Job Bias Charges Approach Record High In Fiscal Year 2009

The U.S. Equal Employment Opportunity Commission (EEOC) has announced that 93,277 workplace discrimination charges were filed with the federal agency nationwide during Fiscal Year (FY) 2009, the second highest level ever, and monetary relief obtained for victims totaled over $376 million. The comprehensive enforcement and litigation statistics for FY 2009, which ended Sept. 30, 2009, are posted on the agency’s web site at http://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm.

 

Discrimination based on disability, religion and/or national origin hit record highs. The number of charges alleging age-based discrimination reached the second-highest level ever. Continuing a decade-long trend, the most frequently filed charges with the EEOC in FY 2009 were charges alleging discrimination based on race (36%), retaliation (36%), and sex-based discrimination (30%). Multiple types of discrimination may be alleged in a single charge filing.

 

The near-historic level of total discrimination charge filings may be due to multiple factors, including greater accessibility of the EEOC to the public, economic conditions, increased diversity and demographic shifts in the labor force, employees’ greater awareness of their rights under the law, and changes to the agency’s intake practices that cut down on the steps needed for an individual to file a charge.

Social Media and the Workplace

I will be writing extensively in the upcoming weeks about Social Media and the Workplace.  Actually, not so much about social media (there are experts in that area all over the place), but the impact it has on employers and businesses.

So let's start off with an excellent article written by Maria Greco Danaher of Ogletree Deakins on the potential liability employers have when an employee uses social media.  Here's an important excerpt:

"...an employee who uses electronic media, including e-mail, blogs, or social networking sites, to make comments about a product made by his or her employer, and who fails to disclose his or her relationship with that manufacturer may create legal liability under the FTC guidelines.  Further, should a consumers rely on a particular comment in that posting to his or her detriment, any ensuing damage could be attributed to the manufacturer/company."

It's pretty apparent that social media has a place in the workplace.  Most experts (including me) agree that it's not practical to ban social media in the workplace.  So what do you do?

More to come...

California Alternative Workweek Schedules

One of the best ways of improving morale without costs is to consider Alternative Workweek schedules.  Up until January 1, it has been most difficult to implement.  However, California law regarding alternative workweek schedules have been eased somewhat as a result of AB 5.

Alternative workweek schedules allow non-exempt employees in a “work unit” to work in excess of 8 hours per day without incurring overtime. (California law includes a daily overtime requirement.) Generally, an employer may propose AWS work schedules of up to ten hours per day (12 for healthcare workers). Hours in excess of 10 per day, or 40 per week are overtime. Typically employers propose schedules consisting of four ten hour days or a “9/80” schedule. Special procedures describe advance disclosure and a secret ballot election prior to implementation of the AWS.

The AWS can apply to a “work unit” within a company, rather than to all employees. Previously, the Labor Code did not define “work unit,” although state regulations included a definition. The new law defines a work unit as “a division, a department, a job classification, a shift, a separate physical location, or a recognized subdivision thereof.” The amendment also clarifies that even a single employee may qualify as a work unit as long as his job function meets the definition.

In setting up an AWS, an employer may propose a single work schedule, or it may propose a menu of work schedule options for workers to select. Can the “menu” include a traditional 5 day week for those employees who do not want to work longer days? The amended law clarifies that the menu options may indeed include a regular schedule of five eight-hour days in a workweek. Consequently, employees who do not wish to work an AWS schedule may still vote in favor of the AWS by choosing to work the regular 8 hour day. This change greatly increases the odds of achieving the 2/3 employee supporting vote need to implement an AWS.

Additionally, the new law specifies how often employees may move from one schedule option to another on the menu. For example, if an employee opts to work four 10 hour days, how frequently can he opt to go back to regular 8 hour days? As amended, Labor Code § 511 allows employees to move from one schedule option to another on a weekly basis.

Independent Contractor or Employee? Better Be Sure, And Fast!

