Landrum Human Resource Companies Blog


QUACK! CAN YOU PASS THE DUCK TEST?

QUACK!  CAN YOU PASS THE DUCK TEST?

by Jim Guttmann on February 28, 2013

“Suppose you see a bird walking around in a farm yard. This bird has no label that says ‘duck’. But the bird certainly looks like a duck. Also, he goes to the pond and you notice that he swims like a duck. Then he opens his beak and quacks like a duck. Well, by this time you have probably reached the conclusion that the bird is a duck, whether he’s wearing a label or not.”

This profound statement is a quote from Richard Cunningham Patterson Jr., United States mallard_duck test_Jguttman 022813ambassador to Guatemala during the Cold War in 1950. It is interesting how this “duck test” is quite relevant for employers today. How so? Using the duck analogy, the   Department of Labor (DOL) and Internal Revenue Service (IRS) maintain that some employers are knowingly or unknowingly misrepresenting the status of an employee on two important matters.  Although it’s tough economic times, these agencies are not very forgiving when it comes to employee misclassification.  Indeed, they just view these employers as “non-compliant with the law” (i.e. they have failed the duck test). So, what are those two areas of unlawful activity?

Misclassifying Employees as Independent Contractors:

Sometimes employers may improperly classify workers as “independent contractors” for various reasons such as administrative convenience; to avoid having to pay payroll taxes, overtime, etc.; to avoid having to cover the worker under workers’ compensation or unemployment compensation insurance;   due to “industry standards” or even at a worker’s request. Before designating any worker as an independent contractor, please know that the fact that a worker has signed a document agreeing to be an independent contractor nor how long the contractual relationship has existed will be considered relevant by the IRS or DOL. If deemed unlawful by the agency, the worker’s consent will not make the arrangement valid. At all times, the facts characterizing the actual relationship will be what counts. That’s right, the Government says that you can’t call a duck a swan, goose etc., when it is actually a duck. Don’t be surprised if one day a government agency decides to conduct a “duck test” on your Independent Contractor.

Okay but aren’t some individuals truly independent contractors? Yes, provided that they meet the IRS standards by passing the “duck test.” In January, 2006, the IRS offered guidance on its “duck test” for independent contractor status by explaining that they focus on  behavioral control, financial control, and the type of relationship between the worker and the company.  The most common method used by employers for determining Independent Contractor vs. Employee status is through a review of the IRS 20 factor test. You can access that test here.

Misclassifying Employees as Salaried Exempt When They Should Be Hourly:

Sometimes, employers misclassify employees as “Salaried Exempt” and, by doing so; avoid paying overtime or minimum wage when those employees work more than 40 hours in the work week. This could have been done without knowledge of governing laws or because the employees requested to be paid on a salary basis.  Although sometimes misunderstood, a salary by itself does not mean an employee is not entitled to overtime pay. If the DOL suspects that an employee has been misclassified as salaried exempt, it won’t matter that the employer and employee agreed to the misclassification. It also won’t matter what job title was given to the employee or that the job description is written in such a way that it embellishes the duties that the employee actually performs. What will matter is whether or not the classification of the employee can withstand an on-site desk audit by the DOL auditor. So, let’s just refer to this audit as the “duck test.”

Okay, but aren’t some employees truly salaried exempt? Yes, provided that their positions meet one of the Executive, Administrative, Professional, Computer, Outside Sales, or other industry-specific exemption standards. In other words, it has to pass that “duck test.” To do a proper assessment of whether an employee is salaried exempt or hourly, please click here for a link to the DOL’s Fair Labor Standards Act guidelines on this matter.

Risk to Employers:

Keep in mind that misclassifying workers can have tremendous financial consequences for companies. It may be far more serious than improperly calling a duck a swan or goose. If it is an independent contractor situation, employers may have to endure an audit from the IRS or a state department of taxation. If it is a wage and hour matter, employers may find themselves in a wage and hour audit, or a class action or individual lawsuit and be taken to court. The company will not only have to pay back wages and overtime owed, but a variety of penalties and in many cases, attorney fees. Non-complying employers may also be required to pay amounts that should have been withheld or paid on the employees’ behalf. For example, taxes, FICA, FUTA, benefit contributions or the value of lost benefits, plus penalties, interest, other damages, and/or attorney fees. Employees who are misclassified as independent contractors and who have work-related injuries and would normally rely solely on workers’ compensation benefits, may be able to file a negligence claim against the employer.

Misclassifying employees is a costly mistake that can happen to any company regardless of the company’s “good faith” intentions. So, make sure that you can pass the duck test.  Simply stated, here is our advice to you. If you have doubts about whether a worker meets the independent contractor standard, it would certainly be safer to make him/her an employee. If you have doubts about whether an employee is salaried, it would be prudent to make him/her an hourly employee.

