Patient Protection and the Affordable Care Act (PPACA)

With the passing of the 2012 federal elections we now have a clearer picture of what will likely happen over the next year with the Affordable Care Act.  Barring any last minute surprises from the Supreme Court (see article on this topic dated 11/26/2012) we should expect that the most significant provision of the Affordable Care Act, the health insurance mandate, will be implemented on schedule by 2014. The individual and employer mandates in the Affordable Care Act are fairly complicated. 

The initial questions most employers have are, how will the employer mandate of Affordable Care Act affect me as well as will I owe a tax/penalty in 2014? To determine if you will need to offer coverage or likely owe a tax, three scenarios have been laid out. Start by counting all of your employees, including part time employees, and review the three categories.

Leave of Absence Terminations

Many times employers are hesitant to take action when an employee has been on an extended leave of absence due to a workers’ compensation claim arising from an injury or illness occurring while in the course of work duties or when the employee is unable to return from a protected leave, such as the federal Family Medical Leave Act (FMLA), or a state’s equivalent leave. Employers must look to the mandated leaves, organizational-internal policies, and past practices before taking an adverse employment action, such as disciplinary action or termination. Ensuring compliance with regulatory guidelines, and consistent application of internal policies and practices will generally protect an employer from any discriminatory practices.

• Workers’ Compensation Leaves - Employees who have sustained an on the job injury and are on a workers’ compensation leave of absence are protected under individual state non-discrimination regulations, and may enjoy protection under a state’s mandated leave or the FMLA. Employers must ensure that these employees are treated the same as other employees who are temporarily disabled and follow any internal policies or past practices related to the leaves. Further, employers should consult with the claims manager at their workers’ compensation carrier to discuss any adverse employment action prior to taking the action, to determine that there is agreement in terminating the employment of the individual, and to discuss the effect of such a termination on the claim.
• FMLA or State Equivalent Leaves - Employers must comply with the FMLA or a state equivalent leave if the employee is employed at a work site that has 50 or more employees within a 75-mile radius.· FMLA or the state equivalents often run concurrently with a workers’ compensation claim and/or internal leave of absence policies. The FMLA or the state equivalent provides a period of time of job protected leave.· After the expiration of the mandated leave, employers may rely on internal policies and practices related to the extension of time off if the individual is still unable to return to work. Otherwise, an employer may terminate the individual’s employment if he/she is unable to return after the expiration of the mandated leave.
• Internal Leave of Absence Policies – Many times an employer who does not have to comply with a mandated leave or who wants to provide an extended leave of absence will have an internal temporary disability leave policy that affords employees time away from work for recovery. These internal practices also may be used to extend an employee’s leave if he/she is still unable to return to work following an FMLA or state equivalent leave’s expiration.

The key with all leave of absence administration is that the employer’s policies and practices are consistently applied.· Consistent application of these policies and practices will ensure non-discriminatory practices when it comes to the termination of an individual who is unable to return to work from leave. If you have questions about your leave of absence requirements, or need assistance in the development of a policy in this regard, please reach out to your HR Professional for guidance.

EEOC Updated Guidance on Use of Conviction Records

On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) released updates to its guidelines on when and how employers may inquire into an applicant’s arrest and conviction history.

The EEOC’s Updated Guidance
No federal law explicitly prohibits employers from so inquiring into an applicant’s past criminal history, however, court decisions and EEOC guidelines have previously recognized that, in some cases, disqualifying an applicant because of an arrest or conviction record could violate the Civil Rights Act of 1964, as amended (Title VII), which prohibits employment discrimination based upon race, color, religion, sex and national origin. 
 
How could we be found to have violated Title VII?

Why do we only use conviction records to make employment decisions?
According to the EEOC, an employer’s reliance on an arrest record in and of itself is not job related and consistent with business necessity because the fact of an arrest does not establish that criminal conduct has occurred. The EEOC further recognizes that a conviction record in most cases will usually serve as sufficient evidence that an individual engaged in particular conduct, but notes that in certain circumstances there may be reasons why an employer should not rely on a conviction record alone.

EEOC Best Practices

What if there is an investigation?
During an investigation, the EEOC will look to whether the particular employer’s use of criminal history has a statistically significant disparate impact on any protected group. Once a disproportionate impact is shown, the employer may only avoid liability if it can show that the reliance on criminal history is job related and consistent with business necessity.

Example of Disparate Treatment Based on Race

John, who is White, and Robert, who is African American, are both recent graduates of State University. They have similar educational backgrounds, skills, and work experience. They each pled guilty to charges of possessing and distributing marijuana as high school students, and neither of them had any subsequent contact with the criminal justice system.

