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Monthly Archives

February 2011

WHAT DOCUMENTS SHOULD AN EMPLOYEE’S PERSONNEL FILE NOT INCLUDE?

By Your Employee Matters | No Comments

Employee personnel files contain documents that track the “vital statistics” of employment, such as new hire paperwork, background check records, handbook receipts, payroll withholding and benefits election forms, and disciplinary and performance related documents. However, these files should not include certain types of records:

  • Documents that reflect medical information should go in separate files in order to comply with the privacy provisions of the Americans with Disabilities Act. The Genetic Information and Nondisclosure Act also requires that information about an employee’s genetic makeup be treated as private (family medical history might reflect such information and must be treated accordingly). Self-insured employers are also subject to the privacy rules of the Health Insurance Portability and Accountability Act.
  • Records of investigations of complaints – Witness statements, employee complaint forms, investigative notes, etc. Keeping these in personnel files means that an employee’s request to review his/her file will require you either to disclose witness statements that might have been taken in confidence or remove them from the file, which could create questions of integrity.
  • I-9 forms and the associated backup records. Keep these in a separate file to ensure that if the company undergoes an audit, it will not have to provide an investigator with access to entire employee personnel files (or, alternatively, require HR staff to cull through personnel files to retrieve all I-9s).
  • Employee EEO-1 or other government required self-identification forms that reveal race, national origin, and gender.
  • Other sensitive information, including e-mails between company officials and legal counsel or notes of conversations with counsel, should never go into an employee’s personnel file. Otherwise, the company might unwittingly waive the attorney-client privilege when affording the employee access to his or her file (or producing it during litigation to the plaintiff’s attorney).

Article courtesy of Worklaw® Network firm Shawe Rosenthal.

For more information on record retention, check out the Form of the Month.

MOST EMPLOYERS FAIL FLSA COMPLIANCE

By Your Employee Matters | No Comments

According to the Department of Labor, more than four in five employers don’t comply with wage and hour requirements. Furthermore, wage and hour class actions (referred to as “collective actions”), outnumber all other employment class action lawsuits combined. Yet for employers, wage and hour compliance too often fails to receive the same priority as concerns about workplace harassment and discrimination. Employers know that problem prevention and management training reduce the risk of employment claims and help achieve a favorable outcome if claims arise. Let’s discuss such an approach concerning wage and hour requirements.

If there’s a single issue that every employee has in common and one question that most employees raise at least once a year, it has something to do with pay. Yet, many employers state that pay should not be discussed, which usually intends to cover confidential salary information. However, a by-product of this culture might be that employees don’t raise concerns about pay within the organization but instead, go directly to a plaintiff’s attorney or the Department of Labor. Note that unlike other employment claims, there is no legal requirement that an employee file a complaint with the Department of Labor; he or she may proceed directly to court.

Wage and hour claims often involve multiple individuals and can quickly add up to a lot of money. For example, if an employer is inappropriately docking an employee for a break, chances are this employer is doing the same thing with several other employees. Multiply that by the three-year “look-back” period for wage and hour violations, by the number of hours of the violation, and the number of employees involved. Then double this total and add interest and attorneys’ fees, and it won’t take long before the employer faces a six-figure risk.

So what to do about this? As a threshold recommendation, we suggest that you elevate pay issues to the same level of culture, compliance, and concern as workplace harassment and discrimination. Provide employees with what the DOL refers to as a “safe harbor” policy, employer pay practices, which practices are prohibited, and directs employees to whom within the organization to ask about pay. The objective should be that no employee ever needs to take a question about pay to anyone outside of the organization. For a copy of our Model Safe Harbor Policy, please click here.

Employers should also audit their wage and hour practices thoroughly on an annual basis. Are exempt employees classified properly? Are independent contractors bona fide independent contractors (in business to make a profit), or are they misclassified? Do you provide breaks, for how long, and with or without pay? If your organization pays an incentive, do you calculate this incentive in determining an employee’s overtime compensation? If an employee’s pay may be docked, is this in writing and applied consistently?

Article courtesy of Worklaw® Network firm Lehr Middlebrooks Vreeland.

