Thursday, May 25, 2017

Workplace Drug Use News

Where are we going?


Every year, Quest Diagnostics, a leading provider of pre-employment, random, post-accident and reasonable cause workplace drug screening, issues its report on the trends of positive illegal drug test results in the workplace.

The Quest Diagnostics Drug Testing Index reveals some alarming data. Illicit drug use in the American workforce, has reached the highest positivity rate in 12 years. Quest compiled this number from an analysis of more than ten million workforce drug test results.

4.2% of the workforce and covers the board spectrum of drugs – marijuana, cocaine, methamphetamines, etc. This is the highest rate since 2004.

Marijuana use continues to rise in safety-sensitive jobs that require drug testing under federal law—like truck drivers and pilots—as well as in the general workforce, according to the Quest study.

In Colorado and Washington, where recreational use of marijuana was legalized, the overall urine-test positivity rate surpassed the national average in 2016.

Since this rate is increasing across the board – not just in states where it’s legal, it strongly suggests a change in attitude more than a change in the laws, as the report states. 
Our more lax attitude about illicit drug use in general, and marijuana use specifically, has had some significant and negative effects. A Denver, Colorado grocery supplier, McLane, employs forklift drivers who load heavy boxes into trucks. McLane employees need to stay alert and operate in a safe manner. But the company is having difficulty hiring since a large number of prospective employees fail the drug screen.

"Some weeks this year, 90 percent of applicants would test positive for something," ruling them out for the job, said Laura Stephens, a human resources manager for the company. "Finding people to fill jobs," Stephens said, "is really challenging." She stated that they saw a huge spike in positive tests after pot became legal. No small wonder.

Think about that for a beat – 90% of their applicants failed the drug screen. 
As the Quest study notes, the positivity rate for cocaine use rose as well. This is the fourth consecutive year in the general U.S. workforce and for the second consecutive year for safety-sensitive jobs that require drug testing under federal law. Post-accident urine tests showed cocaine use twice as often as pre-employment drug tests.

Positive drug-test results for amphetamines—including methamphetamine—also continue to increase.

"Although methamphetamine positivity in urine testing declined between 2005 and 2008, the positivity rate plateaued between 2008 and 2012, and has increased steadily since," according to a Quest press release. Furthermore, between 2012 and 2016, the positivity rate climbed 64 percent in the general U.S. workforce.
While federal law still prohibits illicit drug use, and controls medical use of certain drugs, for truck and school bus drivers as examples, states legalizing marijuana often don’t adequately consider workplace issues around drug use. 

Recently, however, Arkansas made some positive moves in this area concerning medical marijuana use and the workplace. Among the provisions now codified in Arkansas law are:
  • Clarifying that certifying an individual as a qualifying patient "is not a medical prescription."
  • An employer cannot be sued under the MCA if acting in accordance with a drug-free workplace program or policy.
  • An employer cannot be sued under the MCA if acting on a "good faith belief" that marijuana was possessed or used on the premises of the employer or during the hours of employment. "Good faith belief" is separately defined and examples are provided.
  • An employer cannot be sued under the MCA if acting on a "good faith belief" that the employee or applicant was "under the influence" of marijuana while on the premises of the employer or during the hours of employment. "Under the influence" is separately defined and examples are provided.
  • An employer cannot be sued under the MCA if excluding or removing an employee or applicant from a "safety sensitive position" based on the employer's good faith belief that he or she was engaged in the current use of marijuana. Generally, a positive drug test for marijuana cannot provide the sole basis for a good faith belief.
  • Individuals (e.g., managers, supervisors, etc.) cannot be individually sued under the MCA.
More attention needs to be paid to the "unintended" consequences of efforts to end the war on drugs. While I think most of us can get behind the idea of not punishing illegal drug users with lengthy prison sentences, we can’t go so far to endanger lives and our economy in the process. If companies can’t find sober applicants to fill necessary jobs, fewer drug users in prison won’t help us much. If we’re going to legalize the use of mind-altering drugs, including allowing their use in the workplace, are we going to simply forgive and forget when an impaired employee injures or kills someone?

Thursday, May 4, 2017

House Passes Comp Time Bill

Let the games begin…..


So, again, there is an attempt to offer private-sector employees something that public-sector employees (local, state and federal government employees) have always had: the ability to receive compensation for overtime in time off rather than cash (wages). And again, there are those who disagree strongly. Nothing unusual there; although that opposition again presents itself in some pretty ugly ways. Specifically, the provisions of this offering are often misrepresented, or are even flat-out presented falsely.

What are we talking about? Here are two articles that give you the gist of the bill. One from NBC News and one from The Hill. Basically, the bill would allow private sector employers to offer their hourly, non-exempt employees the choice of receiving time and one-half pay for hours worked over 40 in a workweek, or receive the same amount in time off – or "compensatory time". It is completely voluntary, must be agreed to before the work is performed, and the agreement can be revoked by the employee at any time. Those are the basics.

Opponents are saying that it will allow for the employer to coerce employees into accepting time-off vs. pay for overtime worked, and that it delays their receipt of the compensation since the employer can dictate when time off can be taken. 

There are two quotes that (so far) have really stood out for me, and illustrate the "false" and "misleading" charges I stated above.

Sen. Elizabeth Warren tweeted "Today, @HouseGOP are voting to make it legal for employers to cheat workers out of overtime. It's a disgrace." Really, Sen. Warren? So, does that mean that all local, state and federal government employees have been cheated all these years? Does that mean that the congressional aides that work for you are being cheated? If so, then there are tens of thousands of government employees who should now have a massive class action against the federal government. I wonder how that will work. This bill simply gives private employers the same ability that public employers have had – and gives private-sector employees the same option that public-sector employees have had. And, I might add – with more generous terms across the board.

