Thursday, May 28, 2015

Hiring the Right One

Are we doing it wrong?

When you’re looking to hire a new employee what do you look for?  Are you getting what you want? Does it seem like success in hiring is more like a roll of the dice?  Yes, sometimes it is.  Honestly, few of us (if any of us) are actually, really good at interviewing and selecting the best candidate for the job.  If you think you’re great at it, I think I have a bridge………………… Seriously, though, there are things we can do to make the outcome more successful and a bit less left to chance.
It seems to me that we often focus on the wrong things.  Sometimes it’s existing skills over potential for development and cultural fit.  Other times it might be “talent” over personality.  Do you care if you get a highly talented, but completely obnoxious and unmanageable employee?  You should care, because either you’ll have to repeat the whole process soon, or the rest of your staff will be miserable for a long time.  Which price are you willing to pay?

You have to know who you’re seeking before you’ll know if that person is sitting in the chair across from you in an interview.  Define the position and the best person for that position before you start interviewing.  Make up your “ideal candidate” list and refer to it often.  Ask questions that will reveal if this person fits that list.

Fit vs. Function, Talent vs. Character?
In our changing business world – whether evolving technology or methods of service – is it reasonable to think that anyone will possess all the skills now that may be required 5 years from now?  Instead, look for traits that fit your organization.  Whether those traits are exceptional communication, creativity, organization, attention to detail – whatever they may be.  Skills are important and necessary, but not in a vacuum.

Part of defining the position and the person is knowing what your organization’s values are, what your culture is and then assessing an applicant’s ability and readiness to actively meet those in the day to day of the job.  Focus on communicating those values during interviews and assessing a candidate’s ability to live those values.  Ask behavioral based questions that will elicit what you need to know to make an informed decision.  Of course, continually communicating your values to all employees frequently, and leading by example will help you to maintain a workforce that meets your needs.

Is the candidate as interested in seeing your organization succeed as she is in her own success?  I think this goes to the heart of someone who really believes in your mission (your product, your service).  A “me” first attitude is not likely to get you the results you really need.  We all need to think of ourselves, our needs – but not to the exclusion of all else.  A related characteristic here is accountability.  Is the candidate giving examples of taking responsibility and being accountable?  Or, is he tending to slide blame toward a manager or co-workers?   Being accountable and taking responsibility for our own actions (failures and successes) really is thinking outwards, of others, rather than thinking only of ourselves.

Now vs. the Future
Failing to anticipate your organization’s future needs can cause you to make impulsive and short-sighted hiring decisions. Understanding your organization’s current needs and where it's headed can positively inform your hiring decisions.  So, before seeking new hires for your team, think about how applicants might meet existing needs but also any potential for fulfilling future needs. Hiring for the long haul is certainly more efficient and cost-effective than simply filling a current gap.

It’s all too easy to have a laundry list of desirable skills and traits and then end up spinning our wheels because we can’t find the “perfect” candidate who possesses them all.  However, it’s equally as easy – and possibly more damaging - to “settle” on someone based on a few parts, instead of considering the whole.  Skill and experience are vital to most jobs, but you should never fill a job out of desperation. Taking the time to assess the complete fit of a new hire can spare you a great deal of pain.

Thursday, May 14, 2015

Padding the Roles?

NLRB Courts Undocumented Workers

I think many people would be surprised to learn that the National Labor Relations Act (NLRA) protects undocumented workers, as well as those who are fully documented and legally allowed to work in the U.S.  I know I was more than surprised.  The punishment that employers face for an unfair labor practice charge that effects such undocumented workers has been limited to admonishments by the Board (NLRB) and maybe some public postings (self-shaming) since these workers are not legally allowed to work, and therefore cannot be afforded either back pay awards or reinstatement if terminated.

Apparently, the NLRB has been concerned that such workers have been reluctant to come forward and report violations because there’s no financial incentive or job protection for them to do so, and because it would expose them as ………………….undocumented.

So, guess what?  The General Counsel of the Board has issued GC Memorandum 15-03, which says that the Board will provide visa assistance to undocumented workers who file unfair labor practice charges. It has also entered into agreements with Mexico, Ecuador and the Philippines to encourage these countries to train their citizens (who may become immigrants to the U.S.) about rights granted to workers under U.S. employment laws, including rights under the NLRA.  These agreements do not make any distinction between documented vs. undocumented, legal vs. illegal.

This puts businesses in a Catch-22.  If they knowingly employ someone who is not legally allowed to work in the U.S., they must terminate the person’s employment under immigration law and/or be subject to severe civil, and possibly, criminal penalties.  On the other hand, terminating an employee in order to comply with federal law can be adjudged as an unfair labor practice under the NLRA.  Who’s the winner here?

Our country was founded by immigrants who chose to make this their home.  Most came here in compliance with immigration laws; worked hard and made a life for themselves, their families and subsequent generations. Thousands more come here each year, in compliance with our immigration laws, and do the same.  It’s been a point of pride for our country to be a place that people seek to make their home, and experience our freedoms and opportunities for prosperity.  Yes, a valid argument can be made that our current immigration laws need to be reformed.  I would not argue against that point.

