Archive for September 2011

Providing Mobile Devices to Employees may be Violating FLSA

Over the years, technological advances have fueled the evolution of work, allowing employees the capability to implement autonomy and authority over their work. Most organizations provide their employees with mobile devices including laptops, cell phones, and personal digital assistance (PDAs) to help facilitate a work-life balance culture. Although providing mobile devices to employees can simplify work processes and provide real-time connectivity, employers are vulnerable to  Fair Labor Standard Act (FLSA) violations when these devices are given to nonexempt employees.  

Under FLSA, non-exempt employees must be paid at least one and a half times their regular pay for all hours worked after 40 hours within a given week (also known as overtime). Technology has created an environment where nonexempt employees can work outside of the office, which makes it difficult to track hours worked. It is difficult for an employer to calculate details such as time spent checking emails and providing correspondence or connecting to the server. According to FLSA, hours worked include all hours spent by the employee participating in tasks related to work that benefit the employer.  Even if the employers did not approve the extra “hours worked”, they may still have to provide compensation for these hours, including overtime obligations. The burden is on the employer to communicate a mobile device policy, ensure that the employee understands what compensable work is, and keep track of what assignments the employee must complete.

In some situations, the cost of providing employees with a mobile device outweighs productivity.  In August 2010, a Sergeant for the Chicago Police Department filed a class action lawsuit on behalf of other officers, claiming inaccurate hourly and overtime compensation. In the case Allen v. City of Chicago, the officers claim they were required to access and respond to emails, phone calls, and other messages through a blackberry device while off work. They allege the Chicago Police Department administrates an unlawful compensation system that neglects to take into account the use of mobile devices.

 Judgment for this case is still pending before the Northern Court of Illinois. The ruling of the case and others similar to it will set the precedent for what is acceptable use of mobile devices by nonexempt employees. In the meantime while the world waits for the law to “catch” up to technology, employers should stay abreast with the latest FLSA regulations and follow Best Practices.

  • Implement a mobile device management strategy.
  • Create a policy that outlines payment for remote office technology, phone connectivity and terms of use.
  • Implement time keeping mechanisms to keep track of hours worked versus overtime claimed.
  • Educate employees on the protection of personal and corporate data on mobile devices.
  • Provide employees with proper IT provisions so they can manage their work on mobile devices
  • Create a system for reporting hourly and overtime claims and provide quick appropriate response.  

State Unemployment Insurance in 2011 – Reduced Benefits and Eligibility Restrictions

Sean MacEntee Image

Recent changes to Unemployment Insurance (UI) transpired during a time when many Americans depend on it as their primary source of income. The current economic environment has caused states to reform UI. This financial reform serves to restore solvency to UI due to the influx of  participants.  

A report by the National Employment Law Project, a national advocacy organization for employment rights of lower-wage workers, indicated ten states enacted stricter unemployment legislation in 2011. Notable changes include  a reduction in the average check amount, implementation of budget cuts to unemployment benefits, and instatment of stringent UI eligibility requirements. According to the report, six states shortened the maximum duration of UI to less than 26 weeks (which has been the standard term for 50 years). This regulation decreases the amount of weeks Individuals can receive extended benefits. Additionally, many states have strengthened regulations governing work search and drug testing requirements. 

Below is a summary of benefit reductions and eligibility restrictions for the various states.  Source:  Unraveling the Unemployment Insurance Lifeline: Responding to Insolvency, States Begin Reducing Benefits and Restricting Eligibility in 2011


Reduced Workers’ Unemployment Insurance (UI) Benefits:

  • New claimants can receive Workers’ UI benefits for a maximum duration of 25 weeks. Effective March 03, 2011
  • Minimum and maximum benefit amounts will be reduced to $81 and $451 respectively to wages earned. Effective July 01, 2012

 Eligibility Restrictions for Unemployed Workers:

  • The amount of wages a worker must have to qualify for UI benefits was increased from 27 to 35 times the weekly benefit amount .
  • For a worker to re-qualify in a subsequent benefit year, he or she must also have earned eight times the weekly benefit amount (up from three times) since the beginning of the previous benefit year.
  • A record of negligence along with progressive discipline is sufficient proof of intentional poor work performance and can lead to disqualification.

