Communicating in Times of Crisis: HR's Role
On behalf of everyone at ERC, our thoughts are with all those affected both nationally and locally by 2012's Hurricane Sandy.
Read this article...On behalf of everyone at ERC, our thoughts are with all those affected both nationally and locally by 2012's Hurricane Sandy.
Read this article...Discrimination in the workplace refers to when an individual or group of individuals are treated less favorably than others solely because of their race, sex, pregnancy or marital status, age, disability, religion, sexual preference, trade union activity, or other class or characteristic protected under federal or state legislation. It is illegal for employers to discriminate against individuals from protected classes in the workplace if they are current or prospective employees, such as job candidates.
There are a number of important federal laws that cover discrimination of protected individuals. Some states have additional bases on which discrimination is prohibited. Federal laws governing discrimination in the workplace for private employers in 2012 included:
The Equal Employment Opportunity Commission (EEOC) is the federal agency that is responsible for enforcing these laws and handling discrimination claims. It frequently provides guidance and information about recent cases and claims to help employers enforce these laws in the workplace.
Under these laws, it is illegal for employers to discriminate against individuals in protected classes for employment decisions related to hiring and firing; compensation; assignment or classification of employees; transfer and promotion; layoff or recall; job advertisements; recruitment; testing; use of company facilities; training programs; fringe benefits; retirement plans; disability leave; and other conditions, terms or benefits of employment.
This means that employers cannot make employment decisions based on any factor protected under law. For example, employment discrimination could occur if an employer pays equally-qualified employees different salaries based on their sex or race, excludes potential employees from the hiring process based on their religious affiliation or race, lays off an employee based on them being in a protected class, denies a promotion to an otherwise qualified employee who can perform the essential functions of the job because he or she has a disability; or states preferred characteristics which are protected under law in a job ad.
Additionally, individuals covered under this legislation are protected from four types of discriminatory practices including:
Discrimination can be manifested in either disparate treatment or disparate (otherwise known as "adverse") impact. Both types of discrimination against protected classes are prohibited under federal law.
It is unlawful for employers to use practices that have disparate impact on a protected class unless the characteristic can be deemed a “bona fide occupational qualification.” In cases of disparate impact, employers do not intentionally and explicitly have policies or practices in place that exclude or discriminate against individuals in protected classes. Policies or practices that seem neutral, however, can adversely impact a protected class. A common example of disparate impact is testing all job applicants on a particular skill or ability and disproportionately eliminating African Americans based on the results, even though this practice is not intentional.
Disparate treatment is also illegal, but differs from disparate impact in that it is intentional discrimination. With disparate treatment, an employer intentionally treats individuals of a protected class differently than other employees or job applicants to control an outcome.
Employers are required to post notices describing the federal laws prohibiting job discrimination based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Employers must also keep certain records, regardless of if a charge has been filed with them, including certain workforce data in the annual EEO-1 report. In addition to these obligations employers should:
For more information about workplace discrimination, ERC members can access our HRresources or contact ERC's HR Help Desk at hrhelp@yourerc.com. Not a member? Join today and access tons of HR resources, posters, forms, information, guidance, and legal trends and updates to help keep you compliant.
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. The data used in this article reflects the current laws in 2012.
Prohibited Employment Policies/Practices (Source: EEOC)
Federal Laws Prohibiting Job Discrimination Questions & Answers (Source: EEOC)
Guide for Employers: The Charge Handling Process (Source: EEOC)
Discrimination in the Workplace (Source: HR Hero)
There is probably no task more cumbersome for HR professionals than managing intermittent leave under the Family Medical Leave Act (FMLA). Intermittent leave allows qualified employees to take FMLA leave in small blocks of time (such as one hour) versus one block of 12 weeks.
Although intermittent leave can benefit employees who need time off work for their own health condition or to help with another family member's serious health condition, it can create burdens and adversity for employers if it isn't managed appropriately. The following administrative strategies tend to help employers manage intermittent leave more effectively.
You have the right to determine that intermittent leave is medically necessary. You can require medical certification to be submitted in order to make this determination and request multiple medical opinions. Doing so gives you some control over the situation and helps you understand the frequency and duration of intermittent leave needed by the employee.