WAGE & HOUR INSIGHTS: SALARY DEDUCTIONS FOR EXEMPT EMPLOYEES

By Your Employee Matters | No Comments

If you missed the webinar, “Are You Ready for a Wage & Hour Audit?,” a recording is available in the HR That Works Webinar area or Media Library. During and following the webinar, the presenters received numerous questions about wage and hour law issues — unfortunately many more than they could respond to during the program.

Here’s a response to two questions about deductions from the salary of exempt employees:

Q. When an exempt employee runs out of sick pay, can an employer deduct one day’s pay for the sick day?

A. Yes. Generally, you must pay exempt employees on a “salary basis,” meaning that they must receive a guaranteed salary for each workweek, without any reduction due to the number of hours worked or the quality or quantity of work performed. However, deductions are allowed in certain limited circumstances, such as the absence of an exempt employee for one or more full workdays due to personal reasons other than sickness or disability, or illness or an accident for an employee covered under a sick-pay policy. If an exempt employee uses up all of their sick days under the sick leave policy, you may still take deductions for any further full-day absences.

Q. Can we allow exempt employees to take sick or vacation time off by the hour or in half-day increments?

A. Yes. However, once an exempt employee exhausts available sick leave, you can only take deductions for any future absences if the employee is absent for a full day, unless the absence is for intermittent or reduced-schedule FMLA leave. Watch the FMLA Webinar for more practical insights on intermittent FMLA leave.

THE DISABILITY INTERACTIVE PROCESS

By Your Employee Matters | No Comments

The law requires that employer and employee engage in an interactive dialogue concerning accommodating a disability. This process includes these issues:

  1. The employee’s limitations.
  2. The nature and requirements of the job.
  3. Identification of essential job functions versus marginal ones.
  4. Modification of the job to meet the employee’s limitations.
  5. Distribution of certain duties to other employees or dispensing with them entirely.
  6. The employer’s record of requiring jobholders to perform certain disputed duties.
  7. Possible undue hardship on the employer from granting certain accommodations.
  8. Provision of an alternative vacant position for which the employee is qualified.

The courts have been quick to recognize that much of the data is in the employee’s hands when it comes to their disability and in the employer’s hands when it comes to possible accommodations. Remember, the side that gives up on the accommodation dialogue first generally loses.

For accommodation support, go to the Job Accommodation Network website or contact the HR That Works Hotline.

‘GOT A MINUTE?’

By Your Employee Matters | No Comments

One of the most difficult challenges managers or executives face is having their days ruled by “got-a-minutes.” The executive or manager is usually more proficient or knowledgeable about a certain subject, which makes it tempting for employees to avoid taking personal responsibility for finding an answer and going to an “easy” source. All too often, this source is you. Answering a “got-a-minute” is like throwing that employee a fish: It disrupts your concentration and prevents them from learning how to fish.

To help avoid interruptions to your days by “got-a-minutes?,” tell your subordinates that you’re willing to give everyone at least five minutes between 4:00 and 4:30 to discuss any issues that are semi-urgent in nature, leaving less serious issues for the regular weekly meeting. The only immediate “got-a-minute” questions permitted will be those rated as “emergency issues” (9 or above on a scale of 10). Work with your team to define these issues. Let employees voice their concerns and reach a consensus. Agree that you too will refrain from throwing “got-a-minutes” their way.

This approach should eliminate more than 80% of the trivial “got-a-minutes” that knock you off course. Moreover, during these 4:00 meetings, employees will be more focused on their requests. Let them know that if they think the matter will take more than five minutes they should be prepared and perhaps even use an outline. Encourage them to tell you what efforts they’ve made to deal with the issue and where they’re “stuck.” Perhaps all they need is permission to move forward.

Empower employees to figure things out for themselves. If your time is worth $100 an hour and theirs is worth $20 an hour, let them take a few hours to figure out the answer for themselves.

EDITOR’S COLUMN: BECOME A HUMAN RESOURCES SUPERSTAR!

