Posts Tagged ‘management’

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Ten Things N.C. Employers Need to Know About Independent Contractors and Joint Employment

Tuesday, December 14th, 2010

Gretchen Ewalt from the Ogletree Deakins law firm shared her expertise on Employee Classification (Employee or Independent Contractor) and Joint Employment at CAI’s October members-only Ask the Expert. Participants left the sessions with a number of recommendations that, if implemented, will limit their organization’s exposure to costly litigation and potential penalties.

Below are some of the points covered in these sessions.

1. Independent Contractor Tests. There are a number of factors considered by the IRS and the USDOL in determining if a worker is an independent contractor or an employee.  A brief description of a true independent contractor is as follows:

  • The employer does not control the means and manner of how a project is performed, only specifying the expectations of the end result.
  • The “contractor” has a viable business concern, having the opportunity to make a profit or suffer a loss, and provides the same services to other employers.
  • The “contractor” absorbs expenses incurred during the project.

2. Penalties for Misclassification. Penalties for misclassifying an employee as an independent contractor include state and federal tax liabilities, as well as back pay for wage and hour overtime violations.

3. Conduct Internal Audits. It is recommended that periodic internal risk analysis audits be conducted to ensure that independent contractors are properly classified.

4. Draft Independent Contractor Agreements. Contracts for independent contractors should be drafted by legal counsel establishing expectations by both parties to clearly show that the independent contractor relationship exists.  Language also needs to be included stating that the contractor waives and relinquishes any rights to the client’s benefit plans and that the contractor agrees to comply with all business/industry standards.

5. Educate Managers and Supervisors. Managers and supervisors should know the difference between an employee and an independent contractor and understand the liabilities incurred due to misclassification.

6. Definition of Joint Employment. A condition where an individual is providing services that jointly benefits two or more employers.

7. Joint Liability. Employers that utilize employees from an outsourcing agency can be held liable along with the agency for complaints filed by those employees with state and federal regulatory bodies.

8. Time Credited for FMLA. The time spent by an outsourcing agency’s employee providing services to a client employer is credited toward FMLA eligibility if that employee is employed as a regular employee by the client employer.

9. Outsourcing Agreements. Agreements with outsourcing agencies should be carefully drafted by legal counsel to ensure that the agency is responsible for taxes, insurance, business licenses and all employment matters, including employee training, disciplinary actions, compensation/benefit programs and maintenance of personnel files.

10. Contract with Reputable Agencies. Make sure that your outsourcing agency complies with all applicable laws and specify such compliance in the outsourcing agreement.  Ensure that their personnel policies/procedures are sound and that their managers are well equipped to effectively deal with agency employee complaints.

If you have questions about employee classification or joint employment, please contact a member of CAI’s Advice and Counsel team at 919-878-9222 or 336-668-7746.

Photo Source: University of Waterlo

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Top 5 Ways to Recognize a Disgruntled Employee

Thursday, November 18th, 2010

Everyone has seen or experienced a time of dissatisfaction at some point in their career – moments of questioning yourself, your role and your long-term position within the company. These fleeting moments are understandable, and are often expected. The problem is when the feelings linger and last longer than they should, and turn into a permanent state of mind.

Disgruntled employees can be seen as a lost opportunity for an organization. At some point, employees can become so frustrated that there seems to be no solution in sight. After taking the time to train, nurture and build employees into valued assets, the last thing any company wants is to have them walk out.

By recognizing displeased employees in advance, these problems can be avoided in the future. Consider the following signs as indicators of possible employee frustration:

Lack of motivation

For employees who once expressed a deep passion and drive for their roles, their company and their industry, a red flag should be raised when their enthusiasm and zeal have decreased. When employees stop trying and no longer give their best, it’s an obvious sign of discontent.

A breakdown of communication

If employees express their concerns but those feelings fall on deaf ears, there will always be a feeling of defeat. That lack of support can transition employees into shutting down, becoming distant and keeping their concerns to themselves, and the silence can be deadly.

A decline in employee performance

Are your employees’ results poor in comparison to the work they have produced in the past? A lack of pride and poor performance can be a sign of defeat, not just laziness. If people don’t feel their voices are being heard, or their growth is static, they may feel the extra effort is not worth it.