After college, they both apply for employment with Office Jobs, Inc., which, after short intake interviews, obtains their consent to conduct a background check. Based on the outcome of the background check, which reveals their drug convictions, an Office Jobs, Inc., representative decides not to refer Robert for a follow-up interview. The representative remarked to a co-worker that Office Jobs, Inc., cannot afford to refer “these drug dealer types” to client companies. However, the same representative refers John for an interview, asserting that John’s youth at the time of the conviction and his subsequent lack of contact with the criminal justice system make the conviction unimportant. Office Jobs, Inc., has treated John and Robert differently based on race, in violation of Title VII.

Example of Disparate Treatment Based on National Origin

Tad, who is White, and Nelson, who is Latino, are both recent high school graduates with grade point averages above 4.0 and college plans. While Nelson has successfully worked full-time for a landscaping company during the summers, Tad only held occasional lawn-mowing and camp-counselor jobs. In an interview for a research job with Meaningful and Paid Internships, Inc. (MPII), Tad discloses that he pled guilty to a felony at age 16 for accessing his school’s computer system over the course of several months without authorization and changing his classmates’ grades. Nelson, in an interview with MPII, emphasizes his successful prior work experience, from which he has good references, but also discloses that, at age 16, he pled guilty to breaking and entering into his high school as part of a class prank that caused little damage to school property. Neither Tad nor Nelson had subsequent contact with the criminal justice system.
 

The hiring manager at MPII invites Tad for a second interview, despite his record of criminal conduct. However, the same hiring manager sends Nelson a rejection notice, saying to a colleague that Nelson is only qualified to do manual labor and, moreover, that he has a criminal record. In light of the evidence showing that Nelson’s and Tad’s educational backgrounds are similar, that Nelson’s work experience is more extensive, and that Tad’s criminal conduct is more indicative of untrustworthiness, MPII has failed to state a legitimate, nondiscriminatory reason for rejecting Nelson. If Nelson filed a Title VII charge alleging disparate treatment based on national origin and the EEOC’s investigation confirmed these facts, the EEOC would find reasonable cause to believe that discrimination occurred.

Oregon Minimum Wage Change

Oregon minimum wage climbs 15 cents effective January 1, 2013 bringing the minimum wage hourly rate to $8.95/hour.

Pay for Holiday Closures?

When a company decides to close on Thanksgiving Day or for the entire week between Christmas and New Year’s Day, is the employer required to compensate any of its employees? Well, that depends.

For non-exempt (overtime eligible employees), the company is generally not required to pay employees on days in which they do not perform work.·As long as all non-exempt employees are notified of the closure prior to reporting to work on the holiday, no pay is required.· If the non-exempt employee has accrued vacation or PTO time, the employee may request or the employer may require that the employee use accrued vacation or PTO to cover the days of the holiday closure.

For exempt employees who are paid on a salaried or fee basis, federal law requires the company to pay the employee his or her regular salary without interruption for business closures that extend less than one full workweek.· Failure to provide this continued compensation is likely to jeopardize the employee’s exempt status.·A workweek is the predefined seven-day period that the employer uses for payroll purposes.· Unless the closure extends for a full workweek, the exempt employee should experience no interruption in salary for the purpose of a holiday closure.· The employer may require the exempt employee to use accrued vacation time or PTO time to cover the closure.· However, if the exempt employee does not have sufficient accrued time to cover the holiday closure, the employer is required to ensure the exempt employee experiences no interruption in salary.

As a benefit to workers, many companies opt to pay non-exempt employees for certain holiday closures.·In fact, according to a Society for Human Resource Management (SHRM) Benefits Survey (2011), 97% of responding employers provide some type of paid holidays to their employees.· The company may set its policy in this regard, and it has a good deal of discretion regarding the payment and calculation of the holiday pay.·· This may also include “shifting” the days of the recognized holiday so as to reduce the amount of vacation, PTO or unpaid time employees may experience during the holiday closure. We simply recommend creating a written policy regarding holiday pay and applying it consistently among employees.

It is also important to note that the law only requires the employer to consider actual hours worked versus hours paid when calculating overtime pay.· If the employer provides paid holidays, it is not required to count the unworked paid holiday hours towards the overtime calculation for a non-exempt employee.

There are several examples of holiday policies in the HR Support Center, under the “Policy Library” section.·Should you have any questions regarding holiday closures, please speak with an HR Professional.

Should you be using Facebook for References?

Facebook for screening applicants-- is it a good idea?

Recently you may have read or heard news of employers using Facebook to screen applicants. Using as many tools as possible to find the right employee is generally a good thing, especially the art of finding a person who fits with your organization. However using Facebook or other social media can be problematic. At this time there are no specific legal prohibitions in Oregon on using Facebook to screen employees. This includes asking applicants to log into their account to allow the interviewer an opportunity to look around. While the practice of using social media to screen may be legal there are a variety of pitfalls.