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Seth Godin defines the new American Dream as: “Be remarkable. Be generous. Make art. Connect people and ideas.” Today’s strategic HR executive embraces this concept. As I see it, four attributes or characteristics make or break an HR executive’s ability to generate powerful relationships (of course, these four factors apply to everyone else, too). They are: Trust, direction, communication, and commitment:

Trust. The first concern every business owner or executive should be to surround themselves with people they can trust. What makes a person trustworthy is the fact that they can do something and have a desire to do so because they have the skills, training, and experience.

One way to become a trustworthy human resource executive is to become a PHR or SPHR. Another way is to be a constant learner: Turn off the TV and pick up a book, or read one of the many reports on HR That Works. Desire motivates the successful HR person to get things done – new things, not just familiar ones.

Direction. Superstars have a clear sense of their direction, vision, mission, values, goals, and plans. Unfortunately, as Mary Kay was famous for saying, “Most people plan their vacations better than their careers.” Just how good do you want to be? What do you have to do to get there? Have you mapped out a plan to get you there step by step? Is your plan in alignment with the greater needs of the organization? Have you had this conversation with your boss or the owner?

Then, give yourself benchmarks to determine how you’re doing. How would you know if you were on course? What results must you achieve, and by when? Break these benchmarks down into a clear plan for the week. What are your typical recurring tasks, and when will you perform them? What value-added tasks will you accomplish this week? When? How long will they take? At the end of the week, evaluate how you did, make adjustments, and set your plan for the next week.

Remember, successful executives have a clear sense of direction. As Napoleon Hill stated in Think and Grow Rich, “They have a burning desire for a particular purpose.”

Communication. One of the top challenges in any relationship involves communication, including how you talk with yourself. To be a good communicator is an inside-out job. What’s your daily “self-talk”? One business school study found that 80% of self-talk is about what we want to have that we don’t, or who we want to be that we’re not. What an incredible waste of time!

Instead, look to the Scriptures. For more than 2,000 years, the 23rd Psalm has reminded us that we “shall not want.” Focus on your gifts: Your intelligence and drive, the people around you, your clients, the fact that people need your work, and so forth. When my self-talk focuses on glorifying what I’ve been given, life becomes far richer both emotionally and financially. That’s good self-talk.

What’s the value of your communication with others? If I asked your significant other, BFF, or a colleague what you could do to communicate more effectively, and then asked you to guess what they said, you’d be fairly accurate. Most of us know what we can do to become better communicators. For one thing, we can listen more closely. This requires us to be present and stop running for a moment so that we can focus on the other person. Try this for five minutes. You’ll be amazed by how others respond to it.

Next, focus on making more positive deposits than negative ones. The authors of the excellent book Leadership and Self-Deception point out that most people deceive themselves into believing that they do more positive communication than negative. This is a natural by-product of running 75 miles per hour. Ask yourself this: When you’re running 75mph and someone’s trying to talk to you, how does it feel to them? Does it feel like a positive experience? Does it feel like you care? Probably not. This is why, although you might have good intentions, your outcomes might not be good. Finally, focus on creating a positive experience in your relations with others by making them feel good about themselves – finding the good that’s in them. Then you might even laugh together.

Commitment. Successful executives are committed. Good old Zig Ziglar provided me with a favorite quote about commitment: “Commitment is doing those things you said you were going to do long after the mood you said them in has worn off.” How committed are you? You might get the things I’ve stated above, but are you committed to delivering on them? Think in terms of rainy day commitments. Successful people commit to getting things done even when it doesn’t feel good to do them. “Sunshine commitment” is always easy. Our personal culture shows up when things feel unfair, not when everything is nice and sunny.

If it feels unfair that your success isn’t coming fast enough, consider the “flywheel effect.” As Jim Collins states in Good to Great, success doesn’t happen overnight. Like a flywheel, it takes some time to kick in. Then you’ll wonder what took it so long. Commitment requires a balance between urgency and patience. Because nothing happens without people taking action, we need a sense of urgency. At the same time, like a Zen master, we have to allow things to unfold as they are – not necessarily as we wanted them to be. I can tell you from personal experience that if you remain committed to something long enough, you will achieve success — just not when or how you expected it!

So, let’s sum up.

