Thursday, January 29, 2015

Congress Hard at Work for Business?

Well, at least they’re trying. We’ll see how far they get.

Hearing on Benefits of Employer Wellness Programs
I’ve written earlier on the EEOC attacking employer wellness programs here. This week, the Senate Health, Education, Labor, and Pensions (HELP) Committee will hold a hearing to highlight their benefits, and may also introduce legislation, particularly if the EEOC fails to issue guidance (as promised) or if the agency's guidance is perceived to significantly limit the financial incentives employers are allowed under the ACA.

Congress to Consider Comp Time Legislation
While I’m not sure how I feel about comp time being allowed in private business, there are many who would like to see it and feel it would be a benefit. Rep. Martha Roby (R-AL) and Sen. Mike Lee (R-UT) reintroduced legislation that would allow employers to offer the option of compensatory time as payment for overtime under the Fair Labor Standards Act. This is supposedly a measure that is meant to counter the Democrats' push to increase workplace flexibility and mandate paid sick leave for all employees (which are more one-size-fits-all laws, that don’t fit all).  The basic thrust of The Working Families Flexibility Act is to allow an employee to voluntarily choose to accrue up to 160 hours of compensatory time, at a rate of time-and-a-half, for overtime hours worked (if the business chose to offer the comp time option). Any time worked over the 160-hour maximum would have to be paid in cash.

Forty hours is Full-Time Act (S. 30)
The HELP Committee held a hearing this week on changing the Affordable Care Act's definition of full-time employee to 40 hours per week. As many of you know, the ACA defined full-time as 30 hours a week or more for eligibility for health insurance. This is contrary to what has been considered the norm for full-time employment for decades. On January 8th, 12 Democrats joined with Republicans in the House to pass its version of the bill (H.R. 30). It is unclear when the full Senate will take up the bipartisan bill which the President has said he will veto; as he said he would several other bills during the State of the Union address.

There will be more, so…………………stay tuned!

Thursday, January 22, 2015

Are Your Values Showing?

Are the right ones showing?


A lot of companies spend a lot of time talking about who they are (or who they want to be), what they stand for, and their impact on their customers, their communities, and their employees. Mission, Vision, Values: the cornerstones of any good strategic planning process. We put out surveys, convene focus groups, use facilitators and come up with pretty little phrases that we commit to plaques and proudly display in our lobby and print them in our annual reports.

All that is great, but it isn’t enough to simply articulate those values. Every supervisor, manager, and executive – and employee - should be able to relate them, and relate to them. In order to work, and be meaningful, they need to be 'living values' that show up in the day to day operations and activities of the organization.

As the saying goes, talk is cheap. Actually living your values is a different proposition, and the problem with values is that what you say about them is irrelevant. It's what you do about them that counts.

Leaders often act in a manner that is inconsistent with what they say. This habit of misaligning words and actions causes people to stop trusting them, to lose faith. Integrity takes a nose-dive and the leader’s ability to influence others is undermined by their actions. This can lead to employees being disengaged and merely going through the motions at work with very little commitment to the organization or its goals.

What are you actions saying about your values?

How you spend your time and your money says more about your values and their importance to your organization than the plaque on the wall. When either resource is scare, how you allocate them will speak volumes to your employees, your customers and your community about what you value. Are your actions showing the values you want them to show?

The internal workings of your organization pretty much dictate how it will present to the public, in one way or another. Do you say you value honesty, integrity and commitment to quality? Do you manage your workforce in line with those values? Do you expect your employees to behave, internally and externally in line with those values? Stating your expectations is one thing; you also have to back that up with action. Since what we tolerate has the tendency to grow, leadership ultimately predicts whether values are lived or simply espoused. We get what we allow.

Cliché as it is, walking the talk is still a very valid concept.

Thursday, January 15, 2015

Monitoring Your Employees

Can you go too far?

Last week I covered some HR and workplace trends to pay attention to this year. One trend is wearable tech; those smart glasses, smart watches and wearable cameras. The focus was on how your employees may embrace these devices and the challenges you, as an employer, may face in dealing with those devices and how they’re used. But what about the flip side?

Workplace monitoring is not new and has certainly evolved. With the evolution of such monitoring comes the evolution of laws and regulations governing how and when an employer can monitor the workplace. Why do businesses choose to monitor? Should you monitor your employees? How can you do it? How far can you go?

The reasons for monitoring in the workplace are as varied as the methods used. Tracking and safeguarding productivity probably tops the list; loss prevention (anti-theft) is also a high priority. In more recent years, monitoring has become a way to prevent or stop illegal acts and harassing or discriminatory behavior, which can both be huge liabilities for any business.

