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  • 1. HR 101 What all employers Need to Know… © 2011 The Weston Group, LLC. All Rights Reserved.
  • 2. Agenda The Evolution of the HR Profession An Overview of Core HR Leadership Competencies Effective Recruitment & Selection Techniques Compensation and Benefit Issues & Answers The Legal Arena and HR Law Labor & Employee Relations Recordkeeping – An outline of What to Keep and Commonly Accepted Record Retention Strategy Risk Management – ADA / FMLA / Workers’ Compensation HR Metrics: How to Measure Your Success Training & Development for Effective HR Management
  • 3. SABRINA MEIERHENRY J.D. President & Principal Sabrina@TheWestonGroup.com Sabrina is a seasoned attorney and serves as the President and a Principal Consultant for The Weston Group. Sabrina has received specialized training from the US Equal Employment Opportunity Commission in employment discrimination issues. Sabrina is also a partner in the law firm of Meierhenry Sargent, LLP. Membership involvement includes: South Dakota Bar Association Professional Liaison Committee State Bar Alternate Dispute Resolution Committee South Dakota Bar Association Second Circuit Bar Association U.S. Federal District Court U.S. 8th Circuit Court of Appeals.
  • 4. PATRICIA DOUGHERTY RN SPHR Senior Vice President & Principal Trish@TheWestonGroup.com Ms. Dougherty is a recognized “change agent” who welcomes the need for positive change, is willing to champion the cause and motivate people to see the benefits of the outcome. Trish utilizes a combination of practical, in-depth experience with sound leadership strategies to successfully manage difficult and complex change within an organization. Experience includes Vice President of Human Resources for 10,000+ employees in multi-state locations as well as Director of Nursing and Recruiter experience. Former Commissioned Officer in the United States Army Nurse Corps. Certified as SPHR and currently licensed RN Professional Affiliations Wharton School of Business – University of Pennsylvania -Research Advisory Group Participant Society of Human Resource Management (SHRM) American Association of Healthcare HR Administrators (ASHHRA) Twin Cities Human Resource Association TCHRA)
  • 5. RICHARD KREYER Vice President of Service Delivery Rick@TheWestonGroup.com Mr. Kreyer has over 20 years experience in human resource management. Mr. Kreyer has an extensive background in leadership, strategic planning, budget & project management, labor relations and negotiations, organizational development as well as creative problem resolution. Experience includes Vice President of Human Resources and Labor Relations with the St. Paul School District where he provided overall leadership for the Labor Relations, Compensation, HR Information, Benefits and Staffing functions. Mr. Kreyer’s experience also includes Vice President of Labor Relations and Workforce Development with the Minnesota Hospital Association. Education & Civil Involvement University of Minnesota, Masters Degree in Industrial Relations University of Minnesota, Bachelors Degree in Psychology (I/O psychology emphasis) Ongoing professional conferences, seminars, memberships, reading, college instructor and conference presenter.
  • 6. The Weston Group Provides:   HR Risk Assessments -Analysis & Identification of People Management Systems -Identify Value Added Enhancements to Current Processes   Conflict Management & Organizational Effectiveness -“Change Experts” to Manage Major Change -Assistance with Staff Reductions & Organizational Re-Design -Merger & Acquisition: People Facilitation -Litigation Avoidance -Turnover Reduction HR Support & Coaching -Executive Coaching -One-on-one Mentoring for HR Staff  
  • 7. The Weston Group Provides: Recruiting & Staffing -Executive Searches -Applicant Tracking -ROI Benchmarks/Cost Per Hire -Decrease Time to Hire -Monitor Turnover & Trend with Recruitment & Selection Practices Productivity Management -Benchmarks and Metrics -Identifying Opportunities for Productivity Improvement   Labor Relations -Creating & Maintaining Positive Relationship between Management & Staff -Assistance with Negotiations Employee Handbooks -Compliant with Latest Employment Law Changes -User Friendly & Customized for your Culture -Comprehensive, Professional and Practical    
  • 8. The Weston Group Provides:  Job Descriptions -ADA Compliant -Exempt vs. Non-Exempt Classifications -Job & Interpersonal Skill Competencies Compensation/Benefits -Wage & Hour Assessments -Salary Surveys -Compensation Management -Benefit Negotiations   Performance Management -Orientation Effectiveness -Corrective Action & Discipline -Delivering Difficult Feedback   Training & Development -Managing Attendance -Employment Law -Dealing with Conflict -Managing Difficult Personalities                      
  • 9. The Weston Group Provides: Legal & Regulatory -Employee File Review -EEOC & DOL Response to Claims -Workplace Investigations -ADA/FMLA/WC -Dispute Resolution Prior to Claims -Record Retention Requirements                    
  • 10. Evolution of the HR Profession What is HR? Simply: A “resource” to our “humans” Human Resource Management (HRM) as a function should assist the organization to maximize return on investment (ROI) of human capital & minimize financial risk
  • 11. HR: The Past 100 Years
  • 12. Old HR vs. New HR Old HR (or Personnel) You saw them only when hired or fired Paper pushers Rule makers and rule monitors Local, internal organization focused Focused on the present only “Overhead”
  • 13. Myths That Keep HR from Being Valued People go into HR because they like people Anyone can do HR HR deals with the soft side of a business and is therefore not accountable HR focuses on costs, which must be controlled HR’s job is to be the “policy police” and the health and happiness patrol--“fluffy" HR is full of fads HR is staffed by nice people HR is HR’s job
  • 14. Traditional Human Resource Department Structure …silos of experts? Benefits Firing Hiring Salary
