November 26, 2008
I came across this article and found it informative. Please note the authors information at the bottom of the post.
The end of the year is a good time to review your company’s holiday pay practices. This article answers common questions regarding holiday pay-related issues in the United States.
Must an employer provide employees time off on holidays?
No. There is no Federal law that requires an employer to provide time off, paid or otherwise, to employees on nationally recognized holidays.
Must an employer accommodate an employee’s observance of a religious holiday?
An employer is obligated to provide reasonable accommodation for the religious practices of its employees, unless it can show that the accommodation would result in undue hardship for its business. Many employers offer a “floating holiday” in addition to the regularly scheduled holidays. This allows an employee to take time off for religious observances that are not covered by the employer’s established holiday schedule.
Courts addressing the issue of religious accommodation generally agree that unpaid time off can be a reasonable accommodation, as can allowing an employee to use a vacation day to observe a religious holiday. Generally, employers require that floating holidays be taken in the same year they are granted and do not allow these days to be carried over into the next year. Employees usually are required to give adequate advance notice of their intention to take a floating holiday.
Must holiday time off be paid?
For non-exempt (hourly) employees, no. An employer does not have to pay hourly employees for time off on a holiday. An employer is only required to pay hourly employees for time actually worked. On the other hand, exempt employees (salaried employees who do not receive overtime), who are given the day off, must be paid their full weekly salary if they work any hours during the week in which the holiday falls. This requirement for exempt employees did not change under the new federal overtime regulations.
Must paid time off be counted as hours worked in determining whether an employee is entitled to overtime?
No. If an employer provides paid holidays, it does not have to count the paid hours as hours worked for purposes of determining whether an employee is entitled to overtime compensation. An employee must actually work 40 hours in a week before he/she is eligible for overtime. Paid time off (holidays, vacation, sick leave, etc.) is not considered time worked. Note, however, that many collective bargaining agreements include additional provisions for determining overtime.
Mel Muskovitz is an attorney who represents employers about labor and employment matters in state and federal courts and before administrative agencies. He also assists his clients to avoid legal problems by preparing or reviewing employee handbooks, conducting training, and advising on appropriate preventative measures such as employee discipline. He assists employers to comply with the Fair Labor Standards Act, the Family and Medical Leave Act, the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964. He can be reached at Dykema Gossett PLLC, Phone: (734) 214-7633, FAX: (734) 214-7696, or by Email.
October 13, 2008
With immigration law heating up, it is imperative that businesses small and large alike understand their responsibilities. This video tutorial gives an overview of the history, proper completion, storage, and destruction regulations, of the Form I-9.
October 7, 2008
I presented to a group a while back and used some scenarios to prompt discussion about best practices in dealing with Sexual Harassment complaints. The result was a very fun and engaging conversation.
Many people from the group asked for a copy of the quiz to use in their trainings. Here is just one of the scenarios with the discussion points.
The “He Said-She Said” Sexual Harassment Scenario
Jane works for Bob. After successfully completing a project, Bob tells Jane he will treat her to lunch. The next day, Jane sends an email to Bob’s supervisor: “Yesterday, Bob asked me to go to lunch with him. I was not sure that was right, but he’s my boss. At lunch, he propositioned me. I want something done about this.”
The supervisor knows Bob to be a dedicated family man. He does not know Jane very well, but has no reason to believe she is a liar. He calls Bob, and tells him what Jane said. Bob is outraged, and denies everything. The supervisor then calls Jane and tells her that Bob denies the accusation. He asks if there were any witnesses. Jane says there weren’t, but swears that what she said is true.
Faced with a “he said-she said situation”, the supervisor puts a memo in their files, and tells them both to act responsibly, and avoid any future situations that might cause problems.
Was Bob’s supervisor correct in conducting the investigation?
The story states that the supervisor knows bob well but does not know Jane very well. It is always best to have someone who is unbiased conduct the investigation. He should have either went to the HR department or (if no HR) hired an outside consultant to investigate.
Did Bob handle the investigation properly by only speaking to Bob and Jane?
Even though the story states that there were no witnesses to this particular incident it is always a good idea to conduct interviews with various people who have contact with the people involved. This may just be a symptom of a chronic problem that needs to be addressed.
Since the case turned out to be a “he said-she said” and no harassment was proven, was the supervisor correct in only documenting the claim and results of the investigation?