Deciding whether to monitor your workplace is based on your assessment of the risks you face. Do you have reasonable concerns about loss of intellectual property or trade secrets? Is lost productivity due to wasted time a real issue? (A 2013 online survey by revealed that 69% of U.S. workers polled said they waste time every day when they are supposed to be working.)

If you decide that you have a compelling business reason to monitor your workplace, it’s important to have a well-written and clearly communicated policy stating what and how monitoring will take place, and removing any expectation of privacy within the workplace while using any company-owned equipment and/or vehicles.

For the most part, courts have upheld employers' rights to monitor employee email -- particularly if they have a compelling reason to do so (to investigate a harassment claim or possible theft of trade secrets, for example). One caveat is that if the employee is accessing her private, password protected personal email account; the employer’s right is normally quite limited. And we need to keep in mind that just recently; the NLRB ruled that employees can indeed use company-owned email systems for purposes of union organizing – at least until this is challenged in court, as is expected.

Employers may also keep track of the Internet sites visited by their employees. Some employers install devices that block access to certain sites (pornographic sites, Facebook, etc.) or limit the time employees may spend on sites that are not specified as work related.

Internet security. Anytime you go on the internet there’s always a chance that your firewall or security program could be breached. Your computer network may have highly classified information about the company, its resources, and its employees and customers. Any breach in security of your company's computers could be a major problem. We don’t have to look too hard to find examples of data breaches and HIPAA violations and the problems and costs of those breaches.
File or program corruption/incompatibility, intranet security. An employee decides to load a program he brings in on a flash drive or downloads from the internet, or he shows his co-workers his latest vacation photos. The next thing you know your system that depends on a particular internet browser is non-functional, or a virus has been introduced to the network and the whole system is down and information is lost.
Productivity. If employees are spending too much work time using the internet for personal activities this seriously interferes with productivity. It doesn’t matter if they are on Facebook, doing their banking, shopping, or talking to their spouse or friend on an instant messenger, it can affect their productivity in a major way.
Legal Risks. Visiting porn sites, gambling sites, illegal file sharing may be some of the most obvious legal risks. But there are risks of harassment and discrimination via use of email, instant messaging and the like. 

Social Media. I’ve covered the ins and outs of using social media, whether for recruiting and hiring, or monitoring existing employees here and here. I covered a bit more under Off-Duty Conduct below.

Vehicles. It’s not uncommon for a company to affix GPS tracking devices on company owned vehicles; sometimes overtly, but sometimes not. GPS tracking is normally used to monitor travel routes, fuel consumption and to verify that work time and activity is being accurately recorded. The information gained from these types of systems can be money-saving to the company. If you determine there are points on a route that result in excessive idling (fuel consumption) or add unnecessary time or mileage to the route, you can make appropriate changes. It can also be useful to discourage or discover if employees are using work time and resources (vehicle) for personal activity.

Off-duty Conduct. This can get tricky. Thirty-one states have some sort of off-duty conduct law in place. Some protect broad categories of off-duty conduct, and some require that an employer show a connection between that conduct and the employer’s business before allowing adverse action against the employee for engaging in that conduct. For instance, Colorado’s law makes it illegal for an employer to terminate an employee because that employee engaged in any lawful activity off premises during nonworking hours unless the restriction: 1) relates to a bona fide occupational requirement or is reasonably and rationally related to the employee’s employment activities and responsibilities; or 2) is necessary to avoid or prevent the appearance of a conflict of interest with any of the employee’s responsibilities to the employer. Montana’s law states that employers are prohibited from refusing to hire job applicants or disciplining or discharging an employee for using "lawful consumable products" (such as tobacco or alcohol) if the products are used away from the employer’s premises outside of work hours, with certain exceptions for bona fide occupational requirements or a conflict of interest, similar to those covered by Colorado’s law. Point of interest: Maryland has no such off-duty conduct law.

Even with such laws, however, there are some circumstances that do allow an employer to consider off-duty conduct for disciplinary purposes. For example, an employer can discipline an off-duty employee who receives a speeding ticket while headed to the grocery store (a purely personal and off-duty activity). Many businesses have a policy stating that employees who use a vehicle in the course of their job must report all moving violations to their employer. Some policies include that receiving three or more violations during some specified period of time, can result in termination. Others have policies that applicants with more than a certain number of points against a driver’s license will be barred from employment.

Employers are generally entitled to take action when an employee is convicted of a crime. This normally requires demonstrating that the decision or policy is job related and consistent with business necessity. In fact, failing to take appropriate action could lead to a claim for negligent hiring or retention down the road.

