Periodically I try to give you the benefit of all the reading I do so that you don’t have to search for everything. Well today is another installment of that. Here are five great reads in HR that will inform you, educate you and who knows what else you may get out of them.

1. First up is my friend Jon Hyman, a blogging attorney extraordinaire, who writes at The Ohio Employer’s Law Blog. Jon wrote NLRB refuses to expand representation rights to non-union employees during investigatory interviews. I have long been expecting that the Weingarten rule might be reinstated for non-union employees and indeed the Acting General Counsel for the NLRB, Lafe Solomon, tried to do just that. Read Jon’s post to find out what happened to his attempt.
2. Next up is Robert Reich, the former Secretary of Labor under President Bill Clinton. Mr. Reich and I are often far apart in opinions (not that he is bothered by not agreeing with me and I seriously doubt he knows who I am or reads what I do). But I have written several posts about the state of manufacturing in this country (See  Facing Reality: A Lesson from Drucker) and his message in his article Manufacturing Illusions has the same message. It is time for the US to come around to this reality. Very interesting read as much of what we are hearing in this political year is “bringing back” manufacturing is the solutions to our woes.
3. Metrics, metrics, metrics… that is the new mantra for HR. Well SHRM has announced that you have the opportunity to help establish a consistent HR metric that will be applicable across all companies and industries. They have worked with ANSI to establish a universal cost per hire metric that will allow comparisons from company to company. In New HR Standard Addresses Cost-per-Hire you will have the chance to comment on this new standard before it is set in stone. Give it a look.
4. This one is a little out of the HR realm. It is from Seth Godin of marketing fame. His post Engaging with criticism, in which he talks about interacting with a customer has a great deal of relevance to HR. You just to put your own definition of “customer” into his post.
5. I finish today by going back to my friend Jon Hyman. You all know that I am the HR Compliance Guy. So when I read this post that provided an example of how to lose an exemption I knew I had to share it with you. In Sitting on the dock … of the paycheck (or how to lose an employee’s exemption in 1 easy step) Jon tells you about a case that did not turn out well for the company and offered a solution that was provided by the court on what employers can do to protect themselves. I have often offered the same advice.

So check out these five great reads and learn the lessons they offer.

Also, if you have read another great article or post, share it with us in the comment section.

Employee handbooks are important tools for every company to have in place. They can be done well or they can be done poorly but it is necessary as a communication vehicle to inform employees of policy, procedure and culture. It is also important to comply with government regulation. I wrote this post in September of 2010 and it is still relevant today. So let’s revisit Employee handbooks: Damned it you do, damned if you don’t.

In my consulting practice (which is geared primarily toward small businesses) I see and revise, or write, a lot of employee handbooks. Some are well done, most are generally not. Few are recently revised and most are out of date, woefully out of date. Even in some larger companies keeping you handbook current can be a challenge in a rapidly changing legislative environment.

I occasionally run into a company that feels they don’t need to have an employee handbook. To them I explain that they are missing a superb communication piece that not only helps them comply with many legislative requirements but can help them communicate culture and expectations. Other times I run into companies which have handbooks that are so legalistic that even I have a hard time understanding them. To them I also explain they are missing a superb communication opportunity.

Another common mistake I see is that rather than having a handbook to guide employees the company produces a “policy and procedures” manual. This is a mistake. A P&P; manual is great for supervisors and managers to be able to understand the actions they must take regarding employee interactions and behaviors. It is, however, not something you want to give to your employees. A P&P; manual will by its nature be too wordy and complicated for what you are trying to accomplish.