Requiring employees to recertify their leave when the condition changes or according to a certain period (such as every 6 months or annually) helps keep employees honest and makes sure you stay knowledgeable about the condition's status and any changes needed for the leave.
Requiring use of concurrent paid leave, disability, etc. curbs the adverse effects of excessive absenteeism. If you don't require use of concurrent leave, you may risk an employee using more than the allotted 12 weeks of leave provided under FMLA.
Calculating FMLA leave on a calendar 12-month basis can lead to employees taking back-to-back leave and potentially provides 24 weeks or 6 months of FMLA to an employee. Conversely, calculating FMLA on a rolling 12-month period can prevent back-to-back leave.
You may assign an employee to an alternative position with equivalent pay and benefits to better accommodate intermittent leave. You may also work with them to establish an intermittent leave schedule that reduces the leave's disruptions to your business operations. Remember, it's completely legal to request that the employee make a reasonable effort not to disrupt your business operations.
Call-offs can disrupt business, so provide requirements that employees must call in before they are absent if they are going to be using FMLA leave. You may also request that employees provide notice of unforeseeable leave as soon as practicable.
You may request recertification from health care providers when you notice a pattern of absences which could suggest that an employee is abusing intermittent leave. Also, be aware that not tracking FMLA may lead you to provide more than the required amount of leave. Make sure nothing goes uncounted, and if you don't have the time to track it, consider outsourcing FMLA.
While these strategies won't necessarily reduce the number of employees using FMLA leave, they will typically help your organization avoid the costly consequences of mismanaged intermittent FMLA leave.
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.
Participants review the interrelatedness of these two laws including how they impact each other.
As new technology continues to shape the workplace and the use of social media and mobile devices at work becomes more widespread, organizations must create and enforce employment policies to protect themselves from the risks and liabilities associated with these new applications for working. Here's a short guide which contains important tips and guidelines for creating social media and mobile device policies.
Social media policies must balance a range of interests. First, they need to protect other employees and the company’s information and reputation without prohibiting employees from engaging in conversation about employment at your organization. Second, social media policies need to be flexible enough to allow your marketing, sales, recruiting, and PR employees to promote your company and network, but restrictive enough so employees won't excessively use these platforms for non-business related purposes.
Below are several guidelines and best practices for creating social media policies, consistent with recent guidance issued by the National Labor Relations Board (NLRB) and endorsed best practices published by the Society for New Communications Research. Additionally, this 2012 policy was approved by the NLRB and is helpful for employers as they create their own guidelines.
In addition to social media policies, every organization should have a Bring Your Own Device to Work Policy (otherwise known as a BYOD or a Mobile Device Policy) because employees are increasingly bringing their own mobile devices to work and accessing company networks through smartphones, tablets, IPADs, and laptops - to name just a few.
Although these devices can be of benefit to employees and employers alike by increasing productivity and providing flexible access points to company information, BYOD creates huge risks for employers in terms of compliance with the Fair Labor Standards Act (FLSA), privacy and compliance mandates, etc. if mobile device policies are not in place. Here are some guidelines for developing those policies.
Two final pieces of advice when creating these policies. Collaborate with your employees to create a policy. Be sure to include your legal department, your core users of social media for business purposes (for social media policies) and IT department (for BYOD policies). Finally, update these policies on an ongoing basis. With technology constantly changing, these policies need to be revisited at least annually.
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.
Remarkable HR leaders can emerge at any level. Whether they are an entry-level recruiter with a strong ability to hire unique talent, a tenured training manager who has a knack for building employees' skill sets, or a mid-level employee relations specialist with a unique skill for enhancing employee engagement, remarkable HR leaders impact their workplaces in positive ways.
Every day we witness HR leaders who find great talent in the midst of a skill-set shortage; devise competitive pay strategies to retain their top performers; coach managers to build their leadership effectiveness; create training and development programs that engage and grow their talent; design recognition programs that motivate employees; and so much more.
