Our Human Resources Blog

 In previous blogs I have talked about the unemployment claims process- specifically- when and why it’s important for employers to dispute claims. With the continuing extension of unemployment benefits and the number of claims still rising, employers should be aware of what they can do to be successful in winning unemployment disputes.

 Every business has employee turnover. Whether losing an employee is voluntary or involuntary, claims for unemployment insurance can be costly to a business. In order to minimize costs and make certain the claims system is working the way it should be- it’s up to employers to be diligent in raising issues and contesting claims when appropriate.

 There are numerous reasons why a claimant may not be eligible for unemployment benefits, but the two primary reasons for disqualification are 1.) the employee resigned without good cause attributed to the employer and 2.) they were discharged for misconduct in connection with their work. Regardless of the reason for termination many departing employees automatically file for unemployment and a majority of these claims are awarded.

 There are a couple of things an employer can do, though, to assure that only valid claims are awarded to employees.  The following are a few tips to help increase an employer’s chances of winning a disputed claim.

•  Documentation- In unemployment disputes, the burden of proof is on the employer. Written documentation that an employer provides regarding an employee’s work history and termination is critical in disputing claims and will be used as key evidence.  An employer must know and properly document the accurate reason for all terminations.  Verification that the employee was aware of company policies (a signed employee handbook) is also helpful.
• Representation- Who handles the appeals hearings in a company is also an important consideration.  It’s imperative that the employer side of the hearing be led by an experienced professional with human resource knowledge and someone that understands the unemployment hearing process.

 Unfortunately in today’s economic climate, the odds of winning unemployment claims are not in favor of the employer-- but written documentation, clear communication and representation can help increase an employer’s chances.  

A small business was looking for someone to “answer phones and do light typing”. The owner/ managers of the business had limited time and disliked formalities- so they opted not to write a job description for the help wanted ad. A candidate was hired and consequently...  let go a few weeks later. The job was not what the employee expected or felt she was hired to do. As a result the company was forced to begin the recruitment process again- incurring additional costs and lost productivity time.

Sound familiar? Many businesses feel job descriptions are unnecessary and may not take the time to develop them. Job descriptions, in fact, can be a very valuable asset to an organization and can help save costs in the long run. They help to place the right people in the right job and later serve as a road map to managing employees. They help sort out tasks, work flow and accountability- enabling businesses to plan how they will operate and grow.

Written job descriptions address many key issues that help to protect a business and their employees, as well. Not only are they an integral part of recruiting and retention, they are also a guide for compensation, staff planning, training, performance appraisals and legal compliance.  They provide written evidence that employment decisions were based on a rational, legal basis and serve as documentation to help prevent or defend against discrimination complaints.

 Bottom line--- job descriptions not only help organizations hire and retain the “right” employees they can also have a positive affect on productivity and profitability.

I blogged about “workplace violence” earlier this year, but given the recent tragedy at the Hartford Brewery in Connecticut -where 9 workers were killed by a disgruntled employee-  I think its worth looking at  the topic again...

Unfortunately, it is extremely difficult for employers to predict and avoid violence in the workplace.  However, employers can proactively approach this issue through education, training, and consistent workplace practices.

Many employers feel as if they are exempt from violence occurring in their companies, especially, smaller, entrepreneurial or family owned businesses.  Many smaller companies pride themselves in fostering a close and personal work environment.  However, this can be a mix for disaster, if the appropriate steps to mitigate retaliation aren’t taken.

Companies should train their employees and managers on how to recognize potentially violent employees and dangerous employee situations (i.e. an abusive relationship).  Written policies should be put in place to educate employees on how to handle threats of violence, or what to do in a life threatening situations.  Companies should also follow consistent workplace practices and general rules for progressive discipline, which can help eliminate hostile situations upon termination. 

Below are some tips to help reduce the risk of violence occurring in the workplace:

• Always try to terminate an individual in the earlier part of the week.  This gives them time to file for unemployment, look for another job, or take care of finances.
• Make sure that you have all of their information ready for termination (i.e. COBRA paperwork, unemployment information, last paycheck)
• Try to use progressive discipline, as much as possible, in order to give them time to improve on poor performance. (Employee's who are not notified of their deficiencies may assume they are complying with company policies. To suddenly be terminated without warning, can provoke anger towards the company or other individuals within the company.)
• If you do need to let an employee go immediately for gross misconduct, be aware of their behavior as they leave.  Have they expressed  signs of violence or verbally made threats to the company or co-workers in the past?  These could be potential signs of an individual who might act violently. 
• Make sure to notify all necessary staff that the individual is no longer employed and is not to be let onto the property.  If need be, request security from a private firm or local police force, if you feel that a termination might become violent.

In recent years, the number of employee lawsuits has risen tremendously. Although many of these suits have no real legal basis and are provoked mainly by an employee’s anger from what they may consider to be unfair treatment—fighting these suits can still cost a company a great deal of time and money.

