The online training will cover FMLA basics as well as some of the more complex administrative intricacies including the law’s interplay with other laws.  Please join us!

The minimum deductible and maximum out-of-pocket figures refer to threshholds that allow a health insurance plan to be considered a HDHP for purposes of whether related contributions may be made to an individual’s HSA.  The HDHP’s out-of-pocket maximum includes co-pay and deductible amounts but does not include premiums.  The IRS permits contributions to an HSA when a person has a qualifying HDHP.  If a person no longer has a HDHP, (s)he still owns the HSA and may make qualifying medical payments from it but is no longer eligible to make contributions (or have employer contributions made) to it.

But the flip side to negligence is being overly exclusive and facing a different legal concern:  employers need to be thoughtful when establishing and implementing their employment practices so that there is no disparate treatment of or disparate impact upon groups protected by Title VII of the Civil Rights Act.

Disparate treatment occurs when an employer intentionally treats someone differently based on a protected characteristic such as race or national origin.  For instance, if an employer rejects an African American applicant based on his/her criminal record but hires a similarly situated White applicant with a comparable criminal record, there is disparate treatment and the employer is violating Title VII based on racial discrimination.

Disparate impact occurs when an employer has an employment policy or practice that seems to be nondiscriminatory on its face, yet has an adverse impact on members of a protected class that cannot be justified as job-related and consistent with business necessity.  Note that disparate impact may well be unintentional but is still considered discriminatory.

A recent case involving disparate impact generated a huge payout by Pepsi Beverages to the tune of $3.13 million (among other consequences) to settle a racial discrimination case.  The EEOC deemed Pepsi’s background check policy to be overly broad, resulting in a disparate impact on African American applicants.

The Equal Employment Opportunity Commission (EEOC) has just issued guidance to help employers fully understand and meet their responsibilities in a nondiscriminatory way when considering arrest and convictions records in their selection and retention policies.  The EEOC requires employers to take into consideration:

1. the nature and gravity of the offense;
2. the amount of time that has passed since the conviction and/or completion of the sentence; and
3. the nature of the job sought

The three factors above are referred to as the Green Factors, resulting from the 1975 case of Green v. Missouri Pacific Railroad.  In that decision, it was held that it was discriminatory under Title VII for an employer to follow a policy of disqualifying for employment any applicant with a conviction “for any crime other than a minor traffic offense.”

Keeping these Green Factors in mind, employers need to be certain that any exclusion from employment based on a criminal conviction is justifiable for that particular position and is based on business necessity.  The EEOC Guidance provides plenty of examples of nondiscriminatory and discriminatory practices as well as examples specific to certain industries such a banking and schools.  It may seem long at first glance but is well worth the read.

That said, here are the EEOC’s best practice recommendations for employers when considering criminal record information when making employment decisions:
•    Eliminate policies or practices that exclude people from employment based on any criminal record.
•    Train managers, hiring officials, and decision makers about Title VII and its prohibition on employment discrimination.
•    Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
•    Identify essential job requirements and the actual circumstances under which the jobs are performed.
•    Determine the specific offenses that may demonstrate unfitness for performing such jobs.
•    Identify the criminal offenses based on all available evidence.
•    Determine the duration of exclusions for criminal conduct based on all available evidence.
•    Include an individualized assessment (as explained in the EEOC Guidance.)
•    Document the justification for the policy and procedures.
•    Note and keep a record of consultations and research considered in crafting the policy and procedures.
•    Train managers, hiring officials, and decision makers on how to implement the policy and procedures consistent with Title VII.
•    When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
•    Keep information about applicants’ and employees’ criminal records confidential.  Only use it for the purpose for which it was intended.

Some of the above steps may seem like overkill, something you don’t have time for, such as keeping records on how your related policies and procedures are crafted.  But using criminal record information must be done carefully so be sure to take that little bit of extra time to create and maintain supporting documentation.  It won’t take as long as you think, won’t occur often, and your documentation will give you peace of mind that your policies and practices are well crafted and aid you in making prudent and nondiscriminatory employment decisions.