If you’re in the HR role, what makes you trustworthy to your superiors? They can trust you with payroll and benefits administration, but can they also trust you to think strategically in a way that helps grow the bottom line? Do you have a written plan for this, with short and long-term goals, and specific benchmarks? Just how good do you want to be? What expectations do you have of yourself? How well do you work with others? Do you play team? Are you a pleasure to work with? Do you give as much as you take? Are you capable of being present and in the now, if even for short periods? Just how strong is your commitment? How would your superiors know this without you saying anything about it? What actions would they expect to see? What bridges are you willing to burn and what are you willing to stop doing as part of this commitment?

Here’s hoping that this either confirms the path you’re on and helps to reinforce it, or alternatively, serves as the good swift kick you might need. Success is a choice. Every one of these strategies should inherently feel right. Apply them toward your success.

EXPATRIATE INSURANCE: YOU SHOULDN’T LIVE ABROAD WITHOUT IT

By Life and Health | No Comments

Although living abroad for the next year is an exciting prospect, there is much to plan and consider. One aspect that’s often overlooked is extended medical treatment. Most people living abroad would want to return home for treatment and recovery and to be close to loved ones if they become critically ill.

Many mistakenly assume that if a critical illness should arise, then their managed care plan would take care of things. This couldn’t be further from the case. Your health insurance plan in the United States isn’t designed to cover you when you are out of the country for an extended stay. Medicare and Medicaid don’t offer any coverage for any medical expense that develops outside the United States. HMOs (Health Maintenance Organizations) generally will cover emergency room treatment wherever you are, but routine health coverage is offered through the state provider networks of your resident state. If you use a network doctor, PPOs (Preferred Provider Organizations) will cover a greater portion of the expense.

Some might turn to Travel insurance as a source of extended medical treatment coverage. This too isn’t quite the case. Yes, Travel insurance generally will provide you with a certain degree of coverage for illness and injury. The amount and extent of coverage is based on what plan you choose. However, the benefit period is usually only six months. So, if your trip is a year long, then you will only be covered for half of your stay and then be responsible for any incurred medical expenses thereafter.

Expatriate Health insurance, by its very name, should alert you that this might be the Health insurance you’re seeking. In Latin, “ex” means away from and “patria” means fatherland. This insurance is geared toward those who will be away from their home, especially stays that extend past six months. Expatriate Health insurance is specifically designed so that you don’t have the geographical limitations and restrictions to provider networks that you have in your managed care plan. Coverage is often only half of the problem when trying to navigate a foreign health system. The Expatriate Health insurance will also help when dealing with language barriers, transportation to U.S. health care centers, and currency exchange.

Expatriate Health insurance plans are divided into two categories:

The first is the basic expatriate plan. This plan offers coverage for care in-hospital and in-patient, meaning it will cover areas such as a hospital stay, services from a number of medical providers, and ambulance transportation. Home health nursing care and emergency dental services are also usually covered. Enhancements to the basic plan, such as outpatient services, certain therapy services, and prescription drugs, may be purchased for an additional cost. Many of the basic plans will also offer emergency medical evacuation coverage for an additional cost, which will transport you immediately from wherever you are to the nearest advanced medical treatment center in the event a medical emergency should arise. Most medical evacuation coverage will also include a return fare.

The second category is the Comprehensive Expatriate Health insurance plan. This is useful if you require more extensive medical coverage, such as for dietary, psychiatric, eyes, ears, chiropractic, osteopathy, rehabilitation, labor and delivery, and home nursing care needs. Certain prescription medications and diagnostic testing may be covered as well.

Like any health plan, expatriate coverage usually has certain exclusions and restrictions. Most carriers will generally not cover preexisting conditions; injuries from war, rioting, and terrorism; and those with hazardous occupations. In cases of preexisting conditions, certain carriers may underwrite it for an additional cost.

THE RETURN OF WHOLE LIFE INSURANCE

By Life and Health | No Comments

During the past few decades, Term Life insurance seemed to be best way to provide for your family if you were to die. It was affordable and paid out well, but after years of renewing policies that did not guarantee any benefits, people have started to turn back to Whole Life insurance coverage.

