Posts in Compliance the Human Way
Change is the New Normal
Russell Senate Office Building, Washington, D.C.

Russell Senate Office Building, Washington, D.C.

In HR, we're used to rolling with the punches, adapting to changes every day in the needs of our organizations, the crises that arise among our workforce, and continuously learning how to navigate the workplace waters with new technology.

Recently, with a contentious election cycle completed, and an unexpected result (at least, unexpected by many), some of the HR compliance and policy issues that we all have been watching and working on for the past few years have been upended. What will the next four years bring? No one can predict that. But here are some of the areas I'll be watching with a new administration in place and (presumably) shifting alliances in Congress and new leaders/administrators at the Department of Labor.

  • Overtime Rule Changes: Even before the surprising injunction was issued out of federal court in Texas, the winds were shifting on the overtime rule salary threshold changes. In the first week after the election handed the presidency and majorities of both houses of Congress to the Republicans, even some Democratic lawmakers were willing to take a look at advocating for a more gradual increase in the threshold instead of doubling it in the first year and adding automatic increases. Perhaps they were thinking that a reasonable solution might save the rule from being reversed outright. Now that the rule has been blocked, it's anyone's guess whether it will be implemented as written anytime soon. With many employers having already made changes in advance of the 12/1/2016 implementation date, it may not matter to anyone but the most hardened procrastinators.
  • Inclusion of Pay Data in the EEO-1: This requirement isn't set to be rolled out until  March of 2018, but many have argued that the burden of this reporting and the privacy concerns that arise from this reporting requirement and the publication of aggregate data by the EEOC merit giving it another look. Employers with 100 or more employees and federal contractors with 50 or more employees make this a small business concern. President-Elect Trump has stated that he wants to make it easier for businesses to create jobs by cutting corporate taxes. Will he consider reducing regulatory burdens to be part of that picture?
  • Paid Maternity Leave: Mr. Trump has indicated that he is in favor of requiring six weeks of paid maternity leave. This is certainly a benefit that would allow many women to recover from birth and bond with their infants who would not otherwise have that opportunity if they are not currently eligible for short-term disability benefits through an employer. This policy (also championed by his daughter, Ivanka Trump) indicates that the new president may be willing to impose costly burdens on employers if he believes the outcome is worthwhile. This separates him from some other politicians in his party, who don't support such an expansion of paid leave.

What labor policy will we see from an incoming Republican president whose base of support includes party-crossing union voters as well as business owners? The answer is likely the be fascinating and unpredictable. These are just three of the policy issues I'll be following over the next year. Share your thoughts on issues important to HR in the comments below!

Photo Credit: Kelly Marinelli

Employees in Treatment for Substance Abuse

Dear Solve HR,

I really need help with this one. My employee of one year has been erratic lately, showing up more than two hours late for his shift on two occasions, forgetting to perform some very important safety protocols during his work, and lashing out at a coworker in violation of our employee conduct policy. I coached him on these occasions verbally and in writing, but things haven’t improved. At the most recent meeting three days ago, I let him know that if he arrived late or violated policy one more time, he would be subject to termination.

Today, he showed up an hour late, without a phone call or any communication. When he arrived, I handed him a termination letter, and told him that he was fired. His response was that he was an alcoholic and was attending outpatient therapy, but was having a hard time sticking to his program. I told him I was sorry to hear that but that he was still terminated.

I walked him out of the building and he left. My manager thinks I did the right thing. Now I’m worried that maybe it was the wrong choice.

What do you think?


Dear Manny,

Yikes! This is one of those sticky situations that doesn’t come up every day. I understand your concern, and I hope that part of your worry is about making sure this employee is okay. We all find ourselves sick and unable to work at one time or another, and hopefully your company is supportive of people who need help, by providing care through your employee assistance plan, health insurance benefits and short term disability salary continuation if those things are available.

That said, the repeated problems you described are serious, and you had no way of knowing your employee needed help for a medical condition, because he didn’t ask for it or disclose his struggles. He just kept messing up at work and not telling you about what was going on. But you can probably understand why he wasn’t too eager to disclose that he was in treatment for alcoholism.

Before we start talking about the situation, I will recommend that you consult your company’s attorney or another employment lawyer to obtain advice about what to do in this situation. Legal advice is critical in hazy situations like this one. So do yourself a favor and be sure to involve your HR manager as well as your legal counsel on the front end before completing a termination in a situation like this.

