Time Magazine’s cover story this week, The Upside of Being an Introvert, looks at introversion in a society that tends to value extroversion. It explores the various challenges and strengths of introverts and extroverts, the areas that lie between them and the discomfort zones introverts can overcome through effort when warranted. The day before seeing the Time article, I read about Temple Grandin, PhD, speaking at a local conference. Portrayed by Claire Danes in a 2010 Emmy award winning TV movie, Grandin is an author and professor at Colorado State University who conducts conferences nationwide in her areas of expertise: autism, Asperger’s, and the humane treatment of livestock. According to the article, when Grandin was diagnosed with autism as a child, a doctor had recommended institutionalization; her mother refused. It’s disturbing to consider the different outcomes for Dr. Grandin and our society had her mother acquiesced!
Both articles point to society’s gains from diversity; as a microcosm of society at large, the workplace benefits likewise. After all, how many of us, as HR professionals, have witnessed (or committed) the classic mistake of hiring or promoting employees who are “just like us” rather than surrounding ourselves with the complementary skills and diverse viewpoints needed to bring the department or organization to the next level? The result can be stagnation, stifled ideas and missed opportunities. Conversely, a well-managed, diverse team can lead to synergy and high performance when diverse approaches, ideas and vantage points are encouraged and valued.
Raising awareness about these variations in personality types and styles can help employees, supervisors, and managers become more effective in the workplace. For instance, if you know your boss prefers short summaries, don’t engage in meandering explanations or tangents, even if that’s your preferred communication style. On the other hand, if you need information from a co-worker whom you know values strong interpersonal connections, ask him about his weekend and family first; he’ll go the extra mile knowing you are interested in him as a whole person.
One way for HR to help managers and employees understand and capitalize on each other’s differences is to use a formal personality assessment instrument. Possibly the most well known is the Myers Briggs Type Indicator® which is based on four categories of preferences: Extrovert or Introvert; Sensing or iNtuition; Thinking or Feeling; Judging or Perceiving. The combinations yield sixteen different personality types denoted by the upper case letter in each of the categories such as ESTJ, ISTJ, ENTP, etc. One criticism is that sixteen profiles may be hard to remember and use.
There are other assessments that yield fewer profile types and thus may be easier to remember and act upon. This is not to advocate for or against any type of assessment or even whether to use one at all. Do the research and let your judgment and budget be your guide if you think a formal tool might be helpful for your organization. My observation has been that, formal tool or not, it’s good to raise awareness among staff and managers that many differences in style are not necessarily better nor worse, just different.
For starters, it helps to know about four main temperaments, with the understanding that we are a mixture of all to varying degrees. Although the names are old fashioned, the categories themselves have stood the test of time:
1. Choleric people are energetic, ambitious and passionate. They tend to be doers and, as leaders, are dynamic and goal oriented. They are confident, outspoken and not easily discouraged; they tend to be good decision makers but can also be compulsive. Other downsides are a tendency to be controlling, become impatient, be quick to anger. Highly results orientated, cholerics may be impatient with meetings, processes and other staff members and they may be unaware of the effect they have on others.
2. Sanguine people are cheerful, talkative and entertaining. Fun-loving and enthusiastic, they have good people-skills and a confident and spontaneous style. They are emotional and communicative by nature, but can also tend towards arrogance and self-indulgence. They may be artistic. At work they provide a positive atmosphere and often volunteer to help out. However they can also be day dreamers who struggle to complete work, starting too many tasks. Their creative and enthusiastic energy can inspire others, but they may lose focus when the novelty of the project or task wears off.
3. Phlegmatic people are relaxed and easy going. They remain calm and quiet and are usually considered reliable and capable. Although generally slow to anger, if pushed too far they can be explosive. At work they are steady and have a good sense of processes and timing. They are good mediators who work well under pressure and tend to need deadlines to work towards. They sometimes find it hard to speak up in the workplace so their ideas may get overlooked. They have a tendency to avoid conflict.
4. Melancholic people are thoughtful and sensitive towards the needs of others. They are often deep, philosophical, self-sacrificing and conscientious. While principled and idealistic, they may also be self-critical and prone to depression. At work they are organized and goal-oriented and maintain high standards through being persistent and thorough. They may ask difficult questions. They can find creative solutions but may also fear the worst. They can be resistant to change unless there is a good precedent.
Being aware of temperamental differences can help you anticipate, prepare for and interact well with others for the best results. The key is not to pigeon hole people. I once had a colleague who, I suppose, had me pegged as someone who would be unsettled by change. (It’s true that I have “melancholic” tendencies.) He thought I would react if he sat in the chair that I happened to have sat in at several prior meetings in that room. I entered the room and sat in another chair, unaware of his thought process and unconcerned about which chair I sat in. He promptly burst out laughing. The joke, he admitted, was on him.
