NLRB Rule Concerning "Quickie Elections" Now in Effect

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With little fanfare, the extremely significant NLRB rule establishing “quickie elections” became effective Tuesday, April 14.  This rule will dramatically shorten the periods of time between the filing of union election petitions with the NLRB and the holding of union elections.  Among other things, this rule means that:

  • The NLRB may hold elections as soon as 13 days after the filing of a union election petition. In most cases, elections apparently will be held approximately 22-25 days after the filing of petitions.  Previously, elections were conducted approximately 42 days after petition filings.
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What Are the Changes to the New FMLA Ruling?

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As of March 27, 2015,  another change to the Family Medical Leave Act (FMLA) will be followed by employers nationwide. There is now a revised definition of “spouse” and it includes same-sex married couples in all 50 states.

 The Department of Labor (DOL) has proposed a change to the FMLA’s definition of “spouse.” The change is stated as:
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Companies may face legal scrutiny when it comes to unpaid internships

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With companies gearing up to start their search for summer interns, they may want to think twice about making it an unpaid internship versus a paid one.

What has happened in the past?

Over the past few years, unpaid internship practices have experienced more legal scrutiny in terms of wages and hour lawsuits. Some of the most recognizable corporations have experiences lawsuits last year, including Warner Music group, Atlantic Recordings, Fox Entertainment group, NBC Universal, Viacom, Sony, and Universal Music Group.
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10 Employment Laws that Supervisors Need to Know

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Supervisors and managers have a shared responsibility with HR in making sure that their interactions and relations with employees are compliant with federal and state employment laws. Here are ten (10) of the most important employment laws that supervisors need to be aware of and the major responsibilities that supervisors typically are responsible for in ensuring compliance.

10 Employment Laws that Supervisors Need to Know

1. Title VII of the Civil Rights Act

Purpose:

To prohibit job discrimination in the workplace

Overview:

Title VII of the Civil Rights Act covers an employer who has fifteen (15) or more employees and prohibits discrimination against any individual on the bases of race, religion, color, sex (including pregnancy and gender identity), sexual orientation, parental status, national origin, age, disability, family medical history or genetic information, political affiliation, military service, or any other non-merit based factor. The law also protects individuals from harassment in the workplace.

Supervisor Responsibilities:  

Supervisors must treat all employees and applicants consistently and equally, without regard to their race, color, religion, gender, national origin or any other characteristics that are protected under law. Supervisors are not to base any employment decisions on these protected characteristics, cannot deny opportunities to an individual because of their characteristics, and cannot retaliate against an employee. Supervisors are to treat all employees respectfully and avoid unwanted/unwelcomed behavior that constitutes harassment.
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Managing FMLA: 6 Legal Risks Many Employers Face

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Managing FMLA: 6 Legal Risks Many Employers Face

The Family Medical Leave Act (FMLA) is one of the most complex employment laws with which employers must stay in compliance. Employers face a number of legal risks when managing FMLA ranging from determining eligibility to disciplining an employee on leave. Here are 6 common legal risks many employers face with FMLA that you need to know.

1. Recognizing when leave needs to be covered by FMLA

The need for FMLA leave in the workplace can go unrecognized by supervisors and create potential liability.

For example, in a 2013 case, an employee called her supervisor to inform them that she could not report to work, and the following day reported that she was seeking treatment at a mental health center. She provided her employer with a doctor's note which stated that she was being treated for depression. She was eventually terminated after she had asked for extensions of her leave of absence, and when she could not return to work. The court found that the employer interfered with her FMLA rights when it did not provide her with an FMLA certification form nor a notice of her FMLA rights.
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What You Don't Know

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Ignorance may be bliss, but it won’t keep you out of court. Here are a few scenarios in which what you don’t know could truly hurt your organization.

Scenario 1: Till adverse employment action do us part

Here’s what you know. Joe and Mary are husband and wife. They both work for your organization. Joe’s performance and attendance is poor. Despite multiple meetings, warnings and disciplinary actions, he consistently doesn’t show up and even when he does, he doesn’t get much accomplished. As a result, you plan to let Joe go later this week.