Basically, employers have a duty to exercise reasonable care when hiring and throughout the tenure of an employee such that a third party does not experience resultant harm.  There are several related terms:

Negligent hiring relates to an employer’s failure to take reasonable care during the hiring process to prevent exposing third parties to an unreasonable risk of injury.

Negligent retention occurs when an employer fails to be aware of an employee’s unfitness or, once aware, fails to take corrective action through such actions as coaching, reassignment, or termination.

Negligent supervision is closely related; it occurs when an organization fails to reasonably monitor or control the actions of an employee which result in harm.

Negligent training is a further variant that occurs when the training provided to an employee fails to prevent him or her from engaging in acts that harm the claimant; or the training fails to fix a pattern of behavior which leads to an injury.

Law suits involving negligent retention often also cite negligent supervision or negligent training as an alternate theory, as an employer that knows of an employee’s improper conduct should either terminate that employee, or take steps to penalize that conduct and/or train the employee not to engage in that conduct.

To prevent (and defend against) such a law suit, here are some steps your organization should take:

I.    Hire carefully:

• Don’t fill a position just to fill it; it’s usually better to leave a position open until you have the right candidate;
• Require application forms, not just resumes. As opposed to resumes created by the candidate, application forms highlight potential red flags to be explored further such as: employment gaps, why someone left a job, former supervisors to contact, and felony convictions, if appropriate and permitted by state law.  The employee must also sign that the information provided is true (and may be terminated if the information provided is later found not to be so);
• Create a structured interview process and train interviewers to ask appropriate and legal) questions;
• Conduct background checks and drug testing where appropriate;
• Verify candidates’ credentials;
• Always check references and document your findings.

II. Oversee employees responsibly:

• Train supervisors to involve HR when dealing with difficult situations;
• Train supervisors to manage difficult employees and to address inappropriate behaviors immediately with corrective actions;
• Train supervisors to communicate performance standards and to conduct honest and constructive performance evaluations;
• Train supervisors in all of your policies and make sure they are followed consistently across the organization;
• Investigate all complaints about an employee promptly; take quick corrective action when needed;
• Train employees in all of your policies and procedures including safety and emergency procedures, anti-harassment, anti-retaliation, professional conduct and other policies designed to maximize their and the public’s well-being.
• Immediately terminate an employee who poses a risk or threat to the safety of others; involve law enforcement when appropriate.

III. Document methodically all the steps your organization takes to ensure the responsible and careful employment actions, including any corrective measures.

Actively Engaged Employees—You can probably name these individuals off the top of your head. They’re the ones who are enthusiastic, energetic and believe in the organizational goals.  If you ask your managers to rank their staff members, these are the folks right at the top. They’re often the folks a manager consistently turns to to get the job done right.  As a result, these employees may be picking up the slack for the other 71%.  That’s a big problem for retaining these stellar performers and you may be vulnerable to losing them.

Disengaged Employees—These are the employees on cruise control.  They do what’s required to get by but nothing more.  Their job is just a job and they’re there because they have to be.  They don’t truly care all that much as to whether your organization succeeds or not, nor whether it’s performing at its peak.  So that’s the majority of employees!

Actively Disengaged Employees—These are the ones who give you trouble.  Maybe there’s a person who’s always pushing the envelope to see what (s)he can get away with.  Perhaps someone frequently complains, gossips or badmouths the organization or other staff members.  At worst, this person can have a serious and toxic impact on the morale of other staff.

In addition to enhanced productivity (and commensurate profitability) there are myriad reasons to enhance employee engagement at your workplace.  Employee engagement results in:

• Happier, more satisfied customers
• Improved safety record
• Improved morale of the entire workforce
• Reduced absenteeism
• Lower turnover rate
• Retention of top talent
• Greater Resilience in the face of change
• Employee advocacy for your organization

There are active steps you can take to improve employee engagement.  Ideally, commitment to doing so comes from the top so get your  top executive on board with the following:

1. Engage Managers and Supervisors– Employees who work for a supervisor who is disengaged are three times more likely to be disengaged themselves.  Train managers and supervisors about what engagement looks like and what they can do to improve their own and that of their employees.  Make sure supervisors receive training on how to motivate and coach employees and how to engage in active listening so their employees feel heard.  Evaluate supervisors on how well they develop their staff and foster a cooperative and healthy work environment.