Both parties are clearly uncomfortable at this point. In order to avoid retaliation against Jane or further issues, I would try to move Jane under a different supervisor or into a different department….Although, one would have to be very careful that Jane was onboard with the move and would not be losing anything as it could be construed as retaliation if she viewed it as a demotion of any sort.
Remember that these are just the best answers in my opinion and should not be looked at as legal advice as I am not a lawyer. I designed this quiz to create conversation around best practices…not really to be a step-by-step guide. Every situation is different and you should always consult with an HR professional or an attorney on a case-by-case situation.
October 3, 2008
I recently came across an article titled “30 Interview Questions You Can’t Ask and 30 Sneaky, Legal Alternatives to Get the Same Info” on HR World, which caused quite a stir. Check out the article and the comments at http://www.hrworld.com/features/30-interview-questions-111507/.
Why all the outrage in the HR community? The article, although filled with good information, was presented as a way to use legal questions in order to try to trick the applicant into revealing information that we can only assume would allow the interviewer to make a hiring decision based on discriminatory criteria.
The bottom line is this, the EEOC does not mandate what questions can be asked in an interview. The interview (and its questions) is not the issue; it is what criteria you use to make the hiring decision that matters. You should hire the most qualified person for the position using only criteria that makes sound business sense for the position in which you are hiring.
Here are five quick tips to keep your hiring legal and to get the right person for the job.
- Take the time to create a detailed job description. This should include the physical requirements for the job, the hours and travel needs, the required skills, experience, and education needed to perform that job, and the personal attributes that are aligned with the business’s desired value and culture (to ensure organizational fit).
- Use the job description to create a structured interview. A structured interview simply means one in which every applicant is asked the same questions. This is a best practice because it ensures consistency which can help to keep the interviewer on the right track, and gives you consistent criteria to compare in order to make the best decision in the end.
- Take notes. These notes should be kept for one year. If you are ever questioned about a hiring decision it is imperative that you are able to look back at the notes from every candidate for that position to show why you made the decision that you made, again, based on business need. One word of caution – only write notes that have to do with the business criteria. Do not jot down things that could be construed as discriminatory such as; has three kids, will be ready for retirement in three years, overweight, etc.
- Don’t go it alone. Always have more than one interviewer present during an interview. This will not only protect you in a he-said/she-said situation but can also negate the affects of stereotyping or hiring from your gut. The other person will help to balance you out by giving you another perspective.
- Don’t stereotype. Everyone does it to some extent or another but in an employment decision it can get you in trouble and will not yield you the best employee for the job in the end.
Here’s an example: you are hiring an account supervisor who needs to be available to travel with very little notice. You interview Sue who mentions her six kids during idle chit-chat with the receptionist and you overhear. Next, you interview Bob who is a 20 something bachelor. You assume that Sue might have a hard time picking up at the drop of a hat where Bob will be available whenever you need him. However, the reality is that Sue’s husband is a stay-at-home dad and Bob is responsible for his elderly mother and can not travel overnight.
If a job has a particular requirement such as travel, heavy lifting, long hours, physically challenging environments, or whatever. Make them clear during the interview and ask (every applicant) if they can meet that requirement. When they answer, take them at face value.
Remember, interviewing is not easy. Even the most seasoned of HR professionals makes a bad hiring decision from time to time. However, by taking a systematic approach and using tools such as the job description, structured interview questions, pre-employment tests, and background and reference checks you can increase your chances of a good hire by up to 80%.
September 22, 2008
Top companies realize the affects of employee wellness on their bottom line. This is evident by the billions of dollars spent on wellness initiatives by larger corporations every year.
Think you can’t start a wellness program for your small business? Think again. There are literally hundreds of ways to work on wellness at any budget. Here are just a few ideas to help you get started.
- Spark People – SparkPeople’s mission is to SPARK millions of PEOPLE to reach their goals and lead healthier lives. They offer nutrition, health, and fitness tools, support, and resources that are 100% free! On their site a company can start a “Spark Team” where employees become members. They earn points by reading articles and meeting the health goals that they define for themselves. A small business could easily create some excitement about a program such as this by offering a small prize to employees who earn a certain number of points. Check them out at www.sparkpeople.com.
- Purchase health and wellness magazines to leave in the break room.
- WELCOA.org is another great place to start. They offer numerous resources to get a wellness program started. My favorite is an eight-page monthly publication that costs as little as .29 per issue.
