Filed under: Human Resources, Jim Guttmann, SPHR | Tags: Human Resources, Landrum Human Resources, National Labor Relations Act, National Labor Relations Board, NLRB, PEO
Appeals Court Strikes Down NLRB Posting Requirement
by Jim Guttmann, SPHR on Monday, May 13, 2013
In November, 2011, we informed you that the National Labor Relations Board (NLRB) issued a rule requiring most private-sector employers to post a special notice to employees of their rights under the National Labor Relations Act (NLRA). We updated you in April, 2012, that implementation of this posting requirement had been blocked in Federal Court. Click here and here for our previous blogs on this subject.
Now, it has been announced that the D.C. Circuit Court of Appeals has struck down the National Labor Relations Board’s posting rule because it violates employers’ free speech rights. The poster would have explained the rights of workers to join a union and bargain collectively to improve wages and working conditions. It also would have made it clear that workers have the right not to join a union or be coerced by union officials.
In the ruling, A. Raymond Randolph, senior circuit judge for the U.S. Court of Appeals, District of Columbia Circuit, wrote, “The right to disseminate another’s speech necessarily includes the right to decide not to disseminate it.” He said, “First Amendment law acknowledges this apparent truth; all speech inherently involves choices of what to say and what to leave unsaid.”
The NLRB poster rule is also under review by the U.S. Court of Appeals for the Fourth Circuit.
The NLRB has not indicated whether it will seek Supreme Court review of the court’s decision. Karen Harned, executive director of the National Federation of Independent Business Small Business Legal Center, expressed that the ruling is a “monumental victory for small business owners across the country.”
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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).
Filed under: Human Resources, Jim Guttmann, SPHR | Tags: ADA, Americans with Disabilities Act, EEOC, Health Insurance Portability and Accountability Act, HIPAA, Human Resources, Landrum Human Resources, PEO
Can I Tell Staff about an Employee’s Health Condition?
by Jim Guttmann, SPHR on Monday, April 22, 2013
An employee approaches the owner of a large retail store to inform her that he has Post Traumatic Stress Disorder (PTSD) which will require time away from work for counseling. During the meeting, the owner doesn’t ask the employee if she can tell other staff members about this health condition nor does the employee specifically grant permission. Under these circumstances, can the owner share this information with others at work?
First of all, would disclosure of this information to staff violate the employee’s privacy rights under the Health Insurance Portability and Accountability Act (HIPAA) regulations? The answer in this instance is actually “No.” HIPAA does not cover employers, per se. HIPAA only applies to the covered entities of health care providers, health plans and health clearing houses. The only way HIPAA would apply is if an employer is one of these three covered entities.
Does this mean that the information can be freely shared? Well, it depends on what information is being shared and to whom. According to the Equal Employment Opportunity Commission (EEOC), the individualized assessment of virtually all people with PTSD will result in a determination of disability under the Americans with Disabilities Act ( ADA). The ADA requires employers to keep medical information confidential, subject to certain narrow exceptions. Under the ADA the owner may disclose such information only to:
- Supervisors and Managers if it relates to “necessary restrictions on the work or duties of the employee and necessary accommodation;”
- First Aid and Safety Personnel “when appropriate, if the disability might require emergency treatment;”
- Government Officials investigating compliance with the ADA, upon request;
- State workers’ compensation offices, state second injury funds or workers’ compensation insurance carriers in accordance with state workers’ compensation laws, if there is an injury on the job; and
- Agents for insurance purposes.
Considerable guidance on this subject from EEOC (who enforces the ADA) can be found here, including what information may be shared. For instance, the guidance differentiates between a mere notice that an employee has taken sick leave or had a doctor’s appointment, which is not considered to be covered medical information, and documentation which contains information regarding the employee’s diagnosis or symptoms.
The overall theme of EEOC’s guidance is that medical information should be shared with others only on a “need to know basis” and only to the extent that the information shared is vital to them. Of course, the employee with the medical condition may choose to share his/her own personal health information at any time. Once disclosed openly, it’s no longer protected information.
Now let’s go back to the example where the employee confided with the retail store owner. What about the employee’s co-workers? Wouldn’t they have a legitimate need to know? Would it not be okay for the supervisor to share information with co-workers who may have to pick up the slack in the employee’s absence? In this instance, we would strongly recommend getting the employee’s written permission as to what can be shared, if anything. If the employee does not want the medical condition shared with others, the supervisor should honor that request.
