ARE YOUR I-9 PROCEDURES CORRECT?

January 30, 2013

ARE YOUR I-9 PROCEDURES CORRECT?

The government has been cracking down over I-9 forms and Immigration Procedures – Here is a checklist to help:

  • Ask each jobseeker whether he/she is authorized to work in the United States. DO NOT ASK ABOUT PLACE OF BIRTH OR NATIONAL ORIGIN.
  • Have each new hire fill out a Form I-9 within three days of starting work.
  • Be sure the documents that confirm identity and authorization to work are included in the lists on the back of the I-9 Form and that they appear genuine. ACCEPT ORIGINALS ONLY.
  • If corrections are needed, attach the corrected I-9 to the previous I-9. Never alter an existing I-9.
  • Store I-9s for current employees in alphabetical order in one place (not in the employee file) and terminated employees in chronological order in a separate place.
  • Keep I-9s on file at least three years for current employees and for at least one year after an employee has left, whichever is longer.
  • If the Social Security Administration issues a “no match” letter, take no action against the employee without first going through the error checking procedures the agency recommends.
  • Train certain staff to handle the I-9 process and let no one else do it.
Conduct an annual I-9 audit. Have this done by a third-party firm or someone not involved in the day-to-day I-9 process.

 

 

– California Employer Daily Newsletter

WHAT ARE THE TOP 9 HR DOCUMENTATION KILLERS?

January 23, 2013

WHAT ARE THE TOP 9 HR DOCUMENTATION KILLERS?

Let’s say that you are being sued by a former employee and now you have to go to court. You aren’t worried, though because you feel that you have documented why you fired the employee and you are sure that once the judge sees your documentation, he or she will agree with you!

Shock of all shocks! Your documentation is not considered good enough and you have to pay the $20,000 judgment against you!

What went wrong? Here are 9 common problems that can torpedo your HR Documentation efforts:

  1. Unsigned or undated documentation. THIS IS THE NUMBER ONE FAILURE IN DOCUMENTATION! My philosophy is – if it isn’t signed, it didn’t happen! Sign and date everything and have the employee dot the same.
  2. Illegibility. In court, neatness counts!
  3. Inaccuracy. The document looks perfect, but the facts are wrong. Even one error makes the entire document suspect.
  4. Unsupported conclusions. Don’t write “the employee was drunk” without documenting the reasons you believe that to be true – for example
    “liquor on breath, slurred speech.” Statements by objective witnesses will shore up your conclusions even more.
  5. Waffling. If the employee isn’t making 200 widgets per hour, do not just write, “Mike’s performance must improve.” The judge will ask, “Improve from what to what?” Be specific
  6. Do not make excuses. Statements such as “You failed – but I know we’ve all been pushing hard lately” may win you a nice guy award, but it won’t win your case.
  7. Don’t lie … even to be nice! Saying someone was let go due to a layoff rather than for cause, if there was cause, can backfire big time in a wrongful termination suit.
  8. Be consistent. If you have written one employee up for an infraction, you must write up every employee who did the same thing. Otherwise, you are open to a charge of discrimination.
  9. Don’t over-or under-focus. Writing up every tiny infraction makes you seem petty. But writing only the job-ending incident makes you appear emotion-driven.
Of course, all of the 9 tips above should be practices not just by you but by everyone in your  organization! That is especially critical if you are in a one-person or very small HR Department since you cannot be watching everyone at once.

 

– California Employer Daily Newsletter

 

WHEN DO YOU HAVE TO PAY FOR NON-EXEMPT EMPLOYEE TRAVEL TIME?

January 16, 2013

WHEN DO YOU HAVE TO PAY FOR  NON-EXEMPT EMPLOYEE TRAVEL TIME?   

Wage and Hour litigation and DOL enforcement remain two of HR’s biggest challenges. Last year alone, the DOL’s Wage and Hour Division received 40,000 complaints, a 15% increase over the previous year.  

The California rules on paying non-exempt employees for travel time can get pretty convoluted! Here are some basics to keep in mind.

Ordinary Travel Time

Ordinary travel time includes any travel the employee does during the workday, from when the employee initially reports to the employer’s premises or the first worksite until the employee finishes work for the day.

If a nonexempt employee normally reports to a main office but is asked on a particular occasion to report to another location, the employee does not need to be paid travel time unless this other location is notably farther from the employee’s home than the employee’s normal commute.

A good rule of thumb is that if there is more than a 20-mile difference in the distances, the employees should be paid for the additional travel time to and from the alternate location.

