10 Labor and Employment Posting Requirement Considerations

Original Date: July 30, 2018

Currently there are over 350+ regulations for labor and employment posting requirements that impact city specific, county specific, size specific, font specific and state specific, throughout the United States.  From 2013-2017, there have been (2013) 35, (2014) 52, (2015) 47, (2016) 37 and (2017) 44 mandatory posting changes.  In 2018, there have been 31 posting changes in the first half of the year.  In 2012, there were 5 cities with minimum wage ordinances, in 2018 there are more than 40 cities and counties with minimum wage ordinances.  All of these changes can and do impact our organizations.  How do we keep up with these continuous changes that vary by city, county and state?  It can be daunting, but this article is designed to provide some guidance and thought on these changes and a proactive approach to ordering new posters.

Below are 10 considerations for labor and employment posting requirements:

  1. City Required Postings: 55+ cities now require the following postings; minimum wage, paid sick leave, fair chance, discrimination and pregnancy accommodation. Not all 55+ cities require all of these postings, but they do require some of the postings.  Remember, NYC will be requiring a sexual harassment posting later this year.
  2. What do we need to post: The posting requirements will depend on company size, location, industry specific and federal contracts.
  3. Federal Posting Requirements: This includes the Fair Labor Standards Act (FLSA), Occupational Safety and Health Administration (OSHA), Employee Polygraph Protection Act (EPPA), Equal Employment Opportunity (EEO) (15 or more employees), Family Medical Leave Act (FMLA) (50 or more employees), and The Uniformed Services Employment and Reemployment Rights Act (USERRA).
  4. Federal Postings Visible to Applicants: The Employee Polygraph Protection Act (EPPA), Family Medical Leave Act (FMLA) and Equal Employment Opportunity postings must be visible to all applicants. Postings should be visible in interview area’s or conference rooms.  What about phone interviews or skype interviews?  It is recommended to include the language in an email correspondence with the applicant(s).
  5. Remote and International Workers: It is recommended to send the employee a poster for the remote office location, ensure the updated posting requirements are on the intranet or email the posting requirements and verify signoff that the employee received and has copies of the posting requirements. If the employee travels and works in different states (example: New York and Pennsylvania), more than one poster might be required for these individuals with location specific information.
  6. Federal Contractor Requirements: Employee Rights Under the Davis-Bacon Act, Employee Rights on Government Contracts, Notification of Employee Rights Under the National Labor Relations Act, Workers Rights Under Executive Order 13658, Equal Employment Opportunity is the Law, Paid Sick Leave, and Pay Transparency Nondiscrimination Provision.
  7. State OSHA Programs: There are currently 21 states (and Puerto Rico) that have state specific OSHA programs and posting requirements. New York State and the State of Pennsylvania are not included in this list of state specific OHSA posting requirements, for now.
  8. General Posting Requirements: As employers we need to ensure posters are visible. Post where employees report each day, we may need to post in several buildings and/or in several locations.  We should not allow posters to be defaced or taken down.
  9. Federal Posting Penalties: OSHA up to $12,934, EPPA up to $20,521, FMLA $169 for each separate offense and EEO is the Law $545.
  10. New Poster Requirements: That is the question. Mandatory new poster requirements include; new law or regulation, change in law or regulation or agency directive.  Minor changes, the previous version remains in compliance.  Out of date posters are not accepted by the federal or state government.  Once information changes, we need to update immediately.  SHRM recommends taking picture or saving old posters.

The posting requirements continue to change at the federal, state and local levels.  In New York State, we will see changes to minimum wage at the end of 2018 that will require new posters in 2019.  We could also see sexual harassment posting requirements statewide and federal minimum wage changes.  Other thoughts I have include; ban the box postings, no salary history questions, investigation processes, etc.  Do not forget worker’s compensation posting requirements, paid family leave and short-term disability.  Ensure your posters are legal and up-to-date.  This is an area I audit and find common mistakes.  It is better to be proactive as an organization then reactive with labor posters.  There are many websites available for employers to order posters through, with shipping options to provide new posters as changes occur.  Remember, not every change happens at the end of a calendar year.  However, if you do not want to pay, the regulations can be found on government websites (not one website, many).  If you have questions, seek guidance and ensure you are compliant.

– Matthew Burr, HR Consultant

5 Thoughts on Weapon-Free Workplace Policies

Original Date: July 23, 2018

The question regarding weapon-free workplace policies is often asked by employers.  Can we tell employees to keep firearms off company property or out of company vehicles?  What about concealed carry permits?  “Many states throughout the country have “parking lot storage” laws that give employees the right to keep firearms in their vehicles even when they are parked on employer-owned property…laws often have rules on where a firearm must be kept…hidden away in a locked car or out of plain sight.”[i]  Laws vary by state.  However, in New York State and the State of Pennsylvania, there is no parking lot storage laws that will impact the decisions of the organization.  Therefore, we can establish a zero-tolerance policy for weapons on or in company “property.”

