Archive for September, 2010


Thursday, September 30th, 2010

By Robin E. Shea, Attorney, Constangy, Brooks & Smith, LLP

The U.S. Department of Labor is planning to impose new “affirmative action” requirements on employers, requiring them to develop “plans” to address workplace safety, equal employment opportunity, and wage and hour/employee classification issues.

For the most part, these requirements – called “Plan/Prevent/Protect” – will not be limited to federal contractors but will apply to all employers covered by the relevant laws.

The proposed changes are dramatic, and shift from what the DOL calls “catch me if you can” (in other words, employer is presumed compliant unless the government is given reason to believe otherwise) to “Plan/Prevent/Protect” (in other words, employer is presumed guilty unless it can prove otherwise). “[E]mployers and other regulated entities will be asked to assemble plans, create processes, and designate people charged with achieving compliance,” says the DOL, and “compliance will be non-negotiable . . . .” (Emphasis added.)

Here are the basic guidelines of “Plan/Prevent/Protect”:

The “Plan” component will require employers to enlist employees in “identifying and remediating risks of legal violations and other risks to workers.” The plans must be made available to the workers “so they can fully understand them and help to monitor their implementation.”

The “Prevent” component will require employers to “thoroughly and completely implement the plan in a manner that prevents legal violations. . . . The employer . . . cannot draft a plan and then put it on a shelf. The plan must be fully implemented . . . .”

The “Protect” component will require employers to ensure “that the plan’s objectives are met on a regular basis. Just any plan will not do. The plan must actually protect workers from violations of their workplace rights.”

In the context of compliance with the Fair Labor Standards Act, Plan/Prevent/Protect will require that employers provide information to employees about how their pay is calculated, and prepare a “classification analysis” with respect to any job that it treats as FLSA-exempt. Of course, the analysis will have to be made available to the employees and the government.

The DOL will issue proposed regulations on Plan/Prevent/Protect at some point in the future.

Robin Shea will be a presenter at CAI’s Triad Employment Law Update on Wednesday, Nov. 3, 2010 at the Koury Center in Greensboro, N.C. For additional information on the conference, visit

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Take Note of Regulations Requiring Free Preventive Care

Tuesday, September 28th, 2010

Effective Sept. 23, new private health plans must provide recommended preventive care services without cost-sharing such as co-pays or deductibles. The U.S. Departments of Health and Human Services, Labor and the Treasury jointly issued these regulations in July.

The new regulations put covered services into four groups:

  • Recommendations made by the U.S. Preventive Services Task Force with a grade of “A” or “B.” Here is a list of the “A” and “B” graded services.
  • Recommendations of the Advisory Committee on Immunization Practices that have been adopted by the Centers for Disease Control and Prevention. That list can be found here.
  • Recommendations by the Health Resources and Services Administration for preventive care and screenings for children.
  • Recommendations by the Health Resources and Services Administration for preventive care and screenings for women.

People who keep their existing individual or group plans will not be entitled to the free services unless the plans make substantive changes from Sept. 23 onward. More about its effects on “grandfathered” plans can be found at

More details on the regulations can be found at For additional information, please call a member of CAI’s Advice and Counsel team at (919) 878-9222 or (336) 668-7746.

Photo Source: U.S. Department of Defense

Job Satisfaction: What Matters Most to Employees?

Thursday, September 23rd, 2010

Job security was rated by employees as the most important factor contributing to job satisfaction in the annual Job Satisfaction Survey conducted by The Society for Human Resource Management (SHRM).  Benefits and the ability to use skills and abilities on the job ranked second and third.

The survey, conducted in January 2010 and released on June 27, asked employees and HR professionals in the United States about contributors to job satisfaction.  Most interesting in the survey results is the difference between what employees see as most important and what HR professionals think employees see as most important:

  • HR professionals expected the relationship with the supervisor to be first.  Relationships with the supervisor was not even in the top six of employee selections.
  • Employees ranked the work itself as fourth, while HR professionals perceived it would be much further down the list (13th).

Key learning points from the survey are that employers should:

  • Emphasize effective communication with employees
  • Look at employees’ skills and abilities and find ways to use them in the organization for mutual benefit
  • Utilize employee feedback and knowledge to develop short- and long-term goals that contribute to the organization’s strategic plan

While this survey provides interesting data, it may not be representative of what your employees think.  Breakdowns of the data by age and sex revealed differences in what employees ranked as most important to job satisfaction.  A survey of your employee population may yield totally different results.

