HR Entrepreneur

Employee Referral Programs

2012-01-17T18:40:00.000-05:00

Even though there are many reports about high unemployment I want to tell you that hiring is still taking place. I always tell my clients that one of the most cost-effective ways to recruit is via an employee referral program.

If you are considering adding an employee referral program, let me give you some thoughts to contemplate:

Referral bonus amounts need to be significant. If for example your referral bonus is $75, than I need to tell you that you need a reality check. The bonus has to be meaningful if you want your employees to share with prospective candidates how great your company is and why they should work for you. How much is meaningful? We use metrics in human resources so I would calculate your cost per hire and use that as your guide. The formula to calculate cost per hire which I use is:

(Advertising Costs+ Agency Costs + Employee Referrals + travel C + Relocation C + Reference Checking C )x
1.10 Number of Hires

For example: My consulting firm estimates $7000.00 to hire a Product Manager in your company. Your company could offer a referral bonus of $2500.00 and still save money depending on other costs. In addition, you get the added benefit of increased employee engagement in the recruiting process. The referral award needs to be in proportion to the cost you would pay for the employee search.

I also believe that companies should limit the waiting period for paying referral bonuses. I believe it should not be longer than two months. The employee has provided your company with a candidate and the responsibility for selection and retention lies with your organization and not the employee. The manager would now be responsible for the candidates retention. Why would an organization make their employee wait for their referral bonus? If your new hire leaves your employ after four months then the issue lies with your manager and your onboarding process and not with the employee who originally referred the candidate.

Referral bonuses can be a great recruiting tool for your company. However, remember the that the success of the program lies with appropriate pricing, timely payment and effective management of the program by the hiring managers.

2012-01-06T14:58:00.000-05:00

I have to admit that I'm one of those Blackberry believers. The amount of things I can do with my Blackberry continues to amaze me daily. I recently saw a video entitledThe Growth of Mobile Stats and Figures which will Shock You and learned the following:

Over 70% of the worlds population now have a mobile phone, that’s over 5 billion mobile subscribers, and in places like the US, it’s 9 in 10 people.
Children are now more likely to own a mobile phone than a book.

Now that’s a pretty crazy statistic. When I saw that I thought how important is mobile technology to business? 59% of small businesses say wireless technology is essential to their business. How much business is your company losing if your employees are not mobile savvy. I have to believe that it's in the best interests of small businesses to teach their employees how to be more productive using this technology.

I'm not saying you need a "you can't use your cell phone while driving policy". Small business should consider training sessions for their employees on how they can be productive using their mobile devices. Mobile phones today allow you to do more than just update your Twitter account.

If your organization is looking for new ways to increase employee productivity, exploring mobile productivity training sessions could make a lot of sense for you. In the words of Steve Jobs, "It's not the tools that you have faith in - tools are just tools. They work, or they don't work. It's people you have faith in or not." Teaching your employees how to be productive on mobile phones is a win win for small businesses.

Anti-Harassment Training - It's 2011 -Do we Need it?

2011-11-07T18:00:00.000-05:00

I'd like to take this time to talk about the overall value of anti-harassment training. Back in 2010, an ex-staffer filed a complaint of sexual harassment against ESPN (http://blog.ctnews.com/takeonlife/2010/10/).

The first line of defense we drill into managers during anti-harassment training is we will conduct a thorough investigation. We cannot guarantee confidentiality. We will investigate and hold those employees who violate the company anti-harassment policy accountable. We will not sweep this under the proverbial rug.

It got me thinking a few things about anti-harassment training and investigations. For instance:

Conducting anti-harassment training gives the company a chance to say, “You the employee are accountable for your own stupid behavior.” It's a line of defense companies use if a lawsuit is filed.

Even if you are a baseball star, ESPN announcer, rock star, golf superstar, accounting manager, stock clerk, whatever…if you make sexually inappropriate comments or create a hostile environment with words and deeds, you will pay the consequences.

In today’s second by second news world, you can’t outrun social media. Not going to happen. If one of your employees makes headlines in the opening salvo on TMZ, then I suggest you have a strong plan in place to handle the fallout. Don’t make the assumption it can’t happen to you. We all know what happens when you assume.

I know that most business owners, especially small business owners, believe that since it's 2011 don’t people know by now that discrimination and harassment are wrong? They believe why should I spend time and money on training when everyone by now knows the drill.

I believe it's a great thought albeit pie in the sky. A moment later, I receive an email from friends sending me links to news stories involving people like Brett Favre or Quinton "Rampage" Jackson.

Executives Can Be Liable for Wage and Hour Violations

2011-11-01T16:44:00.000-04:00

Saying that it should “come as no surprise” to the president and CEO of Gristedes, a popular grocery chain, the U.S. District Court for the Southern District of New York held the executive individually liable for millions of dollars in unpaid overtime compensation.

In this class action lawsuit that spanned a number of years, mid-level managers at the defendant’s chain of New York-based grocery stores claimed that the company misclassified managers to avoid paying them overtime. Although the case was settled in 2009, the employees claimed that the settlement’s payment schedule was not adhered to. Therefore, the employees argued, the president/CEO/sole owner of the grocery store should be held individually liable for what amounted to millions of dollars in unpaid overtime.

What the court said. The court rejected the CEO’s argument that he exercised no control over the employee classification system or payment of overtime. Instead, the court determined that the CEO was an “employer” within the meaning of the Fair Labor Standards Act (FLSA) and New York Labor Law. The court held the CEO personally liable.

The lesson here for executives - it's more important than ever to ensure that your company wage and timekeeping policies adhere to the FLSA. Ensure your timekeeping records are accurate and will hold up in a court of law.

Although most employers indemnify CEOs and presidents against personal liability in most situations, it is important to note that if the company’s policy is inadequate or incomplete, executives are still liable. As a result, auditing an organization’s FLSA classifications is more important than ever— especially to executives.

