6 Areas to Consider Prior to Selecting a Background Check Provider

In my previous article, we reviewed The Fair Credit Reporting Act requirements under federal law.  Creating a checklist to review background check providers is essential prior to implementing a process or changing vendors.  As leaders, we need to ensure legal compliance at the federal, state and local levels related to background checks, while monitoring for ever-evolving legislation.

Below are the 6 areas to consider on a checklist:

  1. Accreditation: The National Association of Professional Background Screeners (NAPBS) has a certification program.  This certification ensures background check providers meet minimum industry standards (written policies, etc.).
  2. Confirmation of Originally Sourced Information: Companies must confirm all information received from secondary sources prior to reporting to the organization. These companies are pulling millions of records from secondary databases, these databases are not always up-to-date, or records have changed.  Ask for information and metrics on sourcing and mistakes.
  3. Reporting at Match Standards: Currently there is no legally required standard for what is considered a match. “Each CRA sets its own standards.  If standards are not high enough, mistakes will occur.  For example, since thousands of people have the same first and last name, additional information is required to be sure a criminal record belongs to the applicant:
    1. At least two primary identifiers (full name, date of birth, drivers license number, Social Security number) must match before reporting.
    2. All identifiers present both the criminal record and the applicants file must match before reporting.
    3. Apparent matches are reviewed by trained personnel before reporting.”[i]
  4. Flexible Reporting: Many organizations do not need every piece of information and all that information will cost us more money, which could add to confusion or biased decision making. Certain companies want to know about specific convictions that relate to job specifies (DUI/DWI & convictions in the past 10-years).  Ensure the background check company can and will tailor reporting to the needs of your organization.  Make this apart of the RFP process.
  5. Legal Compliance Expertise: The company must comply with FCRA and a variety of state and local laws, which will include “ban-the-box” legislation. If your organization operates in multiple countries, states and cities, ensure the background check company has legal expertise to meet your requirements and will meet the requirements as the laws change.  Ask the questions upfront, trust but verify.
  6. Litigation History: How many of us ask this question? No litigation history is probably not easy to find, we live in a litigious society and anyone can be sued.  There is a difference in technical mistakes and constantly being involved in class-action lawsuits for legal violations.  Ask for this information, Google search this information and ask for references or settlement histories.  The more information we have, the more informed our decision-making process will be.

NYS Background Check Resources

Pennsylvania Background Check Resources

Philadelphia Regulations on Credit Checks

Remember “ban-the-box” legislation in the State of Pennsylvania and throughout New York State.  These laws will vary, depending on city and location.  These are just a few thoughts on generating a checklist and questions to consider prior to selecting a background check provider.  Ensure these companies will meet the legal regulations and the needs of your organization.  Do not be afraid to ask questions and dig for information.  Question information for accuracy before signing a contract with a third-party vendor.  Be specific in your requests and needs as an organization.  This is risk management and part of the due diligence process.  If you are unclear on steps to take, seek guidance.  Laws and regulations will continue to change, and they will continue to impact most organizations.  More information means more informative decisions!

Department of Labor Rule Change: Regular Rates Requirements

“According to the USDOL, “[t]he proposed rule focuses primarily on clarifying whether certain kinds of perks, benefits, or other miscellaneous items must be included in the regular rate.” More specifically, the proposed rule seeks to clarify that employers may exclude the following from an employee’s regular rate of pay:

  • The cost of providing wellness programs, onsite specialist treatment, gym access and fitness classes, and employee discounts on retail goods and services
  • Payments for unused paid leave, including paid sick leave
  • Reimbursed expenses, even if not incurred “solely” for the employer’s benefit
  • Reimbursed travel expenses that do not exceed the maximum travel reimbursement permitted under the Federal Travel Regulation System regulations and that satisfy other regulatory requirements
  • Discretionary bonuses
  • Benefit plans, including accident, unemployment, and legal services
  • Tuition programs, such as reimbursement programs or repayment of educational debt

The proposed rule also seeks to clarify whether other forms of compensation, such as payment for meal periods and “call-back” pay, must be included in the regular rate of pay.”[ii]

New York Amendment to Employee Paid Time Off to Vote Law

Previously, the law provided that if an employee had four consecutive hours either between the opening of the polls and the start of his or her shift, or between the end of his or her shift and the closing of the polls, the employee would be deemed to have had sufficient time to vote and was not entitled to paid time off to vote. If the employee did not have this four-hour window of time, the employee was permitted to take up to two hours of paid time off to vote either at the beginning or end of his or her shift…The new law, which is effective immediately, makes several important changes. First, the amount of paid time off that must be granted for voting leave changes from “up to two hours” to “up to three hours…. The new law eliminates this outside limit of ten days and just requires employees to request the paid time off to vote not less than two working days before the date of the election. Finally, and perhaps most significantly, the new law eliminates the presumption that an employee is not entitled to paid time off to vote if he or she has four consecutive hours outside of work time to vote…Exactly which elections qualify for paid leave under this law also remains an open question, but the language of the law is certainly broad enough to support an interpretation that all federal, state, or local elections would be covered. Regardless of the number or type of elections that the law extends to, affected employers must begin to plan for substantial portions of their workforce to make requests to be absent for up to three hours on election days. This will almost certainly mean increased scheduling problems…Finally, the law requires that all employers post a notice of the paid time off to vote law at least ten working days before every election. Although this requirement has not changed in the new law, employers should be sure that their posters and voting leaving policies in their employee handbooks are updated to reflect the changes in the law.”[iii]

“Under the new law, all employees may request up to three hours of paid time off to vote, regardless of their work schedules, as long as the request is made at least two working days prior to the election. The employer may designate that any requested time be taken at the beginning or the end of shift.”[iv]

Update voting policies, postings and handbooks as needed under this change in the law.

NYC Ban on Pre-Employment Testing for Marijuana

On April 9, 2019, the NYC council passed legislation that bans pre-employment testing for marijuana.  The bill will take effect a year from enactment.  Exceptions to the new rule includes the following; construction workers, police officers, teachers, teacher’s aides, day care center employees, jobs that require supervision or care of patients in a medical, nursing home or group care facility, jobs that have the potential to impact health or safety of employees or members of the public and pre-employment testing required by federal law.  Remember the DOT regulations on testing.  Continue to monitor for changes on these regulations in the future.  Remember, laws start in New York City and slowly work there way to the rest of the state.

Pittsburgh Pregnancy Accommodations for Employees and Partners

The Pittsburgh City Code already treats pregnancy discrimination as a form of sex discrimination—forbidding employers with 5 or more employees from discriminating on the basis of “sex including pregnancy, childbirth or a related medical condition.” The new ordinance amends and supplements these existing provisions, elevating protections for pregnant workers by making pregnancy its own protected class. It also makes nearly all the law’s anti-discrimination provisions apply to partners of pregnant workers as well.”[v]

New Jersey Pre-Tax Transportation Benefits Law

“New Jersey employers of at least 20 employees will be required to offer this benefit to employees who are not currently in a collective bargaining agreement…A pre-tax benefit will allow an employee to set aside a certain portion of pre-taxed wages, which could be made available for specified transportation services while reducing the employee’s federal taxable income.”[vi] This law is not scheduled to be effective until March 2020.