Being knowledgeable and compliant with the test standards can save yourself and your company a great deal of money and negative exposure in the long run. And that’s not just a bunch of quackery!

As a Landrum Professional Human Resources Manager, Jim is certified as a Senior Professional in Human Resources (SPHR) and has over 20 years of HR generalist experience for a large government contractor and Fortune 500 Company. He holds a Masters in Business Administration from Florida State University and is an active member of the Greater Pensacola Chapter of the Society for Human Resources Management (GPCSHRM), previously serving as their Vice President of Information Services and Chairman of the Workplace Diversity Committee. Jim is also certified as a County Mediator and in the administration of the Myers Briggs Type Indicator(MBTI).



What Do You Say to a Grieving Employee?

What Do You Say To A Grieving Employee?

by Jim Guttmann, SPHR, on February 8, 2013

????????????????????????????????????????     An employee at work has just lost her husband by accidental death. You have decided to attend the wake to express your concern and sympathy. As you drive over, you get this uneasy feeling because you don’t know what to say and you’re afraid of being uncomfortable, saying the wrong thing, or having that awkward silence. Despite these feelings, you continue your drive knowing it is the right thing to do (rather than ignore a co-worker).

Just know that it is okay to feel a little anxious. Perhaps the best advice for anyone in that situation is to keep things simple. In many cases, the grieving employee will not remember the exact words you said at the wake. What she will remember is your comforting presence – just quietly being present and having a compassionate look on your face. You may want to simply express, “Hello, it is good to see you,” or possibly a reassuring touch on the arm, a gentle handshake or a hug. Or perhaps, “I’m so sorry you have to go through this” or “I’m so sorry to hear of your loss.”

Beyond those comforting words, you need to clearly follow the other person’s lead in understanding to what extent she wants to share what’s on her mind and heart. She may not be ready to share anything with you at that time. If she wants to talk and express her feelings, you could say “Fill me in on what’s happening” or “Bring me up to date.” And always remember that crying is healing. Although you might not be comfortable with it, this is not about you. It’s about the grieving employee. Crying is good as it releases tension and gets painful feelings out in the open. That’s part of the healing process for the employee.

Unfortunately for some of us, we want to help (and may need to help) but our well-intended words or actions sometimes end up DSS_cover_large1adding to the person’s burdens instead of easing her pain. Thankfully, pastor and clinical psychologist, Kenneth C. Haugk offers some help in his book Don’t Sing Songs To A Heavy Heart. The tips that he offers are drawn from many years of experience as a pastor and surveys that he has done with over 4,000 grieving individuals. Here’s some advice from Dr. Haugk as to what not to say:

  1. I know how you feel. You don’t know how she feels and saying you do robs that person of her unique identity.
  2. It’s for the best (or he’s not suffering anymore, he’s at peace etc.). It can come over that you want her to see the situation as you do. She needs to arrive at that conclusion independently.
  3. Keep a stiff upper lip statement (e.g. I have a friend in a similar situation and she is at peace now; What doesn’t kill you makes you stronger, etc.). These are unrealistic and unhealthy expectations on the one hurting. The message within the message is why can’t you respond to the situation like someone else I know?
  4. “At least” statements. They tend to minimize the pain of the suffering person by saying it is not as bad as it could be or that other people have experienced worse.
  5. You should/shouldn’t statements. It is an unpleasant experience for the suffering person and also tends to shut down communications.
  6. God doesn’t give you any more than you can handle. This is a bible verse (I Corinthians 10:13). However, the verse refers to resisting temptation; not bearing up under pain and suffering. Making this statement certainly doesn’t lighten the load of the grieving person but adds more pain.
  7. It’s God’s Will. According to Dr. Hauck, this is one of the most carelessly used religious phrases purporting to offer comfort. In the research, 93% of the surveyed participants who had been told that their suffering was God’s will react strongly and negatively.

In contrast to platitudes and clichés, just know what your amazing presence can do for a grieving employee or the power of a heartfelt personal note sent with your sympathy card. Let’s face it; some of us are not naturally gifted in offering comfort. It comes easier for some than others; however, we can all strive to be a listening friend who doesn’t criticize and who respects the employee’s need to go through the grieving process according to her time schedule and not ours.

As a Landrum Professional Human Resources Manager, Jim is certified as a Senior Professional in Human Resources (SPHR) and has over 20 years of HR generalist experience for a large government contractor and Fortune 500 Company. He holds a Masters in Business Administration from Florida State University and is an active member of the Greater Pensacola Chapter of the Society for Human Resources Management (GPCSHRM), previously serving as their Vice President of Information Services and Chairman of the Workplace Diversity Committee. Jim is also certified as a County Mediator and in the administration of the Myers Briggs Type Indicator(MBTI).