As the SHRM survey revealed, perceptions of what is important to employees may be very different from reality.  CAI’s Employee Opinion Surveys can help you determine what is most important to your workforce.  To assess your employee satisfaction and engagement, as well as organizational climate, contact Molly Hegeman at (919) 878-9222 or  You can also visit our Employee Opinion Surveys Web page.

Photo Source: Y’s Photostream

Seven HR No-Nos to Avoid

Tuesday, September 21st, 2010

If you have an HR department or are in the process of starting one, there are certain steps that must be in place for it – and by extension your organization – to succeed. Here are seven actions that if not taken can have serious negative consequences for your HR efforts and thus prompt problems in your office.

1.     Keep confidential information confidential. Once an employee or manager learns that something private they have told the HR department has been leaked, the department’s effectiveness has been compromised. The department will be viewed as untrustworthy thereafter by the staff unless major adjustments occur.

2.     Document everything. Everything from the initial interview with a candidate to the termination of an employee should be listed and kept on file, especially in order to prove allegations of employee performance problems, violation and complaints in court if needed.

3.     Create an employee handbook and update it as frequently as needed. With everyone having the same rules and knowing what they are, employees believe they are being treated fairly from the start. However, these rules need to be adjusted as major changes occur in the workplace (e.g., the usage of social media) in order for the handbook to be effective.

4.     Use technology wisely. Employees should feel they are able to talk to HR professionals in person about concerns, rather than have to communicate via e-mails. Technology should not be used as a barrier between HR and employees.

5.     Remember that you are dealing with people and take that into consideration when handling conflicts. If you follow the book and take disciplinary action against anyone for any infraction, you have a workplace that will be bogged down with inactivity. When HR professionals first notice something inappropriately done or said by employees, they should discuss with them why their activities were wrong and why they should not repeat it first. That often can solve the situation without resulting in wasted time and effort.

6.     Keep up to date on the federal and state HR laws. Some employees are sticklers about knowing the latest exemptions available and will want to use them (or in some cases exploit them) to their advantage. A good HR professional will already recognize what is being discussed and be able to address such concerns.

7.     Know the organization’s industry and its basics about protocols and current issues of concern. Any HR professional who is uninformed of the latest trends and rulings in the firm’s industry will leave employees feeling that person is similarly uncaring toward their needs. This can leave them discouraged with the company’s HR setup to the point of seeking employment elsewhere.

For more details on basic HR errors and how to prevent them, please call a member of CAI’s Advice and Counsel team at (919) 878-9222 or (336) 668-7746.

Photo Source: Kumar Appaiah

Six Key Steps to Properly Classifying Independent Contractors

Thursday, September 16th, 2010

It has been well documented that the U.S. Department of Labor (DOL) and the Internal Revenue Service (IRS) are cracking down on employers who misclassify employees as independent contractors.

Federal and state governments are seeking to contest these misclassifications due to the current economic strain on their finances.  Independent contractors, who can be reclassified as employees, represent increased revenue in the form of federal and state payroll income taxes, Social Security taxes, Medicare taxes, and unemployment insurance taxes.  President Obama has allocated $25 million to the DOL to hire additional federal investigators to lead this effort, and predicts the outcome will bring in another $7 billion in tax revenues over the next 10 years.

What Steps Should Employers Take to Properly Classify Their Workers?

1. Written, signed contracts.  Independent contractors should have specific contracts with the employer, including all terms and conditions citing when and where the work will be performed and that the contractor is not entitled to the same benefits as an employee.

2. Performance of duties. Provide an independent contractor with a general overview of his or her responsibilities within the contract itself.

3. Form 1099 vs. W-2. Independent contractors should receive a Form 1099 at the end of a calendar year, not a W-2.  A Form 1099 demonstrates the contractor was treated as any other accounts payable, and not as an employee requiring taxation.

4. Be consistent.  Treat your employees like employees and your contractors like contractors.  Independent contractors should not be supplied with the same perks (for example, equipment, cars, expenses, etc.) as your employees.

5. Recordkeeping. Retain any information that demonstrates the independent contractor is in business for themselves and is not an “employee” of your organization.  These items could include business cards, letterhead, signed contracts, federal taxpayer ID number, copies of business insurance and workers’ compensation insurance policies.

6. Conduct your own audit.  You can have your attorney, auditor, or an HR professional conduct an audit on your behalf to ensure these steps and others are being followed to properly classify your workers.

The IRS uses Form SS-8 as a guideline for determining worker classification.  Familiarizing yourself with the contents of this form and the questions asked will help you when classifying your workers.

For more details on the proper classification of employees and independent contractors, please call a member of CAI’s Advice and Counsel team at (919) 878-9222 or (336) 668-7746.