  • 15. Human Resource Functional Areas Job Analysis and Job Evaluation Job Descriptions Recruiting Employee Interviews Background and Reference Checks Employee Orientation Wage and Salary Administration Benefits
  • 16. HR Functional Areas (cont.) Employee Records Management Vacation/Leave Policy and Administration Performance Appraisal Processing Promotion/Transfer/Separation processing Disciplinary Procedures Labor Relations/Negotiations
  • 17. HR processes
  • 18. Old vs. New HR New HR: Generalists (know business, not just HR) Integrated into business units & decisions Coach management/employees for higher individual/organizational performance Good communication; customer skills Broader focus: organization, community Current & future focus Adds value (and ROI) to the organization NOT STRATEGIC ENOUGH
  • 19. Strategic Partner “Strategy development is important for HR, but strategy execution is far more important” Richard Beatty Rutgers University
  • 20. Strategic Partner – Why HR Hasn’t Been One Activity Based - # applications, # hired, etc. Cost Emphasis - budget/EE, Cost/hire The Legal System - risk adverse vs. problem solving Employee Advocate - work for the employee NOT ENOUGH STRATEGY
  • 21. A seat at the table . . “If HR wants a seat at the table, it better bring something to eat!” Ray Weinberg 2000 SHRM Thought Leaders Conference Providence R
  • 22. What HR Can Be A more strategic view
  • 23. HR Effectiveness Framework — aligning human resource strategy to drive better business performance Business Plan Workforce Strategy Business Performance Employee Behavior Financial commitments Strategic priorities Efficiency Quality Innovation Customer Service Brand/image Business transformation Acquisitions/alliances Business model change Required organization capabilities Critical positions and value relationships Objectives and guiding principles Alignment: Source, deploy, engage, reward, develop Prioritization and change plan Human capital metrics Measurable Outcomes Efficiency Quality Innovation Customer service Brand/image Financial performance Revenue ROI Operating margin TSR Attraction Retention Engagement Customer Behavior Attraction Retention Engagement 24
  • 24. Summary People are often the most expensive part of running an organization HRM linked to the Company’s goals is crucial to attaining organizational performance and improving results Your HR Department should be creating a strategy that is aligned with organizational goals and supported by the Administration and Board So how do you get there?
  • 25. An Overview of Core HR Leadership Competencies
  • 26. Essential HR Management Competencies When Interviewing, we use checklists and structure questions to look for competencies. What competencies should we look for in HR people? For starters, here are nine top contenders And one final thought…
  • 27. HR Key Skill #1: Organization Organized files Strong time management skills Personal efficiency Avoid “the black hole” syndrome
  • 28. HR Key Skill #2: Multitasking On any day, an HR professional will deal with an employee’s personal issue one minute, a benefit claim the next and a recruiting strategy for a hard-to-fill job the minute after Priorities and business needs move fast and change fast, and colleague A who needs something doesn’t much care if you’re already helping colleague B You need to be able to handle it all, all at once.
  • 29. HR Key Skill #3: Discretion and Business Ethics Human Resources professionals are the conscience of the company, as well as the keepers of confidential information You need to be able to push back when they aren’t, to keep the firm on the straight and narrow You must be objective, therefore HR has to juggle “friendships” vs. “profession” (especially difficult in small companies)
  • 30. HR Skill #4: Dual Focus HR professionals need to consider the needs of both employees and management There are times you must make decisions to protect the individual, and other times when you protect the organization, its culture, and values Biggest mistake of HR departments – Lack of objectivity HR does not make decisions, we should provide guidance for both employees & management
  • 31. HR Key Skill #5: Employee Trust Employees expect Human Resources professionals to advocate for their concerns The HR professional who can pull off this delicate balancing act wins trust from all concerned Remember, management staff are employees too You can make everyone successful or achieve win-win if possible? Give employees “choices”. Give management “guidance”
  • 32. HR Key Skill #6: Fairness Successful HR professionals demonstrate fairness Voices are heard Laws and policies are followed Privacy and respect is maintained Look at entire organization & track precedence to ensure fair & consistent decisions
  • 33. HR Key Skill #7: Dedication to Continuous Improvement HR professionals need to help managers coach and develop their employees The goal is continued improvement and innovation as well as remediation
  • 34. HR Key Skill #8: Strategic Orientation Forward-thinking HR professionals take a leadership role and influence management’s strategic path Proactive vs. reactive – TRACK & TREND Have the answer before you have the problem
  • 35. HR Key Skill #9: Team Orientation Once, companies were organized into hierarchies of workers headed by supervisors Today, the team is king HR managers must consequently understand team dynamics and find ways to bring disparate personalities together and make the team work
  • 36. Nine Skills, But Also One Caveat The nine skills are not prioritized here, because no general list of skills can take into account the business strategy at your particular organization Which leads to the caveat: “HR should serve the business strategy. It’s important for HR people to know what that strategy is and what makes the business tick so the approach to HR can be tailored accordingly for your country You should never think of HR in isolation, because if Human Resources professionals think of themselves as “just HR,” that’s what the rest of the organization will think too.