As you can see the laws around the country in cities, states and at the federal level continue to impact our organizations.  Ensure your policies, postings and handbooks are updated as the law requires.  Seek guidance if you are unclear on what to do.

[i] SHRM “Getting Talent Back to Work Toolkit”

[ii] Barclay Damon Email

[iii] https://www.bsk.com/news-insights/new-york-amends-law-regarding-employee-paid-time-off-to-vote

[iv] SHRM Email

[v] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/pittsburgh-now-requires-pregnancy-accommodations.aspx

[vi] SHRM Email

7 Considerations for The Fair Credit Reporting Act (FCRA)

Below are 7 considerations for The Fair Credit Reporting Act:

  1. Written Notice: Ensure you are providing a written notice that a background check will be conducted, and the information will be used when making an employment decision.  Ensure transparency and proactively communicate.  Third-parties should have these forms to use or recommend what to add into the written notice.  SHRM has templates available as well for organizations to use.  A Google search cut, and paste is not a recommended solution to the written notice language or organization policy.
  2. Applicants Consent: Prior to starting the background check, ensure you obtain written consent to obtain the check and investigative summary report(s).
  3. Communication with Third-Party: Utilize the tools and resources of the third-party to certify the individual’s permission. These tools should follow current FCRA, local and state regulations.  This should also confirm that the documentation will not be used to discriminate, or any misuses of the information contained in the report.
  4. Adverse Action: If your organization utilizes the information to make an employment decision based on the background check, provide the individual with a notice of pre-adverse action that includes a copy of the background check results and a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act.” The third-party vendor might have templates for us to use, be consistent and communicate to the applicant.  If you do not ask, you will not know the answer.  There are examples to use on the SHRM website to review as potential options.
  5. Five Business Days: Provide five days for the individual to dispute the background check findings before a final decision on employment is rendered.
  6. Final Decision Reached: If you decide to move in a different direction, provide the applicant or employee a final notice of adverse action. This notice should include; name, address, phone number of the consumer reporting company, statement that the company supplied the report did not make the decision to take the unfavorable action and rights to dispute the accuracy of the report.  The individual can also request an additional report free from the third-party vendor within 60-days.
  7. Record Retention: Ensure you retain records consistently under state and federal law. Dispose of records by burning, pulverizing or shredding.  Remember destruction of electronic documents as well; emails, PDF’s, etc.

 

FRCA Tips for Employers

These are just a few considerations for complying with The Fair Credit Reporting Act.  There are many templates for us to review through the SHRM website.  What if an applicant admits they will have something flagged on their background check prior to running the check?  Depending on the organization, regulations, policies and position should provide guidance and a consistent process to determine if we should consider or should not consider an applicant.  Having a policy in place that is consistently enforced will help guide your organization through these unique situations and conversations.

Ensure you are using a reputable third-party vendor, that complies with federal, state and local laws and regulations, as well as internal company policies.  Laws continue to evolve throughout the country at the federal, state and local level, regarding background checks and “ban-the-box” legislation.  Seek guidance prior to implementing a background check process and create an RFP for multiple third-party proposals.  Generate options and select a vendor that fits the needs of your organization.  Many third-party vendors specialize in certain industries, they understand specific regulations, especially nonprofit requirements.  I’m happy to work with any employer to draft notices, disclosure statements, authorizations, etc.  A consist, fair and proactive processes are necessary for all organizations to ensure legally and ethically sound decision making within the organization.  Do not forget the “contingent upon” language in the offer letter.

Massachusetts Paid Family & Medical Leave 7/1/2019:

“Massachusetts will soon offer one of the most generous family and medical leave programs in the country. Businesses that employ one or more individuals in Massachusetts are subject to the Massachusetts Paid Family and Medical Leave (PFML) law and, beginning in October 2019, must begin remitting family and medical leave contributions to the Department of Family and Medical Leave through the Department of Revenue’s MassTaxConnect system on behalf of Massachusetts employees.

The employer contribution requirements differ based on the number of employees in Massachusetts. Specifically, employers are required to remit a contribution of 0.63 percent of eligible payroll. Employers with 25 or more employees may split the contribution between employee payroll deductions and an employer contribution pursuant to a contribution rate split determined by the statute and regulations. Employers with fewer than 25 employees must remit contributions on behalf of their workers to cover the portion of PFML contributions due from employees for family and medical leave, but they are not required to pay the employer portion of the contributions.

  • April 29, 2019: Approved Plan Applications Available to Employers.
  • July 1, 2019: Notice Requirements. Employers must post a notice describing the benefits available under the law and provide each employee, within 30 days of hire, a written explanation of the employee’s rights. A workplace poster explaining the benefits available under the PFML law is available on the Department of Family and Medical Leave website.
  • July 1, 2019: Payroll Deductions Begin.
  • October 31, 2019: Contributions Due for July through September 2019.
  • January 1, 2021: Most Benefits Under the Law Available.
  • July 1, 2021: All Benefits Under the Law Available.”[i]

Important dates:  notice requirement begins 7/1/2019
employer contributions begin 7/1/2019
employee payouts begin 1/1/2021

This is a significant change for employers in the State of Massachusetts.  Continue to monitor for updates on this legislation and keep all postings and communications up-to-date within your organization.  This includes remote workers as well.

DOL Proposed Overtime Calculation Changes:

The proposed rule would exclude all of these from the regular rate, and in addition would exclude:

  • The cost of providing wellness programs and onsite specialist treatment.
  • Reimbursed expenses, including travel expenses that do not exceed the maximum travel reimbursement under the Federal Travel Regulation system.
  • Accident, unemployment and legal services, which the DOL considers to be benefits plans.”[ii]

Additional changes to monitor for under the proposed rule change include bonuses, employee-of-the-month awards, spot bonuses, etc.  Nothing in the proposed rule is finalized, but we have not seen significant changes to “regular rate” definitions in 50-years.  Continue to monitor and prepare for these changes.