“At-Will” Statement vs. National Labor Relations Act

In the news recently, there has been mention of the National Labor Relations Act (NLRA) and the National Labor Relations Board (NLRB). The NLRA is a federal act, otherwise known as the Wagner Act.The NLRA was enacted in 1935 “to diminish the causes of labor disputes burdening or obstructing interstate and foreign commerce, to create a National Labor Relations Board, and for other purposes.”· The NLRB was established to oversee and monitor the NLRA.

The key principle behind the NLRA is to provide protection to employees, regardless of union membership status, in concerted and protected activities such as organizing, and protecting employees as a “class.” The NLRB oversees these activities for compliance with the NLRA. The function of the NLRB to prosecute violations of the NLRA has been reaching further into employers who do not have unionized employees, specifically in the area of “at-will” employment.


The NLRB has most recently challenged the “at-will” employment relationship disclaimers that many employers have in employment applications, offer letters, policy statements and employee handbooks.· The NLRB challenged that some of the statements typically contained in employment at-will policies (e.g. “I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status, except for a written statement signed by me and the Company’s president or executive vice president/COO.”) may be in violation of the NLRA.

At this point, the NLRB has only taken this issue up in the state of Arizona and the final outcome has yet to be decided in the courts.· One alternative an employer may want to consider is simply changing this portion of its at-will statement to “I acknowledge that my at-will employment status can only be changed if noted in a written agreement.”· According to many legal blogs authored by attorneys, it seems that this change would meet the legal challenges that have been put forth to date by the NLRB.

Employers seeking additional assistance regarding the company’s “at-will” employment statements may want to reach out to an HR Professional for guidance.

Summer Dress Codes: Too Hot for Compliance?

According to the May 2012 HR Support Center poll inquiring about spring and summer dress code policies, most businesses do not alter their dress code policies during these months. Out of all the respondents, 63% indicated no change during the spring and summer months from the company's standard dress code, while 9% indicated that employees are not required to wear professional clothing during these months. There are several implications to be aware of in regards to workplace dress code policies in the summer.

• Health concerns (physical and mental stress). During the hot summer months, it is important to consider the health of employees who will be performing work outside or in a facility without air conditioning. The company may need to alter its dress code in order to reduce the physical stress of employees working outdoors, as physical stress can lead to reduced cognitive ability and heat-related injuries and illnesses. In addition, some employees may be protected under the American with Disabilities Act (ADA) which may require reasonable accommodations.
• Productivity levels (includes motivation). The productivity levels within the business may be reduced if employees are dressed in a manner that is distracting to themselves or others. Therefore, it is important to ensure that dress codes allow for maximum productivity. For example, if an employee is wearing a baseball cap during an office meeting, others may find that to be a distraction.
• Safety concerns (injury and accident prevention). There are several safety concerns to consider if dress codes are not properly enforced. Even in extreme temperatures, it is critical that employees wear all recommended and required safety equipment. For example, those in a construction field should not wear sandals; those in the medical field should avoid exposing unprotected skin and wearing loose accessories (such as jewelry) around hazardous chemicals, equipment/machinery (such as wheelchairs), and other things (i.e. syringes).
• Image/Professionalism. Even in the summer months, it is important that the company portray a professional business image. For example, allowing pilots to wear swim trunks could certainty result in decreases in customer confidence levels.

It is encouraged to write comprehensive policies that cover the business dress code. The management team must consider productivity, safety, and regulatory compliance when writing the dress code policy. It is vital to consider whether the dress code could create a charge of discrimination. A workplace dress code for summer months should not discriminate against members of a protected class under civil rights laws such as gender discrimination, religious discrimination and race discrimination. It is important to stay consistent for all exceptions to the policy and to apply consequences for all violators of the policy. Considering these factors will ensure the company's dress code maximizes summer productivity and minimizes the potential for legal exposure.

Unemployment Claims: Fighting and Winning

“You’re fired!” If you have ever said that to an employee (unless you are Donald Trump and filming the reality show “The Apprentice”), you should be prepared to pay for your now former employee’s unemployment claim. If an employee walks out and therefore terminates employment voluntarily, you may still be required to pay for unemployment. Confusing? You bet.

3 Simple Ways to Make People Happy at Work

Learn these strategies to make your employees happy, and extravagantly execute them. You'll create a better business.

Most CEOs know that, if their workers are happy, they're also more productive. But how to make them happy is the challenge. Many take the goal too personally and try to build staff contentment through personal relationships. They get exhausted and find the strategy simply won't scale.

So what can you realistically pull off to make people happy at work?


