As the Equal Employment Opportunity Commission (EEOC) nears the end of their fiscal year, August press releases reveal a high number of disability and pregnancy discrimination issues. Of the 18 EEOC sue and settlement press releases made so far this month, more than half include charges of discriminating on the basis of either pregnancy or disability, an increase from July. But why? While blatant acts of discrimination are somewhat rare, is it possible for a company to have well-intended practices with harmful and even discriminating impacts? Taking a deeper look into the EEOC’s shared findings will likely have most companies taking a tough look in the mirror.
Is a request for a leave of absence actually a request for accommodation?
When most employers think of a medical leave, they think of the Family Medical Leave Act (FMLA). Signed into law in 1993, FMLA generally requires employers with 50+ employees to provide 12 weeks of unpaid, job-protected leave to “eligible” employees for qualified medical and family reasons. So, if a company has less than 50 employees, or an employee fails to meet eligibility criteria, the company is not obligated to grant the employee leave, right? In short – no. In a 2016 publication, the EEOC (the agency tasked with enforcing Title I of the American with Disabilities Act, ADA) describes reasonable accommodation as “any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities”. The publication is clear – an employer can be obligated to provide leave as part of an accommodation even where leave is not available. Ultimately, the determining factor will be whether or not offering a leave of absence would cause undue hardship to the company. But what constitutes as undue hardship? Much like accommodation needs may vary by person, undue hardship will likely vary by company. So, when Dependable Health Services, a healthcare staffing agency, denied an employee’s request to be reassigned to another department due to her pregnancy complications related to sickle-cell anemia, later terminating her employment one day prior to her scheduled return from maternity leave to “back-fill” her position, the EEOC challenged the undue hardship exception. On a much larger scale, the EEOC also challenged the undue hardship experienced by multi-billion dollar department store, Macy’s, when it chose to terminate an 8-year employee rather than excuse a one-day absence she requested to tend to a medical condition (asthma). Lesson here – if your company is covered by the ADA, get familiar on how to have an effective accommodation discussion. Just because you do not offer a formal leave of absence, it does not necessarily mean you cannot offer (or be obligated to offer) a leave of absence as part of an accommodation. Undue hardship will need to be assessed, keeping in mind a company’s definition of undue hardship may differ from that of the EEOC.
When an employee exceeds the amount of leave available, should the employer should terminate the employee in accordance with company policy?
Ask an HR person or labor attorney why having company policies or a handbook is important and you’ll most likely get a similar response – to protect the rights of workers and company interests. Policies ensure fair and consistent expectations within an organization. But as with most things, a policy is only as good as the reasoning behind it. Not to suggest the adage, rules are made to be broken, company policies DO need ongoing review to remain relevant. This is especially clear in cases where rigid policies or doing something a certain way “because it’s always been done this way”, is getting in the way of effective accommodation discussions. In a recent settlement with Sensient Natural Ingredients, LLC, the EEOC announced Sensient will pay $800,000 as part of a consent decree. The settlement stems from a 2015 lawsuit in which the EEOC claimed Sensient violated the ADA by discharging employees for exceeding the company’s restrictive leave policy and refusing to allow employees to return following disability-related absences. Lowe’s too signed into a consent decree with the EEOC in an $8.6M settlement due to a pattern of systematically terminating employees regarded as disabled who exhausted a 180-day (later revised to a 240-day) leave policy without providing reasonable accommodation. Perhaps this was best demonstrated in the EEOC’s notorious 2011 disability settlement with Verizon for $20M. The settlement stemmed from Verizon’s “no fault” attendance policy, issuing disciplinary action (including dismissal) to employees with absence violations based on certain thresholds, without consideration of accommodation. While the EEOC publicly makes no mention of the intent behind policies and practices for these companies, EEOC Chair, Jacqueline A. Berrien’s response to the Verizon settlement warns, “…an inflexible leave policy may deny workers with disabilities a reasonable accommodation to which they’re entitled by law – with devastating effects.” Lesson here – give thought to the intention behind company policies on an ongoing basis. Applying rules too broadly or rigidly without thought, while ensuring consistency, may do so at a far greater expense to the company and its employees. A company’s success is built on the success of its employees. When a company refuses to even hear from employees what they need to be successful, failure is unavoidable and where accommodations go unheard, EEOC charges await.