What about other noncriminal conduct that carries a social cost? Think of the recent cases of Ray Rice, Adrian Peterson and other pro athletes. Can you fire an employee accused of domestic violence? Or someone who posts pornographic pictures of herself on Facebook or Twitter? How about the employee whose Internet comments and Facebook posts are chock full of racial slurs, or even just a lame but potentially insensitive joke? Ask yourself these questions:

  • Has (or can) the off-duty conduct negatively affected the employee’s performance on the job?
  • Has the off-duty conduct negatively impacted the morale of your other employees or caused a distraction resulting in reduced productivity?
  • Has the off-duty conduct gone against your company’s stated mission and values?

If the answer to even one of these questions is yes, there’s a very good likelihood that disciplining the employee for that off-duty conduct will be legally justified. As always, you should document the reasons for whatever action you take including how the off-duty conduct negatively affected your business. And be consistent. And it’s never a bad thing to consult an employment attorney.

Thursday, January 8, 2015

HR Trends for 2015

Here we go again…….

Another new year, and it’s time to think about what that might mean in our HR world. Certainly, there is a lot of "same old, same old" going on, but there are a few trends/issues that are new, or if not exactly new, will be more attention-getting.

Wearable Tech. Yikes! We thought BYOD was sticky! Now we have to think about smart glasses, smart watches and wearable cameras. This means that employees will have the ability to more easily covertly (and overtly) record workplace interactions. This could impact your privacy, confidentiality, whistleblowing, and harassment policies in a big way. Spying, stalking, entrapping, oh my! Now is the time to firm up your HR policies to address these types of issues.

Wages. Some 20 states (and localities) raised their minimum wage. Regardless of your opinion on the matter, it will cause pressure to raise the wages of those making somewhat above the minimum wage, which in turn will cause wage compression in some businesses, as well as impact the bottom line, or even the organization’s ability to grow. 

Tension of the Ages. We now have 4 generations of employees working at the same time, and in many cases, the same place. And there will soon be five when Gen Z enters the work picture. There is a wide range of potentially conflicting attitudes, outlooks, and work styles, which can lead to intergenerational tension. While tension among older and younger workers has always been present, with this wide mix, we should probably be expanding our diversity efforts to fight stereotypical thinking and stress the value of the unique qualities each generation possesses.
Affordable Care Act – Still. This seems to be the ever-morphing law with shifting deadlines and unclear regulations on that list of changes. Challenges to parts of the law continue to pop up (the Supreme Court will hear another challenge to the subsidy portion soon), and there will most likely be continued efforts to change the definition of full-time to 40 hours per week, rather than 30, among other things. 2015 brings the full impact of the employer mandate for many businesses with the required reporting finally going into effect. While large companies may be able to more easily handle the data collection and reporting, smaller firms will find it way more challenging. 

Regulatory Environment. *sigh* We’ve already seen a slew of activity from the NLRB and the EEOC (and seen a few times where they were both brought up short by the courts), but expect to see even more. It’s clear that the EEOC is going after criminal background checks like the NLRB is going after your employee handbook. It’s ugly - and tiresome. But there may be some hope. A group of organizations comprised of SHRM, the Coalition for a Democratic Workforce (CDW), the National Retail Federation, the National Association of Manufacturers and the U.S. Chamber of Commerce, joined forces to sue the NLRB over the quickie (or ambush) election rules it just announced. Added to the willingness of more businesses to challenge the EEOC and the NLRB on their litigious attitude – and courts’ decisions to rein them in on certain cases, this is heartening to see.

Just this past year, there was the new OSHA reporting requirements that included what some refer to as "public shaming" of businesses and added and duplicative penalties. New federal contractor regulations are also requiring disclosure of even the most minor (including unintentional) violations of state or federal labor laws, that will now impact a government contractor's ability to win new work and can even lead to the termination of an existing contract. Stay tuned!

Telecommuting/Work from Home. Work/life balance and our always connected, mobile device packing culture will continue to prod businesses to add or expand the ability of employees to work remotely. While this can be a great perk for those businesses or jobs that lend themselves to working remotely, not all do, and not all employees can successfully work away from the office. Businesses must still focus on productivity issues and take care that overtime regulations for non-exempt employees are not violated.

Retention, retention, retention (and letting a few go). It’s common knowledge that when the economy begins to improve, employees feel more comfortable with looking elsewhere. Working to retain your best will be more difficult and time consuming as this year progresses. Temper that with the fact that it might actually be easier to let the low-performers or malcontents take a walk.

As always, it’ll be a fun ride. Check back for updates on these topics and more!