Reduced Workers’ Unemployment Insurance (UI) Benefits:

Effective January 2012:

  • Unemployment rate will be based on a sliding scale. As unemployment falls, the number of weeks for expected benefits also decrease.

Eligibility Restrictions for Unemployed Workers:

Effective August 1, 2011:

  • The requirement that misconduct requires“willful and wanton” action in order to disqualify was changed to requiring only a “conscious disregard” of the employer’s interests.
  • The definition of misconduct now includes misconduct outside of the workplace.
  • A claimant must provide the state with detailed information regarding contact with at least five prospective employers or the date on which he or she accessed services at a one-stop career center each week.
  • Claimants are required to complete a state agency–approved online skills assessment to maintain benefit eligibility.
  • Workers who receive severance pay or who are incarcerated may no longer receive benefits.
  • Parties can use hearsay evidence in appeal hearings to support a finding of fact by an Appeals Referee in certain circumstances

 Reduced Workers’ Unemployment Insurance (UI) Benefits:

Effective January 2012:

  • Maximum duration of Workers’ UI benefits will be reduced from 26 weeks to 25.

 Reduced Workers’ Unemployment Insurance (UI) Benefits:

Effective July 1, 2012

  • Weekly amounts of all the new claims on or after July 1, 2012 will be based on all four quarters in the worker’s base period rather than on the highest quarter of earnings.
  • Average weekly benefits are expected to drop from $283 to an estimated $220.

 Eligibility Restrictions for Unemployed Workers:

Effective July 01, 2011:

  • If a prospective employer withdraws an offer because the worker refuses to take a drug test or tests positive for drugs, it is assumed that the employee refused suitable work

Reduced Workers’ Unemployment Insurance (UI) Benefits:

Effective January 15, 2012: 

  • Workers’ UI benefits will be reduced from 26 to 20 weeks

Reduced Workers’ Unemployment Insurance (UI) Benefits:

Effective April 13, 2011:

  • Workers’ UI benefits were reduced from 26 to 20 weeks.

 Eligibility Restrictions for Unemployed Workers:

  • Claimant will not be eligible for a waiting-week credit or benefits in any week that they acquired an outstanding penalty due to an overpayment of benefits.

Eligibility Restrictions for Unemployed Workers:

  • Increase in the weekly qualifying wages from $50 to $100, beginning in 2013, and to 16 times the minimum wage beginning in 2015.
  • Workers with less than 18 weeks of qualifying wages (referred to as “credit weeks”) will be disqualified, beginning in 2015
  • Number of weeks in which workers collect benefits may not exceed the number of credit weeks; currently, workers with at least 18 credit weeks may receive up to 26 weeks of benefits.
  • The minimum weekly benefit will increase from $35 to $70, beginning in 2013.
Rhode Island

 Reduced Workers’ Unemployment Insurance (UI) Benefits:

Effective July 01, 2012:

  • Percentage used to calculate benefits each year will decrease from 67 percent to 57.5 percent.
  • Average weekly benefit amount will decrease from approximately $390 to $298.
  • Cap on maximum benefits will be reduced from 36 percent to 33 percent of base period wages.

 Eligibility Restrictions for Unemployed Workers:

Effective July 2012:

  • Stricter disqualification period for workers who refuse suitable work, voluntarily quit without good cause, or are discharged for misconduct- claimants will be required to work at least eight weeks, and earn the weekly benefit rate in each week.
  • Workers who receive severance pay may not receive UI benefits for up to 26 weeks.
South Carolina

Reduced Workers’ Unemployment Insurance (UI) Benefits:

Effective June 14, 2011:

  • Claimants are now eligible for 20 weeks of UI benefits instead of 26 weeks.