Here are some tips that I have learned about employee handbooks that you may find helpful:

1. Remember it is a communication tool. It should be written at a level to enhance understanding by your employees. It should also be written to communicate your culture. One of the best I ever saw at doing this was one written a number of years ago by The Motely Fools. It matched the culture perfectly.
2. Remember, there are compliance issues that need to be dealt with, such as FMLA, harassment, USERRA, etc. But these do not have to be presented in a legalistic manner.
3. Remember this is NOT a contract and you do not want it to be. So a good review by an attorney is a good idea.
4. Remember you do need to have some disclaimers in there, such as NOT a Contract, Employment-at-Will, and management’s right to change policies without notice.
5. Remember to have an Acknowledgement signed. The unemployment office will ask if the employee knew the rules.
6. Remember, special agreements, such as non-disclosures or arbitration agreements need to be separate documents and not buried in a handbook.
7. Remember try to present things in using positive language. Make it more about the “do’s” of proper behavior rather than the “don’ts”.
8. And lastly, train your supervisors and managers on what is in the handbook! And have a procedures manual for them on what to do when confronted with a situation.

Of one thing I am certain. You must have an employee handbook. You may have to dance around some issues if it is poorly done, but more often than not, the FAILURE TO HAVE A HANDBOOK will get you in trouble many more times than when you have one.

I am sure I have missed a number of good ideas. What are they? Let me know.

I was having a discussion with a group of HR people the other day on the value of social media in the workplace. The group ran the gamut from “totally on board” to “don’t see the value of it” to “just plain afraid of it”. It is no secret of my point of view on the value of social media, in fact I have just started dabbling in Pinterest due to a blog written by my friend Todd Schnick (Why It Is Worth Giving Pinterest A Look). I have, however, not spent too much time on social media use as a knowledge creation tool, especially through an intranet.

In their book The 2020 Workplace, Jeanne Meister and Karie Willyerd, discuss stages of what they call “über-connections”. In this discussion they relate the story of a company called Cerner which had an environment “…where knowledge was created in a single-threaded fashion, often by a single expert.” The quote an executive as saying “In this environment much of our current knowledge was locked behind password-protected Web sites, guarded in organizational silos, lost in e-mail inboxes, or stored on individual laptops.” I imagine that many organizations reflect this same situation, particularly those that fall into the negative categories I described above.

The Cerner executive, Robert Campbell, the chief leaning officer, went on to describe how they changed their methods and increased innovation through the use of social media use. He said “We decided to change the way we collaborated on projects. We saw a need to create a more of an open culture and dramatically accelerate the cycle time of innovation throughout our company and client base.” As a result they built an internal social media platform that is incorporated into a customizable home page for each employee. This allows them to e-mail, post comment on blogs, share expertise, get needed documents, access wikis, check relevant learning programs and share their work on projects. Senior executives participate as much as other employees and everyone is encouraged to answer other associates’ questions that are posted on discussion boards.

The company also created new positions for this process called “community gardeners” who are tasked with the responsibility of ensuring adoption of the social media intranet. We talked about this in our discussion the other day as well, that there are positions being created for HR professionals in internal social media usage. If you are such a person you have an opportunity to encourage knowledge creation. Cerner has found it to be successful with “…. a host of business benefits, such as reduced cycle time for innovation, greater ability to share knowledge across the enterprise, improved access to knowledge experts, and decreased time to market for new products….”

So for you naysayers on the use of social media, you need to realize that the value of social media use far outweighs the negatives. Sure, they must be thought out and vetted. Policies have to be created, legal issues need to be thought through, and guidelines need to be created, but the impact it can have on a company’s culture, and its bottomline can be tremendous.

Anyone out there interested in telling us your story? Good or bad?

There are a lot of myths and misunderstandings that have developed about how and what people must be paid. Much of this comes from the past practices that people learned from working for unionized companies, nonunion companies trying to remain that way, or larger companies trying to compete for workers. Here are three myths about holiday pay under the FLSA regarding non-exempt employees.

Myth 1: Employers must pay for national holidays.

Truth: There is NO obligation under the FLSA for employers to pay for holidays, assuming that no work occurred on that holiday. If you sat home and enjoyed football games or went to white sales your employer is under no legal obligation under the FLSA to pay you for that time.  

Myth 2: If I work a holiday my employer must pay me double time.

