Landrum Human Resource Companies Blog


YOU’VE HIRED A NEW EMPLOYEE – NOW WHAT? Bringing New Employees In To Your Company Culture

YOU’VE HIRED A NEW EMPLOYEE – NOW WHAT?  Bringing New Employees In To Your Company Culture

written by:  Jim Guttman, SPHR; Holly McLeod, PHR; Tom Knox, PHR on November 12, 2013

A new personality is joining your group and both the new hire and your employees are unsure of what to expect.  Depending on the personality and confidence level of your new employee, she may be thinking things like:

“Will they like me?” 
“Will I like them?”
“How soon can I make friends with my new co-workers?”
“I hope no one tries to be friends.”
“Will they show me the ropes?”
“I can’t wait to show them what I know!”

Likewise, your employees may be thinking:

“Will I like her?”
“Will she like me?”
“I’ll try to be friends with her.”
“I don’t want another personality in the mix.”welcome new ee_dreamstime_xs_21778086
“Oh great, another person to train.”
“I hope she’s not a show off.”

Acclimating a new employee into your existing business culture can be tricky, but there are steps you can take to ensure the smoothest transition for everyone.

BEFORE NEW EMPLOYEE STARTS

  • Notify employees a new employee will be joining the company.  If you have a small business or department, talk to each current employee and give a personal heads-up of the anticipated start date of the new employee.  Then, give some background about the new employee such as name, history in the industry, etc.
  • Ask your employees if they have any questions.  They will most likely be wondering (and/or fearful) about what this means to them.  Anticipate that and be prepared to answer “How will this affect my job?”
  • Ask for suggestions on how best to welcome and orient the new employee in to your company.  Ask questions like, “What ideas do you have?” and “What would you like to see if you were coming here as a new employee?”  This way, they become part of the process and it makes your employees feel valued.  NOTE:  It is important to let the ideas be theirs when possible.  If someone suggests having a welcome reception for the employee and you’ve already thought about it, just say “That’s a very good idea.  Thanks!”  Don’t say “I’ve already planned to do that.”  Even if an idea sounds ridiculous to you, don’t immediately shoot it down.  Just thank the person for the idea and say you’ll think about it.  If a suggestion or idea is immediately dismissed, it will make the person hesitant to provide any other feedback in the future.
  • Let your employees know your plan so they won’t be guessing what comes next after the employee begins work.

THE FIRST DAY OF WORK

  • Spend time with the new employee.  Explain the company; where it’s been, where you want it go, the mission and vision of the company, key customers, organization structure (who reports to who, etc.), and what you anticipate her role will be in that plan.  If you haven’t already discussed it in detail, go over pay, any paid time off procedures, work schedule, basic expectations, who she’ll be working with most, etc.  Answer any question she may have and make her feel welcome, while at the same time expressing an awareness of the value and expertise she brings to the table (if applicable).
  • Go around and personally introduce the new employee.  Remember, you have already told them what to expect so this will not be a surprise to anyone.  When making introductions, explain to the new employee what each person does and how that person’s job might interact with hers.
  • Give her a detailed tour of the office, including where each machine is she’ll be using.  Ask her if she’s worked with that particular machine.  If so, there’s no need for details.  If not, tell her you’ll make sure she gets properly trained on it.
  • The rest of the first day (that’s not taken up by other planned “first day events” like a welcome reception, etc.) should be spent learning what she’ll need to know most immediately, such as office procedures, forms you use, etc.

ORIENTATION

  • Schedule a time for the new employee to sit down and spend time with each person or department with which they will interact.  Ask them to explain to the new employee what they do and answer any questions she may have.  Even if the employee has years of experience, this is a new company with a different culture and different ways of doing things.
  • Ask each current employee who spends time with the new employee to give you feedback on anything discussed or indicated in their orientation time that you need to follow up on or add to the employee’s training plan.
  • After the initial “mini-orientation” meetings, allow the new employee to sit and observe in each of your main service/function areas.  This serves to provide some valuable “ah ha” moments for the new employee, to further send the message to your existing employees that they are valuable to you, and will provide an opportunity for the new employee and your current employees to bond and build a rapport.
  • Provide this built-in orientation/training time up front and don’t expect the new employee to be “productive” during this period – at least for a few days.

