Author Archive

Performance Evaluations: Time for Some Spring Cleaning?

Thursday, April 17th, 2014

In today’s video blog, CAI’s Vice President of Membership, Doug Blizzard, discusses performance evaluations. He starts by offering information from several surveys that indicate that many employers are finding little value with their current evaluation system and have plans to revamp their process.

Doug says that annual reviews can be valuable and a necessary tool to improve performance if they are done right. When defining the right way to do a performance review, Doug starts by saying that most performance issues are hiring issues. An employer may hire an employee based on their skills, but then realize that employee does not fit the company culture. The employer then has to spend time helping them fit in.

He also says there should be no disagreement about what a successful performance should look like for a specific team member. Employees should receive clear expectations from their managers to ensure they understand what they need to achieve. Doug also suggests meeting with your employees regularly to check in with them to see how they are working towards their goals. The last point that Doug emphasizes is for employers to not make the review about the form, but to focus on the conversation instead.

If you’d like additional tips on creating a valuable performance evaluation system at your organization, please call a member of CAI’s Advice and Resolution Team at 919-878-9222 or 336-668-7756.

9 Things You Should Know About Immigration Law and I-9′s

Tuesday, April 15th, 2014

I9 paperworkImmigration law can often be a tricky subject for employers to tackle. To ensure you’re keeping your organization compliant, here is some helpful information to remember:

1. Employers who have constructive knowledge that an employee is not authorized to work, but continue to allow the employee to work are subject to fines.

2. Although employers are not required to do I-9’s for contractors, they have a duty to ensure to the best of their ability that contractors are legally authorized to work in the United States.

3. Employers who hire out-of-state employees where there is no company representative to handle the I-9 process may contract with someone to complete I-9’s on their behalf, such as a notary public. (Note: Texas does not allow notaries to perform this service.)

4. Employers cannot require an employee to present documentation to support the Section 1 information. The employee attests by signature that this information is correct.

5. Employers or their agents are not required to notify the U.S. Immigration and Customs Enforcement (ICE) of illegal aliens discovered through the I-9 process, and it is not recommended that you do so.

6. The I-9 form cannot be completed until a job offer is made and accepted. Because the I-9 requires date of birth and identifies whether the person is a U.S. citizen or alien, it could be a source of potential discrimination charges if an applicant were required to complete it pre-offer and then not be hired.

7. The I-9 Form states that Section 1 should be completed and signed by the employee on the day employment begins. This is defined as the first day of work where the employee is providing labor or services in exchange for pay.

8. It is fraud if someone other than the employee fills in Section 1 but does not provide the required information and a signature in the Preparer and/or Translator Certification box, or if HR or a company representative fills in missing information in Section 1 for the employee.

9. ICE investigations are lead-driven. Leads that appear to have some merit must be further investigated to avoid constructive knowledge and to resolve the issue.

Ogletree Deakins’ attorney Bernhard Mueller will provide additional information and updates regarding immigration law at the 2014 Employment and Labor Law Update. The conference will take place at the McKimmon Center in Raleigh on May 14 and May 15. In addition to immigration law, presenters will cover wage and hour issues, NC legislature, ADA, minimizing lawsuits, protecting proprietary information, and more. Register today at www.capital.org/lawupdate.

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When Must Employers Seek a Religious Accommodation Regarding a Personal Appearances Policy?

Thursday, April 10th, 2014

In today’s post, John Gupton, CAI’s General Counsel and HR Advisor on CAI’s Advice and Resolution Team, shares important information with employers about religious accommodations for employees.

John Gupton, General Counsel and HR Advisor

John Gupton, General Counsel and HR Advisor

Religious discrimination involves treating a person (an applicant or employee) unfavorably because of his or her religious beliefs and is prohibited by the federal law known as Title VII of the Civil Rights Act of 1964. The Equal Employment Opportunity Commission (EEOC), which is a federal agency, is responsible for enforcing this law. The law protects not only people who belong to traditional organized religions, like Buddhism, Christianity, Hinduism, Islam and Judaism, but also others who have sincerely held religious, ethical or moral beliefs. Religious discrimination can also involve treating someone differently because that person is married to (or associated with) an individual of a particular religion or because of his or her connection with a religious organization or group.