The decision to accept time off in lieu of wages is voluntary, and can be revoked at any time by the employee. The bill does not allow employers to make a wholesale decision for all employees across the board forever. Each individual employee can make his/her own decision at any time, and revoke it at any time. The bill also requires that any unused comp time be paid out within 30 days of the end of the year (either calendar or fiscal, depending on how the business operates). It also requires that the time be paid out at the wage rate either in effect at the point the time was earned, or when it is paid out – whichever is higher. Similar provisions are included in the instance an employee changes his/her mind and wishes to receive pay instead of comp-time during the operating year. 

Rep. Suzanne Bonamici states that "This bill takes away overtime pay and instead the worker gets a vague ‘IOU’." A tad misleading Ms. Bonamici. Just is as the case with any request for time off, an employer is allowed to require reasonable notice of intent to use the compensatory time. Again, it doesn’t take away overtime pay. It simply offers employees a choice – again the same choice enjoyed by government employees.

These two quotes, and others like them, are what most news outlets have been leading with when reporting on this bill. They fail to go into any detail whatsoever that would more adequately explain the true nature of this bill. If you only listen to or read the "headlines" you don’t get the full story or the true story. No one should decide whether this is a good bill or a bad bill based only on what the attention-getting story "headlines" are, or even just reading a blog on the internet. Dig deeper and get the facts, then make your decision. In light of that, here is the actual text of the bill (it's fairly short, so don't panic!):

HB 1180

Friday, April 28, 2017

HR Basics v. Frills

Build a strong foundation before adding the juice bar


 

For 26 years, we’ve been chasing an elusive goal – employee engagement. In 1990, Boston University professor William Kahn published a research paper that sought to explain why some employees connected with their work more personally than other employees. He discovered something he called "engagement". We’ve been after it ever since. At that time, the research showed that only about 30% of employees were "engaged". Today, that number hasn’t really changed. Obviously, we’re doing something wrong, and keep on doing it. Sound familiar?

While I’m not sure what the answer (or, more likely, answers) is, I believe I know one huge obstacle. We simply fail to build a strong foundation. Without that, there is nothing to support all those nice-to-have perks that we think we must have in order to get "engaged" employees. Of course, it seems clear that all those desirable perks don’t really add much to the engagement formula, either. If you don’t have a proper foundation, you’ll miss other, equally important concepts as well. Do you want a culture of respect and civility? Do you want professional and business growth? Start with your foundation.

Many big companies and even start-ups have focused on adding perks to their workplaces in some pretty impressive ways. In-office yoga and massages, X-box, PlayStation, and yes the ubiquitous Foosball tables. Google with its bocce-ball courts or spa services is another good example. While I’m sure that some of these things make some of the employees happy, some of the time, happiness does not promote engagement or productivity.

A solid HR foundation should encompass at least the following:


  • Improve performance management processes and accountability
  • Provide employee training and development
  • Enhance effectiveness of the senior management team
  • Improve leadership development programs
  • Maintain appropriate compliance standards


No combination of spa services, game rooms or juice bars will fix a broken culture and bad management. If you don’t think this is important take a current look at Fox News, Uber, our military academies, Sterling Jewelers, and many more. These are just the cases that have hit the national news. Ask these companies if the PlayStation prevented the situations they’re now facing.

Gallup’s surveys consistently show that the most powerful driver of engagement is high-quality leadership and coaching. At least 70% of the variance in engagement scores across business units comes from employees’ feelings about the managers to whom they report. 

Satisfied or happy employees are not necessarily engaged. And engaged employees are the ones who work hardest, stay longest, and perform best.

"If you're engaged, you know what's expected of you at work, you feel connected to people you work with, and you want to be there," says Jim Harter, Ph.D., Gallup's chief scientist of workplace management and wellbeing. "You feel a part of something significant, so you're more likely to want to be part of a solution, to be part of a bigger tribe. All that has positive performance consequences for teams and organizations."

Developing your leaders and their leadership skills is imperative. Many of the qualities that drive effective management are learned behaviors: good communication, project management, conflict resolution, ethical behavior and more. HR can foster this development if given the opportunity and appropriate resources.

Gallup’s State of the American Workplace is a comprehensive report, but worth the read.  For easier reading and finding your interest, the subsections are broken out. Take a look.

For a great summary of the report, head on over to China Gorman at TLNT.

Thursday, April 13, 2017

Final Update – Maryland General Assembly 2017

And the votes are in………



Wow. Kind of a surprising session this year. It started off quite active in terms of employment law/workplace regulation, seeing returns of many bills presented repeatedly over the last several years, but ending with only one significant bill being passed – almost. More on that below.

We saw returns of so-called "predictive scheduling" laws, minimum wage increases, attempts to bring the failed federal overtime minimum salary increase to Maryland. All of those efforts failed to make it out of committee.

Just like the old saying that we don’t really want to know how sausage is made, many of us probably don’t know, or want to know, the whys and wherefores of how and what laws gets passed. I find it fascinating, however. This session left me with more questions than usual.

The first (and probably most obvious) question is why so many bills were proposed but failed to get much attention at all in committee? The easy answer would be that the legislature was focusing all its attention on getting the paid sick leave bill passed – even at the expense of one of the two minimum wage bills. Neither minimum wage bill received much discussion and didn’t progress through committee to the degrees of the past, despite all the marches, protests and "fight for fifteen" events around the state and around the country. Did they lose their appetite for this movement? Hard to know. 

Events in Baltimore City surrounding raising the minimum wage there to $15.00/hour by 2022 highlighted an interesting situation. While the Baltimore City Council did indeed pass that law for the city, Mayor Pugh vetoed it, saying she felt putting Baltimore City in a "donut hole" relative to surrounding jurisdictions would be detrimental and she would rather see such a change coming at a state level. But…………..when an effort was made by some council members to call for a special meeting to override her veto – they couldn’t get enough council members to sign on, therefore killing the law at least for this year. Given the hue and cry from the council for quite some time over this issue, I have to wonder why they couldn’t pull it together enough to force the meeting and override the veto. When push came to shove, they …..dodged. Might there be a hint in this concerning actions at the state level?

