Author Archive

Don’t Underestimate the Power of Job Descriptions in ADA Legal Challenges

Thursday, September 3rd, 2015

CAI’s Advice and Resolution team member Pat Rountree shares valuable information regarding job descriptions and compliance with the ADA

Pat Rountree, HR Advisor

Pat Rountree, HR Advisor

The terminology essential functions of the job has been around since the Americans with Disabilities Act (ADA) became law in 1993.  However, the significance of making sure that you have current job descriptions for each position that lists the essential duties, physical, and mental requirements greatly increased with the recent amendments to the ADA.  Also, technology advances have resulted in a faster pace of job change over the last several years.

Employment law attorneys continue to stress that job descriptions that identify the essential functions of the job are the first line of defense when employers are trying to defend undue hardship decisions on inability to make accommodation, and terminations for inability of employees to do the job.

At the most recent CAI/Ogletree Employment and Labor Law Update, Attorney Gretchen Ewalt recommended that employers use the employee performance review time to go over the job description with the employee annually and determine if changes need to be made to accurately reflect the current job responsibilities.

Another recommendation in light of recent case law is to document in the job description if the job requires the employee to be present at the worksite and to document the reasons why.  It may sound ridiculous—of course attendance at work is required.  However, with requests for accommodation to work from home, it is important to document when actual presence at work is required as in the EEOC vs. Ford Motor Company.  The employee, a resale buyer, requested to work from home as an accommodation, but the employee’s lack of availability for impromptu meetings on important issues was an undue hardship for the employer.  The court sided with the employer and noted in their decision, in most jobs, especially those involving teamwork and a high level of interaction, the employer will require regular and predictable on-site attendance from all employees.  To read the full court decision, see http://www.ca6.uscourts.gov/opinions.pdf/15a0066p-06.pdf.

Obviously with the advance of technology, working from home may be a reasonable accommodation for some jobs.  However, for those jobs that require person-to-person contact on the job, it is important to document.

How long has it been since you actually reviewed job descriptions with incumbents to determine that they are still valid?

Considerations in determining essential functions include:

  • The importance of the function to the overall job
  • The number of employees available to perform it
  • The time spent on the function
  • The degree of skill required

Other kinds of evidence that EEOC will consider include:

  • The actual work experience of present or past employees in the job
  • The consequences of not requiring that an employee perform a function
  • The terms of a collective bargaining agreement.

For additional guidance on this topic, please reach out to CAI’s Advice and Resolution team at 919-878-9222 or 336-668-7746.

The Single Question Interview

Tuesday, September 1st, 2015

The following post is by Bruce Clarke, CAI’s CEO and President. The article originally appeared in Bruce’s News and Observer  column, The View from HR.

Bruce Clarke, President and CEO

Bruce Clarke, President and CEO

“Come on, now.  A single question interview?”  I hear the doubters already, and I was one before I learned the method.  Suspend disbelief for a moment and see what I mean.

Interviews should not be about ball teams, whether you know the same people, or about your great company or product.  They certainly are not about how many people you can meet in 30-minute blocks.

The purpose of an interview is to determine whether someone is a fit for the role.  The best predictor of future fit and performance is past performance.  What is the best way to uncover past performance?  Ask, but ask hard and ask long.

Here’s what I mean:  At the start of your next interview of a candidate, ask that person to tell you the one work or career accomplishment he or she is most proud of, and say you plan to discuss that accomplishment with them.  Give people time to think.  If they come up with none, you know enough already.  Short interview.  Talk about ball teams for a while.

When candidates describe their most significant accomplishment, dissect it in every way possible.  Ask “Whose idea was it?  Why were you selected for the role?  What was your role in the project?  Who did you report to?  What hurdles did you encounter?  How did you overcome those hurdles?  What was the resource budget?  Did the project meet expectations?”

Request candidates to describe three crisis points and how they were resolved.  What was the impact on the team?  What was the impact on customers?  Have candidates draw a picture of the people involved and how they were able to influence those outside their team.  Ask “What help did you seek that was granted?  What help was denied?  How did you deal with the denial?  What one regret do you have from the project?  What did you learn?  What would you do differently today?  Why did you just say that?  If I interviewed the key team members, what would they say about the experience with you?  Who was your biggest critic and why?”

Ask manager candidates questions revealing how they handled key management responsibilities, communication, accountability, performance management, goal setting and conflict resolution.  Ask others about executing plans, steering around obstacles, getting clarifications or exceptions, meeting deadlines and getting the job done.