The U.S. Department of Labor (DOL) recently announced availability of a new timesheet application enabling your employees to independently track their hours to help determine the wages they are owed. Consequently, if your organization is still relying on manual or outdated timekeeping systems, you many now face increased exposure to wage and hour audits and/or lawsuits.

To Do List for Health Plans

2011-09-22T11:32:00.000-04:00

There are new rules for employers who offer health coverage under the reform law which will have an impact on various provisions of the plan. Here are some of the ways in which they will be affected:

Coverage for young adults. All group and individual plans that provide for dependent coverage must continue to make such coverage available for an adult child, regardless of marital and tax-dependent status, until the person turns 26. Coverage generally does not need to be provided to an adult child eligible to enroll in his or her employer’s group health plan.

Starting in 2014, however, even if the adult child has coverage available through his or her employer, the parent’s plan will not be able to exclude the adult child until the child’s 26th birthday.

Until 2014, the law’s provision regarding coverage of children under 26 will cause many adults under that age who do not have coverage available through employers to enroll or re-enroll in the parent’s health plan. Traditionally, this group has relatively low utilization expenses. Nonetheless, employers will need to be mindful of potentially increasing plan costs from previously ineligible children.

No caps on lifetime benefits. All lifetime limits in individual and group health plans must be eliminated on “essential health benefits” as defined by the U.S. Department of Health and Human Services. Many employer plans currently impose a $1 million or $5 million lifetime limit on coverage. Further, annual benefit limitations for items deemed as “essential health benefits” must also be eliminated by 2014.

Pre-existing conditions get coverage. For plan years beginning on or after Sept. 23, 2010, there can be no exclusions of coverage for pre-existing conditions for health plan participants under 19, regardless of the current carve-out for creditable coverage, as stipulated in the Health Insurance Portability and Accountability Act of 1996, known as HIPAA. And starting in 2014, there can be no exclusions for pre-existing conditions for anyone, regardless of age.

For a copy of the Health Care Reform timeline, please send an email through my website and I will send you the timeline.

Auditing Personnel Files and Records Maintenance Procedures

2011-09-07T11:21:00.000-04:00

Why should you audit your personnel files and records maintenance procedures? There are any number of liability issues out there for small business owners when it comes to to improper employment record maintenance procedures. There are any number of violations of the following laws relevant to small business employment files: medical privacy, nondiscrimination, I-9's, identify theft, and record retention.

Medical Privacy: The Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health Act, and the Americans with Disabilities Act protect your employees private medical information. If small business owners owners share their employees private health information without their consent or if proper security measures are not in place, then you can potentially have a privacy violation. There are also Federal laws which can be triggered by federal breach notification requirements. Federal laws require that employers establish specific policies and procedures for maintaining employee medical information. These records should be maintained confidentially and must be separate from employee personnel files. Strictly limiting access to medical information on a "need to know" basis will reduce opportunities for violations.

Nondiscrimination. Supervisors should have access to employee personnel files when they are making employment decisions. Therefore, only information relevant to an employment decisions should be kept in the personnel file. Anything that is not relevant to the job or includes any information that distinguishes an employee’s protected class should be kept confidential and separate from the personnel file.

Identity theft. Employers obtain employee personal information, including employee Social Security numbers, for payroll and other employment purposes. Security and maintenance of these employment records is imperative to avoid company liability if these records are accessed and used for identity theft purposes.

Record retention. Employers must follow state and federal record retention laws.

I-9 Audits. An unexpected I-9 audit can bring with it a multitude of penalties if I-9 forms are not in compliance. It is in the employer’s best interest to take proactive steps to review, document and correct I-9 form mistakes prior to an outside audit in order to reduce assessed fees and penalties.
The best way to keep your company in compliance with employment documentation is to conduct periodic personnel filing and maintenance procedures audits. If you would like a free copy of an Employment Record Audit checklist, please contact me at hr@thompsonconsultingco.com.

Employer Reporting and Notification Requirements

2011-09-01T09:19:00.000-04:00

All health insurance plans must comply with new disclosure requirements, subject to forthcoming regulations from federal agencies. The Patient Protection and Affordable Care Act set the following deadlines:

2011
Companies with more than 50 employees must report:

Whether they offer their full-time employees and their dependents the opportunity to enroll in minimum essential coverage under an eligible employer-sponsored plan.
Waiting periods.
Lowest cost options in the plan.
Employer's share of each option.
Number and names of full-time employees receiving coverage.

2012

Employers must disclose the value of the benefits they provided in 2011 for each employees health insurance coverage on the employees' annual Form W-2s.

2013
By March 31, employers must notify employees about:

State health insurance exchanges.
Whether the employer's plan meets minimum coverage requirements.
How to access information regarding premiium subsidies that might be available for exchange-based coverage.

How Do You Fire an Employee?

2011-08-22T10:39:00.000-04:00

Firing an employee can be one of the hardest things you will do as a business owner. The next-hardest thing is defending your actions in a wrongful termination lawsuit.

You can minimize the risk of firing an employee by ensuring you treat them fairly throughout the termination process. The most frequent mistakes employers make is lying about the reason for termination, not terminating other employees for the same misconduct or performance issues, terminating for a trivial reason, and terminating someone in violation of the law.

In New York, most employees are "at will," which means that ongoing employment can be terminated by either party. There are some exceptions to this rule such as contract employees.

There are state legal limitations on the employer's right to terminate, such as termination based on race, color, national origin, ancestry, sex (including pregnancy and gender identity), age, physical or mental disability, marital status, sexual orientation, protected medical conditions, religion, or any other protected class. Federal law mimics this law and also prohibits termination based on citizenship or union activity.

Contracts can also limit an employer's right to terminate employees. You may have an employment agreement that termination will only occur "for good cause." The employee then has the burden of showing that termination was without good cause.