Truth: Double time is an artifact of union contracts or pay practices designed to get people to work times or jobs that were unpopular. Since there is no obligation to pay for holidays there certainly is no obligation to pay more for them either. Companies may opt to pay extra to people who work holidays and many companies have. But that does not mean they are required to.

Myth 3: If a paid holiday falls on my day off the company is still required to pay me for it.

Truth: Let’s see if you have been paying attention. The answer is NO. But many companies have adopted the practice of doing so.

It is important to note that these myths only apply to nonexempt employees. Exempt employees are paid a salary, which must be paid to them for any work performed in a week. So if they work anytime in a week during which a holiday occurs they must be paid their entire salary.

My friend and fellow blog writer, attorney Jon Hyman, produced a post that is packed full of information on holiday pay, beyond what I have provided here. I suggest you click on through to his post and read his fine post on 8 things you need to know about holiday pay. You will be much better educated as a result.

As Jon pointed out in his post, your state law may require a different treatment of holiday pay, but for the Fair Labor Standards Act this is what it is.

SHRM attorney Allen Smith published an article on the SHRM website entitled, Unemployment and USERRA Claims Rise Among National Guard Members, in which he detailed testimony delivered to Congress by Vetjobs.com president Ted Daywalt. Ted is an acquaintance of mine and he runs a fine organization to assist veterans in getting employment after leaving military service. He testified to on Feb. 2, 2012, before the House of Representatives’ Committee on Veterans’ Affairs. What he told them was “The message is they want to hire veterans, but they cannot go broke supporting their National Guard employees with constant call-ups and all the financial and legal obligations fostered onto the employers by USERRA.”  His testimony pointed out the difficulty caused by the complexity of the USERRA and the effect it has on veterans and service members, particularly National Guard members. In addition to the complexity of the law changes in military policy at the height of the wars in the Middle East ended up potentially requiring some National Guard members to serve 48 months over a 60 month time frame. This stressed the service members, their families and their employers.

On an individual basis most of us support the men and women who serve in the armed forces (though not all do, read this blog post how one Guard member was treated. Ultimately his case ended up in front of the U.S. Supreme Court. Companies Get the Liability for Supervisors Decisions.) However, today many companies are avoiding hiring National Guard members, despite the fact that it is a violation of USERRA, in order to avoid the difficulty of dealing with the complexities of the law. In his testimony Daywalt related that “One senior HR executive at a major company told [him] that the company will continue to support current employees serving in the National Guard or Reserve but no longer will hire employees who are in the National Guard or Reserve.” Additionally he said “I have heard this same sentiment from many HR managers. Many employers were upset they were not consulted. They no longer support the system.” Daywalt points out that many Guard members work for small companies and small companies bear a very big burden complying with USERRA.

The law applies to all employers of ALL sizes, including:

• All private employers, including foreign employers doing business in the United States;
• American businesses that operate either directly or through an entity under their control in a foreign country (unless doing so violates the laws of that country0;
• Hiring halls operated by a union or an employer association, if they perform hiring for the employer;
• The Federal government and ALL state and local governments;
• Successor employers who have taken over companies that had employees serving military duty.

USERRA requires of these employers the following:

• They may not discriminate against members of the uniformed services in any aspect of employment.
• They must reinstate employees upon their return from up to five years (or more) of leave to serve in the uniformed services.
• They must restore all benefits to returning service members if that benefit would normally have accrued during the period of time of their absence. That absence is counted as work time.
• They may not fire any service member, except for cause, within one year of their return for military service. (And this must be a genuine for cause case.)

What makes this law so complex is that the timing associated with returning depends upon the period of time the employee was in service. Most reports of USERRA violations involve discrimination based on employee’s obligation for service, followed by failure to reinstate and then retaliation. Daywalt offered a number of suggestions to the House of Representatives’ Committee on Veterans’ Affairs on how things might be altered to help make USERRA and hiring veterans more palatable and workable for employers. If you wish to read his suggestions click here.