As many of these lawsuits can be traced backed to manager mistakes, below is a list of some of the most common manager mistakes that can expose a company to an increased likelihood of lawsuits and financial liability.

Inadequate Training-  Managers should understand and follow company policies and procedures. Lack of training can cause managers to make improper or inconsistent decisions which contradict company policy.

Lack of Legal Knowledge-   Managers should understand and comply with federal and state employment laws. Compliance with state/federal requirements is imperative in avoiding lawsuits.

Incomplete/Sloppy Documentation-   Without written documentation of an employee’s history- employers have little evidence or proof of poor performance, insubordination or disregard of company policy. All communications should be documented and written as if they are going to be presented in court someday.

Ignoring Employee Complaints-   To avoid lawsuits, managers should address employee’s problems and complaints as soon as they are brought to their attention.   Ignoring complaints jeopardizes employee morale and a company’s standing in court.

Firing Employees Too Quickly-   Managers who fire employees without advance notice are exposing a company to lawsuits. Acting without fair warning or first trying to improve a worker's performance invites resentment and may lead to litigation.

Gary Ross, a veteran and resident of California, has suffered from chronic back pain for over 20 years as a result of injuries he sustained during military service. As traditional treatments and medications were unsuccessful in controlling his pain, his physician in accordance with CA law, prescribed marijuana as medical treatment.

In 2001, Ross was offered a position with a company as a lead systems administrator. Company policy mandated that he take a pre-employment drug test. He tested positive for marijuana. Before taking the test, Ross provided the company and the clinic with a copy of his physician’s recommendation. He was terminated from his position.

To date 14 states, plus the District of Columbia have legalized medical marijuana. Two additional states, Maryland and Arizona, have passed laws that are favorable towards medical marijuana use. At the federal level, marijuana use remains illegal.

As more and more states make it legal for people/employees to use marijuana for medical purposes, employers are faced with how to address this issue in the workplace. How do employers continue to enforce drug-free workplace policies and still comply with federal and state laws?

In general, the courts have ruled in favor of employers who enforce drug free workplace policies. An employer’s right to prevent medical marijuana users from using drugs in the workplace, to terminate them for being under the influence at work and to terminate them for testing positive has been upheld.  However, even though the courts have supported employers in the past, given the number of states who are adopting medical marijuana laws- this trend may not continue.

So What Should Employers Do?

First employers should carefully review their drug & HR policies to ensure they include provisions addressing medical marijuana use. Second, employers should make certain their policy complies with state and federal laws. Third, employers need to educate their managers and supervisors about their policies and make certain they know how to respond to medical marijuana issues in a professional and consistent manner. 

Over the past year, the Occupational Safety & Health Administration has implemented a variety of initiatives to increase enforcement. Recently a proposed revision to the OSHA Act has begun making its way through Congress and could reach the floor of the House by the end of the month.

Under this provision, prison terms of up to 10 years could be imposed on officers and directors of companies where a violation contributed to the death of an employee. (Currently the maximum sentence under the OSHA Act is 6 months)

In addition to the criminal penalties in the provision, there are several additional proposed enforcement changes in the bill that could radically alter the OSHA landscape for employers. These include:

• The maximum civil penalty for willful and repeated violations would increase from $70,000 to $120,000. If the violation resulted in a death, the maximum penalty could be $250,000.
• The maximum civil penalty for serious violations would increase from $7,000 to $12,000. However, if the serious violation resulted in a death, the maximum penalty could be $50,000.
• The maximum civil penalty for other-than-serious violations would also increase from $7,000 to $12,000.
• Protections for “whistleblower” employees would be significantly strengthened. This has a potential to severely inhibit employers’ ability to hold employees and managers accountable.
• Prison terms of up to five years could be imposed on any officer or director of a company that knowingly violates any OSHA standard, rule or order if that violation contributes to serious bodily harm to an employee.

With the tightening of OSHA enforcement it’s critically important for employers to review and improve the safety of their workplace. A few key items that employers should look at include:

Documentation- Review policies and documentation to make certain they are accurate and up to date.  

Training- Review all programs to ensure all required training is being conducted.

Analysis- Identify where accidents are happening, analyze the processes associated with the accidents and put corrective actions into place.

Creating a safer environment for your employees will not only ensure compliancy with OSHA but can also lead to a more productive workplace and enhance your company’s reputation.

Traditionally, many companies use bonuses and paid time off to reward employees for good work and behavior. Recently though some companies are taking it a step further by offering cash rewards to employees for actions such as quitting smoking, taking their blood medication and flying coach on business trips.

With skyrocketing expenses in today's economy, many employers are finding that offering certain cash rewards not only benefit the employee but can also lower expenses and make good financial sense for the company.