To minimize the risk of wrongful termination claims, ensure that your decision does not violate the law (both state and Federal), company policies, or your past practices with employees in similar situations. Ensure that you have all of the proper documentation to support your action and make certain that you carefully draft the notice of termination.

Job Seeker Advice

2011-08-10T09:18:00.001-04:00

I've been in human resources for over ten years and I can guarantee to you that every human resources manager is different from the next one. I can't give you a lot of great career advice but I can tell you that you won't get a job based on your resume alone. However, you will get a job based on how well you sell yourself. For what its worth listed below is some of the simpler easy to use advice I can give job seekers:

I get asked all the time, "what font should I use?" It does not matter what font you use as long as long as the human resources manager can read it and doesn't need to use zoom view to find your words. I would recommend Arial or Times New Roman in the average size of 10 to 12.

I don’t care how many pages you have for your resume; however, I would recommend between one and two pages. You're not writing a book.

I am a believer that aesthetics matter. Margins should be even and bullet points should line up directly evenly. Spacing should be consistent. Your resume should be a mirror of yourself as an employee. Show that you care about the finished work.

Email addresses should be short and simple and should reflect your name. Jane.doe@gmail.com for example. It's hard to believe you will be a superstar with an email address such as negativeoutlook@gmail.com. Use this new, simple email account solely for your job search activities.

Objective statement - it should be no more than 100 words and should reflect what you are looking for in a position. If you have had different career paths in your lifetime ensure that you take this strong opportunity to state where you want your path to move to now.

Please do not include hobbies, interests. Listing these activities can consciously or subconsciously disqualify you. The hiring manager may have strong preconceived ideas which could disqualify you if you list your personal hobbies, etc.

Cover letters are crucial. I know there are bloggers out there who believe they are a waste of time. As a hiring manager I can dispute this. Your resume should be the beginning of a conversation but the cover letter tells me what you want to do and why.

Employees Email Privacy Rights

2011-08-05T12:30:00.000-04:00

If your company policy states that the employer can review, audit and access all matters on its computers, including email messages, it will not necessarily give the employer the right to review/access personal email accounts which are password protected.

The New Jersey State Supreme Court, in one such example (Stengart v. Loving Care Agency, Inc.) found that Loving Care's policy was ambiguous. The policy stated that all communications on the company’s systems belong to the employer and that employees should have no expectation of privacy for any such communications. The policy also stated, however, that “occasional personal use” is permitted. Examining these provisions, the court held that an employee could interpret “occasional personal use” as suggesting that such communications were distinguishable from business-related communications and, in fact, personal, privileged communications. Thus, the appellate court held that the employer’s access might not extend to such communications, even from its own systems.

The appellate court rejected company ownership of a computer as the determinative factor of whether an employee’s otherwise privileged emails become the company’s property. Rather, there must be a balancing of the employer’s legitimate business interests with the attorney-client privilege. The court reasoned, “[A]n employer may monitor whether an employee is distracted from the employer’s business and may take disciplinary action if an employee engages in personal matters during work hours; that right to discipline or terminate, however, does not extend to the confiscation of the employee’s personal communications.”

Employers are advised to review their electronic communications policies and ensure that such policies clearly communicate the employer's rules and expectations involving company email and personal password protected e-mail.

HR Policies to Terminate

2011-08-03T14:20:00.000-04:00

I believe strongly that there are some policies in human resources which we should just terminate altogether. My main list of indignities include the love contract, the no open toe shoe rule, and the dreaded doctors note. Let's just say Ciao to these policies completely. Here are some of my highlights:

The Dress Code Policy. I'm all for the short and simple policy. We are a business casual office. When in doubt, please walk on the side of caution. Please use your own good judgment and if you still need clarification, please ask your manager about the appropriateness of the article of clothing you are considering wearing to work. Let's face it - human resources writes these draconian policies to try to avoid having the managers have a face-to-face conversation which begins, "About that outfit you're wearing. . .. " I believe this conversation is sometimes going to be necessary no matter how draconian your policy. Let's treat our employees as adults.

Bereavement Policy. In this era of nuclear families and stepparents, it is just unfair to limit bereavement time to biological parents and/or biological grandparents. Let's treat our employees as adults and give them the blanket amount of bereavement days per year without asking human resources or their managers to find out what the exact relationship of the employee was to the deceased. Sure an employee could lose three grandparents in one year and sure one grandparent was a step but who are we to determine the level of the employees grief? Give out the blanket amount of days and respect that your employees will act like adults.

Can it be so hard to ask employers to terminate some of these more ridiculous policies?

Non Exempt Employees Travel Time

2011-07-29T10:51:00.000-04:00

The US Department of Labor is actively seeking out businesses who do not comply with the FLSA (also known as the Fair Labor Standards Act). Employers need to use caution in calculating hours worked when nonexempt employees (hourly employees) travel.

What should you consider?

Work Time. Nonexempt employees must be paid for all hours worked, including time spent working outside the office for business trips and meetings. The caveat here - this includes assigned work as well as work not directly requested by the employer. Therefore, if your nonexempt employee voluntarily works extra hours in the hotel without your knowledge or consent, they must be paid for that time.

Breaks. Nonexempt employees must be paid for rest or meal periods lasting 20 minutes or less. Break periods that exceed 20 minutes need not be compensated.

Waiting time. When a nonexempt employee spends time waiting while on the trip, they may be eligible for pay. If they are completely relieved of duties while waiting, it is usually not compensated. However, if you require the employee to work while waiting (i.e., emails, phone calls), then the nonexempt employee must be compensated for that time.

Travel pay. My most often asked question is travel pay for nonexempt employees. For a one-day assignment, if the nonexempt employee travels to a location in another city, all travel time is considered compensable. However, the employer can deduct the employee's normal commuting time to a regular work site. For overnight trips, travel time is counted when it occurs during the employees normal workday hours, regardless of the day of the week.

