5 Elements of Due Process

As organizational leaders, we have the complex task of managing the workforce, coaching and counseling, disciplining, and at times, discharging employees.  Conflict resolution is never easy, but necessary, for the workforce, employee morale and the organization.  Avoiding difficult discussions or not addressing employee relations issues, can and will impact the organization.  We need to be consistent and fair for all employees, while providing a due process for discipline to potential discharge.

Below are 5 elements of due process:

  1. Expectations and Consequences: Communicating expectations, consequences and performance standards to the employee or workforce is the first step in the process.  The write-up should document a performance problem, consequences of not meeting expectations and all metrics associated with the performance problem.  Follow-up dates and action items are great to include in the first step.
  2. Consistency: We need to treat all workers with consistent and fair rules.  If we discipline one employee for a performance issue, all employees with the same issue should be disciplined.  Inconsistent practices can lead to legal issues, employee moral issues, turnover and internal conflict.
  3. The Discipline Must be Appropriate for the Offense: Review the “big picture” prior to making a decision on discipline and probable cause for termination.
  4. Employee Response: The employee should be given the opportunity to respond during any investigation or administration of discipline.
  5. Time to Improve Performance: If your organization is using progressive discipline, we do need to allow the employee time to improve performance.  However, certain situations will dictate decisions regarding performance improvement plans and immediate termination.  These situations need to be consistent and fair, throughout the organization.

Coaching and counseling, disciplining or terminating an employee is never an easy decision, but one that is necessary for the organization and rest of the workforce to grow and succeed.  The definition of due process is an area we should design our policies and procedures around.  Remember, as the employer, you have the right to change the policies.  We need to ensure we communicate the changes to the workforce.  Also, keep in mind Employment-At-Will doctrine, laws and regulations.  This can vary, state to state and union versus non-union employers.  Seek guidance if you need assistance on coaching, counseling, disciplining or terminating an employee.  How we communicate the action/decision can have an impact.

4 Considerations for an I-9 Compliance Audit

With changing legislation surrounding Form I-9 compliance, organizations need to be proactive, to ensure accurate record keeping on all required documentation.  This includes auditing I-9 records every few years, to ensure all information is up-to-date and forms are correctly filled out.  The U.S. Department of Homeland Security’s Immigration and Customers Enforcement (ICE) has the legal right to review your organizations I-9 records at will.

Below are 4 considerations for an I-9 compliance audit:

  1. Fill Out All Sections Accurately: The basic information on the I-9 from should be filled out completely and accurately.  This includes; dates and names on all forms.  “A construction company was recently penalized $228,000 for multiple compliance violations…submitting I-9 forms for dozens of employees with incomplete Sections 1 and 2.”[i]  Take the time to review instructions and ensure that the employee has filled out the form properly.  If not, correct the issues.
  2. Employee Roster Information Updates: Ensure you have an accurate headcount list of current and past employees, prior to beginning an audit.  Remember, employees hired after November 6, 1986 must have an I-9 on file.  If an employee is missing an I-9, the organization must obtain one as soon as possible.
  3. I-9 Documentation: “Documentation for former employees is only needed for one year after separation or three years from date of hire (whichever is later), so no need to clutter your files with unnecessary information.”[ii] Ensure that you are obtaining the required documentation from List A or List B and List C.
  4. Necessary Signatures: This is consistent with the requirements mentioned previously.  All forms need to be signed by an employer representative and the new hire employee.  This includes remote workers.  The process isn’t complete until the forms are verified for accuracy and contain the proper information with signatures.