Tips for a valuable accommodations discussion:
- Educate first-line managers on the signs that an accommodation discussion is needed. A company may have a request form available with HR, but this is often not how accommodations discussions surface. Is an employee struggling to meet performance or attendance expectations? Often the employee and first-line manager are the most knowledgeable as to “why”. If the “why” has anything to do with medical reasons for the employee or employee’s family or dependents – they should know this is a sign to engage HR or someone more familiar with accommodation discussions.
- “What do you need to be successful here?” – make this question a part of your company’s culture. Where needed, outline expectations and then ask what someone needs to meet those expectations. This question is not only key to a successful accommodations discussion, but a question key to supporting any employee in their goals.
- Give genuine consideration to requests. Although some requests may in-fact cause undue hardship to an employer, consider the request before responding. Research what it would take to grant the accommodation. Tap internal resources, careful not to share confidential information where inappropriate. This accommodation process is indeed, a PROCESS.
- Deliver the decision to the employee in person (by phone if face-to-face is not an option), followed up with appropriate documentation.
- Encourage the employee to keep lines of communication open. Often accommodations can change as can the needs of a job. The employee should feel empowered to initiate these discussions with appropriate parties (management, HR, etc) should needs change in the future. Encourage employees to be proactive in this process, owning their success. Ultimately, an employee’s willingness to engage in and initiate these discussions will depend heavily on their initial experience. Both the employee and the company have a shared interest in making the process valuable.
Need help in creating an environment that fosters valuable, effective conversations? Contact us today!
Objective. Genuine. Thorough. The three keys to a successful workplace investigation. Granted, consequences of today’s Senate Intelligence Committee Hearing extend beyond those directly involved but also the security of a nation. But from a business perspective – Comey is a former employee, the government an employer, Trump a top executive, and the Senate Intelligence Committee HR in this serves as the “investigation”. How do you rate it?
It’s fair to say that no one looks forward to a workplace investigation. When handled correctly though, a well-done investigation helps to maintain the ethical integrity of an employer and its people, identifies areas where improvement is needed, and ensures everyone plays an active part guarding and creating their workplace culture. But when tensions are high – as they usually are when an investigation is underway, how are investigations to be handled? Here are some tips.
Investigate without bias.
Investigations usually fall to the company’s HR professional. But what happens if you do not have an HR person? Or, what if your company’s HR person is involved in the investigation? Should an HR professional be tasked with investigating his/her own boss? In such cases, look outside the organization for someone to conduct the investigation on the company’s behalf. An example being Uber’s relatively recent decision to hire former U.S. Attorney General, Eric Holder, to investigate allegations of discrimination and sexual harassment (which has already led to several changes). Often attorneys and HR consultants can assist in these investigations. Sign them to a non-disclosure and confidentiality agreement, ensuring findings remain confidential. While this may not protect a company from legal claims made by employees (active or former), it minimizes risk of an outsider person having loose lips. Additionally, hiring a person or firm to conduct an investigation suggests the company is making a good faith effort to maintain a fair and ethical culture, which can help should a formal legal matter later surface.
Seek truth, not agendas.
Unfortunately issues prompting an investigation are the result of a culmination of pitfalls. Often the issue could’ve been addressed or prevented altogether early on by better communication, transparency, accessibility, or even policy. Investigations can be painful for companies perhaps even more so for good-intended ones. It is important therefore, to keep in mind that investigations are part of the process in becoming a better company. Best to uncover an issue sooner versus later as problems often perpetuate over time. Do not censor investigation results for fear they will expose the company is imperfect. Be genuine in resolving issues and improving a company’s culture over all else. A good company can endure valuable criticism. A good investigator is an honest one. An investigation that instead seeks to vilify a scapegoat in hopes of allowing a company to save face ultimately serves no one, for long.
It ain’t over, ‘til it’s over.
