People Processes

Question: We have found pornography on an employee’s computer. How should we handle this? And, is an employee’s addiction to pornography protected under the Americans with Disabilities Act (ADA)? Answer: An addiction to pornography is not protected because under the ADA, it is not defined as a disability. According to ADA, the term disability does not include: Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders; Compulsive gambling, kleptomania, or pyromania; or Psychoactive substance use disorders resulting from current illegal use of drugs. However, even if pornography qualified as a disability under ADA, an employer is not prevented from disciplining an employee with a disability for a violation of a company-established conduct rule. According to the Equal Employment Opportunity Commission (EEOC), if the conduct rule is job-related and consistent with business necessity

Starting a new job might be cause for nerves, but it shouldn’t induce headaches. Organizations that understand this fact will ensure their onboarding process is smooth for the new employee and seamless for the HR staff. Yet many organizations still struggle with onboarding. Their process is too slow, not efficient, or lacks the personal touch that puts new hires at ease. In this article, we’ll look at five common onboarding issues that arise in broken systems. Then we’ll wrap things up with a solution that can help you avoid all these pitfalls. #1: A Lack of Orientation Onboarding serves two basic purposes: Gather and audit new employee information. Introduce your company’s mission, culture, and values to your new hire. The first problem with an ineffective process is that too much of the information a new hire needs is communicated in a disjointed, tribal manner. For example, a supervisor in the marketing department might answer the same question differently than a manager from accounting. When this

Question: We conduct hearing tests on employees and record any discovered hearing loss on our OSHA 300 log. Are we required to conduct tests on temporary workers we hire through an agency, and if so, should we report those hearing losses differently? Answer: Temporary workers hired and paid by a staffing agency and supplied to a host employer to perform work on a temporary basis are entitled to the same protections under the Occupational Safety and Health Act (OSH Act) as all other covered workers. This means that – to answer the first part of your question – you are required to conduct the same testing on temporary workers as you do with your regular employees. OSHA will generally consider the staffing agency and host employer to be “joint employers” of the worker in this situation. Joint employment is a legal concept recognizing that, in some situations, the key attributes of the traditional employer-employee relationship are shared by two or more employers in such a manner that they each bear responsib

For the important role they play within every type of organization or business, HR departments too often lack that… human touch. This isn’t their fault, however, as countless talented HR professionals are buried under cumbersome tasks and receive zero help from their outdated HR systems. If this describes your organization, it’s likely you view HR as an unproductive time suck or a necessary evil to be avoided at all costs. This problem is compounded every time you invest in human capital by hiring employees within your organization without truly investing in a system to properly onboard, manage, and engage staff. The result is unmotivated employees, unchanged processes, and expensive turnover. In many cases, HR departments are a mess due to misaligned priorities. Consider, for example, the amount of time and resources your company invests in client acquisition and product/service delivery. Now, compare that to the amount of time and resources you invest in onboarding, training, and retaining employees.

Question: Are we were required by law to have a dedicated compliance officer, who cannot be the same individual who handles HR? Answer: No. In general, companies are not required by law to have a dedicated compliance officer. However, some sectors have specific guidelines in place for compliance officers. For example, in the financial sector, compliance officers are subject to regulations and enforcement by the Securities and Exchange Commission (SEC), the Financial Industry Regulatory Authority (FINRA), and the Department of Justice (DOJ). Each agency looks at the compliance officer’s supervision in both legal and compliance matters, and the DOJ also looks at individual accountability in compliance matters. In the healthcare sector, the U.S. Office of Inspector General (OIG) has issued compliance guidelines specific to hospitals. While not mandated by law, the OIG strongly recommends that hospitals develop a compliance program and have a compliance officer available to ensure that hospital standards and