When we routinely interview HR leaders in the community, we find that many highly effective and respected HR leaders and professionals share certain characteristics. Here are 10 of those qualities.
These are just some of the many qualities that can make an HR leader successful, but the bottom line is that remarkable HR leaders deliver exceptional achievements and results to their organizations by balancing the needs and interests of employees and the business.
ERC offers a variety of leadership development training programs at all levels of the organization.
HR may not always be able to directly contribute to the bottom line, but there are a number of impactful ways that it can help drive revenue. Here is a list of 14 things your HR department can do to drive revenue at your organization.
HR departments that drive revenue and results in their organizations take advantage of opportunities to save their organizations money wherever possible, identify opportunities to build up their top revenue producers, and simply manage HR smarter and more efficiently.
Over the past several years, charges of retaliation filed with the Equal Employment Opportunity Commission (EEOC) have significantly increased, making retaliation a major legal risk that employers face. Here are several ways that employers can prevent retaliation.
An employee can sue for retaliation if they suffer a tangible, adverse employment action - such as loss of income or employment as a result of engaging in a protected activity. They must prove that there is a connection between their protected activity and the employment action they received. Examples of adverse employment actions could be a demotion, termination, or pay cut. A negative performance review may or may not be considered adverse depending on the circumstances.
You may not intend to hurt an employee, but an action can still be perceived as retaliatory if an employee sees it as such. For example, reassigning or transferring an employee to another location, shift, or role or even separating employees from one another can be perceived as an adverse action if the action results in an outcome that is less desirable to the employee.
Take complaints seriously and treat them with respect and care - they are indicators of dissatisfaction and usually precursors to a lawsuit. Start by establishing a policy against retaliation which communicates that your organization does not tolerate retaliation and explains the steps employees should take if they have complaints. Research complaints thoroughly and document the actions you take to address them.
Create and maintain a list of all protections under law and distribute it to decision-makers, including supervisors and managers. These protections should include employees requesting FMLA, reasonable accommodations, and those employees in protected classes (race, national origin, religion, etc.). Make sure that decision-makers are aware of the types of activities which are protected under law.
Timing is one of the most important pieces of evidence that usually supports a retaliation claim. The longer the timeframe between the protected activity and adverse employment action, the more often courts have dismissed such claims. Refrain from taking adverse employment actions close to a complaint or protected activity.
Require a trained HR professional to be involved in any employment decisions, particularly those that negatively affect an employee. Conduct a thorough HR review before proceeding with a disciplinary action (i.e. warning, suspension, termination, etc.) for any employee who engages in a protected action and make sure that you have plenty of documentation to back up your decision.
Supervisors can be major culprits of retaliatory decisions and it's important to make sure they are not making any decisions that could be unlawful. While they may feel so inclined to "get back" at an employee, the risks of doing so often far outweigh any benefit. Share specific examples of retaliation by supervisors, common scenarios, and procedures they must follow to avoid retaliation.
On a final note, when it comes to preventing retaliation in the workplace, it's best to consult case law, your attorney, and the EEOC's website for more guidance on the subject.
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.
Supervisor & Manager Training: Employment Law
In this series, supervisors and managers learn about potential legal issues such as workplace discrimination and harassment, managing employee leaves of absence, and employee performance issues. Supervisory Series is offered in AM or PM sessions.
According to the 2012 EAA National Wage & Salary Survey, salaries rose modestly for HR professionals across the U.S. in 2011. The survey reports that HR Generalists showed the highest salary increase of 5% from 2011 and HR Assistants experienced the second highest salary increase of 4% from 2011.
Meanwhile, higher level HR professionals, such as Vice Presidents, Directors, and Managers showed more modest salary increases from 2011 of 1-2%.
The salaries for HR professionals reflected in this survey are consistent with other local and national compensation survey findings. In general, there has been less salary growth for many generalist-type HR functions in the years preceding 2012, as the data shows. Nonetheless, national and local compensation surveys, including those conducted by ERC, continue to show that there has been more salary growth for specialist HR functions including compensation, training, organizational development, and staffing.
The survey reports data from Northeast Ohio organizations regarding their actual and projected wage and salary adjustments.