The SHRM article quoted throughout, contains other examples of companies that failed to complete accurately and sign the I-9 forms and the fines for these violations.  The form contains directions for both the employer and employee.  Work through the steps and ensure that the forms are accurate and up-to-date, to protect the organization from any violations and fines.  If you have questions about mistakes or conducting an audit, seek guidance and be open to suggestions.  Proactive audits necessary to ensure compliance, as the laws and forms continue to evolve.  Remember, using the new I-9 form is required now and has been in effect as of September 18, 2017.  The link to the new form and other instructional information is here: Updated Form I-9

[i] https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/prepared-for-i9-compliance-audit-ice.aspx

[ii] https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/prepared-for-i9-compliance-audit-ice.aspx

 

6 Ban the Box Laws in New York and Pennsylvania

Some employment applications ask about criminal convictions for prospective employees, either written or on the online application.  Ban the box legislation changes, have made it illegal for employers to ask prospective employees and job applicants certain questions related to criminal convictions (in certain cities and states), until the interview stage or until a conditional offer of employment is made.  The rules within the jurisdiction vary, based on location and legislative requirements.  Yes, that means more complexity related to posting positions, recruiting and interviewing in certain cities and states.  “The trend of states and municipalities enacting these so-called “ban the box” laws is part of a movement to prevent employers from treating all criminal convictions as a sort of “Scarlet Letter” that has the effect of discriminating against minority applicants.”[i]  For the purposes of this article, we will focus on New York and Pennsylvania laws.

Below are 6 ban the box laws in NY and PA:

  1. NY-Buffalo: The law impacts private employers with 15 or more employees/contractors doing business with the city.  Banning criminal history questions on the initial job applications.
  2. NY-New York City: The law impacts all employers with four or more employees. No criminal inquiries prior to the conditional job offer.
  3. NY-Rochester: The law impacts all employers with four or more employees and contractors doing business with the city. No criminal history inquiries until after the initial job interview or conditional job offer.
  4. NY-Syracuse: The law impacts city contractors. No criminal history inquiries and background checks until after the conditional job offer.
  5. PA-Philadelphia: The law impacts all employers with at least one employee in the city. No criminal background checks prior to the conditional job offer.
  6. PA-Pittsburgh: The law impacts contractors and vendors doing business with the city. Banning criminal history inquires until the applicant is deemed otherwise qualified for a position.

The laws vary in the way they are written and the legal requirements for the employer in each location.  The laws vary throughout the country, based on state or city requirements.  Some states have no ban the box requirements, currently.  As leaders, we need to understand the laws and know that a recruitment plan, job application and interview/offer process, that works in New York, might not work in California or Minnesota.  Laws continue to evolve at both the federal, state and municipal level.  These laws impact the questions we can ask and the information we can request before, during and after the job interview.  If you have questions regarding Ban the Box legislation, seek for guidance.  Changes occur quickly, and impact businesses of all sizes.

[i] SHRM Legal and Compliance Tools/Resources

4 Tips Complying with State and Federal Workplace Safety Standards

Workplace safety rules and regulations continue to evolve at the federal and state level, just as labor and employment laws and regulations have.  As I have recently started revising a safety manual for a client, I now have a profound respect for workplace safety professionals.  Because laws and regulations do vary at both the federal and state level, we as leaders need to be aware of changes in legislation, that can and will impact our organizations.

Below are 4 tips on complying with state and federal workplace safety standards:

  1. Federal OSH Act: Passed in 1970, “covers most private employers and their workers. However, OSHA allows states to develop their own workplace health and safety plans, as long as those plans are “at least as effective” as the federal program.”[i]
  2. Multi-State Employers: Currently, twenty-one states and Puerto Rico have OSHA-approved plans that cover government employees at the state and local level, as well as private employers. Five other states and the U.S. Virgin Islands currently have plans that cover only state and local government employers.
  3. State Laws: States can have laws more stringent than the federal requirements and/or standards that are not addressed by federal OSHA. This is comparable to HR laws and regulations; minimum wage, paid family leave, exempt/non-exempt status, background checks, etc.  Review state and local requirements, as well as OSHA approved state plans.
  4. Compliance: Employers should review the federal requirements to ensure compliance and then review state compliance standards. “”Stay on top of the state plan regulations,” Martin said. “Assuming the state plan has the same regulations as federal OSHA may be a safe bet 80 percent of the time, but the differences can burn you.””[ii]