Employer Overpayments

2011-07-27T15:12:00.000-04:00

It would be a perfect world if all employees came to us when they were overpaid. However, it's probably not going to happen which is why its important to have a check and balance system and to use this system to review each pay cycle. What should you do when an employee is overpaid? What can you do legally? There are several factors to consider and each situation is unique.

Let's take an example. Suppose an employee is overpaid only a small amount and the situation is one that the employee can pay the money owed back in a relatively short amount of time. In addition, the money overpaid and the money being repaid will both be taken care of in the same tax year. What is the right way to handle this? The biggest issue is compliance on both the side of the employer and the employee. Remember your first priority as an employer is to ensure that you calculate employees pay and withholding amounts properly. All too often employers in this situation inadvertently under withhold employees income taxes. What does this mean? After you make any adjustments for repayment of funds, you want the employees gross to net pay and taxable income to equal what it would have been had the employee been paid correctly in the first place.

How do we do this? If you can't do an ACH reversal then you can void the payment and collect back the net amount as an after-tax deduction. This after tax deduction can occur in one or more pay cycles; however, the entire amount must be collected before the end of the year. The other option is to have the employee give you a check for the net amount.

Always remember to that over payments must be handled in the same year. If not, then you will not remain in compliance with the IRS rule of "constructive receipt". If there are good controls, audits, and balance procedures, the need for corrections after the fact will become less and less. However, we are all human and as such mistakes will happen.

FLSA Errors

2011-05-10T14:57:00.000-04:00

I recently read an article which stated that the Department of Labor continues to go after employers in a cluster of industries for FLSA violations. I'm always amazed that industries from all walks of life and all sizes continue to violate these standards. With the proliferation of radio advertisements and television ads with lawyers hawking their willingness to help employees get back the overtime owed them, I would have thought that more companies would perform annual FLSA audits.

Here is a list of some of the FLSA issues which your organization might be in violation of:

Meal period violations, including automatic deductions for meals even when those breaks are interrupted by work or are not taken in full because of an emergency. A meal period is non-compensable only if a worker is completely relieved of work.
Rounding time in the employer's favor. Rounding of hours is allowed if it results in a neutral impact on workers.
Pre-shift and post-shift time, which might come into play, for example, when donning or doffing equipment, such as in a radiology department.
Off-the-clock work, particularly if supervisors tell employees not to record time worked in an attempt to avoid paying overtime.
Travel time, for example, for home health workers traveling between work sites.
Failure to aggregate work hours. The Department of Labor might view time worked at two or three doctor's offices as time that should be aggregated if they are officially recognized as the same employer.
Misclassification of workers as exempt when they should be classified as non-exempt.

I can't stress enough the importance running payroll audits annually. Misclassification of employees is the biggest error I encounter in my consultant business. I can't tell you how many managers I have come across in my human resources career who ask me, "what can I do to make this employee exempt?" It's not what can you do - it's what the employee performs daily which sets their classification.

State Departments of Labor are looking for ways to increase revenue. Run the audit of your pay practices as soon as possible as you just might end up saving your organization a lot of money.

New York Wage Theft Prevention Act

2011-04-06T14:14:00.000-04:00

Good grief! I guess we can thank our former Governor Patterson for this employer nightmare. While it is true that there are employers who treat their employees poorly, the good ones are going to be annoyed about the new Wage Theft Prevention Act. This Act may well turn your employees into mini litigators. There has been a great deal of confusion on the new law, so I have decided to post on it so that we can sort through the confusion together.

The New York Wage Theft Prevention Act (http://tiny.cc/uv3mn) amends New York State Labor Law Section 195. The new law is effective April 9, 2011. The goal of the new law is intended to protect employees from wage theft by their employers. The new law applies to all private employers and there is no minimum employee threshold.

The law requires that a notice be given to NEW HIRES and another ANNUAL NOTICE to be given to all other existing employees. New hires must receive the notice at the time of hire. Existing employees must receive the notice annually on or before February 1 of each year. The New York State Department of Labor should be issuing template notices; however, as of this time, it has not issued samples.

THE NOTICE
Specifics of the Notice:
1. It must be written (not verbal) and in a separate document.
2. It must be written in English AND in the employee’s “primary language” as defined in the statute.
3. It must be provided to the employee IN DUPLICATE so that the employee can keep a copy.
4. The employer must retain an original SIGNED acknowledgement of the notice and retain the signed acknowledgement for six years. An email reply is INSUFFICIENT.

The notice must contain the following:
1. Rate of pay.
2. Basis of pay (hourly, etc.).
3. Allowances claimed as part of the minimum wage.
4. The employer’s regular pay day.
5. The name of the employer and any d.b.a. names.
6. The physical address of the main office or primary place of business of the employer.
7. The mailing address, if different from the physical address.
8. Telephone number.
9. For nonexempt employees, the hourly rate of pay and the overtime rate of pay – presumably even if these nonexempt employees are not paid on an hourly basis.
10. Any additional items that the Commissioner of the Department of Labor deems material and necessary.

Some information that the Commissioner may deem material and necessary could include, for example, the employer’s tax identification number, the preparer’s name and signature, the exemption status claimed (i.e. executive, administrative, etc.).

THE ACKNOWLEDGEMENT
Specifics of the Acknowledgement:
Specifics of the acknowledgement requirement (separate and apart from the notice requirement) include:
1. An acknowledgement must be obtained each and every time an employee is provided with a notice.
2. The acknowledgement must be written and must be its own document (i.e. it cannot be incorporated into other employer forms).
3. The acknowledgement must be English and in the employee’s primary language.
4. The acknowledgement must be signed and dated by the employee.
5. The new law does not specify a deadline by which the acknowledgement must be signed but an employer cannot rely solely upon proof that the employee received the notice.
6. The law permits electronic notice and acknowledgements (assuming the proper web-based forms are available for the employer to comply with the strict notice and acknowledgement requirements).
7. If an employer provides the notice electronically, the employee must be able print a copy of the notice at any time without cost.

