February 2014 Compliance and Culture Newsletter

February 01, 2014
Filed under: Newsletters, Podcast / Tags: HR

“Your personal brand is what people think of you. Everyone has a brand.” –Larry G. Linne
“Boring is not a brand.” – Don Phin

This issue discusses:

  • Editor’s Column: Should Employers Pay for Employees’ Obesity?
  • Concerns of Corporate Counsel – Can HR Help?
  • Watch Out for Those Zombie Employees!
  • Employers Must Give Lactation Breaks
  • Motivating Entrepreneurial Employees
  • Doing Cool Things in HR
  • Employers Have Duty to Investigate Under FCRA
  • Question of the Month

We have also provided you with the Form of the Month.

Please click here to view the newsletter in PDF.

Editor’s Column: Should Employers Pay for Employees’ Obesity?

As a result to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) both the American Psychiatric Association (APA) and American Medical Association (AMA) now recognize obesity as a disease that requires medical and psychiatric intervention for prevention and treatment.

In a sense, the medical standard has expanded beyond morbid obesity to include one in three workers! It’s easy to see how the medical and drug community would like to expand their opportunities – and why the obese can be quick to claim that they have a disease for which they bear no responsibility. Combine this level of special interest groups working together with an aggressive EEOC, and you can expect to find many frustrated employers dealing with this issue.

Did you know that binge eating, formerly known as gluttony, is a mental disorder characterized by eating large amounts of food quickly at least once per week for three months? I don’t make this stuff up! How do you accommodate a person who shows up sick the day after one of these binges? Did you know that obesity is a defined primarily by body mass index (BMI), which is a far from accurate indicator of a person’s actual health?

It’s important to ask “Why should I have to accommodate (meaning pay for) an employee’s poor lifestyle choices?” The best justification the AMA could come up with is: “The suggestion that obesity is not a disease, but rather a consequence of a chosen lifestyle exemplified by overeating and/or inactivity is equivalent to suggesting that lung cancer is not a disease because it was brought about by an individual’s choice to smoke cigarettes.” My response is that employers should not have to pay for health consequences of employees who choose to smoke either.

Let’s hope that the EEOC will limit obesity accommodation protection to those who truly have an underlying medical disability and not self-imposed poor choices. Time will tell.

Concerns of Corporate Counsel – Can HR Help?

There is no substitute for HR having a good measure of business acumen. HR That Works Members should watch the Webinars we have done on this subject. A recent issue of Corporate Counsel Magazine gives you some of the risk concerns being addressed by corporate counsel across the country. These concerns include the following:

  1. Managing a recalcitrant board of directors.
  2. Preventing internal scandals, ethical compromises, and SEC violations.
  3. Protecting confidential and proprietary property of the company including patents, trademarks, and more.
  4. Deciding who to hire as outside council – Do they deal with the big firms and pay the big prices or do they play with boutique firms who have lower prices and perhaps greater service?
  5. Managing mergers and acquisitions.
  6. Managing compliance concerns.
  7. Social media exposures.
  8. Affordable Care Act changes.

HR would be wise to have a meeting with their corporate counsel to see what role they can play in developing risk reduction strategies in many of these areas.

Watch Out for Those Zombie Employees!

zombieThe Gallup 2013 Engagement Survey produced its usual morbid results. According to the survey, only 30% of employees are “actively engaged” (care about doing a great job every day). Another 52% are “not engaged” (otherwise known as “zombies”) and 12% are “actively disengaged” (purposely trying to work poorly, sabotage, cheat time, etc.).  In many cases, managers bear the responsibility for these unengaged workers either because they hired the wrong people or failed to provide effective leadership. However, assuming that management did not cause the problem, what can you do to improve the situation?

  1. The Actively Engaged – Learn what makes them tick! Thank them and let them know you love them. Find out how you can hire them at twice the rate. Leverage their enthusiasm to motivate the Zombies
  2. The Zombies – Give them something to be excited about, like a decent paycheck or a great company party. Then provide them with a sense of meaning in their daily work. Offer additional financial incentives.  Manage and coach them actively so they have no choice but to perform. You can also go to the Centers for Disease Control and Prevention web site on how to manage Zombies (http://www.cdc.gov/phpr/zombies.htm).
  3. The Actively Disengaged – If they walked off the job would you be upset—or relieved?  In the latter case, make sure you have checks and balances to get them off your bus now! Don’t hesitate to fire these people; the longer you keep them, the greater the risk they pose.

Finally, ask yourself what is motivating or demotivating about your company. Step back and become a keen observer of your own reality.