Extended/Overnight Travel Time

Employers must also pay for non-exempt employees’ extended travel time.

In stark contrast to federal law, California requires that ALL travel time (other than the employee’s normal commute) be paid – regardless of whether the employee performs work during the time spent traveling.

– California Employer Daily Newsletter

JOB DESCRIPTIONS – ESSENTIAL TO THE HIRING PROCESS

January 9, 2013

JOB DESCRIPTIONS – ESSENTIAL TO THE HIRING PROCESS

Well-developed written job descriptions are essential to the hiring process for two reasons:

  1. They assist you in clarifying the skills or traits you expect an applicant to meet
  2. They help you defend yourself in court should you be sued over your hiring decision

In preparing a job description, the first step is to ask yourself why you need someone in that position and how the employee in that position would fit into your company structure or help you reach your goals. The next step is to determine what duties you will need that person to perform.

In making the determination about the job duties, it is important to distinguish between job requirements that are absolutely necessary (known as essential functions) and those job requirements that you would prefer in an ideal world, but that you can do without or could have someone else perform.

Essential job functions must be listed separately, because when considering accommodations under the ADA (Americans with Disabilities Act), they are the functions that the applicant must be able to perform with or without reasonable accommodation.

A common mistake employers make when preparing job descriptions is assuming that the day-to-day responsibilities of the job are adequately addressed by the job title alone. Although the job title may give you a general idea of what tasks an employee in the job might be expected to perform, the title alone does not answer questions about the details of an employee’s job responsibilities within your organization.

For example, in one organization, the HR Manager may do a little bit of everything, while in another organization, the responsibilities may be quite narrow.

Your job descriptions should provide someone who has no personal knowledge of a job with enough information to weed out unsuitable applicants and send only the best-qualified people on for further consideration.

To prepare a good job description, determine the major responsibilities and the percentage of time the employee will spend on each, and the qualifications the applicant must have to be able to perform the essential functions of the job. The job qualification standards must be:

  • Job Related
  • Consistent with business necessity

Qualifications should include: the required education, work experience, physical abilities, mental capacity, skills, licenses or certifications and other requirements such as judgment, ability to work under pressure, or interpersonal skills.

 

– HR Daily Advisor

 

FIVE CRITICAL FACTORS FOR SUCCESS FOR NEW SUPERVISORS

January 3, 2013

FIVE CRITICAL FACTORS FOR SUCCESS FOR NEW SUPERVISORS

New supervisors have a tough transition to make – but if they achieve mastery in five key areas they can be successful.

Contacos-Sawyer and Wright suggest five key factors that determine success or failure for new supervisors: Alignment, planning/problem solving, communication, motivation and compliance.

1)  Alignment – A big mistake new supervisors make is to continue to perform in their old roles. There are two elements to alignment – aligning themselves to their new roles and aligning their department to the organization. The new supervisor must learn to transition from “buddy” to supervisor and must understand the department and the organization’s goals.

2)  Planning/Problem Solving – Supervisors must learn to plan – the work, the schedule and the resources

Planning the Work: What results do you intent to achieve, and what must you do to get those results?

Planning the Schedule: How much time is required for each task and subtask? What needs to happen before something else can happen?

Planning the Resources: How many people, which materials, how much and when?

Problem-Solving Skills: 

  1. Gather information and data to help you understand the problem
  2. Do a Cause-and-Effect
  3. Write a problem statement
  4. Brainstorm Solutions
  5. Select and implement the best solution
  6. Review. Is the problem resolved?
  7. Revise/Rework as necessary

3)  Communication – Communicating down is the most troublesome aspect – new supervisors need to concentrate on:

  • Performance expectations
  • Performance feedback
  • Departmental and organizational goals and objectives
  • Change  

4)  Motivate – The more positive your attitude, the more effective a supervisor you can be.  Use thank you, please, etc.  Hearing praise about a job well done will help to motivate your employees.

5)  Compliance – All supervisors must be trained on discrimination, harassment, and compensation.

    • Supervisors actions and inactions contribute to the level of liability an organization faces
    • Supervisors face potential individuals liability
    • New supervisors often make big mistakes in wage and hour issues
Not documenting performance issues on an ongoing basis is also a big issue for new supervisors.
Remember: New Supervisors must be fully trained and ready to deal with employment issues. They must know how to handle things like compensation and appraisals. You can’t expect them to act appropriately right out of the box but you can and should train them to do it!

 

– California Employer Daily Newsletter

 

WHAT IS HR’S NUMBER ONE GOAL? TO KEEP YOUR COMPANY OUT OF COURT!