Contents of the Acknowledgement:
1. The employee must acknowledge receipt of the notice.
2. He/she must affirm that he/she accurately identified his or her primary language to the employer.
3. He/she must affirm that the notice provided was in his/her primary language.
4. The statute permits the Commissioned to require additional contents.

ADDITIONAL NOTICE PROVISIONS
1. Written notice of changes in the items identified above (i.e. those contained in NYS Labor Law Section 195.1) unless those changes are reflected in a wage statement. In other words, if an employee receives a raise, one would likely be compliant if the new rate of pay was reflected in the employee’s pay stub.
2. Notice of other policies in writing or by posting such as vacation, sick, personal, holidays, and work hours.
3. The “5-day letter” which requires employers to notify a terminating employee of the exact date of the cancellation of his/her health insurance benefits.

WAGE STATEMENTS
Certain employers may have to modify their payroll systems in order to comply with the law. The law also requires that employer’s provide a written explanation of how wages were computed if requested by the employee. Wage statements, which must be provided with every payment of wages, must include:
1. The employees name
2. The employer’s name, address and telephone number.
3. The dates of work or pay period covered by that specific payment of wages.
4. The rate(s) of pay and the basis of pay.
5. Gross wages.
6. Deductions.
7. Allowances claimed as part of the minimum wage.
8. Net pay.
9. Nonexempt employees – the regular hourly rates of pay, the overtime rates of pay, the number of regular hours worked and the number of overtime hours worked.
10. For piece rate employees – the number of pieces completed at each piece rate.

RECORD KEEPING REQUIREMENTS
1. The burden remains on the employer to maintain and preserve records.
2. Acknowledgements must be retained for six years.
3. Payroll records containing the information required under Wage Statements above, must be retained for six years.

PENALTIES
Failure to Provide Notices
1. For new hires, the employee may bring a private civil action against the employer in the event proper notice is not provided by the employee within 10 days of the employee’s first day of employment. The employee may recover a maximum of $2500 plus attorney’s fees and costs.
2. The Commissioner may also bring legal action against an employer for failure to provide any notice required under Section 195.1.

Failure to Provide Wage Statements
1. Employees are permitted to bring a private civil action against the employer which is capped at $2500 plus attorneys fees and costs.
2. The Commissioner may also bring legal action against the employer.
3. There is a six month statute of limitations.

Underpayment of Wages
1. The Commissioner may commence civil action against the employer for the full amount of the underpayment of wages plus a liquidated damages amount of 100% unless the employer can demonstrate a good faith belief that he/she was in compliance. This is an increase from the current level of 25%. Also, attorney’s fees and prejudgment interest may be granted.
2. There is a six year statute of limitations.
3. Upon finding of a first violation, the Commissioner can order the payment of unpaid wages plus the liquidated damages amount of 100%.
4. Upon the finding of a subsequent violation or a willful or egregious violation, the Commissioner can order a liquidated damages amount of FOUR TIMES the amount of unpaid wages.
5. The Employer (certain senior officers) may be subject to criminal penalties including misdemeanor and felony violations depending upon the offenses.

Remedial Penalties
1. The Commissioner can require notice of violations to be posted either in the employer’s premises or to the public.

As if you didn't have enough to do.....

Employee Motivation

2011-03-09T15:29:00.000-05:00

The world is full of underdogs! The newspapers are predicting the United States of America is on the down slide. Yankee fans have their doubts that this year we might not make the playoffs. Suppose all your employees were in the boardroom and you needed to motivate them. What would you do?

For those of you who are millennials, I'll share with you the story of the ‘Miracle on Ice.” Some of you may be familiar with this story. Back in 1980 the US Olympic Men’s Hockey Team pulled off, in my humble opinion, THE biggest upset in sports history. They were the underdogs and they captured the gold medals. They were a group of unknown college kids and amateurs who came together as one unit and upset a heavily favored team of Russian professionals.

Their coach, Herb Brooks, told them before the match that if they played the Russians ten times, they might lose nine out of ten, but they weren’t going to lose that one! He said “…One game. If we played 'em ten times, they might win nine. But not this game. Not tonight. Tonight, we skate with them. Tonight, we stay with them. And we shut them down because we can!...” That day’s game was going to be the one-in-ten that they win. Why? Because they can!

What about your workplace? Is there some dramatic, fun, and concrete gesture that you could use to motivate your team? Share it in the comments below.

In the infamous words of coach Herb Brooks, “This is your time! Now go out there and take it!”

Health Care Reform

2010-11-17T10:48:00.000-05:00

There is much confusion surrounding healthcare reform. It's hard to understand changes and policies when the authors/sponsors of the bill itself have not read the entire document. Today we discover that more than 30 companies have waivers granted and a majority of them are union healthcare plans. Fair or not, it's important to understand what the requirements are for 2011. It's important to begin thinking about strategic communication needs - how to keep your employees engaged in their health and managing costs while also meeting the new legal requirements.

The three major changes taking place January 1, 2011 are the following: annual and lifetime limit changes, revised dependent eligibility for older children and primary care physician designation and OB/GYN self-referral change. Many of the resources companies will need to help them with these three key elements can be found at the Department of Labor site (www.dol.gov/ebsa/). In addition, there are other notices you can access here which include:

Lifetime Model Notice
Revised Dependent Eligibility for older children
Primary Care Physician Designation and OB/GYN self-referral change,

It's very important for companies at this point in time to view the new requirements as avenues for open and honest communication - communication which will ideally make employees better health care consumers and more aware of their employers' investment in their benefits.

Casual or Business Attire?

2010-09-20T14:19:00.000-04:00

I'd like to share with everyone that I am a huge sports fan and never miss a Yankees/Jets game. All summer long you will hear lots of shouting from my windows as I alternately cheer or groan at the Yankee game. If the Red Sox are in town you'll probably find me at the stadium. So when Fall comes along, Sundays become television marathons as I watch first baseball and then football.