Here’s what you don’t know. For the last three months, Mary’s new supervisor has been harassing her. The conditions have gotten so bad that she just filed a sex discrimination charge with the EEOC.

Here’s how this could hurt you. If you fire Joe, you may also get sued for retaliation – and lose. In early 2011, the U.S. Supreme Court ruled that an employer unlawfully retaliated against an employee after his fiancée filed a sex discrimination charge with the EEOC and it then fired him three weeks later. As a result of this ruling, employers must be mindful of the relationships between employees when taking any adverse employment actions that could be construed as retaliatory in nature, even if the potential third-party “person aggrieved” wasn’t engaged in any protected activity.

Scenario 2: It’s in the details

Here’s what you know. Emily works for your organization. She recently applied for a new position in the organization that would give her a promotion and an increase in pay. While considering Emily for the promotion, you note that she has displayed a consistent pattern of clerical errors and a lack of attention to detail in her work. You tell Emily that you believe she may lack the concentration or mental capacity to handle the additional responsibilities of the new position, and as a result, you deny Emily the promotion.

Here’s what you don’t know. Emily was recently diagnosed with a learning disability.

Here’s how this could hurt you. Based on the final rules for the Americans with Disabilities Amendments Act of 2008, taking an adverse employment action because an employee is “regarded as” having a disability is a no-no, and the definition of “disability” has been greatly expanded. In this scenario, Emily could file a claim with the EEOC that you regarded her as having a mental impairment or learning disability, and as a result, discriminated against her by denying her a promotion.

Scenario 3: Unemployed need-not apply

Here’s what you know. You have a job opening for a production manager at a facility in New Jersey. You’ve had a lot of turnover at this position, which your management team at your headquarters in Canton, Ohio, believes is the result of a lack of qualified job candidates. As a result, two weeks ago they ordered that you change your online job ad to include “must be currently employed” as a requirement of the position. You made the change at the beginning of the month, and have already started interviewing candidates this week.

Here’s what you don’t know. This week an unemployed former production manager filed a discrimination charge against your company with the Commissioner of Labor and Workforce Development in New Jersey.

Here’s how this could hurt you. As of June 1, 2011, employers in New Jersey are prohibited from knowingly or purposefully publishing a job posting in print or on the Internet that states, among other things, that current employment is a job requirement. In this case, your organization could be fined $1,000 for its first violation – up to $10,000 for a third (or subsequent) violation.

New Jersey is the first state to enact a law protecting unemployed workers from employment discrimination. New York has adopted the same legislation.

6 Ways to Manage New ADA & Legal Changes

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The final 2011 ADA regulations had important implications for HR and managers when managing employees’ medical conditions and impairments. Here are six ways we gave to strategically manage this issue in particular and other legal changes that may affect your business in the future.

Meet with your HR and management team. When any new employment law or regulation is implemented, as a strategic measure, it’s important for your HR team and organization to determine how this law will impact your organizational objectives. Meet with your management and HR teams to discuss how the law or regulation will influence your HR operations, affect your ability to attract and retain key talent, and prompt new liabilities or risks that could affect your bottom line or operations. From there, you’ll need to determine what tactical issues need to be addressed, such as implementing training to your management staff, revising and communicating policies, adjusting HR processes, and incorporating new risk management processes.

Revise policies. In the case of the final regulations pertaining to ADA (as well as other laws and regulations), it’s important that you review your policies and employee handbook to ensure that language is adjusted to meet the changing definition of disability and is consistent with the language within the regulation. Remember, the definition of disability has become much broader, so your policies should reflect this change.

Review and adjust accommodation process. No longer is focusing on the question of whether an illness or condition is a disability the focus of the ADA law, as many conditions will now fall under this definition. Rather, the changes to ADA emphasize developing accommodations for employees with impairment. Key questions you should ask are how is your accommodation process administered? Is an HR representative in charge of this process or are line managers? With the new regulations, it’s recommended that HR:

  • Lead and manage the accommodation process consistently throughout the organization versus managers. This ensures that the process is run the same throughout the organization, reducing potential liabilities.
  • Approach the ADA process like FMLA and use standard forms and processes instead of un-standardized doctors’ notes and evaluations. Consider your approaches during the pre-employment process with applicants as well as when current employees develop an illness or condition while they are employed.
  • Create a standard internal form for employees to use which provides a checklist of possible conditions or ability to write the condition or impairment and summarizes alternative accommodations that apply to the condition, or a guide for a discussion of these accommodations. The form may also include a doctor’s signature if necessary versus using doctor’s notes.