We’ve developed an easy guide summarizing what your organization needs to know to stay compliant in 2012. The guide includes a summary of several regulations that take effect as well as important legal issues on the horizon.
Regulations that Take Effect
Below are several major regulations and initiatives will took effect during the first few months of 2012.
Legal/HR Issue |
Description of Regulation |
Effective Date |
2012 Income Tax Withholding Tables |
Provides income tax withholding tables for 2012 here. |
Immediately |
Unemployment Benefits |
Extends unemployment benefits temporarily through February 29, 2012. |
Immediately |
Tax Cuts |
Extends current tax cuts temporarily through February 29, 2012. |
Payroll system changes must be made by January 31, 2012 |
Social Security Withholding |
Continues reduction in withholding rate to 4.2% (from 6.2%) temporarily through February 29, 2012. If an employer over-withholds in January, they need to make offsetting adjustments to employees’ pay by March 31, 2012. |
January 1, 2012
|
Social Security Wage Base |
Increases the Social Security Old Age Survivor's and Disability Insurance (OASDI) taxable wage base for 2012 from $106,800 to $110,100. |
January 1, 2012 |
Minimum Wage
|
Raises minimum wage in Ohio to $7.70 per hour for non-tipped employees and $3.85 per hour for tipped employees. |
January 1, 2012 |
Mileage Rates |
Continues standard mileage rate of 55.5 cents per mile for business miles driven and 14 cents per mile driven in service of charitable organizations. Raises standard mileage rate to 23 cents per mile for medical or moving purposes. |
January 1, 2012 |
Retirement Plan Limits |
Raises the 2012 limit on the exclusion for elective deferrals in 401(k), 403(b), and 457(e) plans to $17,000, up from $16,500. For changes to other pension plan limits, click here. |
January 1, 2012 |
W-2 Benefits Reporting
|
Requires employers who have an employer-sponsored group health plan to report the cost of coverage under their plan. This requirement goes into effect for some employers this year. |
January 1, 2012 |
Health Benefits Summaries |
Requires group health plan sponsors to create and distribute a Uniform Summary of Benefits and Coverage and Uniform Glossary. |
Extended from March 23, 2012; pending notice of new effective date |
NLRB Posting Notice |
Extends deadline for posting notice regarding employees rights under the National Labor Relations Act. |
April 30, 2012 |
The following table summarizes several major legal issues that could lead to greater scrutiny and more regulations for employers in 2012.
Legal/HR Issue |
Description of Issue |
Tax cuts and job creation |
Congress will determine whether to extend tax cuts through the rest of 2012 by late February. These cuts, along with the Jobs Bill which has been proposed, will aim to expand job creation and support businesses. |
Constitutionality of health care reform |
In 2012, the Supreme Court will be ruling on whether the health care reform law is constitutional due to conflicting rulings from lower courts, which could affect a number of provisions that take effect in 2013 and 2014. |
Protection of unemployed individuals |
Bills have been proposed at both state and federal levels to protect unemployed individuals from discrimination in the hiring process, and may gain ground in 2012. |
Protection from retaliation |
There has been notable interest in ensuring that employees are protected from employer retaliation when they file a complaint or cooperate with an investigation under federal law. |
Improving hiring of disabled workers |
The government will continue proactive efforts and attempts to improve the hiring of disabled workers and reduce discrimination against the disabled. |
Clarification on FLSA and classification |
The government will seek revisions to the FLSA for certain jobs, most notably workers who provide in-home services to the elderly and infirm. It will also continue to regulate misclassification of employees. |
Retirement plan reform |
The government is interested in ensuring that employees are saving adequately for their retirement and are exploring a number of options including additional disclosures, making investment advice more available, implementing automatic contributions, and restructuring tax deductions. |
Regulating use of cell phone while driving |
This past fall, OSHA and the Department of Transportation began an initiative to combat the leading cause of worker fatalities – motor vehicle crashes – and reduce distracted driving. Condoning/incenting texting while driving is in violation of OSHA, and use of a cell phone while driving may soon be as well. |
User-friendly applications |
The Department of Labor is leading a number of efforts to create user-friendly applications, interfaces, and tools for employers, job seekers, and other users to more easily use the information it provides. |
E-Verify |
In 2012, more states will likely require the use of E-Verify to determine employment eligibility. |
If your organization needs more assistance, guidance, or detail with regard to these or other compliance-related issues, here are several additional resources and services, provided by ERC, which you can consult:
The new year is just a few short days away, and it brings with it a number of challenges and opportunities to enhance your workplace. Here are 12 things to consider as your business heads into 2012.