AFTER THE ORIENTATION

  • Sit back down with the new employee.  Ask if she has any questions.  Ask her if she sees a more efficient way to do the things she’s seen.  Does she have any recommendations for you to consider?  Of course if she provides any suggestions, don’t immediately dismiss them.  Then, give her clear guidelines on what you expect her to focus on.
  • Give her a training schedule, if needed, including the subject of training (i.e., learning the key customers, contacts and vendors), and who she’ll be training with.  If there are more than 2-3 training items, give her a written training schedule.
  • Let her know that if at any time she has a question or concern, she can always talk to you.

Thoughts to Keep in Mind

  1. Your new employee won’t want (nor need) to be treated like a “red-headed step child.”  She’s more than likely going to be nervous about going to a new workplace.  She should have her past work experience recognized (valuing what she brings to the table).
  2. If you have a job description, give it to her on the first day of work.  After her orientation period and your re-visit with her, ask her if she has any thoughts or concerns regarding the job description.  Set a time to meet with her in 30 days to review the job description again.  If there are any obvious disconnects between the job description and what she has been taught, you might need to tweak the job description so that it accurately reflects the job responsibilities.
  3. It can’t be stressed enough that allowing your existing employees to be part of this process will help them feel valued and more receptive of the new employee, as well as help your new employee feel valued and wanted.
  4. The biggest obstacle – and eventual success factor – is building trust.  It can take some time to cultivate but you can lose it in a heartbeat if there is a perceived wrong or slight of any kind.  You need to build the trust of the new employee as well as continue building trust with your existing staff.  Trust can be the glue that binds everything and everyone together.  It could not only serve to help in acclimating a new employee in to your company culture, but in building and improving the overall morale of the company.

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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).

Holly McLeod is a Human Resources Manager for Landrum Professional Employer Services and Landrum Consulting. She is a certified professional in human resources (PHR) and has more than 15 years of human resources consulting in the corporate world, healthcare and manufacturing environments.

Tom has been a Human Resources Manager for Landrum Professional since August 2001. In his role as a Human Resources Manager, he ensures that Landrum’s clients are in compliance with all local, state and federal laws that impact human resources. He assists, as needed, with hiring, terminating, counseling, and training. He advises business owners and employees on the potential resolution of work-related issues and consults with employers on the implementation of best human resources practices.
Tom is certified as a Professional in Human Resources (PHR) and is a Certified Professional through the International Personnel Management Association (IPMA – CP). Tom is certified to administer the Myers Briggs Type Indicator and uses the information to facilitate team building retreats.



Surfing Employee Social Media Sites

Surfing Employee Social Media Sites

Written by Eileen Hess, PHR on July 30, 2013

The use of social media sites is a largely utilized media for individuals to stay in touch with family, friends, and to networkMC900363500 with a vast number of individuals and companies.  It is not unusual to see pictures of pets, family members, parties, or personal comments ranging from everyday life, marriages and divorces, to world events. Many employers are well aware of the type of information they may find by browsing personal social media sites.  Most even have their own sites, both personal and professional, with similar content.

In recent years, some employers are requesting/requiring employees and applicants to provide the names of their social media sites, user names, and passwords in order to view the content of the sites. I imagine the thought behind this process is to gain added knowledge of character traits or hidden weaknesses, maybe even espionage! Not surprisingly, this practice has been met with mounting criticism and strong legislative reaction.

“What you don’t know can’t hurt you” could be the mantra of employer’s quest for greater knowledge via the web. Accessing private employee accounts or accessing public employee accounts may offer more information than an employer bargained for, such as age, race, religion, national origin, marital status, disability, genetic information, or other protected characteristics and information. There is no way to block this information from appearing during a search; you cannot un-see it!

There are a multitude of areas in employment relations where having knowledge of this information could be called into question. Was the basis for making a hiring decision related to any of the protected information?  What about employee advancements, disciplinary measures, layoffs, pay increases or terminations?

Many states have already passed acts limiting employer’s access to social media sites.

According to the National Conference of State Legislatures, six states — California, Delaware, Illinois, Maryland, Michigan and New Jersey — enacted legislation in 2012 that prohibits requesting or requiring an employee, student or applicant to disclose a user name or password for a personal social media account. California, Illinois, Maryland, and Michigan laws apply to employers. California, Delaware, Michigan and New Jersey have laws that apply to academic institutions. In all, fourteen states introduced legislation in 2012 that would restrict employers from requesting access to social networking usernames and passwords of applicants, students or employees.