Some examples of employers "paying" employees for good behavior include:

• Energizer Battery company was looking for ways to cut travel costs. The solution they found was to pay employees to fly coach instead of business class on international flights.  The cost savings are shared- $1000 is given to the employee, the company keeps $1000.
• General Electric offers a series of cash incentives to employees for quitting smoking:  $100 for completing a smoking cessation program; $250 for demonstrating being "cigarette free" after 6 months; $400 for remaining "cigarette free" for the following 6 months; A bonus of $400 for those who quit in the first 6 months
• Others are paying employees between $10 and $100 to take their blood pressure medicine every day.  When employees are admitted into the hospital as a result of not taking their medication, it costs insurers hundreds of millions of dollars in hospital bills.  A cash incentive can save money for both insurers and subsequently individual companies in health care costs.

Whether it's a shared savings program or a program that lowers health care costs, it's important that businesses offer incentive programs that not only motivate their employees, but also help themselves to achieve their business goals. The program has to work not only for the employees, but for the good of the company, too.

Officially, summer began this past Monday- June 21^st.  For most, the start of summer is a time for family trips, barbecues and the pool/beach.  For employers and HR managers, it can be a season of challenges.  Dealing with vacation requests, lean staff, sick days and summer fashions in the workplace can all cause HR headaches if not proactively addressed.

So what should employers/managers do to ensure the summer months continue to be a productive and compliant time for their business?   The following are a few tips for employers:

Sick Days - Perfect beach weather seems to bring an increase of sick days for employees during the summer months.  Employers should evaluate their sick day policy and consider such questions as:   What documentation will you require for employees for sick days?   Will employees be paid for holidays if they are absent the day before or after?    Having a sound policy and enforcing it in a consistent manner is key in dealing with these challenges

Vacation Requests -To avoid lean staffs and a dip in productivity during the summer months, it's important for employers to proactively manage their summer vacation requests. Policies should clearly state that vacation requests are required to be submitted and approved by management in advance.

Dress Codes - Summer typically brings more revealing fashions to the workplace. Many employers relax their dress codes during the warm weather months. Regardless of the dress code established, it's important for employers to outline their company policy and to clearly communicate the violations and consequences to all employees. Anti- harassment and employee conduct rules should also be reviewed and communicated to employees.

No matter if you're a small or large business, communicating what employees can expect from you and what you expect from them can be critical to the success of any organization. Creating and keeping an up to date employee handbook can help clearly communicate company policy and procedures to employees.

Jarretta Hamilton, a fourth grade teacher at a private Christian school in Florida, was recently fired from her job for having premarital sex. She's now suing her former employer in federal court for discrimination.

Last year Jarretta went to her school administrator to hopefully be congratulated on her pregnancy and to request a standard 6 week maternity leave for later in the year. A widower and mother of 5 children, Jarretta and her second husband were thrilled to be expecting a child together.  The meeting didn't go as expected.

The school principal first expressed his concerns about the problems the school faced when covering women on maternity leave. Secondly, he asked Jarretta, point blank, the date the baby had been conceived.  She answered honestly that the baby was conceived 3 weeks prior to their planned wedding date.

A week later she was notified that she was being terminated- namely for fornication- sex outside of marriage.  Not only was she dismissed from her teaching position, her "premarital conception" was made public, allegedly by the school principal, to all the teachers and parents of the students.

Although Jarretta signed an agreement upon accepting employment with her employer to maintain and communicate the values of the school, the agreement did not include a morality clause, nor did it include anything specific about engaging in premarital sex.

She is suing for compensation for both her lost job and for the emotional distress of being humiliated by the entire school. Her lawyer is filing with the EEOC and believes her termination violates federal protections against discrimination in the workplace. He explained that while personnel at the affiliated church are bound by moral standards, the teachers are serving a secular role and a private school is just like any other employer. (If there are more than 50 employees they are governed by the laws regarding discrimination.)

She also plans on filing suit against the school principal for invasion of privacy.

Your Reactions?

Good news- the number of employees that resigned from their jobs in the past 3 months was greater than the number laid off. After 15 straight months in which layoffs exceeded voluntary departures, this is definitely a sign of better economic times.

As the economy rebounds and job opportunities increases employees who were once focused on solely keeping their jobs are beginning to explore their options. During the recession, employees were hesitant to resign from their positions not only because jobs were scarce, but also because some feared accepting a new position would leave them vulnerable to a layoff.

With the economy strengthening and employees more confident to make a job move, companies are looking for answers on how to retain and engage their employees? In a recent survey, 65% of employers responded that they are considering using compensation incentives to limit “employee flight”- merit increases, performance based bonuses, market/equity adjustments and lump sum payments. Other businesses are considering benefit increases.(46%)

As the competition begins to intensify for qualified talent, it’s important for employers to take a comprehensive look at employee incentives and benefits. Other retention strategies to consider include:

• Flexible work schedules
• Tuition reimbursement
• Competitive vacation and holiday benefits
• Employee morale programs- parties/events/non cash awards
• Career development programs
• Opportunities for growth
•  Implementing greater employee/management communications

Companies that recognize the importance of retaining valued employees understand that it is critical to the long term health and success of their business.