For Auld Lang Syne: The History of Minimum Wage

For Auld Lang Syne: The History of Minimum Wage

by Matilde Keith, PHR on January 29, 2013

Although some states and companies imposed minimum wage rates in the early 1900’s, it didn’t become federal law until 1938 when the Fair Labor Standards Act (FLSA) was passed. The Act regulated child labor practices, set the maximum workweek to 44 hours and the minimum hourly wage to 25 cents. That was 75 years ago and the FLSA is still in effect today, despite heavy judicial opposition in the 1930’s. President Franklin D. Roosevelt had to fight fervently for its passage then as part of his “New Deal.” The New Deal was his response to the Great Depression and a series of economic programs intended to give “Relief for the unemployed and poor; Recovery of the economy to normal levels; and Reform of the financial system to prevent a repeat depression.”

The FLSA went through several rounds in Congress and underwent 72 amendments before the bill was passed. The original proposal was for a 40 cents-an-hour minimum wage. An advocate for the bill was the Commissioner of Labor Statistics, Isador Lubin, who felt employees were being exploited and that it was time for the government to intervene. Opponents of the bill argued that the bill would take the country to a “tyrannical industrial dictatorship.” The Supreme Court had held time and time again that any laws which interfere with employer-employee labor contract negotiations were a violation of our Constitutional rights. The landmark case that set this precedence was Lochner v. New York (1905).  kenlochner vs NY

In 1897, New York State passed a law prohibiting bakers from working in bake shops over 60 hours in a week. Joseph Lochner owned a bakery and allowed an employee to work over 60 hours. He was fined $50 and sentenced to jail. He appealed his conviction to the New York Court of Appeals, who upheld the original decision. He then took his case to the U.S. Supreme Court, claiming the state law was unconstitutional.

The Supreme Court agreed with him. In a 5-4 decision, the Court reversed Lochner’s conviction and stated that the law violated the Fourteenth Amendment’s due process clause which “prohibits states from depriving any person of life, liberty, or property without due process of law.” To the Court, the amendment protects the “liberty of the individual” to buy, sell, and negotiate labor terms through contract. The Court stated, “The freedom of master and employee to contract with each other in relation to their employment … cannot be prohibited or interfered with, without violating the Federal Constitution.” From that time on, the Supreme Court objected to laws that controlled conditions of labor, except in very specific cases and/or industries.

In 1918, one might assume that the Lochner v. New York decision was not working out so well for women and children. These groups were still expected to work long hours for nominal wages, sometimes $4-5 dollars for a 60 hour work week. In an attempt to protect women and children “from conditions detrimental to their health and morals, resulting from wages which are inadequate to maintain decent standards of living,” the District of Columbia passed a minimum wage law that applied to women and children laborers. D.C. appointed a Board to set the amounts and oversee the law.

The Children’s Hospital of the District of Columbia employed many women at wages below the Board’s standards. The Hospital sued the Board on the grounds that these regulations violated the “liberty of contract” which had been defined in the Lochner v. New York case 10 years earlier.

The case made it to the Supreme Court in 1923. The Court ruled in favor of the Hospital, this time making the law a violation of the due process clause in the Fifth Amendment, but cited the Lochner v. New York case. Furthermore, the Court was concerned with the provisions of the law that gave protection to women over men. They said this protection was not necessary; the civil gap between women and men in American society was “at a vanishing point.” They pointed to the recently passed Nineteenth Amendment (which gave women the right to vote) as proof of this. Women, therefore, had a “newfound equality in American culture” and could “protect their own interests through the political process and equal bargaining power.” Some might argue that 90 years later, the gap is still “vanishing.”

The FLSA was only one part of President Roosevelt’s “New Deal.” Minimum wage was intended to provide income equality for people living in poverty, as well as a way to control the advancement of sweat shops in manufacturing industries. Horror stories have been told of the working conditions in these tenement sweatshops where fierce competition and the desperate need for employment kept wages down and hours up. The sweatshops employed mostly women, young workers, and immigrants.

From Public Papers and Addresses of Franklin D. Roosevelt, Vol. V:
A young worker’s plea

While President Franklin Roosevelt was in Bedford, Mass., campaigning for reelection, a young girl tried to pass him an envelope. But a policeman threw her back into the crowd. Roosevelt told an aide, “Get the note from the girl.” Her note read,
I wish you could do something to help us girls….We have been working in a sewing factory,… and up to a few months ago we were getting our minimum pay of $11 a week… Today the 200 of us girls have been cut down to $4 and $5 and $6 a week.
To a reporter’s question, the President replied, “Something has to be done about the elimination of child labor and long hours and starvation wages.”

From Hearings to Provide for the Establishment of Fair Labor Standards in Employments in and Affecting Interstate Commerce and for Other Purposes, Vol. V. (1937):

“A survey by the Labor Department’s Children’s Bureau of a cross section of 449 children in several States showed nearly one-fourth of them working 60 hours or longer a week and only one-third working 40 hours or less a week. The median wage was slightly over $4 a week.”