The forty-hour work week came about in 1938 as a result of the Fair Labor Standards Act, which also established that hourly workers had to be paid a minimum wage and overtime. Hourly workers are required to use timekeeping systems to track their hours, whereas in many organizations, full-time salaried employees don’t track their time. Is that the right choice? Should full-time salaried employees use timekeeping systems? There’s an argument to be made that timekeeping is critical for every employee, even those exempt from the FLSA law. To illustrate this point, let’s look at an example. Imagine a small, nonprofit organization that does community outreach support for women. Because nearly everyone in the organization is salaried, they’re technically FLSA exempt. As a result, staff initially didn’t clock in and out at all. Most of the staff in this nonprofit were paid the same, but Lisa felt as though she constantly picked up the slack for her coworkers. She felt she continually came in early, did more, and

Question: How do we handle overtime pay calculations for hourly employees when they receive nondiscretionary bonuses? Answer: A nondiscretionary bonus is a bonus based on an employee meeting criteria such as production, sales, quality, efficiency, or other performance standards. The federal Fair Labor Standards Act (FLSA) requires that overtime pay be calculated based on an hourly employee’s regular rate of pay, which includes commissions and nondiscretionary bonuses. Under the FLSA, nondiscretionary bonuses must be apportioned back to the workweeks covered by the bonus period. If the hourly employee who earned the bonus also worked overtime during any workweek of a period covered by the bonus, you must recalculate the regular rate to determine the appropriate overtime rate. For example, suppose your hourly employee’s regular hourly rate is $10. Assume the nondiscretionary bonus is $100 per month, but the pay period is weekly. Now assume the employee worked 50 hours each week and the work month was exact

It’s never an ideal situation when an employee leaves your organization. Whether it’s a voluntarily or involuntarily move, there’s paperwork to be completed, a new hire to be made, and an exit interview to conduct. If you skip the exit interview, you’re missing a golden opportunity to improve your organization. Even if the employee was fired, there’s insight to be gained. An exit interview is a unique and powerful time to gather perspective. When else will you get the unvarnished truth from your employees about what your organization is doing wrong without any fear of retaliation or making someone unhappy? If an employee is leaving voluntarily, your HR team should take that opportunity to look closely enough at what the departure means for your organization. Employees leave voluntarily for many reasons: pursuing dreams, better pay, other career interests, or because of problems with the organization itself. Whatever the case, take the time to do an in-depth exit interview. Perhaps you will gain informat

Q&A: Does a pregnant worker denied starting a job, when baby is due, have a plausible claim of discrimination? Issue: Lucy, a part-time employee who works remotely, applied for a full-time position with her employer. During the second round of interviews, which included a discussion about the available position and its start date, Lucy told the interviewer that she was pregnant. The interviewer asked when her baby was due and how much time she planned to take for maternity leave. After hearing her response, the interviewer explained that while start dates could be flexible, Lucy’s due date and planned time off interfered with the planned start date so she would not be hired for the available position. The interviewer also told Lucy that the hiring committee would be informed that she would be unable to perform in the position. The available position was filled by a nonpregnant person. Two months later, after having filed an EEOC charge, Lucy applied for another full-time position and was again rejected. D

While Americans have mixed views of unions, public sector organizing suffers setback The decline in the number of Americans represented by labor unions is seen more negatively than positively by U.S. adults, according to a new http://www.pewresearch.org/fact-tank/2018/06/05/more-americans-view-long-term-decline-in-union-membership-negatively-than-positively/ (survey) released by the Pew Research Center. Fifty-five percent of Americans have a favorable impression of unions, with a similar number—53 percent—viewing business corporations favorably. Decreasing unionization. In 2017, only 10.7 percent of wage and salaried workers in the United States were labor union members, down from 20.1 percent in 1983, the first year for which comparable data are available, according to the Bureau of Labor Statistics. Unionization in the U.S. peaked http://www.pewresearch.org/fact-tank/2015/04/27/union-membership/ (at more than 34% in 1954), according to the Congressional Research Service. Partisanship. Fifty-one percent of