The only thing worse than a workplace investigation is revisiting a workplace investigation. Buckle down, complete it, follow-up with all involved, and document it. While it is rare that post-investigation conversations are full of sunshine and rainbows, even bad news is better than the assumptions typically made accusers, or the accused. Investigate every aspect possible. Thorough investigations are often time consuming and yes, unpleasant. As mentioned previously however, issues prompting an investigation are likely due to a multitude of mishaps, oversights, and miscommunication. Botched investigations may be viewed as willful or retaliatory. Do not let your investigation be another symptom of company growing pangs. It may be the most costly one of all.
Need help with conducting your workplace investigation? Contact us today.
Are your independent contractors actually employees? Guidance from the IRS and DOL.
The IRS focuses on the following three “common law rules” to distinguish independent contractors (IC) from employees:
- Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?
- Financial: Are the business aspects of the worker’s job controlled by the payer? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.)
- Type of Relationship: Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?
The Department of Labor (DOL) Wage and Hour Division (WHD) provides a bit more guidance to employers with the following six factors. Important to note the DOL also states that “no one set factors is exclusive”, depending on a “number of economic realities”:
- The extent to which the work performed is an integral part of the employer’s business.
- Whether the worker’s managerial skills affect his or her opportunity for profit and loss.
- The relative investments in facilities and equipment by the worker and the employer.
- The worker’s skill and initiative.
- The permanency of the worker’s relationship with the employer.
- The nature and degree of control by the employer.
A DOL commissioned survey suggests 10 to 30 percent of businesses misclassify employees as Independent Contractors, resulting in a number of individuals without employee benefits or protections. The WHD has called this issue “one of the most serious workplace issues within the US”. As a solution, the IRS and WHD teamed up to form the DOL Misclassification Initiative. To date, 37 state agencies have signed a Memorandum of Understanding to both share information and enforce issues related to misclassification.
Has your state signed an agreement with the IRS? Access the interactive map here. Need help making sure your employees and Independent Contractors are correctly classified? Contact a Culture Engineer today by clicking here! Also, stay up-to-date with workplace topics and tips by following us on Twitter @Culture_Ngineer.
According to a report by the Learning Policy Institute, four leading factors, contributing to a national teacher shortage are: 1) a decline in teacher preparation enrollments, 2) district efforts to return to pre-recession pupil-teacher ratios, 3) increasing student enrollment, and 4) high teacher attrition. While often labor shortages can be temporary, reflective of a change to an industry or economy, this four-part combination, consisting of issues in attracting new teachers as well as retaining existing teachers suggests more of a failing culture of an entire profession. Even be more alarming? How school districts are responding to the shortage when compared to other industries faced with this same challenge.
Education is not the only industry experiencing a labor shortage. Various news sources suggest that the US is suffering from labor shortages in skilled laborers, truckers, manufacturing, landscaping, and even hospitality. It is however perhaps the industry with the slowest reaction. Though reasons for each shortage may vary, it’s important companies within each affected industry look to focus recruiting and retention strategies around these driving forces. When faced with staffing challenges employers are forced to innovate and again give attention to their most valuable asset – their people. So, as dealerships shift their recruiting efforts to technical schools, or companies incorporate profit sharing incentives into skilled laborer compensation packages, it seems very little has changed in recruiting or retaining teachers. Below are two of the most common “people strategies” implemented in a time where competing for talent is fierce. Are schools in your community competing for talent?
Perhaps the most powerful strategy given the role social media plays in society – social media, when used wisely, can be helpful in both attracting and retaining talent. Monster.com provides a brief case study of Sodexo, a company committed to helping corporate clients improve performance and promote well-being through a variety of life service offerings, who after incorporating social media in their recruiting efforts saw a 25% increase in candidates. In a separate Monster.com article, social media is labeled a “virtual water cooler”, a powerful tool when shaping a workplace culture with intention. Although navigating the world of social media within the workplace may be tricky – particularly for the public sector – is it a risk worth trying? With growing student enrollment, high attrition, and low recruitment, shortages are predicted to grow to 112,000 by 2018. By monitoring social media accounts and implementing a healthy social media policy, could school districts create a brand worth following?
Know your team.
