“Being the richest man in the cemetery doesn’t matter to me … Going to bed at night saying we’ve done something wonderful … that’s what matters to me.”  — Steve Jobs (1955-2011)

This issue discusses:

• Editor’s Column: Improving Employee Productivity
• Oklahoma Health Care Workers Get More Than $244,000 in Back Wages
• Sage Advice
• Do You Have a Funny Human Resource Story You’d Like to Share?
• When to Use Experts in Trials
• The Reality of Retirement Planning
• Exclusions from Coverage Under EPLI Policies
• IRS Issues Rules for Employer-Provided Cell Phone

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

Please click here to view the newsletter in PDF.

Editor’s Column: Improving Employee Productivity

Over the years, I’ve written and spoken about performance improvement/ productivity many times. Here’s what I’ve come to notice and believe:

• People can only perform as well as the system within which they work. As Dr. Deming said, “Most employee failures are management failures.”
• People can’t perform beyond their abilities. This “Peter Principle” means we have to be very clear in testing and assessing folks’ natural abilities and desires.
• We need a clear definition of “good performance.” This involves two questions: What are the most important things you do every day? And, how would you know if you were doing them well without having to ask me or without my having to tell you because the benchmarks are clear?
• Create 90-day goals, weekly To-Do lists, and daily task lists. Share your goals, discuss them, support them, and reward them.
• Praise specifically and as often as possible. Instead of saying “You did a good job today” say, “I particularly like how you handled that customer when … “
• Nurture and support your best performers. Unfortunately, because these folks are too busy to generate drama, managers often ignore them to focus on people more interested in being right about things than getting work done.
• Surprise people. Hand them a gift card for dinner, put an article about them in the paper, nominate them for a reward, throw a surprise birthday party for them, etc.
• Don’t hang on to losers or victims. If people aren’t performing after you’ve done your best and they seem more interested in drama than productivity, you must let them go. If you don’t, you’ll undermine your culture and goals in the process. Make sure to deal with poor performance now, and follow the lawyers’ recommendation to document any significant concerns.

Oklahoma Health Care Workers Get More Than $244,000 in Back Wages

Health Management Associates Inc., which operates Midwest Regional Medical Center (Oklahoma City, OK), has paid $244,341 in overtime back wages to 1,064 registered and licensed practical nurses and certified medical assistants. Wage and Hour Division investigators found violations of the Fair Labor Standards Act, including deductions that were made for lunch breaks when employees were not taking an uninterrupted lunch and failure to maintain required record keeping. The company cooperated with the investigation, and agreed to pay back wages and comply with the FLSA in the future. For more information, read the News Release.

Sage Advice

A recent issue of Volleyball USA shared wise advice from 12 of the top volleyball minds in the nation. As someone who not only has coached kids’ teams, but also many executives, I found valuable pearls of advice in the article that can help all of us to be better managers and leaders:

• Control the controllable. Don’t spend time dwelling on the last play – good or bad. This holds true of the workplace. What was not controllable is what Dr. Deming would call a general variation. Eliminating general variations is the responsibility of management. Trying to control uncontrollable or special variations is extremely difficult and tends to be a waste of time. Don’t dwell on mistakes made. Correct the problem and move on.
• Pursue perfection. It’s unattainable, but striving for it will bring out the best in your players. Again, Dr. Deming would say “Amen.” He taught Japanese industry to manufacture toward perfection, not toward a tolerance. This is one reason why the Lexus brand is “the relentless pursuit of perfection.” Do your best to generate perfect hiring, retention, performance, motivation, teambuilding, and compliance practices. Settling for anything less is a mistake.
• Have fun! The team has to be able to laugh, and sometimes it’s at the coach’s expense. Life is too short to not have fun managing and working with employees. Having fun is a choice. So is being a fun boss – or employee.
• When under stress, call a timeout. I’ll often call a timeout and gather my work team to do a head check, outside of our “normal schedule.” Owners and coaches have to be sensitive to when it’s time for a timeout.
• Coaching and functional teams are about relationships of trust. If you want to develop trust in your team, you have to prove yourself to be trustworthy. I believe that trust is the single most important factor in the workplace. People who trust each other perform better. People who trust each other don’t sue each other. The basis for trust lies in both the ability and the desire to perform. That’s true of you and anyone you manage. One of the best ways to know that you can trust somebody is to test their skills and assess their character.
• Talent isn’t rare. What’s rare is a talented athlete who has the work ethic to become the player they’re capable of becoming. We’ve all seen “talented” employees underperform just because they’re not driven toward excellence. In a sense, they’re wasting their talent. There are also times when management can dampen the desire to perform, especially when most of the energy focuses on pointing out mistakes rather than acknowledging victories.
• Championship teams find ways to win when it’s difficult to do so. Things aren’t going to be rosy all the time – just ask anyone who’s been in business for the past three years. However, even in a recession many companies have survived and thrived. As the saying goes, “when the going gets tough, the tough get going!”
• Although coaches are change agents, they need to buy in before there can be any significant change. Bosses are change agents, too! How well are you selling your vision and getting buy-in? How can you make the notion of change something that people embrace rather than try to protect themselves against?
• Design your offensive and defensive system around your athletes, not your athletes around your system. Determine the strengths and weaknesses of your employees and design a system that plays to their strengths. Again, there’s a consistent theme of being clear about employee skill sets and affinities. None of us are good enough to guess at these things – that’s the value of using testing and assessment tools. Ultimately, you need to put a square peg into a square hole.
• Winning is a by-product of taking care of your players. Focus on helping them become better people and they will become better players. I’m always amazed how many employers don’t understand this. Very few employers are willing to invest in their employees and prefer to squeeze what they can out of them. If you’re not engaging in education, teambuilding, and other ways of growing your people, there’s no way you’ll be a long-term winner.
• The worst mistake you can make is being afraid to make mistakes. Amen! In fact, we have to make mistakes faster than our competition. We try to mitigate against the potential of making a mistake. See the Webinar I did on “Stop Making Mistakes!”
• As a coach, you get what you tolerate, whether errors, technique, or behavior. As the Buddha said, “What comes to you comes from you.” What are you tolerating in yourself or others? Are you the type of coach/boss who settles for mediocrity because demanding excellence might require a different quality of effort on your part?
• The “we” is greater than the “me.” Business is a team sport. As they say, there’s no “I” in team. Are you focused on providing incentives for the team first or individuals first? Remember, a rising tide floats all boats. Check out the five-minute video I did on a powerful team-building technique.
• Don’t allow your people into the game until they’re ready to play. Do your employees come to work ready to perform? How many employees prefer to begin the workday by gossiping? As one of the coaches stated, “Once they walk in, it’s time to go to work.” They should do their talking, texting, and lounging elsewhere.
• Get the best athletes who qualify for your program. There’s no substitute for getting the right person in every seat on the bus. Great coaches know this – and so do great business leaders. The book Good to Greatmakes this point loud and clear.
• If players have excellent results using their own style, do not change their technique. This is always a Catch-22, especially in the sales arena. For example, you might want your salespeople to sell a certain way that goes against the grain of how a very successful person is selling currently. Remember, what matters most is producing results.
• Select the skills to teach by identifying the most athletic movements, and copying the great players. This idea of “modeling” applies to successful people and companies. What’s the most important activity or function that your most productive employees perform? What is it about the “how” of their performance that all people who perform this function should consider a “best practice” (bearing in mind the advice about letting top performers stick to their own style)?
• Enter the gym with the beginner’s mind. Every day offers an opportunity to improve, as long as players remain open to learning. The same thing holds true for coaches and bosses. Do you come to work every day with a “beginner’s mind”? Conversely, do you think you’ve figured it all out already? A great question to ask yourself is: “What can I learn today?”

To what degree are the owners, managers, and supervisors at your company following these well-tested bits of coaching wisdom?

Do You Have a Funny Human Resource Story You’d Like to Share?

Human resources can tend to be a “heavy” subject. It’s seldom about fun and games; However, I’ve also experienced the humor in HR over the years. Please share with us any fun anecdotes/stories about the human resource process, including those in these areas:

• What bosses and others have said to you about human resources in general, or the fact you’re in HR in particular.
• The hiring experience.
• Employee performance or nonperformance.
• Compliance concerns (believe it or not, there are some funny stories).
• The termination process.
• Any other wacky HR/personnel-related stories.

In an effort to keep us all sane, I’ll combine and publish the best of these stories and share them with our HR That Works members. Remember, if you provide us with a story, you also give us permission to use that story.

When to Use Experts in Trials

A recent article in the California Labor Employment Law Review discussed the dos and don’ts of using HR experts in trial. Here’s a list of “appropriate” uses:

• Common techniques of employee screening and selection.
• Methods of employee evaluation.
• Techniques for selection of employees for promotions.
• Operation of seniority rules in a unionized workforce.
• Processes for employee discipline.
• Adequacy of policies prohibiting harassment and procedures for reporting it.
• The “interactive process” of accommodating an employee with a disability.
• The reasonableness of a proposed accommodation in a specific business context.
• Adequacy of investigations into workplace misconduct or “whistleblower” complaints.
• Management of employees with work-related illnesses or injuries.
• Design and application of employee compensation and benefit plans.
• Design and application of ethics codes.

What you are doing to bring this level of expert knowledge into your company proactively – thus avoiding the need for an expert at trial?

The Reality of Retirement Planning

In August 2011, CNNMoney.com polled more than 8,000 individuals asking whether their retirement plans are on track. More than half (51%) said “Yes,” 29% said “Not quite but we’ve got a plan,” 12% said “Retire? I’ll be working forever,” and 8% said “Haven’t got a clue.” This is consistent with other polls I’ve seen about how people manage their finances. For example, roughly half of Americans have a personal budget and the other half don’t. Chances are that the half with budgets has their retirement plans on track. Many employees will be working much longer than expected, in large part, due to their financial ignorance.