  • 37. HR Leadership Competencies Visionary Strategic Communicator Organizer Team Builder Mentor Mediator Evaluator Problem Solver
  • 38. HR Leadership - Vision HR staff needs to have the ability to see where the organization and their people need to go to meet future needs
  • 39. HR Leadership - Strategy HR staff needs to create the strategy needed to move people and resources to accomplish that vision
  • 40. HR Leadership –Communication HR staff must have the ability to listenand respond to employees with respect and appropriate communication
  • 41. HR Leadership – Skillful Organizers Establish a goal, communicate it accordingly Schedule workloads accordingly PLAN! (allocate time & resources) Proactive vs. reactive Track the progress of a project Follow-through is critical to build credibility
  • 42. HR Leadership-Team Builder Good team builders respect their staff and give them recognition for work well done They are courteous in their dealings, provide support and direction when needed, and offer constructive criticism in private Good team builders strive to be fair and respectful when resolving conflicts among staff.
  • 43. HR Leadership-Mentor Encourage and motivate employees to reach their potential Provides empathy not sympathy Confronts negative behaviors and attitudes Encourages self-awareness Maintains high standards of professionalism in interpersonal relationships with employees
  • 44. HR Leadership-Mediators Creates a respectful setting and safe environment for discussion Remains objective! Identify the real issues (focus on problem, not person) Provides consequences for choices Monitors interpersonal interactions and intervenes when appropriate
  • 45. Effective Interviewing & Employee Selection
  • 46. The WHY of Effective Interviewing Getting the right person for the right job Increased retention = decreased cost Increased productivity of the team (right fit) Increased customer satisfaction Decrease orientation Decreased management time
  • 47. Why the RIGHT questions are important Select and design questions carefully to get the information needed to make quality hires while avoiding discriminatory intent.
  • 48. Behavioral Based Interviewing FACT Previous performance is the best indicator of future performance 55% predictive of future on-the job behavior vs. traditional interviewing provides only 10% prediction
  • 49. Behavioral Based Interviewing Provides in-depth information of the candidates job related: Experiences Behaviors Knowledge Skills and abilities Simply change your questions! “Give me an example of……”
  • 50. First, Know Your Own Traits
  • 51. Be a Good Listener Constructive listening Nonverbal communication Watch their body language Eliminate bias views Watch your body language Do not interrupt
  • 52. Behavioral-Based Interviewing Professional Capacity Leadership Mentoring Critical Thinking Time Management Conflict Resolution Change Management Diversity Financial Management Accountability Budget Review Operations Safety Client Relationships Technical Skills Legal & Regulatory Service Development Other Community Involvement Professional Organizations
  • 53. Examples Give me an example of a difficult client/customer relationship and how you worked through it Describe a decision you made that was unpopular and how you handled implementing it Give me an example of a time when you set a goal and were able to meet or achieve it Give me an example of how you delegate duties to others. How do you hold individuals accountable?
  • 54. Topics and Questions to Avoid Age Arrest Record (you can ask about convictions) Marital and Family Status Religion Disabilities Race National Origin Military status
  • 55. Laws that affect the interview process Title VII of the Civil Rights Act of 1964 Race Sex Color Nation of Origin Religion Vietnam Veteran Pending—Sexual Orientation Age Discrimination in Employment Act (ADEA) Americans with Disabilities Amendment Act (ADAA) Immigration Reform and Control Act (IRCA) Citizenship Nation of Origin
  • 56. Laws that affect the interview process National Labor Relations Act (NLRA) Union membership Uniformed Services Employment and Reemployment Rights Act (USERRA) Membership or service in the uniformed services Bankruptcy Act Child Support Enforcement Amendments
  • 57. What to ask and not ask Age Instead of: When did you graduate? When do you intend to retire? Ask: Are you old enough to do this type of work? Can you supply transcripts of your education?
  • 58. What to ask and not ask Disability Instead of: Do you have a disability? Have you ever filed a workers compensation claim? Do you have a history of drug or alcohol abuse?
  • 59. What to ask and not ask Disability Ask After reviewing the job description, “Can you do the duties listed in the job description, with or without accommodation?” Must do Employers must provide reasonable accommodation to candidates who have disabilities.