When is too much information a liability to the employer and a threat to private communications of the employee? Before too long it may be a matter of law instead of employer discretion.  In addition to the many states jumping on this particular bandwagon and passing applicable legislation, federal legislative efforts have sponsored the Social Networking Online Protection Act. The Act would prohibit current or potential employers from requiring the username or password to an employee’s or applicant’s private online accounts. The bill forbids employers from seeking such access in order to discipline, discriminate against, or deny employment to any individual. A violation would subject an employer to a civil penalty of up to $10,000.  This is a bill worth tracking.

Before freely pursuing this line of questioning, check with your HR manager or employment attorney to ensure you are not in violation and surfing in dangerous waters.

For additional information:

NCSL: http://www.ncsl.org/issues-research/telecom/employer-access-to-social-media-passwords.aspx

_________________________________________________________________________________________________________

Eileen Hess_crop_webEileen carries out the role of Human Resources Manager for Landrum Professional Employer Services in Pensacola Florida, serving clients in multiple states. In this role, she advises clients on current and trending state and federal laws influencing human resources. Eileen also provides assistance in dispute resolution and utilization of best human resources standards. She serves as a knowledgeable and trusted advisor to clients “helping them to work a better way”. Eileen has over 20 years of human resources experience in the corporate, healthcare, and manufacturing environments, and certified as a Professional in Human Resources (PHR) through the Human Resource Certification Institute and the Society for Human Resource Management.



Come Fly With Me

Come Fly With Me

written by Matilde Keith, PHR on April 5, 2013

It’s almost time for the season 6 premiere of my all-time favorite show, Mad Men!  Season 6 airs on AMC on April 7th at 9/8c.  I’m anxiously anticipating what scandalous and wildly inappropriate things these people will do next at their place of employment!  Gasp!  As an HR Manager, I cringe when I see Don Draper grab the decanter of whiskey from his office mini bar and pour himself a drink.  Meanwhile his underlings are making sexual advances at his latest secretary.  I think to myself, “They really are mad, those men!”

Was that really what things were like back then?  (And I hope none of you are saying, “What’s she talking about, ‘back then?’  We do that at my job all the time!”).  I’m sure you know, that kind of behavior is no longer legally or socially acceptable, but in the 1960s workplace?  Sure, why not?

I often take for granted the rights we enjoy in today’s workplace.  I wonder, though, how did we get here?  Who were the real people in the Mad Men office who said, “Enough?”  There are many examples, but one industry that particularly intrigues me is the airlines.

Queue music: Frank Sinatra sings, Come fly with me, let’s fly, let’s fly aw-ayyy.  Ah, stewardesses. Either you’ve never heard that term, haven’t heard it in a while, or it makes you feel like I just said a dirty word.  The world’s first flight attendants were introduced by United Airlines in the mid-1930s.  Back then the airline had a formal policy that refused to hire married women for their cabin service.  Married women need not apply.  Single women that were hired and later became married would be promptly dismissed; this became an industry-wide standard.  The majority of cabin service was provided by women attendants.  Although some airlines did employ a few male attendants, the stewards were not held to the same marriage bans.

In the 1950s, American Airlines were the first to issue an age restriction on their flight attendants, in addition to their marriage ban.  Once you reached the age of 32 you were automatically asked to retire from passenger service.  The Air Line Stewards and Stewardesses Association (ALSSA), the national flight attendant union, protested this policy.  The union was able to convince the airlines to allow flight attendants hired before the age ceiling was introduced to remain employed under “grandmother rights”.  The union protested the marriage bans and age ceilings from time to time thereafter, but they gained little or no resolutions.

But then came the Civil Rights Act of 1964.  Title VII of the Act makes it unlawful for an employer to discStewardess-adriminate against any individual because of their race, color, religion, sex, or national origin.  In a documentary by PBS called Makers: Women Who Make America, it is said that the decision to add gender to Title VII was “a surprise, last minute move.”  The Director of the newly-developed Equal Employment Opportunity Commission (EEOC) called it “a fluke.”  Nonetheless, flight attendants and their unions believed its existence would give them some leverage in collective bargaining.  In some ways it did; certain airlines raised their age ceilings to 35 (up from 32) and others gave stewardesses a 6-month grace period after marriage before they were fired.

In 1965, stewardesses would be the very first women to file a charge of sex discrimination with the EEOC.  The EEOC later issued general guidelines that made the act of firing married female employees a form of sex discrimination if the policy was not also applied to male employees.  Later, they would issue their first ruling on a sexual discrimination complaint brought by Judith Evenson against Northwest Airlines.  EEOC Commissioner Aileen Hernandez found there was “reasonable cause” to believe Northwest illegally discriminated against Evenson because their “no-marriage” policy was not applied to Northwest’s male flight attendants.