Both minimum wage bills in General Assembly failed. One – raising the minimum to $12.50/hour, received an unfavorable report in committee and was withdrawn. The other, raising the minimum to $15.00/hour and eliminating the tip credit for tipped employees, died in the Senate Finance Committee – no action. Hmmmmmm.

Passing laws to prohibit employers from seeking salary history information from applicants has increased this year (Philadelphia, New York City, and Massachusetts among them). A bill presented here in Maryland this year was expected to get at least a fair amount of discussion, if not actually passed. Instead, it fell pretty flat.

Two "predictive scheduling" bills were presented too late in the session and were referred to the respective Rules committees as is procedure when a bill is presented after the normal deadline. This step is often a formality and the bills are passed through. Not the case with these bills. They languished in the Rules committees. Both of these bills were amended from prior years and now specifically targeted the retail establishment rather than all employers. 

Now we get to the paid sick leave bill. You’ve heard all the speeches, all the politicians, celebrities and others (most of whom have no idea of what it’s like to run a business, by the way)? You’d have to be pretty oblivious to have missed all of this by now. So, two bills were presented this year (two seems to be the preferred number of options here in Maryland). The Governor’s submission – calling for 5 paid leave days (not just sick leave), applying to businesses with 50 or more employees – didn’t get any discussion whatsoever. They simply ignored it. The state Democrats fought over their own bill – see the summary here

So, this bill sat around in both the Senate and the House committees for at least a couple of weeks. Presumably, they were talking back and forth about how to reconcile the two versions (and they were different). But, you would think that based on how important they felt it was to get people covered with paid sick leave, they would have acted a bit quickly. Instead, they didn’t (it appears) make the final decision to put the Senate version to a full vote until it was too late to override the expected veto – during the current session. Assuming the Governor vetoes this bill – and he has promised to do so – they will have to wait until January to vote to override. What kept them from getting it out in time for the Governor to register his veto, and for them to vote to override?

Interesting question. In order to override a veto in Maryland, our state constitution calls for 3/5 of both houses to vote for the override. The House passed the bill with a small cushion of 2-3 votes. However, the Senate passed the bill with the exact number it needed – 29. In other words, if there is even one defection, they will not be able to override the Governor’s veto. A lot can happen between now and the third week of January 2018. Does the loss of appetite in the Baltimore City council for the minimum wage bill hint at what may happen? When push comes to shove in January, will the votes be there for paid sick leave?

Friday, March 24, 2017

New Update Maryland Employment Legislation

It ain’t over till it’s over…


 

Arguably the most active – and – fought over, piece of legislation this year in Maryland is HB0001/SB0230 – Maryland Healthy Working Families Act. Here’s where we stand today:

This sick and safe leave bill passed both a full House of Delegates and Senate vote; it is currently working its way back to the House for a first round to attempt reconciliation of the now two versions of the bill. The Senate passed several amendments (last year it did not get out of the Senate Finance Committee). Ten amendments were offered in the House and all but one was rejected. Current Senate amendments provide that businesses with 15 or more employees are covered but would apply to employees working at least 12 hours per week; requires accrual of leave at the rate of 1 hour of paid leave for every 30 hours worked, up to 40 hours per year. This bill has several other very proscriptive provisions on how, when and under what circumstances leave can be accrued used or denied. It does also include a pre-emption for future local jurisdiction laws. The preemption clause along could sink any reconciliation.
As a reminder, and with the changes made by the Maryland Senate, here are some of the many provisions of this bill:

  • Applies to businesses with 15 or more employees. (Businesses with fewer than 15 employees must provide unpaid sick and safe leave, and therefore must track how much unpaid leave these employees use.)
  • Applies to employees working at least 12 hours per week, or 24 within a two-week pay period.
  • Provides 1 hour of sick and safe leave for every 30 hours worked.
  • Allows an earnings cap of 40 hours per year and usage and accrual caps of 72 hours per year.
  • Allows a waiting period for use of leave for the first 106 calendar days of employment. (This was a small concession to exclude "seasonal" employees as eligible for paid leave.)
  • Requires carryover of accrued leave up to 40 hours year to year. Carryover is not required if all leave is granted in a lump sum at the beginning of the year.
  • Allows "borrowing" of time before earned/accrued.
  • Requires reinstatement of unused leave if a separated employee returns within 37 weeks of leaving (unless unused leave was paid out upon termination).
  • Requires allowing use of leave for non-illness –related reasons.
  • Includes grandparents, siblings, etc., in definition of "immediate family".
  • Only allows verification/justification of leave if used for more than 2 consecutive shifts.
  • Changes "presumptive violation" to "rebuttable presumptive violation". Small consolation. Before the bill required the assumption the business was in violation of the law from even a small, obviously unintentional recordkeeping error. So, now, the bills allows the business to "rebut" that presumption. And, the penalties are higher than any other employment regulation penalties in the state.

 
Meantime, the Governor’s paid leave bill sits in committee with absolutely no action. 

Not surprisingly, Governor Hogan has proclaimed this bill "dead on arrival". The question now is whether or not enough votes are available for an override of that veto should we come to that.

If any version of this bill passes, businesses will need to very carefully review all the provisions in detail in order to ensure compliance. This goes far beyond a simple paid leave law. It dictates who, how, and when leave must be earned, accrued, carried over and under what specific circumstances foreseeable leave can be denied. It is more extensive than any paid leave law in the country.

Thursday, March 16, 2017

Health Insurance vs. Health Care

They are not the same


Prior to the Affordable Care Act going into effect in 2010 (was it really that long ago?) I remember all the hype, all the debate and the marketing touting it as a huge improvement in health care for Americans. As someone who was actually paying attention in the early years to what this law would actually do, I was always surprised at this argument and how so few were listening to those who actually "got it". The ACA did very little, if anything, to improve health care, and wasn’t really intended to. It also didn’t do anything, and wasn’t really intended to reduce the cost of health care. In some ways, it increased the cost of health care (through various taxes and fees).