In 1932, Washington State passed the “Minimum Wages for Women” law which determined appropriate wage levels throughout the state. Elsie Parrish was a chambermaid who worked for West Coast Hotel and had not been compensated at the state’s minimum wage. She sued the state for the difference in wages, but West Coast Hotel claimed the law was unconstitutional. The state court agreed with West Coast Hotel, but Parrish appealed to Washington Supreme Court. There, the decision was reversed and they directed the damages be paid to Parrish. West Coast Hotel wasn’t ready to lose this battle and took their case to the U.S. Supreme Court in 1936.
LIFE magazine

West Coast Hotel must have felt confident that the Court would rule in its favor, given the long-standing Lochner Era; however, this time in a 5-4 decision the Court ruled in favor of Parrish and stated the law was not unconstitutional. The decision helped protect Roosevelt’s New Deal legislation and a new era began for the American worker.

After the passage of the FLSA and many other efforts, Life magazine stated in their August 1, 1938 issue, “Thirty years ago the industry stank of the sweatshop and the cruelest kind of exploitation . . . Still numerous in 1933, the sweatshop is virtually gone today.”

___________________________________________

Matilde Keith-IMG_3038-3_filtered     As a Human Resources Manager for Landrum Professional Employer Services, Matilde Keith, has over five years of human resources experience in the Pensacola, FL area.   Keith specializes in salary surveys, compensation and job classification reviews, among other human resources generalist duties. Prior to her current position, Keith worked as an HR Specialist for Landrum Staffing, managing the staffing needs of one of Landrum Staffing’s largest accounts.  Keith is a 1st generation Cuban-American, fluent in both English and Spanish. Born and raised in Key West, FL, Keith calls herself “an original Key West Conch”.



It’s Not the Zombie Apocalypse – It’s Just a Little Organizational Change

It’s Not the Zombie Apocalypse – It’s Just a Little Organizational Change
RUN FOR YOUR LIVES!!!!

by Elizabeth Oakes, SPHR on December 27, 2012

You think I jest?
Randomly selected employees were surveyed on their initial impressions of pending organizational change, and 89% indicated their first impression was to prefer a zombie apocalypse to occur. Okay, that statistic is COMPLETELY fabricated, made up, sensationalized, and just plain wrong. I just wanted a reason to bring up zombies in an employment blog.

Actually, a zombie apocalypse isn’t too far of a stretch in comparison to the typical resistance to organizational change. After the notice of impending change has been delivered to the masses, the “plague” of fear is transferred throughout your company. The spread of fear happens so fast you cannot quarantine or react fast enough. At some point there are probably just a41DcZwZ1yLL__SL500_AA300_ few champions of change in your organization. They are working to fend off hordes of change fearful zombies, trying to fight for the life of the change initiative. There’s a real statistic out there indicating that approximately 70% of change initiatives fail (Burnes, 2009). The zombies won those battles. Is this starting to sound a little familiar?

What is it about change – in and of itself – that scares the daylights out of most of us? It’s the unknown. There are so many unknown factors in organizational change that it can paralyze us. What is going to change? Who is making the changes? What is the motivation for change? How will the change be handled? How will it affect me?

Okay, now I’ve started scaring myself.

Actually I enjoy change. I’m one of those obnoxious individuals who find a silver lining in the darkest of clouds. Don’t get me wrong – I’m not chirping out “Looks like somebody has a case of the Mondays!” or anything… Them’s fightin’ words!

I just don’t feel every complex situation is the end of the world. I really do believe that every experience has room for growth and learning. More importantly, I think that there is always something that can be done. I’ve never encountered an impossible situation… yet. Yes, I am currently knocking on wood.

I thrive when there is something dynamic going on. I enjoy when there is a catalyst to move us forward towards growth. Believe it or not, you have employees who feel similarly. Overwhelmingly companies are stagnated by the paralyzing fear of a few employees. Whenever I speak with a company Owner, CEO, or President regarding necessary organizational changes, the concern is about the employees who do not handle change well. How will they take it? Will I have attrition? Is the damage to morale worth the change itself? What I find interesting is that I never have conversations with the same individuals about stagnating employees who need change. I’ve never had a question like: I have a few employees who are frustrated and need my company to change to be productive – how can I do this?

I sometimes wonder if those who dislike change are the squeakier wheel. When we hear their squeak we only oil that wheel. What about the rest of the wheels? Do you wait until they are squeaking to oil them, or do you give them proactive attention? The problem with this situation is that when the employees who love or enjoy dynamic change are stunted in growth, rather than squeak, they tend to make their own changes. How, you ask? You guessed it… They change their employers. When it’s time to make change, to keep your business relevant, your strongest support for organizational change is gone. It’s a lot harder to fight a sea of fear of change alone.

