Yes, Boss/HR/Your Honor, That's My Email

Ever hear of the acronym “CLEM”? That stands for career-limiting email and is a reminder to reconsider sending anything out in writing when a phone call may be the better option. If you have to think twice about hitting that send button, then you shouldn’t hit it.

In an article titled, “For God's Sake, Think Before You Email” on the website of Workforce, it says that unlike diamonds, email messages aren't forever, but they are pretty darn close. Remember that whatever you say in an email – and I mean anything in electronic text – could come back to haunt you because there’s always a trail. By electronic text, I mean email, mobile text, social media post, etc.

Everything from tasteless humor, opinions about a boss, employee, or the company, and definitely an angry reply or threat of violence should be an instant no-no. You can’t put the genie back in the bottle once it’s out and don’t assume that an email to a close friend or confidant is private because even if that person doesn’t forward it, there’s always a record somewhere of that email. Furthermore, you can’t always recall, or “unsend” an email.

You’d hate to have to explain to your boss, HR representative, or even a judge and jury why you sent that email or posted that message. You don’t just run the risk of losing your reputation, but also your job, and potentially being sued, or even going to jail. These are not pleasant prospects over a seemingly innocent email. Which is why you must review your electronic messages with a discerning eye.

Emails and social media posts have become commonplace and the norm for communications. Yet, despite the ease in which you can send them, you must be aware that the freedom of speech doesn’t mean freedom from consequences.


3 things managers can’t say after FMLA requests

Do you know which question you can ask any employee requesting FMLA leave?  Look at this great article from HR Morning about what employers can and cannot say to an employee on FMLA leave Christian Schappel

You know when employees request FMLA leave, those conversations have to stick to the facts about what the workers need and why. The problem is, a lot of managers don’t know that — and here’s proof some of their stray comments can cost you dearly in court. 

Three employers are currently fighting expensive FMLA interference lawsuits because their managers didn’t stick to the facts when subordinates requested leave.

Don’t say it!

The real kick in the pants: Two of the lawsuits were filed by employees who’d received all of the FMLA leave they requested — and the courts said the interference claims were still valid. How’s that even possible? Keep reading to learn about the latest litigation trend in the FMLA world.

Here’s what happened in each case (don’t worry, we’ve cut to the chase in all of them) — beginning with the words/phrases managers must avoid when a worker requests leave:

No. 1: ‘We expect you to be here’

James Hefti, a tool designer, was in hot water with his company, Brunk Industries, a metal stamping company.

Reason: Let’s just say he called a lot of people at work “my b____.”

After he ignored multiple warnings from management to stop using obscenities at work, the company planned to fire him. But it didn’t pull the trigger immediately.

Then, just prior to his termination, Hefti requested FMLA leave to care for his son, who was suffering from various mental health problems.

His manager, upon hearing of Hefti’s request, told him Brunk paid for his insurance and thus expected him to be at work.

When Hefti was fired a few days later, he sued for FMLA interference.

The company tried to get the suit thrown out, claiming his conduct and ignorance of repeated warnings gave it grounds to terminate him. But it didn’t win.

The court said the manager’s interactions with Hefti did raise the question of whether he was fired for requesting FMLA leave, so the judge sent the case to trial.

Cite: Hefti v. Brunk Industries

No. 2: ‘It’s inconsiderate’

Lisa Kimes, a public safety officer for the University of Scranton’s Department of Public Safety, requested FMLA leave to care for her son, who had diabetes.

Kimes was granted all the time off she requested. But in a meeting with her supervisor she was told that since the department was short staffed it was “inconsiderate” of her to take time off.

When her relationship with the department soured, she sued claiming FMLA interference.

The department tried to get her suit tossed before it went to trial. It had a seemingly reasonable argument: She got all of the leave she requested, so it couldn’t have interfered with her FMLA rights.

But Kimes argued that her supervisor’s comments prevented her from requesting more FMLA leave – thus the interference lawsuit.

The court sided with Kimes. It said she had a strong argument, so the judge sent her case to trial as well.

Suit: Kimes v. University of Scranton

No. 3: ‘I’m mad’

Judy Gordon was an officer with U.S. Capitol Police when she requested intermittent FMLA leave for periods of incapacitating depression following her husband’s suicide.