The ACA was intended to lower the cost of, and therefore increase access to health insurance. The reasoning was that if more people could be covered by health insurance, more people would be able to access quality health care. Noble intentions. Unfortunately, for various reasons, those intentions have not been realized. Access to health insurance does not equate to access to health care. While more people may be able to afford an insurance policy, that does not mean they can afford to get actual health care. High deductibles, co-pays and co-insurance make it very difficult and sometimes impossible for many people to actually use their newly gained health insurance. Maximum out of pocket limits be damned – if you can’t afford to go the doctor, or get the treatment your doctor recommends because you don’t have an extra $2000 or more (for an individual) laying around to cover the deductible, and then the additional costs of co-pays and co-insurance, you still don’t have access to health care. Those figures rise with plans with lower premiums and with family plans.

Over the past seven years, there have been numerous analyses on the failures – and some successes – of the ACA, and I won’t reiterate them here. If you’re not aware of this, you can easily find them through a simple Google search. But suffice it to say that whether you are talking about how the law affects individuals, or the failures of the risk corridor plans, or any other aspect of the law – it isn’t working anywhere near its original goals.

Now, with the release of the Republican’s initial try at repealing and replacing the ACA – the American Health Care Act – the debate is raging again. 

The problem is that the real issues are still not being addressed. First and foremost, let’s be clear: this is about the individual market – meaning insurance purchased by people who do not have access to an employer’s group plan or some government program. The group market (employer-based insurance) works quite well. Yes, premiums are rising in the group market as well, because the cost of medical care is high, and continues to rise. But insurance available through most employers is by far less expensive and covers more than plans available to individuals.

As someone with first-hand experience with insurance in the individual market, I can tell you that it is not "affordable" and I have difficulty seeing how someone of lesser means is able to get quality health care on a regular basis with current individual plans. Whether you purchase a plan through an Exchange, or directly from the insurance company, the plans are all the same (as required by the ACA). 

I believe the most important issue underlying this whole debate/discussion is that the cost of medical care in the United States is ridiculously high and keeps growing. No insurance policy is going to cure that problem. No law that pretends to extend access to insurance coverage to everyone is going to cure that problem. And yet, there doesn’t seem to be much effort expended on addressing this issue – partly because there continues to be this ridiculous penchant for equating health insurance with health care.

Will the American Health Care Act be any better, once it reaches its final form? Probably not. Any such efforts (whether the ACA or the AHCA) will continue to fail for many reasons. Until we address the actual cost of medical care, there doesn’t appear to be any solution that will work for everyone or even most everyone.

What’s the answer? I have no clue. But, then again, I’m not being paid to find the solution; I haven’t been elected by my constituents to find the solution. And frankly, I doubt the people who are being paid, and who have been elected, are capable of finding that solution. Another thing people neglect to understand is that none of these people have to worry about their health insurance. I’d be willing to bet none of them really understand what current individual health insurance policies actually cover or cost. If they’ve ever had to purchase an individual plan (I doubt few of them have), they can afford to purchase the highest level plans and can afford the huge premiums attached to those plans. The rest of us can’t. 

I’d love to sit down and have a discussion with the likes of Nancy Pelosi or Paul Ryan to hear what their health insurance plans cost them, what they cover, and most importantly, if they truly understand all the issues facing people who must purchase their insurance on the individual market.

Thursday, March 2, 2017

U.S. Chamber Report on NLRB Policies


10 of the worst…..


The U.S. Chamber of Commerce recently released a report highlighting what it feels are 10 of the worst NRLB policies the NLRB adopted during the Obama administration.

Here are the 10 the report cites:

  • Authorizing small groups of employees – or "micro unions" – to organize
  • Allowing workplace "ambush" elections over whether to form a union in as few as 10 days
  • Exposing businesses to "joint employer" liability for workplaces they do not control and workers they do not employ
  • Prohibiting class action waivers in employment arbitration agreements, which are intended to speed the resolution of workplace disputes and discourage costly class action litigation
  • Restricting unions and employers from voluntarily agreeing to resolve unforeseen bargaining issues via "management rights" clauses
  • Forcing employers to bargain with a union before the two parties even reach a first contract
  • Mandating that employer-owned email systems may be used for union organizing activities
  • Invalidating a wide range of employee handbook policies to prevent obnoxious, obscene, and harassing behavior
  • Eroding the confidentiality of workplace investigations
  • Expanding picketing rights at the expense of employers’ private property rights

I’d add the unending number of decisions related to social media use by employees and the also constant decisions defending harassing and discriminatory behavior on picket lines and/or during union organizing efforts.

This report speaks to the trend of the board to upend and overturn long-standing labor policies that had been supported by both Republicans and Democrats and that now are clearly weighted in favor of unions. Regardless of how one feels about unions or the NLRB, it was never the intent (I don’t believe) for the National Labor Relations Act to be that unbalanced.

Restoring the proper balance to the board, and therefore to labor policies, should be a priority of not only the current administration, but to our elected officials in general – regardless of party.

Thursday, February 23, 2017

Age Discrimination

Oh, yes. It’s alive and well.


There are numerous federal, state and local laws prohibiting age discrimination in employment practices, along with all the other characteristics such as gender, race, nationality, religion, etc. Most of these get a great deal of attention both in the media as a whole, as well as in HR circles. Age discrimination doesn’t get that same attention. Are older workers the forgotten minority? According to the 2016 census, over 39% of Americans are over 45 years of age, and that percentage is growing.

According to the EEOC charging statistics, there were 20,857 claims filed under the Age Discrimination in Employment Act (ADEA) in 2016; and 22,594 claims resolved in 2016. If "failure to hire" claims were easier to make, these figures would be far higher. By comparison, there were 32,309 race-based charges and 26,934 sex-based charges filed in 2016.

Older workers face this additional obstacle to keeping their existing job or finding a new job. But why? Is there any reasonable explanation for employers to bypass folks over a "certain age"? Let’s take a look at a couple of the most common reasons employers tend not to hire older workers and then let’s look at the facts.

