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Monthly Archives

May 2013

EEOC CREDIT REPORT LAWSUIT DISMISSED

By Your Employee Matters | No Comments

The EEOC received plenty of publicity from its 2010 lawsuit against Kaplan Higher Education (EEOC v. Kaplan Higher Educ. Corp., N.D. Ohio), alleging that the company’s use of credit reports as a factor in hiring decisions for financial aid positions had a discriminatory impact based on race and, thus violated Title VII of the 1964 Civil Rights Act. A federal district court dismissed the EEOC suit on January 28, 2013.

Kaplan did not track the race of its applicants, and was not required to do so. To show a discriminatory impact based on race, the EEOC hired expert “raters” to determine the race of applicants by pictures and other information, and thus evaluate whether Kaplan’s practice had a discriminatory impact. In dismissing the case, the court held that the commission failed “to present sufficient evidence that use of ‘race raters’ is reliable.” The court also chastised the EEOC saying that, “It is clear that EEOC itself frowns on the very practice it seeks to rely on in this case and offers no evidence that visual means is accepted by the scientific community as a means of determining race.” The court concluded that because EEOC’s expert “relied on data obtained by unreliable means… whether the jury could ultimately ‘correct’ the process employed by the ‘race raters’ is irrelevant.”

The court ultimately dismissed the case because the EEOC did not provide sufficient evidence to make its case.

Don’t be surprised if the commission keeps pursuing claims that the use of tests, credit reports, and other background checks has a discriminatory impact on blacks, Hispanics, women, and others. The EEOC will simply look for another case and try to correct the evidentiary issue that resulted in the dismissal of its claims against Kaplan.

2012 EEOC CLAIMS NEAR 100,000 MARK

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The Equal Employment Opportunity Commission handled nearly 100,000 claims in 2012. According to the commission’s press release, “The U.S. Equal Employment Opportunity Commission (EEOC)…received 99,412 private sector workplace discrimination charges during fiscal year 2012, down slightly from the previous year. The year-end data also show that retaliation (37,836), race (33,512) and sex discrimination (30,356), which includes allegations of sexual harassment and pregnancy were, respectively, the most frequently filed charges. The fiscal year 2012 enforcement and litigation statistics, which include trend data, are available on the EEOC’s website.

The press release added that:

“In fiscal year 2012, the EEOC filed 122 lawsuits, including 86 individual suits, 26 multiple-victim suits (with fewer than 20 victims) and 10 systemic suits. The EEOC’s legal staff resolved 254 lawsuits for a total monetary recovery of $44.2 million. EEOC also continued its emphasis on eliminating systemic patterns of discrimination in the workplace. In fiscal year 2012, EEOC completed 240 systemic investigations which in part resulted in 46 settlements or conciliation agreements. These settlements, achieved without litigation, secured $36.2 million for the victims of unlawful discrimination”

What the EEOC didn’t mention is that it’s backing off a bit on its aggressive litigation stance due to a combination of tight budgets and mixed courtroom results. For example, as mentioned in the EEOC Credit Report Lawsuit Dismissed article, a federal district court recently dismissed the commission’s well-publicized credit background lawsuit.

I for one, hope the EEOC focuses more on education and conciliation, rather than litigation.

MAKE SURE THAT VOLUNTEER WORKERS CARRY WORKERS COMP

By Your Employee Matters | No Comments

The California case of Diane Minish v. Hanuman Fellowship carries a valuable lesson for anyone involved with nonprofit organizations.

After Diane Minish, a volunteer worker with the nonprofit Hanuman Fellowship was accidentally thrown from a forklift, she sued the organization for negligence. Hanuman argued the exclusivity of Workers Compensation as a remedy, claiming that its Comp policy covered the plaintiff. Although Minish did receive comp benefits, she felt they were too low – and so she sued for more. As in many states, under California law, “private, nonprofit organizations are not required to provide [Workers Compensation] coverage for volunteers (see §§ 3700 [requiring coverage for employees]; 3352, subd. (i) [volunteers are not employees]), section 3363.6 allows them to do so if they choose.” Although the statute, is awkward and disjointed, it provides, in essence, that a volunteer becomes a covered employee if the board [of the nonprofit] so declares in writing before any work-related injury.