Review job descriptions. Ensure that job descriptions specify the essential job functions of each job – and also be sure that these essential functions are actually essential. The courts have been critical of how essential functions are defined. Also, be cautious of defining too many tasks as essential. A good rule of thumb is using a job analysis to rate or rank how important and critical certain tasks are to a job and how frequently they are conducted, and to account for job incumbent and supervisory perspectives.

Train and communicate. When a policy or process is revised, be sure to communicate the changes as soon as possible to managers who are in charge of implementing and executing them. With ADA, front-line managers will likely be the first to know about an employee’s illness or condition and need to understand how to handle requests for accommodations such as:

  • Job modifications
  • Schedule changes
  • Environmental issues (temperature, work setting, stress, exertion, etc.)
  • Motor or cognitive impairments
  • Mental issues (depression, anxiety, etc.)

Managers need to know how to respond, act, and when to refer to HR – and how negative or inappropriate reactions to these requests or even knowledge of a medical condition can cause liability or risk to the organization. They also need to be trained on how to effectively manage employees with mental or physical impairments in terms of scheduling, direction, support, and even modification of interpersonal interactions.

Last but not least, stay ahead of the curve. In HR, we unfortunately tend to react to a problem, a new law or regulation, or a new fad (i.e. what every other employer is doing) versus staying ahead of trends and upcoming legal agendas and issues that will affect our business. This often results in poorly executed tactics, lawsuits, and other issues that could have been avoided had we been more strategic. By being proactive and staying on top of changes emerging in the market, we can help our business manage its risk, legal, and HR issues more effectively, and become a more strategic partner within our management team.

Please note that by providing you with research information that may be contained in this article, ERC is not providing a qualified legal opinion. As such, research information that ERC provides to its members should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application. 

Additional Resources

ERC provides a number of resources to help you stay updated on important legal and HR trends and issues, as well as training for your managers on employment law and employee relations.

ERC Training
To visit our ERC Training Program and Courses page: click here.

Supervisor & Management Training
We offer several courses for supervisors and managers on topics like employment law, workplace bullying, and general employee relations topics like communication, interpersonal skills, and more. To learn more, click here.

HR Project Support
From employee handbook and policy updates to job description revisions, we offer assistance with HR projects to help your organization stay compliant. For more information, please contact consulting@yourerc.com.

 

How to Get Sued (In 3 Easy Steps)

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The stock market and economic indicators such as the unemployment rate, hiring projects, and consumer confidence have shown some consistent modest improvements over the years, causing many employers to consider doing something they haven’t done en masse in years: hire more people. Keeping in mind that your organization and the managers and other staff members responsible for hiring those people may be a little rusty in this area, we present you with an easy three-step guide to how you can significantly increase the likelihood your business gets sued.

Please note that ERC actually strongly encourages you to do the exact OPPOSITE of the steps outlined below.

1. Ask inappropriate and illegal questions during interviews.

Follow the lead of fellow employers highlighted in case studies and articles like this article published in Fortune Magazine, and make sure those involved in the interview process have absolutely no idea what kind of questions they can and should ask job candidates. Ensure the questions are vague and have little (if any) connection to providing you relevant information to help you determine if the person is the right fit for the job. Also, encourage your staff to ask lots of questions about the personal background of candidates including their age, number of kids, religious beliefs, national origin, genetic history, disability status, and race. Actually, don’t encourage your staff to do anything at all. Better to leave them to their own devices and let them figure this stuff out themselves.

2. Conduct your own Internet background check.

Make sure that every candidate undergoes a thorough background check during which all those involved in the hiring process “Google” the person’s name and search the Internet for any blog postings, images, tweets, YouTube videos, Facebook wall posts, LinkedIn groups, or affiliations that would render that candidate as being a “less than ideal” fit for the culture of your organization. While you’re at it, make sure that everyone on your hiring team views at least one picture of each candidate that can clearly identify him or her as a part of a protected class, and just to have all your bases covered, be sure to read some kind of profile that provides personal information about each candidate such as age, race, and marital status. Finally, base your hiring decision solely on the information you find during this background check.