What drives your teachers to teach? As any manager or supervisor should be able to answer this simple yet important question about the people that report to them – a Principal or Superintendent should be able to answer this same question regarding their teachers. Whether through a survey or one-on-one conversation, knowing your team is key. If you can’t answer this question about the team you represent, make it a point to ask the question next meeting. The asking is the most important part. Recognizing and respecting their answer is an extremely close second. The answer they provide, keeping in mind that it may change over time, is the key to keeping them engaged….and whether the private sector or public sector, engaged employees are critical to success. According to Gallup’s State of the American Workplace report, engaged employees have 41% lower absenteeism, 24% lower turnover, and 17% higher productivity – all extremely beneficial when workload is high but headcount is low.
So, while many discussions focus on better pay and benefits – also important aspects to consider when examining a labor crisis such as that of teachers – consider what the schools are doing in your community now regarding these two solutions that can be done for minimal cost. They are solutions well-tested in the private sector, helping to distinguish the ideas of tomorrow from the antiquated traditions of the past. Cinematographer, Conrad Hall said, “You are always a student, never a master. You have to keep moving forward.” Can the lessons in human capital learned from business be key to advancing education forward?Contact a Culture Engineer
On November 18th, 2016, Arizona’s Fair Wages and Healthy Families Act (Prop 206), passed with high voter approval increasing both minimum wage and mandated paid sick leave for Arizona employers. While the minimum wage increase has been in effect since January 1st, the paid sick time portion of the mandate takes effect July 1st. Generally, a state without severe weather, this new paid sick time standard is likely to rock Arizona employers like a hurricane largely due to the lack of attention received as most headlines focused on the minimum wage impact to employers. Unfortunately, silence appears to have left many employers being unaware of the paid sick time portion or feeling they are unaffected. Here are the top 5 myths we have found, leaving employers ill-prepared for the July 1st change.
Myth #1 – The Fair Wages and Healthy Families Act doesn’t apply to companies with fewer than 15 employees.
Perhaps the most common myth we’ve uncovered, unlike other similar labor laws and protections, the Fair Wages and Healthy Families Act does not have a small business exemption. Under the Act, “employer” is defined as any corporation, proprietorship, partnership, joint venture, limited liability company, trust, association, political subdivision of the state, individual or other entity acting directly or indirectly in the interest of an employer in relation to an employee, but does not include the state of Arizona, the United States. Therefore, the new law applies whether the company has one employee or 1,000 employees. The only aspect that differs based on number of employees is the minimum cap of either 40 hours of paid sick time for employers with 15+ employees and 24 hours of paid sick time to employers with less than 15 employees.
Myth #2 – Only full-time employees are entitled to paid sick time under the Fair Wages and Healthy Families Act.
Employees, full-time and part-time alike, are to accrue one hour of sick time for every 30 hours worked. While many larger employers likely have some sort of time off or better yet, sick time benefit and policy, it’s possible that it speaks to only full-time employees. This change then forcing even larger, more prominent Arizona employers to revise their policies and practices around paid sick time.
Myth #3 – Seasonal and/or temporary employees are not eligible to accrue paid sick time.
Employees are to accrue paid sick time upon hire or July 1st, 2017, whichever is later – period. Employers can however, implement a 90-day waiting period before allowing employees to use their accrued sick time. So, it is possible to hire a seasonal or temporary employee for a 90-day period in which he/she will accrue paid sick time but will not meet the eligibility requirement to use it, so long as the duration of employment does not exceed 90 days, required by your sick time policy. If an employee leaves the company and is rehired within nine months from separation, the employee is entitled to any previously accrued, unused paid sick time immediately upon rehire. In summary, if employment exceeds 90 days or the employee should be rehired within nine months of separating, the employee, regardless of whether or not he/she is working in a temporary or seasonal capacity, becomes eligible to use accrued paid sick time.
Myth #4 – Straight commission employees are not entitled to paid sick time.
Here’s where things get tricky as Prop 206 does not clearly address the issue of calculating paid sick time rates for those with variable pay (due to commissions or “piecework” type pay systems). Instead, employers should look to the enforcing agency, the Industrial Commission of Arizona which encourages employers, in the absence of guidance, to calculate an average hourly rate using time worked and compensation earned in the previous 90 days. Needless to say, payroll processors can anticipate a frustrating first few payroll runs following July 1st in calculating sick time payouts for unique pay structures.