All of your questions so far should be about the single most important accomplishment in the candidates’ own career.  They should be the expert on this accomplishment.  They should be well-prepared.  They should not hesitate or sweat.  They should not bob or weave.  This is their own story, after all.

A serious effort will take you an hour or more.  Ask one or two others to join you to keep the follow-up questions fresh, responsive and useful.  Press hard and long.  Others will pick up on things you will not see or hear.  A good candidate may feel this was the best interview he or she ever had.  A bad candidate or poor fit may look stressed.

Afterward there is time for ball teams, tours, 30-minute meetings with others, selling the candidate on the company and such.  Try it and let me know how it went.

For additional guidance, please give our Advice and Resolution Team a call at 919-878-9222 or 336-668-7746.

Sometimes I feel like I am selling fear…

Thursday, August 27th, 2015

The following post is from CAI’s Kevin von der Lippe. He serves as CAI’s private investigator and leads the company’s Background Checking department.

Kevin von der Lippe, Private Investigator

Kevin von der Lippe, Private Investigator

Often, clients hear me talking about the pitfalls of not staying compliant with the nitpicky rules of the federal Fair Credit Reporting Act (FCRA).  Or, they hear me cautioning against transgression of Title VII of the Civil Rights Act of 1964, and how the onerous Equal Employment Opportunity Commission (EEOC) is in their enforcement.  Sometimes I feel like I am selling fear, but the reality is, the litigation is real, the liability for your company is real, and the long term consequences for non-compliance can be devastating to your company.

The view from today’s perspective is that there is a sea of class action lawsuits over small, technical flaws with the paperwork required under the FCRA.  In particular, the two main points of contention are: proper release from your applicant or employee, and sending out the proper paperwork (or even any paperwork) before you make your adverse employment action based upon the background check.

The problem stems from an infamous $22 million settlement on the East Coast in 2008. This particular case showed that suing companies who fail to comply with the FCRA could be lucrative. In 2009, the Sixth Circuit ruled that a plaintiff did not have to show actual damages because the fact that the company failed to comply with the FCRA was in-of-itself an “injury” to the plaintiff, thus giving him justification in filing his suit. [1]

In February 2014, the U.S. Court of Appeals for the Ninth Circuit (in California) ruled that “a plaintiff can suffer a violation of the statutory right without suffering actual damages.” [2] Contrary to rulings from other circuits, this reignited a firestorm and on April 27, 2015, the argument made its way to the nation’s highest court. While the Supreme Court’s decision has not yet been made, the ruling could change Congress’ role in defining how these cases move forward, and perhaps even reduce the number of class action lawsuits that are based solely on technical flaws.

The good news is, you can reduce your exposure under the FCRA by keeping up with the necessary paperwork.  CAI provides samples of the necessary documents on our website, www.capital.org/vea.  We also provide the necessary FCRA paperwork with every report issued by our background checking department.

If you have questions about our background checking services, or how CAI can help you remain in compliance with the federal laws related to background screening, please do not hesitate to contact Kevin W. von der Lippe at (336) 899-1150 or by e-mail at kevin.vonderlippe@capital.org.

Capital Associated Industries Services Corporation is a licensed investigative agency, specializing in corporate pre-employment background screening. Our corporate agency license is BPN 001473P11.

[1] Beaudry v. TeleCheck Services, Inc., (6th Cir. 2009).

[2] Thomas Robins v. Spokeo, Inc. (9th Cir. 2010)

Worksite Wellness Programs Not Just A Fad, Survey Shows

Thursday, August 20th, 2015

The post below is a guest blog from Meaghan Roach who serves as Health Management Advisor for CAI’s employee benefits partner Hill, Chesson & Woody.

BalanceA few weeks ago, the Society for Human Resource Management (SHRM) unveiled the results of their 2015 employee benefits survey at their national conference. The results? Of no surprise to many in the industry, health and worksite wellness programs continue to grow in prevalence and popularity. SHRM attributes much of this to employers’ desires to combat rising health care costs. In addition to slowing the cost trend, health management programs may also increase productivity, decrease absenteeism, and improve a company’s ability to recruit and retain top talent.

Based on the survey, popular health management programs included biometric screenings and health assessments, tobacco cessation programs, lifestyle coaching, and preventive programs targeted at employees with chronic conditions. New to the scene this year are company-provided fitness/activity trackers and fitness competitions, which are offered by 13 percent and 34 percent of the respondents, respectively. New offerings in the past few years seem to have a common theme of physical activity, with standing desks (25 percent of respondents offered in 2015), on-site fitness classes (17 percent), and off-site fitness class subsidies (16 percent) all being added to the survey’s options in the past three years.