Many employers incorrectly classify an employee as an independent contractor.  Some employers do it intentionally (to avoid workers' compensation and payroll taxes); but most are unaware of what the difference in classification actually is.

If you use Independent Contractors (also known as 1099's), you better audit all of them at once.  The IRS is about to launch comprehensive audits of 6,000 businesses.  The focus is - you guessed it - properly classifying employees.

Please take a moment to review the criteria the IRS uses to determine whether a person should be classified as an employee or Independent Contractor.  It's about control.  I've had clients insist a person is classified as a 1099 simply because that person requested classification that way! (That's wrong as well, by the way).

Get a qualified consultant or employment attorney to audit your practices and procedures as soon as possible.

Courtesy Baker Hostetler

Small Business Planning for H1N1

The Small Business Administration recently published “Planning for 2009 H1N1 Influenza Season Preparedness Guide for Small Business.”

Here are seven H1N1 preparedness steps that the government recommends you review and apply as appropriate to your place of business:

1. Identify a Workplace Coordinator -This person would be the single point of contact for all issues relating to H1N1 and be responsible for reaching out to community health providers and implementing protocols for dealing with ill employees - in advance of any outbreak or impact on the business.
2. Examine Policies for Leave, Telework and Employee Compensation - Obviously this will vary by business, but the emphasis here is on refreshing yourself and your employees about what your company's health care plans cover in the event of sick leave as a result of H1N1. You should also re-evaluate leave policies to ensure a flexible non-punitive plan that allows for impacted individuals to stay at home. Employees may also need to stay at home to care for sick children or telework in the event of school closures - so be prepared for this by implementing appropriate teleworking infrastructures in advance.
3. Determine who will be Responsible for Assisting - Appoint an individual or individuals who will be on-hand to assist ill personnel at your workplace - essentially a "go-to" person, who may be the same as the person chosen as your workplace coordinator.
4. Identify Essential Employees, Essential Business Functions, and Other Critical Inputs - Make plans to maintain communication and ensure clear work direction with critical personnel and vendors (and even customers) in the event that the supply chain is broken or other unpredictable disruptions occur.
5. Share your Pandemic Plans with Employees and Clearly Communicate Expectations - Consider posting a bi-lingual version of your preparedness plan, leave information, health tips, and other H1N1 awareness resources across all your work locations and online if you operate an Intranet.
6. Prepare Business Continuity Plans - Absenteeism or other work place changes need to be addressed early on so you can maintain business operations. Get tips on common sense measures your business can take from Business.gov here.
7. Establish an Emergency Communication Plan - Hopefully your business already has some form of emergency communication plan. If not, document your key business contacts (with back-ups), the chain of communications (including suppliers and customers), and processes for tracking and communicating business and employee status.

Managing Social Media in the Workplace

The impact of social media in the workplace is growing.  Time is being wasted, employees are 'friending' each other and liability for these issues is a litigation attorney's dream come true.

RSJ/Swenson has prepared a special report on Managing Social Media in the Workplace, based on Eric Swenson's recent presentation at the CalCPA Employment Practices Conference.  You can download the report here.

And bosses & managers: Don't "friend" your employees!

Retaliation Claims on the Rise

It's always been easier for lawyers to prove retaliation in the workplace than harassment, discrimination, or even wrongful termination.

With so many people now out of work, it's natural that retaliation claims against employers is now on the rise - 23% this year over last.

The classic example of retaliation comes from an employee who did the right thing - a whistleblower notification, a complaint against a supervisor or fellow employee - and that was terminated, transferred or had other repercussions from their employer.

A good article on this trend is from the Wall Street Journal.

Credit Reports for Hiring? Still A Bad Idea!

Using a credit report is becoming more popular for businesses hiring employees.  We've always felt this was an unnecessary risk to employers because:

1. What is the business justification?  If a job requires an employee to handle large amounts of cash, or have access to the same, that's good justification.
2. If someone has a bad credit report - especially in these economic times - does that make them a poor candidate for a job?  Not necessarily.
3. There is a risk that women and minorities may be disproportionately affected, and that could cause big problems.

