I don’t need to tell you that workplace discrimination is wrong. I also don’t need to harp on the extraordinary cost and time associated with defending a discrimination complaint or lawsuit. You constantly hear about discrimination lawsuits that have been filed, settled and otherwise publicized in the media.
Boeing Settles Two EEOC Sex Discrimination and Retaliation Lawsuits for $380,000
EEOC Sued a New York Law Firm Kelley for Age Discrimination and Retaliation because they significantly underpaid attorneys after they turned 70.
As of 2008, there were 62 million private sector employees in the United States, about 30 million (48%) were women and 21 million (34%) were minorities. Our workforce is ever changing and the laws prohibiting discrimination cover virtually every employee (in one form or another), so these laws are important!
For the purpose of this blog, I want to highlight the laws to pay attention to and practices that are most common in small business.
#1 – Most of you have heard of the Civil Rights Act of 1964 also known as “Title VII”. This is the mother ship law which prohibits employment discrimination based on race, color, religion, sex, or national origin. Many states and municipalities have incorporated protections against discrimination and harassment based on sexual orientation, an employee’s status as a parent, marital status and political affiliation.
#2 – The Equal Pay Act of 1963 (EPA) protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination. Waiters and waitresses doing the same job should be compensated relatively the same.
#3 – The Age Discrimination Act of 1967 (ADEA), which protects individuals who are 40 years of age or older.
#4 – The Americans with Disabilities Act of 1990 (ADA), prohibits employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments. This law is ever expanding, so be aware of Title I and Title V. Again, there are many states and municipalities that have expanded the definition of a “qualified individual with a disability.”
#5 – The Rehabilitation Act of 1973, specifically prohibits discrimination against qualified individuals with disabilities who work in the federal government.
#6 – The Genetic Information Nondiscrimination Act of 2008, also known as GINA just went into effect November 2009. This law prohibits employment discrimination based on genetic information about an applicant, employee, or former employee. The law is new, so just don’t forget as an employer you can never use genetic information to make an employment decision because genetic information doesn’t tell the employer anything about someone’s current ability to work.
#7 – Pay attention to this one! The Civil Rights Act of 1991, among other things provides monetary damages in cases of intentional employment discrimination.
Employment Practices
There are practices that small business owners should pay a great deal of attention to when attempting to avoid discrimination. Keep in mind, when we are referring to Title VII, the ADA, GINA and the ADEA, it is illegal to discriminate in ANY aspect of employment. The common areas are:
~Hiring and firing
~Compensation, assignment, or classification of employees
~Transfer, promotion, layoff or recall
~Job advertisements
~Recruitment
~Testing
~Use of company facilities
~Training and/or apprenticeship programs
~Fringe benefits
~Pay, retirement plans, disability leave and other terms and conditions of employment.
DON’T FORGET discriminatory practices under these laws also include:
HARASSMENT on the basis of race, color, religion, sex, national origin, disability, genetic information, or age;
RETALIATION against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices;
EMPLOYMENT DESICIONS based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain sex, race, age, religion, or ethnic group, or individuals with disabilities, or based on myths or assumptions about an individual’s genetic information; and
DENYING EMPLOYMENT opportunities to a person because of marriage to, or association with, an individual of a particular race, religion, national origin, or an individual with a disability.
AS A SMALL BUSINESS OWENER, you must remember you are required to post notices to all employees advising them of their rights under the laws, and the EEOC enforces their right to be free from retaliation.
Don’t get caught doing the wrong thing. A little education will go a long way. Be sure your supervisors are aware of these laws and what they can do to reduce the likelihood of discriminating.
Below you will find links to fact sheets posted on the EEOC website. Read them all, it won’t take long and can provide you with valuable information to pass along to your supervisors.
FACT SHEETS
***Small Business Fact Sheet***
National Origin Discrimination
Age Discrimination
Religious Discrimination
Race/Color Discrimination
ADA Discrimination
Pregnancy Discrimination

Janice Jackson-Haley
Employee Essential, LLC

For information and education purposes only! This post is not intended to provide legal advice. Please seek legal counsel if needed.