Professional growth
People want to stretch, to develop their natural talents, feel their life has a narrative and is going somewhere. When they feel that they are growing, they may be exhausted but they're also inspired, energetic, and willing to take on a great deal. (That's one reason why investing in people can deliver a higher return that investing in new technology.) Anyone who reports to you (and anyone who reports to them) should have a professional development plan. That will keep everybody engaged, busy, and--eventually--happy.

Strong community
Everybody wants to be proud of where they work, to feel that they are investing the most precious thing they have--time--in something that matters. For some companies, the mission or the products are enough. If you make things that cure disease, create cleaner air, save carbon emissions, or improve life in any way, your business has an intrinsic sense of purpose which is probably what drew people to it in the first place. If you make ball bearings, knowledge-management software, light switches, or other kinds of widgets, you may find it tougher to demonstrate how you make the world a better place. Superficial social-responsibility projects won't fill this gap for you. You need to create direct links between the success of the business and the community you serve. These need to involve the entire work force and should be active, public, visible, and long lasting. Many companies get their staff to choose the causes or charities they support. The more they're engaged in these commitments, the more meaningful they will be to them--and your company community.

Fair treatment
"Everybody here is somebody." That's how one call-center rep once explained to me why he loved the company where he worked. The job wasn't thrilling, the pay wasn't great, but every single person was treated with love and respect. Just walking through the door, he said, made you glad to come to work. When people got sick, co-workers worried. When someone was due to retire, she most likely came back to work part time, just for the camaraderie. Sooner or later, everyone in a company like this talks about it as being like "family." The CEO knows everyone's name--even the names of everyone's kids and pets.·This kind of fair--and kind--treatment also means startlingly low turnover rates, which also saves money. But it's not really about the money.

The very best companies I've studied and written about honor these principles and enact them lavishly. They don't pay lip service, and they don't do the bare minimum; they go overboard. Their CEOs do so because they know the secret of leadership: Look after the people, and the people look after the business.

Heffernan, Margaret. "Make People Happy At Work Three Simple Strategies." INC.com. 10 July 2012.

Health Care Reform

Supreme Court Upholds Health Care Reform
The United States Supreme Court issued its long-awaited decision on the constitutionality of Health Care Reform and voted 5-4 to uphold Health Care Reform. The Court stated "[o]ur precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it."

The NLRB's Social Media Policy Memorandum

On May 30, 2012, the National Labor Relations Board (NLRB) Acting General Counsel Lafe Solomon issued a memorandum regarding social media policies in the workplace. The General Counsel's memorandum is applicable to both unionized and non-unionized work environments.

Section 7 of the National Labor Relations Act (NLRA) allows employees the right to form, join, or assist labor organizations and the right to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. In addition, even in union-free businesses, employee complaints about hours, pay, treatment, working conditions, etc. may not result in disciplinary action or termination under the NLRA. This section of the Act has important implications for employer social media policies, as delineated in the NLRB's recent memo.

The NLRB's memo covered seven social media policies published by various employers to demonstrate specific provisions that may be unlawful. Some of those social media policies are discussed here.


    Policies concerning an employer's attempt to protect confidential information may be unlawful.
        For example, a policy prohibiting employees from online discussions regarding "confidential guests, team members or company information" is unlawful because the policy could be shown as the employer prohibiting employees from disclosing information regarding their own terms and conditions of employment (which is a protected activity).
    Policies that aim to show peaceful relations amongst staff may be unlawful.
        For example, a policy intended to reduce conflicts amongst employees (that may include controversial issues) can be unlawful depending on the topic. If the topic is about working conditions, it can be interpreted as inhibiting Section 7 rights, if employees are prohibited from discussing such matters (either verbally or in an online format).
    Policies about employer image protections may be unlawful.
        For example, if the employer enforces a policy suggesting that employees are prohibited from commenting on legal matters, including pending litigation or disputes, the company may be unlawfully restricting employee communications. In addition, if an employer restricts which employees are permitted to discuss company information with the media, it may be unlawful. The NLRB stated that: "[e]mployees have a protected right to seek help from third parties regarding their working conditions," so employers may not restrict social media comments to non-public forums only.

The social media policy that was approved by the NLRB allows for employees to band together to discuss or improve working conditions. Businesses are encouraged to adopt and/or modify the NLRB's social media guidelines. According to the NLRB, it is still lawful to have a policy that bans harassment, bullying, discrimination, and retaliation using social media platforms. Another lawful provision in the memo stated that, "information regarding the development of systems, processes, products, know-how, technology, internal reports, procedures, or other internal business-related communications" is permissible.

Although the NLRB's new social media policy guidelines are somewhat restrictive, it is still important to publish a policy. It is critically important that businesses in certain regulated industries (medical, financial, etc.) adopt social media policies that comply with industry regulations, such as HIPAA. One final suggestion is to include a “saving clause” in the company's social media policy. A “saving clause” is a statement such as, "nothing in this policy is intended to infringe upon Section 7 rights.” Such a clause may partially shield employers from liability.