What implication does this have for employers? Consider this:

• More than one in three workers (36%) say they expect to retire after 65, and one in four workers (25%) actually do so. How do you expect to manage this fact? How will it affect any succession planning? What will be its impact on productivity and customer relations? If you’re an HR That Works user, please watch our Webinar, Rehirement vs. Retirement! Understanding, Attracting and Retaining the Mature Workforce, presented by Gail Geary.
• Don’t underestimate the importance of financial education. Two years ago, we did a Webinar that remains relevant today with Dave Ramsey’s business coach, George Campbell. This Webinar explained how the financial stress of individual employees compounds to affect a company as a whole. We’ve also brought in the nation’s top teachers of accounting to do a Webinar on The Accounting Game. We’re currently setting up a Webinar with the Certified Financial Planner Organization to teach basic financial planning on the home front.

As employers, we have to acknowledge that if we don’t address the two greatest concerns of our employees – how they handle their health and how they handle their money – the impacts of those challenges will fall on our organizations. Please make sure to attend the Webinar on Financial Planning.

Exclusions from Coverage Under EPLI Policies

In addition to General Liability, Errors and Omissions (E&O), and Directors and Officers (D&O) policies, some employers also buy Employment Practices Liability Insurance (EPLI). An EPLI policy usually covers claims by employees and former employees under federal, state, and local discrimination laws, including Title VII, the Americans with Disabilities Act (ADA), etc. EPLI policies usually exclude claims arising under the National Labor Relations Act (NLRA), the Employee Retirement Income Security Act (ERISA), and sometimes the Fair Labor Standards Act (FLSA).

A recent federal district court ruling, that an EPLI policy did not cover a lawsuit brought by the Equal Employment Opportunity Commission (EEOC), reinforces the need for employers to do a careful review of possible exclusions in their EPLI policies.

In Cracker Barrel Old County Store, Inc. v. Cincinnati Insurance Co., the EEOC sued the employer alleging systemic sexual and racial harassment based on ten EEOC charges. The employer settled the lawsuit and signed a consent agreement with the EEOC to pay $2 million. The company had an EPLI policy and submitted the claim to its insurer. However, the insurer refused to cover the costs of the settlement, arguing that a suit filed by the EEOC was not a “claim” against the employer under the EPLI policy, which defines “claim” as “a civil, administrative, or arbitration proceeding commenced by the service of a complaint or charge, which is brought by any past, present or prospective employee(s).” The employer sued the insurer for indemnification. The trial court dismissed the company’s suit, holding that because the EEOC, rather than an employee, filed the suit, the EPLI policy did not cover the claim.

This case highlights the potential cost when an employer does not understand the scope of insurance coverages. Employers should review their policies to ensure that they have a complete understanding of what their EPLI policies will and will not cover. Although this review should occur when the policy is purchased, at a minimum, the employer should review its coverage with the insurer after a lawsuit so that it has a full understanding of what will be covered.

Article courtesy of Worklaw® Network firm of Shawe Rosenthal.

IRS Issues Rules for Employer-Provided Cell Phones

The Internal Revenue Service has issued guidelines to clarify the tax treatment of employer-provided cell phones. The guidance relates to a provision in the Small Business Jobs Act of 2010, which removed cell phones from the definition of listed property, a category under tax law that normally requires additional recordkeeping by taxpayers.

The Notice provides guidance on the treatment of employer-provided cell phones as an excludible fringe benefit. According to the Notice, when an employer provides an employee with a cell phone primarily for non-compensatory business reasons, the business and personal use of the cell phone is generally nontaxable to the employee. The IRS will not require recordkeeping of business use in order to receive this tax-free treatment.

Simultaneously, an IRS memo to its examiners announced a similar administrative approach that applies to arrangements common to small businesses that provide cash allowances and reimbursements for work-related use of personally owned cell phones. Under this approach, employers that require employees, primarily for non-compensatory business reasons, to use their personal cell phones for business purposes may treat reimbursements of the employees’ expenses for reasonable cell phone coverage as nontaxable. This treatment does not apply to reimbursements of unusual or excessive expenses or to reimbursements made as a substitute for a portion of the employee’s regular wages.

Under the guidelines, when employers provide cell phones to their employees or reimburse employees for business use of their personal cell phones, tax-free treatment is available without burdensome recordkeeping requirements. The guidance does not apply to the provision of cell phones or reimbursement for cell-phone use that is not primarily business related, because such arrangements are generally taxable.

Details are in the memo and in Notice 2011-72, posted on IRS.gov.

Form of the Month

Guidelines for the Secure Use of Social Media (PDF) – Use these legal recommendations to develop your social media usage policy.