3. Rely on your gut. Always.

Spend as little time as possible collecting and analyzing empirical data about job candidates that can aide you in selecting the best person for the job. Never use tools like behavioral interviewing techniques or assessments that measure personality, cognitive abilities, or skills. Base all your decisions on hunches: the look in a candidate’s eyes…the color suit he or she did or didn’t wear…the way in which he or she grabbed his or her water glass and placed it back on the coaster on the table. These are the tried-and-true, time-tested, fail-safe techniques that you and all your staff involved in the hiring process should rely on explicitly.

If you’re venturing into the unfamiliar world of recruiting and hiring for the first time in a long time, and you’re committed to doing everything you can to land your employer in court, just follow the three easy steps outlined above and we can almost guarantee that you’ll increase the risk of litigation for your organization exponentially.

However, if you’re not so crazy about the idea of getting sued by job candidates, PLEASE do the exact opposite.

Additional Resources

Interviewing Skills for Managers & Supervisors
This interactive program will review the employment process, including: legal issues facing interviewers; effective questions that provide the interviewer with information relevant to the position; and strategies to effectively plan, conduct, evaluate and follow up on an interview. For more information about this workshop click here.

Are Your Supervisors Prepared?

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The following is a complimentary audit and assessment consisting of key questions your organization should ask to determine if your supervisors and managers have the appropriate skills and competencies to combat the most common management pitfalls. Additionally, tips we frequently recommend to organizations in addressing these pitfalls are summarized.

Pitfall 1: Exposing the organization to liabilities

Organizations are exposed to liabilities when their supervisors and managers are not knowledgeable of employment law or understand how to apply legal guidelines. For example, supervisors and managers may make selection decisions based on non-job related criteria or subjective biases, ask inappropriate interview questions, not document performance, misapply wage and hour law (not recording overtime worked, not providing necessary breaks, etc.), or fail to handle employee issues with consistency. Key questions include:

  • Are supervisors and managers knowledgeable of employment laws and do they successfully apply these legal guidelines in the workplace?
  • Do supervisors and managers ask appropriate interview questions, if they are responsible for hiring duties?
  • Do supervisors and managers participate in making legal selection decisions, based on job-related factors and qualifications and not based on any protected criteria (such as gender, race, national origin, religion, etc.)?
  • Do supervisors and managers understand wage and hour law (FLSA) and how it affects the pay of their employees?
  • Do supervisors and managers discipline or handle issues of employee conduct with consistency?
  • Do supervisors and managers understand the basics of managing employee leave, particularly FMLA?

Pitfall 2: Failing to document and manage performance

Performance management is a common struggle for many supervisors and managers. Oftentimes, we find that the supervisors and managers are not doing enough to support the employee in achieving their performance expectations and standards and not providing regular feedback, counseling, and coaching. In addition, correctly documenting performance is commonly overlooked. Key questions include:

  • Do supervisors and managers generally have a high performance work team, or do their employees struggle in reaching certain performance standards or goals?
  • Are employees aware of what is expected of them in terms of performance?  Do supervisors and managers communicate these expectations to employees?
  • Do supervisors and managers take the performance review process seriously? Do they understand its importance and how to prepare for and deliver a performance review?
  • Do supervisors and managers document any and all incidents of poor performance? (note: this is also a potential liability)
  • Do supervisors and managers guide performance through regular feedback and coaching?
  • Do supervisors and managers support performance with development and training if needed?
  • Do supervisors and managers have conversations with employees about their career aspirations and developmental interests? Do they follow-up on insights obtained in these conversations?
  • Do supervisors and managers continually challenge and empower their employees?
  • Do supervisors and managers make themselves available to answer employee questions about projects, assignments, and tasks?
  • Do supervisors and managers recognize and thank employees for their contributions when they do a good job?
  • Do supervisors and managers criticize more than they praise? Is there an imbalance of negative and positive feedback, and is this justified?