So, let’s say that the employee does not want anything shared. What could the supervisor say to the co-workers who feel that the employee is receiving different or special treatment? In response, the supervisor could emphasize that she tries to assist any employee who experiences difficulties in the workplace. She may add that many of the workplace issues encountered by employees are personal and, that in these circumstances; it is the company’s policy to respect employee privacy. Finally, she could reassure a co-worker that his privacy would be similarly respected if he ever had to ask the company for some kind of workplace change for personal reasons.
If the co-worker persists with questions about the employee’s disability or accommodations, it is recommended that the supervisor avoid discussion of that subject. Instead, the supervisor could say that the company is acting in compliance with federal law or for a legitimate business reason. Or, the supervisor can simply say that she is not at liberty to discuss any information about the other employee.
The bottom line is that employers who obtain medical information should first “pause” before necessarily sharing information with others. Based on the circumstances, improper sharing of information could violate the ADA, The Family and Medical Leave Act (FMLA), Fair Credit Reporting Act (FCRA), HIPAA or state law. For that reason, we highly encourage you to work closely with a Human Resources Professional or Employment Law Attorney if you are concerned about how medical information is being shared in your organization.
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).
Filed under: Human Resources, Matilda Keith | Tags: EEOC, employees, employer, Flight Attendant, Human Resources, Mad Men, PEO
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 disc
riminate 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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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”.
Filed under: Human Resources, Jim Guttmann, SPHR | Tags: DOL, employees, employer, Form 1099, Human Resources, Internal Revenue Service, IRS, Landrum Human Resources, PEO, taxpayer, US Department of Labor, VCSP, Voluntary Worker Classification 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).
Filed under: Elizabeth Oakes, SPHR, Human Resources | Tags: "Bracket Day", basketball, employees, employer, final four, Gambling in the workplace, HRCI, Human Resources, Landrum Human Resources, lottery pool, March Madness, PEO, SHRM, SPHR
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.
Filed under: Human Resources, Jim Guttmann, SPHR | Tags: "duck test", "misclassification of employee status", DOL, employees, employer, Hourly, Human Resources, Independent Contractor, Internal Revenue Service, IRS, Landrum Human Resources, PEO, Salaried Exempt. Richard Cunningham Patterson Jr., US Department of Labor, Working a Better Way
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 
ambassador 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).
Filed under: Human Resources, Jim Guttmann, SPHR | Tags: "dealing with death at work", "Don't Sing Songs to a Heavy Heart", "grieving employee", Communication, employees, employer, Human Resources, Kenneth C. Haugk, Landrum Human Resources, PEO, Trust
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 
adding 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:
- I know how you feel. You don’t know how she feels and saying you do robs that person of her unique identity.
- 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.
- 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?
- “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.
- You should/shouldn’t statements. It is an unpleasant experience for the suffering person and also tends to shut down communications.
- 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.
- 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).
Filed under: Human Resources, Matilde Keith | Tags: child labor practices, current-events, employees, employer, Fair Labor Standards Act, Florida minimum wage increase, FLSA, government, Human Resources, Landrum Human Resources, Landrum Staffing, Lochner v. NewYork, PEO, President Franklin D. Roosevelt, Supreme Court
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). 
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.
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.”
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Filed under: Holly McLeod,PHR, Human Resources | Tags: CDC, Center for Disease Control, employee absenteeism, Flu, flu outbreak, good health habits, Human Resources, Landrum Human Resources, PEO
I Don’t Have Time For the Flu!
By Holly McLeod, PHR on January 14, 2013
You may have already seen an increase in employee absenteeism due to one or more of the myriad of illnesses that are circulating. You may have even gotten sick yourself. Illness struck my home when my daughter got sick and had to miss several days of school – right before semester exams. My sister, who lives hundreds of miles north from me, also got sick and missed time from work during her busiest time of year. You and I aren’t the only ones affected; newspapers, newscasts and the Internet are filled with stories of the widening spread of flu, including alarming reports of an increasing death toll.
For curiosity I went to the Web and quickly found these articles:
Flu Reaches Epidemic Proportions in US from Fox News.
Flu Outbreak: 47 States Now Reporting ‘Widespread’ Activity from Huffington Post.