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Three Reasons Why You Should Pursue the PHR, SPHR or GPHR This Fall – And How We Can Help

Tuesday, September 14th, 2010

The Human Resource Certification Institute (HRCI) offers official designations for PHR (Professional in Human Resources), SPHR (Senior Professional in Human Resources) and GPHR (Global Professional in Human Resources). To pursue these titles, the HRCI requires a person to have a minimum of two years of professional HR experience and to devote at least 51 percent of their daily activities to HR.

HRCI defines a typical PHR candidate as having two to four years of experience at the generalist level and most often implements rather than creates programs. A typical SPHR candidate will have four to eight years of progressive experience with more frequent program creation. The usual GPHR candidate has some experience developing and implementing global HR policies.

To help HR professionals prepare for the exams for each designation, CAI is offering PHR/SPHR and GPHR Certification Study Courses led by David Siler, SPHR, GPHR, MA, Managing Partner of Distinctive HR, Inc. The instructor-led study courses will take place at both our Raleigh and Greensboro training centers this fall.

Why would you or your organization want to devote many hours to study for this exam now? We can think of three main reasons:

  • The current eligibility standards for the exams will change after this fall/winter 2010 testing period and require more experience. That means, for example, that a prospective GPHR applicant will need to have two or three or four years of demonstrated global professional (exempt-level) HR experience combined with the respective educational requirements to qualify for the exam. And HR professionals who are eligible for the SPHR exam under the current eligibility requirements may only qualify for the PHR exam in 2011. These new rules could delay your organization’s efforts to be certified.
  • Study courses such as the one CAI offers greatly increase your odds of successfully earning the certification. For example, David’s students have extremely impressive pass rates of more than 90 percent for the PHR/SPHR, compared to national pass rate averages in the mid 50s. Also, each exam has different versions, even within every session people take it. Therefore, talking to someone who passed it previously will not provide you with the knowledge you think will succeed in passing the exam.

  • The certification provides professional recognition for your HR program that gives it a competitive edge. For prospective employees coming to your organization and clients working with you, the knowledge that your firm knows the most current principles and core practices of HR management can be the deciding factor for them in whether to select you for their business over others in your industry. That can improve your bottom line considerably in 2011.

Applications for PHR, SPHR and GPHR in the current winter semester are available from HRCI through Oct. 8, with a late application deadline of Nov. 12. To apply, visit

For more details on our PHR/SPHR and GPHR Certification Study Courses and how to register for them, visit our website,, or contact Dawn Mooney at or call (919) 713-2560.

Photo Source: Affiliated H.R. Co.

Preventing Nursing Assistant Misbehavior

Thursday, September 9th, 2010

There has been quite a bit of research done on employee misbehavior or misconduct.  Locally, Drs. Bill Tullar and Ken Wexley have been doing specific research on the misbehavior of nursing assistants.

They have classified misbehavior into four categories:

  1. Production deviance – includes behaviors that waste time and resources.
  2. Property deviance – involves either theft or destruction of facility or residents’ property.
  3. Normative deviance – generally involves talk that hurts or belittles others.
  4. Personal aggression – mostly involves hitting, fighting, or sexual harassment.

These behaviors on the part of nursing assistants cost hospitals and nursing homes large amounts of money.  Moreover, they represent a very real legal liability – can the facility prove in court that it exercised due diligence to prevent misbehavior that has bad consequences for residents?

What is to be done?  There are two basic approaches management can use to lessen or mitigate these problems.  First, more careful selection methods should be used to assess candidates before they are hired.  The best predictor of future behavior is past behavior, but misbehavers are those least likely to report their past behavior voluntarily.  Thus, it is necessary to go beyond simply asking job applicants about what they have done in the past.

Second, there are management processes and procedures that can be used to minimize the opportunity for misbehavior on the job.  These include, but are not limited to, careful control of access to the drug cabinet, supervision at certain times of the day, and clear policies for employees of the consequences for their misbehavior.

Let us examine selection issues first.  Background screens are indispensible for proper selection, and many facilities already require them.  But assessments of basic skills, personality, attitudes, values and motivation are also essential.  Some of these can be assessed by well-designed interviews, but others can only be measured by psychological testing.

Realistic job previews may also be helpful in weeding out those who are not temperamentally suited to the job.  While there is some basic nursing knowledge that nursing assistants must have, it is generally not lack of knowledge that causes them to misbehave on the job.  Administrators may object, saying that such selection procedures are tedious and time consuming, but proper due diligence in selection is well worth the time and effort.

With regard to management of misbehavior once the nursing assistant is on the job, there is no substitute for effective training.  The basic values and expectations of the facility should be communicated to candidates from the very first encounter.  All recruiting literature should feature values and norms of the facility prominently.  Orientation training should reiterate these norms and values.