This past Sunday became more about the story of reporter Ines Sainz and the New York Jets locker room. It brings to my mind the importance of dress code policies and harassment training. In today's world of business casual and club outfits masquerading as work attire, the importance of a dress code policy has never been more at the forefront. As a small business owner, I want to ensure that everyone who represents Thompson Consulting Company represents the image I want to project.

Alternately, since the line between work attire and provocative has become more blurred the importance of harassment training becomes an employers best friend. When employees are faced with images / issues out of the norm, I would expect them to respond and behave appropriately.

We could go back and forth all day about the issue of Ines' attire and how boys will be boys. However, neither option is a defense. As a woman and a business owner, I would never consider meeting clients in the same attire Ines chooses, however, she has the right to dress how she chooses and employers must demand that she be treated professionally and respectfully regardless of her attire. Ines employer promotes her style of dress so I would imagine that their dress code would be different from mine.

If this scenario came up with a client of mine, we would probably debate the social issue for an hour of Ines attire and how it's unprofessional; however, at the end of the meeting we would decide to institute harassment training and demand from our employees respect for all individuals. As an employer, I would encourage my employees to dress professionally so that the message they wish to convey comes across to potential clients and not their style of dress.

Harassment training is crucial for all employers especially small business owners who tend to overlook the necessity of the training. I'm always amazed at how businesses feel that just saying to employees not to whistle is enough training against harassment. Professional, legal harassment training does not make your organization 100% bulletproof against lawsuits but it becomes an excellent foundation for your defense. One must ask why an organization as public and large as the New York Jets did not institute standard harassment training prior to this incident. I'm guessing they probably have a dress policy for their administrative employees.

Please share your thoughts.

Patient Protection and Affordable Care Act Employer Disclosure Requirements

2010-07-14T15:49:00.005-04:00

There's a lot of information out there in regards to the Patient Protection and Affordable Care Act (http://www.dol.gov/ebsa/healthreform/). As an employer you probably want to skip the long-winded and often confusing jargon laid out by the United States Government. Here's an easy to understand list of employer disclosure requirements.

All health insurance plans must comply with the new disclosure requirements, subject to forthcoming regulations from federal agencies. The Patient Protection and Affordable Care Act sets the following deadlines:

2012

Employers must disclose the value of the benefits they provided in 2011 for each employee's health insurance coverage on the employees' annual Form W-2's.

2013

By March 1, employers must notify employees about:

State health insurance exchanges
If the employer's plan meets minimum coverage requirements
How to access information regarding premium subsidies that might be available for exchange-based coverage

2014

Companies with more than 50 employees must report:

If they offer full-time employees and dependents the opportunity to enroll in minimum essential coverage under an eligible employer-sponsored plan
Waiting periods
Lowest cost options in the plan
Employer's share of each option
Names of full-time employees receiving coverage

What do you think of the Patient Protection and Affordable Care Act? Do you think this will help employees or make their present coverage less than it currently is now? Please leave a comment and let me know your thoughts.

If you would like a complimentary Excel timeline on the Patient Protection and Affordable Act, please email me at info@thompsonconsultingco.com and I will send it along to you upon your request.

Summer and the Dress Code Policy

2010-05-24T14:11:00.005-04:00

Here’s a post that's hilarious and yet important at the same time. It's almost here - the official kickoff to summer weekend - Memorial Day! It's getting warmer outside. The mercury is rising and so is the risk of dress code violations. If your company has casual attire then some violations are more egregious than others.

Let's laugh a little before we address my take on this minefield of an issue. I offer you this joke I found online that I have a feeling you’ll enjoy:

Casual Fridays:

Week 1 - Memo No. 1
Effective this week, the company is adopting Fridays as Casual Day. Employees are free to dress in the casual attire of their choice.

Week 3 - Memo No. 2
Spandex and leather micro-miniskirts are not appropriate attire for Casual Day. Neither are string ties, rodeo belt buckles or moccasins.

Week 6 - Memo No. 3
Casual Day refers to dress only, not attitude. When planning Friday's wardrobe, remember image is a key to our success.

Week 8 - Memo No. 4
A seminar on how to dress for Casual Day will be held at 4 p.m. Friday in the cafeteria. A fashion show will follow. Attendance is mandatory.

Week 9 - Memo No. 5
As an outgrowth of Friday's seminar, a 14-member Casual Day Task Force has been appointed to prepare guidelines for proper casual-day dress.

Week 14 - Memo No. 6
The Casual Day Task Force has now completed a 30-page manual entitled "Relaxing Dress Without Relaxing Company Standards." A copy has been distributed to every employee. Please review the chapter "You Are What You Wear" and consult the "home casual" versus "business casual" checklist before leaving for work each Friday. If you have doubts about the appropriateness of an item of clothing, contact your CDTF representative before 7 a.m. on Friday.

Week 18 - Memo No. 7
Our EAP has now been expanded to provide support for psychological counseling for employees who may be having difficulty adjusting to Casual Day.

Week 20 - Memo No. 8
Due to budget cuts in the HR Department we are no longer able to effectively support or manage Casual Day. Casual Day will be discontinued, effective immediately.

You would not want to cancel casual dress days - they are a highly valued, but cheaply offered, benefit — perfect for employers to grant. With the right policy your company can have a casual dress policy that’s casual without being catastrophic.

Setting and enforcing dress and/or grooming codes all the while being careful to allow exceptions to accommodate employees who have certain physical or religious needs can help your company prevent lawsuits. Please keep in mind to ensure your requirements are equally burdensome on both men and women and you should not then receive any gender discrimination complaints. Just remember the law actually imposes the burden on the employer.