If you haven’t heard the ever increasing buzz about worker misclassification yet, you will. The issue of whether a worker should be classified as an independent contractor or an employee is a hot topic and getting hotter all the time. Subscribers to HRSentry, can easily and quickly access our newly created online training and accompanying slides on the topic, along with a host of relevant resources. For others, the following provides key information to help you assess what you need to know and the steps you should take.
There are many parties interested in proper worker classification ranging from the IRS to the U.S. Department of Labor (DOL) to state governments to workers themselves. It’s much cheaper for employers to use independent contractors over employees because they avoid paying the following: employer portion of payroll taxes, workers’ compensation and unemployment insurance premiums, overtime payments and the expensive benefits that often go along with hiring employees.
On the flip side, there’s a growing risk if you misclassify employees as independent contractors, especially if you do so willfully. In addition to the possibility of owing back pay (if minimum wage requirements haven’t been met) and overtime, you could also face paying: back taxes, including the employee portion; penalties and interest; fines; retroactive employee benefits; costs of staff time and effort; and possible legal fees if faced with going to court. Additional costs, less quantifiable but important nonetheless, include negative publicity for your organization and possible employee morale issues.
Even inadvertent misclassification can be expensive but imposed fines and penalties grow increasingly severe the more willful the nature of the violation. Both state and federal governments are paying greater attention to this issue than in years past. The IRS and DOL have even teamed up with eleven states (thus far) to share information and resources in a joint effort to uncover violations. So there’s strong incentive these days for employers to do their best to get it right.
The IRS makes is clear that there is no magic formula or simple test as to whether or not a worker is an independent contractor. They emphasize that each case is fact specific. In general, however, the best place to start is to consider whether you, the employer, have the right to control, not just the outcome but also how the worker performs the work. Whether or not you actually exercise this right is irrelevant to the worker’s status. There are many times, for instance with highly experienced employees, when organizations provide little guidance or oversight. The real question is whether or not you have the right to do so.
How does the IRS decide upon the degree of control an employer has over how the work is performed? It comes down to looking at a number of factors that comprise three main categories: Behavioral Control, Financial Control, Type of Relationship. Remember, no one factor is decisive as circumstances differ; the totality of the situation must be evaluated. IRS guidance is abundant on their web site.
You should also take a look at the DOL’s Economic Reality Test. This test relates to whether the Fair Labor Standards Act (FLSA) applies. The seven factors it contains overlap those that the IRS looks at and likewise consider whether or not the worker has a bona fide business that does not provide services integral to yours. Be sure to familiarize yourself with all seven factors of this test in addition to IRS guidance.
So how do you prove that someone is indeed an independent contractor and not your employee? The best documentation shows that the person has a bona fide business quite separate from yours; that control over how the person does the work resides with the worker; that the work being contracted is not an integral part of what your business provides and the worker is free to make a profit or loss and be hired by others. Keep a vendor file for each independent contractor just as you would for any other vendor or supplier, such as the folks who deliver your coffee supplies or service your copier machines. Here are some important items that should be kept in that file:
A written contract—Always a good idea, the contract should outline the nature of the relationship, although saying the person is an independent contractor doesn’t make it so. Indicate the project’s expected results, the fee and date(s) of completion. Note that you don’t control how the results are achieved; the worker uses his/her own equipment/tools; is free to hire others without your approval and that the person provides liability insurance to his/her workers, and is not eligible for benefits with your company. Note that the person has their own business and tax I.D. number. Make sure it is signed by both parties and create a new contract if the worker takes on a new project for you. Each project should have a separate contract.
Proof of a real and separate business—Keep any letters on business stationery, business cards, brochures, or newspaper advertisements. With so much done electronically these days, print off a copy of an appropriate page of the worker’s web site, online advertisement of services or copies of emails detailing services offered.
Invoices—Every payment to an independent contractor should be based on an invoice. The worker should never submit expense reports to you as that would point toward the person being an employee. The worker’s mileage or purchase of equipment or supplies should be part of their own business expenses, not yours. Keep every invoice and make sure it ties in with the Form 1099 you issue to the person for that calendar year.
Form W-9—Obtain this form when hiring an independent contractor and make sure it is filled out properly. If the person does not check the box exempting him- or herself from tax withholding, you are legally obligated to withhold taxes at 28%. An independent contractor should check the box file their own self-employment taxes on their own.