Podcast

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Two La Nopalera restaurants in Jacksonville, Florida, and their owners have been ordered to pay 30 employees $934,425 in back wages and liquidated damages under the terms of consent judgments issued by the U.S. District Court for the Middle District of Florida. The agreements resolve a lawsuit based on an investigation by the Wage and Hour Division that alleged violations of the Fair Labor Standards Act. “All workers deserve to be paid fairly, and the Labor Department will hold accountable employers that take advantage of their employees,” said Secretary Solis. “We want workers to know we will defend their rights to compensation for all hours worked, and we want companies that play by the rules to know we will take action against those that use illegal tactics to gain a competitive advantage.” Read the News Release

“You don’t get paid for the hour. You get paid for the value you bring to the hour.” – Jim Rohn

This issue discusses:

• Editor’s Column: Describing the Physical Demands of a Job
• When Managers Don’t Speak Up
• Social Media Policies: Be Prepared
• Overtime Back Wages Settlement Costs Levi Strauss $1 Million+
• Managing Mental Disabilities
• Does the Employee Fit the Job?

We have also provided you with the Form of the Month

Please click here to view the newsletter in PDF.

Editor’s Column: Describing the Physical Demands of a Job

I recently saw a job posted for an HRIS expert at an auto dealership. Curious, I scrolled through it, where it stated at the end in bright red print:

“Important Notes: Environment and Physical Activity

“The environment for this position is an open office that’s mostly clean and comfortable. The job involves driving a personally owned vehicle approximately 20% of the time, which includes exposure to outside weather elements and moving mechanical parts. It might include some minor annoyances such as noise, odors, drafts, etc. The incumbent is in a non-confined office-type setting, in which he or she is free to move about at will. The incumbent spends time writing, typing, speaking, listening, lifting (up to 25 pounds), carrying, seeing (such as close, color and peripheral vision, depth perception and adjusted focus), sitting, pulling, walking, standing, squatting, kneeling and reaching.

“The incumbent might operate any or all of these devices: Copy and fax machines, adding machine (calculator), typewriter, personal computer and related printers.

“The work environment characteristics described here are representative of those an employee encounters while performing the essential functions of this job.

“The physical demands are representative of those that an employee must meet to perform the essential functions of the job.

“Reasonable accommodations may be made to enable individuals with disabilities to perform the essential functions.”

Have we regressed to this, for a job that involves someone sitting at a computer all day? Really?

When Managers Don’t Speak Up

I’ve handled more than 3,000 “hotline” calls from managers trying to deal with their employees. I find that very often they don’t let employees know about something—when they should do so. These include: Poor performance, body odor, bringing personal problems to work, wasting time on gossip, using social media, shopping online, coming and going late, 20-minute breaks, smelling like a chimney when they return from the break, their dress, their communication skills, the time they waste on the basketball pool, being on the layoff list – the list goes on. The real question is: Why don’t managers speak up? In my experience, there are many reasons: The employee intimidates them, they’re new to the management role, they get no support if they want to act, they prefer to avoid conflict, they don’t want to be become “villains,” they fear having their shortcomings pointed back at them, they don’t want to cause a lawsuit – you name it!

What are you doing to help your managers move past this fear-based limitation in a way that can make them proud? How can they face these concerns and build a relationship with employees in the process? By the way, what are you holding back on with anyone you manage?

Social Media Policies: Be Prepared

Social media and networking sites have become commonplace in today’s workplace. The most popular sites (such as Facebook, Twitter, LinkedIn, and YouTube) connect people by enabling them to search for former classmates, colleagues, and friends. Users can leave public messages for their “friends,” and/or create interest groups or “networks.” The problem for employers is that employees might be posting negative, misleading or defamatory information about their company, its employees or its products on social media sites. More and more businesses have instituted policies to help protect against posting such negative information on social media sites. A recent case settled by an employer in response to an unfair labor practices charge brought by the NLRB illustrates one of the pitfalls concerning such policies. The company, American Medical Response, had fired an employee for bad-mouthing her boss on Facebook. The NLRB held that the employer’s policy, which prohibited employees from “making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers and/or competitors,” was overly broad; because it violated Section 7 of the National Labor Relations Act, which permits employees to engage in “concerted activities for the purpose of … mutual aid and protection.” In settling, the company agreed to revise its social media policy to ensure the protection of employees’ rights to discuss working conditions.

Bear in mind that, even in a non-union workplace, employees have the right under the NLRA to share information regarding working conditions. Before taking disciplinary action against employees for their social media activities, consider whether the employee’s conduct could arguably constitute protected concerted activity.

To ensure that your social media polity does not violate employee Section 7 rights, we’d recommend following these guidelines:

• Employees may not use company equipment or systems to “twitter” or log onto social networking sites.
• Twittering on personal cell phones, Personal Data Assistants (PDAs), etc. may not interfere with working time.
• Employees should not tweet or post information on any social networking site on behalf of the employer, without approval by management.
• Employees may not use company logos or trademarks in tweets or twitpics (a service that enables users to post pictures to Twitter) or any other social networking site without company authorization.
• Employees may not promote the company’s products or services on any social networking site or online message board without prior management authorization and disclosure of their employment relationship.
• Employees may not post information on any social networking site that disparages the company’s products or services, contains false statements, or breaches the employer’s confidentiality policies.
• Employees who have any information on their social networking site about the company should provide a disclaimer on their profile page that the opinions are their own, and not those of the company.

Article courtesy of Worklaw® Network firm Shawe Rosenthal.

