SALES & MARKETING MANAGER, Page 2 Tag

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.

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.

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.

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.

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?”

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.

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!  

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.