When asked by the Air Transportation Association (ATA) to issue a categorical general finding on age and marriage violations of Title VII, the EEOC began a comprehensive study of airline policies.  They issued their general ruling in 1966, making a range of airline employment practices illegal.  Within days, the airlines secured an injunction charging there was a conflict of interest in the ruling.  Commissioner Aileen Hernandez who had voted in the case was allegedly involved with the newly-formed group, National Organization for Women (NOW).  The airlines were able to persuade a federal judge to enjoin the EEOC from releasing the ruling on the airline policies based on Hernandez’s perceived feminist bias.

The EEOC began another study in 1967.  That same year, Congress passed the Age Discrimination in Employment Act of 1967.  Unfortunately for flight attendants, the act only protected workers between the ages of 40 to 65 from age discrimination.  The flight attendants would have to keep fighting on their own.

Even though in 1968 the EEOC issued individual rulings as well as a general ruling declaring age and marital restrictions on stewardesses’ employment to be illegal sex discrimination under Title VII, most flight attendants were still being defeated in federal courts.  Progress, however, was being made through their labor union contract negotiations.  Just before their all-female flight attendant crew went on strike, American Airlines granted them the right to marry without forfeiting their jobs.  United would follow suit later that year.  This effectively brought an end to the airlines’ “single-women-only” policies.

Perhaps the most historically important case concerning flight attendant employment and sex discrimination was Diaz v. Pan American in 1971.  What made this case different is that it was initiated by a male applicant denied employment by Pan Am.  During trial Pan Am offered several justifications for its policy of hiring only females for passenger service.  The trial judge in Florida ruled in favor of the airline stating the policy met the “BFOQ” standard defined in Title VII.  This clause in the Act allows employers to discriminate as long as sex is “a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.”

In 1972 the appellate court reversed the ruling.  The Fifth Circuit appellate court said, to be legal sex discrimination, it has to be necessary to the essential business of an employer.  In Pan Am’s case, they found it was not necessary to the carrier’s basic business of transporting passengers safely, but merely convenient.  Pan Am requested a higher appeal but the U.S. Supreme Court turned it down.

This case set an important precedent and allowed men to enter the flight attendant occupation in greater numbers. Now the terms “stewardess” and “steward” are widely considered ancient and sometimes derogatory.  What was once a company standard is now considered illegal.  It makes me wonder, what are we doing in today’s workplace that 50 years from now will be considered socially unacceptable and possibly illegal?

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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”.



IRS Expands Settlement Program

IRS Expands Settlement Program

by Jim Guttmann, SPHR on March 28, 2013

In our February 28th blog, we pointed out that the Internal Revenue Service (IRS) is intensely scrutinizing situations in which workers may be improperly classified as “independent contractors”.

To encourage employers to consider reclassifying their workers as “employees” (i.e. when past practice has been questionable or unclear), the IRS established a Voluntary Worker Classification Settlement Program (VCSP) in September 2011. It’s an opportunity for employers to properly classify their workers as employees without incurring severe penalties. When the program was put in place, the initial eligibility requirements for the VCSP were as follows:

  • The taxpayer must have consistently treated the workers as nonemployees, and must have issued all required Forms 1099 to the workers for the previous three years.
  • Neither the taxpayer nor certain affiliates can currently be under an employment tax audit by the IRS.
  • The taxpayer cannot be currently under audit concerning the classification of the workers by the Department of Labor or by a state government agency.
  • A taxpayer who was previously audited by the IRS or the Department of Labor concerning the classification of the workers will only be eligible if the taxpayer has complied with the results of that audit.

Since putting the program in place, nearly 1,000 eligible employers have taken advantage by applying for the VCSP. As a result of their decision to now treat their workers as employees (rather than independent contractors); they obtained partial relief from federal payroll taxes.

 At the end of last year, the IRS modified several eligibility requirements thus making it possible for many more interested employers to apply for this program. Under the revamped program, employers under IRS audit, other than an employment tax audit, can qualify for the VCSP. These and other permanent modifications to the program are described in Announcement 2012-45 and in questions and answers, posted on IRS.gov.

 Further, until June 30, 2013, the IRS is temporarily waiving the eligibility requirement that workers had to have filed Forms 1099 in the previous three years. Details of this special IRS offering can be found here.

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).