All of the companies on the Best Places to Work have incorporated some form of consistent change into their values zombie_page1or practices. Why is this relevant? Change is considerably less scary or affronting when it is a constant part of the workplace. These companies are excellent communicators, too. That is another absolute essential to effective change. With clear goals, communication, honesty, and a sense of fairness, these companies espouse their values and can effectively make regular organizational change and be incredibly successful at the same time. These are highly relevant companies in our society and most, if not all, started out as small entrepreneurial ventures. That means you too can accomplish this. If you’re interested in incorporating regular organizational change into your culture here are a few good reads to check out to get you started:

Dove, Rick.: “The Principles of Change” Automotive Manufacturing and Production.
March 1997.

Wallington, Patricia M.: “Making Change” CIO. April 1, 2000.

Kotter, John: “The Heart of Change.” 2002“A Sense of Urgency.” 2008,
“Leading Change” 1996

If you’re still worried about a Zombie Apocalypse we’ve gotten a little guidance from the Center for Disease Control (CDC) on Zombie preparedness -



Take Your Religion Test Here: Okay or Not Okay?

Take Your Religion Test Here: Okay or Not Okay?

 by Jim Guttmann, SPHR on December 14, 2012

Sometimes employers and employees are confused as to what’s appropriate or where the line might be in terms of telling others at work about their religious beliefs. This can be a gray area but let’s explore it with this little test.

Question: Okay or Not Okay?

An employee sends unsolicited and unauthorized e-mails to co-workers using the company computer, inviting co-workers to a lunchtime Christmas prayer service in the company’s conference room.  Some of his co-workers thought this was a great idea, but others complained about the e-mail. His supervisor talked to him about the e-mail and told him that he should not send mass invitations such as this because someone might be offended.  Plus, he should not use company computers for this purpose.  During Easter season, the employee held another Christian-based event in the office; again sending unauthorized e-mail invitations.  He also handed out religious pamphlets to those he suspected had complained about his Christmas prayer service.  The Company had both e-mail privacy and anti-harassment policies which protect employees from such solicitation. Was the employee’s conduct okay?

Answer: Not Okay

The employee’s actions were a clear imposition on his fellow employees – by way of an invasion of their privacy. His activities were specifically directed at unwilling co-workers whom he hoped to convert to his religious beliefs after fully knowing that for some employees this conduct was unwelcomed.  Therefore, he violated reasonable company policies and doing so was not okay.

________________

Question: Okay or Not Okay?

An owner of the Company approaches an employee and says, “Please come with me to church this Sunday.” The employee responds that she is a regular attendee at another church. The owner says, “Oh, you already worship somewhere else? Oh, there? Hmmm…..”  Should the owner have initiated this conversation? Was it okay?

Answer: Okay for Now

One low-key invitation might be alright, but any more than that may result in an allegation of religious discrimination or prejudice, especially if the owner has to later discipline, lay-off or fire the employee.

________________

Question: Okay or Not Okay?

An employee starts preaching to his co-workers that they will go to Hell if they don’t repent and convert. Some co-workers of the employee go to the supervisor to complain. The supervisor considers the conduct a disciplinary issue and gives the employee a verbal warning. Is it okay for the supervisor to do that?

Answer: Okay

Courts do not like it when employees (even non-management employees) “preach” to their co-workers about their religious beliefs. Repeated offenses are generally considered legitimate grounds for termination of employment.

________________

Question: Okay or Not Okay?

Slightly adapting a line from a Taylor Swift song, “Religion is a topic of which we must never speak, ever, ever, ever, ever.”  Would banning any discussion about religion in the workplace be okay?

Answer: Not Okay with Most Everyone

Some employers are so worried about “separation of church and state,” respecting all viewpoints, and avoiding offensive behavior that they discourage or prohibit any discussion or expression of religion in the workplace, including discussions that are consensual and expressions that are subtle and  are not offensive.  That’s just not necessary and seems to be a rather extreme position for an employer to take.

________________

Question: Okay or Not Okay?

An employer was wondering if it’s really okay for employees to go around saying “Merry Christmas” when that major holiday comes up in December. Is using the “C” word around that holiday really okay or must we say “Happy Holidays” so as to be politically correct?

Answer: Okay

Of course you can say “Merry Christmas” because it commemorates the birth of Jesus Christ. It’s okay!  And those of the Jewish faith can also say “Happy Hanukkah” around that holiday, too!

________________

Question: Okay or Not Okay?

Some atheist and agnostic employees complain to their employer that they have been subject to religious discrimination because of their beliefs. Really? Does the employer need to listen to that stuff? Could their complaints be legitimate?  Is that okay?

Answer: Okay

Atheists and agnostics and “the unaffiliated” have rights, too. The religious discrimination laws also protect the rights of people to not believe in any faith or religion.