So unless you have a good reason to do it, don't!

Managing Swine Flu in the Workplace

RSJ/Swenson has prepared a special report on managing swine flu in the workplace.

Click here to receive your free copy.

Employee Morale: The leading predictor of future growth and profitability

...or so says Roxanne Emmerich, author of "Thank God It's Monday: How to Create a Workplace You and Your Customers Love."I have no reason to disagree with her.

In this economy, there are fewer employees doing more work.  And for those employees who are unhappy - and there are legions - there are no other jobs to get.

While the economy begins to recover but job creation a long long way away, it's time to find out what to do in order to improve morale in your workplace.

Give 'em training, self-improvement courses, or survey your employees to find out what they want.

When this economy recovers, the last thing you'll need is to have all your employees looking for another job.

10 Telltale Signs of Workers' Compensation Fraud

Workers' Compensation rates are once again spiraling.  Here are 10 possible signs of potential workers' compensation fraud:

1. Monday-morning accidents.
2. Unwitnessed accidents.
3. Injuries following discipline, demotion, or transfer.
4. Claims from employees with private disability insurance. 
5. Claims from employees with histories of on-the-job injuries.
6. Claims from employees with high-risk hobbies (such as skiing or snowmobiling).
7. Delays in reporting accidents.
8. Several versions of an accident.
9. Claims from employees with financial or domestic problems.
10. Claims for injuries not received on the job.
11. Discrepancies between reported injuries and medical evaluations.

USCIS Conducting H-1B Site Inspections

The United States Customs and Immigration Service (USCIS) is now conducting more than 20,000 random on-site inspections in 28 cities of businesses that employ H-1B nonimmigrant workers.


The purpose of the inspections is to verify that the H-1B employees are being paid prevailing wages and that they are employed in their positions of record.

Many of the visits - which are unannounced - are being conducted by contract USCIS employees, but at the very least affected employers must ensure that they have maintained proper documentary files for their H-1B employees, in addition to paying them prevailing wages and keeping them in the positions for which they originally petitioned the USCIS.

Why You Should Never Include A "Discipline Policy" In Your Employee Handbook

If your business is in an "at-will" state (and you are, unless you're in Montana), you should never ever include disciplinary steps in an employee handbook.

Latest case in point: Buttrick v. Intercity Alarms, LLC.  This company, located in Massachusetts, had a section in their employee handbook called "Disciplinary Policy"which indicated the severity of any disciplinary action taken by the company would “in accordance with the following: Verbal Counseling . . . Written Counseling . . . Suspension.”.

Guess what?  An employee was terminated after one verbal counseling, but not written counseling or suspension.  That is a business owner's right - unless it's in writing in the employee handbook!

So, the employee sued, and won $41,888 from Intercity Alarms.  (To say nothing of the legal fees incurred by Intercity).

Don't put a discipline policy in your handbook.  Train your management team in appropriate steps and anytime an employee needs to be disciplined, run it by your HR department or your HR Consultant.

A great write-up on the case is here from Ogletree Deakins.

Leading People In A Down Economy

Yes, the economy is slow to recover and things are tough all over.

But now the workforce cuts have largely been made and the question for business owners is – how do I do more with less?

The following are two major trends I’ve noted in working with small businesses (generally less than 200 employees) in the western United States:

EMPLOYEES HAVE TRANSFORMED THEIR MENTALITY…
A few years ago, the typical employee had an ‘entitlement’ mentality – they felt their employer was lucky to have him or her. Unhappy employees could (and did) pick up and leave for a better opportunity at the first sign of disappointment. The typical attitude was not that of a team player – but as an individual who is owed a promotion, salary increases and more attention. This was nowhere more apparent than the “Generation Y” workforce.