Myth #5 – Companies with PTO accruals that exceed 40 hours/year do not need to be reviewed.
Aside from the financial and administrative burdens associated with the changes brought by the Fair Wages and Healthy Families Act, there are also legal challenges, particularly for small employers. Employers with less than 15 employees are likely unfamiliar with handling retaliation, and discrimination claims or reasonable accommodation discussions. This law allows for employees to use paid sick time for a variety of reasons, beyond what many may associate with the notion of sick time, forcing some potentially risky conversations to take place between employees and untrained managers. Acceptable reasons for an employee to use accrued sick time as outlined in the Act include:
- An employee’s mental or physical illness, injury or health condition; an employee’s need for medical diagnosis, care, or treatment of a mental or physical illness, injury or health condition; an employee’s need for preventive medical care;
- Care of a family member with a mental or physical illness, injury or health condition; care of a family member who needs medical diagnosis, care, or treatment of a mental or physical illness, injury or health condition; care of a family member who needs preventive medical care;
- Closure of the employee’s place of business by order of a public official due to a public health emergency or an employee’s need to care for a child whose school or place of care has been closed by order of a public official due to a public health emergency, or care for oneself or a family member when it has been determined by the health authorities having jurisdiction or by a health care provider that the employee’s or family member’s presence in the community may jeopardize the health of others because of his or her exposure to a communicable disease, whether or not the employee or family member has actually contracted the communicable disease; or
- To relocate or seek legal or medical services for the employee or family member who was subject to domestic violence, sexual violence, abuse or stalking.
So, when your employee calls out, do you ask for a reason? If your policy is to avoid questioning absences because you have a PTO policy (and do not designate sick from vacation time), have you inadvertently given way for the employee to use the entire PTO balance to cover incremental unplanned absences? Can coming in late, leaving early, and any schedule deviations then become unmanageable. This is especially important as this Act also protects activities related to paid sick time in a way similar to the Family Medical Leave Act.
The Act does allow an employer to require reasonable documentation for absences of three or more consecutive days; however, “reasonable” as outlined in the Act is broad. Attempts by the employer to challenge documentation should be done so with extreme caution given protections in using sick time. Furthermore, employees are to be made aware of this change – informed of how much time they have accrued and used with each pay period.
With far reaching impact, particularly for small-to-medium sized Arizona companies, it’s important businesses start taking note now as July 1st is quickly approaching. Like most things, waiting until the deadline will only allow for more expensive and less effective solutions. Take the time to review the changes or engage a local expert to help guide your company with the Fair Wages and Healthy Families Act. Labeled by supporters as a substantial step in ensuring Arizonans can “take care of their families without risking their jobs”, we now need to ensure companies are taking care of their employees without risking their ability to succeed.
Why do you offer breaks to your employees? Is it good for morale? Does it help ensure better quality? Well, for 21 states, if you’re a company operating in the private sector – it may be because it’s required.
Private sector employers in California, Colorado, Connecticut, Delaware, Illinois, Kentucky, Maine, Maryland, Massachusetts, Minnesota, Nebraska, Nevada, New Hampshire, New York, North Dakota, Oregon, Rhode Island, Tennessee, Vermont, Washington, and West Virginia have minimum requirements for meal and/or break periods. While a company may choose to go above and beyond the minimum, the following is important for all employers to make note of, regardless of state requirements:
Track time worked by hourly employees
The actual time “worked” by an employee is a very valuable piece of information as it is used for a variety of calculations and reports. Internally, this figure can be used to determine productivity and efficiency, employee benefit eligibility, leave entitlement, and calculating overtime for payroll purposes. More broadly, this figure is reported in annual OSHA 300(A) logs, and may even be what makes or breaks a company’s worker’s comp rates (as rates take into account payroll dollars). Should the company for any reason be subjected to an audit, employers can most certainly expect to be questioned about “time worked” – given the impact this figure has on a company, and its employees. So, aside from being able to track and comply with break period requirements, an accurate “time worked” figure for hourly employees will be beneficial, legally and financially.