Flu Outbreak Hits Businesses Hard from CNN.
So what is a business to do when it relies on its employees to keep the business going? Fortunately, there are preventative measures you can take such as reminding your employees to take personal precautions to minimize the chances of getting or spreading the flu, and encouraging them to stay home if they are sick.
Here is what the Center for Disease Control (CDC) lists as everyday steps we can take to stop the spread of germs and to help protect us from getting the flu:
- Wash your hands often with soap and water or an alcohol-based hand rub.
- Avoid touching your eyes, nose, or mouth. Germs spread this way.
- Try to avoid close contact with sick people.
- Practice good health habits. Get plenty of sleep and exercise, manage your stress, drink plenty of fluids, and eat healthy food.
- Cover your nose and mouth with a tissue when you cough or sneeze. Throw the tissue in the trash after you use it.
- If you are sick with flu-like illness, stay home for at least 24 hours after your fever is gone without the use of fever-reducing medicine.
The CDC has many resources available for individuals and businesses. A great website to visit is http://www.flu.gov/#, set up by the CDC. There is a goldmine of resources available, including a business planning guide, a five minute podcast giving an overview of an influenza toolkit for employers, and information on this season’s flu strand. There is also a comprehensive Business Toolkit that can be saved and printed for repeated usage. Also remember that the CDC recommends that anyone six months and older get a flu vaccine every year. You may want to consider providing vaccines for your employees; if not, remind them that many places are offering the vaccine for a nominal cost, and it’s not too late to be vaccinated.
There is an abundance of available resources. In addition to the above sites, you can sign up to get flu updates from CDC here; you can find additional free resources here; and you will find guidance from OSHA on preparing the workplace for a pandemic here.
This is a time when this old adage is pertinent: an ounce of prevention is worth a pound of cure. If you follow the guidelines from CDC, hopefully you won’t find yourself with a drastically reduced workforce due to the flu.
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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.
Filed under: Human Resources, Matilde Keith | Tags: Human Resources, Landrum Human Resources, Landrum Staffing, minimum wage, PEO
Happy New Minimum Wage!
by Matilde Keith, PHR on January 7, 2013
John Lennon sings it best, “Another year over, and a new one just begun.” This New Year brings with it a
n increase to some state and municipality minimum wage rates (this includes you, FLORIDA)! Federal minimum wage, however, will remain the same at $7.25 per hour in 2013.
If your state or municipality’s minimum wage rate is higher or lower than the federal minimum wage rate, the higher of the two rates must be paid. A new poster will also need to be hung by the chimney with care. Links for posters and announcements for the states that have announced their 2013 minimum wage increases are provided below:
| Arizona minimum wage will rise to $7.80 on 1/1/2013. | Announcement | 2013 Poster EnglishSpanish |
| Colorado minimum wage will rise to $7.78 on 1/1/2013. | Announcement | 2013 Poster English |
| Florida minimum wage will rise to $7.79 on 1/1/2013. | Announcement | 2013 Poster EnglishSpanish |
| Missouri minimum wage will rise to $7.35 on 1/1/2013. | Announcement | 2013 Poster English |
| Montana minimum wage will rise to $7.80 on 1/1/2013. | Announcement | 2013 Poster English |
| Ohio minimum wage will rise to $7.85 on 1/1/2013. | Announcement | 2013 Poster English |
| Oregon minimum wage will rise to $8.95 on 1/1/2013. | Announcement | 2013 Poster EnglishSpanish |
| Rhode Island minimum wage will rise to $7.75 on 1/1/2013. | Announcement | 2013 Poster EnglishSpanish |
| Vermont minimum wage will rise to $8.60 on 1/1/2013. | Announcement | 2013 Poster English |
| Washington minimum wage will rise to $9.19 on 1/1/2013. | Announcement | 2013 Poster Separate Minimum Wage Poster Not Required |
| Municipality Minimum Wages to Rise in 2013 | ||
| Albuquerque NM minimum wage will change on January 1, 2013. | Announcement | 2013 Poster EnglishSpanish |
| San Francisco CA minimum wage will rise to $10.55 on 1/1/13. | Announcement | 2013 Poster Several Languages |
| San Jose CA minimum wage to rise in March 2013. | Article | |
| Santa Fe NM minimum wage may rise in March 2013. | Santa Fe Official Site | |
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”.