But make no mistake: The NLRB is not doing this as some altruistic, humanitarian effort for the sake of people they think may be treated unfairly.  They are doing it to increase the sagging roles of union membership and increase the dues coffers.  It amazes me that the Board is not being questioned or challenged on this action. Their motivation is certainly not in the best interests of either undocumented workers or this country as a whole.

Thursday, May 7, 2015

FLSA in the News…

In March of last year, President Obama ordered the U.S. Department of Labor (DOL) to revisit and revise the "white collar" overtime exemption regulations.  The goal was to make many more workers eligible for overtime pay for hours worked over 40 in a workweek. On May 5, 2015, Secretary of Labor Perez announced that the DOL submitted the proposed changes to the White House’s Office of Management and Budget (OMB) for approval.
In a blog post, Secretary Perez stated "We’ve worked diligently over the last year to develop a proposed rule that answers the president’s directive and captures input from a diverse range of stakeholders. After extensive research, study and careful analysis, we have submitted the proposed rule to the Office of Management and Budget for review. In the near future, the public will have an opportunity to weigh in and help us craft a final rule."

It seems certain that the proposed rules will increase the minimum salary level required for exemption from the FLSA overtime requirements.  Presently, the threshold is $455 per week ($23,660 annually), which was set in 2004. 

According to Littler, rumor has it that the DOL was ready to propose $42,000. We’ve seen many reports that others want the figure to be much higher. The Economic Policy Institute has called for a minimum salary of over $51,000. And, thirty Democrats sent a letter to Secretary Perez calling for a salary level of $69,000, reportedly to cover the same percentage (65%) of salaried employees that were entitled to overtime in 1975.  At $69,000, an estimated additional 10.4 million employees will be newly entitled to overtime pay.

Correcting for inflation over the 1975 salary threshold of $155 per week, would result in a salary level of $31,720 annually – a figure most assuredly to be better received by businesses.

It is additionally expected that there will be a change in the duties test for the "executive" level exemption (keep in mind, "executive" does not solely mean senior management, but is a term used by the FLSA to define duties that are more than manual labor or administration support work). It’s been expected that the exemption for retail and restaurant managers and assistant managers will be narrowed.  Littler opines that it is likely DOL will propose a California-style rule that exempt employees must spend more than 50% of their time performing exempt level work.  Currently, the FLSA primary duties test treats time as an important factor but not in itself determinative.  Secondly, the DOL may eliminate the concept of "concurrent duties" – or when an exempt manager or assistant manager continues to perform exempt management duties even while performing non-exempt work of the people they manage. In other words, if the manager continues to perform non-exempt level work, the manager’s position cannot be exempt from the overtime regulation.

Keep in mind, that the criteria for exemption to the overtime requirements are all "and" statements. This means the position must meet all the criteria in order to qualify. So, a change to the minimum salary level alone will cause many jobs to fail the test for exemption and therefore will be subject to overtime payments.

In news from another Obama administration move, the "blacklisting" amendment was voted down last week. This amendment to the 2016 Military Construction and Veterans Affairs Appropriations Bill (H.R. 2029), would have automatically debarred federal contractors that (self) reported having a FLSA violation over the last 5 years. Current laws already have suspension and debarment processes for employers with a history or pattern of violating laws and other bad behavior. This amendment would have created a one-strike rule. It’s still possible that similar amendments could show up in other bills this year, but this defeat should make future efforts easier to block.

And for the bonus round……………….the NLRB! Again. Still. *sigh*

The National Labor Relations Board (NLRB) has issued a call for briefs asking whether a union should be able to charge nonmembers fees for processing grievances in right-to-work states. In right-to-work states, union security clauses that require employees to become members and pay dues and fees as a condition of continued employment are not legal. So, it follows that charging a fee to process a grievance when one is not a member of the union should not also be allowed. This action is seen as a direct reaction to states passing right-to-work laws (Michigan, Wisconsin and Indiana most recently).

In the case before the board that prompted its call for briefs, Jimmie Ray Williams, an employee of Buckeye Florida Corp., alleged that the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 1192, AFL-CIO, CLC violated the National Labor Relations Act (NLRA) by requiring him to pay a fair share fee (equal to the dues paid by union members for the remained of the collective bargaining agreement term) to process his grievance concerning an alleged overtime violation. This is in the state of Florida which is a right-to-work state. Williams filed an unfair labor practice charge against the union with the NLRB, which ruled on March 24, 2014, that the union’s Fair Share Policy violated the NLRA. So, now the NLRB is looking to change that. Hmmmmm. Apparently the NLRB is questioning if they can have it both ways. The rest of us are questioning just how far the NLRB will be allowed to go to stack the deck in favor of unions that are being seen as less and less relevant to today’s workforce.