States that currently have parking lot storage laws:

Alabama Alaska Arizona Arkansas
Florida Georgia Illinois Indiana
Kansas Kentucky Louisiana Maine
Minnesota Mississippi Nebraska North Dakota
Ohio Oklahoma Tennessee Texas
Utah West Virginia Wisconsin  

 

Information that should be included in the weapon-free workplace policy:

  1. Purpose: Organization X maintains a workplace safe and free of violence for all employees. The company prohibits the possession or use of dangerous weapons on or in the organizations “property.”
  2. Persons Covered: Who is covered by the policy? Full-time, contract workers, temporary employees, interns, visitors, customers, etc.  The license does not supersede the organizations policy.  Violation of the policy is subject to discipline, up to and including dismissal.
  3. Define Company Property and Dangerous Weapons: Buildings, surrounding areas, vehicles owned or leased, firearms, explosives, knives, etc.
  4. Searches of Property: Set the tone and ensure that the policy clearly outlines the language as it relates to personal property searches. Federal, state and local laws regarding searches.  What if they fail or refuse to allow the search?  Spell that out as well.
  5. Enforcement: Who administers the policy? Who should an employee contact if there is concerns?  HR, business owner, general manager, etc.

The weapon-free workplace policy should be no more than 1-2 pages in length, depending on definitions and enforcement.  Throughout the Southern Tier and Northern Pennsylvania, we have employees who hunt after work.  This does not mean they can keep a hunting weapon in their vehicle if your policy does not allow them too.  Hold the workforce accountable and enforce the policy as it is written.  I know of organizations that allow certain employees to keep a concealed weapon for safety of the organization.  This responsibility comes with additional training and is generally approved by the business owner or high-level employee.  This is rare, but I have worked with a few organizations that do this.  Know the laws; federal, state and local, communicate the policy, enforce the policy through training, hold the workforce accountable and ensure we are providing a safe place to work.  If you are unclear on laws, regulations, policy drafting, training design or policy communication, seek guidance.  The laws continue to change on parking lot storage throughout the country.  We will continue to see evolution of these laws.

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– Matthew Burr, HR Consultant

[i] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/xperthr/pages/guns-in-parking-lots-laws-by-state.aspx

 

4 Meal and Rest Requirements in New York State

Original Date: July 16, 2018

Meal and rest (break) periods continue to be a question in the workplace.  These laws can be confusing, based on shift start and hours worked.  Certain states statues or regulations remain silent on defining meal and break periods, which means they follow federal guidelines.  However, New York State, has unique laws and regulations on meal and rest periods.  Regardless of the laws, organizations should err on the side of caution and provide breaks that are most beneficial to the employee.  Breaks and rest periods are good for both the individual and employer.  Set the time for breaks and lunches and hold employees accountable to follow the guidelines on meal and rest periods.

The 4 meal and rest requirements in New York State[i]:

Covered Employees Duration Additional Provisions Exemptions
Factory workers are entitled to two meal breaks for all shifts of more than six hours starting between 1:00 p.m. and 6:00 a.m. and lasting more than six hours. At least 60 minutes each. The first lunch break must be between 11:00 a.m. and 2:00 p.m.; the second meal break must be at the time midway between the beginning and end of the shift. An employer can apply to the Commissioner of the New York State Department of Labor for shorter meal periods. These applications will be granted only if the Commissioner investigates the situation and finds such modifications are warranted by special circumstances.
Non-factory workers are entitled to a lunch break for shifts six hours or longer that extend over that period. At least 30 minutes. Between 11:00 a.m. and 2:00 p.m.  
Non-factory workers also are entitled to a meal break for all shifts of more than six hours starting between 1:00 p.m. and 6:00 a.m. At least 45 minutes. The meal break must be provided at the midpoint of the employees’ shifts.  
All workers are entitled to an additional meal break for workdays that extend from before 11:00 a.m. to after 7:00 p.m. At least 20 minutes. The meal break must be provided between 5:00 p.m. and 7:00 p.m.  