Based on the number of violations outlined in the memorandum, many employers are not in compliance with the NLRB guidelines for social media policies. It is extremely important to comply in this area, as the NLRB's interpretations seem to be supported by the US court system. It is important to have your social media policy reviewed by your HR Professional or your legal counsel to ensure it does not violate an employee's Section 7 rights. It is also highly recommended for employers to contact a HR Professional or legal counsel before disciplining or terminating an employee due to his or her social media activities.

Performance Management & Documentation

Documenting performance can be a company's best defense against retaliation claims. And when done correctly, appraisals and reviews can help management engage and retain top performers. We can help you prepare for an appraisal, assess an employee's performance fairly and deliver the evaluation.

How to Document

• Be timely – don’t try to “build a case” after the fact;
• Stick to the facts; What you see or hear - what would be on a video tape;
• Include the full story; be accurate and specific;
• If handwritten, write legibly in ink;
• Sign and date all documents;
• Document consistently.

Documentation Outline

• State the job performance problem – be specific.· What is the problem? When did it first occur? How and when has this been previously addressed?
• What effect has the problem had? On you, the company, co-workers?
• What changes need to take place? Be Specific!
• What are the deadlines? Be Specific!· When (and how) will the outcomes be accomplished?
• What are the consequences? Be Specific!· State clearly, especially if termination is a possibility.

Need more specific help? Ask your HR Expert.

Unemployed Applicants: The New Protected Class

In today’s economic times, a competitive job force embraces workers with various knowledge, skills, abilities, education, and experience levels. Hiring managers attempt to compare and contrast these items when determining the best job candidate for a specific position. With respect to experience, many hiring managers consider long gaps in employment history on the resume or employment application to be a strike against a potential job candidate. However, due to the high levels of unemployment the country has experienced in the past few years, lawmakers are taking measures to ensure the job candidates who have experienced recent periods of unemployment are still considered viable candidates.

The Equal Employment Opportunity Commission (EEOC) is the agency that oversees discrimination in hiring practices. Some of the traditional protected classes include race, color, religion, national origin, age (40 and over), disability, military or veteran status, etc. Protected classes were developed from previous anti-discrimination laws such as the Civil Rights Act of 1964, Age Discrimination in Employment Act (ADEA), Equal Pay Act, Americans with Disabilities Act (ADA), and the Genetic Information Nondiscrimination Act (GINA).

On April 5, 2012, President Obama signed into law the JOBS Act (Jumpstart Our Business Startups) that is intended to prohibit employers from discriminating against job applicants because they are unemployed. Under the Act, it is “an unlawful employment practice” if a business with 15 or more employees refuses to hire a person “because of the individual’s status as unemployed.” Unselected job applicants will have the right to file a complaint with the EEOC if they are disqualified from consideration due to a recent period of unemployment. The JOBS Act contains the “Fair Employment Opportunity Act of 2011” (FEOA) that treats unemployed job applicants as a protected class under Title VII. The FEOA would make it an unlawful employment practice for an employer or employment agency that:

Unemployed Applicants

The New Protected Class

In today’s economic times, a competitive job force embraces workers with various knowledge, skills, abilities, education, and experience levels. Hiring managers attempt to compare and contrast these items when determining the best job candidate for a specific position. With respect to experience, many hiring managers consider long gaps in employment history on the resume or employment application to be a strike against a potential job candidate.


However, due to the high levels of unemployment the country has experienced in the past few years, lawmakers are taking measures to ensure the job candidates who have experienced recent periods of unemployment are still considered viable candidates.·

The Equal Employment Opportunity Commission (EEOC) is the agency that oversees discrimination in hiring practices. Some of the traditional protected classes include race, color, religion, national origin, age (40 and over), disability, military or veteran status, etc. Protected classes were developed from previous anti-discrimination laws such as the Civil Rights Act of 1964, Age Discrimination in Employment Act (ADEA), Equal Pay Act, Americans with Disabilities Act (ADA), and the Genetic Information Nondiscrimination Act (GINA).

On April 5, 2012, President Obama signed into law the JOBS Act (Jumpstart Our Business Startups) that is intended to prohibit employers from discriminating against job applicants because they are unemployed. Under the Act, it is “an unlawful employment practice” if a business with 15 or more employees refuses to hire a person “because of the individual’s status as unemployed.” Unselected job applicants will have the right to file a complaint with the EEOC if they are disqualified from consideration due to a recent period of unemployment. The JOBS Act contains the “Fair Employment Opportunity Act of 2011” (FEOA) that treats unemployed job applicants as a protected class under Title VII. The FEOA would make it an unlawful employment practice for an employer or employment agency that:

Fails or refuses to consider or hire an individual based upon his or her status as unemployed.
Instructs an employment agency to disqualify an unemployed individual from consideration, screening, or referral for employment.
Refuses to consider or refer an unemployed individual for a job opportunity.
Publishes advertisements which indicate that unemployed individuals are disqualified or will not be considered for employment opportunities.

