Press

There are many topics for manager and supervisor training but, according to HR Advisor, these six are the keys for keeping your company out of court.  Train on them first. 

1. Wage/Hour/FLSA
Why it’s a challenge:  Supervisors and managers think they know the rules, but the rules are more complex than they think they are. 

Typical manager/supervisor blunders: 

“I won’t pay for unauthorized overtime.”
In most cases you must pay for all hours worked even if you forbid workers to work.  You can discipline them for disobeying, but you have to pay them. 

“Yeah, they grab the phone now and again when they’re home.”
If non-exempt workers are spending more than a de minimus amount of time answering business phone calls after work hours, they probably need to be paid. 

“I’m not recalculating overtime just because I gave a little bonus at the end of the month.”
Overtime must be paid on the “regular rate” which includes many bonuses and other payments.  If the bonuses are awarded after pay for the period has been made, you must recalculate and pay the additional amount. 

2. Hiring
Why it’s a problem:  Most managers are uncomfortable, unprepared, and untrained in interviewing.  They end up having a chat rather than an interview.  They are likely to ask: 

Do you plan to start a family soon?
When did you graduate from high school?
What sort of accent is that?
We usually hire young guys right out of college for that job. 

All of these questions and many more are forbidden as they set the company up for a charge of discrimination.  Managers may say, “Oh, I was just making conversation,” but courts will assume you asked the question for a reason, and what reason could there be other than discriminating? 

3. Retaliation
Why it’s a challenge:  Unfortunately, it’s natural for managers to feel upset when someone complains about their department or their management style.  So they are likely to think: 

He’s not getting away with going above my head—we’ll see about this.
I think she won’t get that raise and promotion after all. 

And there’s a special problem with retaliation—juries really don’t like it.  It seems so unfair for the big corporation to single out one employee or to be “out to get” an employee. In court, you’ll have to overcome that sympathy vote, and it’s not easy. 

Of course, maybe whatever negative action you took against the employee was deserved and it’s “just a coincidence” that it happened two days after the employee filed a complaint. Unfortunately, even the least competent opposing attorney can fairly easily turn that coincidence into a convincing case. 

4. Appraisals
Why it’s a problem:  Appraisals are a problem because managers and supervisors are uncomfortable giving bad news or criticism, so they fail to clearly describe performance failures. 

For example, they may say “satisfactory” when performance is anything but, secure in the knowledge that at their company “satisfactory” is a low mark.  But it won’t seem low to a jury (“Just what did your signature mean here where you wrote ‘satisfactory’?”) 

Work to clarify your performance appraisal system for managers and supervisors and, for sure, make sure that they are honest in their appraisals of individuals who are not performing up to standard.  Those are the people who are likely to sue. 

5. Documentation
Why it’s a problem:  Documentation a pain, it’s not an immediate issue, managers don’t know what to write, and no one’s checking to see whether it gets done. 

When documentation shows a clear record of poor performance or poor behavior, and shows that an employee had ample opportunity to improve, companies can mount a strong defense to a lawsuit for discrimination or wrongful discharge, for example. 

However, when documentation is scant, sloppy, or—worst case—nonexistent, defending yourself is nearly impossible.  Unfortunately, juries expect that companies will be organized and orderly in the way that they conduct business.  They assume that if there was something important to write down the manager would have written it. 

Documentation that is written at the time of the event, and that is business-like (that is, signed, dated, formal) will be accepted.  Documentation written after the fact, undated, unsigned, and messy will not. 

Bad Documentation
And then there’s another kind of documentation—bad documentation, or “smoking gun.”  For example: e-mail that says, 

“He’s too old for this job; get me someone younger.”
 “She’s just going to get pregnant on us, hire the guy instead.”
Or maybe not smoking gun level, but still potentially dangerous: A margin note on a resume, written just as a reminder, “Heavy black woman.” 

Plaintiffs’ attorneys slaver when they see this kind of documentation. 