CareerBuilder’s midyear job forecast shows tough hiring environment for employers is paying off for job seekers As employers grapple with a highly competitive hiring environment that is causing prolonged job vacancies across the U.S., workers are reaping the benefits. According to CareerBuilder’s Midyear Job Forecast, 63 percent of U.S. employers plan to hire full-time, permanent workers in the second half of 2018, up from 60 percent last year. A substantial percentage of employers hiring in the second half of 2018 are expecting to offer higher salaries and various perks — such as signing bonuses, extra paid time off, free lunches and the ability to work remotely — to attract and keep the talent they need. “Low unemployment and increasing skills gaps continue to plague employers who are struggling to fill roles at all levels within their organizations,” said Matt Ferguson, CEO of CareerBuilder. “Fifty percent of U.S. employers reported that it is taking them longer to fill jobs

Temecula nail salon cited $1.2 million for misclassification and wage theft of 36 workers The California Labor Commissioner’s Office issued more than $1.2 million in wage theft citations to a Temecula nail salon for misclassifying and failing to properly pay 36 workers. An investigation found that the workers at Young’s Nail Spa were not paid an hourly rate and not paid overtime despite working up to 50 hours a week. “Using misclassification as a business model not only denies workers of their rightful pay, but also gives the employer an unfair advantage over law-abiding businesses,” said Labor Commissioner Julie A. Su. “California law is clear that if employers pay less than the minimum wage, when they are caught they will be responsible for paying not just the wages owed, but an equivalent amount in liquidated damages plus interest.” The Labor Commissioner’s Office launched its investigation when the Labor and Workforce Development Agency referred the case following notification of a complaint filed throu

PROPOSED LEGISLATION,(Jul. 24, 2018) A group of Republican, plus two Democratic, lawmakers have teamed up to introduce and co-sponsor the “AG and Legal Workforce Act,” which would replace what sponsors called the “outdated and broken H-2A agricultural guestworker program” with a new H-2C program. The move is intended to ensure that America’s farmers and ranchers have access to a reliable workforce. Among other things, the bill would expand employer eligibility and the number of visas available, make housing and transportation provision optional, and make Affordable Care Act subsidies unavailable to guestworkers, but require them to have health insurance. H-2C program. The bill, https://judiciary.house.gov/wp-content/uploads/2018/07/AG-and-Legal-Workforce-Act.pdf (H.R. 6417), would make the H-2C agricultural guestworker program available to both seasonal and year-round agricultural employers, provide a generous visa allocation for employers to ensure labor needs are met, provide much-n

U.S. employers eye improvements to compensation programs Growing pressure to improve their pay-for-performance programs and ensure fair pay throughout the workplace is sparking changes to corporate America’s employee compensation and performance management programs, according to Willis Towers Watson’s https://www.willistowerswatson.com/en/insights/2018/06/2018-getting-compensation-right-survey-global-findings-report (2018 Getting Compensation Right Survey). The survey revealed several factors are prompting employers to make or consider changes to their programs, including cost (71 percent), manager feedback (63 percent), changing marketplace (61 percent) and feedback from employees (59 percent). Changes respondents are planning to make this year, or considering over the next three years, include: Base pay and annual incentive plans: The changing nature of work and new skills requirements are fueling employers to reassess these programs. Forty-five percent are planning on or considering redesi

According to commenters, certain populations with specific needs, such as those with disabilities, could be disproportionately affected if their coverage does not include a robust level of benefits. Some of these commenters suggested that to mitigate these effects, the DOL should require AHPs to provide EHBs or some other minimum level of benefits, or require them to provide “minimum value” within the meaning of Code Sec. 36B(c)(2)(C)(ii) and Reg. §1.36B-6. Proponents of the rule, however, while acknowledging concerns that AHPs may provide inadequate benefits, did not believe that “legitimate” membership organizations would risk their goodwill and reputation by offering such health plans. Instead, they argued that economies of scale would enable AHPs to offer more comprehensive coverage to their members than they would be able to purchase on their own. One commenter noted that even though self-insured plans and large group market policies are not required to provide EHBs, most do, in