For Additional Information: OSHA State Plans Website

As we have seen under the current administration, laws and regulations continue to change.  This will have an impact on OSHA standards at the federal level.  Under the Obama administration, a law was passed that required certain employers to submit workplace injury and illness records through a portal on the OSHA website in July 2017.  The Trump administration pushed compliance back to December 1, 2017, to evaluate the rule and requirements.  Regardless, the electronic record keeping requirement can still be implemented at a state level, in certain states.  Be aware of these changes and recognize the impact they can and will have on your organization.  If you have questions, continue to seek guidance.

[i] https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/state-workplace-safety-standards-may-differ-from-osha.aspx

[ii] https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/state-workplace-safety-standards-may-differ-from-osha.aspx

 

4 Updates on the DOL Overtime Rule

I first want to highlight the background of the overtime rule, from 2016 through current day.  In November 2016, a district court in Texas blocked the overtime rule put forth under the Obama administration.  It was scheduled to raise the salary threshold from $23,600 to $47,476 on December 1, 2016.  Moving to current day, under the Trump administration, the decision was appealed, to better understand and determine the Department of Labor’s authority in setting salary thresholds.  The 2016 ruling is currently moving (slowly) through the litigation process.  However, the Department of Labor has suggested new and more complex alternatives to the salary threshold and overtime rule(s).

Below 4 on the DOL’s Overtime Suggestions:

  1. Request for Information: On July 26, 2017, the Department of Labor issued a request for information (RFI) during the overtime rule making process.  “The use of an RFI in the rule making process is optional but the DOL chose this option rather than immediately publishing a proposed rule in light of pending litigation over the 2016 overtime rule.”[i]  The RFI was published in the Federal Register and comments will be public record.

https://s3.amazonaws.com/public-inspection.federalregister.gov/2017-15666.pdf

  1. Cost-of-Living-Based Salary Test: This is comparable to what we have seen with minimum wage levels and exempt/non-exempt weekly rates, throughout New York City and New York State.  The suggested rates would vary based location and cost of living, a varying scale of exempt and non-exempt rates.  Living in Washington D.C. costs more than living in the rural south.  There will be significant challenges with this option, employees that travel, working in more than one location in different areas of the country.
  2. Litigation and Other Threshold Proposals: Continue to watch for any rulings in the current court proceedings on the Department of Labor’s authority in setting salary thresholds. Also, we could see multiple proposals throughout this process on overtime and salary thresholds, under the new administration.
  3. New York State Regulations: Regardless of changes made at the federal level, we will see changes in the minimum wage rate and exempt/non-exempt rates on January 1, 2018.  Exempt and non-exempt for the specific executive and administrative classifications.  Both increases/changes will vary by region, throughout the state.

 

The laws, regulations and salary thresholds will continue to evolve, through the litigation process by the Department of Labor, request for information proposal and rule making process under the new administration.  Ensure that your organization is compliant with state and federal laws regarding exempt, non-exempt and salaried non-exempt statuses.  There are duties tests to assist employers in determining overtime eligibility, published by the federal government.  If you are confused, seek guidance.  Certain positions can be confusing and determinations are complex.

 

 

– Matthew Burr, HR Consultant

 

 

[i] https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/ot-rfi-multiple-salary-levels.aspx

 

25 State Specific Labor Poster Changes

In February, I wrote a brief article regarding the six changes to the federal labor law poster penalties.  The fines associated with these changes and non-compliance (or not updating) with current labor poster regulations did increase.