- Walk or Build for Charity – This will not only improve your employee’s health but can also be a great team-builder, marketing event, and will boost employee morale. There are numerous opportunities in every city. Habitat for Humanity is just one. Don’t forget to involve your employee’s family and friends for added work/life balance!!!
- United Way 2-1-1 – I have mentioned this before, but what a great resource! You can now offer your employees assistance in all sorts of areas for free by using this resource. In the Kansas City area check out their site at http://www.unitedwaygkc.org.
September 15, 2008
Five years ago, The Gallup Organization began creating a feedback system for employers that would identify and measure elements of worker engagement most tied to the bottom line–things such as sales growth, productivity and customer loyalty.
After hundreds of focus groups and thousands of interviews with employees in a variety of industries, Gallup came up with the Q12, a 12-question survey that identifies strong feelings of employee engagement. Results from the survey show a strong correlation between high scores and superior job performance. Here are those 12 questions:
• Do you know what is expected of you at work?
• Do you have the materials and equipment you need to do your work right?
• At work, do you have the opportunity to do what you do best every day?
• In the last seven days, have you received recognition or praise for doing good work?
• Does your supervisor, or someone at work, seem to care about you as a person?
• Is there someone at work who encourages your development?
• At work, do your opinions seem to count?
• Does the mission/purpose of your company make you feel your job is important?
• Are your associates (fellow employees) committed to doing quality work?
• Do you have a best friend at work?
• In the last six months, has someone at work talked to you about your progress?
• In the last year, have you had opportunities at work to learn and grow?
Reprinted with permission. Copyright 1992-1999 The Gallup Organization, Princeton, NJ. All rights reserved. Gallup and Q12 are registered trademarks of The Gallup Organization.
As a small business owner or manager, you may be asking yourself how to find the time to keep your employees engaged. It is not as difficult as you might think and may be the most important step to improving your bottom-line.
Here are some easy steps to take.
1. Develop job descriptions for each job. Be sure to work with your employees in development.
2. Use these job descriptions as the basis of a performance evaluation system. By scheduling these every six months you will be sure that your employees continue to focus on their top priorities.
3. Hold weekly staff meetings. They do not need to be long, but this is a great way to ensure that everyone stays up-beat and gets regular praise and direction.
September 2, 2008
If you have employees, you need an employee handbook.
Improve your existing policies
Writing an employee handbook is to your employment policies what writing a business plan is to your business. It is the act itself that can help you improve. Let’s face it, as small business owners we are often so busy that we can neglect our employee issues. When this happens our interactions can become an exercise in putting out fires, rather than acting proactively.
By partnering with an expert, whether your attorney or an HR professional to think through policies that will help your business run more effectively, you are taking the first step to becoming an employer of choice.
Stay out of court
Many times the key to staying out of court is in consistency. Without having clear expectations written down consistency is difficult.
Because some states regard an employee handbook as an employment contract, handbooks can sometimes be a detriment to employers who find themselves in court. However, you can minimize your risk by using precise language and effective disclaimers.
Motivate your employees
Employees are at their best when they know exactly what you expect of them. You can use your employee handbook as a tool not only to lay down the law of the land, but also to let employees know exactly what they are working towards. Add sections about performance appraisals, raises, and promotions to let your employees know what steps to take to get ahead.
When hiring someone new an employee manual can be used to communicate your desired culture and make your company appear more professional. Use the first few sections of your handbook to give a history of your company, your mission and values, and add a welcome letter to let them know who your company is. The first day can set the tone for years of great success.
When rolling out a handbook to existing employees, take it as an opportunity to create excitement. Let them know how much you have grown and plan on growing in the future and be sure to let them know how they have contributed to that growth.
If you google “Employee Handbook” you will find thousands of sites offering inexpensive handbooks that can be downloaded on the spot. However, when you use somebody else’s handbook are you creating your culture? Find a company that will partner with you in writing your handbook to ensure that it represents your company and not someone else’s.
It is unlawful to hold any part of a final paycheck in both Missouri and Kansas. If your employee worked in a state other than Missouri or Kansas check that state’s regs (as well as local regs).
I have many clients who claim that they will deduct monies from final paychecks for things such as cell phones, paid tuition reimbursement under certain circumstances, paid training, etc. However, an employer is not permitted to make these deductions from the final paycheck.