2. Provide the Basics—Employees need clear expectations about what the job entails and the materials to get that job done.   When expectations are murky and necessary tools are not provided, negative emotions such as boredom and frustration result.  A bored or frustrated employee will think more about survival than about helping the organization.  Provide job descriptions and regular feedback while ensuring employees have all the equipment, materials and tools that help them do their best work.

3.  Get to know Your Employees — Employees bring their whole selves to work.  Get to know them as individuals, what they are motivated by and what is important to them.  Employees want to know that their supervisor and their employer cares about them.  Provide support when they need it and offer a service such as an Employee Assistance Program (EAP) if they need outside help.  Once you know what motivates them, follow through to meet those needs.

4.  Enhance Trust – Lack of trust creates employee entrenchment and self-protection.  Build trust through frequent, honest and open communication.  Managers or supervisors who are autocratic, micromanaging, who blame subordinates, or fail to give recognition and credit create a negative environment where employees adopt behaviors geared only toward their own survival and not the good of the organization.

5. Foster Career Development and Learning – Provide employees with the opportunity to build on their strengths and do what they do best every day.  Create a supportive organization where employees’ ideas are valued.  Identify links between employees’ personal goals and interests and organizational goals and mission. When workers use their strengths and develop new skills, their work becomes more fulfilling as they simultaneously support the organization’s goals.

6. Communicate the Values and Mission – Employees are inspired by values that are embodied by others and communicated clearly; likewise, when they are proud of the organizational mission and their role in serving it.  Take every opportunity to communicate to employees.  Connect the dots for them on why and how their role plays an important part.

7.  Eliminate Bad Behavior—Don’t tolerate bad behavior from any employees, even those who are tops in other important regards.  When you fail to address performance issues, your best employees become demoralized and discouraged.  You can’t afford that!  Make sure you nip bad behavior in the bud and that all performance-related discussions and evaluations are honest.

Keep in mind that these steps need to be sustained organizational efforts. Mere dabbling, without consistency over the long term, won’t have a strong or long lasting impact.  Improvement to employee engagement is a long-term commitment so make it a top organizational goal.  The improved results will be well worth your efforts.

“In light of conflicting decisions at the district court level, the DC Circuit Court of Appeals has temporaily enjoined the NLRB’s rule requiring the posting of employee rights under the National Labor Relations Act, which had been scheduled to take effect on April 30, 2012.  In March, the D.C. District Court found that the agency had the authority to issue the rule. In April, the South Carolina District Court found that the agency did not. The agency will appeal the South Carolina decision.

Regional offices will not implement the rule pending the resolution of the issues before the court.”

You may continue to find further updates on the HRSentry Blog as they arise.

Previously, a district court judge in Washington D.C. considered a challenge by the National Association of Manufacturers and invalidated some portions of the rule related to penalties, but determined that the NLRB does indeed have the statutory authority to require employers to post a notice of employee rights.  The Washington, DC case is being appealed and it’s possible that the South Carolina case may be appealed by the NLRB.

As of this this morning, April 16th, there has been no comment from the NLRB on the South Carolina ruling.  Their web site continues to publicize the April 30th deadline.

Do you have whiplash yet?  What is a conscientious employer to do?  Which arguments will hold sway?  I guess the best advice is to sit tight for another week to see if any further delay in the posting requirement or any other relevant information is announced.  Keep your eye on the HRSentry blog as we will continue to monitor any related events that unfold.

How do you know whether you are covered?  The NLRA applies to most private sector employers who engage in interstate commerce.  Specifically excluded are federal, state and local government employers as well as those who hire agricultural workers exclusively and those covered under the Railway Labor Act such as railways and airlines.  More information is available under the Q&A section of the National Labor Relations Board (NLRB) web site.

The poster, similar to one already required of federal contractors, states that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and also to refrain from any of these activities.  It provides examples of unlawful employer and union conduct and lets employees know how to contact the NLRB with questions or complaints.

Employers must post the notice conspicuously where other workplace notices are typically posted.  It must be at least 11 x 17 inches in size (which can be achieved by taping two 8 ½ x 11 sheets of each half of the poster together.)  The required posters are available for free download and may be obtained from your regional NLRB office so don’t ever pay for them.  Subscribers to HRSentry® may access for free all the federal and state posters they need by clicking on HR Solutions, then HR Modules and scrolling through the list of available kits to the Poster Kit.