Bonus meal and rest requirements in Pennsylvania[ii]:

Covered Employees Duration Additional Provisions Exemptions
Minors who have worked for five continuous hours are entitled to a rest break. At least 30 minutes. No period of less than 30 minutes shall be deemed to interrupt a continuous period of work. N/A

Federal Law:

“An employer faces a complicated web of state and federal laws involving break periods. Determining whether an employer must provide break periods and, if so, whether employees must be paid for that time, can prove difficult:

  • The federal FLSA does notrequire an employer to provide meal breaks or rest breaks to employees, but many states’ laws do.
  • The federal FLSA doesrequire an employer to provide employees who are nursing mothers with breastfeeding breaks, as many states’ laws do.
  • Although the federal FLSA does notrequire an employer to pay employees for meal and rest breaks, as long as certain conditions are met, some states do require payment.”[iii]

– Matthew Burr, HR Consultant

[i] Meal and Rest Break Requirements by State, SHRM, Michael Cardman

[ii] Meal and Rest Break Requirements by State, SHRM, Michael Cardman

[iii] https://www.xperthr.com/employment-law-manual/hours-worked-federal/363/?cmpid=PLC%7cUSAG%7cHUSUN-2016-1110-shrm_content_syndication_superlink%7cArticle9543&sfid=701w00000018zEE&partner=SHRM#meal-breaks

10 Things to Remember For I-9 Form Completion

Original Date: July 9, 2018

I have written multiple articles related to I-9 forms, audits and other areas to consider.  During HR audits and in my research, I see a number of mistakes related to these forms, which can cost significant amounts of money for any organization.  Common mistakes include; allowing untrained staff to administer I-9s, no internal audits (until I audit), untrained staff engage in the audit, not overseeing the new employees filling out the forms (things get missed), accepting unacceptable documents or fake documents, not recording the documents correctly on the form and making corrections without initializing and dating them.  Correction letters should also be included with certain corrections.  All T’s should be crossed, and I’s should be dotted, prior to finishing the orientation, re-verification or paperwork process.  As the form has changed, so too has the length and required sections.

The 10 things to remember for I-9 completion:

  1. “Don’t pressure an employee to provide a specific document—the employee may provide any document the list allows. Employees need to provide either one item from List A or one item each from List B and List C.
  2. Don’t forget that employees must complete every applicable field in Section 1 of the I-9 form except the fields requesting a telephone number, e-mail address and Social Security number.
  3. Don’t forget to ensure that employees provide their date of birth and address.
  4. When completing Section 2, don’t ask employees to provide a document with their alien or “A” number, or otherwise specify which documents employees may present.
  5. Don’t forget to write “individual under age 18” if the employee is a minor and provides only a List C document.
  6. Don’t forget to ensure that employees check one status box (citizen, permanent resident or work-authorized alien).
  7. When you change an I-9, don’t forget to line out the old text, make an annotation, and sign and date it. Use the margins to annotate the form and attach an additional sheet if more room is needed.
  8. Don’t forget to print your name next to your signature.”[i]
  9. Remind the employee to check the box regarding preparer and/or translator, along with the name column at the top of the second page.  These are easily missed during the process and common mistakes I have seen during audits.
  10. Employer’s need to complete the information on the bottom of page two; hire date, signature of authorized representative, address, date, etc.  This is a common area I review not completed, not dated and not signed.  You can download a PDF version that allows the address and other information to be typed into the form, this should save time and provide accurate information
  11. Bonus thing:  Reminder, authorized representatives should be filling out the form and signing off.  Human resources, directors, managers, business owners, etc.  Refer to the link below for additional information on defining authorized representatives.

Create a policy clearly stating the types of people who may act as an agent for your organization. “The employer can list the best possible choices based on prior experience and include any additional instructions or guidance which might be helpful,” Fay said. He recommends clients consider HR professionals at nearby organizations, local librarians, attorneys or accountants, state workforce agency staff, or notaries. A nationwide listing of notaries can be found here. “It’s best to choose an individual who is already familiar with the Form I-9 process in order to ensure a smooth and quick verification process,” Fay said. It’s also important to know which states may prohibit notaries from completing the Form I-9, or have different requirements, he added. “California, for example, has indicated that the completion of an I-9 form requires you to be bonded as an immigration consultant.”[ii]

Form I-9 Information

There are pages of instructions included with the I-9 form and a guidebook for employers.  The form has evolved significantly since 1986 and continues to evolve, as we see with recent changes to the form and expiration dates on the form.  We could be required to implement and use E-verify in the future, if immigration policy changes.  Ensure that you are using the right form(s) and accepting the right identification(s).

Auditing records is necessary to ensure accuracy and legality.  If you are unclear on how to audit or what to look for, seek guidance.  This is an area that can easily be managed for any organization, if we are proactive in our processes and correct errors.