  • 60. What to ask and not ask Race A candidate’s race will usually be at least somewhat evident, but race related discussions or questions may imply a preoccupation with that factor
  • 61. What to ask and not ask Religion Instead of: What outside activities do you participate in? Ask: What professional associations are you a member of?
  • 62. What to ask and not ask Sex/marital status Instead of: Are you married? When do you plan to start a family? Do you have children?
  • 63. What to ask and not ask Ask: Are you available to travel frequently? Can you work overtime with no notice? Can you work evenings and weekends? When we check references/do a background check, are there other names we should look under?
  • 64. What to ask and not ask National Origin/Citizenship Instead of: Are you a citizen of the US? What country are you from? Where is your accent from? What nationality is your last name? When does your visa expire?
  • 65. What to ask and not ask Ask: If you are hired, are you able to provide documentation to prove that you are eligible to work in the US?
  • 66. What to ask and not ask Financial Status Instead of: Do you own a home/car? Have you ever filed for bankruptcy? Are you subject to any garnishments or child support orders? Ask: Will you sign a form authorizing us to perform a credit check?
  • 67. What to ask and not ask Military Instead of: Please provide the status of your military discharge Will you miss work to perform military service? Ask: What experience did you gain in the uniformed service that is relevant to the job you would be doing?
  • 68. What to ask and not ask Arrests and convictions Instead of: Have you ever been arrested? Ask: Have you ever been convicted of a crime? You must qualify this question by stating that a conviction will not automatically disqualify a candidate
  • 69. Closing the Interview Ask the candidate if he or she has any questions Summarize the next steps in the process Avoid making any promises or commitments to the candidate Thank the candidate for his or her interest in the position
  • 70. Post Interview Review your notes Summarize your overall impression of the candidate immediately after the interview while your memory is fresh Consider other open positions for which the candidate may be a good fit
  • 71. Behavioral Based Interviewing Evaluation Rating System 5. Excellent 4. Good 3. Acceptable 2. Poor 1. Very Poor/Unacceptable Average scores for objective ratings
  • 72. Choosing the Right Person Compare/contrast the candidates You may use a formal ranking system providing you are comparing the same criteria/responses You may have other managers or your staff interview the final candidates Gather input from others but remember, it’s ultimately YOUR decision
  • 73. MAKING THE OFFER Don’t misrepresent opportunities Offer letter Condition job offer on tests, references, etc.
  • 74. REFERENCE AND BACKGROUND CHECKS What to check for Where to check References Negligent hiring By the way, The Weston Group offers a cost effective background checking service…
  • 75. KEEP THEM THE BEST AND MAKE THEM BETTER Orientation Training Performance improvement
  • 76. In Conclusion... Treat the candidate fairly Make the interviewing environment as comfortable as possible Ask relevant questions Probe for work-related events that detail the person’s experience, skills and knowledge Keep an open mind…and an appropriate sense of humor!
  • 77. Employment Law
  • 78. Federal Employment Law Update National OriginOSHARace DiscriminationReligious DiscriminationSex DiscriminationSexual HarassmentTitle VIIWARN Affirmative ActionAge DiscriminationClass ActionsCOBRADisability DiscriminationEmployee BenefitsFLSA & Wage & HourFMLAImmigration
  • 79. Top Five Risks #1 Misclassification of Workers as Independent CONTRACTORS On Feb. 1, President Barack Obama released his federal budget for the coming fiscal year, including $117 billion for the United States Department of Labor, of which $25 million was set aside expressly to help combat employee misclassification Civil penalties against an employer of up to $1,000 per misclassified employee for a first violation and up to $2,500 per misclassified employee for each subsequent violation Misclassification of employees as independent contractors can result in substantial liability and penalties for, among other things, back taxes, overtime pay, workers compensation, employee health benefits, and retirement benefits
  • 80. Misclassification of Workers as Independent CONTRACTORS FedEx recently agreed in principle to settle a California lawsuit filed by its workers alleging that FedEx had misclassified them as independent contractors for $26.8 Million Why Do Employers Do It? Benefits to the employer include decreased payroll tax obligations, freedom from minimum wage and overtime requirements, no medical insurance or retirement benefits costs, and other administrative savings. Advantages for the independent contractor include flexibility, more money up front and tax benefits unavailable to employees, including deducting legitimate business expenses.
  • 81. PREVENTION Annual risk assessment of pay practices Centralize authority to classify workers Payroll/HR communicate regularly about red flags Educate front line managers and supervisors Keep eyes and ears open
  • 82. Top Five Risks #2 WAGE & HOUR VIOLATIONS The Fair Labor Standards Act (FLSA) sets minimum wage and overtime pay standards for employment. The Act also gives the U.S. Department of Labor's (DOL) Wage Hour Division (WHD) the authority to investigate and gather data regarding the wages and hours of employment for entities subject to the requirements of the Act. Employers that violate minimum wage or overtime pay provisions may have to pay back wages and penalties. Recent settlements: AT&T = $1 Billion Walmart = $40 Million (in Massachusetts alone!)