Employers are encouraged to look carefully at their hiring methods (especially when viewing recent gaps in employment history) and to assess the role an applicant’s unemployed status has on hiring decisions. There are several remedies that apply within the JOBS Act that include injunctive relief, reinstatement, lost wages, punitive damages, emotional distress damages, and reasonable attorney’s fees and costs. Employers need to use caution when inquiring into the reasons underlying an applicant’s current unemployment status. Remember, anything more than a minimal investigation into an applicant’s current status (i.e. unemployed) may be considered as an influencing factor in the hiring decision. This can expose the employer to liability if the individual is not ultimately considered or hired for a position.{jcomments on}

Workplace Political Expressions

According to the HR Support Center March 2012 poll, 78% of respondents indicated “No” to the question posed of: “Does your company currently have a policy or practice that permits or prohibits political related activities in the workplace?” Due to recent “occupy” movements, legislative banter and election promotions, political activities can be effectively addressed with the implementation of well-prepared policies.

First of all, employers can limit political activity in the workplace. The First Amendment does not entitle individuals (employees included) to express their political views whenever and wherever they wish. Those in private-sector companies have no constitutional right to free speech, and can be terminated for expressing political beliefs as long as their dismissal does not violate some other federal or state law.

Political expressions encompass various (verbal or non-verbal) activities or inferences exchanged to support an idea, person, or thing. Often, there are pros and cons that come with political expressions presented in the workplace that can be treated as permitted or prohibited activities, which may or may not disrupt the workflow as well. Also, federal and state regulations further provide guidance for employers to consider when developing a policy.

The National Labor Relations Act (NLRA) describes federal regulations when an activity may be considered “protected” under law. Three rules apply to determine whether an activity (e.g. political) is protected under the NLRA:

* Political activity occurs during non-working time and off the employer’s premises.
* On-duty political support related to a specifically identified employment concern (e.g. Health Care Reform) is subject to restrictions imposed by lawful work rules.
* Leaving or stopping work to engage in political support may be subject to restrictions imposed by lawful work rules. An employer cannot discipline or discharge employees who leave work without permission if their walkout is for the purpose of obtaining some improvement in their own working conditions from their employer who has control.

The above-noted activities can be viewed to be political in nature and permitted for employees to engage in since the NLRA states employees have the right to engage in concerted activity. However, union-related logos represented on campaign materials sometimes may or may not be prohibited in regards to business practices (such as safety and personal protective equipment).

In addition, state laws also make it illegal to discriminate on the basis of an employee’s political activity or affiliation. Employers have the right and responsibility to ensure that work environments are safe, and free of hostility aimed at employees because of protected classification such as race or gender. For example, in 2012 several political issues covered in the current media such as gay marriage and immigration reform, impact protected worker classes of race, religion and sex. Thus, it is vital to develop political expression policies to help manage the workplace.

Employer policies and best practices should:

* Prohibit political statements while working and interacting with customers, visitors, etc.
* Enforce dress codes on employees regarding pro-candidate items attire (e.g. buttons, pins, ribbons, clothing), that affect business.
* Restrict access to social media and internet programs (email).
* Prohibit political fundraising or informational meetings within the workplace, as part of "no solicitation/no distribution" rules.
* Discipline employees for leaving work to attend a rally or other political event (as opposed to allowing for voting time leave).
* Train supervisors and managers on the company’s policy and what steps to take if they hear or observe inappropriate workplace political debates that become intense.

Although there are some companies that by the very nature of their businesses are politically involved in campaigns and voter registration drives, many employers prefer to keep politics away from business relations and practices. Many courts uphold restrictions but only on conduct that is unlawful or demonstrably harmful to the employer’s legitimate business interests. Especially during an election year, it is in every employer’s interest to develop and enforce a political expression policy to ensure workplace productivity to be its finest and anti-discrimination to be at its highest.

Political Expressions

Does your company currently have a policy or practice that permits or prohibits political related activities in the workplace?

Due to recent “occupy” movements, legislative banter and election promotions, political activities can be effectively addressed with the implementation of well-prepared policies.


According to the HR Support Center March 2012 poll, 78% of respondents indicated “No” to the question posed of: “Does your company currently have a policy or practice that permits or prohibits political related activities in the workplace?” Due to recent “occupy” movements, legislative banter and election promotions, political activities can be effectively addressed with the implementation of well-prepared policies.

