The theme of "change" resonates through today’s carnival posts. Here are the contributions with some great advice and observations about what is confronting Human Resource Professionals for 2009 and beyond:

Ann Bares at Compensation Force posts on Best to Get Base Pay in Order Before Implementing Employee Incentives. She recognizes that employee incentives are a powerful tool and a very attractive option, particularly during difficult economic times.  She makes the case here, though, that it is important for employers to “get their base pay house in order before embarking on employee incentives.”

Dan McCarthy of Great Leadership is advertising for leaders in his post on Help Wanted: Great Leader. No Technical Experience Needed? He asks Who would you rather have for a manager: A: Someone who has great leadership skills, but knows little about your specific work or B: Someone with tons of experience and skill in your work, but with only so-so leadership skills?

Rowan Manahan of Fortify your Oasis submits a piece on Phil Schiller’s keynote – how not to confound expectations. He advocates rehearsing and bringing all the elements of a presentation together so that it will be above average – using Phil Schiller’s recent keynote on behalf of Apple as a case study.

Wally Bock of Three Star Leadership is doing The CEO Shuffle. He says that there’s lots of news about CEOs this week. But it could be that in the best companies, star CEOs aren’t unnecessary.

Steve Roessler of All Things Workplace submits his post on "A" Players, Layoffs, and Missing Data. Steve believes that when organizations try to downsize in tough times–but haven’t done their performance documentation diligently–they can find themselves staffed for the future with high-seniority, poor performers.

Alice Snell of Taleo Blog – Talent Management Solutions weighs in with a digest of predictions entitled 2009: What Will Happen? She predicts that 2009 will be a time to retain and motivate existing talent.

Mark Vickers of i4cp also submits some “Forecasts for the 2009 Workplace” based on some survey data where there is "not a lot of optimism."

Chris Young of Maximizing Possibility states that in 2009, as always, and now more than ever will be about employee job performance – tangible contribution – value-creation in his post Your Job is Value Creation.

Susan Heathfield’s Human Resource Blog at About.com submits a post on No Surprises in which Susan discusses how much autonomy should a team have in implementing its own ideas.

Chris Ferdinandi of Manager’s Sandbox asks What Kind of HR Pro are You?  Chris believes that working in human resources, there are two main things you should be focused on: Recruiting great people, and inspiring them to do amazing work.

Shauna Moerke of HR Minion identifies a common problem for HR Pros in her post I do not think you said what I think you mean.   She likens HR to a foreign language because there so many words you needed to learn first before you could even start solving problems.

Gautam Ghosh of White Spaces advocates Guard your Job during Recession. During these times of economic slowdown here are 9 things employees can do to guard their job – from taking on more responsibility to keep practicing the 5 skills for career success.

John Agno of Coaching Tip: The Leadership Blog recognizes that "AD-Triple A" Problem for U.S. Employers. He points out some strategies for complying with the law from a coaching perspective.

Michael Haberman of HR Observations posts about Lessons for HR in the Geithner Confirmation Hearings.  Mike points out that the "honest mistakes" made around worker classification can arise in the business setting.

Frank Mulligan of Talent in China says Hold Those Salary Increases! He thinks that the challenge that many companies in China have right now is that they must maintain their skills base for when orders start to come in again, and at the same time cut costs heavily. Selling this to staff is difficult.

Nina Simosko of Nina Nets it Out submits an entry called Leadership’s All About Academics…No It’s Experience…No It’s Ability where she discusses the notion that some leadership qualities can be obtained via academics [i.e. learned], some are achieved through experience and some are purely innate abilities.

Thanks for all of your submissions. The February 4 Carnival will be hosted by Wally Bock at Three Star Leadership.

Employers that rely on a web-based application and recruiting processes should examine their websites for compliance with the ADA’s employment provisions which require accessibility and accommodation in the hiring process.   A recent OFCCP Directive sets forth the agency’s policy on review of employer websites where applications are solicited:

Effective immediately, all compliance evaluations shall include a review of the contractor’s online application systems to ensure that the contractor is providing equal opportunity to qualified individuals with disabilities and disabled veterans. The review should include whether the contractor is providing reasonable accommodation, when requested, unless such accommodation would cause an undue hardship. In this directive, the term "online system" shall include, but not be limited to, all electronic or web-based systems that the contractor uses in all of its personnel activities.