  • 83. Top Five Risks #2 WAGE & HOUR VIOLATIONS Recent survey of Las Vegas based employees: Over 25% of survey respondents reported that they had received less than the minimum wage in the previous week, and 60% of those reported being underpaid by more than $1 per hour. More than 75% of survey respondents reported not being compensated for overtime worked in the previous week—and they averaged 11 hours of weekly overtime. Almost a quarter worked off the clock (and weren't paid for it), and nearly two-thirds of those entitled to a meal break didn't receive the full, uninterrupted, work-free break required by law.
  • 84. Top Five Risks #2 WAGE & HOUR VIOLATIONS Just over 40% had deductions illegally taken from their paycheck (for breakage or to pay for tools or other items required for work, for example) Exempt vs. Non-Exempt – HUGE The DOL has added 250 new investigators and damages/ attorney’s fees will be doubled for “willingly and knowing” violations
  • 85. PREVENTION Annual risk assessment of pay practices Centralize authority to classify workers / make policy Payroll/HR communicate regularly about red flags Educate front line managers and supervisors Keep eyes and ears open
  • 86. #3 GENDER & RACE DISCRIMINATION Sexual Harassment in the Workplace: It's Not Always What You Think Male – Female Female – Male From 1990 to 2009, the percentage of sexual harassment claims filed by men has doubled from 8 percent to 16 percent of all claims, according to the Equal Employment Opportunity Commission. Same sex harassment Most often settlements EEOC states these are also on the rise
  • 87. #3 GENDER & RACE DISCRIMINATION Sexual Harassment in the Workplace: It's Not Always What You Think The perpetrator does not have to be part of the same company as the victim. Any party acting as an agent of the employer such as a real estate agent or consultant can be a perpetrator in a harassment claim. In addition, a harasser could be a delivery person from another company. The company who sent the delivery person could be held accountable for the harassment. Likewise a delivery person could sue for sexual harassment from the actions of one of the companies he delivered to.
  • 88. #3 GENDER & RACE DISCRIMINATION Sexual Harassment in the Workplace: It's Not Always What You Think The victim does not have to suffer economic or job related injury to file a harassment claim. Hostile work environment harassment is harassment that typically must be intentional, severe, recurring and pervasive, and interfere with an employee's ability to perform his or her job Work Place Romance…..
  • 89. #3 GENDER & RACE DISCRIMINATION Workplace Romance In a survey by CareerBuilder.com in 2009, 40% of respondents revealed that they have dated a coworker When can consensual sex create a hostile workplace environment? Sexual favoritism California Supreme Court held that "when such sexual favoritism in a workplace is sufficiently widespread it may create an actionable hostile work environment”
  • 90. #3 GENDER & RACE DISCRIMINATION According to the EEOC’s suit in U.S. District Court for the Northern District of Ohio, Eastern Division (Case No. 1:08-cv-02199), a class of black employees was subjected to racial hostility and discriminatory behavior at Mineral Met’s Cleveland facility. For example, Quality Control Supervisor Langston Satterwhite, of Maple Heights, Ohio, had an excellent performance history, but a white supervisor unfairly disciplined him for trivial matters, such as having facial hair or using a cell phone, even though white co-workers were not reprimanded for doing the same things. Other black employees were also repeatedly cited for alleged policy violations while white employees were not disciplined for engaging in the same behavior, the EEOC said.
  • 91. PREVENTION Annual training on sexual harassment and respect in the workplace Managers should be held accountable for following policy Educate front line managers and supervisors Keep eyes and ears open
  • 92. Top Five Risks #4 ADAAA The ADAAA, which took effect in January 2009, makes it significantly easier for a plaintiff to establish that he or she is disabled under the ADA While the ADAAA retains the ADA’s definition of “disability” as a substantial limitation of a major life activity, it stipulates that its meaning “shall be construed in favor of broad coverage of individuals
  • 93. Top Five Risks #4 Almost everyone is covered by ADAAA (Disability) More people with disabilities filed charges of discrimination against their employers last year than at any other time in the 20-year history of the Americans with Disabilities Act USA Today: The number of ADA charges filed in 2009 hit an all time high with almost 21,500 ADA related charges being filed with the EEOC The good news: 60% were found to have no basis under its rules, and about half of the cases it did take resulted in an outcome favorable to the employee. But consider the cost to defend
  • 94. #4 Almost everyone is covered by ADAAA (Disability) The main reasons for the increase: The Great Recession Amendment to the ADA that broadened the definition of what it means to be disabled. Common issues: Being fired Complaints include being overlooked for promotion Not being switched to a job that matches the person's abilities Not getting accommodations such as computer upgrades to be able to do a job
  • 95. #4 Almost everyone is covered by ADAAA (Disabiity) Employer-caused psychological ills can trigger ADA claim Recent case: Amelia Ravan claimed that her supervisors at Forest Pharmaceuticals wanted to get rid of her and that she worked in what was essentially a hostile environment. When she couldn’t take the stress anymore, she was diagnosed with anxiety and depression and took FMLA leave. When she couldn’t return, she lost her job. Ravan sued under the ADA, claiming that her employer had triggered a disability and therefore should have accommodated her. The court hearing pretrial motions said Ravan’s lawsuit will go forward.