EEOC Releases Fiscal Year 2018 Enforcement and Litigation Data

“The FY 2018 data show that retaliation continued to be the most frequently filed charge filed with the agency, followed by sex, disability and race. The agency also received 7,609 sexual harassment charges – a 13.6 percent increase from FY 2017 – and obtained $56.6 million in monetary benefits for victims of sexual harassment. Specifically, the charge numbers show the following breakdowns by bases alleged, in descending order:

  • Retaliation: 39,469 (51.6 percent of all charges filed)
  • Sex: 24,655 (32.3 percent)
  • Disability: 24,605 (32.2 percent)
  • Race: 24,600 (32.2 percent)
  • Age: 16,911 (22.1 percent)
  • National Origin: 7,106 (9.3 percent)
  • Color: 3,166 (4.1 percent)
  • Religion: 2,859 (3.7 percent)
  • Equal Pay Act: 1,066 (1.4 percent)
  • Genetic Information: 220 (.3 percent)”[iii]

[i] Barclay Damon LLP Email 4/5/2019

[ii] SHRM Article

[iii] https://www.eeoc.gov/eeoc/newsroom/release/4-10-19.cfm

Department of Labor: Notice of Proposed Rulemaking Joint Employer Status

The U.S. Department of Labor recently announced a proposed rule to revise and clarify current responsibilities of employers, joint employers to employees in joint employer arrangements.  The current regulations have not been “meaningfully” revised on joint employer regulations since 1958.  As a society, I think we have seen a few changes in the work relationship since 1958.  An uptick in temp services, contract workers, consultants, seasonal workers, etc.  The new proposals would clarify understanding on responsibilities to pay at least the federal minimum wage for all hours worked and overtime for all hours worked over 40 in a workweek.

The Department proposes a clear, four-factor test—based on well-established precedent—that would consider whether the potential joint employer actually exercises the power to:

  • “hire or fire the employee;
  • supervise and control the employee’s work schedules or conditions of employment;
  • determine the employee’s rate and method of payment; and
  • maintain the employee’s employment records.

The proposal also includes a set of examples for comment that would further help to clarify joint employer status.”[i]

Additional Clarity under the Proposed Rule:

“The rule would also clarify that the following factors don’t influence the joint-employer analysis:

  • Having a franchiser business model.
  • Providing a sample employee handbook to a franchisee.
  • Allowing an employer to operate a facility on the company’s grounds.
  • Jointly participating with an employer in an apprenticeship program.
  • Offering an association health or retirement plan to an employer or participating in a plan with the employer.
  • Requiring a business partner to establish minimum wages and workplace-safety, sexual-harassment-prevention and other policies.”[ii]

“The proposed changes are designed to reduce uncertainty over joint employer status and clarify for workers who is responsible for their employment protections, promote greater uniformity among court decisions, reduce litigation and encourage innovation in the economy,” according to the DOL.

Notice of Proposal Press Release

Notice of Proposed Rulemaking: Joint Employer Status

Notice of Proposed Rule

Fact Sheet: Notice of Proposed Rulemaking on Joint Employer Status under the FLSA

Highlights of the Notice of Proposed Rulemaking (NPRM): Joint Employer Status Under the Fair Labor Standards Act (FLSA)

“Employers that wish to comment on the proposal may do so by visiting www.regulations.gov.”[iii]

NYC Joint Employer Language:

“Joint employer” means each of two or more employers who has some control over the work or working conditions of an employee or employees. Joint employers may be separate and distinct individuals or entities with separate owners, managers and facilities. A determination of whether or not a joint employment relationship exists will not often be decided by the application of any single criterion; rather the entire relationship shall be viewed in its totality.”[iv]

We continue to see proposed changes to labor and employment laws at the local, state and federal levels.  Many of these changes will impact our organizations and are significant.  No meaningful changes since 1958 on joint-employer laws and regulations is startling, as there has been so many changes in the work relationship.  Continue to monitor for updates, proposed changes, to ensure your organization is compliant.  If you are confused, seek guidance.  These changes happen so quickly, it can be overwhelming to any organization to maintain updated handbooks, training, communications payroll records, labor posters, etc.

New York: NYC Bans Family Planning Discrimination (5/20/19):

The New York City (NYC) Council has added “sexual and other reproductive health decisions” to the list of protected classes under the NYC Human Rights Law. This new protected category encompasses “any decision by an individual to receive services, which are arranged for or offered or provided to individuals relating to sexual and reproductive health, including the reproductive system and its functions.”[v]

New Jersey Family Leave Law Amendment (June/July 2019):

“The NJFLA currently applies to employers with 50 or more employees. The amendment reduces the employer size threshold to just 30 employees. Thus, beginning on June 30, 2019, employers with 30 or more employees (in total, anywhere) are required to provide those employees working in New Jersey with 12 weeks of job-protected family leave during each 24-month period.”[vi]

[i] https://www.dol.gov/whd/flsa/jointemployment2019/

[ii] https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/Labor-Department-Seeks-to-Revise-Joint-Employer-Rule.aspx

[iii] SHRM.org

[iv] https://www1.nyc.gov/assets/dca/downloads/pdf/about/Grocery-Worker-Retention-Act-Law-Rules.pdf

[v] SHRM Email

[vi] SHRM Email

5 Employer Considerations for Evolving Marijuana Legislation

Over the past decade, we have witnessed significant changes in marijuana legislation across the country.  States and localities have eased the restriction on medicinal and recreational marijuana, which has created new business opportunities and tax revenue.  “About 62 percent of U.S. respondents to a 2018 Pew Research Center survey said marijuana use should be legal, compared to 31 percent who supported legalization in 2000.”[i]  As we continue to see legislative evolution throughout the country and around the world, be aware of how this can and will impact our organizations.  From policies, drug testing, DOT, to FMLA, ADA and PFL accommodations.

Below are 5 considerations for evolving marijuana legislation:

weed

  1. State Legislation: “State laws reflect the changing attitude toward weed: Thirty-three states and Washington, D.C., have legalized medical marijuana use, and 10 states have approved both its medical and recreational use.”[ii]
  2. Federal Legislation: “Schedule I: Schedule I drugs, substances, or chemicals are defined as drugs with no currently accepted medical use and a high potential for abuse. Some examples of Schedule I drugs are: heroin, lysergic acid diethylamide (LSD), marijuana (cannabis), 3 methylenedioxymethamphetamine (ecstasy), methaqualone, and peyote”[i] “Despite marijuana’s Schedule I status, former President Barack Obama’s administration issued a memo in 2013 stating that federal prosecutors wouldn’t target adults who were growing or using marijuana in accordance with state laws. Instead, the federal government focused its efforts on preventing marijuana sales to minors and stopping drug cartels.  Although President Donald Trump’s administration rescinded the Obama-era memo, there hasn’t been a ramp up in enforcement, and states continue to approve marijuana use.”[ii]
  3. FMLA & Drug Free Workplace: “Family and Medical Leave Act (FMLA) and accompanying state laws allow qualified employees with serious health conditions to take time off for medical treatment. And the Drug-Free Workplace Act of 1988 requires federal contractors and grantees to guarantee drug-free workplaces as a condition of receiving government contracts or grants.”[iii]
  4. Reasonable Accommodation: The Americans with Disabilities Act until recently, ruled against reasonable accommodation in relation to medicinal marijuana use. Employer-Friendly decisions include; Washburn v. Columbia Forest Products, Inc., Roe v. Teletch Customer Care Mgmt., Johnson vs. Columbia Falls Aluminum Co., and Ross v. RagingWire Telecommunications, Inc.  Three out of the four rulings for employers happened in pro-marijuana states; California, Oregon and Washington.  However, along comes Barbuto vs. Advantage Sales and Marketing, LLC; “the Massachusetts high court addressed whether an employer must accommodate medical cannabis use, since state law permits medical marijuana use and prohibits disability discrimination…The court held that an exception to the employer’s drug policy to permit offsite marijuana use may be a reasonable accommodation where the employee’s physician determines that marijuana is the most effective treatment for the employee’s disability and that any alternative medication permitted by the employer’s drug policy would be less effective.”[iv]
  5. Employer Policies & Procedures: Any of our drug-testing and screening practices must comply with emerging state and local laws, regardless of illegality at the federal level. While reviewing, we must also understand recent court cases on accommodations and what might be considered a reasonable accommodation.  “In states that cover medical marijuana patients under disability laws, employers should confirm whether positive drug tests are connected to medicinal use before making employment decisions.”[v]  Continue to monitor for changes this year in New York State, as recreational marijuana changes are on the docket in Albany and will be reviewed in the next few weeks.  Ensure your organizations are in compliance with DOT regulations as well.  Reviewing policies and procedures should be a priority for all organizations in 2019, regardless of state changes to recreational marijuana laws.  If you operate in multiple states, do not have a blanket policy covering multiple states, it will not work.
  6. Bonus Information: “What conditions make me eligible to get medical marijuana?You may be eligible for medical marijuana if you have been diagnosed with one or more of the following severe debilitating or life threatening conditions: cancer, HIV infection or AIDS, amyotrophic lateral sclerosis (ALS), Parkinson’s disease, multiple sclerosis, spinal cord injury with spasticity, epilepsy, inflammatory bowel disease, neuropathy, Huntington’s disease, post-traumatic stress disorder, chronic pain (as defined by 10 NYCRR §1004.2(a)(8)(xi)), pain that degrades health and functional capability as an alternative to opioid use or substance use disorder. The severe debilitating or life-threatening condition must also be accompanied by one or more of the following associated or complicating conditions: cachexia or wasting syndrome, severe or chronic pain, severe nausea, seizures, or severe or persistent muscle spasms, PTSD or opioid use disorder.”[vi]

    Confused yet?  So am I.  My recommendation related to this complex and evolving area of law, is to be aware of the changes, seek guidance from a labor and employment attorney, HR consultant and/or occupational medicine department.  Attend multiple legal trainings on this subject and continue to review laws and regulations throughout the country.  If a reasonable accommodation request is presented to you by an employee or applicant, review it like we would with any reasonable accommodation request, is it reasonable for the organization to accommodate?  The process should be fluid between the employer, employee/applicant and physician(s).  Medicinal marijuana cards are not easy to obtain in this state; I have seen two thus far as an HR consultant in New York State.  Whereas, in Michigan, cards are much easier to obtain due to a medical condition.

    Ask questions and do research on this subject, remember the internet is full of inaccuracies and alternative facts, outdated policies, etc.  We have not seen a court case on this subject related to Paid Family Leave, yet.  Evolution of laws, comes through court decisions.  The ADA accommodation cases are new to our country and I can almost guarantee we will see more cases and rulings on this subject in state courts throughout the country moving forward.  Update testing policies and procedures as needed, train the workforce and ensure management is aware of these evolving laws.  Work closely with your EAP provider as well, they will also have advice on the topic.

    New York: NYC Mandates Annual Anti-Harassment Training (4/1/19)

    “The Stop Sexual Harassment in NYC Act requires New York City employers with 15 or more employees to provide annual interactive training to prevent sexual harassment for all employees, including interns and supervisory and managerial employees.

    Such training is also required for new employees within 90 days of hire (however, an employee who has received sexual-harassment training at one employer within the required training cycle does not need to receive additional training at another employer until the next cycle).

    The act defines “interactive training” as “participatory teaching whereby the trainee is engaged in a trainer-trainee interaction, use of audio-visuals, computer or online training program or other participatory forms of training as determined by the commission.””[vii]

    [i] https://www.dea.gov/drug-scheduling

    [ii] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/what-employers-need-to-know-about-marijuana-laws–.aspx

    [iii] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/must-employers-accommodate-medical-marijuana.aspx

    [iv] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/must-employers-accommodate-medical-marijuana.aspx

    [v] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/must-employers-accommodate-medical-marijuana.aspx

    [vi] https://www.health.ny.gov/regulations/medical_marijuana/faq.htm

    [vii] SHRM Update

[i] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/what-employers-need-to-know-about-marijuana-laws–.aspx

[ii] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/what-employers-need-to-know-about-marijuana-laws–.aspx

Employing Interns: Opportunities for all Organizations

Original Date: March 25, 2019

My HR career started with an internship as an undergraduate student at Elmira College and a local organization, Kennedy Valve Manufacturing, typical HR duties, with opportunities to sit in on grievance and arbitration meetings.  Almost 13-years later, this challenging internship provided me opportunities, which laid the foundation for my career.

Structured and project driven internships provide students great opportunities to obtain real world experience, that will make a difference as they grow into their careers.  Employers can bring interns in at a relatively inexpensive cost to the organization (or free) and have readily available access to a pool of applicants for potential hire after they graduate.  Collaborating with local colleges can also improve community relationships.  Set the tone as an organization and look for opportunities to hire and grow your internship programs.  It does make a difference to future employment opportunities for younger workers.

Internship Benefits to Interns:

  1. “Interns can gain a real-world view inside a particular industry or job before they devote significant time and money to qualify themselves for such positions. This may help them eliminate wasteful “false starts” in their educational and career choices.
  2. Interns can gain realistic expectations about workplace demands and rewards.
  3. By acquiring organizational knowledge, an intern can be at a competitive advantage over job applicants without internship experience.
  4. Similarly, an internship can be viewed as an expanded job interview; the intern has ample opportunity to display his or her best attributes to a potential employer over an extended period. The typical job applicant, on the other hand, may have only two or three hours of time with the organization before the hiring decision is made.
  5. Even if an internship does not blossom into a regular position with the organization, the intern will enlarge his or her network of contacts in the working world and will probably be able to add a few names to his or her list as references when applying for positions elsewhere.”[i]
  1. Pipeline of talent. Internships can provide any organizations with a pipeline of talent to grow and develop inside the organization.  Treat interns as you would want to be treated in an internship or as an intern.  Yes, we do have filing and other administrative work that needs to be completed.  However, this should not be the only task assigned to an intern during their time with our organizations.  Make this a memorable experience and provide significant feedback on performance.