A session on expectations and disciplinary procedures should be included in the early training of the new hire.  Management should maintain a zero tolerance policy for drug and alcohol abuse, physical or verbal abuse, and sexual harassment.  Cases of these violations that occur should be made public, and the discipline outlined in the training manuals should be followed carefully and as publicly as possible.  Supervisors should know that when they report misbehavior that they are just doing their job.

Misbehavior by nursing assistants can have catastrophic consequences for any nursing facility.  It is important that management be able to show that they have exercised every possible precaution to prevent such things from happening.  While such precautions do not guarantee that misbehavior will not happen, they will limit its frequency, severity and legal consequences.  An ounce of prevention is always worth a pound of cure.

To learn more about setting up effective hiring processes and orientation training to prevent nursing assistant misbehaviors, please contact Kevin von der Lippe at (919) 878-9222, (336) 899-1150 or  In addition to the special assessment tools for screening Certified Nursing Assistants (CNAs), Kevin will be happy to talk to you about CAI’s background checking services.

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How Providing Child Care Can Benefit Your Company As Well As Your Employees

Tuesday, September 7th, 2010

Here’s a common misconception: When employees ask about whether your firm is offering any child care or dependent care programs, they are not necessarily asking if you have an on-site program. They just are inquiring if you address the subject at all.

In fact, most companies that provide dependent care assistance to their employees have a plan where they can contribute part of their pretax wages to individual accounts. Those contributions are used to reimburse the employee for child or dependent care expenses away from the company.

Whether on or off site, many companies are considering a review of their policies for child and dependent care. Some advantages providing child care to your employees can offer your organization include:

  • Possible savings in money – A 2005 study co-authored by University of North Carolina professor Rachel Willis surveyed 925 employees at three light manufacturing firms—two that offer on-site child care and one that does not. It found that the two firms offering the benefit saved between approximately one-half and twice the cost of operating the child care centers, including subsidies to employees and other costs.
  • Improved employee morale, reduced turnover and absenteeism, and increased productivity – In a report by the National Conference of State Legislatures, employers cite child care issues as causing more problems than any other family-related issue in the workplace, with increases in absenteeism and tardiness reported in nine out of 10 companies. And 80 percent of the companies surveyed said that work days were cut short because of child care problems.
  • Incentive for recruitment – A study conducted by Simmons College, Graduate School of Management found that 93 percent of parents cite work-site childcare as an important factor in job change, and that 42 percent of all employees surveyed said that the availability of on-site child care was an important factor to their decision to join their present employer.

The issue of child and dependent care remains a divisive one. Many questions arise from regulations, including liability for taking care of ill or injured children, and some younger and older employees see it as an incentive that does not benefit them. It is a decision that needs careful consideration of its pros and cons before being implemented at a company.

For more details on how you can establish child or dependent care policies for your employees, please call a member of CAI’s Advice and Counsel Team at (919) 878-9222 or (336) 668-7746.

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Basic Strategies for Succession Planning

Thursday, September 2nd, 2010

Succession planning is an important process that should be carried out by a management team to ensure the continuity of an organization’s business plan.  The key goal is to identify, recruit and prepare the most talented employees for key roles within the company.  These carefully selected employees should be provided with the education and training they need to achieve and succeed at higher levels and with broader responsibilities.

Through the planning process, these highly recognized employees will appreciate the time, attention and development invested in them, resulting in key employee retention, which is absolutely necessary to ensure the effectiveness of succession plans.

Succession plans vary by company, business plan, and the availability of talented employees.  However, every succession plan should follow some basic strategies:

  • Monitoring Future Needs – Tomorrow’s key roles may not even exist in today’s organization
  • Talent Assessment – Develop a way to identify your most talented employees
  • Hire for the Gaps – Identify the roles that are beyond the capabilities of your current employees and hire to fill those skill gaps
  • Share Your Plan – Key employees should understand early in their careers the special path you have put them on and the importance of the role they are being developed to fill
  • Use Available Technology – Track and monitor the training and development of high potentials
  • Create Developmental Opportunities – Seek out education that offers executive training and mentoring
  • Measure Performance – Challenge your key employees, but measure them fairly as you are asking them to stretch beyond normal expectations

Remember, effective succession planning is a journey, not a destination. Once you have the plan in place, it requires constant and consistent monitoring for adjustments and improvements as the organization changes over time.

If you need further information or assistance with succession planning for your organization, contact Molly Hegeman, CAI’s Director of HR Services, at (919) 878-9222, (336) 668-7746 or

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