Website accessibility is a growing issue as we discussed in a prior post highlighting a lawsuit under the ADA against Target Corporation’s commerce site: Business Websites Face Americans with Disabilities Act Accommodations Claims. Given the OFCCP’s initiatives on systemic discrimination, this area is ripe for compliance activity.

The OFCCP has recommended the following action steps in a recent webinar:

  • Prominently display a notice outlining your reasonable accommodation process, & provide timely & effective accommodation.
  • If kiosks are used, ensure that they are physically accessible.
  • Allow people who cannot use the online system because of a disability to apply in an alternate way.
  • Consider designing online systems using universal design techniques & interoperable technology to:
    • Reach out to and receive applications from qualified applicants with disabilities, and
    • Minimize the need for individual reasonable accommodations.

Resources for evaluating accessibility of system including the interoperability with assistive technologies can be found at Accessible Systems Racing League. The OFCCP’s Power Point Training Program entitled Accessible Online Applications Systems and Tools for Achieving Them is also a good resource.

The Pennsylvania Labor and Employment Blog is pleased to host the Carnival of HR which will be held on January 21, 2009.  The Carnival of HR, started by the Evil HR Lady, features recent posts from the best of the HR and management blogging community. You can participate in two ways:

1. Read: Read the posts in the latest carnivals when they come out every two weeks.

2. Submit a post: Submit your own post on HR or management issues. Posts are usually due a few days before the carnival publishing date, and you can find a complete list of hosts and dates here. (Rules: One post per blogger, and posts should be something you’ve written in the last couple of weeks.) Please e-mail a link to your post together with a brief description to mmoore@mwn.com. The usual rules apply:  one post per contributor; human resources related post appearing in the last 2-3 weeks.  Please submit your post by January 19, 2009 @ 8:00 p.m. EST.

Congress has passed The Lilly Ledbetter Fair Pay Act of 2009 (H.R. 11) and The Paycheck Fairness Act (H.R. 12). Anaylsis of the new legislation to come.

The Ledbetter Fair Pay Act is discussed in a prior post on Record Retention Nightmare Created by Ledbetter Fair Pay Act .  The Paycheck Fairness Act changes the burden of proof in gender based pay claims requiring the employer to affirmatively demonstrate that any pay differential is not based on sex. Employers who cannot meet this burden face unlimited compensatory and punitive damages. The EEOC would be required to collect employer payroll information based on sex, race, and national origin thereby targeting its enforcement activities. The Bill also changed rules on class actions automatically including employees in such claims unless they specifically opt out.  PFA subjects employers to wage related class actions with unlimited damages and makes it easier for employees to prove such claims.

Ann Bares analyzes the impact of the new law from a compensation perspective in her post: Dear Legislators: A Missing Link to Paycheck Fairness?

 

SHRM is reporting the delay of E-verify regulations until February 20, 2009. There is no such report on the Homeland Security or Dept of Justice websites. Stay tuned.  A previous post discusses the regulations: E-Verify Final Regulations Issued Requiring Government Contractors and Subcontractors to Verify Employment for New and Existing Employees who Perform Contract Work

UPDATE: Mandatory use of E-Verify for Government Contractors delayed again to May 21, 2009

 

The ADAAA was effective January 1, 2009 requiring employers to focus their approach to disability accommodation. The Job Accommodation Network (JAN) of the Office of Disability Employment Policy recently published a compliance resource identifying four Practical Tips which can be expanded upon as follows:

Review Job Descriptions, Qualification Standards and Accommodation Procedures

Developing job descriptions is a daunting task for employer and many don’t know where to start. JAN has a good resource explaining the role and function of job descriptions. The resource also gives some basic parameters on what should be included.

Job descriptions provide a written record of the qualification standards and essential functions of a position for the purpose of assessing whether and employee or applicant is "qualified" and for evaluating reasonable accommodations or establishing undue hardship. From a legal perspective, a well-written job description is essential to defending an ADA claim.