 

The goals of an internship program should follow the SMARTER paradigm. The goals should be:

    1. Specific, clear and understandable.
    2. Measurable, verifiable and results-oriented.
    3. Attainable.
    4. Relevant to the mission.
    5. Time-bound with a schedule and milestones.
  1. If you want to add true value add ER to SMART(ER); Evaluate & Revisit

 

The seven factors of primary beneficiary test for unpaid interns and students:

  1. “The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
  2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
  3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.”[ii]

Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act

NY State Wage Requirements for Interns in For-Profit Businesses

Wage Requirements for Interns in Not-For-Profit Businesses 

Massachusetts Paid Family Medical Leave:

“Beginning in 2021, most Massachusetts employees will be eligible, per benefit year, for to up to 26 total weeks, in the aggregate, of paid family and medical leave. Covered individuals are eligible for up to 12 weeks of family leave in a benefit year to care for a family member with a serious health condition or bond with a new child, and up to 20 weeks of paid leave to address their own serious health condition…The program will be funded by a new payroll tax at the initial rate of 0.63 percent, which goes into effect beginning July 1, 2019. Benefit amounts will be determined based on a percentage of the employee’s weekly income, up to a maximum of $850 per week, with the maximum benefit adjusted periodically, and with the department administering the benefit program.”[iii]  Continue to watch for changes and updates to this upcoming law.

EEO-1 Pay-Data Reporting Decision Due from EEOC

“The Equal Employment Opportunity Commission and the Office of Management and Budget have until April 3 to tell employers if companies will have to report pay information by race, ethnicity and sex in this year’s EEO-1 reports, a federal district court ruled March 19.”[iv]

[i] https://www.shrm.org/resourcesandtools/tools-and-samples/toolkits/pages/employinginterns.aspx

[ii] https://www.dol.gov/whd/regs/compliance/whdfs71.htm

[iii] Barclay Damon Email 3/18/2019

[iv] SHRM Email

2019 FLSA Proposed Overtime Rule

In early March 2019, the Federal Department of Labor proposed an increase in the salary-level threshold for white-collar exempt positions.  The current exemption level at the federal level is $23,660, the proposed exempt threshold is $35,308.  “If finalized, the new overtime rule would result in the reclassification by employers of more than a million currently exempt workers as nonexempt and an increase in pay for others above the new threshold. The proposal does not call for automatic adjustments to the salary threshold, does not create different salary levels based on region of the country and does not make any changes to the duties tests.”[i]

Area’s to Consider under the Current Proposal:

  1. Reclassification: In New York State for Administrative and Executive Exemptions, we have nothing to adjust on levels. However, for the Professional Exemption, it is recommended to review and make the necessary adjustments for your organization.  Options include, implementing restrictive overtime policies, reduce to part-time status and/or reassign tasks to other employees.  Reclassification from exempt to nonexempt is challenging, from my experience this does not go over well with the employee and it is viewed as a demotion.  Prior to making a decision, review all options and do what is best for the organization and the workforce.
  2. Increase Pay: We always have the option to bump pay for the classifications that will be impacted by this change significant change. Review budgets and pay equality within your organization prior to adjusting pay.  Put it in writing, with a signed offer letter and/or the required wage notification form.
  3. Adjust or Not to Adjust, at this Point: That is the question. Review all options prior to making any adjustments.  This is a proposal, it will embark on a long, inefficient process prior to being passed into law, if ever passed.  Continue to monitor for updates and changes to the proposed language.  The change is coming, just as we will more than likely see changes to the federal minimum wage levels.  Seek guidance if you are unclear on classification definitions and wage levels.  State and federal laws do vary.  “In New York, the state’s minimum salary threshold for executive and administrative employees has been increased in phases, and the actual rate depends on geographic location and employer size. For example, the threshold is currently $58,500 (annualized) for employees who work in New York City for large employers and fast-food restaurants and $52,650 for workers at other businesses with 10 or fewer employees. In Nassau, Suffolk and Westchester counties, the threshold is $46,800, and in other areas of the state it’s $43,264.”[ii]

“Employers should note that the DOL’s $35,308 threshold is just a proposal and must go through the formal rulemaking process, which includes a comment period. Employers—and other interested members of the public—that wish to comment on the proposal may do so by visiting www.regulations.gov. They will have 60 days to comment from the time the rule is published in the Federal Register. For now, the FLSA salary threshold is still $23,660 for the white-collar exemptions.”[iii]

“Executive and Administrative Exemption:

  • $727.50 per week on and after 12/31/16
  • $780.00 per week on and after 12/31/17
  • $832.50 per week on and after 12/31/18
  • $885.00 per week on and after 12/31/19
  • $937.50 per week on and after 12/31/20[iv]

burrrrrr

“The 6 exempt level definitions under the FLSA:

Fact Sheet #17A: Exemption for Executive, Administrative, Professional, Computer & Outside Sales Employees Under the Fair Labor Standards Act (FLSA)

  1. The Executive Exemption: Primary duties include managing the enterprise, directing the work of at least two or more full-time employees and has the authority to hire and fire employees. The link(s) goes into specific duties tests on the exemptions.  NY State Law
  2. The Administrative Exemption: Primary duties must be the performance of office or non-manual work related to the management of the business and exercising discretion and independent judgement with respect to matters of significance. NY State Law
  3. The Learned Professional Exemption: Primary duties must be the performance of work requiring advanced knowledge, which is predominantly intellectual in character and requires discretion and judgement.
  4. Computer Employee Exemption: Primary duties consist of the application of systems analysis techniques, design development, documentation, analysis, creation, modification of computer systems and designing, testing or modifying computer programs. This exemption is complex, ensure you read through the FLSA definition prior to deciding and thoroughly understand the duties test.
  5. The Outside Sales Exemption: Primary duties must include making sales, obtaining orders or contracts.  The employee must be regularly engaged away from the employer’s place of business.
  6. The Highly Compensated Employees Exemption: Perform office or non-manual work and paid total annual compensation of $100,000 or more. They regularly perform at least one of the duties of an exempt executive, administrative or learned professional identified in the standard tests of exemption.  The new salary cutoff is proposed at $147,414, almost a $50,000 jump in classification levels.
  7. Other Definitions: Blue Collar Worker

Police Officers, Fire Fighters and First Responders[i]

NYC Bans Hairstyle Discrimination:

“New York City has issued the country’s first-ever ban on employer policies and practices that discriminate against how black people wear their hair…Guidelines from the New York City Commission on Human Rights state that while employers can impose requirements around maintaining a work-appropriate appearance, a grooming policy that prohibits dreadlocks, cornrows, Bantu knots and other such hairstyles will be considered racial bias. The law does not apply to employers with fewer than four employees…Employers may not ban, limit, or otherwise restrict natural hair or hairstyles associated with black communities to promote a certain corporate image, because of customer preference or under the guise of speculative health or safety concerns,” according to the guidelines. “An employee’s hair texture or hairstyle generally has no bearing on their ability to perform the essential functions of a job.”[ii]

Michigan Paid Medical Leave Act Effective March 29, 2019:

The Paid Medical Leave Act requires covered employers to provide paid sick leave to many of their Michigan-based employees.