Older people won’t stay in job very long because they’re near retirement age.
According to the Bureau of Labor Statistics, the median number of years all workers stayed in any job was 4.2 years. Median employee tenure was generally higher among older workers than younger ones. For example, the median tenure of workers ages 55 to 64 (10.1 years) was more than three times that of workers ages 25 to 34 years (2.8 years). Also, a larger proportion of older workers had 10 years or more of tenure. Among workers ages 60 to 64, 55 percent were employed for at least 10 years with their current employer in January 2016, compared with only 13 percent of those ages 30 to 34.

Let’s highlight this: workers aged 25 to 34 years only stayed in jobs for 2.8 years. That pretty much puts the lie to the myth, doesn’t it?


Older people are less productive, or have less energy or stamina than their younger counterparts.
In an AARP study, A Business Case for Workers Age 50+, results confirmed earlier research regarding the productivity of older workers.

From the study:

"…………because of changes in how companies compensate their employees (including pay being tied more closely to performance than to tenure), older workers do not cost significantly more than their younger colleagues. In fact, older workers tend to be more engaged than younger workers, which contributes directly to a company’s bottom line."

The study also found that older workers actually tend to be more productive than younger ones. Even in physically demanding jobs like assembly line work, older employees tend to perform better because, quite simply, they make fewer mistakes. Older workers also tend to be more educated, and of course, more experienced than their younger co-workers.

And, quite importantly, older workers are not only are well-versed in the use of technology — computers, tablets, social media and the like — but are eager to learn about new tech developments in their fields because they are motivated to keep up on advancements in their field of choice.

So, how long do you expect any employee to stay in a job? What’s best for your company; is it 2 or 3 years, or 5 or more? Look at the BLS data and the trends you see in your own business. People overall are staying in jobs for shorter periods, and this is especially true of those under 35. Passing on a candidate who you feel is "too old" because you fear he/she will leave the workforce too soon becomes a false belief (and frankly, always has been, hence the laws against age discrimination).

What’s important in any business today? With competition and the costs of failure, getting the job done right at the outset is most likely one of the top items on your list. Bypassing experience, knowledge, skill and dare I say it – wisdom – is pretty short-sighted and won’t bode well in the long run for your bottom line. 

So, while "young and energetic" may seem like great selection criteria, who will be left to execute those ideas (effectively and productively) when the young and energetic move on in 2 years?

Think about these things the next time you ask an applicant how long she intends to be in the workforce, or if he’ll be needing the health insurance, or when she graduated from high school/college. Do you ask the same questions of candidates who appear to be in their 20’s or 30’s, and if not, why not? What you’re looking for in a candidate is not a function of age.

Friday, February 10, 2017

Update Maryland Employment Legislation



While today (2/10/17) is the last days bills can be presented in the House (2/3/17 was last day for bills to be presented in the Maryland Senate), more could slip through after being reviewed by the House Rules and Executive Nominations Committee or the Senate Rules Committee, so stay tuned….

There have been several bills presented this session that appeared in prior sessions and a few new ones. I’ve highlighted those that I believe would have impact on the business community in terms of employment law/workplace regulation.

Again this year, paid sick leave is at issue in Maryland (as in other states). This time around, we have two competing bills – one is simply a repeat from last year, and the other is our Republican Governor’s compromise bill.


HB0001/SB0230 – Maryland Health Working Families Act
This is very similar to the amended bill that was in place at the end of last year’s session. It includes the following main provisions:

  • Applies to businesses with 15 or more employees. (Businesses with fewer than 15 employees must provide unpaid sick and safe leave.)
  • Applies to employees working at least 8 hours per week.
  • Provides 1 hour of sick and safe leave for every 30 hours worked.
  • Allows an earnings cap of 56 hours per year and a usage cap of 80 hours per year.
  • Allows a waiting period for use of leave for the first 90 calendar days of employment, or 480 hours of work, whichever is shorter.
  • Requires carryover of accrued leave up to 56 hours year to year. Carryover is not required if all leave is granted in a lump sum at the beginning of the year.
  • Allows "borrowing" of time before earned/accrued.
  • No requirement for pay out of unused, accrued time upon separation of employment.
  • Requires reinstatement of unused leave if a separated employee returns within 9 months of leaving (unless unused leave was paid out upon termination).
  • Requires allowing use of leave for non-illness –related reasons.
  • Includes grandparents, siblings, etc., in definition of "immediate family".
  • Only allows verification/justification of leave if used for more than 2 consecutive shifts.
  • Includes local jurisdiction pre-emption for any bills taking effective on or after 1/1/17.
  • Excludes employees working in the construction industry.
  • Violations result in treble damages, punitive damages, attorney’s fees, injunctive relief
  • Would be effective as of 1/1/18.
  • HB0382/SB0305 - Commonsense Paid Leave Act
    Governor’s bill: This is a paid leave bill – not just a paid sick/safe leave bill. 

    • Covers employers with 50 or more employees. Businesses with fewer than 50 employees that choose to provide such leave may be eligible for subtraction modification.
    • No requirement for payout of unused, accrued leave at time of termination
    • Includes pre-emption of local laws. This includes pre-emption of laws already passed by local jurisdictions. In other words, no local jurisdictions (city or county) can pass a wage or benefit law different from state law).
    • Applies to employees working at least 30 hours per week. Will be counted as an employee if worked at least 120 days total, and at least 30 hours per week in the previous calendar year.
    • Provides 1 hour of paid leave for every 30 hours worked, up to a total of 40 hours annually.
    • Does not apply to employees working less than 120 days per year (seasonal).
    • Does not apply to construction industry or to employees covered by CBA’s.
    • Allows for carryover of up to 40 hours per year.
    • Penalty for non-compliance is $300 per employee, or $600 per employee for subsequent violations for the same employee within 3 years. Allows for injunctive relief for subsequent violations.
    • Would be effective 10/1/17. At a minimum this should be changed to 1/1. An October effective date results in employer’s managing two different leave accrual systems for the last quarter of the year and reconciling the new requirement to existing policies.
    As you can see in comparing the two paid leave bills, even if your company already provides paid leave to your employees at least as generous as the first bill, you will still be affected since you most likely don’t extend leave to employees working as little as 8 hours per week and you don’t reinstate unused leave if an employee returns to your company, as just two examples.

