification will feel like a demotion to employees.
If you think employees will curse the Obama Administration for what could essentially be an overnight change in their work arrangements/classifications, you’re in for disappointment.
Odds are the average worker’s going to blame you, their employer. After all, not everyone keeps up to date with what the feds are doing. So, on its face, the shift from exempt to non-exempt status will look like something your company did for its own benefit.
But you and your managers know better — and must be prepared to deal with all this negative fallout.
With the finalized rules slated to hit in 2016, the time is now to start prepping for these awkward employee conversations the rule changes will spur:
Companies are facing a crisis of compensation. And this is the No. 1 question you should be pondering now:
If your answer is no, that begs two more questions:
No matter the determination you arrive at, it’ll require a carefully-crafted conversation — and that goes double if you’re taking duties off of someone’s plate.
Reason: Your better employees will look at the move as you taking responsibility away from them — again, a demotion.
Adding to the perceived notion that they’re being demoted is employees’ loss of a salary.
Many view earning a salary as a rite of passage — after years of punching a time clock, they feel they’ve finally reached professional status.
But unless you’re willing to pump up these folks’ salaries above the new FLSA threshold, that status is about to change.
In other words, they’ll feel like being reclassified as exempt — and having to punch a time clock — is a loss of status.
This perception will be magnified 10-fold if they’re left out of after-hours business discussions in which they were previously included to prevent them from making OT.
This perception problem puts the onus on HR and employees’ managers to evaluate individual situations and find a way to assure employees they’re not being “demoted” or “losing status.”
In a recent SHRM survey, 67% of HR pros said if the new rules lead to increases in OT eligibility and OT pay, it’s likely that employees will have decreased flexibility and autonomy.
After all, a lot of employees will have to start punching a time clock who haven’t done it before (or at least haven’t for a long time). That means arriving late and leaving early will result in less pay when it didn’t before — and telecommuters will feel as though Big Brother’s starting to watch them.
There’s no easy way to explain why this is how it has to be for many workers — but you do have one feather in your cap, should you chose to use it …
One way to sell employees on the idea of becoming non-exempt is to position the move not as as a loss of flexibility, but as a definition of structure.
Their hours will now be finite — and if they were working over 40 hours before, they can now spend that time with family and friends (again, assuming you’re not going to open the overtime gates).
Plus, since it appears the DOL’s going to classify any time spent answering work email and phone calls after hours compensable time, chances are employees won’t have to do that either. Thus, their work/life balance may actually improve as less work will creep into their personal time.
Info: For more on how to deal with difficult conversations, here is HR Morning’s list of conversation do’s and don’ts.
For more HR News, please visit: 3 thorny people problems that will arrive with new OT rules
Source: News from HR Morning
Work/life balance is among the most common buzzwords — and the slipperiest issues — around HR today. Wonder what jobs offer the best of this elusive ideal? Read on.
Recently, Glassdoor identified the 25 Best Jobs for Work/Life Balance, compiled using employee feedback shared on the career consultantâs website over the past year.
Glassdoor’s clients rated their satisfaction with their jobs’ work/life balance on a 1-to-5 scale — 1 being totally unsatisfied, 5 being very satisfied. Turns out work-life balance has decreased in recent years, as employees have reported an average work-life balance satisfaction rating of 3.5 in 2009, 3.4 in 2012, and 3.2 thus far in 2015.
So here’s Glassdoor’s lineup of this year’s 25 best jobs for work/life balance (listing includes average salary and number of available positions on the Glassdoor jobs board):
We’re struck by a couple of things here: First, how many of these jobs are in technology — don’t we keep hearing about how hard it is to find qualified tech people, and how overworked current staffers are?
Second, we wonder how many of these jobs would have even existed if similar research was conducted 15 years ago. Not too many, we’d think.
For more HR News, please visit: Which jobs promote the best work/life balance? You might be surprised
Source: News from HR Morning
Behold the perils of dealing with the FMLA in the Golden Age of Employment Litigation: After clearly catching its employee in the act of FMLA leave abuse, this employer still got sued.
Cue the groans. But hold on, this story has a happy ending … for employers.
Lucy Fitterer worked for the State of Washington Employment Security Department and had been granted intermittent FMLA leave periodically throughout her employment to help her deal with migraine headaches.
As a result, nothing seemed out of the ordinary when she requested two weeks of FMLA leave in January of 2011.
Then, through the grapevine (i.e., Fitterer’s step father mentioned it to one of her co-workers), the employer found out that Fitterer and her husband were planning to use her FMLA leave to slip away for two weeks on a cruise.
As a result, HR reached out to her doctor to verify her need for FMLA leave (warning: failing to get the employee’s permission to do this could also get you sued).
What did the doctor say? He said Fitterer was not incapable of working during the time she would be on FMLA leave. He also indicated she wasn’t seeking treatment while on leave.
So when Fitterer returned to work, her welcome-home present was a pink slip. She’d been fired, and a stated reason for her termination was a violation of the company’s leave policy — a.k.a., FMLA abuse.