What to do? Train, train, train.  Give managers examples of what documentation should look like. 

6. Firing
Why it’s a problem:  It’s often done in haste, without thinking the ramifications through.  It’s what most gets employees in a suing frame of mind. 

Common mistakes: 

Person fired for an offense for which there is poor or no documentation
Company executives give conflicting reasons for the termination
There is retaliation or a perception of retaliation, especially when the terminated employee has recently performed a protected act like making a wage and hour complaint or an EEOC complaint.
Person fired in a demeaning way in public.
Person fired for an offense that others have not been fired for, especially if the person terminated is a member of a protected class. 

Again, managers and supervisors have to be trained.  Probably the best training to give is this simple:  If you are contemplating a termination, go to HR to discuss it before taking action.  Yes, like most things in HR, the key to success is manager/supervisor training.  But who has the budget and time to organize a full-blown training program? 

Good news from Prestige… all of these topics (and many others) are available to clients at no additional cost through theUniversityofPrestige.  For more information, contact Prestige.

It is hard to believe, but summer is almost over and parents and guardians will soon be preparing to send their children back to school.  According to the Department of Labor, an estimated 90.7 percent of families with children under the age of 18 have at least one employed parent, and 62.2 percent of married-couple families with children have two employed parents. 

Working parents and guardians often struggle with achieving a balance between being there for their children and providing for them, and must balance work requirements with attendance at school functions such as parent-teacher conferences, class parties, meetings, volunteer activities, assemblies and other extracurricular activities.

And, although no federal law specifically requires an employer to allow leave for a child’s school activities, there may be legal pitfalls, and employers should watch out for proactive steps they should take as schools come back into session.

First, check your state’s laws. California, for example, requires some employers to allow parents and guardians up to 40 hours off work per calendar year to attend school activities for kids in licensed day care facilities and in grades K-12.  And, while most states are not so generous, employers should check before they say ‘no’ to a leave request for school-related activities.

Other states that require employers to provide leave for parents and guardians to attend their children’s school-related activities include Colorado, Illinois, Louisiana, Massachusetts, Minnesota, Nevada, North Carolina, Rhode Island, Tennessee, Texas and Vermont, as well as the District of Columbia.

These laws vary as to which employers and employees are covered as well as to the specific school activities for which leave must be provided and how much leave must be granted. Several of the statutes require that an employee provide a certain amount of notice prior to taking the leave.

None of the statutes require that the leave be paid.  Several statutes provide that the leave shall not affect the employee’s entitlement to accrual of benefits or seniority. Several also provide specifically that an employer may not discharge or otherwise discriminate against employees for exercising their right to take leave.

Arkansas, Tennesseeand Utahhave laws that encourage private employers to provide for educational leave, but do not mandate any specific leave provisions or provide penalties for failure to grant leave.

For state-specific resources, contact Prestige

Sometimes it seems that there are literally thousands of ways to go wrong managing people, but there seem to be five critical errors that cause most of the problems.  Focusing on those five, instead of attempting to train managers and supervisors on everything, is the way to get the greatest results. 

1. Conducting Unlawful Pre-employment Inquiries

Inappropriate questions can be a source for claims of discrimination.  To the extent possible, standardize the application and interview process.  Make sure that all applicants for a particular position are asked fundamentally the same questions.  Keep questions objective and focused on the job requirements and the skills necessary to perform the requirements. 

2. Delivering “Dishonest” Evaluations

Too many managers and supervisors would rather be nice than honest.  As a result, many legitimate actions taken against an employee based on lack of performance can be questioned on the basis of the nice reviews.  Avoid putting off the inevitable.  Do not overinflate performance evaluations or make promises that you cannot keep.  If you set standards and they were not met, say so, and rely on documentation and objective criteria whenever possible. 