Pitfall 3: Poorly communicating

Inadequate communication manifests itself in a number of problems including poor supervisor-employee work relationships, frequent misunderstandings of job tasks or policies/procedures, and unclear expectations. These issues often surface from poor listening, relationship building, clarifying, and feedback skills and lead to frequent supervisory problems. Key questions include:

  • Do supervisors and managers establish rapport and positive relationships with employees?
  • Do supervisors and managers engage in frequent methods of in-person communication?
  • Do supervisors and managers actively listen to employees’ concerns, problems, and questions?
  • Do supervisors and managers clarify points and issues, trying to better understand work problems employees have?
  • Do supervisors and managers ask for employees’ viewpoints and opinions?
  • Do supervisors and managers exhibit effective non-verbal communication with employees? Do their words match their body language?
  • Do employees often feel confused when completing work assignments, or do misunderstandings frequently occur?
  • Do employees receive enough performance feedback from supervisors and managers? Do they understand where they excel and where they need to improve?
  • Is the feedback provided by supervisors and managers constructive and well-targeted at behaviors needing changed?

Pitfall 4: Failing to resolve conflict

Many managers fail to resolve conflicts between employees and coworkers, or may perpetuate too much conflict in their groups. It’s common for supervisors and managers to avoid conflict altogether. In addition, they may not do enough to prevent conflict. Key questions include:

  • Do supervisors and managers work to accurately define and identify key workplace conflicts, or are problems frequently incorrectly identified? 
  • Do supervisors and managers recognize the causes of conflict?
  • Do supervisors and managers understand and costs of conflict on your business and recognize its effects on productivity?
  • Do conflicts generally go unresolved by supervisors and managers, or do supervisors and managers create different strategies to manage and resolve conflict, ensuring that it has a limited effect on performance?
  • Do supervisors and managers frequently collaborate and strive for “win-win” approaches to conflict?
  • Do supervisors and managers try to prevent conflict by encouraging positive coworker relationships, encouraging recognition of individual differences, and addressing work problems quickly before they escalate?
  • Do supervisors try to adapt to different personalities and styles in order to maximize their effectiveness?

Pitfall 5: Not understanding their role

Typically promoted from individual contributor roles, supervisors and managers find themselves not understanding the new requirements and expectations of their role, or encountering common challenges like micromanaging, distrusting employees, treating employees poorly, or not making time for them.  Key questions include:

  • Do supervisors and managers frequently encounter challenges on the job, in dealing with employee issues and problems?
  • Do supervisors and managers understand how their role is different than that of their previous role as an individual contributor? Do they understand its importance in driving results through others?
  • Do supervisors and managers understand the responsibilities of their role and how to carry them out?
  • Do supervisors and managers make time for employees, balancing task completion and building supportive relationships?
  • Do supervisors and managers show trust and confidence in employees?
  • Are employees excessively directed and micromanaged?
  • Are employees treated with respect and courtesy? 

Addressing Management Pitfalls

If your supervisors don’t have the right competencies in place, there are a number of ways to develop them. In our experience, these are the most common and effective ways to build supervisory and management skills:

  • Supervisory and managerial training
    Training is one of the best and most common ways to develop supervisors’ and managers’ abilities. Consider registering them to attend ERC’s Supervisory Series, an affordable training program that develops their skills in all of these critical managerial areas including communication, conflict resolution, performance management, and employment law. This program can also be delivered on-site and customized to your organization’s needs. 
  • Skills coaching and mentoring
    Sometimes a more personalized and customized approach is necessary to develop skills and solve specific managerial and supervisory issues, particularly when training has already been conducted. This can be facilitated either through mentorship of leaders internally or skills coaching with an external consultant. 
  • Management literature and educational materials
    Articles and learning aids are another great way for supervisors and managers to develop their capabilities, and can be great follow-up resources for after training to help transfer skills learned back to the workplace. Checklists and forms that guide behaviors learned in training can help them stay better organized on the job. These can be created in-house or training programs may have them available. ERC offers access to a website full of job aids, checklists, forms, and resources for attendees of supervisory training. 

Preview ERC Supervisory Training