If you have, or are likely to have, employees who are serving in the uniformed services it is imperative that you are educated on the intricacies of this law. You can do this by reviewing the USDOL website on USERRA.

Having grown up in a military family I think all of us should take seriously the sacrifices that the men and women who volunteer must make and we must try insure as smooth a transition back to civilian life as possible. Otherwise we may find ourselves in a position of having no volunteers and suddenly being faced with crisis. Having grown up in an era of a necessary draft I can assure you we do not want to go through that experience again.

I think most people will agree that today the standard for job creation is being carried small businesses. If you don’t believe me then perhaps you will believe the Small Business Administration who published these figures:

Small firms:

•  Represent 99.7 percent of all employer firms.
•  Employ half of all private sector employees.
•  Pay 44 percent of total U.S. private payroll.
•  Generated 65 percent of net new jobs over the past 17 years.
•  Create more than half of the nonfarm private GDP.
•  Hire 43 percent of high tech workers ( scientists, engineers, computer programmers, and others).
•  Are 52 percent home-based and 2 percent franchises.
•  Made up 97.5 percent of all identified exporters and produced 31 percent of export value in FY 2008.
•  Produce 13 times more patents per employee than large patenting firms.

That is job creation! But then there is the negative effect of government regulation. Increasing government regulation increases costs to small businesses thus limiting, if not prohibiting, them from hiring workers. Some people say increased regulations often increase employment as well, and that may be true. It is certainly true in the Department of Labor. There are several hundred more people working there now that the USDOL has stepped up its enforcment efforts. And it is good that they have jobs. But is that really the kind of job creation we want to have? Those jobs do not, in my opinion,  add value or wealth to society as a whole.

But I guess I should not complain too much all those increased regulations and regulatory efforts keep me in business.

Tell me what you think.

“Our basic assumptions about how work gets done are what’s changing. It’s less about having a fixed location and schedule and more about thoughtful and engaged activity.” This very thought provoking statement comes from an article by James H. Lee called Hard at Work in the Jobless Future and is found in the March-April of The Futurist. I have been thinking and writing about the nature of work for some time and I found Lee’s article interesting. He discusses the nature of the transformation of work in America, the advent of Results Only Work Environments (ROWE) and the idea of what he calls “multitasking careers.” I discuss the changing nature of work and the difficulty that government regulation presents us.

We have actually been talking about the changing nature of work for 20 years. It has been no secret that types of work have been disappearing from this country for a while. This is especially true of manufacturing work. If it has not been “offshored” it has been a victim “off-peopling” or “other-sourcing” as Lee called it. What Lee means by this is that many types of work once done by people are now being done by software. This doesn’t mean that these industries have left America’s shores but they now require far fewer people to do the work. Thus no jobs for those people with those skill sets. One example he uses is that of food production. In the early 1900’s half the jobs in America were in farming. Today only 3% of the population is involved, yet the U.S. is still a major food exporter all as a result of efficiencies.

I made a statement in Facing Reality: A Lesson from Drucker that echoed this sentiment from Lee, he said “Those looking for a rebound in manufacturing jobs will likely be disappointed. These jobs will probably not be replaced- not in the United States and possibly not overseas either.” Drucker tells people they need to improve their education to stay employable. Lee quotes author and coach Pamela Slim, who wrote Escape from Cubicle Nation, who tells people that they need to have a “side hustle” in order to be prepared for their job and line of work disappearing. She feels that everyone should have a money making venture that can be turned in to more if need be.