December 18, 2012

WHAT IS HR’S NUMBER ONE GOAL? 

TO KEEP YOUR COMPANY OUT OF COURT!

HR Compliance is a major responsibility in every company that has employees. There is a lot riding on HR’s shoulders. Your efforts enable your organization to comply with all legal requirements, thereby avoiding costly lawsuits, audits and penalties.

FIND PROBLEMS BEFORE THE FEDS DO! What should an Audit help you do?

Everyone makes mistakes. An HR Audit helps you:

  • Ensure legal compliance
  • Identify and prioritize opportunities for improvement
  • Identify areas of potential future risks based on current HR staff

WHAT ARE THE PROBLEM AREAS THAT CAN CREATE CONFLICT?

  1. Hiring – Job Descriptions, forms, references, processes
  2. Misclassifications – Exempt vs. Non-Exempt; 1099’s
  3. Inadequate personnel files (Recordkeeping) – Medical and other personal confidential information kept in files despite laws requiring data to be kept separate
  4. Insufficient Documentation – Inadequate disciplinary warnings; incomplete or missing documentation
  5. Unclear employee policies and inconsistent practices- performance appraisals, discipline, evidence and terminations.

 

– California Daily Newsletter

 

ADA ACCOMMODATIONS – WHAT ABOUT CO-WORKERS?

December 12, 2012

 ADA ACCOMMODATIONS – WHAT ABOUT CO-WORKERS?
ADA compliance just seems to get tougher, not easier     

One of the most difficult employee issues surrounding ADA Accommodations is the fact that co-workers believe that another employee who has been given an accommodation is unfairly getting special treatment.  It is always a difficult situation because you cannot discuss the disability or the accommodation with other employees says attorneys Julie K. Athey and Audra K. Hamilton.

Due to the confidentiality requirements of the ADA, you may not be able to assuage other employees’ frustrations.  When co-workers complain, the best answer is to refocus the disgruntled co-worker on their own work and away from issues that are not their concern.  You have to be “a little parental,” say Hamilton.  You might mention that you are complying with all laws and regulations.

Reasonable Accommodations
Employers need to be particularly cognizant of their obligation to initiate the interactive process with mentally disabled employees.  Remember that employees with mental disabilities may not be capable of communicating a desire for an accommodation.

If you are aware of the disability, and that the employee is having trouble because of it, you should start exploring possible options.  Given the wide variety of mental disorders, it is impossible to list all possible accommodations, but the EEOC includes the following as possibilities:

  • Room dividers, partitions, or other soundproofing or visual barriers between workspaces to accommodate individuals who have disability-related limitations in concentration
  • Moving an individual away from noisy machinery or reducing other workplace noise for people who have difficulty concentrating
  • Modification of strict workplace policies that aren’t essential
  • Providing more detailed analysis for employees with comprehension problems
  • Providing a job coach
Handling Problems in Conduct
Employers are not required to lower standards of conduct for employees with mental disabilities.  We are allowed to enforce certain conduct rules as long as they are job-related and consistent with business necessity.  An employee with a mental impairment is not entitled to get away with misconduct that may be caused by the disability such as stealing, threatening other employees, violence, harassment, profanity, destruction of property and so on.

 

– California Employer Daily Newsletter

A COMMON MISTAKE IN DRAFTING JOB DESCRIPTIONS

December 4, 2012
Well-developed written job descriptions are essential to the hiring process for two reasons, says attorney Susan Fahey Desmond:    
  • They assist companies in clarifying the skills or traits you expect an applicant to meet.
  • They help companies defend themselves in court should you be sued over your hiring decisions.

Desmond is a partner at Jackson Lewis, LLP and she states:  “In preparing a job description, ask why you need someone in this position and how the employee in that job would fit into your company structure or with your goals.”  You then should determine which duties you will need that person to perform.

In making this determination, it is important to distinguish between job requirements that are absolutely necessary (also known as essential functions) and those job requirements that you would prefer in an ideal world, but that you can do without or could have someone else perform.

Essential job functions must be listed separately because when considering accommodations under the federal Americans with Disabilities Act and the state Fair Employment and Housing Act, they are the functions that the applicant must be able to perform with or without reasonable accommodation.    

ONE COMMON MISTAKE
The common mistake employers make when preparing a job description is assuming that the day-to-day responsibilities of the job are adequately addressed by the job title alone.  Although the job title may give you a general idea of which tasks an employee in the job might be expected to perform, the title alone just doesn’t answer questions about the details of an individual’s responsibilities within your organization.