How HR Can Reinvent Itself and Transform the Business

2010-05-03T16:38:00.002-04:00

Do you have the view that HR creates barriers and unnecessary hurdles? If you do, join the long line of managers who share your view. How would you lead the transformation to change this view? Here are some strategies to help you build your HR department and change how they are perceived:

Accelerate the Change. Be persistent. Spend time educating employees regularly and often on how the changes you implement will ultimately benefit them.
Understand your boss. This relationship is critical. Your boss is your champion and has high expectations.
Work with strong partners. Select your partners whose business philosophy is most consistent with yours and your organization. They need to be able to sit comfortably by your side when you deliver your new message.
Use new technology. This is a no-brainer. Leverage technology to improve efficiency and allow the use of integrated information and data-based decision-making. Don't have HR processes that are complex and paper intrusive - that would be inefficient. One such example is to have all payroll information and forms available online.
Don't be afraid to step out there. Tell the truth even if it means delays or a change in process. You will be respected for your vision and for knowing what is best for your organization.
Stay focused to the mission. Always keep the organizations mission and strategy in your sight. Always remember to devote significant time to your alignment issues but also to the company's values and mission.
Prioritize. Build a planning process, be collaborative, and you will fundamentally change the way you operate in order to become more strategic. Technology will help you do this.
Build credibility through completion of key projects. Identify the key projects that are achievable and that have a probability of success if properly managed. This will gain you credibility.
Learn who you need to influence. Engage them in conversation about your change agenda. When people are engaged, aware and involved, they will be your champions.
Lastly, keep the momentum going. Celebrate your victory but stay engaged in the process of continuous improvement.

What are some ways your organization is transforming your business? Please share your ideas with me as I love to hear about how organizations are changing and reinventing the business world.

Hire for Attitude, Train for Skills

2010-03-23T11:18:00.006-04:00

To be a successful business or human resources leader, you need to learn the basics of thanking your employees for doing a good job and recognizing them for their job well done. You can thank them in whatever way is financially feasible - from a thank you pin, a sticker, an hour off early to enjoy the sunshine, to a cash bonus. Why? It's just the right thing to do and smart business.

We all hear the refrain - Hire for Attitude, Train for Skills. I don't believe there ever was a war for talent. I believe bad companies can't find the talent they need because of their reputation and how they treat their employees. In today's world of social media, your reputation is out there whether you want it to be or not. Just check out jobbite.com. As the economy recovers, many companies will be in a position to find this out for themselves. Bad companies don't know how to develop and motivate their employees which leads to high turnover.

Know your profile first - know what you want to hire. Once you know what you are looking for then the pool of candidates changes in your mind. I believe most people can be trained to do what you need them to do - only if they have the right attitude upon hire. You hire for attitude and train for skills. Once you know the profile you know how to identify the personality. It's three steps - hire the right people, train them later, and instill a culture of recognition. Your retention rate will drop tremendously. I once heard a great quote from Arte Nathan - "You can't teach employees to smile - they have to smile before you hire them."

Employees don't quit their companies - they quit their managers. Managers have to be trained to believe that they need to be the source of information and assistance for their employees. Managers need to instill the belief that the first stop for employees with issues is them - the managers and not human resources. You'll solve most of the problems directly, open dialogue, and set up a culture of respect. If you take chances, hire the right people, recognize your people and learn how to strategically develop and maintain that talent then you will be on your way to business success.

Avoid FLSA Recordkeeping Pitfalls

2009-11-05T10:37:00.005-05:00

The Fair Labor Standards Act (FLSA) mandates overtime compensation for a workweek in excess of 40 hours, sets minimum wage and recordkeeping standards, and establishes restrictions on the employment of minors. FLSA violations leave organizations vulnerable to costly employee lawsuits; companies have paid out hundreds of millions of dollars as a consequence of FLSA-related litigation. To ensure FLSA compliance, companies must collect and maintain time and payroll data for both exempt and non-exempt employees for at least three years. Most compliance mistakes made by businesses involve either inadequate or incomplete recordkeeping, or errors in payroll calculations.

Most employer errors in FLSA compliance occur because of inaccurate recordkeeping or calculation mistakes. Here is a list of some of the most common recordkeeping mistakes committed by employers:

• Failure to keep a timesheet or timecard for non-exempt workers

• Failure to record time of clock-in and clock-out

• Failure to keep records of unauthorized overtime

• Lack of records surrounding work performed off the clock, such as weekend office or at-home work

• Failure to record and pay for break periods

• Assuming that all salaried employees are exempt employees

• Lack of accurate time and payroll records

Every covered employer must keep certain records for each non-exempt worker. The FLSA requires no particular form for the records, but it does require that the following records

be maintained:

For non-exempt workers:

• Identifying information, including employee’s name, home address, occupation, gender, and birth date, if under 19 years of age

• Time parameters defining the employee’s workweek

• Total hours worked per day and week

• Total straight-time earnings

• Regular hourly pay rate during any week that includes overtime worked

• Total overtime paid

• Any wage deductions or additions

• Wages paid for the pay period

• Date paid and the corresponding pay period

For exempt workers:

• Employee’s name, home address, occupation, gender, and birth date, if under 19 years of age

• Time parameters defining the employee’s workweek

• Wages paid for the pay period

• Date paid and the corresponding pay period

The records described above must be accurate and complete for three years to ensure corporate compliance. Any supplementary data must be kept for at least two years. Records must be kept at the place of business or in a central storage location. Whether kept on paper, a computer, or in microfilm format, businesses must be able to produce the data immediately in the event of an audit by the Department of Labor’s Wage and Hour Division.