 Eligibility Restrictions for Unemployed Workers:

Effective January 1, 2012:

  • Seasonal workers will not receive benefits during the off-season if there is a reasonable assurance of work at the beginning of the next season.

 Reduced Workers’ Unemployment Insurance (UI) Benefits:

Effective January 01, 2012:

  • Workers must wait one full week before receiving their first benefit check, despite meeting all of the eligibility requirements in this period, resulting in a loss of one week’s benefits.

 Eligibility Restrictions for Unemployed Workers:

Effective January 2012:

  • If a prospective employer withdraws an offer because the worker refuses to take a drug test or tests positive for drugs, it is assumed that the employee refused suitable work.

Making Outsourcing Work for You

In today’s economy, many organizations seek cost effective solutions to perform business functions. The lure of reducing overhead costs and leveraging specialized human capital and technological resources has many organizations considering outsourcing. A critical question then becomes- when is it the right time to outsource business functions?

Simply put, outsourcing is when an organization contracts out a business function(s) to an external expert involving an exchange of services and payment. For example, many companies outsource a chunk of their HR and/or IT functions to an outside agency, while some only outsource a particular sector such as payroll or training. Some companies may find it practical to outsource specific projects such as company restructuring.

 When considering outsourcing for any reason, organizations should assess their goals and needs to determine if outsourcing is a viable option. Consider these steps when planning to outsource any business functions:

  1.  Review the mission and vision statements of the organization; determine the short-term and long-term objectives of the sector/project that is being evaluated for outsourcing;
  2. Determine the tasks needed to realize these objectives;
  3.  Examine how outsourcing will help achieve these objectives;
  4. Evaluate current in-house resources to determine if the organization has the workforce competency and technology to meet these objectives; and
  5. Perform a cost benefit analysis to study the economics of an outsourcing venture.
So when is the right time to outsource business functions?

An organization may implement outsourcing when:

  •  It wants to reduce administrative duties so that members of the current workforce can focus on more instrumental business roles;
  •  It wants to reduce costs and control capital expenditures such as office equipment and software; or
  •  It wants an industry expert to assist in fulfilling specialized needs.

 Successful outsourcing is dependent on defining measurable metrics that evaluates both parties involvement within the agreed upon services. Hence, organizations should translate vital business objectives into specific and quantifiable goals. Business leaders should have a clear vision of what outsourcing should achieve, along with aligned operating models to support it. Furthermore, it is vital to develop a comprehensive communication strategy for stakeholders to provide updates on outsourcing objectives and manage expectations. Appropriate training on new roles and processes is also necessary during the outsourcing transition.

 The next step in the process is selecting the right business partner! Outsourcing is a long-term relationship and finding the right partner is critical to everyone involved. The investment in selecting the right partnership can save alot of time and effort that can be devoted to profitable endeavors. Conduct a search  and/or utilize Federal and State associations, outsourcing suppliers, online contractor services etc.

 Gain the knowledge you need to make the best decision by  requesting a written proposal and an official presentation, and considering the following factors:

  • The business partner’s knowledge of the industry vertical, financial stability, reputation, infrastructure, and back-up systems; and
  • The business partner’s corporate culture, values and goals; for example, check to see whether the vendor shares the company’s business values and standards.

When a business partner is selected, the company should consider the extent of the relationship and if a need for a written contract that defines any, some or all of the following considerations: the project timeline, pricing policies, business continuity plans, quality standards, and other responsibilities.

Body Language: Mastering the Art of Powerful Postures

Researchers from Columbia University and Harvard University have found a link among powerful leaders besides pure charisma. The connecting factor is their use of powerful body postures to convey authority.