Now, things have changed completely on its axis. Everyone has worked with people and are friends with people who have lost their jobs with little hope for a similar compensation program in a future job. As a result, employees now feel privileged to have their job. Everyone knows that layoffs have been pervasive, and they could be the next to go. This will result – if managed properly – in employees who will complain less, work harder, and become more appreciative of the job they have.

BUT THEY ARE REALLY, REALLY UNHAPPY…

Employees are simply grateful to have a job right now, but that doesn’t mean they’re happy in their job. A survey from Adecco North America, released just this week, shows:

• Two-thirds (66 percent) of American workers are not currently satisfied with their compensation.
• 76 percent are not satisfied about future career growth opportunities at their company.
• Almost half (48 percent) of workers are not satisfied with the relationship they have with their boss and 59 percent saying they are not satisfied with the level of support they receive from their colleagues.

Workers are also critical of their organization’s brain trust, with 77 percent saying that they are not satisfied with the strategy and vision of their company and its leadership.

We’ve noticed the number of complaints from workers are way down. People are still being harassed and discriminated against, but they’re afraid to complain because of fear of job loss.

By the way, most large companies have laid off more employees than small companies; that’s because it’s easier to lay off workers at bigger businesses because employees at smaller companies typically perform multiple tasks.

That means when the economy starts kicking into gear, and there are more job opportunities, those employees are going to either leave or file major complaints.

WHAT TO DO?

Lead. The number one thing that business owners and managers can do is actually lead. You're a leader. You are on stage. You're not allowed to show frustration or weakness. Leaders lead - they say "here is the way I believe we need to go," and then go. This is the attitude you must take when managing change. Virtually any change breeds opportunity - the key is finding the opportunity and act on it.

Communicate. It is imperative that frequent and clear communication lead the way to your success. There is fear in the marketplace. Employees are wondering if you’re going to cut staff, perquisites, and their free coffee. Employees are heavily invested in the success of the business, and they have a right to know what you’re doing. Even saying, “I don’t know” is preferable to not communicating. And it’s more than a memo or company-wide e-mail; managers and supervisors must be empowered to candidly talk with their staffs as well.

Performance Management. If you're maximizing the people you have, you won't need so many people! You can get more done with fewer people by knowing what your people do best. Evaluate your talent. Carefully consider your need for every one of your employees. Most businesses are not maximizing each and every employee they have. There are techniques available to ensure talent maximization – so find and replicate your best performers.

In 2009, the business owner and leader who has the ability to honestly evaluate talent, performance and make the decisions necessary to sustain the business not just in the short term, but for the long term, is the leader who will be highly successful both this year and beyond.

Training New Managers

Most managers get that role because they're the hardest worker; the best salesperson; or the smartest person in the office.

But those traits don't translate into being an effective manager.  That's where screening, development, and - most importantly - training - comes into play.

A new article in HR Executive Online discusses how and why to get managers properly trained as well as establishing metrics for success.

And yes, I'm quoted in the article.

Thanks to Scott Westcott and HR Exec Online

Nevada Wage & Hour Lawsuits

We've been warning employers for several months that wage & hour compliance issues will result in numerous lawsuits this year - especially in Nevada.

It's starting to happen.

Wells Fargo & AutoZone have been sued (class-action status is currently pending) for mis-classifying employees.

With Wells Fargo, business banking specialists were allegedly mis-classified as exempt (from overtime, meal and rest breaks) when they were required to be 'on-call' on certain evenings.

In AutoZone's case, Assistant Managers were not compensated for working overtime (this is a case very reminiscent of the Long's Drugstore case in 2004).

The federal government is taking Wage & Hour violations seriously: Labor Secretary Hilda Solis recently announced plans to add 250 field investigators, increasing staff by 33%. The DOL believes 7 out of 10 businesses are not in compliance with Wage & Hour laws.

Garry Mathiason of Littler recently wrote:

No employment-law trend is more certain, universal or important than the total wage-and-hour compliance initiative and stopping the epidemic of wage-and-hour class-action (lawsuits)...