3. Making Rash Disciplinary Decisions

Before disciplining an employee, evaluate the circumstances to avoid (or defend, if necessary) claims of discrimination and wrongful discharge.  Review company policy and confirm that the employee received a copy of the policy.  Conduct a thorough investigation and allow the employee an opportunity to give his or her version of the facts.  Make sure similarly-situated employees were treated the same. 

4. Committing Termination Errors /Omissions

Terminations are tough for everyone involved, and it’s easy to make mistakes in the interest of getting through the uncomfortable process as quickly as possible.  We suggest you conduct a thorough review before discharging an employee.  Tell the worker in person, using prepared notes, and keep it brief (10 to 15 minutes).  Clarify the logistics of leaving and severance, but don’t make promises you can’t keep. 

5. Making Uninformed Responses to Medical Requests

Few management tasks are more challenging than dealing with employee medical problems—the Bermuda triangle of FMLA,ADA, and workers’ compensation. The time to avoid the legal pitfalls is when you are first aware of the situation.  Assess the employee’s rights under each statute separately.  Generally, managers should contact HR when employees are going to miss work for reasons that might involve “the triangle.”

 

If you have any questions, or would like more information on this or any other HR-related topic, contact Prestige.

From HR Daily Advisor and CareerBuilder we bring you the following:

Half (51 percent) of workers reported that they swear in the office, according to a recent CareerBuilder survey.  The majority of those (95 percent) said they do so in front of their coworkers, while 51 percent cuss in front of the boss.

However, workers seem to clean up their language in front of senior leaders.  Only 13 percent use expletives in front of senior leaders and even less, only 7 percent swear in front of their clients.

While swearing seems to be prevalent in the workplace, it doesn’t necessarily mean it’s accepted.  Most employers (81 percent) believe that swearing brings the employee’s professionalism into question.  Others are concerned with the lack of control (71 percent) and lack of maturity (68 percent) demonstrated, while 54 percent said swearing at work makes an employee appear less intelligent.

But employers can’t be too heavy handed.  Twenty-five percent of employers admitted to swearing at their employees.  Roughly the same amount (28 percent) of workers said they have sworn at other coworkers.

The following are a few other highlights from the survey:

Gender: Overall, the survey found that men are more likely to swear at work—54 percent compared to 47 percent of women.

Location: Among top markets in theUnited States, workers in theDistrict of Columbia were the most likely to report that they swear at work—62 percent.

Age: Young employees (ages 18–24) were the least likely to swear at work (42 percent), while employees (ages 35–44) are the most likely (58 percent).

In a recent post we addressed the importance of job descriptions.  Today we take a look at how, when hiring, to stay in compliance with The Age Discrimination in Employment Act (ADEA), which bars job ads from indicating age preference. 

Words to Avoid

The ADEA has some really specific language that outlines prohibited employment practices, stating: 

It shall be unlawful for an employer, labor organization, or employment agency to print or publish, or cause to be printed or published, any notice of advertisement relating to employment indicating any preference, limitation, specification, or discrimination based on age.  

Addition regulatory guidance from the EEOC explains that help wanted advertisements may not contain terms or phrases that limit or even deter the employment of older individuals.  Certain words, according to the EEOC, indicate age preference in violation of the ADEA unless an exception applies.  Examples include “young”, “college student”, “recent college graduate”, “boy” and “girl”.  However, this list is not comprehensive; other words of a similar nature should also be avoided. It’s very important to remember that your job posting should only indicate the qualifications required to do the job – usually being of a certain age group is not a prerequisite. 

Even with online application forms, be careful.  It’s probably best to avoid questions that even indicate the applicant’s age, for example. The EEOC tells us that the ADEA does not specifically prohibit inquiries about applicants’ age or date of birth; however, because such inquiries may deter older workers from applying for employment or indicate possible age discrimination, inquiries will be closely scrutinized. 

Questions to Avoid

What can you legally ask during an interview?  When formulating interview questions to avoid discrimination claims, first create a list of questions to ask the applicant, and consider whether it directly relates to the job description and essential tasks of the position.  In other words, will the question help you find qualified applicants who want to work?  If not, you probably don’t need to ask it. 