– Matthew Burr, HR Consultant

[i] Burr Consulting, LLC Article April 16, 2018

[ii] SHRM Email March 11, 2019

https://labor.ny.gov/formsdocs/wp/Part142.pdf\[v]

[i] https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/New-FLSA-Overtime-Rule-Proposal-Expands-Worker-Coverage.aspx

[ii] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/employers-can-not-ignore-state-overtime-exemption-rules.aspx

[iii] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/employers-can-not-ignore-state-overtime-exemption-rules.aspx

[iv] https://labor.ny.gov/formsdocs/wp/Part142.pdf

[v] Burr Consulting, LLC Article December 21, 2018

5 Thoughts on Payroll Debit Cards

Many organizations are moving to a payroll debit card model for employee payments in lieu of cash (yes cash), checks or direct deposit.  Debit cards and direct deposit are two options many organizations are offering and will continue to offer.  We need to be aware of laws that regulate the use of the payroll debit cards and provide alternative options, per federal and state guidelines.  One of the concerns at the federal level with these cards is that an organization cannot mandate where the funds can be redeemed.  This mandate would violate the Electronic Fund Transfer Act (EFTA).  Payroll debit card laws are written and enforced at the state level, some states prohibit employers from using pay cards without consent, place limitations on fees that can be charged and impose disclosure requirements.  New York State is a state that requires consent and there have been recent court cases on this issue.

Below are 5 considerations on payroll debit cards:

  1. “Do not make their use mandatory.  This is simple advice but necessary, provide options for the workforce to utilize a direct deposit option.  Working with a local bank or credit union is a great way to ensure employees understand direct deposit, checking and savings accounts.
  2. Limit fees.  If it was my money or paycheck, I wouldn’t be happy seeing a fee associated with withdrawals or moving money from one account to another.  Limit or eliminate fees, fees might not be legal in your state.
  3. Disclose every detail.  This doesn’t mean provide a 30-page contract that details everything in legal terms.  Ensure employees can understand the detail and have the option to ask questions.  A frequently asked question list is a great place to start with disclosing details in an easy to understand format.  Work with the debit card company to ensure accuracy and legality.
  4. Ensure that the full amount can be withdrawn each pay period in multiple withdrawals without fees.  This harkens back to the second suggestion.  If it was my money, I wouldn’t be happy with any fees.  It’s the employee’s money, ensure they can access and move it around as needed.
  5. Ensure that there is a reasonable number of establishments nearby from which money can be withdrawn.”[i]  Working with a local bank or credit union with easy to access ATM machines and multiple locations is a great option.  Having a map with locations is another solution to assist employees withdraw cash or bank.  Negotiating zero fees with the financial institution is an option, or at least a question to ask.  Again, create a process that assists employees with the money withdrawal.  Provide alternatives and options for employees.

 

New York State Area’s to Consider:

Beyond the notice and consent requirements, the additional restrictions applicable to using payroll debit cards included:

  1. Imposition of a seven-business day waiting period from execution of consent to initial payment by means of payroll debit card.
  2. A prohibition on a laundry list of potential fees.
  3. Requiring that wages paid by payroll debit card may not be linked to any form of credit.
  4. A prohibition on employers passing on costs associated with payroll debit card accounts or otherwise receiving kickbacks from third parties associated with payroll debit card programs.
  5. A prohibition on expiration of wages.
  6. An additional notice requirement if there are changes in the terms and conditions of the card accounts or fees charged to employees.
  7. A requirement that union approval be obtained for unionized employees.
  8. Providing a detailed written notice to employees.
  9. Obtaining voluntary consent prior to payment by either of these methods.”[ii]

Additional information on New York State:

New York State Rulemaking Activity

New York State Supreme Court Case Ruling

New York State Notice and Consent Direct Deposit Model Form

New York State Notice and Consent Payroll Debit Cards Model Form

Pennsylvania Regulations:

“The new amendments resolve the uncertainty. Under the new law, the use of payroll debit cards is permitted if, among other things:

  1. The employer does not mandate the use of payroll debit cards.
  2. The employer complies with stringent notice requirements.
  3. The employee is allowed one free withdrawal of all wages earned per pay period.
  4. The employee is provided a free method of checking the balance on the card electronically or by telephone.
  5. There are no fees for using the payroll card.”[iii]

Federal Bulletin on Payroll Debit Cards

The laws and regulations vary on payroll debit cards from state-to-state and will continue to evolve as payment options and technology evolves.  Be aware of the regulations in each state you operate in.  My recommendation is to make this an option for employees, just as direct deposit is an option (but strongly preferred).  Don’t force employees into using a payroll debit card or direct deposit, it could violate the law.  Seek guidance prior to implementing payroll debit cards and work with a reputable company.  SHRM’s vendor directory has four options to choose from and there are multiple websites that rank these organizations, based on service, size and reputation.  This should not be a one size fits all model, benchmark and find a solution that works best for your organization.  Your payroll provider and/or local bank might have suggestions on preferred vendors to consider or suggested alternatives.

New York State Department of Labor Drops Proposal Regarding Call-In Pay

“The New York State Department of Labor announced recently that it does not intend to implement its proposed regulations that would have imposed burdensome requirements on employers to provide call-in pay to employees under a variety of circumstances not currently covered under existing regulations. The regulations were initially proposed in November 2017, and then were revised in December 2018 after public comments were received and reviewed. The NYSDOL now intends to let the regulatory process expire with respect to the proposed regulations and potentially revisit this issue in the future.”[iv]  Continue to watch for the revisit in the future, this will impact most organizations in New York State.

NYC Mandates Workplace Lactation Room March 18, 2019

Beginning March 18, 2019, employers in the Big Apple with at least four workers must provide lactation rooms and create a written lactation-accommodation policy that must be given to workers when they are hired. The city’s human rights commission will release a model policy before the effective date.”[v]

[i] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/employers-payroll-debit-cards-.aspx

[ii] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/new-york-state-regulations-governing-payroll-debit-cards-revoked.aspx

[iii] https://www.shrm.org/ResourcesAndTools/legal-and-compliance/state-and-local-updates/pages/pennsylvania-law-clarifies-payroll-debit-card-use.aspx

[iv] https://www.bsk.com/news-insights/new-york-state-department-of-labor-drops-proposal-regarding-call-in-pay-for-now

[v] SHRM email

– Matthew Burr, HR Consultant

Labor and Employment Law Postings New York State and Pennsylvania

In the many audits I have conducted over the years; labor and employment law postings continue to be an area that we see as potential red flags and opportunities for organizations.  Many that I see are, outdated, expired, not posted in the correct area’s and/or missing information.  Below is a breakdown of posting requirements in New York State and the State of Pennsylvania.

march

State of Pennsylvania:

mar

Federal Posting Requirements

These are easy areas for organizations to correct and ensure updated compliance.  Worker’s comp, disability and paid family leave postings are a common area that I see as expired or completely missing, work with your providers and update as needed.  I have recently audited combined disability and PFL postings.  The unemployment posting in New York State is another easy miss for organizations.  Ensure the posters are visible in an area that employees gather and have access to the legal information, not in a closet or bathroom.  Keep in mind remote workers and applicants, yes there are specific laws on addressing both remote workers and posting requirements for job applicants.  And yes, there are different requirements across the country in each state.  You can purchase labor and employment law posters that contain most of the information above or you can download each form (weigh the value of your time versus spending time downloading each form from multiple websites).  If you are unclear on what to post, specific organizational requirements, where to post, seek guidance.  I can help any employer address posting questions or concerns, as it is part of the general audit process.  This is low hanging fruit cleanup, it should be reviewed annually, as laws change.  Federal laws will change throughout the year that require new posters, not all changes occur on December 31st or the beginning for a new year.