  • 96. PREVENTION Ongoing review of ADA cases – be proactive! Managers/HR communicate regularly about potential issues –be proactive! Have ADA compliant job descriptions Educate front line managers and supervisors Keep eyes and ears open Have a resource ready for issues/questions
  • 97. Top Five Risks #5 FAMILY & MEDICAL LEAVE According to WorldAtWork.org, claims related to FMLA have increased by more than 10 percent this year More people in the United States are becoming aware of their rights under FMLA or perhaps less companies want to provide family medical leave protection to workers in such tough economic times.
  • 98. #5 FAMILY & MEDICAL LEAVE The top reasons for FMLA leave: Personal illness or injury Care for a child Care for an elderly relative. Time off for pregnancy Time off for the adoption of a child or birth of a child Care for a recently injured military member 
  • 99. #5 FAMILY & MEDICAL LEAVE Most important to remember: Determine if employee is eligible Make employee aware of eligibility Start the paperwork process Be sure you get completed paperwork Access resources if you don’t understand the condition Track utilization if intermittent Get re-certification if needed Track exhaustion of leave BE CONSISTENT!
  • 100. #5 FAMILY & MEDICAL LEAVE Fitness for Duty: HOW you do it is important Charlene Wisbey brought suit against her employer of twenty-seven years, claiming that her rights under the Americans with Disabilities Act (ADA and the Family Medical Leave Act (FMLA), were violated when she was terminated based on the results of a “fitness for duty exam.”  The court of appeals ruled that it was reasonable for the City of Lincoln, Nebraska (the City), to perform a fitness for duty exam to ascertain the cause of behavior which was interfering with Wisbey’s ability to perform her job functions, as well as rely on the results of the exam when it came to making their decision to continue or terminate her employment with them.
  • 101. Americans With Disabilities ActFamily & Medical Leave ActWorkers’ Compensation“THE TORNADO”
  • 102. ADA / FMLA / WC ADA – 15+ Employees Department of Justice FMLA – 50+ employees Department of Labor WC – 1+ Employee Department of Labor
  • 103. Easy Steps to Remember Work related? How many employees do you have? How long has employee been here? Chronic or just serious? Validate the diagnosis If ADA, FMLA and WC, GET HELP!!!
  • 104. Common Mistakes Employers Make Reactive rather than proactive “Training does not produce revenue” Improper termination Be sure to have a consistent corrective action policy Assuming there is no strong basis for immediate termination, giving at least one warning is important to demonstrate fair treatment Jurors LIKE employees
  • 105. Common Mistakes Employers Make Lack of quality documentation Favoritism False comfort Employment-at-will Do the right thing!
  • 106. Other Hot Issues Military Rights (USERRA) Angel Vega-Colon, a member of the Army Reserve, became employed by Wyeth Pharmaceuticals as a packaging equipment supervisor in 2002. From 2002 to February 2004, Vega-Colon was on active military status and took various leaves from Wyeth for military training. From 2004 to 2007, Vega-Colon was on inactive status with the Army Reserve and took no military-related leaves. However, in February 2006 he received an invitation to return to active duty as a captain, and he informed his supervisor that he was going to return to active duty in the future, with a high probability that he would be mobilized. In April 2006, Vega-Colon applied for a promotion to reliability engineer but was not chosen for the position.
  • 107. Other Hot Issues Medical Marijuana-not here…..yet! Arizona residents with a wide variety of “medical conditions,” including muscle spasms and patient-defined symptoms such as pain and nausea, would be eligible to obtain marijuana for medicinal purposes. Unless a failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination or imposing any term or condition of employment or otherwise penalize a person
  • 108. Other Hot Issues Social Networking An ambulance service illegally terminated an employee who posted negative remarks about her supervisor on her Personal Facebook page, according to the National Labor Relations Board’s (NLRB) Hartford, Conn., office, which announced on Nov. 2, 2010, that it has issued a complaint against the company.
  • 109. Hot Issues Paycheck Fairness Act Appears to be one of a handful of bills scheduled for a lame-duck vote in the Senate.  The proposed legislation would increase employers’ potential liability for compensation decisions.  Under the proposed law, to defend against discrimination claims, employers must demonstrate that any pay differential is based on a “bona fide factor other than sex, such as education, training, or experience” and is “consistent with business necessity,” among other requirements
  • 110. Hot Issues Whistleblowers Cheryl D. Eckard worked as the company’s quality manager.  She claims that she alerted GSK management about the problems associated with the facility in question and the company fired her rather than address the appropriate issues.  Thereafter, Eckard filed a False Claims Act (“FCA”) Qui Tam action in the U.S. District Court of Massachusetts GSK agreed to pay the United States and the Medicaid Participating States (“MPS”) the sum of $600 million, plus accrued interest ($436,440,000 will be paid to the United States as the federal settlement and $163,560,000 will go to the MPS).  GSK will pay an additional $150 million in criminal fines.
