August 2009

VIDEO SURVEILLANCE POLICY
(PDF)

More and more employers are using video to monitor employee and customer activity. Use this checklist to make sure you get it right.

(HR That Works Users can access this form in Word format by logging on to the site).

The DOL has created an online tool to help determine when you have to pay for “On-Call Time.”

Click here to learn more.

Repetitive Strain Injury (RSI) is the No. 1 occupational health problem in the U.S., resulting in more than $20 billion a year in Workers Compensation costs (according to OSHA), plus another $100 billion in lost productivity, employee turnover, and other expenses (Agency for Health Care Policy and Research).

RSIs develop as a result of repeated exposure to ergonomic risk factors, one of which is the risk associated with the improper set-up of an employee’s workstation. Thousands of people are diagnosed each year with some kind of impairment directly related to poorly designed workstations.

RSIs result from an accumulation of tension and strain in the body. Ergonomics is the practice of adapting a job or the work environment to the person so that they can work without harmful strain or injury. Effective ergonomics reduces discomfort and injuries, while increasing job satisfaction and productivity (University of Washington, Environmental Health & Safety). When bodies are able to perform work that is within their appropriate range-of-motion, less strain is absorbed by the muscular-skeletal system.

Employees operating in an ergonomically correct workstation environment can reduce the possibility of acquiring an RSI. Every component of the workstation – seating, keyboard, monitor, mouse; the reach and range and positioning of all a worker’s “tools of the trade;” how employees sit (or stand) or position themselves while working – is critical to managing the amount of strain imposed on the body on a daily basis (and cumulatively, day after day). Employers can use ergonomic assessment to ensure that employees are working at the proper height, angle, and location in terms of seating, keyboards, monitors, and other office equipment.

Ergonomic assessment should be “Job One” whenever a new employee comes on board, a critical piece of the “how” they will perform essential tasks and whether, over time, they acquire an RSI.

Through solving ergonomic problems, an employer can accomplish the primary goal of RSI prevention, while enhancing the productivity and job satisfaction of individual employees. Effective ergonomic outcomes result from identifying the ergonomic risk factors associated with employees and their specific task-set – and then systematically eliminating or reducing their exposure to the identified risk factors.

There are three approaches to this process:

1. Engineering controls: Physical changes to a job that eliminate or materially reduce the presence of RSI hazards, such as changing, modifying, or redesigning workstations, tools, facilities, equipment, materials, and processes, and work practice controls (changes in the way a job is performed). This includes using good body mechanics and lifting techniques, rotating or varying tasks throughout the day to minimize muscle fatigue, and using tools properly.
2. Administrative controls: Management-controlled work practices and policies designed to reduce exposures to RSI hazards by changing the way work is assigned or scheduled (such as employee rotation, job enlargement, and employer-authorized changes in the pace of work).
3. Ergonomic assessment: Employing such tools as The NIOSH Guide to Manual Lifting, postural assessments, risk factor checklists, task frequency and duration assessments, force/weight measurements, dimension measurements, anthropometry data comparisons, energy demand assessment, body mechanics assessment, and assessment of environmental factors. An ergonomic assessment should include an interview of the employee to obtain information about their position duties, an evaluation of their workstation, and observation of them performing work tasks.

Conclusion

To help prevent RSIs, consider workstation ergonomic assessment and modifications as soon as an employee is hired, especially for computer users or other employees who perform repetitive work. For employees who are already working, changes in workstation set-up or purchase of ergonomic equipment can allow them to continue working and possibly avoid a lost-time, lost-productivity injury. Ergonomic assessments that lead to effective workstation and task-process outcomes can improve workstation “fit,” while increasing employee satisfaction and productivity.

Related Job Accommodation Network (JAN) publications:

Accommodation Ideas for Cumulative Trauma Injuries
Accessible Workstations for Office Settings

For additional resources on ergonomics, visit the JAN Resource Page.