But before Gordon used any FMLA leave, a captain in the police department told her that an upper-level manager had said he was “mad” about FMLA requests in general, and he’d vowed to “find a problem” with Gordon’s request.

Then later, when she actually went to take leave, her manager became irate, denied her request and demanded a doctor’s note. He later relented and granted the request.

In fact, she was granted all the leave she requested.

Still, she filed an FMLA interference suit. And, again, the employer fought to get it thrown out before a trial on the grounds that Gordon had no claim because all of her leave requests were granted.

But this case was sent to trial, too. The judge said her superiors’ conduct could have a “reasonable tendency” to interfere with her FMLA rights by deterring her from exercising them — i.e., the comments made to her could’ve persuaded her not to request additional leave time to which she was entitled.

Suit: Gordon v. United States Capitol Police

Just the facts, please

Based on a thorough read-through of the court documents, each of these employers appeared to have a pretty good chance of winning summary judgment and getting the lawsuits thrown out before an expensive trial — that is, if it weren’t for the managers’ stray comments in each.

These cases have created two important teaching points for HR:

  1. Courts are allowing FMLA interference claims to be made if it appears an employee may have been coaxed into not requesting leave he or she was entitled to, and
  2. You never know when a stray remark will come back to bite you.

The best way to stay safe: Re-emphasize that managers must stick to the facts when employees request FMLA leave, as well as keep their opinions and other observations to themselves.

See the original article Here.

Source:

Schappel C. (2017 March 17). 3 things managers can't say after FMLA requests [Web blog post]. Retrieved from address http://www.hrmorning.com/3-things-you-cant-say-after-fmla-requests/


What Employers Need to Know About Communication

What's the key communication platform for employee benefits communication?

"It is not a one size fits all approach, each group needs to take a look at their population and decide what is best for them."  -Tonya Bahr, Hierl Employee Benefit Advisor.

  • Emails are efficient for targeting professional staff, especially companies that have companywide email addresses.
  • Letters or texts are the best way to communicate with field or labor employees.
  • A popular way to communicate is by meeting, whether it be a webinar or seminar. Often, companies will mandate that their employees attend informational sessions discussing benefits offered. This allows our clients to efficiently communicate a consistent message out to employees to help understand their benefits.

 

Ding ding ding, round 1! Paper VS Digital communications

Okay, not really because it's not a competition!

"An online approach works really well for employees but it is also very important for the spouses to be engaged as well. We typically follow up the meetings with a deliverable the employee can bring home to their spouse. This not only allows the spouse to learn more about the benefits available to them, but it also reinforces what was covered in the meeting for the employee." -Tonya Bahr

tonya bahr 

To download the full article click Here.


Reporting Workers’ Compensation Claims

Workers’ compensation laws are often misunderstood because they can vary significantly between states. If your employee reports an injury and you are unsure of what steps to take, you are not alone. However, regardless of your company’s geographical location, the first two days after an employee gets injured on the job are always the most important.

It is important to act quickly and take action immediately for legal reasons, but also because studies show that the faster you initiate the workers’ compensation process after an injury, the lower the ultimate cost of your claims. Additionally, waiting more than 48 hours after an incident occurs gives the injured party and witnesses time to forget crucial details about what happened. It also means employees’ recollections may become skewed from opinions of outside parties, like an attorney, or from talking to one another.

You can help protect your company and save money by taking the following steps in the 48 hours after an employee reports an injury:

Refer employee for medical attention

  • If the injury is an emergency, seek immediate care for the employee. All state workers’ compensation laws allow the employee to see any doctor in an urgent situation. If the circumstance is not an emergency, refer the employee to a medical provider within your company’s network.

Never prevent an employee from getting medical attention, even if you feel the injury is not serious.

Perform an assessment or accident investigation

  • Visit the place where the injury occurred and make notes of the surrounding environment. Speak with employees who witnessed the event or who work in close proximity to where the incident occurred.
  • Be thorough, and also be sure to gather consistent information for all incidents. It is important to begin this investigation within the first 48 hours so that details of the accident or injury are fresh in the minds of employees.