Health and wellness benefits that saw the largest increase in prevalence over the past five years involved premium differentials for participation in a variety of activities, including preventive care, completion of an annual health risk assessment, and not using tobacco products.

BenefitsPro summarized several other areas of the survey – including telecommuting, health savings accounts and family friendly benefits – but noted that wellness programs are certainly a key takeaway from this year’s results. In fact, as more millennials enter the workforce and demand a strong company culture, worksite wellness programs are becoming almost expected in the minds of potential employees. Eighty percent of survey respondents provide employees with wellness resources and educational information, and seventy percent indicated that they offer wellness programs, suggesting an attempt to integrate health initiatives into company culture across the majority of organizations in the United States.

Interested in how your company can offer initiatives like the above that can have a positive effect on employee morale and productivity, and ultimately your bottom line? Contact our Health Management team and allow us to help guide you through development of a wellness program to complement your employee benefits package.

 

 

How the Department of Labor’s Overtime Changes Will Affect Your Company

Tuesday, August 18th, 2015

In today’s video blog, CAI’s Senior Executive and HR Advisor, George Ports, discusses the US Department of Labor’s (USDOL) recent proposed changes to overtime regulations and what employers must do in order to remain compliant. George begins by noting that under the new revisions to the Fair Labor Standard Act (FLSA), the USDOL will increase the minimum salary threshold for exemptions, opening up eligibility for overtime protections to nearly 5 million workers nationwide.

George believes it is important for employers to know how these changes will affect their company, and goes on to list the specific revisions to the FLSA. Some of these proposed changes include:

  • A vast increase in the minimum salary level exemption for the executive, administrative, and professional exemptions from $455 per week to no less than $921 per week
  • An increase in the minimum salary exemption for highly compensated employees from $100,000 to $122,148
  • A metrics system to automatically increase the minimum salary threshold test on an annual basis

In order to examine the impact these changes could have, George advises employers to make the necessary alterations to salary levels or re-classify positions. For those employers interested in making comments on these proposed changes, head to www.regulations.gov to make your voices heard. Just make sure to do so before the 60 day comment period ends on September 4, 2015.

Please call our Advice and Resolution team at 919-878-9222 or 336-668-7746 with any related questions.

Performance Reviews: How Does Your Process Compare?

Tuesday, August 11th, 2015

Annual performance reviews are often one of the most dreaded and stressful activities for both employees and managers. The process easily creates tension, and is usually directly tied to salary increases and bonuses for the employee.

While the intention behind performance reviews are good, the process itself is typically outdated and can lead to an inaccurate appraisal of employees. This infographic from Findmyshift explains where some of the gaps are in this process, as well as how other companies have improved their performance reviews.

 

Exploring Why Employees Stay With Your Company

Thursday, August 6th, 2015

In today’s post, Advice and Resolution team member Renee’ Watkins encourages you to think about your employee retention efforts.

Renee' Watkins, HR Advisor

Renee’ Watkins, HR Advisor

Every organization would like to see a high rate of employee retention over a long period of time. What is the best way to achieve this goal? We spend time and effort to understand why employees leave when they give us notice and by then it is often too late to react. Perhaps if we first understood the reasons an employee chooses to stay with the organization it would help us to better reinforce those positive factors and drive retention rates upward across the workforce.

“Stay” interviews are becoming a popular norm among companies taking a pro-active approach to employee retention. If you are relatively new at conducting stay interviews, consider one of the suggested formats below to get you started:

Manager One-on-One

Anytime a manager takes the opportunity to speak one-on-one with a team member, you have invoked one of the most powerful tools for increasing employee retention. Employees want to work for an organization that demonstrates concern for their welfare and happiness in the workplace. Work with managers to encourage such “interviews” and present them with a set of employee engaging questions as a guide.

Human Resources One-on-One

Sometimes an employee may be reluctant to discuss certain issues with their manager. This is where HR can provide another opportunity for direct employee engagement. Do not wait for the employee to come to you. If they are reluctant to speak with their manager, they may also be reluctant to speak with HR. Make it a practice to reach out to employees on a regular basis and simply involve them in conversation regarding their thoughts on the company and their job.

Employee Surveys

To engage employees who are reluctant to speak openly regarding their concerns, provide an employee survey to give them an opportunity to anonymously provide their feedback. An anonymous survey will provide them a forum in which to be completely open and honest. However, also convey the fact the door to HR is always open to them with complete confidentiality and invite them to come forward and discuss in more detail. This will demonstrate your concern for their happiness in the workplace.