NY Law Requires Employers to Obtain Written Acknowledgment on Pay Information

2009-10-21T14:44:00.023-04:00

NYS Labor Law Amended to Require Written Notice of Wages on Hire

Governor Paterson recently signed into law an Amendment to the New York State Labor Law affecting employer record keeping requirements. Generally: Section 1 of the bill would amend Labor Law 195(1) to require employers to provide employees with written notice at the time of hire of their regular and overtime hourly wage rates, and to obtain a written acknowledgment of receipt of this notice.The law will go into effect October 26, 2009. Follow this link to the Senate Bill on this this subject:

New York State Senate Bill S3357

What does this mean to you, the employer? You should be sending out offer letters to your new hires. The offer letter should include the following:

An opening paragraph with a welcome to the potential new hire, specifying the title of the position offered and the anticipated start date, should they accept
A paragraph that includes: the name of the person to whom the position reports, whether the position is exempt or non-exempt, the compensation (specified as weekly/bi-weekly/bi-monthly salary or hourly wage), and that compensation is paid X times monthly in accordance with the regular payroll process, the anticipated work schedule and that it may be changed to meet business needs
A paragraph that includes a summary of: The employee benefits plans (group insurance, 401(k), etc.) the position is eligible to participate in and a summary of any waiting periods for enrollment
A paragraph summarizing which type of paid time off, such as vacation and sick time, will accrue, along with the rate at which it accrues and the timing of accruals
A paragraph explaining that employment relationships with the company are "at will" and what that means
A paragraph explaining that the company requires all employees, as a condition of employment and continued employment, to sign a confidentiality agreement - tell them the agreement is attached to the letter and explain that they are free to consult with their own counsel about the agreement but they need to return the signed document by the date specified (give them at least five business days to consult with counsel)
If your company conducts post-offer drug testing, explain that it is a condition of employment and continued employment that they pass (provide the details about the program that are required by law)
A paragraph explaining that your company complies with federal immigration laws, that the person must be legally authorized to work in the U.S. and must complete the I9 process as a condition of employment. Include that any fraud or misrepresentation on the I9 is grounds for discipline, up to and including termination.
A final paragraph letting them know how long they have to accept the offer and providing a contact name in case they have any questions

Below your signature on the letter, include an acknowledgment that the person has to sign to show their acceptance of the offer. Of course, you may not need all of these items or you may need additional terms, depending on the circumstances. It's a good idea to coordinate with human resources or legal counsel to make sure that your letter is accurate and complete.

When you enter into a new relationship with an employee, it is not done with anticipation that the relationship may sour down the road. But if you've used an offer letter properly, you've set off on the right professional footing with the person and you've gone a long way toward protecting yourself from some kinds of liability that could arise later. Take advantage of the opportunity and use it to benefit your company and the potential new hire.

NYS Human Rights Law Amended to Add Victims of Domestic Violence or Stalking as Protected Status

Governor Paterson recently signed into law an amendment to the State's Executive Law protecting victims of domestic violence or stalking. This new law specifically applies to employment and hiring practices. According to the Assembly Bill on this subject:"An act to amend the executive law, in relation to prohibiting employers from discriminating against victims of domestic violence or stalking based upon status as a domestic violence victim."Commentary on the Justification for the New Law:

"This bill is intended to protect the economic viability of victims of domestic violence and to support their efforts to gain independence from their abusers. Many women stay with their abuser because they lack alternative financial resources for themselves and their children. Escaping an abusive relationship often depends on financial independence, which means finding and keeping a job. It is not unusual for a victim of domestic violence to need time away from work to confer with an attorney or domestic violence counselor, appear in court, seek medical attention, arrange for alternative housing or recuperate from injuries. Often a victim of domestic violence is embarrassed or fears losing her job and, therefore, is reluctant to inform her employer of the circumstances of her life. It is not unusual for a victim of domestic violence to be terminated from her job or demoted because she needs time of or flexible hours as a protective measure. This legislation will make it unlawful for an employer or licensing agency to discriminate against victims of domestic violence in hiring or employment practices, helping to ensure the safety as well as the economic viability of victims.

Follow this link to the original Assembly Bill: NY Assembly Bill 755A

HR Recordkeeping Simplified: What to Keep, What to Toss

2009-09-08T11:49:00.004-04:00

I don't know about you but there are so many laws surrounding record keeping and the laws keep changing every day. I need a simplified list. Why is it important? Poor or missing records make it hard to defend lawsuits. When does record keeping begin? Early in the hiring process is what I always tell my clients. Start with the essentials:

Job descriptions - Be sure they identify the essential functions of the job (in compliance with the ADA) and that they describe the minimum qualifications applicants need.
Job postings - Avoid any limitation or exclusion on any physical basis.
Job applications - Need to include the following: employment at will language, statement of truth, authorization to check records.
Interview notes - don't write any personal thoughts/comments on resumes. Only document valid reasons for selecting / rejecting candidates.
Offer letters - establish the terms and confirm the at-will status of the relationship.
Reference Background Checks - ensure you send out the FCRA notices and document authorization from each candidate/employee.
I-9 Verification - although not required, it's my advice to make a copy of the documents offered as proof of right to work in the USA.
Agreements - ensure in each candidate file you have signed statements concerning non-competes, employee handbook receipts, etc
Employee Personnel File -should always include awards, performance appraisals, time off requests, discipline records, employee handbook receipts, training records, payroll authorization forms, benefits records, etc.
Medical Records - need to be kept in a separate, LOCKED file with limited access. This file may also contain FMLA records
Workers Compensation - work related injuries and all of the documentation which goes along with the injuries.
Time Off - These records must be maintained.
Promotions - Be sure to fully document your reasons for selecting the employee for the promotion. Why is it important? It's not who was promoted who files the suit, but the one who didn't get the promotion. Ensure you can defend the decision to promote one over another.
Discipline - Progressive discipline records are particularly important because they are hard to challenge when you have a well kept progressive discipine record.

The list above is a great starter for the small business owner to begin to assess in order to become compliant with the myriad of record keeping laws in the USA. Trust me, good record keeping will help you defend any potential lawsuits and will make lawyers less likely to take the cases of disgruntled employees.