Immediately ensure the injury or accident will not happen again

  • After investigating the site, take the necessary steps to make certain the incident will not occur again. For example, block off the area in question if there looks to be a spill or other unsafe situation.

Report the injury

  • According to the department of labor, several reports must be generated when an injury occurs in the workplace. Complete a First Report of Injury or Occupational Disease form as required by your state workers’ compensation law. The incident should also be reported to the HR department, the employee’s direct supervisor and the medical provider who saw or treated the employee.

Report the incident objectively—do not skew information gathered from the scene or from witnesses in any way, even if your preliminary instincts tell you the claim is not legitimate.

Inform employee about company policies on returning to work

  • Not only is it crucial to review work restrictions and leave procedures, but it is also imperative that you inform the employee about the possibility of transitional-duty jobs that would suit their needs during the injury recovery period.

Submit the workers’ compensation claim

  • This is also an important step to complete quickly because your insurance provider could give you valuable information about medical care, make timely payments and begin his own investigation into the incident as necessary.

In addition to these points, make sure you become familiar with the workers’ compensation laws in your state(s) of operation. Your state’s workers’ compensation board will help you stay in compliance with the legal timelines in effect in your state, which will ultimately help save your company money.

To download the full article click Here.


DOJ to appeal overtime ruling

Great article from BenefitsPro by Jack Craver

The Obama administration is not giving up on its overtime rule just yet.

The Department of Justice is appealing an injunction placed on the rule by a federal judge, which prevented the rule from going into effect on Dec. 1, as planned. The injunction came in response to a suit challenging the rule by 21 states, led by Texas and Nevada.

"That injunction was granted to some large businesses and Republican governors who had colluded to try to disrupt the implementation of this rule,” says White House spokesman Josh Earnest, according to NPR. “And essentially continue to take advantage of more than 4 million of the hardest-working Americans."

Judge Amos Mazzant of the U.S District Court for the Eastern District of Texas ordered an injunction after deciding that the challenge to the rule was likely to succeed in a trial.

The Department of Labor exceeded its authority by raising the salary threshold for a worker to be exempt from mandatory overtime pay from $23,660 to $47,476, Mazzant writes.

The ruling suggested that federal overtime law only allows the agency to determine overtime eligibility based on job duties, not salary, Mazzant writes. The ruling thus casts into doubt the existing salary threshold as well.

If the legal battle drags on, it is unlikely that the incoming Trump administration will continue fighting on behalf of the rule in court. In the one instance in which the president-elect commented on the issue during the campaign, he said that he would like to see an exemption from the rule for small businesses.

If Trump did reverse course on the issue, it would be a great disappointment to the Republican attorneys general who brought the suit. In a statement following the announcement of the injunction, Texas Attorney General Ken Paxton, who led the suit, said that the new rule “hurts American workers."

Congressional Republicans also denounced the rule when the Obama administration announced the final version in May. House Speaker Paul Ryan called it “an absolute disaster.”

See the original article Here.

Source:

Craver J.(2016 December 2). DOJ to appeal overtime ruling[Web blog post]. Retrieved from address http://www.benefitspro.com/2016/12/02/doj-to-appeal-overtime-ruling


Compliance Bulletin: Updated Form I-9 Released

OVERVIEW On Nov. 14, 2016, U.S. Citizenship and Immigration Services (USCIS), part of the U.S. Department of Homeland Security, issued an updated version of Form I-9: Employment Eligibility Verification (I-9 Form). Under federal law, every employer that recruits, refers for a fee or hires an individual for employment in the United States must complete an I-9 Form.

The updated form replaces a form that was issued in 2013 and expired on March 31, 2016. The updated form includes changes that should make using both the paper and electronic versions more intuitive and easier to use.

Employers will be allowed to continue using the 2013 form until Jan. 21, 2017. Exclusive use of the updated form is expected by Jan. 22, 2017. The new form expires on Aug. 31, 2019.

ACTION STEPS

  • Employers should become familiar with the new I-9 Form and transition to exclusive use of the updated form by Jan. 22, 2017.
  • Employers should also determine whether they will use the manual or electronic versions of Form I-9. The electronic version may help employers avoid some common mistakes, but using it may require additional training.