Labor and employment regulations on these posters at both the federal and state level can and have changed during the year.  They do not always change at the end of or beginning of a calendar year.  As leaders, we need ensure these posters are updated timely with accurate information.  There are times when posting requirements will not change from year to year.  However, the changes we have seen over the past 2-3 years are significant.  Below are 25 state specific labor poster changes to be aware of in 2017:

25 Poster Changes in 2017.jpg

[i]

New York State minimum wage increased at the end of 2016 and will increase again at the end of 2017.  Remember that NYS Paid Family Leave might also be added to the posting requirements in 2018.  Many of our organizations operate in multiple states.  We need to ensure the labor posters are updated with accurate federal and state information.  An updated poster in New York State does not guarantee that the information in any other state of operation is up-to-date.  Review posters in all locations to ensure legal compliance.  Certain payroll companies will provide updated posters, based on the agreed upon contract.  There are services organizations can subscribe, to receive the updated posters when changes are made on the federal, state or local level.  If you are unsure on the legality of your organizations posters, seek guidance.  Do not assume it is up-to-date.  Buying a poster (or downloading the information for free) is much cheaper than paying a fine.  Audits and reviews are always helpful in understanding what changes need to be made!  The website below provides more information on state specific mandatory updates:

Posterupdates.com

 

– Matthew Burr, HR Consultant

 

[i] SHRM.org

New Form I-9 Issued in July 2017

It seems like we just had a new Form I-9 issued in November 2016, effective in January 2017.  We did.  The U.S. Citizenship and Immigration Services (USCIS) published an updated version of the I-9 Form on July 17, 2017.  This new form will be mandatory to verify employment eligibility on September 18, 2017.  The revised form issued on November 14, 2016 can be used through September 17, 2017.  The current storage and retention rules remain the same.  “The new version brings very subtle changes to the form’s instructions and list of acceptable documents, which were created with the theoretical goal of making the form easier to navigate,” said Davis Bae, managing partner of the Seattle office of law firm Fisher Phillips. “Besides changing the wording on the form in almost imperceptible ways, the new version renumbers all List C documents except the Social Security card, and streamlines the certification process for certain foreign nationals.”[i]

Download the new here: Form I-9: July 17, 2017

Below are six, common I-9 Questions:

  1. Returning Summer Employees: If you rehire an employee within three years of the date that a previous Form I-9 was completed, you may either complete a new Form I-9 for your employee or complete Section 3 of the previously completed Form I-9, as long as the original I-9 shows current work authorization.”[ii]
  2. Re-verify a Female Employee Upon Getting Married: There is no requirement to re-verify a female employee or any employee who has a name change, currently.  “One other interesting point about transgender employees: The “Other Names Used field in the form has been changed to Other Last Names Used” to avoid potential discrimination issues and provide increased privacy for transgender individuals and others who have changed their first names.”[iii]
  3. Scan I-9s and Store Electronically: Due to the complexity of the rules and regulations regarding electronic scanning of I-9 Forms, the Society of Human Resource Management (SHRM) recommends using a qualified vendor to store I-9 Forms electronically.
  4. End of Retention Period: Shred I-9 Forms at the end of the required retention period.  However, verify the retention period requirements prior to shredding any documents.
  5. Completion Date of I-9 Form: The form can be completed as soon as you offer an individual the job and the job is accepted. It is best practice to have the offer and acceptance in writing.  Remind employees to bring the required documentation on the first day of work, if you do not require completion prior to the first day.
  6. Expired Driver’s License with a Receipt for Extension:  This is not legal.  “You may accept a receipt for a driver’s license that was requested to replace a license that was lost, stolen or damaged.”[iv]

We have seen multiple revisions to the I-9 Form over the past 10-months.  Remember to use the correct form on the dates required.  Switching the form now will save you time in September 2017.  Review the latest identification requirements and know what is acceptable when you are filling out the form.  Remember to fill out the form completely and ensure that the employee fills in their sections completely, signs and dates.  If you are confused seek guidance, I-9 Forms have grown in complexity and length since 1986.

 

 

Looking for more fast, up-to-date HR advice?