Responses from private employee surveys

These evaluations allow employees to speak openly and honestly about their personal and professional feelings towards management staff. By utilizing an anonymous tool like private surveys, companies can shed light on the true concerns internally because of the lack of judgment.

Communication between management and employees

Through regular employee discussions, updates and reviews, management can stay in tune with all staff members. This form of constant communication helps monitor and put a cap on in-house problems. Continuous discussion is probably one of the most effective ways to manage and prevent frustration from building up.

Communicate before it’s too late. Keep your eyes open. Don’t become complacent. Recognize that an essential role you play as part of the management team is to listen. Listen to what is being said, and what is not. You can avoid a percentage of the problems just by making yourself more aware of the day-to-day activities, emotions and actions that take place with your employees.

For information on how to prevent employees from becoming disgruntled or on how to turn around already disgruntled employees, please call a member of CAI’s Advice and Counsel team at (919) 878-9222 or (336) 668-7746.

Photo source: Peter Alfred

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Five Common Causes of Miscommunication in the Workplace and How to Avoid Them

Thursday, November 11th, 2010

Opinions won’t always match. Staff won’t always share the same point of view. Miscommunication is inevitable.

In the workplace miscommunication can be blamed for a significant amount of conflict and the tension that it stirs. It would be unrealistic to think all miscommunication could be prevented, but if we understood its causes, the percentage could likely be decreased. Five common causes include:

1) Being unaware of nonverbal communication

A significant portion of miscommunication occurs without recognition. Through nonverbal cues, communication is often misconstrued and misrepresented.  An individual’s facial expression and body language movement can be a powerful message that is delivered involuntarily. Recognize your message may be perceived different than originally intended. Take the time to accurately analyze yourself. Concentrate on your tone of voice, your eye contact and your body language.

2) Poor communication between employees and company management

For communication to be fluid between employees and management staff, communication must remain open, reachable and approachable. Ineffective communication begins to stir when employees feel as though their voices aren’t being heard. Have management check in with their staff members regularly. Hear their concerns and their successes. By having consistent conversations, potential problems can be avoided.

3) Not grasping the company’s global vision

What’s the big picture? The company president and those at the management level understand the company’s progression, but do all employees identify with the overall vision and growth process? This is a window that is sometimes overlooked, but expressing the global perspective of a company five, 10 and 15 years down the road allows employees to understand where they fit into the business strategy.  Employees become more efficient and feel more valued when they can visually see their role in the puzzle of the company.

4) Making assumptions

Promote an environment of open communication where employees feel as though their questions and concerns are welcomed and accepted. Without this style of communication, employees often make assumptions because they don’t feel comfortable speaking up, and we know what happens when people act off assumptions alone.

5) Lack of ownership

Where is the accountability? An essential part of functionality is for all members to fully understand and be aware of the roles that are played. Without accountability, employees subconsciously become comfortable dumping duties and shifting their weight onto another’s plate, opening the door for future problems to transpire.  The system of the company, as anticipated, will ultimately fail unless employees recognize that their role is not only important, but it is critical to the overall success of the organization.

CAI offers a number of programs to help improve communication in the workplace.  For additional information please go to www.capital.org or call (919) 878-9222 or (336) 668-7746.

Photo source: kimba

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Emergency Action Plans: Three Reasons Why Your Company Should Have One

Thursday, October 21st, 2010

An Emergency Action Plan, or EAP, is required by OSHA standards to facilitate and organize employer and employee actions during workplace emergencies. According to OSHA guidelines, an EAP should include at minimum the following:

  • Procedures for reporting a fire or other emergency;
  • Procedures for emergency evacuation, including type of evacuation and exit route assignments;
  • Procedures to be followed by employees who remain to operate critical plant operations before they evacuate;
  • Procedures to account for all employees after evacuation;
  • Procedures to be followed by employees performing rescue or medical duties; and
  • The name or job title of every employee who may be contacted by employees who need more information about the plan or an explanation of their duties under the plan.

Companies with 10 or fewer employees do not have to write their plan out. However, in all situations, it is recommended that drills occur so that employees know where to go and what to do during a calamity.

There are three key reasons your company needs to set up an EAP beside the OSHA requirements:

1)     It enhances your company’s ability to recover from financial losses, damages to equipment or products or business interruption. For example, if all of your employees know how to operate a fire extinguisher properly, they can stop a flame from becoming an inferno that can burn up part or all of your building.