While it’s true that your employee should be held accountable for his failure to arrive at work on time, performing his essential job duties and adhering to your employee code of conduct, and his explanation doesn’t erase the prior behavior for which he is subject to discipline, this situation merits further analysis. When your employee told you that he was an alcoholic and had been seeking treatment, that statement could be interpreted as a request for leave as a reasonable accommodation for a disability.

A “qualified individual with a disability” entitled to protection under the Americans with Disabilities Act (ADA) is defined by the EEOC as:

A person who meets legitimate skill, experience, education, or other requirements of an employment position that he or she holds or seeks, and who can perform the "essential functions" of the position with or without reasonable accommodation. An "individual with a disability" is a person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.

According to the Job Accommodation Network (JAN), this standard of an impairment that substantially limits one or more major life activities has been interpreted to include alcoholism. If your employee was an alcoholic refusing to obtain treatment and repeatedly violated policies and did not perform essential job functions, then a well-documented termination would certainly be an appropriate option. If we consider your employee’s disclosure as a request for leave, then that infuses this termination with a distinct lack of clarity.

Technically it sounds like you terminated this employee prior to his disclosure. But issues of fact may remain here.  The EEOC does not generally view technicalities favorably-their view is likely to be that your employee disclosed his condition at the 11th hour and asked for help, and if you don’t make an effort to engage in the interactive process at that point, you may be held accountable for violating the ADA.

If your employee had gone home after being terminated, then called at some later date to talk about how his medical condition had caused his poor performance and requested help at that point, then it would be much clearer that you had terminated employment based on documented performance problems, without him having requested a reasonable accommodation.

Let’s look at the benefits to your company for allowing your employee to stay on and take leave for treatment:

  • You retain a knowledgeable and experienced resource on your team, instead of losing the investment you’ve made in that employee and incurring turnover costs
  • You promote loyalty and gratitude from that employee, and hopefully a more productive and motivated employee when he recovers and returns to work
  • Your other employees respect and appreciate that you care for your employees when they are vulnerable and sick, and that you will support them through difficult times as well if they need help
  • You reduce legal risk and potential reputational damage that can arise from EEOC action

One caveat: if you routinely drag your feet in dealing with performance issues, and this is an employee that everyone recognizes should have been terminated a long time ago but wasn’t because management didn’t do the job, then you may encounter frustration, both from upper management and coworkers. But don’t give in to the pressure to terminate an employee abruptly in a situation like this when in truth you haven’t been on top of performance management and discipline in the past. If you find yourself in that situation, it is probably worth the additional time and work to give the employee the opportunity to get well and perform his job duties, and manage him appropriately going forward.

You also mentioned that this employee failed to adhere to an important safety protocol at work. If an employee is in a work situation where being under the influence of alcohol presents a safety risk to himself and others, you may be within your rights to randomly test for the presence of alcohol after he returns to work from treatment. Certainly, your reasonable suspicion drug and alcohol testing protocols should still be utilized, consistent with what all employees are subject to in your workplace.

Again, consult with your HR team and attorneys to get specific advice about how to proceed.

Good Luck!

Kelly & the Solve HR Team

Visit Solve HR, Inc.

Photo credit: mariobonifacio via / CC BY-SA

If You Did Not Document It, You Did Not Do It

recently put out a great blog post on the Three Reasons Employee Documentation is Necessary. Go read it-her reasons are all justified and worth considering.

I too hear a lot of complaints from management about having to document what’s going on with their employees. Managers are too busy for that, right? Often, there’s a very real employee performance situation that needs to be resolved, it goes on for a long time (maybe through multiple managers), everyone is frustrated and the manager gets to the end of her rope and wants to “finally” fire the employee, who has been a bad performer for years. Our first question in HR is always, “Where is the documentation?” The answer may be that the employee got average annual performance reviews and no notification that anything was wrong. Or the manager may have told him (verbally) repeatedly about some things he needed to improve.

Besides legal compliance, how does documentation help your managers?

Checking Understanding. The employee may or may not have understood what to do, had the tools he needed to do it, or understood the implications of not doing it. That’s where documentation comes in handy-as a form of communication that can serve as an opportunity to check understanding on the part of both the manager, who thinks she is being clear, and the employee, who could think it’s either no big deal or his manager is just nit-picky and/or won’t actually follow through with any consequences. This is especially true if the employee has been flying under the radar with mediocre or bad results for many years and has been rewarded with a raise or bonus.