    An interesting development recently, and one that has garnered a bill in Maryland this year, is the building trend of states pass pre-emption laws. This is clearly in response to the ever-growing list of cities and counties passing their own wage and benefit laws, leaving those states with a patch-work quilt of regulations that cover the same issue, but provide competing and conflicting requirements.

    Philadelphia has had its own paid sick leave bill since May of 2015. However, a group of PA state senators have announced they were re-introducing legislation that would stop municipalities from passing paid leave ordinances. The reasoning being that such ordinances hurt small businesses and force larger businesses that have multiple locations to comply with differing and conflicting rules.  That bill was introduced in January and is now pending in the State Senate.  In addition, other states such as Wisconsin, Arizona and Florida, have already passed statewide laws preventing cities and other local governments from passing their own sick leave ordinances.

    As mentioned above, this bill prohibits a county or municipality from enacting a law that regulates wages or benefits that differs from state law (except laws/ordinances dealing with the local jurisdictions own employees).

    Having different minimum wages in different jurisdictions will (and already does) result in unnecessary burdens on businesses with more than one location in a state (disruptions to an employer’s ability to staff locations, having to manage compensation plan for reasons unrelated to skills, knowledge, etc. and based only on the actual location; additional compliance and recordkeeping requirements, etc.).

    The delegate who sponsored this bill is a Democrat, and he is taking a huge raft of sh*t from his party for doing so. I applaud his courage to at least attempt to address the issue.
     
    HB0398/SB0404 - Equal Pay - Job Announcement and Salary History Information Disclosures
    This is a re-introduction of a bill presented last year requiring employers with 15 or more employees to include specific information in a job posting and to prohibit seeking salary history information from applicants.
    1. Employers cannot prohibit employees from discussing or disclosing the wages of the employee or other employees, and cannot take adverse action against an employee who does.
    2. Job posting must include the following information:
    3. Minimum rate of pay
      • How pay is calculated (hour, shift, day week, etc.)
      • If position is eligible for overtime, and what that rate is (includes other allowances such as tip credits, meals, etc.)
    4. Prohibits the employer from paying less than what is stated in the job posting.
    5. Prohibits employer from seeking by any means the prior salary history of the applicant.
    6. Prohibits screening applicants based on their prior salary history, or qualifying that applicant to proceed in the hiring process.
    7. Only allows seeking prior salary history information after a specific offer of employment is made and the applicant authorizes the employer to seek the information.
    8. Prohibits employers from disclosing salary history information to prospective employers, unless specifically authorized to do so by the employee/applicant.
    While federal law has guaranteed employees the right to discuss wages, hours and other conditions of employment for decades, this bill unnecessarily includes it. Further, these provisions remove the rights and flexibility of an employer to change the wage range of a job based on factors relevant to the job and to the available applicants, without first having to re-advertise the job with the new rate. It also places restrictions on what an employer can say to other, prospective employers seeking reference/background information. Employers do not, contrary to popular belief, rely solely on previous salary information to negotiate wages with new employees.

    There is no objective data suggesting that eliminating salary history information from the hiring process or adding this information to job advertisements, furthers the goal of ending illegal pay discrepancies.

    While I believe that employers should not place an inordinate amount of importance on the prior salary history of an applicant, laws prohibiting this practice will do very little to "fix" the issue they are intended to address. 

    HB0531 - Right to Work
    Sad, but his won’t have any better chance of passing this year than the many years prior. It will prohibit an employer from requiring, as a condition of employment or continued employment, an employee or a prospective employee to join or remain a member of a labor organization, pay charges to a labor organization, or pay a amount to a third party (basically, "maintenance fees" or "agency fees".
    In 1935 the National Labor Relations Act was signed into law granting American employees the right to organize and be represented by a union if they choose to do so. It is far past the time when we should also grant American employees the right to choose NOT to be represented by a union they don’t feel benefits them, and not force them to financially support that union. There are now 28 states with Right to Work laws.

    In an attempt to address what they feel the Trump administration has done, or more accurately, what they fear it will do, several states are attempting to pass laws to pre-empt federal action. An example is the minimum salary required for exemption under the state Fair Labor Standards laws.

    HB0665/SB0607 - Exemptions From Overtime Pay - Administrative, Executive, or Professional Capacity - Oppose
    This bill raises the minimum salary to be exempt from overtime regulations to $913 per week, adjusted every 3 years.
    • Includes the standard exclusions for agriculture, entertainment, camps, etc.
    • Also excludes cafe, drive–in, drugstore, restaurant, tavern, or other similar establishment that sells food and drink for consumption on the premises; and has an annual gross income of $400,000 or less.
      This past November, U.S. District Judge Amos Mazzant ruled the federal DOL’s new overtime rule "unlawful" and granted a temporary injunction preventing it from going into effect on December 1, 2016. Among other arguments, Judge Mazzant held that Congress had intended the Executive, Administrative, Professional (EAP) exemption to depend on an employee’s duties rather than an employee’s salary. Further, he held that the DOL exceeded its delegated authority and ignored Congress’s intent by raising the minimum salary level such that it "supplants the duties test".

      The Maryland bill, as in the DOL’s final rule, does much the same. While it may be argued that the minimum salary amount should be increased, a more than 100% increase is unreasonable and completely negates a very important factor in determining whether an employee should be exempt from overtime – the actual duties the employee performs.

      Members of Congress (both Democrats and Republicans) reacted negatively (see HR Policy Association) to the rules when first proposed. It’s pretty telling when even our elected representatives themselves say they would have difficulty with the new threshold.