Note that, if you regularly post employee notices of personnel rules or policies on an internet or intranet site, you’ll have to post this notice there as well or, at least, post a link to the employee rights on National Labor Relations Board web site, with the heading: “Employee Rights under the National Labor Relations Act.”

Also, if 20% or more of your workforce is made up of by groups of speakers of different languages, the poster must be displayed in each language or a hard copy given to each affected employee.  Translated versions of the posters in 23 languages are available on the NLRB site; others are available upon request.

Sometimes there’s that one employee who seems to delight in being the bearer of bad news, accurate or otherwise.  She or he may ascribe an ulterior motive to other employees, other departments or management. Sometimes the person believes that gossiping and spreading rumors about others is a way to raise their own status by appearing to be the person “in the know.”  Or sometimes gossip and rumors spread to fill a vacuum; that is, to make up for a lack of communication from a supervisor or top management.

Seeds of discontent, fertilized by rumors, can grow into misunderstandings, unresolved conflict, and a general breakdown in trust.  Further, a culture riddled with gossip can encourage good employees, who don’t want to get sucked into negativity, to leave.  Here are some tips to halt the gossip machine before it takes on a life of its own:

• Management should communicate regularly and consistently with employees about what’s happening in the workplace.  Otherwise, especially during times of uncertainty, employees will naturally speculate. Rumors often play on fear and fear can come from the perception, misguided or otherwise, that information is being withheld.  Regular communication can also defuse the influence a gossiping employee has over others, because everyone else is “in-the-know” too.
• Supervisors should make sure they communicate with employees every day or at least every week.  Even if it is only for five minutes or if there’s nothing new to add since the last time, checking in regularly is important.  Communication goes both ways so supervisors should express true interest in their staff and be ready to listen to concerns as well. Employees need to believe their supervisors and managers care about them.  Set a calendar reminder and make it a priority!
• Prevent and lessen the exclusivity of cliques through team building activities.  Just as members of political parties within Congress cannot work together to create good legislation if they demonize one another, employees should view one another as human beings who are trying to do their jobs well and not sabotage others.  Encourage a greater understanding of the roles of various positions and departments to break down barriers and foster better inter-departmental communications. Team building can involve such activities as different departments working together to solve problems or simply having an ice cream social during work hours to get to know one another better.  Use your imagination!
• Provide employees with a list of “Workplace Expectations.”  Include a reference to employees not engaging in spreading gossip or rumors. For example:  “Do not participate in spreading gossip and rumors, and do not tolerate it from others. Rumor and gossip sabotages the team’s ability to work together effectively.  It is disrespectful, nonproductive, and a selfishly motivated act that impedes employees from performing their jobs. If you hear about an issue that pertains directly to you, verify the accuracy of the information by asking the supervisor or the coworker involved, rather than simply passing on the information.” Discuss with employees the impact gossip has on the workplace.  Having a workplace expectation about gossiping gives permission to coworkers to hold each other mutually accountable for maintaining a “gossip free” workplace.
• Speak with a gossiping employee about his or her behavior.  Let him or her know that gossip results in others not trusting him or her because they believe they may become the next subject of the gossip. For some employees, this single statement will create a realization that will result in immediate change.  You should also describe the impact the employee’s behavior has on the workplace and that his/her continued participation in the spreading of rumor and gossip is a violation of the workplace expectations.
• Devote a performance evaluation category to Cooperation or Teamwork within and across departments.  Include verbiage for behavior that merits a strong rating such as: “is eager to share knowledge and skills with other employees; seeks out and create opportunities to share such information with coworkers.  Engages in and promotes positive interactions with all other employees.”  When employees cooperate and work together, they avoid negative gossip. Where an employee falls short, make sure the bad behavior gets reflected in the performance appraisal.
• Finally, enhance employee engagement in the workplace.  Engaged employees are more motivated and more productive.  Not coincidentally, they are not your gossip mongers.  Our next HRSentry® blog will provide you with ideas and steps to get your staff fully engaged.