It’s Bracket Day!

basketball__3_It’s Bracket Day!

by Elizabeth Oakes, SPHR on Monday, March 18, 2013

For those of you unaware what bracket day is, it is a celebration of the upcoming NCAA Division I Men’s Championship (aka March Madness).  And how do we celebrate?  By filling out our brackets … at the office?

Personally, I don’t really follow basketball. It’s one of those sports that I’d prefer to watch live rather than televised, so I didn’t really know today was Bracket Day until I heard it on the news this morning.  What I found interesting in the newscast was when they said “It’s Bracket Day, here’s (insert sportscaster’s name) with all the information you’ll need to fill out your bracket at the office today.”

WHAT?  We do this at work?

Don’t get me wrong, I’m not delusional.  I recognize that gambling happens at work.  There’s the office pool for when Suzy will have her baby, or the occasion when multiple staff members pitch in for lottery tickets.  What surprised me is that this particular gambling is mostly focused in the workplace.  Fantasy football is usually experienced online or with a group of friends, and is sometimes done in the office.  Basketball gambling, though, is mostly observed in the workplace.

Interesting.

So where does that leave employers?  Is it okay for this to happen in our workplace?  Are we liable for anything that goes wrong?  Do I need a policy?  Are you going to tell us to knock it off and be a complete killjoy?

Easy, tiger.  No, sports fans, I’m not going to take all the joy out of this day.  There is absolutely nothing wrong with having a little fun at work (see past blog post), just as long as it doesn’t get out of hand and we still accomplish what is needed for the day.  I propose the following reminders:

  • You don’t have to participate, but you can’t ignore it either.  What I mean by that is that you don’t have to participate, as a supervisor, if you are disinterested – but also cannot pretend that it doesn’t exist.  I suggest that you oversee what’s going on from a distance.  If you aren’t gambling yourself, it’s still a good idea to be “present” for discussions or to be mindful of how things are going.  The last things you need are tempers rising, or good natured ribbing that goes beyond fun.  It’s important that you keep tabs on the temperature of the competition and step in where it’s necessary to diffuse inappropriate behavior before it goes too far.  Also, make sure that those who do not want to participate are not feeling pressured into joining the event.
  • Make sure the rules are clear to all participants.  Again, you might not be orchestrating this pool, but you’ll need to follow up with the person in charge of the competition to make sure the rules are clearly explained and followed, as well as ensuring that this person is well aware of your expectations in the workplace.  Make sure they understand that they are the responsible party to ensure the pool is handled smoothly, professionally, and legally.
  • Make sure it’s legal in your area.  Not every city and state allow for all, or any, types of gambling in the workplace.  Check your state laws and city ordinances to make sure you aren’t doing anything illegal.
  • Is work getting accomplished? It doesn’t matter if it’s perfectly legal in your state, everyone is getting along, and the pool runs smoothly – if the work isn’t getting done, it’s a problem.  In line with the first bullet point, make sure that you express your expectations of your staff clearly and up front that everyone’s main objective is, as always, to accomplish their work for the day.  Participation in the pool or event is voluntary but each individual is responsible for managing his or her own time to ensure the work flow process is not slowed down.  Then, hold everyone accountable on your end.
  • Require that it’s done in non-working areas and during non-working times.  If you have a No Solicitation policy, allowing the advertising/promotion of brackets and other events could negate or lessen your argument against unions.  It’s smarter to restrict the fun to non-working breaks, in non-work areas, and to keep it off of the company email.  For a little more information on how this can affect your no solicitation policy and unions: http://www.shrm.org/Publications/HRNews/Pages/March-Madness-2013.aspx

…And if I can offer you one more tidbit of advice:Please beware of the group buy-in for lottery tickets.  Many of these groups end up in court fighting with each other over the percentage split between the members of the group.  Even those who clearly define the rules of the lottery buy-in still end up in court.  Still not convinced?  Check out this article before you decide to join the next lottery pool in your office, and don’t say I didn’t warn you!

http://news.yahoo.com/group-lottery-wins-splitting-spoils-tough-083307501.html

Elizabeth Oakes, SPHR

Elizabeth currently practices as a Human Resource Manager for Landrum Professional Employer Services in Pensacola, Florida. In this role she ensures that Landrum’s clients are in compliance with all local, state and federal laws that impact on human resources. She assists, as needed, with hiring, terminating, counseling, and training. Elizabeth also advise business owners and employees on the potential resolution of work related issues and consult with employers on the implementation of best human resources practices.
Elizabeth is certified as a Senior Professional in Human Resources (SPHR) through the Human Resource Certification Institute and the Society for Human Resource Management.



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).




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