Overtime Back Wages Settlement Costs Levi Strauss $1 Million+

This recent news story carries a lesson for every employer.

Levi Strauss Agrees to Pay More Than $1 Million in Overtime Back Wages to Nearly 600 Employees Following U.S. Labor Department Investigation

Overtime violations found at retail stores nationwide

SAN FRANCISCO — Levi Strauss & Co. has agreed to pay $1,011,413 in overtime back wages to 596 employees nationwide after the U.S. Department of Labor found that the company violated overtime and recordkeeping provisions of the federal Fair Labor Standards Act.

An investigation conducted by the San Francisco District Office of the Labor Department’s Wage and Hour Division determined that the San Francisco-based company misclassified several groups of workers, including assistant store managers of newly acquired stores, as exempt from overtime. Although their counterparts at previously existing stores were exempt from overtime compensation, the newly hired employees were not.

“Misclassification of employees has serious and adverse consequences for employees, as well as for corporations,” said Secretary of Labor Hilda L. Solis. “When violations of federal labor laws are discovered, this department will take appropriate action to ensure that workers receive the wages they deserve.”

The company failed to record all hours employees worked in its payroll system. Instead, the misclassified assistant store managers were required to work off the clock during late night closings, early morning openings, and staffing shortages. Various administrative employees working at the company’s headquarters also were misclassified as exempt from FLSA coverage and found to be owed overtime back wages.

This investigation covered back wages for time worked over a two-year period. Levi Strauss has agreed to pay the back wages and committed to upgrade its time and attendance system, as well as maintain future compliance with the law. The applicable employees are now treated as non-exempt under the FLSA.

Founded in San Francisco in 1853, Levi Strauss was the first company to manufacture blue jeans. Today, the company operates 164 retail stores and employs more than 4,000 workers in the U.S., and its global operations span more than 100 countries.

The FLSA requires that covered employees be paid at least the federal minimum wage of $7.25 for all hours worked, plus time and one-half their regular rates of pay, including commissions, bonuses and incentive pay, for hours worked beyond 40 per week. Employers are required to keep accurate records of all hours worked by covered employees. The FLSA provides an exemption from both minimum wage and overtime pay for workers employed as bona fide executive, administrative, professional and outside sales employees. It also exempts certain computer employees. To qualify, employees generally must meet certain tests described in the act regarding their job duties.”

Lesson Learned: Unless you have a legitimate business need for classifying employees as exempt, you’re far safer classifying them as non-exempt and adjusting their hourly pay so their take-home, including overtime, matches their exempt salary. We’d recommend that HR That Works use the Overtime Authorization form to reduce unauthorized or unnecessary OT usage.

Managing Mental Disabilities

It takes the EEOC 56 pages to define a “mental disability.” Approximately 58 million Americans, one in four adults, experience a mental health impairment in a given year (National Alliance on Mental Illness, 2007). One in 17 individuals lives with a serious mental health impairment, such as schizophrenia, major depression, or bipolar disorder (National Institute of Mental Health, 2008).

Common mental impairments include:

• Bipolar disorder, sometimes referred to as manic depression, “is a medical illness that causes extreme shifts in mood, energy, and functioning. Bipolar disorder is a chronic and generally life-long condition with recurring episodes of mania and depression that can last from days to months that often begin in adolescence or early adulthood, and occasionally even in children.” An estimated 10 million American adults have bipolar disorder.
• Borderline personality disorder (BPD)is “an often misunderstood, serious mental illness characterized by pervasive instability in moods, interpersonal relationships, self image, and behavior. It is a disorder of emotional dysregulation. This instability often disrupts family and work, long-term planning, and the individual’s sense of self-identity.” It’s estimated that 1% to 2% suffer from BPD.
• Major depressionis “persistent and can significantly interfere with an individual’s thoughts, behavior, mood, activity, and physical health. Among all medical illnesses, major depression is the leading cause of disability in the United States and many other developed countries.” There are approximately 15 million American adults with major depression.
• Obsessive compulsive disorder (OCD)“occurs when an individual experiences obsessions and compulsions for more than an hour each day, in a way that interferes with his or her life.” Estimates indicate that 2% of American adults have OCD.
• Panic disorderoccurs when a person “experiences recurrent panic attacks, at least one of which leads to at least a month of increased anxiety or avoidant behavior. Panic disorder may also be indicated if a person experiences fewer than four panic episodes but has recurrent or constant fears of having another panic attack.” Approximately 2% to 5% of American adults suffer from panic disorder.
• Post-traumatic stress disorder (PTSD)is “an anxiety disorder that can occur after someone experiences a traumatic event that caused intense fear, helplessness, or horror. While it is common to experience a brief state of anxiety or depression after such occurrences, people with PTSD continually re-experience the traumatic event; avoid individuals, thoughts, or situations associated with the event; and have symptoms of excessive emotions. People with this disorder have these symptoms for longer than one month and cannot function as well as they did before the traumatic event. PTSD symptoms usually appear within three months of the traumatic experience; however, they sometimes occur months or even years later.” It’s estimated that 2% to 9% of adult Americans (including 15% to 30% of veterans) have PTSD.
• Schizophrenia “often interferes with a person’s ability to think clearly; to distinguish reality from fantasy; and to manage emotions, make decisions, and relate to others. Some 2 million American adults are schizophrenic.
• Seasonal affective disorder (SAD) is “characterized by recurrent episodes of depression – usually in late fall and winter – alternating with periods of normal or high mood the rest of the year.” Note: SAD is not regarded as a separate disorder by the DSM-IV (APA, 1994), but is an added descriptor for the pattern of depressive episodes in patients with major depression or bipolar disorder.

