September 2010

The United States Department of Labor (DOL) recently announced Plan/Prevent/Protect, a sweeping regulatory agenda that will replace the “catch me if you can” method of assuring compliance with federal employment laws. Under the Plan/Prevent/Protect strategy, the DOL has directed the Occupational Safety and Health Administration (OSHA), Mine, Safety & Health Administration (MSHA), Office of Federal Contractor Compliance Programs (OFCCP), and the Wage & Hour Division (WHD) to propose regulations that require employers to develop programs demonstrating affirmative compliance with federal wage and hour, job safety and discrimination laws. As the name of the program, implies, the DOL will issue regulations that focus on:

• Planning. Employers will be required to create a plan for identifying and correcting risks of legal violations and other risks to workers, including the designation of people within the company to ensure compliance. Employees will have the opportunity to participate in the plan’s creation and must provide their workers with the plans so that “they can fully understand them and help to monitor their implementation.”
• Prevention. Employers will need to “thoroughly and completely implement the plan in a manner that prevents legal violations. The plan cannot be a mere paper process. The employer or regulated entity cannot draft a plan and then put it on a shelf. The plan must be fully implemented for the employer to comply with the Plan/Prevent/Protect Compliance Strategy.”
• Protection. Employers must ensure that plan objectives are “met on a regular basis. Just any plan will not do. The plan must actually protect workers from violations of their workplace rights.”

Employers who fail to “address comprehensively the risks, hazards, and inequities in their workplaces will be considered out of compliance with the law” and subject to remedial action by the DOL. Among other things, the strategy will require the WHD to promulgate regulations requiring employers to provide workers with basic employment information, including the methods of calculating their pay. An employer who wishes to exclude a worker from coverage under the Fair Labor Standards Act would need to “perform a classification analysis, disclose that analysis to the worker, and retain that analysis to give to WHD enforcement personnel who might request it.”

On July 22, 2010, the Department of Homeland Security issued its Final Rule on electronic signatures and storage of Form I-9s. Under this rule, employers may:

• Complete, sign, scan, and store the Form I-9 electronically (including existing Form I-9s) so long as they meet certain “performance standards” (e.g., reasonable controls to ensure the integrity, accuracy, and reliability of the system).
• Use paper, electronic systems, or a combination to sign and store their Form I-9s

The statutory duty of employers to reassign disabled employees to vacant positions is mandatory. If a disabled employee can be accommodated by reassignment to a vacant position, the employer must do more than consider the disabled employee along with other applicants; the employer must offer the employee the vacant position. In a number of situations, reassignment would be unreasonable:

• It’s not reasonable to require an employer to create a new job for the purposes of reassigning the employee to this job.
• An employer is not required to reassign a disabled employee to a position that would constitute a promotion.
• An employer is not required to reassign the disabled employee in a way that would contravene the employer’s “important fundamental policies underlying with a legitimate business interest” (a very broad, case-by-case analysis).
• The job for which the disabled employee seeks reassignment must be vacant. In determining when a position is truly vacant, courts have ruled that “a position is ‘vacant’ for the purposes of ADA’s reassignment duty when that position would have been available for a similarly-situation nondisabled employee to apply for and obtain.” For example, if a company uses temp employees and under normal circumstances, nobody could apply for or obtain this job, it’s not considered vacant under the law.

Overtime claims aren’t going away. A marginal claim filed by one disgruntled employee can easily turn into a class action involving dozens of workers. To help avoid such claims, follow these guidelines:

• Make sure employees that are appropriately classified as exempt. The FLSA and the State of California have done a great job defining the scope of these classifications. Unfortunately, many employers ignore them entirely or simply try to get by with a quick self-serving analysis. You’ll find the links to these definitions at http://www.dol.gov/elaws/esa/flsa/screen75.asp and http://www.dir.ca.gov/dlse/FAQ_Overtime.htm. HR That Works Members can also view the Wage and Hour Training Module.
• Don’t blow a legitimate exemption by docking pay. Remember, you must pay an exempt employee for the whole week, if they work any part of it. There are exemptions in which employees purposely decide not to come to work, etc. If you treat somebody like a non-exempt employee, so will regulators, regardless of their title.
• Job descriptions alone won’t cut it. Regulators will look at actual job duties and ask claimants to fill out timesheets describing their activities. Under Federal law, this is a qualitative analysis in which the “primary” activity is most important. Under California law, there is also a quantitative analysis which requires the employee to be engaged in their primary activity at least 50% of the time to be exempt.
• Watch out for unauthorized overtime. Assuming someone is classified properly as non-exempt, are they abusing overtime? One printing company that began using the HR That Works Overtime Authorization Form reduced its overtime exposure by $5,000 the first month! Ask yourself: If there is overtime, is it legitimate, and if so, how do we minimize it?
• It’s almost impossible to have more exempt employees than non-exempt employees. Few types of businesses (other than law firms, medical offices, engineering or CPA firms, etc.) can get away with this. Remember, if a person isn’t an executive, a real boss, in outside sales, or highly paid as a computer professional, they are not exempt –no matter how smart they are, no matter how long they’ve worked for you, and no matter how little you control them.