Written accommodation procedures promote communication and uniformity. The federal government has developed a lengthy process that may be a reference for employers developing a procedure. The government’s procedures are extremely detailed and employers should be careful to develop a process which they can follow or they risk claims based on procedural missteps.

 

Focus Job Actions of Performance and Conduct

The ADAAA refocuses compliance from determining whether a disability exists to evaluating reasonable accommodations. Employers need to assess what an employee (i) can and cannot do in light of the job’s essential functions or (ii) has or hasn’t done under its work rules. The EEOC has issued Guidance on Applying Performance and Conduct Standards to Employees with Disabilities.

 

Train Frontline Supervisors and Managers

Many disability compliance problems start with a frontline supervisor’s reaction to a performance problem. Dealing with the employee’s disability, managing coworker reactions, and keeping medical information confidential are only some of the issues which confront managers. Comments made by supervisors can create claims based on retaliation or being "regarded as" disabled.

 

Document Actions and Decisions

A written record of an employers actions and decisions has many benefits in terms of both clear communication with employees and defense of ADA claims. The transitory nature of many workplaces make tangible records more important than ever to establish an institutional memory of important events.

 

Thanks to the Delaware Employment Law Blog for the pointing out the JAN resources.

Ledbetter Fair Pay Act (H.R. 2831/ S. 1843) is on the fast track with full support of the Obama Administration. LFPA overturns the Supreme Court’s decision in Ledbetter v. Goodyear Tire and Rubber Co. effectively eliminating the 180 or 300-day statute of limitations for filing a wage-related discrimination claim. The Bill allows family members and others affected by discrimination to file claims and reinstitutes the Paycheck Accrual Rule for determining when a claim arises. It also allows claims based on paychecks and annuity payments which would permit retirees to bring claims.

Ms. Leddbetter’s discriminatory pay claims originated from pay raises allegedly denied her based on supervisor’s discriminatory evaluations of her performance conducted over a period between 1979 and 1998. The U.S. Supreme Court held that the pay setting was a discrete act triggering the180 day limitations period for filing a discrimination claim, therefore a timely discrimination claim must be based on acts of discrimination occurring within the 180 day period. Leddbetter argued that“[E]ach paycheck that offers a woman less pay than a similarly situated man because of her sex is a separate violation of Title VII with its own limitations period, regardless of whether the paycheck simply implements a prior discriminatory decision made outside the limitations period”.

The effect of the argument is to call into question decisions of supervisors made almost 20 years before the employer received notice of the alleged discrimination. Leddbetter counters that she had no way of knowing about her discriminatory treatment because of the confidentiality of the performance reviews and salary adjustments

In its Ledbetter decision, the Supreme Court enunciated a classic application of the statute of limitations governing the time period for bringing legal claims:

Statutes of limitations, which "are found and approved in all systems of enlightened jurisprudence, represent a pervasive legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time, and that "the right to be free of stale claims in time comes to prevail over the right to prosecute them. These enactments are statutes of repose; and although affording plaintiffs what the legislature deems a reasonable time to present their claims, they protect defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents, or otherwise. (emphasis added). 

The implication’s are huge for employers in terms of faulty memories, missing witnesses, and mountains of documents. Defense of decades old discrimination claims will necessitate the retention of more documents for longer time periods. The expense associated with storage and production of documents (whether paper or electronic) may be staggering. Imagine a Request for Production of Documents or subpoena that demands access to 20 or 30 years of employer records associated with the evaluations and salary adjustments for an employee (or retiree) claiming pay discrimination. Add in all of the employee’s peer comparators who were similarly situated over the same time period for a truly nightmarish perspective. Now the rationale for the statute of limitations becomes clearer.

Human Resource Professionals face a demanding legal compliance year in 2009. The following five items should be added to your “To Do” list for the first quarter of ’09:

ADA Amendments Act Compliance (effective 1/1/2009):  The amendments greatly expand the definition of disability refocusing compliance on determining whether the employee is “qualified” and evaluating reasonable accommodations. Employers should consider the following:

  • Revising job descriptions to define essential job functions and minimum qualifications.
  • Formalizing the interactive process for assessing disability issues.
  • Educating supervisors on the expanded ADA coverage.