2)     It bonds management and employees by having them share responsibilities in the plan. Assigning duties such as who will be in charge of leading the safe evacuation empowers employees, and meeting to discuss modifications in the EAP as needed makes them stakeholders in the company’s activities.

3)     It establishes favorable relationships with law enforcement leaders and firefighters who know you have an EAP and have communicated well the details of it with your employees. Think of the number of times you have seen a disaster happen at a business and news coverage has included a sound bite of an official saying it was obvious the company was not prepared for what occurred. That scenario can be prevented with you being proactive in setting up your EAP.

For additional information on emergency action plans and how they can benefit you and your company, please call a member of CAI’s Advice and Counsel team at (919) 878-9222 or (336) 668-7746.

Photo Source: Chris Violet

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Five Things Employers Need to Know about Immigration Law and I-9’s

Thursday, October 14th, 2010

Bernhard Mueller, immigration attorney with the Ogletree Deakins Law Firm, presented his “Immigration Law and I-9 Update” to CAI Members at our free, August, members-only Ask the Expert programs.

Here are some of the key points Mueller made during these sessions:

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

a. failure to complete an I-9 form for an employee

b. failure of the employer to ensure that Section 1 is properly completed and signed

c. failure of the employer to sign the I-9

d. failure to re-verify employment authorization after it expires

e. inconsistencies, such as an employee who checked the Permanent Resident box in Section 1 but subsequently asks the employer to sponsor him/her

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. The recommended practice is to include the following in the contracting agreement:

a. a statement that your company is committed to compliance with all federal and state employment laws, including hiring only employees authorized to work in the United States, and that you expect the contractor to comply as well

b. that you reserve the right to inspect the I-9’s of contracted workers that are supplied to you at any time

c. an indemnification clause

3. Employers who hire out-of-state employees (sales employees, construction, etc.) 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.) The employer should ensure that the contractor is knowledgeable of the legal requirements and appropriate procedures for I-9 completion since the employer is ultimately responsible.

4. 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 hired.

5. 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.

If you have questions about immigration law and I-9s, please call a member of CAI’s Advice and Counsel team at 919-878-9222 or 336-668-7746.

Photo Source: O. Cosma

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HR Failures: Top 8 Mistakes to Avoid

Tuesday, October 12th, 2010

The HR department of any company plays a vital role in the day-to-day functionality of the organization. To have a company that runs smoothly, demonstrates value to its employees and continuously improves upon its performance, there are critical mistakes you want to avoid.

1. Not having an employee handbook.

Effective employee handbooks are a necessity to operating a successful company by outlining all responsibilities, expectations and company policies in a clearly defined and easily accessed manner.

2. Ineffective documentation practices and procedures.

A well-organized documentation process is the foundation to any HR department. Whether you’re examining vacation records, employee performance levels, or compensation packages, it becomes impossible to measure efficiency without having a tracking system in place.

3. Not keeping up with your competition.

Be conscious of your competitors. What kinds of salaries and benefits are they offering and how do they compare to yours? Yes, the hiring process is more than what you financially offer individuals, but don’t underestimate its importance. Consider potential incentives or perks you can bring to the table to demonstrate the value you place on your employees.

4. Overlooking the individual strengths of your employees.

Recognizing the individual strengths within a company benefits all parties involved. This acknowledgement provides employees with satisfaction, demonstrates their worth and allows companies to build stronger organizations by highlighting their key players.

5. Not addressing employee performance.

You never want to get to the point where mediocre performance is accepted. By having regular evaluations management can effectively monitor employee performance levels and address potential concerns before problems arise.

6. Lack of staff training.

Find opportunities to continuously educate and train your staff. Seeking advice from those outside of your organization provides a new perspective and constantly keeps you ahead of the curve.

7. Failing to uphold company standards.

Whether it’s a relaxed dress code or virtual offices, each company has something that makes them unique, but the company standards are still the core of the organization. You aren’t allowed to slack off because you work virtually, and just because the dress code is relaxed, it doesn’t mean your employees shouldn’t look polished. Employees who do not observe company standards should be reminded to follow them in the future unless they want to face serious consequences.

8. Forgetting to evaluate management performances.

Assessing management performance is an easy way to monitor relationships within the company, evaluate employee satisfaction and make certain all employees’ voices are being heard.