Whole Life coverage has gotten a reputation for being a little expensive when compared with Term Life plans, but then again, your money stays your money with a Whole Life plan.

There are many reasons why these Life insurance policies have become so popular recently.

First of all, interest rates are presently at all-time lows, but Whole Life policies pay out guaranteed rates that go far beyond what could be earned in a savings account or certificate of deposit with a similar duration. Better yet, taxes do not apply to the cash value growth of a Whole Life policy.

Also, insurance companies offer a variety of Whole Life plans that can help policyholders to reinvest dividends and increase interest on its cash value, further protecting the investment.

Taxes are another reason people are turning to Whole Life insurance. Although taxes on capital gains and dividends have been recently reduced, the proceeds of Whole Life policies are generally not taxed, even when the benefactor dies.

In all, Whole Life policies can do things that Term Life coverage just cannot offer. For instance, once premium payments accrue enough cash value in the policy, premium costs might be reduced or even eliminated, without affecting the benefits or coverage terms. Policyholders can even borrow money from their Whole Life policy’s cash value without needing to go through a lengthy loan approval process. And since it’s actually the policyholder’s money, there’s no rush to pay it back.

There are few guarantees in life, but people can count on the guaranteed benefits of Whole Life coverage. Every time a Term Life policy gets renewed, the process of investing begins anew, not to mention that Term Life coverage can be canceled if a payment is missed or late. Watch your money grow and rest assured that it will be there during times of need with Whole Life insurance.

DON’T TEST FOR RICHER OR POORER: INSURANCE OPTIONS FOR NEWLYWEDS

By Life and Health | No Comments

Marriage usually changes the way in which insurance is thought about and approached. Insurance, especially for newlyweds, is much more complicated than merely insuring a specific object. Think of life as a growing puzzle. You’re constantly laying down new pieces and fitting it all together. Marriage is a big puzzle piece that’s often accompanied by other pieces of your life puzzle, such as a mortgage and children. We all hope that these pieces fit together without interruption or chaos. However, that isn’t always the case. Insurance is a way to protect your puzzle pieces and secure the future of your new family.

Life Insurance. Marriage inevitably brings about many changes – from where you live to your standard of living. These changes usually are designed around the income of the primary breadwinner or the combined income of both spouses. Either way an unexpected death can result in financial hardship if not anticipated carefully. Life insurance is intended as protection should one spouse die unexpectedly and leave the other with the responsibility of this new life.

When purchasing Life insurance, there are many factors to consider, mainly inflation, monthly debts and income, and future financial obligations. A good rule of thumb for ordinary families is to have a minimum coverage that’s 10 times the primary annual income. However, this wouldn’t be applicable in all situations; for example, you might have a disabled child that increases financial obligations. It’s best to speak with our Life insurance agents to help you determine how much coverage you actually need.

If you have an existing Life insurance policy, then it’s important to revisit the policy and make any adjustments to coverage and possibly rename your beneficiary.

Disability Insurance is just as vital as Life insurance. Statistically, disability is actually a greater possibility for younger married couples than premature death. Disability insurance is especially important for young couples taking on the responsibility of purchasing their first home. Imagine for a moment that you or your spouse suffers an illness or injury that results in an inability to work. The absent income could mean an inability to pay your mortgage, especially if the affected spouse was the only one working. Disability insurance is designed to protect you from such circumstances by covering a portion of your income.

Automobile, Homeowners, And Renters Insurance. Most couples will find it more cost efficient to use the same automobile insurance company. Many carriers offer a discount based on the number of vehicles insured and possibly an additional reduction for carrying Homeowners insurance with them as well. Even those not financially ready for a mortgage should still use Renters insurance to protect their newly combined possessions.

Health Insurance. Just as with Auto insurance, many couples might find it more cost efficient for both health insurance policies to be through the same company. Spouses can generally be added to an existing policy after marriage. Look to see which option offers the lowest premiums. And, if planning on starting a family immediately, be sure to look at which options cover prenatal care.

Financial solvency is hard enough when you only need to worry about yourself. Now that you have a spouse, there are even more angles to cover and ways things can go wrong in your puzzle. Why test for richer or poorer when there are so many ways to guard against the latter?