Some sample questions to avoid while interviewing: 

We’re a younger company and we don’t have many employees here in your age group. Will that bother you? 

Will you be comfortable being supervised by someone younger in the department?  

What year did you graduate from high school/college?  

How old are you?  

How much longer do you plan to work before retiring?  

When were you born?

 

However, you do need to evaluate applicants and ensure they’re legally able to work for you, so you may ask: 

Are you over age 18?  

What are your long-term goals professionally?

 

These options are more neutral and still determine what you need to know.  If you are unsure what is and is not acceptable, or if you have any questions, contact Prestige.

Well-written job descriptions are crucial to the hiring process because they assist you in clarifying the skills you expect of an applicant and they help you to defend yourself should you be sued over a hiring decision. 

In preparing a job description, ask yourself why you need someone in this position and how the employee would fit into your company structure.  Then you want to determine what duties that person will perform. 

In making this determination, distinguish between job requirements that are absolutely necessary (also known as essential functions) and those that you would prefer in an ideal world, but that you can do without or could have someone else perform.  Essential functions must be listed separately, because when considering accommodations under the Americans with Disabilities Act, they are the functions that the applicant must be able to perform with or without reasonable accommodation. 

Job descriptions should provide an interviewer who has no personal knowledge of a job with enough information to weed out unsuitable applicants and send only the best-qualified people on for further consideration. 

To prepare a good job description, take a survey of others who have done the job before or observe someone who is performing the job.  Determine what qualifications the applicant must have to be able to perform the essential functions of the job. These qualification standards must be job related and consistent with business necessity. 

Qualifications should include the required education, work experience, physical abilities, mental capacity, skills, licenses or certifications and other requirements such as judgment, ability to work under pressure, or interpersonal skills. 

Not sure if your job descriptions are up-to-date or ADA-compliant?  Contact Prestige for assistance.

Just two countries, Spain and Japan, rank worse than the United States when it comes to projected salary increases for 2013 – and they are not even close to the leaders.

With a projected average salary increase of 10.7%, India leads all countries for the second straight year, according to a 2012-2013 Salary Budget Survey conducted by WorldatWork, a nonprofit organization that provides informational resources to HR and Benefits professionals.  India is followed closely by China and Brazil, who are projected to see 8.8% and 7.2% salary increases, respectively.

According to the survey, which gathered from 4,299 responses from 13 countries representing 17 million employees, the bottom of the list projections are theUnited States, with an average projected salary increase is 3%; Spain, with a projected increase is 2.9%; and Japan, for which the projected increase is 2.7%.

The projected 2013 salary increases for all of the other countries surveyed (Singapore, Australia, Canada, Germany, the U.K., France and the Netherlands) fall somewhere in the 3% to 4.3% rage.

The fact that projected salary increases in the U.S. are lagging so far behind others suggests there is still a ways to go on the road to economic recovery.

From HR Daily Advisor and CareerBuilder we bring you the following:

Imagine you are reading a résumé and the applicant calls himself out as a genius and proceeds to invite you to his apartment to interview him. Would you take him up on the offer?

That is just one of the many responses to CareerBuilder’s recent survey about hiring managers’ real-life outrageous résumé experiences.

While the list is long, here are a few of our favorites:

Affiliations: Candidate’s cover letter talked about her family being in the mob. 

Skill set: Candidate applying for a management job listed “gator hunting” as a skill. 

Presentation: Candidate specified that her résumé was set up to be sung to the tune of “The Brady Bunch.” 

Accomplishments: Candidate highlighted the fact that he was “Homecoming Prom Prince” in 1984. 

Objectives: Candidate listed “to make dough” as the objective on the résumé. 

Language Spoken: Candidate claimed to be able to speak “Antartican” when applying for a job to work inAntarctica.

No matter what the circumstances are, every employee (and employer) has the right to request an unemployment hearing in order to influence a determination for benefits.  Success at these hearings, therefore, is an important ingredient in a comprehensive and successful program to control unemployment costs.