EEOC—Fifty years after the ADEA, agency reports on the state of older workers and bias Even though the ADEA took effect 50 years ago in June 1968, age discrimination remains too common and too accepted as outdated assumptions about older workers and ability persist, according to a report released June 26 by Victoria A. Lipnic, Acting EEOC Chair, on the https://www.eeoc.gov/eeoc/history/adea50th/report.cfm (State of Older Workers and Age Discrimination 50 Years After the Age Discrimination in Employment Act). “Open secret.” The ADEA was an important part of 1960s civil rights legislation that was intended to ensure equal opportunity for older workers. Today’s experienced workers are more diverse, better educated, and working longer than previous generations, yet the report finds “many similarities between age discrimination and harassment,” explained Lipnic. “Like harassment, everyone knows it happens every day to workers in all kinds of jobs, but few speak up. It’s a

BENEFITS—SHRM survey finds uptick in health and wellness offerings As a tight job market continues to help drive increases in employee benefits offered by organizations, health and wellness along with employee programs and services are the benefits most likely to be increased, according to the results of the https://shrm.org/hr-today/trends-and-forecasting/research-and-surveys/Pages/2018-Employee-Benefits.aspx?_ga=2.109490181.167073314.1529332789-1390505139.1493823220 (2018 Employee Benefits Survey) released June 19 by the Society for Human Resource Management (SHRM). The survey results indicated that more than one-third (34 percent) of organizations increased their overall benefits in the last 12 months. When employers added offerings, they were most likely to increase health-related benefits (51 percent) and wellness benefits (44 percent). Recruiting and retention tool. Retention (cited by 72 percent of respondents) and recruiting (58 percent) were the top reasons reported for increasing benefits. “W

School’s out! Summer is here, and it’s the time of year when working parents have questions about using their Dependent Care Spending Accounts (DCSAs). Are summer camp expenses eligible? What about day versus overnight camps? Employers and benefit advisors want to be ready with answers about this valuable benefit program. The following are the top summertime questions about DCSAs and reimbursable expenses: 1. What are the basic rules for reimbursable expenses? Dependent care expenses, such as babysitting and daycare center costs, must be work-related to qualify for reimbursement. Work-related means the expenses are for the care of the employee’s child under age 13 to allow the employee to work. If the employee is married and filing jointly, the employee’s spouse also must be gainfully employed or looking for work (unless disabled or a full-time student). In some cases, expenses to care for a disabled dependent, regardless of age, may be reimbursable. This article focuses on expenses for children under 13 s

Too few managers believe key performance indicators align with organization’s strategic objectives — MIT SLOAN A new global study on the state of key performance indicators, released by MIT Sloan Management Review(SMR), suggests that a high number of executives underutilize KPIs as a leadership tool. Despite having access to magnitudes more information, nearly 30 percent of surveyed leaders don’t use KPIs to drive change in their organizations. The study, https://mitsmr.com/2syjWyu (“Leading with Next-Generation Key Performance Indicators,”) delves into why some business leaders are rethinking how they use KPIs to lead and manage the enterprise. “KPIs should be the most important data and analytics that an organization has,” said Michael Schrage, a research fellow at the MIT Sloan School’s Center for Digital Business and a coauthor of the report. “But our research indicates that KPIs are mismanaged and undervalued.” There is one notable exception to the report

TOP TALENT—Whole benefits package crucial in competitive labor market With low unemployment hovering at 4 percent, many companies face the recurring question of how to attract and retain top talent in a candidate-driven landscape. In order to remain competitive, it is essential for companies to focus on what they can do to raise wages or reevaluate their benefits packages to adequately compensate employees. This is according to a new survey from https://www.adeccousa.com/employers/ (Adecco USA), which surveyed over 1,000 employed adults to provide insight on what companies can do to be an ideal employer. “While unemployment rates have continued to steadily decline, we have yet to see that same kind of positive and progressive movement on wages, which could be why we are seeing an uptick in workers having more than one job to pay the bills,” said Federico Vione, CEO of Adecco, North America, UK and Ireland. “There is much evidence to suggest that companies need to start paying more attention