Here’s a quick overview of some job accommodations that might be useful for people with mental health impairments.

Maintaining Stamina During the Workday:

• Provide flexible scheduling
• Allow longer or more frequent work breaks
• Allow employee to work from home during part of the day, or week
• Provide part-time work schedules

Maintaining Concentration:

• Reduce distractions in the work area
• Provide space enclosures or a private office
• Allow for use of white noise or environmental sound machines
• Allow the employee to play soothing music using a portable player and headset
• Increase natural lighting or provide full spectrum lighting
• Plan for uninterrupted work time
• Allow for frequent breaks
• Divide large assignments into smaller tasks and goals
• Restructure job to include only essential functions

Staying Organized and Meeting Deadlines:

• Make daily TO-DO lists and check items off as they are completed
• Use several calendars to mark meetings and deadlines
• Remind employee of important deadlines
• Use electronic organizers
• Divide large assignments into smaller tasks and goals

Dealing with Memory Deficits:

• Allow the employee to tape record meetings
• Provide type written minutes of each meeting
• Provide written instructions
• Allow additional training time
• Provide written checklists

Working Effectively with Supervisors:

• Provide positive praise and reinforcement
• Provide written job instructions
• Develop written work agreements that include the agreed upon accommodations, clear expectations of responsibilities, and the consequences of not meeting performance standards
• Allow for open communication to managers and supervisors
• Establish written long term and short-term goals
• Develop strategies to deal with problems before they arise
• Develop a procedure to evaluate the effectiveness of the accommodation

Interacting with Coworkers:

• Educate all employees on their right to accommodations
• Provide sensitivity training to coworkers and supervisors
• Do not require employees to attend work-related social functions
• Encourage employees to move non work-related conversations out of work areas

Handling Stress and Emotions:

• Provide praise and positive reinforcement
• Refer to counseling and employee assistance programs
• Allow telephone calls during work hours to doctors and others for needed support
• Allow the presence of a support animal
• Allow the employee to take breaks as needed

Maintaining Attendance:

• Provide flexible leave for health problems
• Provide a self-paced work load and flexible hours
• Allow employee to work from home
• Provide part-time work schedule
• Allow employee to make up time

Dealing with Change:

• Recognize that a change in the office environment or of supervisors may be difficult for a person with a mental health impairment
• Maintain open channels of communication between the employee and the new and old supervisor in order to ensure an effective transition
• Provide weekly or monthly meetings with the employee to discuss workplace issues and productions levels

To learn more, visit the Job Accommodation Network’s Accommodations Ideas for Mental Health Impairments.

Does the Employee Fit the Job?

I’m a big fan of using character assessment tools – and one of my favorites is www.zeroriskhr.com. My team and I are currently using their post-employment program to help improve our communication and make me a more effective boss. The folks at ZeroRisk reminded me that the employer’s goal is to match skills and natural abilities with job function. As the saying goes, “Put square pegs in square holes!”

To help reach this goal, consider how employee personalities can differ:

People Orientation

• Reads people – can sense how to be effective with different individuals
• Needs others to feel good
• Enjoys individual interaction
• Enjoys people in group settings
• Prefers to not deal with the feelings and individual needs of others
• Likes to help others

Results Orientation

• Has good practical judgment
• Likes to get things done using their hands
• Enjoys solve thinking problems
• Likes to apply theories to real-life problems
• Prefers to think about things, rather than applying them to business issues
• Likes to put things where they belong – creating or preserving order

Environment Needs

• Is comfortable with a routine
• Likes order, structure, and certainty
• Enjoys planning and organizing
• Needs variety in using creative thinking
• Needs to work in a top-level, winning company

Behavioral Characteristics

• Thinks out of the box
• Obeys the rules, no matter what
• Able to do things exactly as instructed
• Able to do repetitive tasks consistently
• Thinks in terms of the team and belonging to the team
• Will be protective of company policies, standards, and mission

Individual Characteristics

• Is an individual and needs to express their individuality
• Able to handle rejection –has a thick skin
• Has a lot of courage
• Is passionate about their work
• Able to keep secrets
• Likes to be in the middle of things
• Flexible in midst of change and surprises
• Likes to be the center of attention
• Team player – little self-glory
• Accurate at knowing what they’re best suited to do
• Capable in a highly competitive environment
• Accurate ideas about their own strengths and weaknesses

Ambition Characteristics

• Committed to personal growth
• Likes to win
• Needs rewards to be directly tied to their work
• Driven to excel and improve
• Strong sense of accountability
• High achievement drive
• High degree of initiative

The point is: Match the personality to the job!