In workshops, I joke that “it only takes one felon to ruin a day.” This really isn’t funny, especially if such a person happens to victimize your business. Unfortunately, despite the advice that all employers should do criminal background checks on all employees, many businesses still don’t do so because they think bad things only happen to other people, or they claim that they don’t have the time or money. Remember, folks with a felonious background sell drugs, rob people, assault people, kill people, defraud people, embezzle, and engage in many other sins. I’m not saying never hire someone with a felonious background. I have some printing company clients who run their Heidelberg presses 24/7 hours a day. Most of the workers on their third shift have a criminal record. At least these companies know what type of criminal they’re dealing with. Remember this too: If you use a temporary firm, recruiter, leased employee, etc. make sure that whoever provides this person for you has done their criminal background checks.

As always, we recommend using our partner www.globalhrresearch.com.

One of the greatest frustrations with the “old” Family and Medical Leave Act was how it regulated company call-in procedures. With the new and improved version, the Department of Labor pretty much allows a company to require compliance with its call-in procedures so long as it doesn’t restrict the rights of the FMLA.

As the preamble to the final rule noted:

“The Department recognizes that call-in procedures are routinely enforced in the workplace and are critical to an employer’s ability to ensure appropriate staffing levels. Such procedures specify both to whom and when an employee is required to report an absence. The Department believes that employers should be able to enforce non-discriminatory call-in procedures, except where an employer’s call-in procedures are more stringent than the timing for FMLA notice. Additionally, where unusual circumstances prevent an employee from seeking FMLA-protected leave from complying with the procedures, the employee will be entitled to FMLA-protected leave, so long as the employee complies with the policy as soon as he or she can practically do so.”

So, if an employee can’t call with a foreseeable leave 30 days in advance, then they should be able to do so at least, “absent emergency situations, where an employee becomes aware of a need for FMLA leave less than 30 days in advance, the Department expects that it would be practical for the employee to provide notice of the need for leave either the same day (if the employee becomes aware of the need for leave during working hours) or the next business day (if the employee becomes aware of the need for leave after work hours).”

This month’s Form of the Month is a standard leave notice requirement that incorporates in the FMLA language. As always, if you’re an HR That Works member and have any questions about the FMLA, please don’t hesitate to contact the Hotline.

Opinion Letter: FMLA 2009-1-A does a good job of summarizing the above.

I’m an unabashed promoter of Southwest Airlines. As someone who travels a great deal, I find the company’s customer service, pricing, and all-around flying experience to be the best in the industry. Amazingly, in 2009, Southwest continued its profitability streak for the 37th consecutive year, a remarkable feat amidst the worst recession most of us can remember. A review of their 2009 “One” Report helps define what makes Southwest so different: Its focus or passion in three areas – performance, people, and our planet.

In terms of performance, the company reduced overhead by eliminating the bottom least productive 10% of their flights. They also increased revenue with their early-bird check-in program, and trimmed costs where possible by offering voluntary early retirement, freezing overall comp and executives’ salaries, avoiding fleet growth, and conserving jet fuel.

According to Southwest, “With a Warrior Spirit, a Servant’s Heart, and Fun-Luving Attitude, our employees carried out the mission of Southwest Airlines – dedication to the highest quality customer service, delivered with a sense of warmth, friendliness, individual pride, and Company Spirit.” Even in a recession, they donated $11.6 million and more than 45,000 employee volunteer hours to charity.

Finally, Southwest, like many other corporations, takes its green initiative seriously.

How hard could it be to follow their example in your business?