Unless it would be an undue hardship on the employer’s operation of its business, an employer must reasonably accommodate an employee’s religious beliefs or practices. This applies not only to schedule changes or leave for religious observances, but also to such things as dress or grooming practices that an employee has for religious reasons. These might include, for example, wearing particular head coverings or other religious dress (such as a Jewish yarmulke or a Muslim headscarf), or wearing certain hairstyles or facial hair (such as Rastafarian dreadlocks or Sikh uncut hair and beard). It also includes an employee’s observance of a religious prohibition against wearing certain garments (such as pants or miniskirts).

Also, as mentioned above, an employer does not have to accommodate an employee’s religious beliefs or practices if doing so would cause undue hardship to the employer. An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work. For example, workplace safety issues, like the prohibition of wearing loose garments around machinery, don’t need to be overlooked for the sake of accommodation.

When an employee or applicant needs a dress or grooming accommodation for religious reasons, it is the employee’s responsibility to notify the employer that he or she needs such an accommodation for religious reasons. If the employer reasonably needs more information, the employer and the employee should engage in an interactive process to discuss the request. If it would not pose an undue hardship, the employer must grant the accommodation.

The EEOC has issued guidance on religious discrimination issues in the workplace, which is located at http://1.usa.gov/rel-dis. In addition, the EEOC has a listing of best practices in the workplace regarding religious issues, which is located at http://1.usa.gov/bp-rel.

If you have questions about religious accommodations, please contact a member of CAI’s Advice and Resolution team at 919‑878‑9222 or 336‑668‑7746.

 

Cash Shortage Deductions from Commission Payments

Thursday, April 3rd, 2014

CAI’s Advice and Resolution Team answers several questions from members daily. Many questions the Team receives deal with Wage & Hour issues and what is right under the Fair Labor Standards Act (FLSA) Here’s a recent question the team received:

George Ports, Senior Executive and HR Advisor

George Ports, Senior Executive and HR Advisor

Are Employers Allowed to Deduct Cash Shortages from a Salaried Exempt’s Commissions?

In today’s post, Advice and Resolution Team Member George Ports offers guidance for this employer question:

According to the US Department of Labor’s Wage & Hour Division, cash shortage deductions from commission payments made to salaried exempt employees would not affect their exempt status under section 13(a)(1) of the Fair Labor Standards Act (FLSA) as long as the affected employee meets both the duty and the guaranteed salary level tests required.

An employee will be considered to satisfy the salary level test if the employee is paid on a salary basis at a rate of not less than $455.00 per week. The salary basis test is met if the employee regularly receives each pay period “a predetermined amount constituting all or part of the employee’s compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed.” An exempt employee must receive the full salary for any week in which the employee performs any work without regard to the number of days or hours worked. [Note: There are limited exceptions regarding deductions from exempt pay. For more information, go to http://j.mp/ex-su.]

An employer may provide an exempt employee with additional compensation without losing the exemption or violating the salary basis requirement, if the employment arrangement also includes a guarantee of at least the minimum weekly-required amount paid on a salary basis. Thus, for example, an exempt employee guaranteed at least $455 each week paid on a salary basis may also receive additional compensation of a one percent commission on sales.

An exempt employee may receive a percentage of the sales or profits of the employer if the employment arrangement includes a guarantee of at least $455 each week paid on a salary basis. Similarly, the exemption is not lost if an exempt employee who is guaranteed at least $455 each week paid on a salary basis also receives additional compensation based on hours worked for work beyond the normal workweek. Such additional compensation may be paid on any basis (e.g., flat sum, bonus payment, straight-time hourly amount, time and one-half or any other basis), and may include paid time off. In other words, additional compensation paid on any basis besides the guaranteed salary is not inconsistent with the salary basis of payment.

Wage and hour regulations require only that exempt employees be paid a guaranteed salary of at least $455 per week, and any additional compensation above this salary amount is generally something that may be agreed upon between the employer and the employee. The prohibition against improper deductions from the guaranteed salary does not extend to any such additional compensation provided to exempt employees.

Cash shortage deductions, therefore may be made from a salaried exempt employee’s commission payments without affecting the employee’s exempt status as long as the commission payments are bona fide and are not paid to facilitate otherwise prohibited deductions from the guaranteed salary.

If you have wage and hour regulation questions, please contact a member of CAI’s Advice and Resolution Team at 919‑878‑9222 or 336‑668‑7746.

The Me Generation

Thursday, March 27th, 2014

In today’s video blog, CAI’s Vice President of Membership, Doug Blizzard, tackles the topic of different generations working together. Doug says he is not crazy about how generational issues in the workplace are being reported and presented.

His beef with generational analysis is that the results tend to broadly characterize members of one generation possessing the same characteristics, and this can lead to helpful and harmful stereotypes.