Pancake Chain IHOP to Pay $700,000 to Settle Sexual Harassment and Retaliation Lawsuit

“LAS VEGAS – Several franchisees of the popular IHOP restaurant chain in Nevada and New York will pay $700,000 and furnish other relief to settle a sexual harassment and retaliation lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today. The U.S. District Court of Nevada has approved a consent decree filed by the EEOC.

According to the EEOC’s lawsuit, IHOP owners, supervisors, managers and co-workers subjected female employees to ongoing egregious sexual harassment in both Nevada and New York locations. The harassment included groping; sending pictures of male genitalia; propositions for sex; viewing of porno­graphy; vulgar comments; and unwanted touching and kissing. The company failed to take corrective action when the victims complained, instead taking retaliatory action against them, including reducing their work hours and firing them.”[i]

Wynn Resorts fined record $20M for failing to investigate sexual misconduct

“Wynn Resorts has been fined a record $20 million for failing to properly investigate allegations of sexual misconduct against its then-CEO Steve Wynn, who grew up in Central New York.

The Las Vegas Review-Journal reports Wynn Resorts Ltd. executives “collectively sank into their seats” as the Nevada Gaming Commission announced its final punishment for the casino. It’s the highest fine ever handed down by Nevada gaming regulators.”[ii]

Christini’s Ristorante Italiano to Pay $80,000 to Settle EEOC Sexual Harassment / Retaliation Lawsuit

“Christini’s Ristorante Italiano to pay $80k to settle EEOC lawsuit. The owner created a work environment that encouraged sexually charged comments and allowed for the repeated propositioning of a female bartender, the suit charged.”[iii]

– Matthew Burr, HR Consultant

[i] https://www.eeoc.gov/eeoc/newsroom/release/2-20-19.cfm

[ii] https://www.syracuse.com/us-news/2019/02/wynn-resorts-fined-record-20m-for-failing-to-investigate-ceo-from-cny.html

[iii] EEOC Twitter 2/28/2019

 

6 Employee Handbook Updates in 2019

There have been significant changes at the local, state and federal level on labor and employment laws and regulations that impact our organizations.  Some of these changes can and will impact our current policies, procedures and handbooks.  We need to be aware of these legal changes, make the necessary updates and communicate/train on these changes.  Training and sign-offs are crucial during this process.

Below are six employee handbook language updates for 2019:

  1. Sexual Harassment & Retaliation Policy: These language changes should have occurred in October of 2018 (new changes in NYC). New York State is requiring all employers to have a clear policy on sexual harassment, retaliation, investigations, etc. in place.  We also need to communicate this policy throughout the workforce.  Ensure you have this policy in place.  Employers outside of New York, should also review their policies and update accordingly.
  2. Reasonable Accommodation: “In 2018, new or amended reasonable-accommodation compliance requirements took effect in seven states and two key municipalities. They address issues such as:
  • Expanding reasonable accommodations for women who are pregnant or breast-feeding.
  • Allowing people who have certain conditions public access to employee restrooms.
  • Providing safety accommodations to people who have been sexually assaulted or experienced domestic violence or stalking.”[i]

This includes 2019 legislation changes in New York City.

  1. Equal Pay and Wage Discrimination: Four states and two municipalities adopted or modified pay-equity laws. These laws address; wage discrimination based on gender, salary history questions to job applicants and employers banning wage discussions among co-workers (which is a violation of the National Labor Relations Act-Protected Concerted Activity).  In New York State we will continue to see evolution of wage discrimination and salary history laws.  Watch for statewide legislation in 2019 or 2020.  The handbook language change is important, but supervisory level training is just as important with these changes, especially for anyone interviewing applicants.
  2. Smoke-Free Workplace: “More states are including e-cigarettes and other tobacco substitutesin their laws prohibiting smoking in the workplace. Employers may be required to post notices, provide designated smoking areas and make other adjustments under such laws.”[ii]This is a great opportunity to review our own policies on smoke-free workplaces to include e-cigarettes, tobacco substitutes and other tobacco products.
  3. Weapons in the Workplace: “In 2018, three states adopted or amended laws related to weapons in the workplace, addressing such issues as:
  • Keeping guns in vehicles in company parking lots.
  • Restricting the carrying of a concealed handgun to those authorized to carry a handgun.”[iii]

The law is clear in New York State regarding weapons in the workplace.  Ensure you have a policy in place and review other local and state laws if you operate in area’s outside of New York State.  Communicate the policy and hold folks accountable, especially during hunting season in this area.

  1. Non-Discrimination Language: With the recent passing of the Gender Expression Non-Discrimination Act (“GENDA”) by the New York State Legislature and the expected signature of the bill by Governor Cuomo, we need to review current discrimination language to ensure it covers all protected categories.

These are just a few examples of employee handbook and policy language changes and updates; any organizations should consider in 2019.  Watch for changes to medicinal and recreational marijuana laws, reasonable accommodation with marijuana use, marijuana as a disability at the local and state level.  Another area to monitor is, paid FMLA leave at the federal level.

Annual reviews of handbook and policy language is necessary to ensure legal compliance with many of the laws and regulations that are changing at the local, state and federal levels.  Updating the language is necessary, communicating, training and receiving signatures from the workforce should be a priority as part of the annual review.  It’s one thing to update language and put the handbook back on the shelf, its another to update, communicate and train the workforce.  If you are unclear on what and how to update, seek guidance, these changes are complex, and we will continue to see evolution of laws and regulations.  Yes, I repeat these lines in every article.