First of all, employers can limit political activity in the workplace. The First Amendment does not entitle individuals (employees included) to express their political views whenever and wherever they wish. Those in private-sector companies have no constitutional right to free speech, and can be terminated for expressing political beliefs as long as their dismissal does not violate some other federal or state law.

·Political expressions encompass various (verbal or non-verbal) activities or inferences exchanged to support an idea, person, or thing. Often, there are pros and cons that come with political expressions presented in the workplace that can be treated as permitted or prohibited activities, which may or may not disrupt the workflow as well. Also, federal and state regulations further provide guidance for employers to consider when developing a policy.

The National Labor Relations Act (NLRA) describes federal regulations when an activity may be considered “protected” under law. Three rules apply to determine whether an activity (e.g. political) is protected under the NLRA:

* Political activity occurs during non-working time and off the employer’s premises.
* On-duty political support related to a specifically identified employment concern (e.g. Health Care Reform) is subject to restrictions imposed by lawful work rules.
* Leaving or stopping work to engage in political support may be subject to restrictions imposed by lawful work rules. An employer cannot discipline or discharge employees who leave work without permission if their walkout is for the purpose of obtaining some improvement in their own working conditions from their employer who has control.

The above-noted activities can be viewed to be political in nature and permitted for employees to engage in since the NLRA states employees have the right to engage in concerted activity. However, union-related logos represented on campaign materials sometimes may or may not be prohibited in regards to business practices (such as safety and personal protective equipment).

In addition, state laws also make it illegal to discriminate on the basis of an employee’s political activity or affiliation. Employers have the right and responsibility to ensure that work environments are safe, and free of hostility aimed at employees because of protected classification such as race or gender. For example, in 2012 several political issues covered in the current media such as gay marriage and immigration reform, impact protected worker classes of race, religion and sex. Thus, it is vital to develop political expression policies to help manage the workplace.

Employer policies and best practices should:
* Prohibit political statements while working and interacting with customers, visitors, etc.
* Enforce dress codes on employees regarding pro-candidate items attire (e.g. buttons, pins, ribbons, clothing), that affect business.
* Restrict access to social media and internet programs (email).
* Prohibit political fundraising or informational meetings within the workplace, as part of "no solicitation/no distribution" rules.
* Discipline employees for leaving work to attend a rally or other political event (as opposed to allowing for voting time leave).
* Train supervisors and managers on the company’s policy and what steps to take if they hear or observe inappropriate workplace political debates that become intense.

Although there are some companies that by the very nature of their businesses are politically involved in campaigns and voter registration drives, many employers prefer to keep politics away from business relations and practices. Many courts uphold restrictions but only on conduct that is unlawful or demonstrably harmful to the employer’s legitimate business interests. Especially during an election year, it is in every employer’s interest to develop and enforce a political expression policy to ensure workplace productivity to be its finest and anti-discrimination to be at its highest.

New Rules for Background Checks

The essence of the guidance is that Employers have to make hiring decisions on applicants with criminal histories using three criteria.

They are:
1. The nature and gravity of the offense or conduct
2. The time that has passed since the offense or conduct and/or completion of the sentence, and
3. The nature of the specific position.

More details about this background investigation change coming soon- Check back on our website for more information about what this rule may mean to you.

Have specific questions ASK YOUR HR EXPERT here.

Termination Checklist

Employee departures can drain time, energy, resources and morale if not done well. These resources will help you make sure that when you need to let employees go, the process is as smooth and effective as possible.



Checklist
* Weigh alternatives before deciding on termination.
* Thoroughly document the justification for termination.
* Prepare for and conduct the exit interview or termination meeting.
* Present the employee's (voluntary) resignation or (involuntary) termination letter.
* Develop a plan for managing any outstanding employee workload.
* Arrange for the return of any company property.
* Confirm the employee's last day of work and termination date.
* Have the final paycheck ready on the last day of work.
* Inform the employee of any follow-up communications such as COBRA coverage.

Unsure what to do? Ask us 800.342.4742

HR Tips for Non-Compete

Many small businesses struggle to determine whether or not non-compete agreements are worthwhile to use.· Such agreements are employment contracts designed to restrict an employee’s right to start a competing business across the street or to take your clients, other employees, or even your training with them when joining your competition.· Depending on how the agreements are written and applied, they may help add protection to your business or simply add headaches.

From an HR perspective, be sure to think about the following six tips:

Manager Training is Key

The value of providing training to managers throughout the employment life cycle cannot be overlooked. Training ensures that your managers are knowledgeable about your company’s workplace law obligations and skilled in delivering human resources best practices in order to become successful in their roles. Training further enables business costs to be low, employer liability to be controlled, and allows for successful organizations to emerge. Did you know that in 2010 the Equal Employment Opportunity Commission (EEOC) filed 99,992 charges against the private sector?