Doug gives an example of a typical stereotype for Millennials—members of this generation want to work how, when and where they want, but lack loyalty and communication skills.  He says this generational phenomenon is not a new thing. This isn’t the first time a younger generation has challenged the status quo, and in the video, he lists several examples.

Doug wants employers to be mindful that there are as many differences in attitudes, values, behaviors and lifestyles within a generation as there are between generations. He advises managers to be careful to not write off an entire generation due to general characteristics they hear.  Doug says that employees, regardless of generation, should be managed in a respectful and supportive manner to maximize their possibility of achieving success.

Employees of all generations look to their company leaders to set the values and beliefs that drive the company. Doug says your company values should be developed independent of any particular generation. Instead of catering to a specific generation, define the characteristics that you find important in an employee and find people of all generations, cultures, ethnicities and so on who have those characteristics. People are attracted to a clear vision and clear values regardless of their age.

If you have questions about managing different generations at your workplace, please call CAI’s Advice and Resolution Team at 919-878-9222 or 336-668-7746.

 

The Movement Towards Performance Based Pay In Healthcare

Tuesday, March 18th, 2014

The post below is a guest blog from W. Hunter Walton, JD who serves as Principal, Health & Welfare Consultant  for CAI’s employee benefits partner Hill, Chesson & Woody.

 hcw 3 14 2014Recently, Congress passed a clean debt ceiling bill that raised the nation’s debt limit without any strings attached. Before the vote, however, there were serious discussions to revamp the way physicians are paid under Medicare.

Under current law, physician pay is tied to the Sustainable Growth Rate (SGR), a formula which many doctors and politicians think is insufficient to adequately compensate doctors for their work. For the past several years Congress has adopted a kick-the-can-down-the-road approach, which just delays scheduled reductions in pay. But after years of searching for a solution, members of Congress this week appeared to have reached a permanent solution to repeal the SGR and replace it with a system of payment tied to performance. This would be in line with trends we are seeing elsewhere in Medicare – with the growth of Accountable Care Organizations – as well as in some aspects of private insurance.

While the provision was eventually dropped from the debt ceiling bill, it will likely provide an important starting point from which future negotiations will be based. As we see an increase in preferred and high-performance networks in private insurance and a movement to tie payment in government health programs to performance, expect to see the effects of performance based pay trickle down to your health benefit and medical management strategies. Find out more about this in the February 10th edition of The Fiscal Times.

 

Top Reasons Why Employees Voluntarily Leave Your Company

Thursday, March 13th, 2014

FiringThere are several reasons employees decide to leave their jobs. Every employee has specific criteria that makes a job enjoyable or worth making a commitment to. Below are some of the top reasons employees quit their employers to start new positions at different companies.

Some employees do not want to tolerate the demands of their job position or suffer while their company is going through a hard time. Employees in this position may not want to put up with the following:

  • Weekend work, long hours or frequent travel
  • Additional administrative duties added to current job responsibilities, such as copying or filing
  • Raises and promotions currently unavailable
  • Corporate relocation of offices or manufacturing plant

 

Other employees are looking to work on their professional development and won’t stick around long at a place that doesn’t value employee training. To avoid this scenario at your company, consider providing your staff members with the following opportunities:

  • Training programs to develop and gain skills
  • Access to conferences related to their field or industry
  • Subscription to an industry or trade magazine

 

Many employees want to know if they can have a career at their current company. If there’s not a future in it for them, they may look for another company that will need them. Here are some ways to make sure you’re considering your employees’ long-term goals:

  • Ask your employees what they would like to gain from working with your company
  • Implement a program that identifies and trains high performers for leadership positions in the future
  • During your regular employee feedback meetings, get their input on the types of projects they enjoy working on and what they’d like to work on next and in the future

 

A poor company culture is a big reason why employees quit their jobs. Some of the specific reasons related to poor company culture that drive employees to leave include:

  • Constant reorganization of management structure and company direction
  • Rejection of ideas or suggestions to improve the environment
  • Favoritism of some workers over others by team leaders
  • Competition among departments or teams, creating an environment that is more about competing than cooperating.
  • Promoting employees with less training or experience over  more deserving and/or skilled employees

 

If you have questions regarding your organization’s retention strategy, please contact a member of CAI’s Advice and Resolution Team at 919‑878‑9222 or 336‑668‑7746.