Article courtesy of Linda Yost, M.S., CRC, (JAN Consultant – Motor/Sensory Team)

The governments E-Verify System will become effective on September 8, 2009. Under the new system, all contractors and subcontractors working on federal projects will be required to utilize the E-Verify System to ensure that their employees are eligible to work in the United States. E-Verify is an Internet-data system operated by the DHS in partnership with the Social Security Administration. The system allows employers to electronically verify name, date of birth and social security number, along with immigration information for non-citizens, against federal databases in order to verify the identity and employment eligibility of both citizen and non-citizen hires. To read the FAQs click here.

On a related note, Homeland Security Secretary Janet Napolitano announced on July 8, 2009 that the Obama Administration intends to rescind regulations and procedures for employers that receive employee no-match letters from the Social Security Administration. The no-match rules were originally promulgated in 2007. A federal court, however, issued a temporary injunction blocking enforcement of the no-match rules shortly after they were published. The U.S. Senate has taken issue with Secretary Napolitano’s announcement, approving an amendment that prohibits using federal funds to withdraw the regulation. The amendment was attached to the DHS Appropriations Bill (H.R. 2892) which passed the Senate on July 9, 2009. To learn more, read this PDF document and the www.ice.gov.

If you have more than 15 employees, you’re required to accommodate a disabled employee. If you’re in California, that obligation starts at five employees. Just what is an accommodation? According to the EEOC, FEHC, and Job Accommodation Network, possible job accommodations include:

• Modifying facilities
• Job restructuring
• Part time or modified work schedules (creating a full time modified job is not required)
• Reassignment to a vacant position (persons with accommodations get first dibs on those opportunities)
• Acquisition or modification of equipment
• Adjustment or modification of examinations, training materials, or policies
• Provision of qualified readers or interpreters
• Extended leaves of absence
• Preference of disabled persons over non-disabled persons in reassignment
• Any other accommodation idea that you or an employee or accommodation specialist can think of

Remember that obligation is mitigated by the “undue hardship” standard, under which an employer need not create an accommodation if it would be overly burdensome due to costs, overall financial resources, size of the employer, type of operations, and geographic considerations. Ultimately, the accommodated employee must to be able to do the job they were hired for. An employer is usually better off allowing an employee to try the suggested accommodation as long as there are no ancillary security or safety concerns. Employers have the incentive to find job accommodations when there are Workers Compensation-related injuries to avoid adding costs to the Work Comp system.

To prevail in a disability accommodation case, an employee must show that they could have done the job with or without an accommodation. Also, the courts have stated that employers have access to information that employees do not and have an affirmative duty to investigate possible accommodation scenarios. Finally, there’s an incredible wealth of accommodation resources on the Job Accommodation Network Web site.

A policy prohibiting workplace harassment and instructing employees on how to report it is only as effective as the training supervisors and employees receive and the level of accountability the employer requires. The federal district course case of King v. Interstate Brands Corp. offers a valuable lesson for employers that having a good policy might not be enough.

King alleged that a supervisor frequently used racial slurs to talk about him and other black employees. When complaints were logged about the supervisor with HR, the supervisor responded by claiming to be upset with the implication he was racist. King concluded that enough was enough, and eventually sued, alleging racial harassment. The employer argued that because they had a proper harassment policy, it had “exercised reasonable care to prevent and correct promptly” incidents of harassment. The company also argued that King failed to avail himself of this policy (the Farragher defense).

In rejecting the employer’s defense and permitting the case to go to trial, the court stated that “There is sufficient evidence upon which a reasonable juror could find that King was subject to such severe and pervasive harassment as to change the terms and conditions of his employment.” Furthermore, the company’s anti-harassment policy was not communicated to the workforce (other than in the employee handbook) and was not enforced. According to the court, the totality of the employer’s actions “all suggest that a reasonable black employee would hesitate about complaining to IBC supervisors or HR about alleged harassment.”

To make sure that your employment policies “work” to either identify harassment or defend against a harassment claim, we’d recommend these steps:

• Be sure that the policy is comprehensive, covering discrimination, harassment, and retaliation.
• Don’t just rely on the Employee Handbook to communicate the policy.
• Include the policy in an employee handbook, post it in the workplace, and review the policy annually with all employees.
• Have employees sign acknowledgement of the policy.
• Provide employees with multiple options to report a policy violation.
• Investigate all claims promptly and thoroughly.
• Take appropriate disciplinary or remedial action.
• Make the policy a cultural requirement within the workplace, training supervisors and managers to report any potential violation, even if it is due to the behavior of a peer or superior.