      The costs of compliance with such a change will force many smaller employers and non-profits to have to cut critical programming, staffing, other benefits and/or services to the public. It will most likely result in restrictions on employee work hours that will deny them flexibility and opportunities for advancement. 

       
      SB0379 - Hospitals - Changes in Status - Hospital Employee Retraining and Economic Impact Statements
      While at the time, this bill only affects hospitals, it’s a "slippery slope" warning for the rest of us. If passed, I don’t think there’s much doubt it will be amended in the future to include all types of business. It requires a hospital that voluntarily converts to a freestanding medical facility or is acquired by another hospital or health system to pay a fee directly to the Department of Labor, Licensing, and Regulation if workers are displaced.

      • The fee may not exceed 0.01 percent of the gross operating revenue for the immediately preceding fiscal year.
      • Fees will be paid into the Hospital Employees Training Fund.
      • Requires the entity to provide an economic impact statement within 90 days of the decision to the Maryland Health Care Commission detailing the potential economic impact of the dislocation of the hospital’s employees.
      It would seem that penalizing (in essence, taxing) a business for making decisions based on a determination of what is in the best interest of that business’s health (and continued ability to employ some number of citizens) does not add to an environment that is conducive to attracting or retaining business to Maryland. Furthermore, employers already pay into the Unemployment Insurance Fund for the benefit of Maryland citizens who qualify for benefits. As with many such bills targeting a specific industry or type of business, the likelihood of future amendments to the bill to extend the provisions beyond the original scope is also very concerning. And if you think that this "training fund" won’t become another slush fund from which the state will "borrow", you’re kidding yourself.

      I’ll be keeping an eye on these and other bills – and any that drop between now and the end of Session. Updates later!
       

      Thursday, February 2, 2017

      Can We Have a Conversation, Please?



      A bit of writer’s block this week, but there is something I’ve been thinking about quite a bit lately. Actually, it’s something I’ve noticed more and more over the last several years.

      We don’t have conversations anymore. Or more specifically, we don’t converse – we talk at each other or over each other. And we don’t even do that in a civil manner. I only use "we" because on occasion, I see myself falling into this really bad habit, if only because failing to do so means I get pushed out of the conversation!

      I see this in business settings, on TV news programs and in private conversations. What happens?

      First, everyone is speaking as fast as possible – probably because they know, consciously or not, that they have very little time to get out their point before someone else (rudely) interrupts them. And that may be the big takeaway here – the interruption. Can’t tell you how many times I’ve witnessed a conversation where everyone participating continually interrupts someone else. No one seems to be allowed to actually finish a sentence before someone else rolls over them. And then there’s the volume. The faster they speak the louder they get. Again, I can only imagine it’s some reaction to ensuring their contribution to the conversation is heard, or trying to ensure they actually get the opportunity to contribute.  That's not conversing, folks.  That's just noise.

      Watch any news program – regular news broadcasts, or any of the many news discussion programs and pay attention. I realize they have a limited amount of time to cover the stories or news items, but speaking at about 150 mph doesn’t help the audience if the audience can’t catch what’s being said. And saying it louder doesn’t solve that problem!

      But as I mentioned above, the real issue here is that we simply won’t let others speak without interruption. How do you have an intelligent, open conversation with anyone if no one can finish a sentence? Want an answer to your question? Great, shut-up and listen. Even if you think the answer is non-responsive to your question, you can always follow-up with another question. But rudely interrupting isn’t going to get you anywhere. I think you can probably guess that constant interruption only agitates the other party.  Nothing gets accomplished this way.

      The next time you have a conversation, be it business or personal, slow down and listen. Allow the other person to speak. In other words, converse. You might actually learn something in the process.

      Next week, I’ll try to catch you up on what’s happening in the employment law/workplace regulation arena in the Maryland General Assembly.

      Friday, January 20, 2017

      Social Media Use Strikes Again



      Almost daily, there are stories about people being fired from their jobs because of stupid, inappropriate, obscene, racist, etc., etc., etc., posts they made on various social media platforms. In most cases, the action is appropriate given the nature of those posts.

      Recently, a Frederick County Public School employee was fired after a Twitter exchange with a student in which she lightheartedly corrected a student’s spelling of the word "tomorrow". Here’s the tweet:

       



       

      As you can see, the post garnered over a 1000 "likes" and retweets at that point. When school officials became aware of the tweet – only after those 1000 or so likes and retweets, they became concerned and told Ms. Nash to delete the offending tweet and not to continue that conversation on Twitter. A school official contacted the student, who indicated he was not offended by the exchange. For several hours that day Ms. Nash continued to tweet other school news and announcements, as was her job. A week later she was fired, in a four minute meeting.

      What are the HR issues here? 

      • Did FCPS have a social media policy to guide its own social media coordinator? It appears not.
      • Did school officials make clear they intended for her to stop tweeting altogether, or as was reported, to stop that particular conversation? It appears not.
      • Did they follow (if they have one) their own disciplinary policy? Ms. Nash was fired for this one-time offense. What does their policy dictate? Only FCPS officials and Ms. Nash know this.
      • Did they fire her because they didn’t like the content of the on-line conversation, or did they fire her for continuing to use Twitter that day (see above #2)? Did this Twitter exchange really put FCPS in a bad public light? Was anyone really injured by it?
      • Was their response proportional? Seriously, did this one brief exchange really rise to the level of termination? Was the violation of rules (again, did they even have a policy/rule in place?) so serious as to warrant termination?

      I don’t think the school’s response was at all proportional to the "offense". Whether a classroom teacher or not, Ms. Nash works for a school system; in that sense, she’s an educator. Educators educate and correct. She corrected an error – in a lighthearted and almost innocuous way – albeit publically. She was also hired as social media coordinator, tasked with increasing engagement on social media. You don’t do that with boring, dry announcements. You engage.