So how does posture relate to power and authority? A study titled Power Posing: Brief Nonverbal Displays Affect Neuroendocrine Levels and Risk Tolerance by Dana R. Carney, Amy J.C. Cuddy and Andy J. Yap indicated that males and females express power through expansive postures (i.e. standing or seating with relaxed limbs) as oppose to contractive postures (standing and seating with hands and legs closed). Individuals whose postures are more expansive exhibit higher levels of testosterone, lower levels of cortisol (adrenal glands or pituitary glands), and an increased tolerance for risk. Expansive postures are high power nonverbal body communications that exude confidence, illustrate a lack of nervousness, and demonstrate an individual’s ability to overcome challenges.

With practice, you can use expansive postures to present yourself in a more powerful demeanor and boost  your confidence.

Body Gestures

1. Eye Movement: Maintaining eye contact with your audience reflects confidence and honesty, and makes the speaker appear more experienced. To maintain correct eye contact with a person, visualize an inverted triangle in the person’s face with its base immediately above the eyes; this is the area to look at during discussions. While speaking to a group of people, make eye contact with everyone and not just one person.

2. Hand Gestures: During conversations, use your hands confidently to express sweeping gestures. Utilize your hands to explain or to stress a particular point. However, avoid using them too frequently because they will become distracting.

3. Facial Expressions: A simple smile when you agree can enhance your nonverbal communication skills. Keep in mind that people can recognize even a most fleeting expression such as anger or annoyance, so cautiously manage your reactions when people are sharing thoughts.

4. Body Image: Keep your body balanced and slightly wide by distributing your body weight evenly on both the feet. Make sure that you are on level without bending on one side, and your shoulders are relaxed. These posture techniques illustrate that you are an action-oriented person with exemplified authority and stability.

Practice Power Poses: People that use up more space, meaning those who use open and large gestures, have high levels of testosterone flooding their systems which causes them to feel more powerful. Before a meeting or presentation, locate a quiet corner and stretch your hands and legs in expansive positions in either sitting or standing positions. When you dominate the space around you, your mind receives the message.

Make Powerful Gestures a Habit: It is essential to monitor your body language to evaluate your efficiency in conveying messages. Make it a habit to use powerful postures in your daily routine.

Successful Succession Planning: Builds Bench Strength for the Organization

To maintain a strong organizational structure, employees must be trained and developed to handle challenges. Through the implementation of a succession plan, key members in the organization are identified, trained and developed to tackle problems that may arise in the future. Succession planning guarantees that “high potential” employees are prepared to fill in organizational gaps in times of corporate expansion and loss of key leaders. Organizations should develop a succession plan before it’s too late to safeguard against unforeseen occurrence.                                                                                                                                 

Steps to Develop a Successful Succession Plan

Step – 1 – Identify key positions:                                      

The first step in effective succession planning is to identify the key positions in your business. Usually, these positions are leadership roles such as CEO, CFO, COO, VPs, department managers and subject matter experts. Determine the competencies and experiences required to qualify for each key position.     

Step – 2 – Identify key talents                                                               

The next step is to look for potential employees who have the caliber to fill these roles. To do this you need to know what essential knowledge, skills and abilities (KSAs) are needed in the job. Engage potential candidates about the possibility for professional development in their respective role and beyond. Be sure not to promise anyone a future role.                                                                 

Step – 3 – Assessment of key talents                                                               

Once an employee shows interest and is ready to be trained, you will want to perform a gap analysis. Determine the difference between the KSAs required for the job and the KSAs an employee currently possesses.

Step – 4 – Generate a development plan                                                   

Identify the KSAs an employee lacks to generate an individual development plan that will map out a training agenda and the competencies needed for the employee to reach the intended goal. The method of training depends on what you are trying to accomplish, how much time it will take, and the budget. Two such methods have been described below:

  • Job shadowing – Job Shadowing is when a trainee studies the work a subject-matter expert (SME) does on the job. The purpose of job shadowing is to set up a mentoring relationship for the trainee in a particular area and give trainee a better understanding of the subject they shadow and insight into how decisions are made.
  • Special projects or stretch assignmentsA special project or stretch assignments allows an employee to stretch their current abilities by taking on additional responsibilities to acquire new skills. This is usually done with the accompaniment of oversight and mentoring.