Check out our new podcast, Upstate HR  Recruitment in the Modern Age

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 – Matthew Burr, HR Consultant

[i] https://www.shrm.org/ResourcesAndTools/hr-topics/talent-acquisition/Pages/USCIS-Issues-Revised-New-Form-I9.aspx

[ii] https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/tough-i-9-issues.aspx

[iii] https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/tough-i-9-issues.aspx

[iv] https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/tough-i-9-issues.aspx

 

5 Updates on Job Description

Job descriptions are an important part of the employment relationship.  Once we complete, modify or update the job description, we might assume that the work is done.  However; essential functions, duties, technology, responsibilities, etc. can and change throughout the employment relationship.  As leaders, we need to review job descriptions and ensure these documents are up-to-date with accurate responsibilities and essential functions.  The link at the end of the article provides additional information on legal cases in which a job description protected the employer and one that harmed the employer.

Below are 5 thoughts on job descriptions:

  1. Current and Accurate: Keep all job descriptions current and accurate.  These descriptions can be reviewed during the annual review process or throughout the year.  Ask the employee for input on duties and responsibilities.  They should know the job!
  2. Essential Job Functions: Ensure that the essential job functions section is accurate and up-to-date.  Physical skills should be included in the essential functions or in another area of the job description.  Is prolonged walking or standing an essential function?  What about lifting material?  How many pounds and how often?  This should also be included in the job description.  Do not forget time spent at a desk.  If the job requires 6-8 hours on the computer, this should be included.  This section can be lengthy or detailed.
  3. FMLA Leave: “If the job description is out of date when an employee seeks FMLA leave, create a current and accurate list of essential job functions, indicate in the designation notice that the employee will be required to submit a fitness for duty certification addressing his or her ability to perform his or her specific job, and provide the list of essential job functions with the notice.”[i]
  4. Approval and Signature: My recommendation is to have more than one individual review and approve the job description prior to finalizing the draft.  There should be a signoff/approval process to ensure we have not missed anything.  Once the description is approved, the employee should review and signoff on the job description.
  5. Internet Search: It is easy to search the internet and find thousands of job descriptions.  However, this does not mean the information is legal, up-to-date or fits the job within your organization.  O’net and SHRM are great resources when drafting or updating job descriptions.  These can be used as templates and resources, to help lay the foundation of a job description that fits the needs of your organization.

As jobs and responsibilities change, so too should job descriptions.  As leaders, we should ask for input when modifying and updating job descriptions, to ensure accuracy and employee engagement.  If you are unsure on where to begin or how to draft a job description, ask for assistance.  Do not assume an internet search will provide legal and accurate information.  The case below is an example of when an inaccurate job description harmed an employer and references a case in which a job description helped an employer.

SHRM Saved – Or Sunk – By the Job Description?

 

– Matthew Burr, HR Consultant

 

[i] https://www.shrm.org/ResourcesAndTools/hr-topics/talent-acquisition/Pages/Saved-Sunk-Job-Description.aspx

 

6 Thoughts for Non-HR Professionals

We recently completed an HR training in Dallas, Texas, for Non-HR MBA students.  The training focused on the key areas that HR can and does impact in any organization.  Throughout the training we discussed the importance of aligning the HR department with the needs of the employees and organization; not an easy task, but necessary to move forward and progress.  I know the group of 100 MBA students have a new respect for the many hats that HR professionals continue to wear.

Below are 6 thoughts for non-HR professionals:

  1. Organizational Impact: HR can and does have an impact on the direction and strategy of the organization.  The HR function is as important as any other function within the organization.  Know the impact HR can have on the organizations mission, vision, culture, goals and objectives.
  2. Legal Arena: Labor and employment laws evolve and they change rapidly.  Interpreting and implementing legal change, continues to grow in complexity.  Federal, state and local laws can have an impact on the organization.  Ask questions and never assume you have the answer, legislation is one piece.  Remember the case law and amendments.
  3. Onboarding: Onboarding begins when an applicant applies for a job.  This process is critical to recruit and retain top talent.  Managers, coworkers and direct reports have ownership in ensuring the onboarding processes are organized and aligned with the organizations mission, vision and values.  If you were a new hire, what would you expect from recruiting to hire?  Put yourself in their shoes and reverse engineer a great experience.
  4. Training and Development: Training and development are extremely important pieces of the employment experiences.  Have we asked what training is important to the organization?  To the employee?  What can we afford?  Is there grant money available?  What about leadership development training?  Look for local and national opportunities for industry and profession specific training and development.
  5. Performance Feedback: Yes, employees want feedback!  In fact, continuous coaching and feedback, more than once per year will probably be an effective model.  Goals should be aligned with organizations goals and department goals.  These goals should also include training and development opportunities; degree, certification, leadership development, computer system training, financial, stretch assignments, etc.
  6. Conflict Resolution and Communication: The final thought can be the most difficult.  Resolving conflict and ensuring effective communication.  Never easy, but necessary.  As leader’s we will be in situations that require us to have that “difficult” conversation.  Practicing these conversations is never enjoyable, at times necessary to ensure we are prepared.  Communication is essential.  Know your organization and which communication tools are effective for your workforce.

 

6ThoughtsforNonHrProfessionals

These six thoughts are just a few of the important pieces of HR that do and will impact your organization.  As leader’s we need to recognize how these pieces effect our mission, vision, values, culture and employees.  Turnover is costly.  Recruiting is costly.  Training and retraining is costly.  Understanding these six areas’ will take work, but being an effective leader takes work.  Ask for help if you need it, people spend their careers specializing in each of the six areas.  Strategic HR can shape the mission statement, vision, culture, employee engagement and values of any of our organizations.

– Matthew Burr, HR Consultant

4 Updates on The Strengthening Career and Technical Education for the 21st Century Act

Progress is being made.  On May 17, 2017, the House Education and the Workforce Committee voted unanimously to move The Strengthening Career and Technical Education for the 21st Century Act forward.  This new act “would provide federal funds to increase access to career and technical education (CTE) and, in particular, to extend such access to more students from disadvantaged communities.”[i]  As businesses needs have evolved, so too must the skills of our employees.  Skilled workers are needed in many industries throughout the country; manufacturing, construction, carpentry, healthcare, computer programming, engineering, auto mechanics, transportation, HVAC, plumbing, electric and welding.  The bill is designed for U.S. workers compete in a global economy.

Below are 4 updates on expectations and path-forward:

  1. Employers need to be involved in the training and education processes for current or prospective workers. “Organizations must ensure that state and local governments know what their skill needs are so that officials can create programs under this legislation.”[ii]  Do not be afraid to provide feedback on both the positives and negatives of a program.

 

  1. State and local governments would be responsible for crafting and designing programs that best fit the needs of employers in the local communities. Upon approval and implementation, state and federal governments would also have to submit results of the effectiveness of the CTE trainings to federal agencies. 

 

  1. In 2016, a similar bill went to the Senate, but ran out of time when it was delayed by debates over the education secretary’s role in deciding how states can potentially spend money under the 2016 proposed law. The role of the Senate debates or education secretary is yet to be determined on progressing the new bill forward and spending.   

 

  1. The legislation is focused on post-secondary training for trade jobs in the U.S., that do not require a four-year degree. The impact of this bill, if passed will be significant as there is a need throughout the country to have trained and skilled workers in many industries. 

The value of The Strengthening Career and Technical Education for the 21st Century Act, could have great potential for additional training’s in our area.  Remember, this is federal legislation and does not include any training funding from New York State.  The key to any legislation such as this is the effectiveness of the training.  As employer’s we need to offer feedback and input into these programs, while holding state and local government entities accountable.  Developing training takes a tremendous amount of resources, resources that we are paying for.  You get out what you put in.  The employees and/or potential employees do have responsibility in ensuring that the training is effective and successful as well.  We will continue to monitor the act as it progress through the different branches of government for any amendments or updates.    

– Matthew Burr, HR Consultant

 

[i] https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/bill-upskill-us-workers-carl-perkins-act.aspx

 

[ii] https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/bill-upskill-us-workers-carl-perkins-act.aspx