12-Month Period Under FMLA

Tuesday, March 11th, 2014

In today’s post, John Gupton, CAI’s General Counsel and HR Advisor on CAI’s Advice and Resolution Team, shares important information with employers about the Family and Medical Leave Act (FMLA).  

john g edit

John Gupton, General Counsel and HR Advisor

The Family and Medical Leave Act (FMLA) entitles eligible employees who work for covered employers to take unpaid, job-protected leave in a defined 12-month period for specified family and medical reasons. Generally, employers may select one of four options to establish the 12-month period to be uniformly applied to all employees taking FMLA leave.

The employer may use any of the following methods to establish the 12-month period:

(1) The calendar year – 12-month period that runs from January 1 through December 31;
(2) Any fixed 12-months – 12-month period such as a fiscal year, or a year starting on an employee’s anniversary date;
(3) The 12-month period measured forward – 12-month period measured forward from the first date an employee takes FMLA leave. The next 12-month period would begin the first time FMLA leave is taken after completion of the prior 12-month period; or
(4) A “rolling” 12-month period measured backward – 12-month period measured backward from the date an employee uses any FMLA leave. Under the ‘‘rolling’’ 12-month period, each time an employee takes FMLA leave, the remaining leave entitlement would be the balance of the 12 weeks which has not been used during the immediately preceding 12 months.

Employers may select any one of the four methods to establish the 12-month period as long as the method is applied consistently and uniformly for all employees.

Before changing to a different method of calculating the 12-month period, an employer must first give all employees at least 60 days notice of the intended change and the transition must take place in such a way that the employees retain the full benefit of their leave entitlement under whichever method affords the greatest benefit to the employee.

If an employer fails to select one of the 12-month period methods discussed above, the employer must use the 12-month period method that is the most beneficial to the employee.

Lastly, under no circumstances may an employer change the 12-month period to avoid the requirements of the FMLA.

For more information on the FMLA, go to http://www.dol.gov/ whd/ fmla/ index.htm.

New Self-Identification Form for Disability Status Released by OFCCP

Tuesday, March 4th, 2014

CAI’s Manager for Affirmative Action Services, Kaleigh Ferraro, shares the latest updates from the OFCCP. Make sure you are compliant.

Kaleigh Ferraro, Manager, Affirmative Action Services

Kaleigh Ferraro, Manager, Affirmative Action Services

On March 24, 2014, new regulations take effect regarding affirmative action requirements for federal contractors. One of the major changes is the requirement that federal contractors and subcontractors solicit disability status for employees and applicants. The Office of Federal Contract Compliance Programs (OFCCP) requires companies to use a specific and unaltered form, which was just approved and released. You can access the form at http://1.usa.gov/NQtyhn.

This voluntary self-identification form must be used by federal contractors to solicit disability status of applicants both pre-offer and post-offer. Solicitation of applicants using this form may be delayed until the contractors first AAP update after March 2014. This same form will be used to survey current employees at least every five years. Contractors must survey their current employees within the first year of the regulation changes (March 24, 2014 to March 24, 2015). For companies utilizing online applicant systems, the exact language of this form may be used online. If used electronically, it must include the OMB Control number, expiration date and use a sans serif font of at least 11 point.

If you have any questions about the affirmative action regulation changes or use of this form, please contact Kaleigh Ferraro at 919‑713‑5241 or kaleigh.ferraro@capital.org

Employee Engagement Starts and Ends with the Boss

Thursday, February 27th, 2014

In today’s video blog, CAI’s Vice President of Membership, Doug Blizzard, discusses employee engagement. Why aren’t my employees engaged?—is a question he often receives from CAI members. He says that many studies on the topic show that 60 to 70 percent of employees are not engaged with their organization. High numbers of disengaged employees mean companies are losing productivity.

Engaged teams are more profitable and more productive than teams that are not. Doug also notes that companies with disengaged teams face several challenges, such as higher turnover, increased absenteeism and more safety incidents.

Doug says the first step in getting your team engaged is realizing that engagement isn’t happiness or satisfaction. Engagement is really talking about the emotional commitment an employee has to his organization and its goals.

According to different studies, 70 percent of engagement is determined by an employee’s primary manager or boss. Doug explains that failure of the boss to execute good management has by far the biggest impact on engagement.  He says that everything employers do for their business will be interpreted by, reinforced,  ignored and even torn down by your supervisors and managers.

Doug says the message is clear: if you really want to engage your employees, start by developing your supervisors and managers.  If you’d like additional guidance on increasing employee engagement, please call a member of CAI’s Advice and Resolution Team at 919-878-9222 or 336-668-7746.