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– Matthew Burr, HR Consultant

[i] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/8-things-not-to-forget-when-filling-out-i-9-forms.aspx

[ii] https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/how-to-comply-i9-requirements-remote-workers.aspx

 

7 Notices of Pay Rate Requirements in New York State

Original Date: July 2, 2018

As many of us know, The Wage Theft Prevention Act (WTPA) took effect in New York State on April 9, 2011.  The current law requires employers to provide written notice of wage rates to each new hire and requires organizations to provide notice when rates change (demotion, annual increase, COLA’s, career progression, etc.).  On December 29, 2014, Governor Cuomo signed a bill eliminating the requirement that before February 1 of each year, employers must notify and receive written acknowledgement from every worker about their rate of pay.  Just to clarify, we do not have to do this.  The required notices (new hire, wage movement) should be part of our new hire orientation process and potentially the annual review process, to ensure we are providing legal and accurate information to the workforce.

The 7 notices in New York State:

  1. “Rate or rates of pay, including overtime rate of pay (if it applies)
  2. How the employee is paid: by the hour, shift, day, week, commission, etc.
  3. Regular payday
  4. Official name of the employer and any other names used for business (DBA)
  5. Address and phone number of the employer’s main office or principal location
  6. Allowances taken as part of the minimum wage (tips, meal and lodging deductions)”[i]
  7. Under the New York Wage Theft Protection Act, employers are also required to maintain 6 years of acknowledgements confirming receipt of notification of wages and other information required to be provided by employers under the law.
  8. Bonus Information: Organizations may provide their own notice, as long as it includes all of the required information. (Offer letter or wage change letter) Must include signatures.

Wage Prevention Fact Sheet

Wage Prevention Frequently Asked Questions

Notice of Pay for Hourly Employees

Notice for Exempt Employees

Notice for Employees Paid a Weekly Rate or a Salary for a Fix Number of Hours (40 of Fewer in a Week)

The forms are posted online for employers to use as part of the new hire and change(s) in rate process.  However, if the offer letters and change forms check the boxes of the required information by the state, employers do not need to use the forms recommended by the state.  We must get a signature on any of the forms used during either process, offer letter or salary increase letter.  A copy should be provided to the employee and one for the employer’s records.  Also, remember, these forms do change, the most recent form was updated in January of 2017.  Monitoring for updates to ensure we are using accurate forms is necessary.  During my audits, this has been a form that was not always used or not updated as the state changed the form.  It is recommended to audit your records in relation to this form and any other forms required by the local, state or federal government, annually or semiannually.  If you are confused, seek guidance, to ensure your organization is providing timely, accurate and legal forms/information to the workforce.

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– Matthew Burr, HR Consultant

[i] https://labor.ny.gov/workerprotection/laborstandards/employer/wage-theft-prevention-act.shtm

16 NLRB Changes to Employee Handbooks

Original Post: June 25, 2018

The National Labor Relations Board General Counsel Peter Robb’s released a memo on June 6, 2018 that outlined changes to three major categories of rules found in many of our policies or employee handbooks; rules that are generally lawful, provisions warranting individualized scrutiny and rules that are unlawful.  The NLRB will offer far less scrutiny under the Trump administration then we have seen under the Obama administration, in relation to policies and handbooks.  These changes include; civility standards, insubordination rules and prohibitions on taking pictures in the workplace, as shown below:

The 17 changes to employee handbooks:

Lawful civility rules might state, for example:

  • Behavior that is rude, condescending or otherwise socially unacceptable is prohibited.
  • Disparaging the company’s employees is prohibited.
  • Employees may not post any statements, photographs, video or audio that reasonably could be viewed as disparaging to workers.

Rules against defamation or misrepresentation are generally allowed. Examples of such rules are:

  • Misrepresenting the company’s products, services or employees is prohibited.
  • E-mail messages that are defamatory are prohibited.
  • Disorderly conduct on the employer’s premises and/or during working hours for any reason is strictly prohibited.”[i]

Rules that protect confidential, proprietary and customer information are generally lawful under the new rules.  No-photography rules and no-recording rules are viewed as generally lawful under the current memo issued in early June 2018.

“Provisions Warranting Individualized Scrutiny

Rules that may be subject to board scrutiny include:

  • Broad conflict-of-interest rules.
  • Confidentiality rules broadly encompassing “employer business” or “employee information.”
  • Rules regarding disparagement or criticism of the employer.
  • Policies regulating use of the employer’s name.
  • Rules restricting speaking to the media or third parties, as opposed to speaking to the media on the employer’s behalf.
  • Policies banning off-duty conduct that might harm the employer.
  • Rules against making false or inaccurate statements, as opposed to defamatory statements.

Unlawful Rules

Unlawful rules include confidentiality rules regarding wages, benefits or working conditions.