Lee also talks about something that Tom Peters has talked about for a long while, the concept of “YOU, Inc.” Lee says “Fixed hours, fixed location, and fixed jobs are quickly becoming a thing of the past for many industries as opportunities become more fluid and transient.” We are seeing more contingent workers and independents, whether by choice or circumstance. Lee says we are also seeing more ROWE workplaces. Daniel Pink has also talked about this. (See my post AMPing Up Your Employees: Motivation According to Pink) Lee also makes the comment that work in the future will blur the distinctions among work, play and professional development. “The ways that we measure productivity will be less focused on time spent and more about the value of ideas and the quality of the output.” This is very similar to Pink’s message when he talks about Motivation 2.0. I love the idea, but I see a major roadblock to achieving this. Currently, for a major portion of our working population the Fair Labor Standards Act requires of us to pay them for the time they work not the results. Until government regulations catch up to new ideas there is going to be a major roadblock to achieving what Lee, Pink and even Drucker call for in the workplace.

How do we overcome the influence of 20^th century work methods that are promoted by the government and supported by unions? Unions adamantly cry foul to any legislation that seeks to reward workers for innovation that does not require recalculation of all the hours they worked so that overtime can be adjusted based upon the amount of the reward. So employers don’t reward nonexempt workers that way. We are caught in the trap of rewarding time and not ideas and innovation.

At least that is my point of view. What is yours?

Last May I wrote this post on retaliation. It is becoming yet a bigger and bigger issue. Attorney after attorney tell their clients that these cases are difficult to defend. According to attorney Robert Shea “…it seems claimants and their attorneys have come to realize that retaliation claims are different than typical discrimination claims and that retaliation claimants, in general, are more likely to prevail at trial and recover significant damages. Simply put, juries more receptive to retaliation claims than typical discrimination claims.” Source: Why Retaliation Claims Are on the Rise and What Employers Can Do About It

 Many smaller company management teams are not aware that retaliation against someone for filing a claim of discrimination is as bad as the original discrimination. Most larger companies are aware of that, at least the HR people are. However, even larger company HR people may not be aware of how far the “net” of retaliation protection is now cast. Everyone needs to know this.

In a Supreme Court decision earlier this year the definition of who is protected from retaliation just got broader. The case of Thompson v. North American Stainless, LP provided us with this new broader definition. Here are the facts of the case in brief. Miriam Regalado and Eric Thompson worked together at the company. They started dating and later became engaged, a fact widely known throughout the organization. At one point Ms. Regalado filed a charge with the EEOC claiming gender discrimination by her supervisor. Three weeks after the company received the discrimination charge Mr. Thompson, the fiancé, was fired. No action was taken against Ms. Regalado. Mr. Thompson then files a claim of retaliation. In review his case the lower court said he had no claim. He had not engaged in any protected activity and thus had no claim. They even said that even if his fiancé’s EEOC claim was the basis for his firing he still had no basis for a lawsuit.

The Supreme Court was then presented with the question “Does Title VII forbid an employer from retaliating for such activity by inflicting reprisals on a third party closely associated with the employee, such as a spouse, family member or fiancé?” The Supreme Court’s response was that Title VII does indeed prohibit action that “might well dissuade a reasonable worker from making or supporting a charge of discrimination.” In other words if your employees knew that you might punish a family member or fiancé if they filed a charge with the EEOC they might be less likely to engage in a right they have.

The Supreme Court said that Mr. Thompson was protected from retaliation because he fell in the “zone of interests” that was protected by Title VII. It was well known that he was her fiancé. The court fell short of providing a clear definition of what that “zone of interest”. Obviously a family member is clearly covered but an acquaintance seldom. That leaves a great deal of gray area in between.

The lesson I see in this is that retaliation on claims of discrimination is just a big NO-NO. Before you enter into disciplinary action against an individual with a clear relationship with someone who has filed a claim against the company make sure of the reasons you are conducting discipline. If it is to send a message, rethink your actions. If it is truly performance based then make sure you have ALL your documentation in proper order. Because if you don’t you will see court action on it and may very likely lose.

A recent U.S. Supreme Court decision made it illegal for police departments to track people by use of a GPS device. (United States v. Jones, No. 10-1259). Naturally with that ruling the question of whether employers can track employees by the use of a GPS, especially in a smart phone, was raised. The consensus of many attorneys was if you are tracking employees by GPS you had better have a good policy in place.