Employers Must Give Lactation Breaks

feedingThe Patient Protection and Affordable Care Act requires businesses covered by the Fair Labor Standards Act to allow mothers unpaid break time for nursing their child. All employers are subject to the Fair Labor Standards Act break time requirement unless they have fewer than 50 employees and can demonstrate that compliance would impose an undue hardship. This obligation lasts for at least one year after the child is born.

The law requires the company to provide a suitable location  (other than a bathroom) which is shielded from view and is free from intrusion, permit a reasonable break time given the circumstances, and let the worker take as much break time as she needs to express milk.  However, here’s little guidance on what constitutes a “suitable location” and the length of a “reasonable” break. For example, the Department of Labor suggests two or three 15-minute breaks during an eight-hour shift.  There’s also the matter of tracking for the employee’s time: Is she supposed to clock in and out for every nursing break – or can she coordinate a break with a meal or rest period?

To learn more, go to:

http://www.dol.gov/whd/nursingmothers/faqBTNM.htm, http://www.dol.gov/whd/nursingmothers/, http://www.dol.gov/whd/regs/compliance/whdfs73.htm, http://www.usbreastfeeding.org/LegislationPolicy/ExistingLegislation/tabid/233/Default.aspx, and finally, your BNA State Law Summary on HR That Works.

Motivating Entrepreneurial Employees

In a recent survey for the Inc. 500 Companies, entrepreneurs gave these reasons for wanting to work for themselves:

  1. Entrepreneurship has suited my skills and capabilities:  29%
  2. I wanted to be my own boss:  20%
  3. I had an idea I just had to try:  18%
  4. I wanted financial success:  11%
  5. I admired and wanted to emulate other entrepreneurs:  9 %
  6. Other:  13%

Employers are increasingly challenged to hire quality employees, especially those with an entrepreneurially bent.  The question is: why would somebody with these attributes rather work for you than start their own company? What can your business offer these people that they can’t provide for themselves?

Although some jobs (such as piloting an airliner), require working for a large business, many of today’s fastest-growing companies don’t fall into this category. I believe that today’s most successful companies understand that, instead of controlling people as “employees,” they need to liberate them as co-workers and team members. Ask yourself what you can do to help people do their brightest and best work while working for you.

Doing Cool Things in HR

In November I did a webinar on 10 Cool Things You Can Do to Inspire Your Workforce! In the course of that program I asked three polling questions, the results of which I’d like to share with you.

  1. Docool1 you do any cool videos? There’s an incredible opportunity to use video to help brand your company both for customers and internal purposes. Last month when I spoke to a CEO group and mentioned this opportunity, one of the CEOs (of an Internet marketing company) said that the most popular link clicked on a company’s website is the about link and the ones that get the most attention have videos on that page. When people are thinking about hiring you, working with you, or working for you, they’re going to look at your website. Make sure to have some video on it. Also understand that the video doesn’t have to be super high-end glossy stuff but, more importantly, it has to have the right feel. Have one of the 20-year-olds at your company take out their iPhone, shoot some cool video testimonials of employees talking about why they like working at your company, and then let them upload it to YouTube. You can also use cool videos for training. For example, you could have the entire management team do a very quick 3-minute introduction video that people can watch as part of the orientation process. Fact is, the ideas are endless in this area.
  2. cool2Have you stopped doing an uncool thing lately?
    I’m glad to see that at least 39% of the people said “yes.” Understand this, you cannot have more fun or make more money in your career unless you stop doing the uncool low-value work. This requires discipline. This requires time management. This requires clarity about who you want to be when you grow up and what you want to do when you get there. So again my question to you is: What uncool, low-value work will you stop doing today? How will you delegate it, outsource it, or eliminate it?
  3. Lastly, how much fun do you have at your company? Life’s too short not to have fun. When I do my workshops, I ask people if anybody in the audience doesn’t want to have fun doing their jobs. I then ask them what effort they are making to have fun in the job. Just what would it take to “whistle while you work”? Again, this is about the choices we make. If we choose to have a fun work environment then, guess what? We will have a fun work environment. If 16% of companies can say their workplace is always fun then what’s stopping everyone else? Interestingly, many of the participants wanted to know what companies represented those 16% to they could find out how to get a job there.cool3

Unfortunately, most employees and management view HR as boring. If you want to change that perception then it’s time to start doing something cool and stop doing that which is uncool.