  • 111. Whistleblowers: Implications for Employers The False Claims Act is a Major Weapon for Law Enforcement:  The FCA is one of the federal government’s key weapons for addressing corporate fraud. Employees Have Strong Incentives:  Under FCA’s Qui Tam provisions, the settlement agreement provides that Eckard will receive a hefty 22 percent share of the federal settlement amount, which comes to more than $96 million Compliance and Ethics Programs are Essential but must be Managed
  • 112. PREVENTION Annual risk assessment of HR management practices Keep HR staff up to date Know where you can find resources to assist with specifics Educate front line managers and supervisors Keep eyes and ears open Have internal “hotline” or other mechanism in place so employees can be heard
  • 113. COMPENSATION BASICS
  • 114. TOTAL COMPENSATION Base Pay Benefits Ancillary Pay Retirement Plan
  • 115. COMPENSATION TERMINOLOGY Base Pay Pay for hours worked in a standard pay period Ancillary Pay Pay in addition to base pay (differentials, incentives etc.) Salary Survey Tool used to collect salary data for a defined market. Third party consultants are used to administer surveys and collect data so no individual organization’s salaries are known which would violate federal anti-trust laws.
  • 116. COMPENSATION TERMINOLOGY General Increase A percentage of increase given “across the board” to all employees Merit Pay Increases Increases to base pay driven by performance Market Equity Increases Increases to base pay driven by the market value of a job with critical skills being higher than current pay rates Internal Equity Increases to an individual’s base pay driven by comparing several factors including the knowledge, skill, experience, relevant training and performance to those of their peers.
  • 117. Market or Benchmark Positions These are positions that can be found in other organizations. Examples include positions that you routinely find in health care organizations. Examples include: Secretary Housekeeper Food Service Worker Janitor Truck Driver
  • 118. Pay Range Width The pay range width is the difference between a position’s minimum rate of pay and its maximum rate of pay. All salary ranges are determined by averaging the MINIMUM wage range gathered from salary survey information Each facility determines the width of the ranges and how employees move through the range with longevity.
  • 119. Why Compliance Matters Obama Administration has promised increased enforcement activity and has substantially increased DOL resources The plaintiff’s bar has launched an aggressive nationwide campaign, using websites to encourage hourly employees to join wage and hour lawsuits Settlements in private and DOL enforcement actions routinely run in the $2 million to $5 million range, and have exceeded $85 million
  • 120. FLSA Basics Minimum wage and overtime requirements Hours of work and how to calculate overtime Recordkeeping requirements Exemptions from overtime requirements Child labor laws
  • 121. Why You Need to Know Wage and hour issues are critical to the operation of the organization FLSA determinations may be difficult The law affects employee compensation You play an important role in compliance
  • 122. FLSA Exemptions Who is exempt? How do you determine exemptions?
  • 123. Nonexempt and Exempt Nonexempt employees -Hourly Exempt employees -$455/week -Cannot be subject to reduction because of variations in the quality or quantity of work -Docking issues WHO DETERMINES CLASSIFICATION?
  • 124. Minimum Wage Application Federal versus state requirements Minimum wage/overtime posters
  • 125. What Hours Count? Employees must be paid for work “suffered or permitted” by the employer even if the employer does not specifically authorize the work. If the employer “knows or has reason to believe” that work is occurring, the employee must be paid for the hours—even if off-site or off-shift. MANAGE THE ISSUE
  • 126. What Hours Count? Waiting time “engaged to wait” or “waiting to be engaged” On-call time Who is designated “on call” Travel time “portal to portal” “Changing” time
  • 127. Rest Periods Meals Required under FLSA? 30 minutes UNINTERRUPTED Automatic deductions Work breaks 5-20 minutes Not a guarantee Sleep time
  • 128. Recording Work Time Means of tracking hours Regular starting and stopping times Discrepancies Automatic deductions (meal)
  • 129. Rounding Errors Issue arises when employer tracks time in 15 minute increments RULE: 1-7 minutes may be rounded down to 0 8-14 minutes rounds up to 15
  • 130. Deductions from Pay Absences due to illness or disability Absences for personal reasons Disciplinary suspensions and penalties First and last weeks of employment Unpaid leave
  • 131. Child Labor Laws Purpose of child labor laws Workers under age 18 Minimum wage Overtime
  • 132. Work Restrictions Work restrictions for all minors under 18 Other restrictions vary depending on minor’s age
  • 133. Hours of Work Restrictions for minors who are 14 or 15 No restrictions for minors who are 16 or 17
  • 134. Key Points to Remember FLSA is a federal law that applies to most organizations This law governs minimum wage, overtime, and child labor issues Most employees are covered Be aware of the impact of this law
  • 135. What is next on the horizon? Wage Theft Prevention Act (H.R. 3303) Family-Friendly Workplace Act (H.R. 933) Living American Wage Act of 2009 (H.R. 3041) Working Families Flexibility Act (H.R. 1274) Not realistic before Healthcare Reform and Employee Free Choice (my opinion)
  • 136. THE RESOURCE SQUEEZE: Managing Employee Benefits $ $ 137
  • 137. Aging Workforce Americans over 65 will make up more than 16 percent of the population within 10 years. Germany is aging even faster: More than a fifth of the country (21.6%) will be over 65 by the year 2020. Birth certificates became standard nationwide in 1933, many persons over 100 years of age may not know exactly how old they are, and may have outlived anyone who does.