      FCPS may feel fortunate that at least right now, Ms. Nash doesn’t seem inclined to fight this. Public opinion may change all that, but I don’t think FCPS is going to come out on top in the public opinion arena.

      Thursday, January 12, 2017

      We Should All Have the Right to Work

      Kentucky joins the ranks



      The State of Kentucky just passed a right-to-work bill and Gov. Bevin will (or already has) sign it into law. Right-to-Work laws prohibit employees from being automatically enrolled, or forced to join, a union unless that employee has explicitly stated his/her desire to join. Such laws also prohibit forcing non-union employees to pay any union dues or "maintenance fees". Kentucky becomes the 27th state to pass a Right-to-Work law.

      Union membership continues to decline and is only largest in public sector employment (government). In 2015, only 11.1% of all U.S. workers, while it was 35.2% in the public sector. The figures for 2015 are virtually unchanged from those in 2014. This interactive map from NPR shows the decline over the past 50 years.

      We could probably count – and debate – all the reasons for this decline vigorously for quite some time. In the end, however, the facts are there. Fewer people are finding that being represented by a union is in their best interests.

      Recently, I wrote about very important issue that should be in everyone’s interest. How can we continue to actively support a movement that allows racist, discriminatory and abusive behavior to thrive? We shouldn’t.

      We also shouldn’t support a movement that abridges any other right. That was the gist of a recent Supreme Court Case related to those "agency" or "maintenance" fees non-union members are forced to pay. That case resulted in a tie vote which left the practice in place, but almost certainly will be revisited when the Supreme Court is again full force.

      In 1935 the National Labor Relations Act was signed into law granting American employees the right to organize and be represented by a union. It is far past the time when we should also grant American employees the right to choose NOT to be represented by a union they don’t feel benefits them, and not force them to financially support that union.

      A Right-to-Work bill has been presented to the Maryland General Assembly each year for at least the last six (?) and has never made it out of committee. Since Maryland is dominated by a Democrat-controlled legislature (although now with a Republican governor), I don’t see such a bill getting any play this year, either. Although in the furtherance of extending many rights to employees, I don’t understand why this right should be any different.

      Thursday, January 5, 2017

      Workplace Law Outlook in Maryland for 2017

      And a look at what the feds might bring…..


      The Maryland General Assembly convenes on January 11, 2017. What can we expect from our elected officials this year in terms of employment law and workplace regulation? As in past years, it will most likely be more of the same, but the changed atmosphere could inject a bit more energy into the process.

      In Maryland, we have a Republican governor (who enjoys an unprecedented approval rating among all Marylanders) and a majority Democrat state legislature. They have butted heads already on several issues and will most likely continue to do so this year.

      I think it’s fair to say that the paid sick leave issue will take center stage in the employment-related arena (again) this year. Two bills have already been pre-filed that are repeats of the bill presented last year. It would require employers with 15 or more employees to provide paid sick leave at the rate of one hour for every thirty hours worked; employees working as little as 8 hours per week would qualify; Some of the provisions are that it would allow for carry-over of sick leave from one year to another and would require reinstatement of unused leave if an employee leaves that company and returns within a specified time period. 

      Governor Hogan is set to present his own bill on sick leave. Sources say it would cover employers with 50 or more employees offer a tax incentive for smaller employers that offer comparable leave, will require five, not seven days of paid leave and will cover part time employees working 30 or more hours after they work for the employer for 120 days. Leave will have to roll over (at least 40 hours) but accrual can be capped at that point, does not have to be paid out at termination nor reinstated if the employee is rehired. At a legislative kick-off breakfast hosted by our local Chamber today, our delegation to the GA seemed to feel that Governor Hogan’s bill would not get any support from Democrats. Not terribly surprising.

      It’s also likely that another bill regulating scheduling practices will be presented again this year. Prior bills submitted on this subject have severely restricted an employer’s ability to manage staffing levels when employees call-out with little or no notice and even prevented businesses from hiring new employees (what?) without first offering additional hours to existing employees. The penalty for making changes to an employee’s schedule with less than 21 days’ notice would require the employer to pay "predictability" pay to employees. 

      You can review last year’s landscape in my previous posts here and here. I expect many of these to return this year.

      On the federal front, we could see a fair amount of churn in that the Trump administration will likely nix several Executive Orders President Obama put into place, as well as instruct regulatory agencies to back down from other efforts. I think most will agree that the DOL’s new overtime rules are dead (even without the federal injunction). 

      It’s also fairly sure that once new members are appointed to the National Labor Relations Board that several of the decisions made by the current board will be overturned – ranging from so-called "quickie election rule" to the joint employer standard, and of course, the many, many attacks on policies in employee handbooks. That will certainly be welcomed by many businesses (employers).

      While the CEO Pay Ratio is not a well-known issue to some, it is still alive (for now). Starting next year, the U.S. Securities and Exchange Commission (SEC) will require public companies to calculate how their chief executives' compensation compares with their workers' median pay and to disclose the so-called CEO pay ratio in proxy statements reporting on fiscal year 2017. The rule implements part of the Dodd-Frank Act, and many public companies are already working through the calculations involved. Will this survive the Trump Administration? With Andrew Puzder coming in as head of the DOL, there’s a good bet it won’t. However, be aware (or beware, as the case may be), many states or localities are considering or have passed their own laws in this area, including the city of Portland, Oregon

      Of course, the elephant in the room is the Affordable Care Act (ACA) and if it will actually be fully repealed, partially repealed, or repealed and replaced and how it all might work. It’s hard to know how this will pan out.

      Actually, it’s hard to know how a lot of these issues, and many more, may pan out. What we all need to remember is that both sides (all sides?) are engaging in rhetoric that is designed to get us fired up. It’s what they do (along with the media). What we as business leaders, professionals, and citizens have to do is dig deeper and get as much information as is possible before deciding which "side" we’re on. Consult multiple sources for information – don’t just flow with the headlines or soundbites; educate yourselves and discover how all these things will really affect you, your business and your employees.