Minish argued that she had not agreed to this arrangement:

“Plaintiff contends that under section 3363.6, a declaration rendering volunteers covered employees does not become effective unless and until an affected volunteer has notice of the declaration and voluntarily accepts Workers Compensation coverage before any injury. Thus, because the undisputed evidence establishes that she did not receive such notice and did not voluntarily accept Workers Compensation coverage before the accident, the Act was inapplicable. ”
The court disagreed, ruling that

“Here, of course, without the slightest advance warning, Hanuman plunged Minish into the toils of the Workers Compensation system not only without her knowledge, but – as soon as she learned of it – very much against her will. Section 3363.6 does not explicitly require notice to volunteers that they have been deemed volunteer/employees. Nor does the statute provide that such status must be accepted by each volunteer individually… In short, we reject the plaintiff’s claim that section 3363.6 imposes a notice and acceptance requirement.”

However, the court dismissed the argument that Minish was “estopped” from denying the exclusivity because of the fact that she used the Workers Comp system. So, although the suit will go back to court, chances are that she will lose in her attempt to claim negligence.

The bottom line: Whether you sit on a non-profit board, run a non-profit, or advise one, make sure you do what’s required under state law to make sure that your volunteers: a) sign liability waivers and b) get Workers Comp coverage. Doing so will help avoid an ultra-expensive negligence claim. Also, make sure that your insurance coverage addresses such claims where the doctrine of workers comp exclusivity does not apply.

AN EMPLOYEE REFERRAL SYSTEM THAT WORKS

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Although referral programs can provide a valuable source of new workers, many employees are reluctant to provide referrals because they’re afraid that they’ll take the blame if the new hire doesn’t work out.

Here are a few ways to reduce this fear:

Provide a worthwhile financial incentive for referrals. Money can do wonders to overcome the fear of embarrassment.

Consider a mix of contests, raffles, etc. in addition to cash making referrals more fun and competitive.

Think in terms of the new employee’s “lifetime” value. If a worker can earn the company $50K per year for an average of three years, how much would you be willing to invest to get this return? If you pay recruiters 10% to 30% of the new hire’s annual salary, does it make sense to pay an employee only 1 or 2% for a referral?

Space out the referral bonus in quarterly payments, based on specific benchmarks. For example, you can give an initial payment for the referral, a second if the employee is hired, another one at six months, and the final one on the new hire’s anniversary date.

Train employees on how to approach prospects and make it easy for them to tell the prospect your company story. Give them a pamphlet, some type of document, or a web page link that defines the business and the opportunity the position offers the prospect.

Finally, measure the program’s results on a regular basis so that you can keep improving it.

EDITOR’S COLUMN: 10 PERSONNEL MANAGEMENT CHALLENGES FOR CEOS

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Over the years, I’ve had the chance to do hundreds of three-hour workshops for CEOs about personnel practices. In light of this experience, I’d like to share 10 challenges that CEOs and executives face when it comes to personnel management.

The difficulty in finding new talent. The good news is that most of these employers expect to do more hiring than firing this year. The challenge is that most of the good employees are already taken. Perhaps the biggest mistake is thinking that you find these people, as opposed to attracting them. To attract talent, you have to position yourself as an employer of choice – a great place to work. Companies such as Costco, Southwest Airlines, and my beloved In-N-Out Burger do this so well that they don’t need to go find anybody.

Problems in retaining top talent. This is the flipside of the conversation above. In the marketplace of talent swapping, some companies will win, while others lose. To what degree do you have a philosophy, strategies, and tools to make sure you are retaining top talent? Do you understand why people either come to work for you (through a post-hire survey) or why they leave you (an exit interview)? Do you tap into their opinions and concerns with surveys, focus groups, and one-on-one conversations? Remember: Turnover is contagious.