Employers Have Duty to Investigate Under FCRA

Employers may be liable to former employees under the Fair Credit Reporting Act (FCRA) for failing to investigate a complaint that false or incorrect information was provided to a consumer reporting agency.

courtFacts of the Case: Most employers are aware that they must comply with FCRA’s notice and authorization requirements when they obtain background checks for applicants and employees from a third-party consumer reporting agency. What many do not know, however, is that there are certain obligations that FCRA imposes on employers as to former employees, as illustrated in Maiteki v. Marten Transportation, Ltd. et al.

Three former employers of a truck driver reported inaccurate negative information about the driver’s accident record to a consumer reporting agency. Because of the negative reports, prospective employers refused to hire the driver. When the driver first discovered the inaccurate information, he contacted his former employers and asked them to correct it. He was told by each of them that they would investigate and remove the false reports, but none of them did so. This resulted in further rejections of employment, which caused the driver to repeat his requests to his former employers, again to no effect. He also contacted the consumer reporting agency, which followed up with one former employer. No corrections by the former employers were ever made. The driver then sued each of his former employers under FCRA.

The Court’s Ruling: The federal district court found that FCRA does not provide a cause of action against former employers for providing false or inaccurate information to a consumer reporting agency. If an employer is informed by a consumer reporting agency that there is a dispute about the accuracy or truthfulness of information that they have provided to the agency, however, FCRA does impose an actionable obligation on employers to “conduct an investigation with respect to the disputed information.” In this case, it appears that each of the former employers failed to meet this obligation.

Lessons Learned: Employers should be careful to provide accurate and truthful information about former employees to a consumer reporting agency. (This information may include driving records, licensing, salary, termination information, etc.) In addition, if an employer receives a complaint that the information provided is not correct, it is important for that employer to investigate the complaint and make any necessary corrections promptly.

Article courtesy of Worklaw® Network firm Shawe Rosenthal (www.shawe.com).

Question of the Month

hiring-questionsQ: We have an employee who is interested in joining the Army, and becoming a reservist. Everything I read regarding USERRA appears to apply only to those employees who are already reservists or veterans. Is there any job protected leave/benefits/etc. as it relates to an employee who wants join the armed forces and become a reservist?

A: USERRA prohibits employment discrimination against a person on the basis of past military service, current military obligations, or intent to serve in a “uniformed services”.

Uniformed service includes active duty, active duty for training, inactive duty training (such as drills), initial active duty training, and funeral honors duty performed by National Guard and reserve members, as well as the period for which a person is absent from a position of employment for the purpose of an examination to determine fitness to perform any such duty.

USERRA provides that returning servicemembers are to be reemployed in the job that they would have attained had they not been absent for military service, (the “escalator” principle), with the same seniority, status and pay, as well as other rights and benefits determined by seniority. USERRA also requires that reasonable efforts (such as training or retraining) be made to enable returning servicemembers to qualify for reemployment. If the servicemember cannot qualify for the “escalator” position, he or she must be reemployed, if qualified, in any other position that is the nearest approximation to the escalator position and then to the pre-service position. USERRA also provides that while an individual is performing military service, he or she is deemed to be on a furlough or leave of absence and is entitled to the non-seniority rights accorded other similarly-situated individuals on non-military leaves of absence. The time limits for returning to work are as follows:

  • Less than 31 days service: By the beginning of the first regularly scheduled work period after the end of the calendar day of duty, plus time required to return home safely and an eight hour rest period. If this is impossible or unreasonable, then as soon as possible.
  • 31 to 180 days: The employee must apply for reemployment no later than 14 days after completion of military service. If this is impossible or unreasonable through no fault of the employee, then as soon as possible.
  • 181 days or more: The employee must apply for reemployment no later than 90 days after completion of military service.
  • Service-connected injury or illness: Reporting or application deadlines are extended for up to two years for persons who are hospitalized or convalescing.

Health and pension plan coverage for servicemembers is also addressed by USERRA. Individuals performing military duty of more than 30 days may elect to continue employer sponsored health care for up to 24 months; however, they may be required to pay up to102 percent of the full premium. For military service of less than 31 days, health care coverage is provided as if the servicemember had remained employed. USERRA pension protections apply to defined benefit plans and defined contribution plans as well as plans provided under federal or state laws governing pension benefits for government employees. For purposes of pension plan participation, vesting, and accrual of benefits, USERRA treats military service as continuous service with the employer.

With some exceptions, a service member loses his re-employment rights if his cumulative military service is more than 5 years.  There are important exceptions to the five-year limit, including initial enlistments lasting more than five years, periodic National Guard and Reserve training duty, and involuntary active duty extensions and recalls, especially during a time of national emergency. USERRA clearly establishes that reemployment protection does not depend on the timing, frequency, duration, or nature of an individual’s service as long as the basic eligibility criteria are met.

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