Focus Group

A focus group can be used to bring together a small group of employees who work in a similar role and ask for both positive and negative feedback on company activities. Sometimes it only takes one employee to start the conversation and others will jump in as part of the group. When employees feel they are not the only person with concerns, they are more likely to participate in an honest and open discussion.

Stay interviews should be conducted with key employees on a periodic basis and should not coincide with employee reviews. Remember, this is designed to promote your interest in their welfare and job satisfaction. Make sure to put the employee at ease and explain they are not being singled out as a result of anything they’ve done.

For some organizations, it would be impossible to conduct routine stay interviews with every employee, regardless of how great it would be to do so. It is very important to concentrate your focus on key employees who would create a negative impact on the business if they chose to leave.

Also, it is important to remember you will never be able to please everyone all the time. Some concerns may be aired that you are unable to address directly via policies or new initiatives. In these cases, all you may be able to do is listen and offer understanding.

Equally important however, is your effort to address concerns that can be resolved. If your employee has taken the steps required to voice their concerns to you, your efforts to take action will be how they measure their true value to the organization. If you fail here, your efforts to improve employee retention may have the opposite effect.

Be sure also to promote the positives you hear in a stay interview. If several employees mention the same reason they stay with your organization, put that in a newsletter or on the company website, preserving their anonymity of course. Always promote the positive as both a retention and a recruiting tool.

Stay interviews have been developed as a proven methodology for reducing turnover and the added expense of recruiting and training new employees to fill vacated positions.

Please call our Advice and Resolution team at 919-878-9222 or 336-668-7746 if you need help thinking through your retention strategy.

The Problem with Time Off

Tuesday, August 4th, 2015

The following post is by Bruce Clarke, CAI’s CEO and President. The article originally appeared in Bruce’s News and Observer  column, The View from HR.

Bruce Clarke, President and CEO

Bruce Clarke, President and CEO

What could be wrong with time off from work?  Plenty, if you are a manager trying to get things done, or an employee who cannot get time off for family issues.

Time off problems generate phone calls to our HR advisors every day.  Most of the problems come in three categories, each with an employee and employer viewpoint.

Do I Have To?

Government regulations mandate time off in several dozen ways.  No single requirement is back breaking, but their total weight causes employers to dread these regulated requests.  The question often becomes “Do I have to grant the time?”  It depends.

Earned vacation is owed to the employee and the only question is timing.  An employer can deny its use at inconvenient times unless the vacation is to be used during a “Family and Medical Leave” event.  These FMLA requests give employees and their doctors so much power over timing that employee abuse is too common, paid or unpaid.  Even if laws like FMLA do not apply, sick day and personal day policies are common.  Plus, everyone has a personal need now and then.

Help employees understand the business issues so that time off can be made to fit business AND personal needs.  Employees, if you will start out showing concern for business needs and some flexibility on timing, you will find the process is much smoother and more pleasant for all.  It is rare that something has to happen on Monday morning, or on the busiest day of the month.  Everybody wants to be met halfway. (Emergencies are different.)

Do I Want To?

If time off is discretionary, do you want to say “yes” to the employee for an inconvenient day off?  Managers might say “Yes to my best employees and no to my worst.”  You can use some discretion here, maybe rearranging work so that a star can get the day off he or she needs in busy season, but be sure you can defend that choice when the poor performer seeks the same. “Sally works exceptionally hard each day, and you do not” is what you may feel like saying, but refrain.  Describe ways the employee can earn future approvals.

Employees who want time off or certain vacation days in this “discretionary zone” should bring either a good plan for getting needed work done, or a record of always doing so, or both.  I have never met a manager who liked to say no to a personal request if it is reasonable and if the employee always meets them halfway.

Should I?

Maybe no law requires it and maybe the employee does not deserve it based on past behaviors, but sometimes it is good business to grant that inconvenient time off request.  You gain nothing by punishing an employee’s family member, for example.  Maybe you should have dealt with this poor performer more directly last month rather than indirectly punishing him or her through a time off denial today.  It is a judgment call, but denial of needed time off is an act this employee will not soon forget.

Time-off discussions require adult behavior and open discussion on both sides.  Approach your next time off discussion with that in mind.

For additional guidance, please give our Advice and Resolution Team a call at 919-878-9222 or 336-668-7746.