Lack of managerial leadership. When we run 75 miles an hour and promote people into management, chances are that this happens with little or no training. Fact is, half of managers in your industry are above average and half are below average. Guess who gets more training? You need to train managers in business acumen, communication, basic compliance, team building, and systems understanding. Most important, they need training in time management so that they can spend 80% of their time adding the value they can – and only 20% doing administrative tasks.

Low employee engagement. This is easy to understand when we’ve just gone through a difficult recession, which has limited raises, cut benefits, and stunted growth opportunities. On top of that, it feels that we have a federal government that fosters an us vs. them mentality with the workforce. Perhaps the question for leadership is “how can we help our employees?” How can we help them become more productive so they can grow in their careers? How can we help them find greater meaning in the work they do every day? How can we help them gain more control over the direction of their career? As Shakespeare stated so eloquently, “To work we love with delight we go.” What would it take for your employees to love the work they do every day?

Failure of management to benchmark or improve performance. Performance management is one of my favorite subjects. To begin with, do you have a specific goal for improving performance? Sure, you want sales to increase by 10%, but do customer service reps, the receptionist, and the CEO have a goal to increase their specific performance by 10%? The next question is: What are you trying to improve? What aspect of performance is most important? If you have a high growth company, perhaps what matters most is quick hiring, onboarding, and training performance. If you’re a restaurant, perhaps your food is great but your wait staff is abysmal. Focus on your strategic objective.

Here’s a question I encourage everyone to ask those who report to them and, if you’re the one doing the reporting, to ask yourself: “What are the three most important things this employee does every day?” What good is a performance management approach if you can’t be on the same page as this question? When you have determined this, ask: “How would you know if you were doing your job well without having to ask me or without my having to tell you?” Once the employee can answer this question to your mutual satisfaction, you have legitimate benchmarks. The question then becomes: How can you improve? What training, resources, support, etc. do you need to supply this employee so they can perform at their best? Remember, as both Peter Drucker and Dr. Deming said: Nine out of ten employees want to do a good job every day; it’s the system they find themselves in that creates problems.

Misaligned compensation, benefits, and incentives. Here’s another of my favorite subjects. Exactly why do you have healthcare, 401(k) or other benefits? Do they help you to hire better talent? If so, how would you know? Do benefits help you retain talent and improve performance? How would you know? If these benefits don’t tie into your strategic objectives, the chances are that you’re wasting many of them – and at a hefty price tag. I’ve begun working with a genius who is turning the benefits sales process on its head. By running algorithms of employee data and healthcare expenses, he can define the optimum benefit mix for an employer, which it then takes to the marketplace – as opposed to the marketplace telling the employer what plans are available for their demographics. Finally, how benefits are managed can impact productivity. For example, sick pay can actually grow healthcare expenses and reduce productivity. Not surprisingly, San Francisco and now Portland actually require employers to offer sick pay. How about providing wellness pay or paying people for being at work? Bear in mind that any incentive you use has both negative and positive consequences.

Failure to execute strategic initiatives. We live in a rapidly shifting business environment that requires us to manage change quickly and successfully. If you haven’t done so, please watch the recorded webinar I did on Change Management and have your entire management team do the same. (If you don’t have access to HR That Works, let me know and I’ll send you a link to it). The webinar makes two major points: First, one of the traps of the hero is over-commitment. This holds true of both individuals and the company as a whole. When we over-commit, we tend not to live up to our commitments – which generates mistrust. Secondly, strategic initiatives require buy-in. Just as in sales you want to make the purchase the buyer’s idea, when it comes to change management, you want it to be the idea of your supervisors and employees. Give them some ownership of the idea and you’ll find them onboard with it. Because change will remain a constant, we’ll need to keep, coaxing, encouraging, and inspiring each other towards growth. When we stop the over-commitment and focus on execution, we’ll keep growing the bottom line.

Finding time for management. Too many executives and managers mismanage their use of time so badly that they’re on overload and unable to take on any growth objectives. Most top CEOs I know take at least a few days a month away from the job so that they can work on the business instead of just working in the business. Google is smart enough to allow its employees to do this one day a week. As Stephen Covey reminded us in the Seven Habits of Successful People, you need to keep sharpening the sword. Everyone in your company needs to understand and execute time management techniques. I’ve produced an HR That Works Time Management Training Module that can help you and your managers with this.