E-Verify Registration and Immigration Compliance (effective 1/15/2009):  Government contractors and subcontracts may need to register for and use the E-Verify System for new and existing government contracts. Employers who may be covered should inventory their existing contracts and review prospective contracts and subcontracts to determine whether they are covered by the regulations.

U.S. Citizenship and Immigration Services (USCIS) has amended regulations governing the types of acceptable identity and employment authorization documents that employees may present to their employers for completion of the Form I-9, Employment Eligibility Verification. Under the interim rule, employers will no longer be able to accept expired documents to verify employment authorization on the Form I-9. There are other changes to the types of acceptable documents. Employers must use the revised Form I-9 (not yet issued) for all new hires and to re-verify any employee with expiring employment authorization beginning January 31, 2009. The current version of the Form I-9 will no longer be valid as of February 2, 2009.

FMLA Regulations Implementation (effective 1/16/2009):  Amendments to the FMLA’s regulations require action by employers in the following areas:

EFCA and RESPECT Act Planning:  This pending legislation has enormous potential consequences for employers. Developing an action plan should include the following items:

Wage & Hour Self-Audit:  As evidenced by Wal-Marts recent record settlement, wage and hour lawsuits will play prominently in 2009. A self-audit of compliance practices can mitigate these claims particularly in the following areas;

  • Employee classification (exempt vs. non-exempt)
  • Off the clock work (starting times, breaks and meal periods)
  • Donning and Doffing
  • Child labor

There is an elephant in the room.  Should we talk about it or ignore it and hope it goes away?

Many employers utilize this approach when the rumblings of a union organizing campaign are heard. When EFCA becomes law, by the time the rumblings are heard, it may be too late to educate your workforce on the significance of signing a union authorization card. Employees may have already signed a card based on the promises by a union business agent.

 

An authorization card is a very innocuous looking form. It resembles a magazine subscription renewal, but it is a legal power of attorney that authorizes a union to act as the collective bargaining agent for the employee in negotiations with the employer. It also provides the union with data about the employee including his or her home address and telephone number so the union representatives can contact the employee or pay them a visit at home. The card typically asks for information about salary, department and type of work the employee performs. The NLRB and courts have compared secret ballot elections to "card checks" and noted there problems:

"Card checks are less reliable because they lack secrecy and procedural safeguards… union card-solicitation campaigns have been accompanied by misinformation… workers sometimes sign union authorization cards…to get the person off their back.”

There is no special mechanism in EFCA for employers to challenge the validity of the cards presented to show the union’s majority status. Traditionally, card challenges are unsuccessful unless an employer can show serious misconduct or intimidation.

 

Employees need to know the company’s position on unionization, including at least the following about signing union authorization cards:

 

  • Employees have a right under the NLRA not to sign a card, not to support a union and to oppose unionization.
  • After EFCA, signing a card can result in the unionization of the company without an election.
  • Once an employee signs a card, he or she may not be able to get it back.
  • Signing a card gives a union personal information that may be used to contact the employee later.

The DOL issued a revised Family and Medical Leave Act (FMLA) poster, reflecting the recently published final rule which is now available for viewing and downloading. Every employer covered by the FMLA is required to post and keep posted on its premises, in conspicuous places where employees are employed, a notice explaining the Act’s provisions.  

The Department provides optional forms for use by employers and employees during the FMLA process.  The Department has revised its Certification of Health Care Provider form (WH-380), and divided it into two separate forms for an Employee’s Serious Health Condition (WH-380E) and a Family Member’s Serious Health Condition (WH-380F).  The Department has also revised its Notice of Eligibility and Rights and Responsibilities form (WH-381).  In addition, the Department has added new forms for Designation Notice to Employee of FMLA Leave (WH-382), Certification of Qualifying Exigency for Military Family Leave (WH-384), and Certification for Serious Injury or Illness of Covered Servicemember for Military Family Leave (WH-385).

The poster and forms become effective on January 16, 2009.  Additional compliance assistance materials are also available on our FMLA Final Rule Web site at http://www.dol.gov/esa/whd/fmla/finalrule.htm. Employers must also amend handbook provisions to reflect the new regulations.