The following confidentiality rules are unlawful:

  • Employees are prohibited from disclosing salaries and contents of employment contracts.
  • Workers shall not disclose any information pertaining to the wages, commissions, performance or identity of employees of the employer.
  • Employees are prohibited from disclosing to any media source information regarding employment at the employer, the workings and conditions of the employer, or any staff member.”[ii]

Additional unlawful handbook language that can be scrutinized under the new memo is, prohibiting employees from joining outside organizations (example: labor unions) and/or voting on matters concerning the employer.  The Society of Human Resource Management suggest that employers revisit handbook language, policies and procedures that might have changed under the Obama administration, this language might have been deemed unlawful.  Remember, the key word is generally lawful, that does not mean all language or overreaching policies are lawful.  Annually reviewing handbook language is a proactive approach to the major changes we have seen under local, state and federal laws recently.  Remember, we all need to revise our handbooks and policies for the upcoming sexual harassment requirements in New York State and additional local laws in New York City (if you have offices there).  If you are confused on handbook and policy language, seek guidance.  Employee handbooks, policies and procedures are important for all of our organizations and need to be legally compliant, at all levels.

– Matthew Burr, HR Consultant

[i] https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/labor-relations-nlrb-general-counsel-memo-employee-handbooks.aspx

[ii] https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/labor-relations-nlrb-general-counsel-memo-employee-handbooks.aspx

10 Thoughts on Working through an ADA Accommodation

The Americans with Disabilities Act (ADA) was originally published in 1991, with revisions and updates in the mid-2000’s.  The legislation prohibits discrimination against people with disabilities in the workplace.  This article will focus on disability and accommodation during the application and employment relationship.  How does this impact our organizations?  What should we consider if an applicant or employee requires reasonable accommodation?  The steps below will assist our organizations in working through the complexity of accommodations.

Below are the 10 thoughts on ADA accommodations:

  1. Are you covered by the ADA? All employers with 15 or more employees are covered under the ADA at the federal level.  Review state regulations and legislation, to verify if there are stricter requirements at the state or local level. 
  1. Policies and Procedures in Place: Ensure your organization has handbook language, a policy, process and/or procedures in place to work through disability accommodations. This includes reviewing job descriptions; physical, standing, sitting or lifting requirements.  The more accuracy in the job descriptions, the better we can assess accommodations and determine the reasonableness of the accommodation request.
  1. Is the applicant qualified? The individual needs to satisfy the definitions under the ADA.  Applicants must meet the skill, experience, education and other job-related requirements.  They must be able to perform the essential functions of the position.
  1. The Interactive Process: Employers should engage in the interactive process in which the employee, health care provider and employer share relevant and important information on the position, the disability, accommodations and limitations of the applicant. This should be a good faith communication process between the parties.
  1. Employee Disability Under the ADA:
  • The ADA defines a disability as one of the following: a) a physical or mental impairment that substantially limits a major life activity; b) a record of a physical or mental impairment that substantially limited a major life activity; or c) being regarded as having such an impairment.
  • According to the Equal Employment Opportunity Commission (EEOC), the ADA Amendments Act (ADAAA) includes impairments that would automatically be considered disabilities. They include deafness, blindness, intellectual disability, completely or partially missing limbs, mobility impairments that require the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV or AIDS, multiple sclerosis and muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia.
  • The definition of major life activities includes caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working. Major bodily functions include functions of the immune system; normal cell growth; and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.
  • The definition of a disability also includes situations in which an employer takes an action prohibited by the ADA based on an actual or perceived impairment—for example, removing from customer contact a bank teller who has severe facial scars because customers may feel uncomfortable working with this employee or may perceive the employee as having an impairment when, in fact, he or she does not.
  • The ADAAA directs that if a “mitigating measure,” such as medication, medical equipment, devices, prosthetic limbs or low vision devices eliminates or reduces the symptoms or impact of the impairment, that fact cannot be used in determining if a person meets the definition of having a disability. Instead, the determination of disability should focus on whether the individual would be substantially limited in performing a major life activity without the mitigating measure. This rule, however, does not apply to people who wear ordinary eye glasses or contact lenses.
  • The following are not disabilities under the ADA: transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, other sexual behavior disorders, compulsive gambling, kleptomania, pyromania, and psychoactive substance use disorders resulting from current illegal use of drugs.”[i]
  1. Reasonableness of the Accommodation: The accommodation can be a modification in the workplace. The price of reasonable accommodation will vary, case by case.  Determination of the accommodation should be an open process between the three parties and should be consistent throughout the organization with employees and applicants.
  1. Reasonable Accommodation versus Undue Hardship:
  • “The EEOC, when determining if the employee request creates an undue hardship to the employer, looks not only at the cost of the particular accommodation but also at the financial stability of a company. If the company is making significant profits or has a sizable net worth, the employer may not be able to prove that the requested accommodation would have a significant financial impact, therefore creating an undue hardship. For example, it may be an undue hardship for a nonprofit organization with limited funds to provide a special chair that costs $1,000 as an accommodation to an employee. However, the same request by an employee working in a for-profit organization that made sizable profits may not be seen as an undue hardship for that employer.
  • Accommodations that could result in an undue hardship include modifications that are “unduly extensive or disruptive, or those that would fundamentally alter the nature or operation of the job or business,” according to the EEOC. For example, small employers that require their employees to be able to perform a number of different jobs and tasks may not find it feasible or cost-effective to provide job restructuring as a “reasonable accommodation,” whereas in larger organizations, this may be a free or low-cost option.
  • The EEOC does not see impact on employee morale as a reasonable undue hardship defense.”[ii]
  1. Communication is Critical: The organization should notify the employee in writing if the accommodation has been approved or denied.  Details of the anticipated accommodation start date or reason for the denial should be included.  Copies of all material should be included in the employee files.  Make copies of all information.
  1. Review, Modify and Evolve: Just as we manage PFL and FMLA claims, we need to continue to review open accommodation cases, in the event accommodation requirements change, we need to be aware of these changes. Work with the employee and health care provider to ensure the communication channels remain open.
  1. Job Accommodation Network (JAN): “The Job Accommodation Network (JAN) is the leading source of free, expert, and confidential guidance on workplace accommodations and disability employment issues. Working toward practical solutions that benefit both employer and employee, JAN helps people with disabilities enhance their employability, and shows employers how to capitalize on the value and talent that people with disabilities add to the workplace.”[iii] This is a great resource with helpful information.  The forms, templates and accommodation recommendations are useful for all organizations.  Be proactive and strategic in your approach to accommodations.