Article courtesy of Worklaw® Network firm, Lehr Middlebrooks Vreeland (www.lehrmiddlebrooks.com).

Many employers are concerned about their exposure to missed meal or rest periods taken by employees. Last year the DOL issued an opinion letter which clarifies the effect on a company’s overtime obligations in cases where an employee misses a meal period or break through no fault of their own. Remember these principles:

• The employees must be paid for all the time they work, whether authorized or not. For example, if they miss a rest or meal period, the employer is required to pay for this time.
• If the missed rest or meal periods result in the employee working overtime hours, the employer is responsible for paying overtime.
• An employer may “credit” extra premium compensation paid for extra hours to its overtime obligation. Also, those payments are not considered a part of the employee’s regular grade of pay.
• When it comes to recording time, an employer is required to compute time to the nearest five minutes or nearest one-tenth or quarter of an hour, so long as this will not result, over a period of time, in failing to compensate the employee properly for the time they actually worked. This “de minis time” need not be paid for

Click here to read the opinion letter.

Note to California employers: In CA rest and meal periods are mandatory and can result in penalties and fines simply because an employee missed one. Employers must provide rest and meal periods by making them available, but need not ensure that they are taken. To learn more, click here and go to Section 45.

Several times a year, the Wage and Hour Division of the Department of Labor issues opinion letters as guidance on wage and hour legal issues. A recent letter discussed the calculation of salary deductions, job bonuses, tipping pools, salary reductions and exempt status, overtime and numerous classification issues.

California employers can find similar opinion letters here.

On occasion employers will be sued for an employee’s wrongful act committed after work hours or off the employer’s premises. Often the argument is the employer was negligent in hiring the employee in the first place. Recent cases have made clear that the concept of negligent hiring is limited to being “unfit” for the specific tasks to be performed. An employer cannot be held responsible for guaranteeing the safety of anyone an employee might incidentally meet while on the job, or for injuries inflicted independent of the performance of work-related functions. For example, if an employer hires a day care sitter who has a history of sexual molestation, they can certainly be sued for negligent hiring if they don’t inquire into that applicant’s background. However, if the employer hires a salesman with a criminal background who ends up sexually assaulting a prospect after work hours, there would probably be no liability. Employers are not guarantors of the safety of all customers or other persons with whom their employees meet incidentally while performing service work or other functions.

Every month I review a variety of HR publications and blogs, including HR Magazine, Workforce Management, HR Florida Review, The California Labor Employment Review, and others. Here are subjects that appear to be at the top of HR’s collective mind:

• Managing layoffs and terminations. Do this in a way that doesn’t generate lawsuits and demotivate remaining employees.
• Healthcare management. Look at alternative options such as HSAs, increased co-pays, and eliminating coverage altogether.
• Executive pay and compensation. Ask yourself these questions: Are executives overpaid? Should anybody be getting a raise now? Is there wage deflation? What kinds of bonuses make sense?
• Significant changes to the FMLA and ADA. Make sure you have your leave management act together. HR That Works Members should see the updated Training Modules and Webinars.
• Managing stress. Focus on this byproduct of our crazy times and its huge impact on productivity and turnover.
• Leadership improvement. Identify competencies, best practices, training, and development. There are many excellent leadership Webinars on HR That Works.
• Managing privacy exposures. Consider the impact of the Internet, cell phones, Twitter, and other technologies. HR That Works members should watch the recent Webinar on Privacy in the Workplace.

Look for these trends to continue. Several years ago Fast Company magazine argued that business success would be based squarely on the ability to engage in change, learning, and leadership. Are you and your company embracing change? Are you the change others have to catch up to? In a knowledge economy, learning must be a process, not an event – and leadership is ever more important in tough times.

The question to ask is: “How well are we engaging in any of these activities? Are our HR strategies helping or hurting us in these areas?” If you’re an HR That Works Member, there are many tools on the Web site to help you excel in these crazy times.