True or False: “Once my employee has exhausted his FMLA leave but has not returned to work, I can terminate his employment or at a minimum, he has lost his right to job protected leave. FALSE
Providing 12 weeks of FMLA may only be the starting point in satisfying your obligation as an employer, to accommodate under ADA. Most employers assume if they give an employee 12 weeks of leave to comply with the FMLA, their obligation to the employee is finished. Not so fast…..if the employee also is disabled, an employer’s responsibilities under the ADA might begin.

Disabled at Work

These laws have different purposes, but both can affect an employee’s need for leave. The FMLA requires covered employers to provide eligible employees with up to 12 weeks of job-protected leave every year for various reasons. In particular, an eligible employee can take a leave if he is unable to work because of a serious health condition. On the other hand, the ADA prohibits discrimination against qualified disabled individuals and requires employers to provide accommodations that allow these individuals to perform the essential functions of their jobs.

As a practical matter, these laws will overlap when an employee takes a leave of absence for a FMLA serious health condition that also qualifies as a disability under the ADA. Back to our example above, if an employee who has been on FMLA leave for 12 weeks cannot return to work because of a continuing serious health condition, the condition also may be a disability. Therefore, the employer may be required to accommodate the employee by granting additional leave beyond the 12 weeks of FMLA.

I know you are already ahead of me if you are wondering about the situation being reversed. If an employee requests a 6-week leave as an accommodation to seek treatment for a disability, that time off could also be counted as FMLA leave for a serious health condition if the employee meets the FMLA eligibility requirements. Running DAD and FMLA concurrently is tricky, so be sure you consult your Human Resources professional or Legal Counsel.

Download your free FMLA poster today! Click here
Download an FMLA fact sheet now! Click here
PPS Inc. & EE Staff

There is a great television show called “The First 48 Hours.” The show highlights how important the first 48 hours are for any homicide detective. The clock starts ticking the moment the detectives are called. Their chance of solving a case is cut in half if they don’t get a lead in the first 48 hours. Each passing hour gives the suspect more time to flee, witnesses more time to forget what they saw, and crucial evidence more time to be lost forever. Let me be clear, I am not implying an employee that has been injured, should in anyway be viewed or treated like a criminal. The analogy is important when dealing with workplace injuries.

Don't waste precious time!

I don’t need to tell you workplace accidents cost money. The actual cost of a lost workday injury is substantial. For every dollar you spend on the direct costs of a worker’s injury or illness, you will spend much more to cover the indirect and hidden costs. Think about the cost in terms of:
• Productive time lost by an injured employee;
• Productive time lost by employees and supervisors attending the accident victim;
• Clean up and start up of operations interrupted by the accident;
• Time to hire or to retrain other individuals to replace the injured worker until his/her return;
• Time and cost for repair or replacement of any damaged equipment or materials;
• Cost of continuing all or part of the employee’s wages, in addition to compensation;
• Reduced morale among your employees, and perhaps lower efficiency; Increased workers’ compensation insurance rates; and
• Cost of completing paperwork generated by the incident.
The list goes on! I don’t want to over simplify this matter, however if you want to reduce the costs and risks associated with workplace injuries and illnesses, you need to address safety and health right along with production.

Let’s take a closer look at the first 48 hours of a workplace injury.
1st Hour - The accident occurs (investigation should begin as help is being administered). In the absence of other personnel, after addressing the workers injury the investigation should begin promptly.
2nd – 5th Hour – The preliminary details of the accident and injury are in place. Follow up on the well being of the employee should occur.
6th – end of work day – Investigation continues and employee’s health status should be established.
Last 24 hours – Plan of action should be in place to address the needs of the worker. Workplace needs addressed (i.e. reassignment of duties, temporary employees hired, equipment replacement, etc.) Investigation should be completed.

A completed investigation should answer the following questions:

1. What happened?
The investigation should describe what took place that prompted the investigation: an injury to an employee, an incident that caused a production delay, damaged material or any other conditions recognized as having a potential for losses or delays.

2. Why did the incident happen?
The investigation must obtain all the facts surrounding the occurrence: what caused the situation to occur; who was involved; was/were the employee(s) qualified to perform the functions involved in the accident or near miss; were they properly trained; were proper operating procedures established for the task involved; were procedures followed, and if not, why not; where else this or a similar situation might exist, and how it can be corrected.