Due to lots of bad practices that organizations got away with in the past, businesses may think they are classifying workers correctly when they are not. Increasing scrutiny demands that the facts of each situation be reviewed. Here are some common red flags to watch for:
After an employee terminates, you hire the person back to do work that resembles their old job, even on a temporary, project basis;
If an intern is doing actual work, not just shadowing or learning; be sure to check DOL Fact Sheet #71 for the six criteria related to interns. In order to not pay interns minimum wage and overtime, all six criteria must be met.
When you provide the equipment, supplies or office space the worker uses;
If the worker replaces one of your employees or supervises any of your employees;
If the worker receives any benefits or perks your employees receive, gets paid on a regular basis, or submits expense reports;
If the relationship is ongoing and long-term;
If a supervisor hires a worker and pays the person through Accounts Payable unbeknownst to human resources or payroll.
The last item happens more often than you might think, especially in larger organizations, but all organizations are vulnerable without proper communications and procedures in place. If the person administering payroll also issues 1099s and is thus aware of all workers, misclassification can be avoided. But if your organization is too large for that, make sure there are good channels of communication among payroll, accounts payable and human resources and train managers to get approvals from human resources when engaging any worker.
A final caveat is that state laws may differ from federal laws in important ways. It’s possible for a worker to be classified as an independent contractor for IRS purposes, yet, by state definition, require workers’ compensation or unemployment insurance premiums paid on his or her behalf. So be sure to check your state laws as well! Subscribers to HRSentry may simply search on the term independent contractor to pull up helpful federal resources and relevant state resources as well.
Job descriptions or position descriptions? Whatever the name, they’re not legally required, so why should your organization even bother to create them? Isn’t that a lot of work for something that will languish in a drawer somewhere? Well, yes, it does take some effort but it’s effort well spent that will save time later and enrich your employment processes. There are multiple reasons to create job descriptions and multiple reasons they should never languish in a drawer, not even an electronic one.
Job descriptions serve important communication purposes and provide a strong foundation for key legal compliance. Let’s take a more detailed look at the several functions of this invaluable employer tool:
Setting Out Expectations
Establish proper expectations from the start through job descriptions. When recruiting, employment ads or social media posts are brief so you can point candidates to your web site and publish the full description there. Some prefer to provide a hard copy when candidates come in to interview but candidates often request a copy before interviewing or even before applying so why not just put it out there? The job description conveys precisely what the opening entails and other relevant information such as to whom it reports and the education level, skills and experience required. Unqualified candidates, or those scared off by hard work, may self-select themselves out of the process based on the description and that saves you valuable time. Having a clearer understanding of the job also helps candidates ask better, more pointed questions. Once hired, a new employee is better armed to understand what is expected of him or her from the outset.
Compliance with the Fair Labor Standards Act (FLSA)
A job description is key in determining and documenting whether a position is considered exempt or non-exempt under the FLSA. In addition to salary considerations, the U.S. Department of Labor (DOL) sets out duties tests for its various exemptions from overtime and minimum pay requirements: executive, administrative, professional, outside salesperson, and computer-related. If a position is deemed exempt, the job duties and functions laid out in the description offer legal justification. It’s a great idea to include the exempt/nonexempt status right in the job description along with which exemption category the job fits into. This will provide enormous help in the event of an investigation. I just attended a presentation by a federal investigator who was asked how he determines whether a position is exempt or nonexempt. The first place he looks? The job description.
Compliance with the Americans with Disabilities Act (ADA) and Amendments Act (ADAAA)
Job descriptions outline the essential functions of the position which are crucial to understand in order to comply with the ADA and ADAAA. Especially since the passage of the latter, there is much less emphasis on whether or not an individual has a disability. The category of what constitutes a disability is now so broad that the focus is more on this question: Can the employee (or applicant) perform the essential functions of the job with or without reasonable accommodation? So, when you provide job descriptions to applicants, you may not lawfully ask if they have a disability; but you may lawfully ask if they can perform the essential functions of the job with or without reasonable accommodation. And the job description is key in defining those functions. You don’t have to hire, nor retain, an individual who cannot perform the essential functions. Of course, it is incumbent upon you to provide any necessary but reasonable accommodation to help the person do so. But you do not have to provide any accommodation the person requests as it may not be reasonable.
Employees’ Return to Work
The essential functions of the job come into play when an employee is returning from work after serious illness or injury under the Family and Medical Leave Act, short- or long-term disability leave or workers’ compensation leave. The employee’s release by a physician as able to perform the job is of course based on the job description. And the job description is the perfect place to start when creating a temporary “modified duty” position to get the employee back to work after a workers’ comp injury.