Ensuring Consistency. Documentation also serves the important purpose of helping managers ensure they are consistent in delivering coaching and performance messages to all team members over time as well. When you've documented your communication and actions, you can go back and review them when you are working on a future, similar case, to eliminate unconscious bias or emotional interference that may cloud your judgment. And if there is ever any question about a manager's motivation, the documented facts and observations are there to speak for themselves, instead of managers having to rely on a busy and sometimes faulty memory to retrieve information. It enhances a manager's confidence when delivering difficult messages and dispel any sense among her team that team members are treated differently. She can focus on the human energy on her team and generate trust in her as a leader.

Not only is it legally risky not to use documentation in implementing discipline for violating policy, or managing performance on an ongoing basis, it’s a total waste of time and a morale killer for everyone involved. Managers need to understand how documentation benefits them in managing the performance of their employees, how putting in a little time to put it in writing will pay off dividends down the road, and also how it’s required as part of their expected performance as managers.

Guess who can help deliver and reinforce this message? HR! Don’t just tell managers that they can't do what they want to do because documentation is required for legal or policy barriers-relate it to the business reasons that enhance the success of the organization. I'm always in favor of saying "Yes, and this is how you do it" as opposed to always being the "HR No Machine." Bringing the "no, no, no" is a way to make sure you get tuned out and kept out of the loop. Be the the go-to resource to help your managers develop the documentation skills they need, and make it as easy for them as possible to do their best work and support compliance at the same time.

Visit Solve HR, Inc.

Photo credit: Sean MacEntee via / CC BY

Your Applicant Tracking System Doesn't Work

I hate to break it to you, but that ATS you spent so much money on purchasing and time on implementing is a huge barrier to job seekers wanting to connect with your company and be considered for open jobs. As Liz Ryan of HumanWorkplace describes it, the ATS is a giant black hole into which hopeful job seekers pitch their carefully crafted bespoke resumes and hours of their data entry time, only to be rewarded with an auto-response email that tells them they will never hear from the company again if the faceless machine of the ATS doesn’t deem them a suitable applicant.

Here are some ways you are using your ATS to alienate job seekers and turn people off from your brand:

  1. Letting them hurl their qualifications into a virtual trash can, never to be seen again, without any personal response from you.
  2. Actively discouraging any personal contact information for an actual staff member from being made available to job seekers. They should be happy with the auto-message that says "we have so many wonderful applicants we couldn't possibly respond to all of them, including you." This "don't call us, we'll call you" message has become the standard, but that doesn't make it an effective way to recruit.
  3. Using “evergreen listings” (listings that remain open all the time for frequently filled positions) or leaving job postings open for an excessively long period, hoping that simple passage of time will magically bring you the perfect candidate (it won’t do that-it will just discourage job seekers from thinking you really have an opening or intend to fill it during this century, and give you 50,000 resumes to review).
  4. Thinking you’re letting someone down easy by just not responding. You aren’t-you’re just frustrating the job seeker and giving him a bad impression of your company. Hiding behind a faceless machine to make it seem like you are not really making a decision to reject someone is a weenie move. Just say, "no thanks, and we wish you the best." It's not that complicated.
  5. Psst...your ATS doesn't work. It crashes in the middle of the 45-minute unpaid data entry project you are making job seekers complete in order to streamline your hiring process. The best talent has one answer: "abandon ship!"
  6. Asking for every piece of information you could possibly need in order to consider and reject a job seeker. Check out your completion rates-the people with the most self-respect are the ones who fail to submit your application, not the ones who don't have enough gumption and a long enough attention span to make it to the end. If you want a candidate pool filled with people desperate enough to complete a long data entry project with all of their personal information, before they have any idea whether you are interested in hiring them, then you are getting the right people with this technique!

No one denies that the volume of applications received for open positions at a large employer cries out for some kind of assistance, whether electronic or human. Here are a few things employers could do to help the situation:

  1. Create and implement an actual sourcing strategy. Simply posting job openings on your company’s careers website and on Indeed or LinkedIn without any plan doesn’t count. It just ratchets up the number of potentially unsuitable applications you will need to wade through.
  2. Maintain a pipeline. Market the positions and your company, to the right-fit job seekers you need to hire, all the time, not just when all of a sudden your hiring manager needs to fill an open position “yesterday.”
  3. Don’t waste the candidates you’ve vetted but who weren’t a perfect fit for another role. Keep in touch with the candidate who was “second choice” for a role, but would be a perfect fit for your company. Keep an eye on positions that will open soon, and encourage her to apply.
  4. Post for appropriate time periods, in the right places, with effective marketing and sourcing (see above). Do you know that your entry-level engineering hires tend to be made in the spring, in advance of a busy summer project season? Then you can be sourcing through professional groups and targeted college programs in the fall. No relo offered? Find the pockets of people in the right geographic areas and network with them so when positions open up, all you need to do is put the word out and you will have the best quality candidates in the area applying. And continuously let potential hires with the qualifications you need and in the places you need them know who you are and what you have to offer.
  5. No evergreen postings, for heaven’s sake! At least take them down and re-post every month or so. They just sit out there like week-old bread getting moldy. Job seekers don't believe they're real and if they do apply and you're not hiring today, they feel cheated if they are qualified and are still rejected (without an explanation, of course).
  6. Just check out your ATS from the user side once in a while, to make sure it's actually working. And don't ask for job seekers to give you their mother's maiden name when they apply. If you actually think they could be a fit, maybe you could maybe ask for that later. Or not.
  7. Communicate with job seekers and candidates in a human way-they are customers of your company and referral sources for other, better fit job seekers. Practice courtesy, courtesy, courtesy. And friendliness. And warmth. All of these are in order, mostly because it's such a great opportunity to shine, since it’s not difficult to stand out from the crowd by treating job seekers with respect and scoring a win for your brand.

People like me who work in the HR Compliance space understand that the ATS can be a necessary evil, especially for its ability to document the hiring process and ensure that every job seeker is treated consistently. But if you can make your ATS work better for your organization, while keeping it from alienating the job seekers who just want to do great work for you, why wouldn’t you? Happy hiring!

Visit Solve HR, Inc.

Photo credit: Jeff Dray via / CC BY-SA

10 Issues to Address Today to Comply With DOL's Overtime Rule Change

timeclock Unless you've been living under an HR rock for the past couple of months, you probably have heard about the more than doubling of the salary minimum for the white collar exemption from overtime, which will soon be increased to $47,476. I have a client who is fully engaged in the stages of grief over these new overtime rule changes just finalized by the Department of Labor (DOL). At first she was in shock (why haven’t I heard of this before?) denial (Congress will block it) and now she’s angry (where are we supposed to get the money to pay for this?!?).

She knows her organization is going to have to come up with a game plan, so I shared with her these 10 most critical issues HR managers need to consider in order to successfully implement the new rules. Some companies will easily get over this hump, and some will struggle, but we are all going to have to come to terms with these changes, because it looks like on December 1, 2016, they are going into effect. That doesn’t leave any of us much time to plan, so I recommend we all get started on addressing these 10 issues:

  1. Identifying who is actually over the new salary limit for the so-called “white-collar exemption” from overtime is not as clear-cut as it seems. Up to 10% of the salary amount can consist of non-discretionary bonuses. If a bonus is delivered based on predetermined factors like the company’s performance, then this amount can count for up to 10% of the annual salary amount for determining which employees fit the white-collar exemption. In contrast, if a bonus is not based on pre-announced parameters, but is paid by the employer spontaneously after the fact, then it wouldn’t meet this category.
  2. Dealing with the situation where a commissioned sales employee falls somewhat short of the limit due to natural fluctuations in earnings. The DOL gives employers the opportunity to make a “catch-up” payment of up to 10% of the base salary amount to the employee at the end of a calendar quarter in order to bring the employee within exempt status for that quarter. The employer has one pay period in which to make the catch-up payment, and if it is not made, then the employee is entitled to overtime pay for the quarter in which she didn’t meet the exemption.
  3. Deciding whether to raise pay of employees to enable them to qualify for the exemption or reclassify them as non-exempt. It’s relatively simple to do this when you’re looking at single employees, and you can consider their productivity, the type of work they do, and the value they bring to the organization. However, you won’t want to raise salary levels to make one person exempt, while designating another employee non-exempt in the same or a similar role. You also need to consider whether new hires into that role should be paid a higher rate and included in the exempt category. Making the right decision requires a review of not only how your organization looks today, but how it’s likely to grow, and the succession planning and talent acquisition strategies you have for the future. This, all before you even look at the budget you have in place (or not).
  4. Delivering the news to employees who are being reclassified. If you are raising the rate of pay for your employees, this one seems simple. But when communicating a pay increase, use it as an opportunity to set expectations, express appreciation and confidence, and capture the goodwill that it generates. If, on the other hand, you must tell your team members they are losing exempt status, some of them may be offended, especially if they view the change as a demotion. Carefully and completely explain the situation, including any benefits, such as recaptured time. Finally, if you must tell employees that not only are they being reclassified as non-exempt, but their hourly rate of pay will be reduced to reflect the actual hours they were working while exempt, get ready for some backlash. Be transparent; don’t sugar-coat the message, but do explain the “why” behind it. The company may not have any ability to pay additional compensation in the form of wages, but maybe there are other benefits or opportunities you can highlight to employees. Encourage them through the transition, and remain open to hearing their thoughts on how it’s going, if you’d like to retain your staff.
  5. Monitoring hours for newly classified non-exempt employees. Ask your soon-to-be reclassified employees to do a “dry run” of tracking their hours each week prior to the implementation date. Low-tech solutions like timecards or spreadsheets can be used for the testing period, but if your organization is of a certain size, you may find it’s more cost-effective to use technology to handle the increase in timekeeping duties. Either way, plan for the HR operations staff time needed to process payroll in an environment where additional hours must be tracked. Documentation is everything, so ensure that all non-exempt employees are accurately tracking, recording, and submitting their time.
  6. Troubleshooting use of smart phones and other devices by non-exempt employees. According to a 2013 Harvard Business Review article, “60% of those who carry smartphones for work are connected to their jobs 13.5 or more hours a day on weekdays and about five hours on weekends, for a total of about 72 hours.” Remember that whether non-exempt team members have permission to work or not, if they do work, they must be compensated for it under the Fair Labor Standards Act (FLSA). Newly non-exempt employees who have been used to receiving praise for going above and beyond as salaried exempt employees now must be coached not to work smart within the 40 hour workweeks they are allotted, unless overtime is approved. You will need to consider whether it makes sense to continue to allow smartphone use for work among your non-exempt team members.
  7. Communicating changes to workers that may remove flexibility. Although the DOL is correct that flexibility within a work day or a workweek for non-exempt workers is preserved, in that employees may take off two hours early for an appointment but later work from home for two hours, there will be impacts to some flexibly-scheduled employees, especially those who are working schedules that allow them to flex hours as long as they add up to 80 hours per pay period. The FLSA requires time and a half be paid for each hour in excess of 40 hours in a workweek.  So these arrangements suddenly become much more expensive for employers to allow. And don’t forget state law when considering flexibility, because California, for example, has its own rules.
  8. Swallowing the increased costs that come with paying for work the organization was previously getting within the lower salary level.  As mentioned above, it is possible to make this transition at no cost, by determining how many hours your currently exempt employees between today’s salary limit of $23,660 and the new limit of $47,476 are actually working, and divide their current salary by that number of hours to get their new hourly wage when they are converted to non-exempt status. As an example, if I am currently exempt, with a salary of $40,000 per year, and I divide that amount by 52 to get the weekly wage, and then divide again by the 40 hours in a workweek, I get an hourly wage of $19.23. But if I have actually been consistently working 54 hours per week, and my employer instead uses that as my workweek in the calculation, then that hourly wage goes down to $14.25. Caution: in today’s current tight labor market, this is a tough sell, and turnover is expensive (see this piece for more specifics), so this “cost-free” option may end up costing you tens of thousands of dollars per employee.
  9. Supporting salaried workers making over the new limit, as extra work gets pushed on them in the effort to avoid additional labor costs. If you’re unable to convert newly non-exempt employees to an adjusted hourly wage, as descried above, you may instead decide to directly convert the salary to an hourly wage when you reclassify your employees, and simply shift the work to those who are currently being paid above the new salary limit for the white collar exemption. This shift in work will certainly affect the outlook of those employees, which could also hurt engagement and retention. The ideal solution will depend on your budget (if any), a thorough analysis of the work activities in the roles, and a candid discussion of the value of the work being performed and its impact on the organization’s bottom line.
  10. Finding systems and technology to help the organization track time in an efficient and compliant manner. Kronos, ADP and Insperity all have offerings, and if you outsource payroll, you should check with your vendor right away to initiate a review of your data feed and processes, so there are no surprises when suddenly a large group of employees are reclassified. If your organization does not currently have a timekeeping and attendance system in place, has a lot of information about several different options, features and cost of systems.

Address these 10 challenges head-on, and you will be more than ready when the rule change goes into effect.

Visit Solve HR, Inc.

Photo credit: mikecogh via / CC BY-SA