Affirmative Action Protections for Gender Identity and Sexual Orientation

Thursday, July 30th, 2015

CAI’s Manager for Affirmative Action Services, Kaleigh Ferraro, shares important information regarding the workplace and the protections of those who are in the LGBT community.  Make sure you are compliant.

Kaleigh Ferraro, Manager, Affirmative Action Services
Kaleigh Ferraro, Manager, Affirmative Action Services

Recently there has been a lot of activity regarding the protections and requirements for people who are in the LGBT (lesbian, gay, bisexual, transgender) community. This activity has occurred with state regulations regarding same sex marriage and rulings by the US Supreme Court about the validity of these marriages. The Department of Labor adopted a new definition of spouse (on March 27, 2015) to include those people who are part of legal same sex marriages. This will afford spouses in same-sex marriages the same FMLA rights as traditional marriages.

The White House has taken another approach to provide and expand protections to individuals in the LGBT community. President Obama issued Executive Order 13672 prohibiting discrimination based on sexual orientation and gender identity by federal contractors and subcontractors. In response to President Obama’s request to expand protections to these groups, the Office of Federal Contracts Compliance Programs (OFCCP) issued final rule amending Executive Order 11246. This update became effective on April 8, 2015.

What that means for companies covered by affirmative action regulations is that they will need to include sexual orientation and gender identity as protected groups just as they currently do for race, color, religion, sex and national origin. If you are a federal contractor or subcontractor, you should be doing:

 

  • Update EEO/AA policies to include gender identity and sexual orientation
  • Update handbook and other policies to include gender identity and sexual orientation
  • Update EO Clauses and required language in subcontracts and purchase orders to include gender identity and sexual orientation
  • Update any other documentation where protected classifications are listed to include gender identity and sexual orientation
  • Train managers and personnel responsible for employment decisions on the newly protected categories

As states and federal government continue to move in the direction of a more diverse and inclusive environment, so should companies. Federal contractors may also want to consider conducting training for workforce on these protections and ensure there is a culture of acceptance and non-discrimination for these newly protected classifications.

If you have any questions about these changes or how it affects your organization feel free to contact me, Kaleigh Ferraro, directly at 919‑713‑5241 or kaleigh.ferraro@capital.org.

 

3 Things I Learned About Recruiting from My Boys and Their Legos

Tuesday, July 28th, 2015

In today’s post, CAI’s Peer Learning Recruiter, Jennifer Montalvo, shares how her two sons help inspire her recruiting methods.

Jennifer Montalvo, Peer Learning Recruiter

Jennifer Montalvo, Peer Learning Recruiter

My boys have thousands, no, hundreds of thousands of Legos and are continuously looking for the “right piece.”  Often, I stand over them baffled that they are arguing about “he got the one I wanted.”  I look at the two of them and pan over the vast sea of dumped Legos and reply with, “Really?  You’re telling me out of all of these pieces, that’s the only one you need?”   The reply, “… but it’s the best one, and it fits where I need it.”

Sometimes all my boys needed to do was look deeper at the structure they were building. They had the power to create whatever it was that they could envision.  Many times there was a piece that was overlooked or missed that would fit a.) just as well b.) better or c.) differently. I have learned a lot from this scenario in regard to recruiting. Here are my three takeaways:

Just as well

  • Chances are, amongst the thousands of pieces sprayed across the floor, a piece just like the one they were seeking was there. They may have had to look just a bit harder. The lesson being – don’t give up too quickly. After all, the vehicle that initially came out of the Lego box had four wheels!

Better

  • After a bit of convincing to “think out of the box” when they couldn’t find the exact same piece, they would come across a piece that actually fit better. They would then find that all the little nodules filled the space and consequently made the foundation of their creation even stronger.

Differently

  • Sometimes they would relinquish the desired piece to their sibling, and walk away frustrated and disappointed. However, they would often return with a fresh set of eyes and a different perspective. It was then that their structure would evolve into something unique and dynamic that they didn’t initially intend. And, if they were lucky, their structure would outshine and outlast that of their brother’s.

Recruiting is much like my children playing with Legos. Sometimes you have to look beyond your initial idea, thought or plan to uncover someone whose fit is well-beyond what you ever could have imagined. Keeping an open mind will often lead you to that “diamond in the rough” scenario.

So remember:

  • Don’t give up too quickly
  • Be willing to think out of the box
  • Walk away when needed and return with a fresh set of eyes and a different perspective

If you’re interested in more recruiting tips or would like more information on CAI’s Peer Learning Groups, please contact Jennifer at Jennifer.Montalvo@capital.org or 919-431-6093.