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Employee Compensation and Benefits Survey (PDF) – To make sure that your benefits are working for you and your employees, give them this survey.

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Lawsuit seeks more than $1 million in back wages for approximately 4,500 workers nationwide

HOUSTON — The U.S. Department of Labor has announced the filing of a lawsuit against Houston-based Kinder Morgan Inc. and Kinder Morgan Energy Partners LP for their failure to pay more than $1 million in overtime compensation to approximately 4,500 current and former operators, technicians, maintenance workers, laborers and administrative nonexempt employees in violation of the Fair Labor Standards Act. The department’s suit asks the court to order the defendants to pay the full amount of back wages due, along with liquated damages, and to prohibit them from violating the law in the future.

Kinder Morgan Inc., owner of Kinder Morgan Energy Partners LP, is one of the largest pipeline transportation and energy storage companies in North America, with an enterprise value of $30 billion and approximately 8,000 employees nationwide. The defendants provide services to local oil refineries and clients such as Conoco/Philips, Exxon Mobil and Shell.

“There is no excuse for denying workers their rightful wages, and this lawsuit demonstrates that the department will use all available enforcement tools, including litigation and penalties, to ensure accountability and compliance with the law,” said Secretary of Labor Hilda L. Solis.

The complaint was filed against both companies in the U.S. District Court for the Southern District of Texas, Houston Division, after an investigation by the Labor Department’s Wage and Hour Division found systemic violations nationwide resulting from the employers’ failure to include certain bonuses in overtime pay calculations for these employees.

The FLSA requires that covered employees be paid at least the federal minimum wage of $7.25 for all hours worked, plus time and one-half their regular rates of pay, including commissions, bonuses and incentive pay, for hours worked beyond 40 per week. Employers must also maintain accurate time and payroll records.

Word to the wise: Make sure you know what bonuses belong in OT and which ones don’t! Here’s what the CFR’s say about it:

Bonuses

§ 778.208   Inclusion and exclusion of bonuses in computing the “regular rate.”

Section 7(e) of the Act requires the inclusion in the regular rate of all remuneration for employment except seven specified types of payments. Among these excludable payments are discretionary bonuses, gifts and payments in the nature of gifts on special occasions, contributions by the employer to certain welfare plans and payments made by the employer pursuant to certain profit-sharing, thrift and savings plans. These are discussed in §§778.211 through 778.214. Bonuses which do not qualify for exclusion from the regular rate as one of these types must be totaled in with other earnings to determine the regular rate on which overtime pay must be based. Bonus payments are payments made in addition to the regular earnings of an employee. For a discussion on the bonus form as an evasive bookkeeping device, see §§778.502 and 778.503.

§ 778.209   Method of inclusion of bonus in regular rate.

(a) General rules. Where a bonus payment is considered a part of the regular rate at which an employee is employed, it must be included in computing his regular hourly rate of pay and overtime compensation. No difficulty arises in computing overtime compensation if the bonus covers only one weekly pay period. The amount of the bonus is merely added to the other earnings of the employee (except statutory exclusions) and the total divided by total hours worked. Under many bonus plans, however, calculations of the bonus may necessarily be deferred over a period of time longer than a workweek. In such a case the employer may disregard the bonus in computing the regular hourly rate until such time as the amount of the bonus can be ascertained. Until that is done he may pay compensation for overtime at one and one-half times the hourly rate paid by the employee, exclusive of the bonus. When the amount of the bonus can be ascertained, it must be apportioned back over the workweeks of the period during which it may be said to have been earned. The employee must then receive an additional amount of compensation for each workweek that he worked overtime during the period equal to one-half of the hourly rate of pay allocable to the bonus for that week multiplied by the number of statutory overtime hours worked during the week.

(b) Allocation of bonus where bonus earnings cannot be identified with particular workweeks. If it is impossible to allocate the bonus among the workweeks of the period in proportion to the amount of the bonus actually earned each week, some other reasonable and equitable method of allocation must be adopted. For example, it may be reasonable and equitable to assume that the employee earned an equal amount of bonus each week of the period to which the bonus relates, and if the facts support this assumption additional compensation for each overtime week of the period may be computed and paid in an amount equal to one-half of the average hourly increase in pay resulting from bonus allocated to the week, multiplied by the number of statutory overtime hours worked in that week. Or, if there are facts which make it inappropriate to assume equal bonus earnings for each workweek, it may be reasonable and equitable to assume that the employee earned an equal amount of bonus each hour of the pay period and the resultant hourly increase may be determined by dividing the total bonus by the number of hours worked by the employee during the period for which it is paid. The additional compensation due for the overtime workweeks in the period may then be computed by multiplying the total number of statutory overtime hours worked in each such workweek during the period by one-half this hourly increase.

§ 778.210   Percentage of total earnings as bonus.