________________

Overall Conclusion:

It is all about treating each other with dignity and respect, making sure that all employees feel comfortable when entering the workplace and respecting their religious beliefs. Employees may urge a co-worker to participate or not to participate in religious activities to the same extent that, consistent with concerns of workplace efficiency, they may urge their colleagues to engage in or refrain from other personal endeavors. But employees must refrain from such expression when a fellow employee asks that it stop or otherwise demonstrates that it is unwelcome. A wide spectrum of Americans sees a positive role for religion in the workplace at a time when morals and ethics are viewed as declining. Some companies try to limit religious expression on company time and property, but a growing number of businesses  are fostering expressions of faith by providing time and space for like-minded employees to gather or by explicitly making faith an integral part of their business philosophy. At the same time, a growing number of Christian ministries are urging members to live out their faith at work. In my view, the most compelling way to witness your faith is through the way you live your life. In this respect, Mother Theresa comes to mind for me and I’m sure that you can think of other wonderful role models too.

In the workplace, the bottom line is that the manner that we address religion as a topic in the workplace can sometimes be okay and at other times not okay.  Consequently, we encourage you to stay attuned to your employees and gauge your actions by theirs.

As a Landrum Professional Human Resources Manager, Jim is certified as a Senior Professional in Human Resources (SPHR) and has over 20 years of HR generalist experience for a large government contractor and Fortune 500 Company. He holds a Masters in Business Administration from Florida State University and is an active member of the Greater Pensacola Chapter of the Society for Human Resources Management (GPCSHRM), previously serving as their Vice President of Information Services and Chairman of the Workplace Diversity Committee. Jim is also certified as a County Mediator and in the administration of the Myers Briggs Type Indicator (MBTI).



Obamacare: Are you prepared?

Obamacare: Are You Prepared?

November 19, 2012

The wait is over, employers have run out of time to examine the applicable requirements of the health care reform laws enacted in 2010 (aka Obamacare). Understanding that the recent election could have drastically changed health care reform implications for their business, many employers put off seriously examining the impact that the Affordable Care Act would have on their business.  Now, the election results are in and employers are faced with implementing the employer provisions of the act. The “what ifs” of healthcare reform have now become an urgent business matter.  Some employer’s heads are spinning as they scramble to understand the complicated reform laws (over 2,000 pages) that affect their businesses.

If any of this rings true with you, then attending our post-election webinar is probably a good idea. In layman’s terms we will tell you what you need to know in order to draft your health care reform “To Do List”.

Tuesday, December 4, 2012

3:00PM CST

Click Here to Register On-line Now

The post-election webinar is designed to help business owners understand the upcoming changes in healthcare reform, employment legislation, and the White House’s administrative initiatives.

Ted Kirchharr, Landrum vice president and chief operating officer, will co-host the webinar with Amie Remington, Landrum general counsel, and Todd Torgersen, president, Combined Insurance Services, Inc.

If you have a question you would like addressed by the panel, send to Questions@LandrumHR.com .

Once the live presentation is made, it will be archived on the Landrum website and available for on-demand viewing.



Whose Side is Human Resources On?

Whose Side is Human Resources On?

by Jim Guttmann, SPHR on November 6, 2012

When an owner or manager is told that a staff member has just reported a complaint to HR, this event is not likely regarded as good news. In fact, sometimes it may elicit feelings of anger or embarrassment. Perhaps management becomes anxious and defensive because they don’t know whose “side” human resources will support. Well, I’m here to tell you that if the HR Manager is competent in the job that she is doing, there is no reason to be concerned.  It is just a matter of understanding the value that human resources brings to your organization.

When an employee contacts human resources to make a complaint, it is important to know that the HR Manager will often patiently listen to the individual and must take the matter seriously. This is usually done even when the HR Manager may suspect that the individual is being less than truthful or has questionable integrity. Sometimes that might seem like HR is automatically taking the employee’s side on the issue; however, that is certainly not the case since HR’s role in this situation is to be fair and impartial. Although HR Managers won’t normally turn the complainant away in an abrupt manner, rest assured they know that there usually are two sides to every story.

When listening to the complaint, it is a key responsibility of HR to assess whether there has been a violation of law. This is a much greater concern than someone just not liking the boss’s management style. For instance, an owner may have unknowingly failed to properly pay someone in accordance with the Fair Labor Standards Act. In that event, the HR Manager will be coordinating with the owner to bring the Company into compliance with the law. In truth, some employment laws can get quite complicated and one of the important services that human resources provides is to keep the owner in compliance.

Sometimes there is a need for an investigation to determine whether a law has been broken. For instance, an employee may claim sexual harassment and only through a proper and confidential investigation can it be determined as to whether the allegation can be substantiated. A Human Resources Professional has the training and years of experience to make those kinds of assessments. Even if you believe the complaining employee lacks credibility, please trust that the process used by HR will provide an appropriate outcome. Also, HR understands the importance of protecting the rights of all parties involved (e.g. complainant, the accused and any witnesses).