In a SHRM article writer Allen Smith says “An employer is on safer ground using GPS devices to track employees if it has a policy that instructs employees that it may use tracking devices to monitor employees’ whereabouts during work hours and will not monitor them outside work hours.” Attorney Phillip Gordon of Littler Mendelson took it further and said “The more prudent practice would be to have the employee sign an agreement permitting the installation of the GPS device or activation of the GPS capability on a smart phone.” Naturally I believe it would also have to be a company issued smart phone.

A further step would be to explain to employees that the device would be to the benefit of the employee in that it could be used to corroborate an explanation of presence at a customer’s location when the customer disputes something like a service call. I can think of a situation where a customer might dispute a service technician presence when in reality it was the customer who was not present. It can also be used as a safety mechanism for traveling employees.

In a situation where the employer may be using the GPS device to impose discipline, Gordon said, he “would recommend that the employer be candid about it but also assure that employment decisions will not be based exclusively on location information. Doing some investigation is important because GPS devices are accurate only to between 50 and 100 feet and an employee could have an innocent explanation for having been at a particular location at a particular time.”

There is potential for abuse in having GPS tracking capabilities, however, these are potential landmines of trouble for employers if this tracking is done after hours. The potential problems include invasion of privacy (which will vary state to state); violations of the National Labor Relations Act if being used to track potential union activity; and even violations of the Fair Labor Standards Act if tracking employee whereabouts could be considered compensable time.

As with any policy, any company moving to GPS tracking needs to communicate, communicate and communicate more the workings and benefits of this policy.

If you currently have a GPS tracking policy please let us know how it is working. What other benefits or pitfalls should the rest of us know about?

On February 9, 2012 the government issued a set of final rules on the Patient Protection and Affordable Care Act (PPACA) that must be effective by September 22, 2012. Unfortunately if you wait that long to do anything about it you will be too late. The final rules require working with your insurance carrier and brokers to make sure that as an employer you are abiding by these requirements.

The new rules have two major elements. First, each insurer and group health plan must provide a Summary of Benefits and Coverage (SBC). Each SBC must have twelve content elements, including a description of cost-sharing requirements such as deductibles, co-insurance and co-payments, and information regarding any exceptions, reductions or limitations under the coverage. The second part of this improved communication to the consumer is a glossary of terms used commonly in health insurance coverage, such as “deductible” and “co-payment.”

According to an article produced by SHRM “The rule specifies requirements related to the appearance of the SBC, which generally must be presented in a uniform format, cannot exceed four double-sided pages and must not include print smaller than a 12-point font.” Additionally, there must be a “standardized plan comparison tool” that provided plan coverage examples. According to SHRM “The coverage examples are meant to illustrate sample medical situations and describe how much coverage the plan would provide in an event such as having a baby (normal delivery) or managing Type II diabetes (routine maintenance, well-controlled). These examples are intended to help consumers understand and compare what they would have to pay under each plan they are considering.” Reference: Administration Issues Final Rule on Summary of Benefits and Coverage by Stephen Miller, CEBS

Results of the HighRoads  Third Annual SPD Trend Survey, published by SHRM, shows that many employers are not prepared to comply with this rule, which was originally to have been effective at the end of March 2012.

According to Healthcare.gov “The SBC will help consumers better understand the coverage they have and allow them to easily compare different coverage options. It will summarize the key features of the plan or coverage, such as the covered benefits, cost-sharing provisions, and coverage limitations and exceptions. The SBC will be available to consumers at important points in the enrollment process, such as when they are shopping for coverage, when they apply for coverage, at each new plan year, and at any time upon request.” You can get further information by going to Providing Clear and Consistent Information to Consumers About Their Health Insurance Coverage. Templates for the SBC and the glossary are provided there.

Although health insurers will be producing this information it is important for each employer to understand this final rule for their group health plan. If your insurance broker has not mentioned this each employer needs to be bringing this up to them so you can be prepared for September 22, 2012