Alternative Human Resource

HR professionals who manage compensation use their professional judgment to consider a number of legitimate factors in creating fair and equitable compensation systems. These include experience, education, profitability, merit, productivity, prior salary history and location. The Paycheck Fairness Act (PFA) would allow the Federal government to second-guess employer pay practices in a few concerning ways…

1. Restrict employer flexibility in pay decisions – The PFA would effectively prohibit employers from using many legitimate factors to compensate their employees, including professional experience, education, training, employer need, local labor market rates, hazard pay, shift differentials and the profitability of the organization. The PFA would permit employers to base pay decisions only on production, merit and seniority.
2. Require collection of employer wage data – The PFA would authorize the Equal Employment Opportunity Commission and the Department of Labor to collect compensation data from compensation managers.
3. Reduce employee privacy – The PFA would effectively encourage employees to discuss or publicize their co-workers’ wages by preventing employer retaliation against an individual who publicly discloses the wages of other employees.

Senator Barbara Mikulski (D-MD) introduced S. 3220, the Paycheck Fairness Act, on May 22, 2012. The Senate plans to vote on S. 3220 during the week of June 4-8.

While I am strongly committed to preventing and resolving any form of workplace discrimination, including pay disparities between women and men, I believe wages should be determined by the market, type of position, education of the employee and the employer needs, not by the government. The Paycheck Fairness Act would threaten the tools that HR professionals use to reward and retain their employees. The bill would also have a negative impact on employee privacy by encouraging employees to publicize their colleagues’ wages.

We encourage you to share your thoughts with your local representatives prior to June 4^th, 2012.

UPDATE: The Senate voted down this bill on June 5th.

The answer probably will not surprise you. The reality is it depends! There are at least three different guides: EEOC, IRS, and the Supreme Court.

Some indicators that a worker is an employee rather than an independent contractor include…

• The work does not require a high level of skill or expertise.
• The agency or employer, not the worker, furnishes the tools, materials, and equipment.
• The work is performed on the premises of the agency or employer.
• The worker only works for the employer and no other companies.
• The agency or employer has the right to assign additional projects to the worker.
• The agency or employer sets the hours of work and the length of the job.
• The worker is paid by the hour, week, or month instead of a set fee for performing a particular job.
• The worker has no role in hiring and paying assistants.
• The work is part of the regular business of the employer.
• The worker does not have a distinct occupation, business or insurance of his or her own.
• The agency or employer provides the worker with benefits such as insurance, leave, or workers’ compensation.
• The worker and either the agency or employer believe they are creating an employer/employee relationship.

Guidelines for Unpaid Interns…

• The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment.
• The internship experience is for the benefit of the intern.
• The intern does not displace regular employees, but works under close supervision of existing staff.
• The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded.
• The intern is not necessarily entitled to a job at the conclusion of the internship.
• The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

A couple of frequently asked questions…

Where and for how long do we keep employee related documents?

Just a few examples…an I-9 must be kept for a minimum of three years plus one year after termination, in a separate, locked location than the personnel file. Since the new GINA regulations came out earlier this year, most employers must keep performance evaluations and any other document that substantiates an employer’s decision regarding wages for a minimum of two years after termination. Payroll records, including time cards, should be kept for a minimum of 7 years. Our suggestion… put a personnel file and purge policy in place.

Speaking of documents, we heard that fines for incomplete or incorrect data on an I-9 document range from $100-to $1000 per question. Is this true?

Yes, that’s right! One incomplete or missing I-9 form could cost your organization thousands of dollars. Just one missing question on each form, considering all of the forms you have for a minimum of three years, could also cost you thousands of dollars. Our suggestion… have a full I-9 audit & training conducted…it will cost you much less than the fines.

*Insist that applicants fill out application forms. Be sure to read the completed application for read flags, such as gaps in employment and missing information.

*Although challenging, check at least 2 references.

*Confirm educational background and certifications.

*Consider criminal background checks appropriate to the position. Be sure to comply with EEOC guidelines and the Fair Credit Reporting Act!

*Create and follow an interview checklist.

*Train anyone conducting interviews about your policies and practices. Insist that they document all steps taken even if they were unsuccessful in obtaining information.

Please take a look at our new frequently asked questions tab (FAQ’s.) You may have had the same question, or realize something you were completely unaware of!

A federal bill to prohibit the practice of asking applicants and/ or employees for the password to access their social media has been introduced. On April 27, 2012, Rep. Eliot Engel, D-N.Y., introduced the Social Networking Online Protection Act (SNOPA).

SNOPA would prohibit employers from requiring a username, password or other access to online content. It would not allow employers to demand such access to discipline, discriminate or deny employment and would bar employers from disciplining individuals who refuse to volunteer such information.

Maryland became the first state prohibiting employers from requesting the social media passwords or accessing the social media accounts of prospective and current employees on May 2^nd, 2012.

Enforcement guidance issued by the EEOC last week focused on the use of criminal history information with respect to “disparate impact” claims under Title VII of the Civil Rights Act.  Title VII prohibits not only intentional discrimination, but also “disparate impact,” that is, facially-neutral employment policies that have a disproportionate negative impact on minorities.

Based on conviction rates for African-Americans and Hispanics across the nation, the guidance makes it clear that the EEOC presumes that any employer’s use of criminal history information during the application process disproportionately excludes racial minority applicants.  Basically, the EEOC is requiring that employers prove business necessity of their screening procedures.  Moreover, to prove business necessity, employers will be required to validate, through statistics, the link between the disqualifying criminal conduct and subsequent work performance.

The new approach will allow the EEOC to file and investigate more charges of disparate impact, which present significantly more exposure.  To lessen the risk of disparate impact liability, the EEOC suggests that employers make an individualized assessment of an applicant’s criminal background, only after deciding to hire the applicant and that employers only request “job related” criminal convictions, instead of a list of all criminal convictions.

What are your thoughts on the EEOC guidance…are employers guilty until proven innocent, as some would suggest?

According to a recent study funded by the National Institute on Alcohol Abuse and Alcoholism…

*About 15 percent of U.S. workers, or 19.2 million workers, are under the influence of alcohol at least occasionally while on the job.

*10% of workers have to reported to work with a hangover in the last year

*7% drank during the day

*75% of illicit drug users are employed (90% by small to medium businesses because they do not test.)

*Managers are more likely impaired on the job than are their reports.

*Workplace alcohol use is more prevalent with men than women, younger workers than older ones, unmarried than married, and more use by employees working on the evening shift, night shift, and irregular shifts.

Symptoms of drug or alcohol use include (but are certainly not limited to…

• Decreased performance & absenteeism
• Drowsiness & mood swings
• Poor judgment
• Lower morale/self esteem & increase in conflict with others
• More accidents
• Frequent “flu-like” symptoms
• Disruption of space and distance judgment
• Slower physical reflexes and poor coordination; dilated pupils
• Forgetfulness and diminishing mental powers