If final resolution shows that the complaint was without merit, the HR Manager may play a key role in convincing the employee (or former employee) that there would be no further value in pursuing the issue. This often diffuses the matter entirely and avoids litigation. We can’t overstate the overall value in having a proper complaint or “open door procedure” that includes human resources as part of the process. It lets your employees know that, as a fair employer, you understand that a happy employee is usually a productive employee and, consequently, problems in the workplace should not be allowed to fester. Equally important, having a strong internal complaint procedure means it is far less likely those employees will take matters into their own hands and go to an outside agency such as the Equal Employment Opportunity Commission, or to an attorney to file a lawsuit against your company.

So, whose side is human resources on? Are they for the employee or the company? I’m certain that the answer from competent HR Managers would be “both.” When possible, HR looks to create “win/win” situations where both the company and the employee are treated fairly.

As a Landrum Professional Human Resources Manager, Jim is certified as a Senior Professional in Human Resources (SPHR) and has over 20 years of HR generalist experience for a large government contractor and Fortune 500 Company. He holds a Masters in Business Administration from Florida State University and is an active member of the Greater Pensacola Chapter of the Society for Human Resources Management (GPCSHRM), previously serving as their Vice President of Information Services and Chairman of the Workplace Diversity Committee. Jim is also certified as a County Mediator and in the administration of the Myers Briggs Type Indicator (MBTI).



To Pay or Not to Pay? When Inclement Weather Shuts Down Your Business

To Pay or Not to Pay?

When Inclement Weather Shuts Down Your Business

by Yvonne Nellums, PHR on November 1, 2012

With the effects of Hurricane Sandy leading to business closures this past week, many employers are asking if they are required to pay their employees for missed work time if their business shut down due to inclement weather.  The answer depends on how employees are classified under the Fair Labor Standards Act.

Non-Exempt Employees (Hourly Employees)

An employer is not required to pay a non-exempt employee for business closure due to inclement weather or a natural disaster.  The employer may have a policy of paying employees on such occasions, but it is not a requirement to do so.  If business closure results in lack of work for employees, the decision should be consistently applied to all employees.

Salaried Non-Exempt, Salary Fluctuating Workweek, and Salaried-Exempt Employees

When it comes to these categories of employees, the Department of Labor Wage and Hour division states that employers must look at whether or not work is available for the employees.  If an employee in one of these categories works one or more days in a workweek during which a business closure takes place, the employee must be paid for the entire week.  You are not required to pay these employees for an entire workweek in which he or she performs no work.  An employer may, however, make deductions from an employee’s leave bank (vacation/PTO) to cover the time the employee is out of work due to business closure.

________________________________________________________________________________________

Yvonne Nellums, PHR

Yvonne C. Nellums is Director of Human Resources for Landrum Professional Employer Services. She is a certified professional in human resources (PHR) and has more than 30 years of human resources experience in the corporate world, manufacturing environments, and the offshore industry.



Feeling lucky? Want to take a chance?

Feeling lucky?  Want to take a chance?

by JoAnne Audette-Arruda, MPH, ARM on October 30, 2012

Of course we do not gamble with safety in the work place;    as always, ensuring a safe and healthy work environment is crucial for all employers. This is not always an easy task!   In addition to ensuring that all facilities and tools are in proper order and that work processes are sound and safe, the employer must also ensure the well-being of their greatest asset – employees.  Employees can be extremely diverse, not only in the physical sense, but their cognitive and mental endurance as well.   As an employee, supervisor or a business owner it is critical to recognize that minor aches and pains can actually be very important messages in preventing workplace injuries!

Below is a good training tool to help individuals understand some basic concepts about muscular skeletal disorders or injuries. For Landrum Human Resource Client employees – read the newsletter, complete the quick 10 question quiz, and submit your completed quiz via fax 850-478-4088 attention Jo-Anne Audette-Arruda or via email jaudette-arruda@landrumhr.com  to be entered into random drawing for a chance to win a $25 gas card.

Ergonomics: Minor aches to a life of pain

How to prevent that nagging injury from being a permanent disability.

More information regarding ergonomics and muscular skeletal injures at the following websites:
CDC Ergonomics And Musculoskeletal Disorders
University of Virginia Environmental Health & Safety Department – Ergonomics

For additional information concerning ergonomics please contact the Landrum Risk Management department.  Our team has a variety of resources for ergonomics training both on-line and onsite.  Additionally, we offer onsite workstation assessments that include a written report with findings and recommendations for improvement.

Jo-Anne Audette-Arruda, MPH, ARM
Senior Loss Prevention Consultant

As a Loss Prevention Consultant for Landrum Companies since 2005, Jo-Anne is responsible for providing loss prevention services to clients through on-site and classroom training, facility safety audits and inspections, ergonomic assessments, accident investigation & analysis, and OSHA compliance services.Jo-Anne received her Master of Public Health degree from Mercer University School of Medicine and Bachelor of Science degree from the University of Rhode Island.   In 2008, she earned an Associate in Risk Management designation from the Insurance Institute of America, is a Certified American Red Cross Instructor; an authorized OSHA General Industry Outreach Trainer and a Member of the American Society of Safety Engineers.