If as an employer, you believe that an employee owes you money for broken or unreturned equipment or any other reason; you must file a claim through the courts to have this money paid.
In addition, laws regulate when a final paycheck must be given to the employee. Here they are for Kansas & Missouri.
|If employee is fired: next scheduled payday.
If employee quits: next scheduled payday. (Kan. Stat. Ann. § 44-315.)
|If employee is fired: immediately. (Mo. Ann. Stat. § 290.110.)|
August 28, 2008
The top three mistakes in dealing with conflict in the workplace.
1. Ignoring the problem
Conflict is a natural and necessary aspect of professional and personal relationships. It is inevitable and, if handled properly, an important part of business and personal growth. As a manager or business owner you may think that you do not have time to deal with every little “spat” in your workplace. However, if you choose to ignore conflicts, you are choosing to ignore an opportunity to make your business better and stronger.
You know the old saying about assumptions. Don’t ever assume that you know what others are thinking and feeling. If you go into a dialogue with a resolution already in mind, you are missing the boat. The key is looking at Needs First – Solutions Later.
3. Jumping to compromise
There are two sisters in a kitchen and only one orange. Both of them want the orange. What could they do? Cut the orange in half, you say??
That’s what they did. One sister went to the juicer and started to squeeze herself a drink, which turned out too small to satisfy. She then threw out the rind. The other sister, with some difficulty, began to grate the rind of her half of the orange to flavor a cake. She then threw out the juicy pulp. They both had only half an orange when, in effect, they could have had the whole orange.
This simple story illustrates the problem with compromise. The goal of resolving a conflict is NOT to compromise. Compromise is a lose-lose scenario. You are looking for a win-win! The key to finding the win-win is in communication. Get the parties together and have them each explain their needs, everyone might be surprised at what they learn.
Be aware, there is no one quick fix to every conflict. The key is to get everyone talking, openly, honestly, and without fear of retribution. As the manager, it is not up to you to resolve the issue, it is up to you to facilitate the dialogue so that the parties involved reach a solution together.
For more information on conflict resolution check out a free, full-length, preview of our Dialogues series.
August 25, 2008
Under the Americans with Disabilities Act, protected individuals are those who suffer from a significant impairment of a major life activity, or who are regarded as or have a record of suffering from such impairment. The question of what constitutes a major life activity has vexed federal courts. In its Williams v. Toyota Mfg. case, the U.S. Supreme Court said that in most cases, major life activities will not involve work, but rather consist of daily life activities, such as walking, speaking, eating, and the ability to care for oneself. Earlier this month, the District of Columbia Court of Appeals concluded that the ability to have sexual relations is also a major life activity.
In Adams v. Rice, the plaintiff was a State Department employee who sought an overseas posting. The State Department declined to allow her to serve overseas in certain countries because she was a breast cancer survivor, and the Department was concerned about the ability to provide follow-up medical care in developing countries. The plaintiff asserted that she was cancer-free, and sued under the Rehabilitation Act (this law applies to federal employers and contractors, and is interpreted the same as the ADA).
The trial court rejected the plaintiff’s claim, finding that she was not a qualified person with a disability as defined under the law. That court concluded that the plaintiff had no current medical issue, was not regarded as disabled by the State Department, and had no record of an impairment because her cancer surgery and recovery involved only several weeks. The D.C. Circuit reversed, concluding that the plaintiff had a record of an impairment of a major life activity.
In drawing this conclusion, the D.C. Circuit pointed to testimony from the plaintiff describing the impact of the surgery and follow-up care on her libido and sex life. She noted a fear of rejection based upon the surgery, as well as the side effects of anti-estrogen medication used as follow-up treatment. The court had no problem classifying sexual activity as a major life activity, even if the purpose of the activity is not related to reproduction. The fact that the employer had no idea of the plaintiff’s sexual impairment at the time it made its decision is irrelevant to the question of coverage under the law.
The above article originally appeared on the Employment Law Alliance site http://www.employmentlawalliance.com/en/node/2406.
Expanded definitions of coverage under the ADA, makes it more important than ever for employers to consult with employment law specialists prior to making employment decisions that involve workers who may or may not be covered. Although an employee may not come right out and say that they are experiencing problems in the sexual arena, there are so many conditions that can have this effect such as depression (even a mild case), hysterectomy, anxiety, stress, high blood pressure or certain medications just to name a few.