Performance Evaluation
Finally, a good job description serves a key role, along with your goals and mission, in your performance evaluation system. In order to know how well a person performs, both employer and employee need a strong understanding what the job contributes. After all, you can’t judge a person on a responsibility they didn’t know they had. The job description serves as a guide and road map. The goals for each employee roll into the goals of the organization. Of course, jobs and employees evolve. Every six months or so, employees and supervisors should re-visit job descriptions and make appropriate updates. Yes, get the employee’s input. No one understands the job better than they do. It’s one more communication opportunity so employees feel consulted and involved with their job and how it fits into the goals of the organization.
Here are the components of job descriptions:
Basic Information–Title; Department; Supervisor; Exempt vs. Nonexempt FLSA Status; if Exempt, which exemption applies
Job Purpose–The main role of this position; the reason it exists
Knowledge, Skills and Abilities Required or Helpful to Perform the Role
a. Abilities refer to competence due to one’s training, skill or other qualifications
b. Knowledge is factual or procedural information;
c. Skills refer to mental, verbal or manual acuity;
Tools and Technology used in performing this role
Physical and Mental demands, e.g. physical demands such as moving heavy objects or on-the-job travel; mental demands such as handling pressure and meeting deadlines
Working Conditions—what is the environment like? Items such as lighting, temperature, noise level, office setting, warehouse setting, outdoors.
Approvals by the manager and HR; signature of employee to acknowledge understanding.
Finally, follow these six tips to introduce job descriptions successfully at your organization:
Have job descriptions for every position, not just a few, so everyone understands the importance of job descriptions and so you are consistent with all levels and roles;
Solicit employee input or even have employees write the first draft;
Update completed job descriptions periodically so they remain current and useful;
Refer to the contents of job descriptions in your performance evaluation process;
Use ADA-compliant wording; for example, instead of saying “lift 50 lb. boxes,” say “move 50 lb. boxes” or instead of “sitting or standing ” say “remaining in a stationary position” to avoid excluding someone with a disability who could perform the function with equipment or other reasonable accommodation.
Legal claims of retaliation against employers have exploded in recent years. An Equal Employment Opportunity Commission (EEOC) chart of statistics from 1997 through 2010, shows that in the most recent year the largest percentage of claims, 36.3% out of almost 100,000 total handled by the EEOC, were in the area of retaliation. Claims of retaliation have increased each year shown and, in 2010, the latest year available, exceeded even those of race which had been the largest category for years. Clearly important and becoming even more so, what exactly is retaliation?
In layman’s terms, retaliation is payback, the act of getting back at someone, harming or punishing the person because of something they’ve done. In the employment law sense, it’s when an adverse action is taken by an employer against an employee for having taken an action that is protected by law; the result is considered retaliation and it is unlawful.
Adverse action by an employer can take many forms: termination, demotion, discipline, salary reduction, negative performance evaluation, change in job assignment, change in shift assignment and can even consist of hostile behavior toward the person by the supervisor or someone else. Obviously, many of these actions may be perfectly legal and within an employer’s rights under proper circumstances. You are free to engage in adverse actions that are brought about by nondiscriminatory reasons even if the employee happened to have filed a claim against you or was out on protected leave. But before embarking on any adverse action, carefully think things through, ensure that HR is involved and be certain there is proper documentation that shows your action was taken lawfully. If you are unsure, it’s well worth it to get sound legal advice.
Here’s an example of a situation you might encounter: when someone is having performance issues, don’t procrastinate; document the problems right away. If the person then requests and becomes eligible for FMLA leave, you want it to be crystal clear that performance issues were already being addressed in advance and are completely separate from the request for leave. If discipline results from the performance issues after the person returns from leave, be sure you have excellent documentation of the lawful reasons for taking disciplinary action. You always want to consider your documentation in terms of how a jury might view it. Timing of and clear communication to the employee about any performance issue or other lawful reason are vital.
Don’t forget that whether or not retaliation occurred may be in the eye of the beholder. Consider whether any adverse action you take may be viewed by the employee as punishment for something they have done that has legal protection. Treating employees humanely and respectfully, even when initiating a disciplinary action, is vital. Not only is it the right thing to do, but employees who are treated disrespectfully can become angry. And angry individuals are much more likely to file a lawsuit, baseless or otherwise, against you.
In addition to taking FMLA leave, what other common employee activities are protected by law? Here are some important examples:
Requesting accommodation under the Americans with Disabilities Act;
Bringing a claim of discrimination;
Taking protected leave under Uniformed Service Employment and Reemployment Rights Act;
Making a complaint of harassment or other workplace violation (such as a safety infraction or a wage-hour law violation;)
Posting comments on social media that qualify as “protected concerted activity;”
Participating in a government agency’s investigation of a claim brought by another employee.