 Step – 5 – Development Monitoring and review
It is important to periodically re-evaluate the succession plan for changes and new development. An annual or semi-annual succession planning review should be held to review progress of key talent and to revise development plan as needed.

Are You Violating ADA Requirements by Denying Leaves?

According to the American with Disabilities Act (amended to American with Disabilities Act Amendments Act (ADAAA)), employees who request an extension for leave due to medical reasons cannot be terminated regardless of the length of leave. The Equal Employment Opportunity Commission (EEOC) prohibits leave policies that terminate employees who exhaust leave benefits because it is a violation the ADAAA reasonable accommodation clause.

 The Family and Medical Leave Act (FMLA) provides eligible employees twelve workweeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons. In cases where an employee with an exasperated leave benefit files an extension, the ADAA requires employers to evaluate the request to determine if additional leave would impose an undue hardship on the business. The employer must analyze the impact of the employee’s initial 12-week absence to determine how much additional leave is needed. Furthermore, employers are not required to grant indefinite leave if they receive notice from the employee or the employee’s physician stating that the employee will never be able to return to work.

As per EEOC regulations, if an employer cannot hold the employee’s job open due to undue hardship, the employer must then determine whether there is an equivalent vacant position that the employee is qualified to perform. If the employee could be re-assigned to an equivalent position without incurring an undue hardship then the employer should extend the leave and assign the employee to the open position.  If an equivalent position is not available, the employer must look for a vacant position at a lower level. If an employee is able to return to work but unable to perform an essential function of the original position, even with a reasonable accommodation, the employer may consider re-assignment and possibly separation.

 HR Best Practices:
• Train managers on FMLA policies so that work-hours can be analyzed appropriately if an employee raises an ADA related concern.
• Post proper notices and consider employee requests for additional leave or special consideration for a reasonable accommodation.
• Promptly respond to employee requests regarding leave extensions, special accommodations, or any requests related to FMLA or ADA.

More States Enact Mandatory E-verify Legislation

A growing number of States recently passed legislation regarding the use of employment eligibility verification. At least six States passed new employment-related immigration bills including Alabama, Georgia, Indiana, Tennessee, Utah and Virginia. According to the National Conference of State Legislatures, State Legislators introduced 279 employment-related immigration measures during the first quarter of 2011. The surge in employment eligibility legislation has created a sense of ambiguity for employers attempting to navigate through changes and maintain compliance.

What is E-verify

Employment Eligibility Verification (E-Verify) is a web-based system operated by the Federal government that allows participating employers to verify electronically the employment eligibility of their newly hired employees. E-Verify is operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA) via the U.S. Citizen and Immigration Services (USCIS) website. On June 14, 2011, Congress introduced the Workforce Act of 2011 (H.R. 2164), which  requires all employers to use E-verify and disregard I-9 immigration status reform.  Until there is a comprehensive Federal Immigration law enacted, State legislation governs compliance.

Best Practice Solutions

Federal Law mandates the use of E-Verify is voluntary but most State Immigration bills require Public employers and State contractors to use E- verify to confirm employment status. States including Arizona, Delaware, Georgia, Indiana, Mississippi, and South Carolina made E-verify a mandatory procedure for all employers. To maintain compliance, employers should use Best Practices including:

  • Research State Immigration Legislation for all states in which you operate business.
  • Employers that contract with states or municipalities should use E-verify as evidence of compliance with Federal Immigration Legislation.
  • Check the U.S Citizenship and Immigration Services for new developments and changes.
  • Employers should display E-Verify Participation Posters in their workplace to inform the employees of their legal rights and protections.