Following her termination, Fitterer sued claiming FMLA interference.
Thankfully for employers everywhere, the court quickly dispatched Fitterer’s lawsuit and ruled her termination should stand.
In explaining its ruling, the court said Fitterer had no evidence that she was incapacitated during her two weeks of leave, and there was no evidence that the two-week cruise was necessary to deal with her medical condition.
This is a good sign that courts won’t put up with FMLA abuse, either. Plus, it shows courts will back your punishment of leave abusers when you can build a strong enough case against them — as this employer did, not by making assumptions about Fitterer’s leave, but instead by seeking clarification from her doctor.
Cite: Fitterer v. State of Washington Employment Security Dept.
For more HR News, please visit: âSheâs taking leave where?â Firing for FMLA abuse leads to lawsuit
Source: News from HR Morning
With the deadlines just months away, ACA reporting is priority number one for many HR pros. Hereâs some help with that monumental compliance task.
The reporting requirements can be broken down into two categories:
And if your company will be filing more than 250 or more returns for 2016, the IRS requires you to do it electronically.
But you do get an extra month to get those forms to the feds â that deadline is March 31, 2016.
Note: The feds recently let employers know that there is a way to get a 30- or even 60-day ACA reporting extension in some situations.
To ensure your firm has everything in order by the time the deadlines roll around, here is a five-point checklist:
1. Keep all key requirements in mind. If youâre an employer with between 50 and 99 full-time employees, youâve got reporting requirements under the law â even if you qualify for transitional relief or if you donât offer healthcare coverage.
Whatâs more, regardless of your own plan year, ACA reporting is based on a calendar year basis and generally must be reported for each month of that calendar year.
2. Make sure everybody is on the same page. The reporting process requires a lot of communication between different departments (HR/Benefits, Payroll, Finance) and, in many cases, a software vendor is also involved.
Example: For many firms, Payroll tracks the hours worked during the measurement period â the period where employers determine workersâ full-time status.
After the tracking, will Payroll also put together a report on each employeeâs total hours of service or will that task fall on HR and Benefits? If so, what info does HR need?
3. Make sure all necessary data is being collected. During the plan year, firms should be collecting a variety of data from workers for reporting purposes.
This includes: enrollment and termination of coverage dates, acceptance or coverage waivers, coverage eligibility documents, employeeâs share of lowest cost monthly premium for self-only minimum value coverage, wage info (for the Affordability test), documents on coverage offers to employees, and their spouses and dependents.
4. Familiarize yourself with the forms, instructions now. Employers should review the IRSâ instructions and familiarize themselves with the sample forms. This will ensure the process is much smoother come crunch time.
When it comes to the actual reporting, Form 1095-C can be broken down into parts I, II and III (section for self-funded plans).
Because itâs complex and time-consuming, Part II is expected to cause employersâ the most trouble.
Among other things, Part II will be used to track firmsâ monthly compliance with the Shared-Responsibility regs and whether employees, spouses and dependents are eligible for a premium tax credits, whether minimum, affordable coverage has been offered and what safe harbor, if any, is available.
5. Doublecheck all reporting. This canât be stressed enough. The Congressional Budget Office (CBO) is expecting filing errors to be the ACAâs single largest revenue generator over the next decade.
For more HR News, please visit: ACA reporting: What you should be working on right now
Source: News from HR Morning
It’s rare to find something HR-handy on Facebook these days. Between your friends sharing their baby photos and political opinions, there isn’t much room left for stuff to help with your job. But we had to share this Facebook find with our HR Morning audience.
A reader, a Millennial himself, spotted and shared this Forbes.com article.
It’s entitled, “Why Millennials Keep Dumping You: An Open Letter to Management.”
It contains a letter penned by Elizabeth McLeod, a millennial and cum laude graduate of Boston University. She’s the daughter of Lisa Earle McLeod, a best-selling author and creator of the popular business concept Noble Purpose, who also has a regular column at Forbes.
In McLeod’s letter, which is simply addressed “to Management,” she beautifully combats the common stereotypes placed upon Millennials — stereotypes like they don’t settle down, they’re fickle, and they only care about themselves and not the companies they work for.
She does so with a list of specific reasons Millennials hand in their resignation letters shortly into their tenures with employers.
Here it is:
For more HR News, please visit: Millennial to employers: 4 reasons we keep quitting
Source: News from HR Morning
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 wonât have to worry about an upcoming health reform provision that was slated to alter the definition of âsmall group employerâ in 2016.
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 Obamacareâs SHOP exchanges to employers with no more than 50 employees (unless states expand the threshold).
The 100-employee threshold would have forced âmid-sizedâ 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
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.
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:
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
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 â rather than supervisors â 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 jobâs 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
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.
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”:
The court of appeals cited these while issuing its ruling in an FMLA interference and retaliation lawsuit brought against Tulsa Winch Inc. (TWI).
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.
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 itâs OK to fire an employee on FMLA leave
Source: News from HR Morning
