June 2014 Compliance and Culture Newsletter

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

“Why fit in when you were born to stand out?” – Dr. Seuss

This issue discusses:

  • Editor’s Column: So Who Will Get the Raise?
  • The Art of Networking
  • EEOC Releases White Paper on Retaliation Law
  • General Safety Obligations for Employers
  • Fundamentals of ADA Accommodation
  • Growing Concerns about Employee Retention
  • Employee Challenges with Online Privacy
  • Attorney Gets Caught in a Conflict of Interest
  • 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: So Who Will Get the Raise?

Last year the consumer price index increase was 1.6%. It is scheduled to be closer to 2% in 2014. Therefore, if an employee wants to get ahead in life they need to get a raise of at least 2%

According to a survey by Towers Watson Data Services employers are planning to increase wages an average of 2.9% in 2014. These increases won’t be distributed evenly. Those employees considered to be top performers or in top demand will receive the lion’s share.

Employers can make a big mistake by looking at their historical compensation patterns. Perhaps the most important question to ask is “what would you have to pay to hire that employee today?” It is the marketplace, not your compensation scheme, which defines a fair day’s pay.

Before anyone gets a raise they should be asked to explain how they’ve added more value to the company. One reason we designed the form Why I Deserve a Raise. When you think about it, a raise should be given any time an employee has added new value and you’ve got the cash flow to afford it. Waiting around for an annual comp discussion is yesterday’s thinking.

The Art of Networking

An excellent article in the December issue of Success Magazine talked about the “Monchu Method” of networking. This methodology requires only 20 minutes a day. The essential steps are:

  1. Map your Monchu – These are people you:
  • Want to help succeed
  • Feel you can help succeed
  • Care about who can use the help of people you know
  1. You serve your Monchu 20 minutes per day by:
  • Spending 10 minutes reaching out to people you think you can help by providing any assistance, advice, or resources you can offer.
  • Spending 5 minutes asking people whose feedback you value some questions that would help you better understand your next step in business.
  • Spending 5 minutes introducing people you know among your circles.
  1. Begin a communication flow – very simply, you go first.
  2. Give first – This is the ancient wisdom of “give and you shall receive.” In Robert Cialdini’s book Influence he talks about the emotional power of receiving a gift and the desire to reciprocate. Tap into this need.
  3. Build a daily habit – That means you put 20 minutes on the calendar and make no excuses for not doing it. Daniel Goleman say, “For leaders to get results they need three kinds of focus: Inner focus, which attunes us to our intuition and guiding values. Other focus, which enhances our connection with people in our lives. And outer focus, which lets us navigate the larger world. A leader tuned out of his internal world will be rudderless; one blind to the world of others will be clueless; those indifferent to the larger systems in which they operate will be blind-sided.”

EEOC Releases White Paper on Retaliation Law

Since 2007 retaliation has been the fastest growing of all EEO claims. Roughly 42% of all new claims filed allege some form of retaliation. The EEOC released a white paper on retaliation law written this past summer. It is clear they are not in favor of the “but for” standard set forth in the US Supreme Court case of University of Texas Southwestern Medical Center v. Nassar.

It is instructive to understand some of the factors considered when deciding if an action is retaliatory:

  1. An action is considered retaliatory if there is adverse treatment, which they define as an action “reasonably likely to deter protected activity by the individual or other employees.” (A broad standard.)
  2. Direct evidence of a retaliatory motive may be any policy or statement made by the employer that facially shows a bias against a protected group and is linked to the adverse action.
  3. Evidence of temporal proximity of the adverse action to the protected activity (usually interpreted as one to three months afterwards).

Employers will continue to be pressured by employees who fail to perform but when pushed to do so claim unequal treatment based on some form of discrimination. Every action after that will be viewed under a microscope.

General Safety Obligations for Employers

OSHA laws apply to every workplace. Here are the primary employer responsibilities according to OSHA:

Employers must provide their employees with a workplace that does not have serious hazards and follow all OSHA safety and health standards. Employers must find and correct safety and health problems. OSHA further requires employers to eliminate or reduce hazards first by changing working conditions rather than just relying on masks, gloves, ear plugs or other types of personal protective equipment (PPE). Switching to safer chemicals, enclosing processes to trap harmful fumes, or using ventilation systems to clean the air are examples of effective ways to get rid of or minimize risks.