What can you do when an employee seems unfit for duty?

What can you do when an employee seems unfit for duty?

by Jim Guttmann, SPHR on October 9, 2012

Considering the nature of the work that some employees perform, an employer may be rightfully concerned when an  employee’s deteriorating health or apparent side effects of medications pose a potential safety hazard in the workplace. For instance, some employees use powerful prescription drugs for pain, anxiety and other maladies and these same individuals may report to work with potent drugs in their systems.

An Employer’s Dilemma

Under these circumstances, it can create quite a quandary for an employer when trying to balance the employee’s right to privacy against the employer’s interest in providing a safe work environment.   In fact, some employers may be hesitant to deal with this matter at all and for good reason. Christopher J. Kuczynski, assistant legal counsel with the Equal Employment Opportunity Commission’s policy division for the Americans with Disabilities Act said, “The employer must have reasonable belief the person is unable to do the job or poses a threat based on a medical condition.” The only recognized exceptions to that general rule are police officers, firefighters and others in public safety jobs. They can be required to self-report the use of prescription medication if their inability or impaired ability to perform their job functions would result in a direct threat.

Road to Solution

An acceptable way in which employers can address their concerns in a proactive manner is by asking the employee to discuss his/her health condition with a physician and obtain a statement from the doctor; however, it is not suggested that you merely have the employee go to a doctor and return with a brief note. In that scenario, the employee may misrepresent the requirements of the job in order to get a full release and may return with a note that simply states “light duty” which leaves room for a lot of interpretation.  Instead, the recommended approach involves a process by which some advanced planning and careful communication takes place with the employee.

Advanced Planning

First, the Company should make certain there is a thorough and accurate job description for the employee’s position that goes into the physical/mental demands of the job and working conditions. Next, the Company should develop a physical capacity evaluation form. Such a form would be completed by the attending physician after reviewing the job description. In fact, at the top of this form it should state that the physician has read the employee’s job description which addresses those physical/mental requirements and working conditions. The form may then ask the doctor to indicate any work restrictions considering such factors as whether the job is full-time or part-time; how much standing, sitting, lifting, bending, squatting, climbing it entails; any hazardous aspects of the job and whether there is a need for tolerance to heat/cold, dust, fumes, dampness, height, etc. You may also want to include a question about whether the employee is involved with treatment and/or medications that might affect his/her ability to work. Finally, the form should ask the physician how long any work restriction is likely to remain in effect.

Communication with Employee is Key

Next is the all-important meeting with the employee. The supervisor must first assure the employee that the Company cares about his/her well-being and work place safety is of the utmost concern. Also, as a responsible employer the Company would not want to ask the employee to do something that his/her doctor wouldn’t recommend or approve. This approach takes the discussion out of the realm of what the employee thinks he/she can do vs. what the supervisor thinks. It is left up to the physician to make that determination.

Roles of Physician and Employer

Once the employee returns with the completed physical capacity evaluation form, the Company can make a far better assessment of appropriate actions may be. This is because the Company has sought guidance from a medical expert rather than rely on the more subjective judgment of the supervisor or employee. With the physical capacity evaluation form in hand, the Company can determine (1) if the employee can still perform the essential functions of the job, (2) if so, whether there is a need for accommodations, and (3) if accommodations are needed, would those accommodations be reasonable for the employer?

Going carefully through these steps brings some degree of objectivity to the outcome which otherwise could become a very questionable and highly subjective determination. On occasion, the physician may state that the employee is able to fully perform the essential functions of the job without any required accommodations. If that is the case, you (as the employer) can take some comfort in knowing that you did your “due diligence” – even if you have some reservations about what the doctor has stated. If the need arises in the future, you can always have the employee check back with the physician if you believe the situation has changed significantly.

Seek Guidance from a Human Resources Professional or Employment Law Attorney

Due to the sensitivity of these situations in light of the Americans with Disabilities Act, we highly encourage you to work closely with a Human Resources Professional or Employment Law Attorney throughout this process. When you have concerns about whether an employee is fit for duty or can perform the work safely, don’t hesitate to seek out the support and assistance of these qualified professionals.  

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As a Landrum Professional Human Resources Manager, Jim is certified as a Senior Professional in Human Resources (SPHR) and has over 20 years of HR generalist experience for a large government contractor and Fortune 500 Company. He holds a Masters in Business Administration from Florida State University and is an active member of the Greater Pensacola Chapter of the Society for Human Resources Management (GPCSHRM), previously serving as their Vice President of Information Services and Chairman of the Workplace Diversity Committee. Jim is also certified as a County Mediator and in the administration of the Myers Briggs Type Indicator (MBTI).




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