The legal landscape is becoming more complicated to navigate and employers are increasingly being hit hard with expensive fines and discrimination charges, per a recent report which noted a record number of discrimination charges and fines filed by the EEOC. Discrimination against the unemployed and disabled as well age discrimination are just a few pressing issues the government will be targeting in 2012 that employers should note.
Can’t find the talent you need? The current skills shortage is not expected to change anytime soon, so consider rethinking how you’re hiring. Perhaps your skill and experience requirements may be inadvertently screening out potentially great top performers that fit your culture and have growth potential. Or, you may need to explore different sourcing and branding tactics to attract the talent you need.
Make creating a better performance management system and approach one of your strategic priorities in 2012. Additionally, build your managers’ abilities to execute results and manage/support employees’ performance. A solid approach to performance management will increase the likelihood that your organization has a successful year.
2011 was a year in which many organizations focused their efforts on leadership and management development and 2012 will be no exception. Organizations are increasingly growing their internal talent, preparing them for their next roles, and ensuring that their businesses have appropriate succession in place.
Employee benefits regulations are changing – and not just surrounding health insurance. Changes to retirement plans, family leave, and sick time are all issues the government has explored in the past year and will continue to target in 2012. Make sure your organization is prepared for the trends that will affect employee benefits in the coming year.
Health care costs will remain a major challenge for employers in 2012. One-off wellness initiatives or activities will not suffice in managing costs effectively, so it’s advisable to create a long-term wellness strategy, based on the needs of your workforce, that will help your organization better manage health care costs and usage for years down the road.
In 2011, the use of social media rapidly rose in the workplace. If your HR department hasn’t started to leverage the power of social media tools yet, it may be missing out on opportunities to find exceptional talent and boost learning and development – not to mention help your own career. Mastery of social media is, without question, an HR competency you’ll need for future success.
During the past few years, many organizations have moved towards leaner workforces and processes, but few have managed how those changes have adversely affected employees and their cultures. Use 2012 to deal with the effects that these changes have caused on the workforce, redefine your culture, and re-establish your organization’s direction.
HR metrics, analytics, and technology have become the gateways to creating a more efficient and effective HR department. Relook at what your department is tracking and the systems it is using. Chances are that you can leverage open-source systems, cloud technology, and other tools to automate processes and improve internal customer service.
Global competencies are a sought-after skill by employers as they expand their markets globally. Whether its managing expatriates and bilingual employees, identifying legal risks abroad, or determining what to pay your global employees, as your organization expands globally, it will be critical for HR to enhance its organization’s capacity to manage global talent in 2012.
Hopefully your organization emerged from 2011 with its top talent intact and engaged. If not, use the beginning of 2012 to create a strategy to retain your workforce and ignite engagement. Nip the problem in the bud quickly, otherwise, you could face unintended consequences of disengaged employees and high turnover throughout the next year.
Whether it’s hiring an intern or a recent college grad from a local university, providing an opportunity to an unemployed individual, or giving back to one of our community’s non-profits, do your part to improve economic development in our region and support our local communities.
Leadership & Management Development Training
ERC offers a variety of training programs for leaders at all levels of the organization, from executive to mid-level manager to first time managers and supervisors. Our leadership development programs help move leaders from the traditional command and control role of judging and evaluating, to one of ensuring accountability through creating a supportive and motivating work environment.
HR Consulting
For assistance with various HR projects in 2012, including but not limited to, performance management system design, organizational design and development, HR metrics, employee engagement surveys, succession planning, and more, please contact consulting@yourerc.com.