Employers must also:

  • Inform employees about hazards through training, labels, alarms, color-coded systems, chemical information sheets and other methods.
  • Keep accurate records of work-related injuries and illnesses.
  • Perform tests in the workplace, such as air sampling required by some OSHA standards.
  • Provide hearing exams or other medical tests required by OSHA standards.
  • Post OSHA citations, injury and illness data, and the OSHA poster in the workplace where workers will see them.
  • Notify OSHA within 8 hours of a workplace incident in which there is a death or when three or more workers go to a hospital.
  • Not discriminate or retaliate against a worker for using their rights.

Note that if you are in the states listed below you must also comply with state laws and regulations. To get more info go to OSHA, your state OSHA site, or the BNA State Law Summaries on HR That Works.


Fundamentals of ADA Accommodation

wheelchairGiven the ever-expanded concept of what constitutes a disability, employers will continue to face an ever-growing compliance challenge. Here are some basics to be remembered:

  1. Knowledge of the need to accommodate an employee can come from numerous sources including a work comp claims manager, a company supervisor or manager, HR, the employee themselves, a union rep, a doctor, poor performance, simple observation, or some kind of hotline call.
  2. To have a good process, it must be laid out step-by-step with supporting documentation.
  3. Be interactive. Remember the rule that the first to give up on the dialogue process generally loses.
  4. Have appropriate education and training. For example, HR could create a simple video to help employees with the accommodation process.
  5. Allow managers to engage in simple, easy, and quick accommodations.
  6. Proper documentation of all steps in the process.
  7. Ongoing communication, monitoring, feedback, and improvement.

The accommodation process begins with a needs assessment. This means a thorough review of the job description and duties and a clear understanding of the employee’s limitations, including potential absences, etc. Remember you can accommodate an employee by the following means:

  • Changing facilities or equipment
  • Job restrictions
  • Modifying schedules
  • Modifying a test, training, or policies
  • Offering vacant positions within their skill range
  • Offering temporary positions (the ADA does not require you to create a new position for an employee)
  • Support including readers, interpreters, or even dogs
  • A leave of absence
  • Any other idea that would generate a reasonable accommodation

Proper documentation of any undue burden

One of the biggest mistakes an employer makes is to assume in advance that an accommodation would create an undue burden. If the request is reasonable, the best approach is to let the employee try it and to be clear about performance standards. Document any shortcomings the accommodations may be causing and continue to communicate about ways to elevate them.

There is extensive material on the ADA on HR That Works including flow charts, checklists, forms, and policies to use. There is also training you can provide your managers (a good idea). Also, if you have more than 50 employees the FMLA may allow an employee who has serious medical condition up to 12 weeks of leave which they may use instead of accepting an accommodation.

Growing Concerns about Employee Retention

Over the years we have surveyed the thousands of companies that use HR That Works. Hiring somebody they can trust has been the number one concern of most companies. The second and third concerns have everything to do with the economy. Prior to the 2009 recession, employee retention was the second greatest concern with employee productivity being the third. Once the recession hit and everybody began hanging on for their dear lives, retention slipped into third place with productivity being the second greatest concern in the squeeze economy.

retentionIn last year’s survey retention climbed back into second place, once again indicating its bellwether position. Not only are employers concerned about retention, it’s hiding behind the fact they are having difficulty finding quality employees despite continued high unemployment levels.

More than ever, employers must do a good job of employee retention. The greatest factors in retaining your experienced employees are the opportunity for advancement and the relationship they have with their immediate boss. What it takes to advance an employee’s career should not be a mystery at your company. I encourage our members to go to O*NET and consider looking at their career ladder tools and modifying them for your organization. Don’t force employees to either guess about what the career ladder is or have to ask you to find out. Tell them. Let them know what the opportunities are and what skills and experience will be required for them to reach the next level. If you are at a smaller company, don’t let the lack of advanced job titles hinder career growth. Perhaps making up a new job title is better than telling an employee there is no room for advancement. There should always be room for advancement for excellent employees.