More ominous and prescient are these words from Mathiason (and, I believe, completely true):

With thousands of plaintiffs' attorneys examining every aspect of the payroll process, employers must expect maximum scrutiny..."Every employee who is terminated or demoted, or who experiences an unpleasant workplace event, is encouraged by Internet and television advertising to seek the advice of counsel. In almost every intake interview, the attorney's questioning turns to wage-and-hour issues in an attempt to find additional claims. Inspired by the prospect of turning a small individual claim into a multimillion-dollar class-action, the organization's wage-and-hour compliance goes under the microscope."

Thanks to Las Vegas Sun.

Businesses Taking Action Against E-mails, Linkedin, Facebook

In its 6th annual survey, the security firm Proofpoint reveals some new information regarding social media and e-mails by employees - and it's almost always resulting in bad news for the employees:

• 43 percent of US companies surveyed have investigated an email-based leak of confidential or proprietary information in the past 12 months. Nearly a third of them, 31 percent, terminated an employee for violating email policies in the same period (up from 26percent in 2008).
• US companies are also experiencing more exposure incidents involving sites like Facebook and LinkedIn as compared to 2008 (17 percent versus 12 percent). US companies are taking a much more forceful approach with offending employees -- eight percent reported terminating an employee for such a violation as compared to only four percent in 2008.
• Even short message services like SMS texts and Twitter pose a risk. 13 percent of US companies investigated an exposure event involving mobile or Web-based short message services in the past 12 months.

Read the entire survey here.

Krispy Kreme Fined for hiring illegal workers

If Krispy Kreme didn't have enough problems already - here comes news they've been fined by the EEOC for hiring illegal (undocumented) workers in their Cincinnati factory. The fine amounts to $40,000.

What is remarkable about this fine is how easily it could have been prevented. The paperwork is easy - you just download an I-9 form off the internet. If there is any doubt about the documentation a candidate provides, just login to e-verify that's provided by the Department of Homeland Security. That would have been much cheaper than $40,000 and the embarassment caused by the resulting publicity.

And in case you think it might not happen to you - ICE has announced audits of 652 other businesses in the coming months (and we're sure there are more to follow!). The Obama administration has changed the focus from illegal employees to the employers that employ them.

References, Linkedin, and Common Sense

Just after posting my opinion on job references comes more comments. In a recent Wall Street Journal article, a job applicant was frustrated because potential employers wanted a minimum of three job references, but her prior employers had a policy of not providing such references.

Elizabeth Garone provided good advice, suggesting that supervisors no longer with the same company might be willing to be references (and because they're no longer with the company, may be more willing to talk to a prospective employer).

Again, if I'm leaning towards hiring a candidate, I'm not going to spend time calling references - more often than not, the reference can't give me any good information and the candidate is only going to list references that show that person in the best possible light! It's not worth my time! I can do criminal investigations, skills testing and personality/instinct testing that will more properly predict success than a reference check.

Now, many attornies are warning employers about the hidden dangers of LinkedIn. Specifically, attorneys are advising employers to be wary of giving glowing remarks about employees on the site because the employers risk having the recommendations used against them in a discrimination or harassment suit.

Do References Matter?

You're about to make a job offer to a candidate. Should you call his or her references?

Some people say yes, others say no. I'm in the latter category.

First, unless the candidate is a complete moron, they're not going to give you names of people who provide a negative reference. And most previous employers are understandably nervous about providing any information on a former employee.

Some of our clients like to verify the candidates dates of employment or compensation. Fine - ask the candidate for a copy of their most recent W-2 form or paycheck stub. Other than that, calling references is a lot of time for a very little reward.

Following standard procedures, you can require a background check, drug testing or even skills testing to verify information and make sure the candidate is you he/she says they are.

Here's an article in the South Jersey Courier Post that talks about the reference controversy. However, I seriously disagree with parts of the article that suggest visiting a candidates social networking sites as a pre-hire investigation. As I wrote back in May, using google and social networking sites to evaluate potential candidates is a really bad idea.

What does calling references accomplish?