For additional information, please call a member of CAI’s Advice and Counsel team at (919) 878-9222 or (336) 668-7746.

Photo Source: fireflythegreat

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The OFCCP and Affirmative Action: Seven Things Employers Need to Know

Thursday, October 7th, 2010

CAI was pleased to have John Burgin of the Ogletree, Deakins, Nash, Smoak & Stewart, P.C. law firm provide his expertise and insight on Affirmative Action and the Office of Federal Contract Compliance Programs (OFCCP) to our members as part of our free, members-only Ask the Expert series.

Here are some of the important points from the presentation:

1. What is the OFCCP? The OFCCP is responsible for ensuring that employers doing business with the federal government comply with the laws and regulations requiring nondiscrimination.

2. New OFCCP resources and priorities. The OFCCP received a 25 percent budget increase for 2010 that includes the hiring of more than 200 new compliance officers.  As a result, it is expected that the number of compliance evaluations will jump from an average of 4,000 to 7,000 per year.

3. Who must have a written affirmative action plan?  If your company has 50 or more employees and a federal government contract or subcontract to provide more than $50,000 a year in goods and services, then you are obligated to prepare annual affirmative action plans and to monitor closely your employment percentages of women and minorities compared to what is available in labor markets in which you operate.

4. Compliance timeline. From the time you accept a government contract, you have 120 days to put your affirmative action programs in place.

5. Hiring and compensation. Given the surge of litigation involving discrepancies in compensation systems, employers are particularly advised to be proactive in assessing their compliance. In addition to scrutiny of compensation by race and gender, there is a focus on low-wage and entry-level jobs.

6. Define your hiring process: Who is an applicant? Unless the application process is entirely a paper process, ensure the applicant data meets the four criteria of OFCCP’s definition of an Internet applicant

7. Know your data. Employers need to know what data they have available and what is being tracked prior to any OFCCP audit. Analyze your data on a regular basis.

If you have questions or would like more information about the OFCCP and affirmative action plans, please call CAI at 919-878-9222 or 336-668-7746.

Photo Source: Wikimedia Commons

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How to Avoid Employee Lawsuits

Tuesday, October 5th, 2010

While the 2010 numbers will not be available until early 2011, Jury Verdict Research reported that the median award for all employment-related claims in 2009 ($326,640) was 60 percent more than it was in 2008.

In addition it’s widely expected that the number of employee lawsuits will continue to increase, in part due to the recession.  Another contributor to that increase is the growing presence of attorneys who specialize in filing lawsuits for employees with grievances against employers, and not just claims regarding hiring/firing practices, but also charges of discrimination, defamation and several other issues.

An employee lawsuit can deplete your time and money when those resources should be better spent. It also can result in substantial damages to your business should you lose the suit.

To minimize the likelihood of an employee lawsuit happening in the first place, take the following actions:

1)     Treat all employees with fairness, dignity and respect. Create an atmosphere of positive employee-employer relations.

2)     Have signed documentation from the employee that he or she has read the employee handbook and agrees to follow it. The handbook should include an antidiscrimination and harassment policy as well.

3)     Communicate company policies on a continual basis. Do not just give employees a handbook and never address the policies again.

4)     Put safety standards into place and make sure employees know they exist. The N.C. Department of Labor has a guide explaining how OSHA standards work in the state and what employers can do to comply with them.

5)     Train your managers on workplace laws. Make sure they are aware of the many laws that apply to the workplace and that they follow them stringently.

6)     Consistently enforce company policies. Do not let some employees slide while disciplining others for the same violation.

7)     Document the progressive disciplinary process. Notify the employee in each case about what they did wrong along with filing this information securely.

Even if you follow all seven steps above you may still be sued by an employee.  You may want to check with your insurance carrier to see if they offer employment practice liability insurance. More insurers are offering this benefit. Details on what a plan can cover can be found at the Insurance Information Institute website.

For additional information on how to avoid employee lawsuits, 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

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“ALL OF YOUR BASE ARE BELONG TO US. RESISTANCE IS FUTILE.”

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 www.capital.org/triadlaw.

Photo Source: my.aegean.gr

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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 http://www.hrci.org/hrcertification.aspx?id=163.

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

Photo Source: Affiliated H.R. Co.

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