Managers should be trained in various discipline areas, but some may or may not apply depending upon the company’s size and industry. Below are some suggested strategic and compliance training topics to assist managers in increasing effectiveness and reducing exposure.

• Business Execution. Monitoring business goals, supervising employees, and managing organizational changes may result in improved business effectiveness.
• Leadership. Providing ample opportunities for employees to have open communication and share a common vision, mission and goal helps with decreasing employee turnover rates.
• Performance Management. Learning to provide evaluations that are fair, objective, and based on the organization’s goals opens the door to feedback and conveys to employees they are valuable assets to the organization.
• Diversity. Getting to know who your employees are, how to execute equal employment opportunities with non-discrimination tactics, and handling generational differences allows for increased employee satisfaction retention rates.
• Business Crises Management. Planning, analyzing and evaluating how to handle stressful, harmful, or safety-related hazards that occur intentionally or un-intentionally (such as violence, injuries, accidents, fires, earthquakes, etc.) enables managers to take action rationally and rely on the team when needed.
• HR Best Practices. Learning the basics about hiring, termination, harassment, business policies, employment laws, paperwork compliance, etc., sets forth better protection for managers and organizations. Often, the number and degree of EEOC complaints, OSHA violations, wage and hour penalties, or other claims are reduced when managers receive training on these topics to assist them in making informed decisions.

It is vital to understand that once training is received, managers should be able to “transfer” the training into actual real life situations and settings when an opportunity presents itself.· One way managers can transfer training learned is by utilizing action plans.· Proper training can assist organizations by enhancing performance, productivity, employee satisfaction and customer service within a department.· So, start training every day!

The Necessities of a Safety Manual

Employers are responsible for providing a safe workplace environment for their employees free from harm, health hazards, harassment, etc. Enforcement of workplace safety compliance is an issue that has gained increased attention from federal and state governing agencies.

According to the federal Occupational Safety Health Administration (OSHA), an effective safety and health program can save as much as six dollars for every dollar invested. On January 6, 2012, OSHA initiated a Small Business Regulatory Enforcement Fairness Act (SBREFA) panel process to draft an Injury and Illness Prevention Program (IIPP) rule. Where ever your business is in terms of a safety program, a safety manual is an important starting point for any company size. As a best practice, a company’s safety manual typically includes the following:

•     Supervisor responsibilities
•     Employee responsibilities
•     Reporting
•     Safety policies
•     Equipment usage/handling
•     Chemical/hazard handling
•     First aid & CPR
•     Safety rules
•     Documents
•     Disciplinary action
•     Accident reporting
•     Injury reporting
•     OSHA logs
•     Protective uniforms
•     Cleaning work spaces
•     Opening/closing items

Note: Twenty-four states operate their own OSHA-approved safety and health programs. Some state plan requirements may differ in certain aspects from federal OSHA. Regardless, state-imposed standards must be at least as stringent as the federal standards.

While OSHA is currently in the process of developing new standards of an IIPP, employers still need to adhere to their workplace health and safety obligations. So at a minimum, be sure to regularly review your company’s safety manual or consider establishing an IIPP. With the right information, the manual should help your business meet OSHA requirements and achieve an in-compliance status well before an OSHA inspection occurs.

Employee Morale

Employee Morale Shapes Business Success

The start of a new year represents an excellent time to contemplate employee morale within the organization. One success formula for an employer is to place and retain the right employees in the right jobs. Although monetary incentives are one way to help employees cope with economic downturns and challenges, the quality of work/life issues is a vital element that impacts the morale and the successful contributions of your employees.


The first step is to take time to assess how employees feel about their current roles and what the company can do to ensure they are positioning themselves as an attractive employer. Remember to recognize exceptional workers within the organization. Having employees who are valued, recognized and appreciated for their efforts will generally boost the overall morale of the organization. Such employees may also provide critical business and employee referrals to further contribute to the company’s success.

Management immediately can do a great deal to help increase employee morale. Consider the following three tips:

* Analyze the Business Situation. Question where improvements need to be made or enhancements should take place for employees to effectively and efficiently carry out their work duties.
* Communicate with Your Employees. Inform employees about changes within staff, budgeting, etc. and take feedback into consideration.
* Increase Workplace Incentives. Provide an environment with growth opportunities, monetary and non-monetary rewards, and a positive business culture. One simple example that can be easily overlooked is to thank your employees periodically for their efforts in email communications or staff meetings.

In this new year, resolve to make employee morale a priority. A business can prosper with the right mind-set, tools, and the greatest asset – its employees. When employees feel respected, appreciated, and recognized, the increased success of a business will generally follow.