Job Accommodation Network

Below are the links for upcoming training’s both in person and online webinars:

Upcoming Compliance Key Trainings

Elmira College: SHRM Certification Exam Prep Course- Fall 2018 & Spring 2019

Upcoming Compliance Online Training

Compliance IQ Webinar

– Matthew Burr, HR Consultant

[i] https://www.shrm.org/resourcesandtools/tools-and-samples/how-to-guides/pages/requestreasonableaccommodation.aspx

[ii] https://www.shrm.org/resourcesandtools/tools-and-samples/how-to-guides/pages/requestreasonableaccommodation.aspx

[iii] https://askjan.org/about-us/index.cfm

7 Reasons to Implement Stay Interviews in Your Organization

What is a stay interview?  “A stay interview is a structured discussion a leader conducts with an individual employee to learn specific actions the leader can take strengthen the employee’s engagement and retention with the organization.”[i]  What is the value of the stay interview?  The organization hears directly from the employee in a one-on-one discussion (not related to performance), with any issues, concerns and opportunities leadership improvement.  This provides us as leaders the opportunity to engage, communicate and retain the workforce.  The stay interviews should be conducted by the leader of the organization, with HR’s support.  I have used effectively used stay interviews.

Below are the thoughts on implementing stay interviews:

  1. Start at the Top: The leader at the top of the organization should set the tone for the organization and conduct stay interviews with their direct reports.  The process should cascade down throughout the rest of the organization to front-line supervisors and employees.  Employees at every level should take part in a stay interview, to ensure an effective and successful process.
  1. In Person: Stay interviews should not be conducted over the phone or via a video conferencing system, if possible. Remote workers should have the opportunity to sit one-on-one with their supervisor and have a discussion.
  1. Expectations of the Stay Interview: Ensure the employee understands the reason for the stay interview and how these interviews will focus on area’s that the manager can influence.  Not all of us can change company policy, mission statements and strategic goals.  However, if a trend in these interviews is consistent, we might have more say in strategic objectives.
  1. Schedule Time: “Most stay interviews take 20 minutes or less to conduct, but some will carry on longer. Leaders should consider telling employees to allow 20 minutes for their meeting, but even then, leaders should allow thirty minutes on their calendars.”[ii] Treat the employee as you want to be treated during the stay interview.
  1. Leave Performance Out of It: There is a time and place to discuss performance expectations. Stay interviews should remain focused on engagement, retention feedback, communication and concerns.  Scripted open ended questions are necessary.
  1. No Advanced Questions: This can limit the conversation to a list of memorized demands and responses. Open ended discussion with note taking, listening and probing for additional information will add tremendous value to the stay interview.
  1. Opening Script: The pre-drafted script is a great way to open the meeting. This will provide additional information to the employee on what the process will look like and the direction of the interview.  The messages will be consistent throughout the organization.