It’s pretty clear that retaliation should be on every employer’s radar screen and it’s key that all of your managers and supervisors be trained to understand it, to understand protected statuses and activities, and to make sure discrimination in general and retaliation in particular doesn’t happen. After all, supervisors are on the front lines where they could make stray comments that might be construed by an employee to be retaliatory. Even unfounded legal claims are costly in terms of time, effort and attorney fees so you want to avoid even the appearance of retaliation. Further, it is ironic that even when an initial claim of a workplace violation is found to be baseless, the employee may still be able to prove that retaliation occurred as a result of his or her making that initial, baseless claim!
And there’s yet another caveat–they say the road to hell is paved with good intentions! Here’s an illustration of good intentions gone bad: Let’s say an employee alleges sexual harassment by her supervisor. In response, you switch the employee’s shift from day to evening so she doesn’t have to work with that supervisor. Guess what? Even though you intended no harm and thought you were trying to help her, if the employee prefers the day shift, she has a claim that you retaliated due to her claim of sexual harassment. In response to a claim of sexual harassment or any other forms of discrimination, don’t focus only the victim and ignore the alleged perpetrator as shown in the example. Conduct a full investigation and, if such discrimination is indeed happening, put a stop to it. And document all of your actions along the way.
So what can you do to prevent claims of retaliation in your workplace? Here are some strategic steps:
Establish a policy. Spell out what retaliation is and make it clear that you will not tolerate retaliation from managers or other employees. Tell employees what steps to take if they feel they are being retaliated against.
Train your managers. Make sure managers and supervisors understand what retaliation is and what your policy says. Make sure they know to always include HR when they wish to recommend an adverse action against an employee.
Respond to all claims and complaints. If a claim of a workplace violation or other workplace complaint is made, communicate with the employee. Explain that you take the claim seriously and won’t tolerate retaliation from anyone in the company.
Keep any claims you receive confidential. Confidentiality is respectful to the employee but there’s another reason: the fewer who know about a claim, the lower the chances that someone will retaliate against that employee. Naturally, when you investigate an employee’s allegation, you will have to tell some people about it but make sure it’s only those who absolutely need to know. And when you tell them, explain what retaliation is and that it won’t be tolerated.
Document, document, document. Take notes of everything you do to prevent retaliation. If an adverse action against an employee is justified, even when an employee has engaged in a protected activity, make sure it’s clear that your action was not in response to the employee’s protected activity or status and was taken for other, lawful reasons (such as poor performance or other job-related reasons) that are well communicated and well documented.
Treat all employees with respect, even when taking an adverse action.
Employment law can seem complex and it may sometimes seem that the deck is stacked against employers. But if you are meticulous, think things through, and document all adverse action properly, you should be able to take adverse actions when appropriate and protect your organization from claims of retaliation and all other forms of discrimination.
The turn of the year is a great time for making resolutions in our personal lives and in our professional lives as well. Legal compliance and other areas of HR, as you no doubt realize, can be complicated. But don’t feel daunted! As with any complex issue in life, break it down into manageable parts. Pick just an area or two on which to focus. Get started now and you’ll be surprised by how much you’ve accomplished by year end. And, as with the success of any resolution, if you get sidetracked, simply get back to it as soon as you can. Here are some ideas for areas to start improving upon in the new year:
HR Audit—assess your weaknesses before someone else does and work to reduce your risk exposure in the most important areas first;
Classification – make sure your workers are properly classified as employees or independent contractors;
Policy and Handbook Review and Update – update policies as needed and make sure your handbook reflects all changes; communicate any changes to staff.
Training — set up training for your managers (and employees as appropriate); important areas include your policies and procedures, documentation, recruiting practices, nondiscrimination, retaliation and harassment.
Fair Labor Standards Act – evaluate the exempt vs. nonexempt status of all positions to make sure you’re in compliance.
Performance Management – create a complete system, beginning with the job description and tying into your goals and mission, that occurs year round with continual feedback and no surprises;
Job Descriptions – have employees and managers review and update all job descriptions; if you don’t have job descriptions, it’s a great time to create them.
Wellness Program – institute one or improve the one you have to create a healthy workplace culture; conduct an employee survey to find out what’s working well and what could be better;
New Employee Onboarding – enhance and improve your program for new employees so they acclimate and become productive team members sooner.
HRSentry is the best place to learn about what you can do with all of these topics and all of the issues you face daily as an HR professional. There’s even a mobile app for conducting an HR audit. So begin the new year on the right foot with HRSentry resources at your fingertips!