Field Changes and Updates

According to USCIS, the field updates and changes to the I-9 Form will make it easier for individuals to complete either a printed or electronic copy of this form.

The new form:

  • Asks for an individual’s “other last names used” instead of “other names used”
  • Streamlines certification for certain foreign nationals
  • Prompts the person completing the form to include correct information
  • Includes fields to enter multiple preparers and translators
  • Dedicates a field to include additional information (this information will not need to be added on the margins anymore)

Provides a supplemental page for preparers and translators

The electronic version of the form includes:

  • Drop-down menus
  • Calendars for filling in dates
  • On-screen instructions for each field
  • Easy access to the full set of instructions
  • An option to clear the entire form and start over

In addition, when employers choose to print the electronic version, the new form will generate a quick response (QR) code, which can be read by most QR readers.

Instructions

USCIS has separated the instructions from the actual form. This is consistent with other USCIS documents. In addition, because the form and the instructions have been separated, USCIS was able to include more detailed information on how to complete each field in the form.

More Information

Please visit the USCIS website for more information regarding USCIS or the new I-9 Form.

Download full article Here

 


The Evolving HR Leader

Article from the Society For Human Resource Management (SHRM), by Steve Watson

Leadership dynamics in Corporate America are undergoing major changes, and if todays’ leaders want to impact organizations tomorrow, they must adapt strategies, recognize and accept change, and boldly move forward with a new leadership style.

Among the forces influencing leadership changes:

Technology. We already know that technology has revolutionized work and enabled new ways of doing things. It has given rise to widespread global connectivity, provided instant access to data and information, from anywhere, anytime, and has led to the creation of collaboration tools, giving new competitors lower barriers to enter the competitive marketplace.

Organizational design. Mid-management layers have been eliminated so top management today is closer to individual contributors. Leaders must evolve with four different generations in the workforce with real diversity, multiple and different motivations, and mixed demographics. This brings challenges in attracting, developing, and retaining talent.

Further, some leadership practices have become, or on their way to becoming, obsolete, including:

  • Top down management
  • Doing it my way or the company way; being directive and controlling
  • Rigid management/micromanaging
  • Decisions made only at the top
  • Defined work with individual work units
  • More time in the office and in inner circles
  • Expected loyalty
  • Annual performance reviews and raises

A little over a decade ago, we didn’t have smartphones, Facebook, Chatter, Twitter, Snapchat, Instagram, and other social media that have significantly altered the way people connect, communicate, and build relationships.

Leadership today must change and evolve with the times, and this means being able to relate to younger generations. Millennials, with numbers at around 86 million, now represent the largest generation in the workforce. Consider the following vis-à-vis Millennials and employers:

1. They are far less loyal to an employer than generations before them have been. No psychological contract exists between them and their employer. They have a different way of viewing work, and it includes incorporate other activities into their time (travel, leisure time, and community service, for example) that might have otherwise been reserved for “usual” work hours.

2. They are team- and group-oriented. Their work style is collaborative.

3. They want to hear from senior management via feedback, open communication, and recognition.

4. They want even more flexible hours and greater work–life balance.

5. They are creative and inquisitive. Knowing “why” is important to this generation. They are unafraid to challenge ideas, methods, processes, and the status quo.

6. They want to improve and grow professionally through training and mentoring.

7. They are service-oriented, care about the environment, and rely heavily on social media.

8. They want to make a difference in the world.

At the core of all of these changes is technology. It allows people to work remotely, collect information immediately, collaborate effectively, and gain access to global markets and information. Employees also can seek out new job functions, making talent retention more challenging today than ever before. So a workforce with technology at their fingertips presents daunting challenges for today’s leaders. In this world, it’s change or die.