The Why of Stay Interviews:

  • “Employees hear directly from their supervisor that they care and want them to stay and grow with the company.
  • Supervisors further accept retention and engagement within their sphere of responsibility.
  • Employees are more likely to accept responsibility for staying.
  • Stay interviews build trust.”[iii]

Stay Interview Draft Template:

To open the stay interview, a manager may use the following (or similar) statements:

  • I would like to talk with you about the reasons you stay with ____, so I understand what I might be able to do to make this a great place to work.
  • I’d like to have an informal talk with you to find out how the job is going, how the job will change, so I can do my best to support you as your manager, particularly with issues within my control.
  • I will be taking notes throughout our discussion and might ask you to repeat yourself if I do not capture everything.
  • Do you have any questions before we get started?

Review Job Description and Changing Expectations

  • These are the current changes to the job description
  • These will be the changes to the position and current expectations/accountabilities
  • Discuss the reporting structure
  • Communication expectations
  • System reporting expectations
  • Do you have any questions or concerns?

Questions

The following are questions you may ask during a stay interview. You should have several open-ended questions on hand. It’s important to listen and gather ideas from the employee about how you and your organization can retain him or her.

  • Tell me specifically, what factors cause you to enjoy your current job and work situation (including people, job, rewards, job content, coworkers, management etc.), and as a result, they contribute to your staying at our firm as long as you have?
  • What gets your excited to come to work here every day?
  • What do you look forward to when you come to work each day?
  • What do you like most or least about working here?
  • What keeps you working here?
  • If you could change something about your job, what would that be?
  • What would make your job more satisfying?
  • How do you like to be recognized?
  • What talents are not being used in your current role?
  • What would you like to learn here?
  • What motivates (or demotivates) you?
  • What can I do to best support you?
  • What can I do more of or less of as your manager?
  • What can we be doing differently as a management team?  Communication, meetings, etc.
  •  If you “managed yourself,” what would you do differently (in relation to managing “you”), that I, as your current manager, don’t currently do?
  • What might tempt you to leave?

Below are the links for upcoming training’s both in person and online webinars:

Upcoming Compliance Key Trainings

Elmira College: SHRM Certification Exam Prep Course- Fall 2018 & Spring 2019

Upcoming Compliance Online Training

Compliance IQ Webinar

– Matthew Burr, HR Consultant

[i] https://www.shrm.org/resourcesandtools/hr-topics/employee-relations/pages/stay-interview-how-to-core-features-and-advantages.aspx

[ii] https://www.shrm.org/resourcesandtools/hr-topics/employee-relations/pages/stay-interview-how-to-core-features-and-advantages.aspx

[iii] https://www.shrm.org/resourcesandtools/hr-topics/employee-relations/pages/stay-interview-how-to-core-features-and-advantages.aspx

6 Final Guidance Updates to the New York State Sexual Harassment Prevention Laws

As we are all aware, in August 2018, the state published drafts of guidance materials concerning the new legislation, including a model sexual harassment prevention policy, a model complaint form, and model training materials. The state accepted public comments on these materials and, in the October 1, 2018 final guidance, made several changes as a result. On October 1, 2018, New York State released final guidance on the state’s new sexual harassment prevention laws. The new legislation requires all employers in New York State to publish policies concerning sexual harassment, adopt a sexual harassment complaint form, and conduct sexual harassment training.

 Below are final guidance updates:

  1. Employers have additional time to ensure all employees receive the required sexual harassment training. Training must now be completed by October 9, 2019, rather than the original January 1, 2019 deadline.
  1. New hires must be trained “as soon as possible.” Previously, the draft guidance specified new hires should be trained within 30 days of their start date.
  1. The model sexual harassment prevention policy was modified in several respects, including:
    1. The definition of harassment was amended to include harassment based on “self-identified or perceived sex” and “gender expression.”
    2. “Sex stereotyping” was added as an example of sexual harassment.
    3. The language concerning investigations was softened, with the policy now noting the investigation process “may vary from case to case.”
  1. The model complaint form was shortened to omit questions concerning whether the employee filed an external complaint or retained an attorney
  1. The training, which may be presented to employees individually or in groups; in person, via phone or online; via webinar or recorded presentation, should include as many of the following elements as possible:
  • Ask questions of employees as part of the program;
  • Accommodate questions asked by employees, with answers provided in a timely manner;
  • Require feedback from employees about the training and the materials presented.
  1. The training must:
  • Be interactive;
  • Include an explanation of sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights;
  • Include examples of unlawful sexual harassment;
  • Include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to targets of sexual harassment;
  • Include information concerning employees’ rights of redress and all available forums for adjudicating complaints; and
  • Include information addressing conduct by supervisors and additional responsibilities for supervisors.