In some instances the contract or plan for the payment of a bonus may also provide for the simultaneous payment of overtime compensation due on the bonus. For example, a contract made prior to the performance of services may provide for the payment of additional compensation in the way of a bonus at the rate of 10 percent of the employee’s straight-time earnings, and 10 percent of his overtime earnings. In such instances, of course, payments according to the contract will satisfy in full the overtime provisions of the Act and no recomputation will be required. This is not true, however, where this form of payment is used as a device to evade the overtime requirements of the Act rather than to provide actual overtime compensation, as described in §§778.502 and 778.503.

§ 778.211   Discretionary bonuses.

(a) Statutory provision. Section 7(e) (3)(a) of the Act provides that the regular rate shall not be deemed to include “sums paid in recognition of services performed during a given period if  *  *  * (a) both the fact that payment is to be made and the amount of the payment are determined at the sole discretion of the employer at or near the end of the period and not pursuant to any prior contract, agreement, or promise causing the employee to expect such payments regularly  *  *  *”. Such sums may not, however, be credited toward overtime compensation due under the Act.

(b) Discretionary character of excluded bonus. In order for a bonus to qualify for exclusion as a discretionary bonus under section 7(e)(3)(a) the employer must retain discretion both as to the fact of payment and as to the amount until a time quite close to the end of the period for which the bonus is paid. The sum, if any, to be paid as a bonus is determined by the employer without prior promise or agreement. The employee has no contract right, express or implied, to any amount. If the employer promises in advance to pay a bonus, he has abandoned his discretion with regard to it. Thus, if an employer announces to his employees in January that he intends to pay them a bonus in June, he has thereby abandoned his discretion regarding the fact of payment by promising a bonus to his employees. Such a bonus would not be excluded from the regular rate under section 7(e)(3)(a). Similarly, an employer who promises to sales employees that they will receive a monthly bonus computed on the basis of allocating 1 cent for each item sold whenever, is his discretion, the financial condition of the firm warrants such payments, has abandoned discretion with regard to the amount of the bonus though not with regard to the fact of payment. Such a bonus would not be excluded from the regular rate. On the other hand, if a bonus such as the one just described were paid without prior contract, promise or announcement and the decision as to the fact and amount of payment lay in the employer’s sole discretion, the bonus would be properly excluded from the regular rate.

(c) Promised bonuses not excluded. The bonus, to be excluded under section 7(e)(3)(a), must not be paid “pursuant to any prior contract, agreement, or promise.” For example, any bonus which is promised to employees upon hiring or which is the result of collective bargaining would not be excluded from the regular rate under this provision of the Act. Bonuses which are announced to employees to induce them to work more steadily or more rapidly or more efficiently or to remain with the firm are regarded as part of the regular rate of pay. Attendance bonuses, individual or group production bonuses, bonuses for quality and accuracy of work, bonuses contingent upon the employee’s continuing in employment until the time the payment is to be made and the like are in this category. They must be included in the regular rate of pay.

§ 778.212   Gifts, Christmas and special occasion bonuses.

(a) Statutory provision. Section 7(e)(1) of the Act provides that the term “regular rate” shall not be deemed to include “sums paid as gifts; payments in the nature of gifts made at Christmas time or on other special occasions, as a reward for service, the amounts of which are not measured by or dependent on hours worked, production, or efficiency  *  *  *”. Such sums may not, however, be credited toward overtime compensation due under the Act.

(b) Gift or similar payment. To qualify for exclusion under section 7(e)(1) the bonus must be actually a gift or in the nature of a gift. If it is measured by hours worked, production, or efficiency, the payment is geared to wages and hours during the bonus period and is no longer to be considered as in the nature of a gift. If the payment is so substantial that it can be assumed that employees consider it a part of the wages for which they work, the bonus cannot be considered to be in the nature of a gift. Obviously, if the bonus is paid pursuant to contract (so that the employee has a legal right to the payment and could bring suit to enforce it), it is not in the nature of a gift.

(c) Application of exclusion. If the bonus paid at Christmas or on other special occasion is a gift or in the nature of a gift, it may be excluded from the regular rate under section 7(e)(1) even though it is paid with regularity so that the employees are led to expect it and even though the amounts paid to different employees or groups of employees vary with the amount of the salary or regular hourly rate of such employees or according to their length of service with the firm so long as the amounts are not measured by or directly dependent upon hours worked, production, or efficiency. A Christmas bonus paid (not pursuant to contract) in the amount of two weeks’ salary to all employees and an equal additional amount for each 5 years of service with the firm, for example, would be excludable from the regular rate under this category.

CEMEX Inc. in Houston will pay $1,514,449 in overtime back wages to 1,705 ready-mix drivers after an investigation by the department’s Wage and Hour Division found violations of the Fair Labor Standards Act. Employees in Arizona, California, Florida, Georgia, New Mexico, North Carolina, South Carolina and Texas failed to receive premium pay for hours worked more than 40 in a workweek. CEMEX, the largest supplier of cement and ready-mix concrete in the country, is also required to comply with the requirements of the FLSA in the future or risk being found in contempt of the order.

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