New York Gender Expression Non-Discrimination Act (GENDA) Effective 2/24/2019

“Effective February 24, 2019, New York state’s Gender Expression Non-Discrimination Act (GENDA) will make it unlawful for employers to discriminate against workers based on their actual or perceived gender identity or expression or transgender status. New York law already bans employment discrimination based on sexual orientation.”[iv]

IRS 2018 Taxes on Parking Benefits

“The IRS has clarified how all employers can calculate the tax on qualified parking benefits that took effect this year. The guidance also provides some relief for nonprofit, tax-exempt organizations, which now must pay a 21 percent unrelated business income tax (UBIT) on subsidized parking they provide to employees.”[v]

IRS issues guidance for determining nondeductible amount of parking fringe expenses and unrelated business taxable income; provides penalty relief to tax-exempt organizations

IRS Notice 2018-99

– Matthew Burr, HR Consultant

IRS Notice 2018-100

[i] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/7-policies-to-update-in-your-2019-employee-handbook.aspx

[ii] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/7-policies-to-update-in-your-2019-employee-handbook.aspx

[iii] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/7-policies-to-update-in-your-2019-employee-handbook.aspx

[iv] SHRM Email

[v] https://www.shrm.org/resourcesandtools/hr-topics/benefits/pages/irs-offers-parking-benefit-tax-relief.aspx

7 Thoughts on Workplace Bullying Policies

We have seen significant changes in the workplace related to sexual harassment training, policies and employee expectations.  “In two studies noted by The Daily Campus, one in three women (in a survey of more than 2,000 women between the ages of 18-34) “reported experiencing sexual harassment, and 71 percent of those women declined to report it.” According to a PwC survey of more than 25,000 women, 52 percent reported incidences of workplace bullying and harassment.”[i]  Workplace bullying is a common problem throughout organizations and can have long-term detrimental impacts on our workforce including; decreased employee morale, turnover, decreased trust in leadership, employee stress, depression, health issues, absenteeism, workplace violence, retaliation and legal concerns.  As leaders we need to establish a culture of zero-tolerance for workplace bullying, including policies and procedures that employees understand.

Below are seven thoughts on workplace bullying policies:

  1. Zero-Tolerance Workplace Harassment, Bullying & Retaliation Policy: This is a draft objective statement in a policy that addresses this issue. “The purpose of this policy is to communicate to all employees, including supervisors, managers and executives, that Organization X will not in any instance tolerate bullying behavior. Employees found in violation of this policy will be disciplined, up to and including dismissal.”[ii]  Short and to the point policy objective.
  2. Defining Workplace Bullying: “Organization X defines bullying as repeated, health-harming mistreatment of one or more people by one or more perpetrators. It is abusive conduct that includes:
    1. Threatening, humiliating or intimidating behaviors.
    2. Work interference/sabotage that prevents work from getting done.
    3. Verbal abuse.”[iii]
  3. Workplace Bullying Examples: “Organization X considers the following types of behavior examples of bullying:
    1. Verbal bullying. Slandering, ridiculing or maligning a person or his or her family; persistent name-calling that is hurtful, insulting or humiliating; using a person as the butt of jokes; abusive and offensive remarks.
    2. Physical bullying. Pushing, shoving, kicking, poking, tripping, assault or threat of physical assault, damage to a person’s work area or property.
    3. Gesture bullying. Nonverbal gestures that can convey threatening messages.
    4. Exclusion. Socially or physically excluding or disregarding a person in work-related activities.”[iv]

We could write or maybe could not draft a never-ending list of workplaces bullying situations in our policy.  It is recommended to include examples in the policy and training sessions.  When I train supervisors and managers my advice is this; workplace bullying can take the shape of many forms, and it does.  Current or past examples and scenarios are great opportunities to train employees and leaders.  Ask for their input on this, they have great questions and scenarios.  Years of experience means years of situations.  There are hundreds of examples online to use as potential options and easy to create during the discussion.  I use these with undergrads all the time.

  1. Employee Training and Awareness Programs: The focus of this training should include an understanding of why these policies are needed and how employees can report issues or concerns.  These trainings should be conducted on a regular basis and should include; acceptable and unacceptable workplace behavior, recognizing bullying and other forms of harassment, reporting this behavior, retaliation and an overview of the policy.
  2. Manager and Supervisor Training: If you recall my article published on January 14, 2019, we covered this topic. Manager’s and supervisors need to understand their role in preventing, enforcing policies and addressing these common workplaces issues.  This training should be tailored for that group of leaders, with role play and enforced expectations.
  3. Building a Culture: Yes, it is our responsibility to build a culture where managers, supervisors and employees at any level always behave professionally. This includes but not limited to, at work, off-site, off-hour gatherings, social media, etc.  If owners, leaders, managers and supervisors at the top of the organization get away with bullying, employees assume this is an acceptable form of behavior.  Over communicate the organizations commitment to ensuring an environment free of workplace bullying and harassment.  Embrace the culture you want in your organization and hold people accountable from top to bottom.
  4. Reporting a Complaint: Clearly define that process for filing a complaint in the policy or employee handbook. In New York State we now have a complaint procedure form and process for sexual harassment, we can add bullying and workplace harassment into the same procedure.  Employee’s should have the opportunity to communicate this information through multiple channels in the organization or outside the organization (HR Consultant, compliance line, etc.).  Ensure everyone understands that complaints are taken serious and investigations will take place, as needed.  Training and policy signoffs are recommended.  Make the policy or complaint form visible, hang it near the labor and employment posting requirements, put it on the intranet, cover it in crew meetings.

52

This is a high-level overview of a workplace bullying and harassment policies and organizational expectations.  Organizations should tailor any policy or procedure to the needs of the operation, while ensuring the policy is legal.  Train the workforce on expectations and hold everyone accountable.  This is a training I have conducted for years and it continues to be a success in multiple industries.  Develop a culture in which there is no workplace bullying.  Follow-up on any complaints or issues, efficiently, while communicating with parties involved.  It is as simple as holding people at every level accountable.  If you are unclear on how to write a policy, train the workforce or implement a complaint procedure, seek guidance, this is an area I am happy to help with and drive forward.  Culture starts with leadership, embrace the culture you envision for your organizations.

NYC Sexual Harassment Training Requirements April 1, 2019

“Perhaps most notably, the act requires New York City employers with 15 or more employees to provide annual interactive training to prevent sexual harassment for all employees, including interns and supervisory and managerial employees.
Effective date of notice posting and fact sheet distribution: 9/6/2018*
Effective date of annual interactive training requirement: 4/1/19*
Text of the measure can be found here.”[i]

NYC Bans Family Planning Discrimination May 20, 2019

“The New York City (NYC) Council has added “sexual and other reproductive health decisions” to the list of protected classes under the NYC Human Rights Law. This new protected category encompasses “any decision by an individual to receive services, which are arranged for or offered or provided to individuals relating to sexual and reproductive health, including the reproductive system and its functions.”
Covered employers: All employers in NYC with four or more employees.
Effective date: 5/20/19
Text of the measure can be found here.”[ii]

Yes, these two pieces of legislation only impact employers in New York City.  However, as we have seen in the past, the changes start in NYC and slowly work their way throughout the state.  Be aware of these changes in NYC and how they might impact us in Upstate New York.  If there are comment periods on new legislation, comment during that time period.

– Matthew Burr, HR Consultant

[i] SHRM Email

[ii] SHRM Email

[i] https://www.paychex.com/articles/human-resources/workplace-harassment-prevention

[ii] SHRM Draft Policy

[iii] SHRM Draft Policy

[iv] SHRM Draft Policy