Lack of commitment to or interest in human resources. I realize that many business owners and executives feel that HR is boring, or worse. They didn’t have to know anything about it to start a business. Even though they often have little or no idea on how to run an HR department or function, in one-on-one meetings with their peers in Vistage, executives usually describe personnel issues as the major challenge facing them. The fact that employee relations just isn’t their thing provides an incredible opportunity for HR professionals to offer the expertise needed.

Failure to understand the bottom-line potential of HR. Business owners are revenue animals who often don’t see personnel practices as generating revenue. This has been a long-standing uphill battle for HR. There’s a reason why Fast Company magazine years ago published an article, “Why I Hate HR.” In reality, many companies have great HR practices which form the foundation of their bottom line success. For example Jack Welch stressed the importance of HR practices as an economic driver in his years at GE. In fact, he’s still talking about it.

If you own, run, manage, or advise a company, addressing these HR challenges provides a unique competitive advantage!

ALTERNATIVE RISK FINANCING: NOT JUST FOR THE BIG GUYS

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Large corporations often use “alternative risk financing” – assuming some of their own risks, in addition to buying insurance – as a way to improve cash flow and lower their total costs. However, this technique can offer substantial benefits for medium-sized companies that face significant potential risks from one line of insurance, such as Workers Comp, General Liability, or Auto Liability.

Basic alternative risk financing methods include:

  • Guaranteed cost insurance – the company pays a premium based either on a rate, such as payroll or property values, or a flat amount.
  • Incurred loss retrospective rating plans (“retro) – use a standard premium adjusted after policy expiration based on loss experience.
  • Large-deductible plans – the organization assumes a substantial (often $50,000 to $250,000) per-accident or per-occurrence deductible.
  • Self-insurance – the firm retains its loss obligations and pays them as they become due.
  • Captive insurance – this variation on self-insurance pre-funds risks through an insurance subsidiary (“captive”) usually owned by the parent company.

Because each of these methods has advantages and disadvantages, your choice should depend on the situation and needs of your business. For example, a guaranteed cost plan minimizes the upside risk, but won’t help your cash flow; while a captive usually costs the least to finance, but can be expensive to administer.

Whichever alternative risk financing option you choose, make sure your accounting and human resources departments educate managers on their responsibilities in daily hands-on administration of the program. The more widespread their “buy-in,” the stronger your bottom line.

We’d be happy to help you select and develop an alternative risk financing program that’s tailored to your needs. Just give us a call.

 

STORMY WEATHER: SAFETY PAYS!

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Spring is here – and that means it’s time to make sure you’re prepared deal with potential threats to your business from tornadoes and thunderstorms. The planning process should focus on keeping your employees safe, so make sure to explain it to them and do reviews at regular intervals.

Tornadoes

Although a brief warning period usually precedes a tornado, you probably won’t have time for measures to save the facility – which means employee survival must be your top priority. If there’s a tornado watch, have someone listen to the Weather Channel, NOAA Weather Radio, or a local radio station. In the event of a tornado alert, first post an observer; then have employees proceed to the lowest level of the building ( preferably underground), without taking the elevator, get under sturdy tables, stay away from windows, and cover their faces.

If you have employees working outside, develop special safety instructions for them. In case of a tornado watch, make sure that these workers stay informed; when the tornado is about to occur, have them get indoors and take shelter.

Thunderstorms and Lightning

In addition to spawning tornadoes, thunderstorms can cause flash floods, produce damaging hail, create strong winds – and discharge lightning.

Chances are that your business facilities are built, or can be designed, to withstand significant damage from thunderstorms, wind, rain, hail, and – to a lesser extent – lightning. When it comes to machinery, make sure all important electrical devices are connected to surge protectors, and have UPS (Uninterruptable Power Supply) units for critical equipment. In addition, power down and disconnect all electrical machinery before a severe thunderstorm strikes.

For guidelines on developing, and implementing a weather safety program for your business, please get in touch with us at any time.