Successful evolved leaders constantly adapt to the changing times. They tend to:

  • Be strategic thinkers
  • Lead by example and build relationships
  • Communicate the mission, vision, and goals clearly
  • Build high-performing teams
  • Serve as a coach and mentor
  • Be servant leaders
  • Look for ways to knock down barriers
  • Set ego aside
  • Be collaborative
  • Listen with empathy
  • Get input from diverse views, gain consensus, and get alignment
  • Embrace diversity
  • Be flexible and agile (and can deal with ambiguity)
  • Have exceptional communication skills
  • Be accepting of failure (and uses it as an opportunity to learn)
  • Move the needle, drives results, and gets things done
  • Exhibit resilience

Evolved leaders are front-and-center and welcome scrutiny from both employees and the public. They understand the need to leverage technological tools and harness cross-generational work styles, and they are astutely aware of the importance and influence of social networks.

See the original article Here.

Source:

Watson, S. (2016 November 14 ). The evolving hr leader [Web blog post]. Retrieved from address http://blog.shrm.org/blog/the-evolving-hr-leader


Workplace Wisdom: 4 True Tales and Tips for HR and Managers

From the Society For Human Resources Management (SHRM), by Christina Folz

Like priests and therapists, employment attorneys will hear just about everything over the course of their careers. They are privy to all manner of human tragedy, triumph—and stupidity. The best of them will turn their knowledge and experience into something deeper: wisdom.

That's what attorney Jathan Janove, who has more than 25 years of experience litigating workplace issues and consulting for companies, has done in his unconventional new management book, Hard-Won Wisdom: True Stories from the Management Trenches (Amacom, 2016). The book is refreshingly free of motivational platitudes and vague advice and instead imparts practical wisdom to managers and HR professionals through unforgettable stories of living, breathing—and highly flawed—people.

True Tale #1: Phil was a well-intentioned director of finance who did everything right in communicating his expectations and feedback to his direct report, a staff accountant named Melinda, except for one thing: He didn't listen to what she had to say.

Lesson Learned: Keep track of your "period-to-question-mark" ratio when conversing with employees. If it starts to skew heavily toward statements, make a point of inserting more questions. Also follow the "EAR" method of listening by exploring issues through open-ended questions, acknowledging that you understand and responding to what you learn.

True Tale #2: And then there's the story of Texas Wes, the oil company executive who was great at sharing constructive feedback but who never wanted to document it. ("Ah hate to write," he told Janove.)

Lesson Learned: To improve in this area, Wes borrowed a tip from attorneys who regularly use "opposing counsel confirmation letters"—bulleted summaries of important discussions that can be compiled quickly and easily based on prepared templates. They typically start with "This note summarizes our conversation from this morning" and end with "Please let me know if I haven't captured the information accurately."

True Tale #3: No one will forget Shameless Sheila, the waitress who was fired after stripping down to her underwear in full view of the restaurant's customers. Her boss had confronted her about not being in uniform in time to start her shift, so she changed clothes on the spot. Yet, unbelievably, Sheila wound up getting a settlement from the company because she was able to demonstrate that the restaurant culture constituted a hostile, sexually charged environment.

Lesson Learned: Company leaders made the common mistake of thinking that no harassment complaints meant no problems. Had they paid more attention to the culture in which Sheila had been working, they might have avoided making a settlement payout for an otherwise-appropriate termination.

True Tale #4: While many of Janove's stories are funny, others are sad reminders that workplace reality rarely matches up with the ideal environments described in culture statements or employee handbooks. For example, Janet, a vice president of HR for a large corporation, was inappropriately propositioned by William, a senior operations director at her company, on a business trip. The conversation started with William asking her whether she still had sex with her husband and went downhill quickly. Yet this revelation came to light only after William had voluntarily departed the company, when Janove was counseling Janet in preparation for an anti-harassment training that he was helping her implement.

Lesson Learned: Even knowledge of HR and the law aren't always enough to overcome an employee's reluctance to act on her own behalf for fear of being ostracized or blamed. Janet's experience emphasizes the critical importance of making sure a company's approach to harassment goes beyond annual training to working daily to institute a culture in which everyone, including those in HR, feels completely safe coming forward.

See the original article Here.