When it comes to the relationship with the boss, the question is simple: Does the boss spend any time showing the employee he or she cares about them? Most bosses are running for their lives and spend more time dealing with the dramas created by the 20% non-producers than nurturing their top talent. There can be no greater mistake. All of your managers should have a plan for how they will help increase the quality of relationship between them and their top performers. That plan should include discussing job performance, career advancement, and compensation opportunities.

HR That Works Members should use the How to Keep Great Employees Training Module with its related forms, audits, videos, and more. Look at this month’s Form of the Month: The Employee Retention Program Possibilities Spreadsheet which will provide plenty of ideas for a retention program.

Employee Challenges with Online Privacy

According to a survey by PEW Research Center of 792 Internet users there were the following statistics:

  • 21% had email or social networking accounts compromised or taken over by others without permission.privacy
  • 12% were harassed online.
  • 11% had personal information stolen, including Social Security numbers and credit card information.
  • 6% lost money in online scams.
  • 6% suffered damages to their reputation.
  • 4% were led into physical danger because of something that happened online.

Here’s a fact not mentioned by the survey: These are the same internet users that work at your company! Your employees are having these exact challenges. And, many times they spread to the workplace. If you haven’t already done so, watch the webinar or read the report on Social Media Risks. It would be a great employee benefit and smart management move to have your head of IT educate your workforce on how to prevent these risks.

Attorney Gets Caught in a Conflict of Interest

In the California case of Yanez v. Plummer the plaintiff, Michael Yanez, sued his former employer, Union Pacific, for wrongful discharge and their in-house council for legal malpractice, breach of duty, and fraud. To make a long story short, Yanez was working with another machinist (Garcia) replacing locomotive motors. While Yanez was operating a piece of machinery Garcia was injured while retrieving a dropped tool. Yanez provided two witness statements to management. The first was a short one which stated that the injured employee had slipped and fell on a concrete floor, soaked in oil and grease. When asked to create a longer written statement he said “I saw Bobby slip and fall down on an oil slicked floor.” In a deposition involving the injured employee’s workers compensation claim, Yanez admitted he did not see Garcia fall but only saw him after he had fallen. The corporate attorney gave Yanez no opportunity to explain the discrepancy between his deposition testimony and his second statement and the company’s attorney left him out to dry. Because of this conflicting testimony Yanez was fired for dishonesty.

The court stated that in this unique circumstance Yanez should have been informed by the attorney there was a potential conflict of interest. As stated by the court, “Evidence shows that Plummer played a substantial role, during Yanez’s deposition in the Garcia case, in uncovering the deception Union Pacific charged against Yanez’s and without that depositional testimony, Yanez would not have been charged with dishonestly, the deposition triggered the charge and the charge resulted in Yanez’s termination. This evidence presents a triable issue of material fact that but for Plummer’s alleged malpractice, breach of duty, and fraud, Yanez would not have been terminated.” The court refused to create a general rule that anytime an employee’s testimony could affect their job status there is automatically a conflict of interest.

What should a company do? The company should make sure its attorney informs any witnesses their representation could cause a conflict of interest and that if the employee wants to be represented while testifying in a deposition or court hearing or another matter by their own counsel they have the right to do so. Otherwise by requesting representation they should waive any conflict of interest.

Question of the Month

hiring-questionsQ: We have an employee who is on disability leave due to a workers compensation injury, and the employee is not eligible for FMLA/CFRA. Our organization began offering medical benefits in June of 2013, and this is the first instance where an employee on leave with medical benefits has not met the eligibility requirements for FMLA/CFRA. How long is the company required to continue the employee’s group medical benefits before offering COBRA?

A: The general rule is if the injured employee is not eligible for FMLA, a reduction in hours due to a job-related injury is considered a “qualifying event” for COBRA. Collective bargaining agreements and other employment policies may affect this right. It’s also a policy issue. For example, does your health plan/policy provide that only active employees are covered? You should review your health insurance contract regarding who is eligible for health insurance under the plan. If your plan and policies state that employees on a leave of absence will continue to have employer contributions made toward their health coverage, then you must comply with those provisions. Also, how you have treated other inactive workers in the past may be a factor.

Form of the Month

Retention Program Possibilities (PDF) – A laundry list of possibilities with an easy method for ranking their cost benefit.


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©2014 Reprinted with permission from HRThatWorks.com, a powerful program designed to inspire great HR practices.

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