For example:  In one organization, the HR manager may do a little of everything for the organization, while in another the responsibilities may be quite narrow.

Your job descriptions should provide an interviewer who has no personal knowledge of a job with enough information to weed out unsuitable applicants and send only the best qualified people on for further consideration.

In preparing a good job description, take a survey of others who have done the job before or observe someone who is performing the job.  Determine which qualifications the applicant must have to be able to perform the essential functions of the job.  These qualification standards must be job-related and consistent with business necessity.

Qualifications should include the required education, work experience, physical abilities, mental capacity, skills, licenses or certifications and other requirements such as judgment, ability to work under pressure, or interpersonal skills.

– California Employer Daily Newsletter

AUDITING YOUR HR FUNCTIONS

January 18, 2012

Evaluate Your Practices and Policies with an Independent Review

There are different types of HR Audits.  Some companies conduct an internal audit, a compliance audit that focuses on relevant regulatory requirements, and a processes and practices audit.

External expertise is crucial to the success of the audit.  HR auditors are well-versed on compliance requirements, risks and current best practices.  Obtaining the results of your HR audit will give you factual information about where you are and where you could be.  The company can then transform information into action, creating specific action plans and designing longer-term plans for continuous improvement.

For some employers, there might be a “Risk Mitigation” Audit performed.  This usually is triggered by a specific compliance violation or another major problem related to the violation of an HR rule or principle.  This type of audit is designed to ensure that existing policies and procedures are effective and are being followed.

These are the types of audit services that can be performed:

  • Compliance Audit – covers federal and state regulations that impact recordkeeping, reporting and HR program administration.
  • I-9 Audit – reviews active I-9 forms, terminated I-9 forms or both
  • HR Program or function audits – covers a review of any individual HR-related functional area (i.e. recruitment function)
  • Full HR Audit – covers a review and evaluation of areas noted above as well as an audit of all other HR functional areas, including staffing and recruitment, job analysis and job descriptions, compensation and benefits programs, performance management, training and development, employee relations and policies and HR metrics.

With a small or single-person HR department it isn’t easy to stay abreast of ever-changing regulatory compliance and human resources best practices. Audits bring HR expertise into the picture and can jump-start needed discussions and process changes for small companies. Larger companies may opt for a more comprehensive audit initially before refining subsequent audits to focus on more specific areas.

Payroll frequently represents a major component of HR audits because it represents the single largest expense in many organizations. One would be amazed at how many times we find issues with people inappropriately taking money through payroll.

The specific steps of an HR audit are set forth by the Society for Human Resource Management:

  1. Determine the scope and type of audit
  2. Develop the audit questionnaire
  3. Collect the data
  4. Benchmark the findings
  5. Provide feedback about the results
  6. Create action plans
  7. Foster a climate of continuous improvement.

By knowing what to expect and being open to change, an HR audit can assist any size organization become better prepared to deal with the ever-changing laws and best practices that might come their way each year.

    HR Magazine

WAGE AND HOUR HOT SPOTS FOR 2012

January 11, 2012

WHAT’S IN STORE AS WE BEGIN 2012?

Look for the DOL (Department of Labor) Wage and Hour Division to be even more aggressive in 2012! Where you used to receive a letter, then a phone call, and then an investigator, now you will get more than one approach at the same time.

Stacie Caraway, of Miller & Marin states that one of her clients is getting daily aggressive phone calls!

Where you used to be able to Self-Audit, the DOL will now insist that the investigator make back pay determinations.  Where you could typically resolve complaints with full back pay, the DOL will now likely want to assess civil penalties and those dollars go back to the Wage and Hour Division to fund more investigations.

The DOL is also increasingly teaming up with other agencies – state agencies, workers’ comp, unemployment and tax agencies, all of whom have an interest in failure to pay or underpayment of employees.

Another attorney, Charles Plumb of Macaffey and Taft says we can also expect:

  • More aggressive action by all agencies
  • More sharing of information between agencies
  • Aggressive investigators that want to see every piece of paper
  • Increased scrutiny of wage and hour settlement agreements
  • The adding of state law claims to many federal claims
  • Continued emphasis on independent contractors
  • Increased activity from an increasingly more sophisticated and knowledgeable workforce.
  • No end in sight in wage and hour litigation – the availability of attorneys’ fees makes this area a lucrative one.

With all of these changes either in place or on the horizon, it is crucial for you to get up-to-date on the latest employment law developments so you can keep your organization in compliance and avoid costly legal entanglements.

 

ADAPTED FROM HR DAILY ADVISOR

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