Source:

Folz, C. (2016 Novemeber 14). Workplace wisdom: 4 true tales and tips for hr and managers[Web blog post]. Retrieved from address http://blog.shrm.org/blog/workplace-wisdom-4-true-tales-and-tips-for-hr-and-managers


Employee Terminated upon Return to Work After Alcohol Treatment Could Proceed with Claims against Employer

Original post ubabenefits.com

An employee terminated immediately upon his return from medical leave for alcohol rehabilitation presented sufficient evidence of discrimination under the Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), and Ohio state law to present his case to a jury, according to a federal court in Ohio. The employer claimed that the employee had been terminated for misappropriating company goods, but email exchanges between several supervisors discussing the plaintiff’s alcoholism, as well as the timing of his termination, could show pretext. Lankford v. Reladyne, LLC, 32 AD Cases 959 (S.D. Ohio Nov. 19, 2015)

The plaintiff was a sales representative for the defendants, who provide motor supplies to car dealerships. On January 28, 2014, the plaintiff requested FMLA leave to attend an alcohol rehabilitation program. Shortly before the plaintiff requested leave, one of the defendants’ employees informed them that the plaintiff had given free supplies to a customer in exchange for a free oil change given to the plaintiff’s mother. On February 4, 2014, seven days after the plaintiff requested leave, the defendants investigated the incident and it was determined that a meeting with the plaintiff was necessary upon his return to work. At the meeting, the plaintiff denied any knowledge of how his mother came into possession of the coupons used for her free oil exchange. The defendants nevertheless terminated the plaintiff, who subsequently brought suit for disability discrimination, unlawful FMLA interference and unlawful retaliation.

The defendants moved for summary judgment on each of the plaintiff’s claims, arguing they legitimately and non-discriminatorily terminated the plaintiff due to his misappropriation of company supplies. The Court rejected the defendants’ arguments, holding that the plaintiff produced sufficient circumstantial evidence for a reasonable jury to conclude the defendants’ offered justification for the plaintiff’s termination was merely pretext. Among other things, the Court pointed to an email in which the defendants’ Vice President of Sales and Marketing, stated “we have too many signs to ignore and not proactively address,” after learning of the plaintiff’s request for leave. In another statement, this VP also said “[the oil change] was not the only reason [Plaintiff] was fired.” The plaintiff had received overwhelmingly positive reviews just six weeks earlier. Relying on these facts as well as the temporal proximity between the plaintiff’s medical leave and his termination, the Court denied the defendants’ motion for summary judgment.


Weeding Out Low Performers

Original post ubabenefits.com

Every workplace has its fair share of slackers and goof-offs, but it’s what an employer does with those employees that solidifies its corporate culture as one of high or low performance.

Employers that ignore low-performing employees risk more than just productivity. In an article titled, “Study: Beware ‘Toxic’ Influence of Low-Performers” on the Society For Human Resource Management’s website, research found that low-performing employees hurt overall morale and increased their co-workers' workload. Furthermore, innovation and motivation are stifled and mediocrity is deemed acceptable.

What may be of most concern is that a mere 60 percent of survey respondents looked at their co-workers and would rehire them. Their motto should have been: we may hire the best, but we keep the rest.

Successful companies know how to weed out their weakest links, while rewarding and retaining high-performing employees. They know that employees who perform poorly can cause high-performing employees to seek jobs elsewhere. Successful companies are able to identify their best employees, then they establish incentives, opportunities, or other ways of ensuring they stay.

So, how do you identify the best, or even the best of the best? It’s not as easy as it may seem. These are the top 10 percent to 15 percent of the organization. A company must first determine a set of guidelines that mark an employee as a high performer. Once the guidelines are in place, observation of these employee traits should be done in order to ensure uniformity and that the guidelines were set correctly.

Now that a company knows what it expects in its employees, it’s time to announce that to everyone so that they either know they’re doing the right things, or can make a plan for improvement. At the same time, employers should conduct surveys on employee satisfaction. Their focus should be on their top performers and what makes them happy.

Plenty of data should be collected regarding the criteria that not only make an employee a top performer at the company, but also what he or she prefers in terms of job satisfaction. Going forward, this data should be matched to potential recruiting candidates for new positions. In addition, surveys that measure the quality of a new hire (i.e., whether the recruiter hired the right candidate) should be completed at predetermined intervals of three, six, nine, or 12 months.

In jobs where there is high demand and lots of attrition, correctly recruiting and retaining the best performers could be the key difference in a company’s success.