Consider breaks as part of an accommodation
What if an employee is taking more frequent or longer breaks than permitted? Is this a behavioral issue? Should you warn the employee or perhaps dismiss them altogether? Before moving too quickly to judgement, discuss (and of course document) a conversation with the employee. What is his/her reason for deviating from break policies? If it’s due to a medical condition or medical needs of the employee, be prepared for an accommodation discussion. A request for accommodation is not always an obvious or formal interaction. As with most expectation conversations – it’s best to first have a discussion with the employee to understand the reasons behind issues around behavior or performance. A simple accommodation such as an additional or extended break may be a worthwhile step in retaining an exceptional employee as well as avoiding unnecessary, public, legal issues.
Don’t overlook employee morale
What does your policy around breaks say about your company? Does it suggest a company that is concerned about its employees and their well-being? Or, does it suggest a company that offers only what it must? Company culture is not something that is created in a mission statement or on a company website, but collectively by policies, practices, priorities – put together and/or upheld by the company’s leadership. Let your policies reflect the priorities of the company while taking into consideration minimum requirements. Then consider, “is the minimum enough for us”?
Requirements for the 21 states listed above may be found on the US Department of Labor Wage & Hour website. Be sure your policies and practices around breaks and rest period are compliant today.Contact a Culture Engineer
- Amazing travel benefits for you and your family (although you may want to hold off on booking that trip to China for a while)
- Great work-life balance
- As an employee, your travel is PRIORITY – more important than even purchased customer travel
- Opportunity to serve as an authority on fashion when it comes to boarding flights (your ability to pass judgment is not limited to adults – teenager attire may also be subject to your personal views)
- Running late for your next shift OR you need to catch a return-flight home? Don’t worry! The company will aggressively and proudly drag even an elderly, paying customer from a seat so that you can fly comfortably without delay. A policy supported by the CEO (for a while at least).
- Contribute to technology that may change modern society’s manner of daily travel
- Work alongside some of the greatest minds in tech
- Receive unwanted sexual advances by your manager…on your first day (Don’t worry though….HR only tolerates it because he is a great performer. If he was a bad performer…he’d be out.
- Advance self-driving technology without stress or accountability since it’s technology claimed to have been stolen by Google anyway
Good news – both companies are hiring and will probably be looking for PR and HR professionals for quite some time. For employees working with well-known brands – not all press is good press. Look to leverage your company’s brand with employees in positive times and address challenging public blunders as you would with customers. When it comes to the product of “employment”, employees are perhaps the most valuable of consumers. What are you doing to market to your employees?Contact a Culture Engineer
Late yesterday, the Arizona Supreme Court ruled to uphold the previously challenged Prop 206, a law passed by Arizona voters in November 2016 that raises state minimum wage to $10 in 2017 and incrementally to $12 by 2020, as well as requires mandatory sick time to be paid by Arizona employers.
While the minimum wage aspect of Prop 206 has received a majority of the attention in debates, has the significance of the paid sick time burden which impacts small and large Arizona employers (yes, even those with less than 15 employees) been overshadowed? The paid sick time component comes with not only a financial impact to businesses (as historically Arizona has been silent regarding paid time off), but also implied protections to employees utilizing their new leave benefits, posting requirements, and a hefty administrative burden for smaller employers especially who may be unprepared or even in-the-dark on the change. With yesterday’s ruling however it is clear, whether a small or large Arizona employer – now is the time to start reviewing your time off policies to ensure your business will not learn the hard way.
Gallup’s recently released State of the American Workplace report shows that more than 51% of employees are searching for a new job. Assuming most companies are not excited about turning over 51% of its workforce – it’s important to consider what employees value in a job and company. Gallup’s same report asked employees to rate the importance of various company/job attributes.
60% of surveyed employees say doing what they do best is “very important” to them. Not too surprising when you given some of us spend more time working than we are with our own family and friends. Who then wants to spend the majority of his/her life feeling insignificant? Tip: Find ways to leverage your employee’s strengths in the workplace.
53% of employees state a healthy work-life balance is “very important”. Do you encourage your employees to use their time off benefits? Do you expect them to be available 24/7? Tip: Start recognizing those working effectively versus round-the-clock?
While incorporating these topics likely requires changing up traditional coaching conversations the question becomes – will you start discussing this with your current employees – or the 51% of new employees who you hire to replace them?Contact a Culture Engineer