Every person getting ready to attend a hearing ought to make sure they understand the following:

  • Person(s) selected to attend a hearing should have firsthand knowledge of the reason for separation and the facts leading to the separation. Hearsay testimony is generally not persuasive.
  • Three copies of documentation (e.g., personnel file, records or statements) relevant to the separation are necessary for an in-person hearing. It is customary to provide copies for the hearing officer (or Administrative Law Judge), claimant (the terminated employee) and the Prestige representative. Procedures may vary according to state or for telephone hearings.
  • Bring copies of relevant company rules and policies, including (if applicable) rules found in a collective bargaining agreement if the claimant is a union member. Also produce evidence that rules were received by the claimant, e.g., acknowledgments.

Hearings are not trials, so you don’t have to observe all of the formalities of a courtroom.  But hearings are legal proceedings where witnesses swear to tell the truth, witnesses can be cross-examined and documents can be entered into evidence.

If you have questions concerning this, or any other unemployment issue, contact Prestige Employee Administrators, Inc.

What could be more fun on a summer Friday afternoon than to take a break from work to have a little fun testing your HR knowledge?  We’re not keeping score, but the answers are provided in case you wish to.

1. How many applicants seriously misrepresent themselves on employment applications or resumes?
a. 5%
b. 11%
c. 17%
d. 21%
e. 25%

Answer:  Surveys estimate that as many as 25-33% of applicants seriously lie on their resumes or applications. Length of employment, past salary, criminal record, and past job title are the most commonly falsified pieces of information. Because good hiring decisions require as much information as possible, and to prevent potential legal problems, we strongly encourage clients to implement a comprehensive reference policy. The question really isn’t “should” you check references but “how.”

2. On average, how many sick days do employees average annually?
a. 3.5
b. 4
c. 5
d. 6
e. I’m not sure, but if I knew it would probably make me sick.

Answer: According to a William Mercer study, Employers’ Time-off and Disability Programs, the answer is C. 5.   Some studies have found the number to be closer to 4.  Other studies have found that an increasing number of employees view use of sick leave as an entitlement, often unrelated to illness or injury.

3.  What percent of employees use the Internet for personal reasons each day?
a.  17%
b.  28%
c.  48%
d.  72%
e.  90%

Answer:   E. Recent surveys have indicated that 75-80% of employees have Internet access at work.  Of those with access, 90% used the web for personal use each day. Forty-seven percent indicated that they used it 30 minutes or more. More than ½ indicated that they sent 5 personal e-mails daily and 1/3 received over 10 personal e-mails.   Many companies have responded to this trend by restricting personal Internet use.

4. What percent of employers monitor internet activity?
a. 5%
b. 19%
c. 31%
d. 62%
e. No time to answer, I need to quickly delete my Internet History and old E-mails.

Answer:  D. 62% according to a survey by the ePolicy Institute and American Management Association.  47% monitor employee emails.

5. According to a survey by a worldwide HR consulting firm, which executive personality weakness was found to have the most negative impact on leadership success.
a.  Inability to understand others’ behaviors and motivations
b.  Arrogance
c.  Self-promotion
d.  Volatility
e.  No. You can’t say “all of the above” even though you may be thinking it.

Answer:  A. Inability to understand others. The bigger question is: what can we all do about it?

6. According to the Department of Labor, what percent of Americans hold jobs that were technically nonexistent 20 years ago?
a. 15%
b. 35%
c. 55%
d. 70%
e. I probably knew this at some point but most of my knowledge is obsolete.

Answer:  D. 70%

7. What percent of employees have worked for their current employers for less than 1 year?
a. 10%
b. 15%
c. 25%
d. 30%
e. I don’t know.  I just started working here last week.

Answer:  C. 25%.  Studies also show that an effective employee orientation can greatly impact employee success in the job.  How effective is your orientation program?