  • 138. Occupations with highest median ages: # 1 = Farmers Occupations with the next highest median age are: Real estate agents / property administrators Ministers of religion Bus drivers and other transit operators Senior managers in health, education, social and community services Senior government managers
  • 139. Aging Workforce Rank/State 110 and Older 100-109 1. California 129 -5,341 2. New York 85 -3,997 3. Florida 145 -3,573 4. Texas 113 -2,947 5. Illinois 59- 2,390
  • 140. Aging Workforce Rank/State 110 and Older 100-109 6. Pennsylvania 46 - 2,400 7. Ohio 41 - 1,910 8. Michigan 40 - 1,535 9. Massachusetts 17 - 1,552 10. New Jersey 38 - 1,514
  • 141. Aging Workforce Rank/State 110 and Older 100-109 6. Pennsylvania 46 - 2,400 7. Ohio 41 - 1,910 8. Michigan 40 - 1,535 9. Massachusetts 17 - 1,552 10. New Jersey 38 - 1,514
  • 142. Strategic Initiatives Slip and fall prevention Falls alone account for more than one-third of all injuries sustained by workers 65 and older, and it takes an older worker two to three times longer to recover from an injury than a younger counterpart. Ergonomics Ergonomic evaluations of workstations and workspaces can identify causes of fatigue and strain for older workers New computer screens are being introduced, with bigger type Special shoes Wooden floors
  • 143. Safe driving Death rates for work-related roadway crashes increase steadily beginning at around age 55, and older drivers (55 and above) are more likely than other drivers to have a crash at an intersection or when merging or changing lanes on a highway. Return to work Because claim statistics reflect a connection between increased healing time and age, there is a need for highly responsive return to work efforts for older workers.
  • 144. Employer Costs September 08, 2010 –Bureau of Labor Statistics Private industry employers spent an average of $27.64 per hour worked for employee compensation in June 2010. Wages and salaries averaged $19.53 (71%), and benefits averaged $8.11 (29%). Private industry employer costs for retirement and savings plans averaged $1.31 cents per hour (4.4%) worked in June 2010
  • 145. Civilian employer costs averaged $2.60 per hour worked for insurance benefits (life, health and disability), or 8.8% of total compensation. In addition to insurance, the other benefit categories are: Paid leave (vacation, holiday, sick leave and personal leave), which averaged $2.04 (6.9% of total compensation) Supplemental pay (overtime and premium, shift differentials and nonproduction bonuses), which averaged 71 cents per hour worked (2.4%) Insurance and workers' compensation, which averaged $2.30 per hour worked (7.8%).
  • 146. Health Care Costs
  • 147. Health Insurance
  • 148. Health Insurance * Indicates a significant difference from previous year
  • 149. Downsizing Statistics Federal Reserve Chairman Ben Bernanke declared that the recession was over for the U.S. on September 15, 2009 The effects of the recession for the U.S. retail industry predicted to extend well into 2010.
  • 150. Downsizing – Long Term Effects A lack of executive commitment to their functions Confusion about the priorities of their organization Increased workloads Confusion about their mandate A sense of being betrayed by executives and managers A profound sense of distrust A sense of futility with respect to long-term planning Undervalued and unappreciated
  • 151. Downsizing – Think Before You Cut  If you are in the unfortunate position of managing an organization that is "downcycling", you need to be aware of a few things: First, it will get worse if neglected.   Second, interventions to turn the cycle around must be considered as long-term projects.    Remember that your organization may have been moving downward for a year or two, and that it is going to take a substantial period of time to reverse the process.  Positive change will require a consistent effort on your part, and may require consulting help over a period as long as a year.  
  • 152. Downsizing – Think Before You Cut 1. Proactive management activities are always required when downsizing occurs. Managers must realize that they "can pay now or pay later", and that delaying actions designed to revitalize the organization will result in a huge cost down the road.  2. Support should be offered to those that are displaced, but, in the long term, help offered to "survivors" will be much more important in determining organizational health.
  • 153. QUESTIONS
  • 154. Strategic Human Capital Management Corporate Office: 315 S. Phillips Avenue Sioux Falls, South Dakota 57104 Office (605) 275-4747 Info@TheWestonGroup.com www.TheWestonGroup.com

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