• Eliminate the bottom 10% of clients, customers, and activities.
• Put a hold on employee count and management salaries.
• Reduce overhead and trim where possible.
• Continue to give, knowing that it always comes back to you.
• Define your culture as one with a “Warrior Spirit, Servant’s Heart, and Fun-Luving Attitude.”

Of course, if this were as easy as it sounds, all the other airlines would do it too. Not surprisingly, just about every one of Southwest’s competitors is unprofitable, horrible to fly on, and certainly not having any fun. I’ll continue to fly Southwest, own its stock, and preach its way of business because I believe in them – as do millions of others.

Note: On page seven of Southwest’s report, you can see the numerous 2009 awards and accolades, including its rank as the seventh most admired company in the world and the world’s most admired airline company; according to Fortune Magazine. Not surprisingly, they also have the highest customer satisfaction rating and the best on-time performance of any airline. Interestingly, Alaskan Airlines comes in second in both categories and they have adopted many of the Southwest ways of doing business.

I recently read that only 47% of 18-34 year olds “really care about the fate” of the enterprise for which they work – compared with 64% of those 55 and older. Although statistics like these make it easy to criticize the M generation, bear in mind that more than one-third of workers 55 and older feel the same way. So what are employees most concerned about? I won’t take you through Maslow’s Hierarchy of Needs. However, I encourage you to read the White Paper I wrote on it on HR That Works. Maslow talks in terms of survival, security, belonging, ego, and self-actualization needs. When it comes down to it, this is what most employees care about:

• A fair day’s pay. 99% of the population goes to work because they have to earn money. Depending on the employee’s needs and environment, pay can either be a major or minor motivating factor.
• An opportunity to grow at the company. Growth means job security, as well as more pay. Do your employees have a roadmap for this growth? How are you managing a situation in which there are few growth opportunities? Remember, people might know their present circumstances, but be uncertain their future. Don’t leave them guessing.
• A positive work experience. Work is innate to our souls. It’s a great source of meaning to us. Ultimately, people want to enjoy the work experience. As Joseph Campbell so famously stated, “Work can be a life-draining affair.” I hope this isn’t the case at your company, especially if you tend to retain your best people.
• A good relationship with their boss. This is perhaps the most critical part of the work experience. Do your managers empower employees or try to control them? Do they have a good bedside manner and do they encourage employees to take on new tasks and to grow in their jobs? Many a good company has lost many a good employee due to mediocre or poor managers.

Ultimately, employers must acknowledge that today’s loyalty is not to a company, but to project, career, and work relationships. Although addressing those needs might not produce the most loyal employees, it can certainly produce highly productive ones.

Remember, today’s best and brightest employees don’t have to work for you – or anyone else. What type of career and financial opportunities can you offer that they can’t get on their own or with someone else? As Daniel Pink notes, “This is a free-agent nation.” Businesses that recognize this reality will be the ones that succeed.

There’s been a lot of press recently about the possibility of the nation falling back into a deep recession. Let’s hope not! But, just in case, are you and your management team prepared to slash costs by 10%, 20%, or more again? Do you have a Plan B for your workforce? The recession caught plenty of employers off guard. On the other hand, I know of many companies that had a Plan B in place and were able to deploy it rapidly.

Being prepared is essential for effective management of risks, whether you’re facing an economic downturn, exposure to a lawsuit, or an environmental disaster. If there’s another recession, remember that HR That Work has a number of tools to help you manage the layoff and termination process in a graceful and legal manner. I’d also recommend taking time to discuss this issue and identify the critical parameters to consider when or if the time does come.

The U.S. Department of Labor has launched a new Web site that reports (in a searchable format) employer violations. The site, http://ogesdw.dol.gov/, catalogues all DOL enforcement data regarding employer violations from the Employee Benefits Security Administration (“EBSA”), the Mine, Safety & Health Administration (“MSHA”), the Office of Federal Contractor Compliance Programs (“OFCCP”), the Occupational Safety & Health Administration (“OSHA”), and the Wage & Hour Division (“WHD”). The DOL’s goal in launching the site is to “make the enforcement data, collected by these agencies in the exercise of their mission, accessible and searchable, using common search criteria, by the public. It intends, also, to engage the public in new and creative ways of using this data.” The site will soon permit searches by company name. Companies should check the site frequently to ensure the accuracy of its content.

Article courtesy of Worklaw® Network firm Shawe Rosenthal (www.shawe.com)