USE SOCIAL MEDIA AS A RISK MANAGEMENT TOOL

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Given the dramatic impact of social media on the speed and delivery of news and information, it makes sense to make this fast-growing technology part of your risk management program.

More and more reputational crises, such as the recent stranding of the Carnival Triumph cruise ship, are born on social networking platforms and can grow exponentially if mishandled. Consider how Apple Inc. responded to consumer displeasure with the iPhone 4 shortly after its 2010 introduction. Negative comments about the product spread quickly over social media channels, but were largely ignored by Apple executives until mainstream news outlets began reporting on its flaws.

Failing to actively engage social media users in conversations about crisis or business practice of your company means losing an invaluable opportunity to protect your reputation. Otherwise, you risk having other people tell your story.

Social media participation gives you a way to enhance this reputation through regular interaction with customers, business partners and the public. Using this tool to develop relationships and help people, rather than just sell products and services, can create some valuable allies.

Encouraging your employees to participate in social media offers a great way to use them as advocates for your company. A 2012 poll of more than 1,000 registered voters by Hill+Knowlton Strategies found that a corporation’s employees are the second-most trusted source of information about its business practices, second only to friends and family members.

RISK MANAGEMENT: KEEP SAFETY IN THE FOREFRONT

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Once employees have gone through safety training, make sure that they use what they’ve learned. When every worker knows and chooses the safe way on a daily basis, you’ll have a workplace with less chance of accidents and injuries.

This four-step approach to job safety will pay dividends:

  1. Team up to solve problems and improve safety. Create employee teams in every department to gather information on potential hazards, analyze problems, develop and test solutions, and implement and monitor results. Being part of a team makes workers feel that they share responsibility, which keeps your safety message top of mind.
  2. Talk up safety every day. Update employees on information that affects their safety. Provide ongoing feedback, praising safe performance, correcting unsafe behavior, and pointing out areas for improvement. Make sure that communication flows both ways. Urge workers to offer suggestions, identify problems, and pose questions – for example, through a safety suggestion system.
  3. Encourage employees to become hazard detectives — and reporters. Make every worker responsible for finding hazards. Create an effective system for reporting problems, and respond promptly to correct hazards that employees identify. This is harder than it sounds because it means that management has to listen when workers discuss safety concerns.
  4. Create a “want-to” safety culture. Encourage your workers to do the safe thing, not because they have to, but because they want to avoid injuries. Remind them of how many safety-related decisions they make every day – and how one bad decision is all it takes to get hurt.

For professional advice on creating or updating your workplace safety program, just give us a call.

VOLUNTARY BENEFITS: WHAT’S NOT TO LIKE?

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A recent nationwide study found that more and more businesses and workers are benefiting from voluntary employee benefits programs. According to the Prudential Insurance Company State of Group Voluntary Benefits survey:

  • More than six in ten employees surveyed (63%) believe that voluntary benefits increase the value of their company’s benefits program.
  • The percentage of employees who would like to receive more benefits grew to 34% from 24% a year ago.
  • One in three employees feels that losing their voluntary benefits would be disruptive and expensive.
  • “Employers and employees agree on the value of voluntary benefits,” says Bob Patience Prudential Group Vice President, Voluntary Benefits Insurance.
  • “Employers see an increase in employees’ satisfaction with these programs, while employees appreciate their employers’ endorsement of the products offered, and believe they get good value because of their employers’ involvement and diligence.”

Voluntary benefits offers workers a number of advantages, including the education and resources they need to make informed decisions based on their needs. Taking full advantage of these programs is a great way for employees to improve their “wellness” – both physical and financial. What’s more, voluntary benefits offer workers the convenience of employer-based enrollment systems and “pain free” payroll deduction.

What employees saw as the primary advantage of voluntary benefits varied based on age, education, and gender. More than three in five workers (62%) over the age of 60 focused on the guaranteed coverage feature. More than half (56%) of college graduates preferred the wide range of available products. A slightly higher percentage (53%) of women than of men (45%) chose the convenience of payroll deductions.

Our agency’s professionals would be happy to advise you on creating or updating, your Voluntary Benefits program – just give us a call.