The tools and resources that were released on October 1 include:

  • Updated website with resources for employers, employees, state contractors and targets of sexual harassment
  • Updated model sexual harassment prevention policy
  • Updated model sexual harassment complaint form
  • Updated model training (script book and PowerPoint presentation)
  • Updated minimum standards for sexual harassment prevention policies and trainings
  • Updated FAQs
  • Toolkits for employers and employees and a sexual harassment prevention policy poster are also being made available.

Sexual Harassment in the Workplace 

Employer Resource Link

Frequently Asked Questions Link

Below are the links for upcoming training’s both in person and online webinars:

Upcoming Compliance Key Trainings

Elmira College: SHRM Certification Exam Prep Course- Fall 2018 & Spring 2019

Upcoming Compliance Online Training

Compliance IQ Webinar

-Matthew W. Burr

5 Considerations When Giving a Reference

As we all know, when an employee leaves an organization, it isn’t always on a positive note.  Through a resignation or termination, the employment relationship ends, positive or negative, good or bad.  As previous employer’s we are conflicted on what information to provide about the current or former employee during the reference or background checking processes.  Should we tell the new organization the employee was terminated or a poor performer?  Should we tell the new organization that the employee caused conflict and drama or didn’t show up for work on time, missed days, quality issues, etc.?  What if there was a workplace violence issue?  The standard answer for most organizations is; date hired, last position held and last day worked.  What if the new organization questions you, the old employer if the person is eligible for rehire or if you would hire them again?  What do we do then?  In many situations, these are not easy questions to answer.

The five considerations when giving an employment reference:

  1. Applicable state legislation: Many states now have legislation that gives employers “qualified immunity” when we as former employers are providing reference information. “That means you’re protected from civil liability if you’re responding in good faith-in other words, without knowingly providing false or misleading information or acting with malicious intent.”[i]  What does that mean for us in New York State?  “Currently (2005 article), New York employers have a qualified privilege defense available to them when they provide information regarding an employee or former employee’s character…New York has not adopted a reference check immunity law…reference check immunity laws do not protect employers against claims that negative job references were given in retaliation for protected activity under discrimination laws.”[ii]  As of 2005, there were thirty states that had adopted reference check immunity laws, which vary widely throughout the country.  If you have former employees moving to another state, know the state laws prior to providing reference checks or additional information about the employment relationship.

 

  1. Control the Information: The Society of Human Resource Management recommends that we as employer’s limit who can and cannot give references and what information can be provided. It should be the responsibility of the HR professional, manager, general manager, office manager, business owner, etc.  Someone designated with authority that can speak to the employment relationship.  This will ensure consistency in the process throughout the organization.

 

  1. Consistency in the Process: Reference requests should follow the same process for all current or previous employee’s.  “All disclosures should be made only in writing and only upon written request from the prospective employer and with written permission from the employee.”[iii]  Companies are now outsourcing the reference check processes, which ensures consistency.  However, this provides limited information for the future employer.

 

  1. Relevant Facts: Do not give opinions about the employee’s suitability for a prospective job or new position. Even if the employee was an underperformer at your organization, they could be a great fit for the new position.  Use only documented evidence on job performance, when sharing with the prospective employer.  Less said, better defended!

 

  1. Employee Permission: It is recommended that all job candidates complete an application form that includes a release for employers from which they have added as a reference. This form should be consistent across the organization, to ensure equity and avoid discrimination charges.  I recommend obtaining this prior to releasing any information about the current or former employee.

 

As leaders, we need to ensure we are consistent when providing references for all our employee’s; past, current and future workforce.  Updating policies, procedures and processes will provide the foundation on which we can build a consistent process for reference checking and verification.  Documenting work performance and accurate performance reviews will help in providing accurate and relevant work-related information.  Remember that state laws will vary on qualified immunity legislation and these laws like most other’s will continue to evolve through court decisions and the legislative process.  Seek guidance if you are confused or need assistance developing or revising a process.  Be consistent, equitable, stick to the facts and control the information your organization provides during a reference check.

-Matthew W. Burr

[i] https://www.shrm.org/hr-today/news/hr-magazine/0418/Pages/when-giving-references-how-truthful-can-you-be.aspx

[ii] https://nys.shrm.org/sites/nys.shrm.org/files/ReferenceChecking.pdf

[iii] https://www.shrm.org/hr-today/news/hr-magazine/0418/Pages/when-giving-references-how-truthful-can-you-be.aspx