3. What should be done?
The person conducting the investigation must determine which aspects of the operation or processes require additional attention. It is important to note that the purpose here is not to establish blame, but to determine what type of constructive action can eliminate the cause(s) of the accident or near miss.

4. What action has been taken?
Action already taken to reduce or eliminate the exposures being investigated should be noted, along with those remaining to be addressed. Any interim or temporary precautions should also be noted. Any pending corrective action and reason for delaying its implementation should be identified.

Don’t forget to follow up with the employee at least 3 times within the first 48 hours. It makes a real difference to the employee, assists with workforce planning, and can provide critical investigation information.

OSHA – Occupational Safety & Health Administration has a handbook for Small Businesses that you can download for free. Just visit their website:
http://www.osha.gov/Publications/smallbusiness/small-business.html
This handbook not only helps small business employers meet the legal requirements imposed by OSHA, it provides great resources and information that can be immediately accessed and implemented.
Remember, the information provided in this broadcast is not intended for use as a source of legal advice. Seek legal counsel for these and any other personnel matters.

Employee Handbook

Compliance
As a small business owner you know the importance of complying with the law. Whether it’s paying B&O tax, acquiring the proper licensing or adhering to consumer protection laws, it is sort of a “no brain er” and most business owners want to do the right thing.
Employment laws are fairly straightforward and pleading “ignorance” is often time not a sufficient defense if a lawsuit is filed, or you are audited. Take the time to determine the employment laws that apply to your employees and make sure you have written policies in place.

Communication
You will never be sued for over communicating a policy that complies with the law and is consistently applied. So, communicate, communicate, communicate. Caveat….you can be sued by anybody for anything, but prevailing is an entirely different matter. Reduce the likelihood of these legal hassles to begin with by communicating the written policies you have in place. Communicate company rules in written form, verbally and at regular intervals during the tenure of an employee.
Take advantage of the opportunity to connect with new employees by telling them about your company’s philosophy and the policies that govern their employment relationship. Conducting a new employee orientation provides the best avenue for this type of communicating, however be sure to provide a written copy of the employee handbook and get the employee to sign an acknowledgment of receipt form.
Remind employees of various policies during the year to reinforce existing policies and procedures. Prior to national holidays, remind employees of the compensation, leave and scheduling procedures.
Provide employees the opportunity to provide feedback on various policies and procedures. This can help you as the business owner better understand the needs and desires of your employees and also create a sense of commitment and loyalty among employees which reduces turnover. Remember one of most common reasons employees resign is because they are dissatisfied with company management. Company management can enhance their relationships with employees in a number of ways being consistent is one way, which leads us to the third “C” – Consistency.

Consistency
Just as you want your services and/or products you sell to be of a consistent quality, so should the rules that govern your employees be consistent.
You would not treat your customers different depending on their gender, religious background, or disability. Likewise, you would not treat your employees any different based on their background. You already know there are laws in place which prohibit discrimination, so there is no need to spend much time on that topic. If you need more information on discrimination laws visit the EEOC website.
However, one area of consistency that doesn’t get much attention is the impact it has on employees. Employees that know policies and procedures are applied consistently remain employed longer than those that work in environments that lack consistency. Even if the policies and procedures are invasive, illegal and otherwise not good, employees are more likely to remain employed when they know the policies are being applied consistently.
Don’t invite problems and lawsuits JUST apply policies and procedures consistently and most employee relations issues are addressed. Remember you need to first demonstrate compliance to employment laws by writing you’re your policies, and then communicate the policies.

A few resources to check out:
1. You don’t have to spend money to learn more about employee handbooks. Conduct a Google search “employee handbooks” and enjoy the multitude of results.
2. If you are ready to get started writing policies and you are a Do-it-yourselfer visit About.com, where you will find great instructions on how to develop your own policies and free templates you can download.
3. If you don’t have the time, a few resources to pay for the service hire a virtual HR professional through Employee Essential. We can create a customized handbook tailored to the needs of your company. Get the policies and procedures you need and not the ones you don’t. Visit the website for more information.
EE Staff

Contractor

Common Law Test for Employment
Under the “common law” test a worker is an employee if the purchaser of that worker’s service has the right to direct or control the worker, both as to the final results and as to the details of when, where, and how the work is done. Control need not actually be exercised in order to create an employment relationship; rather, if the service recipient has the right to control, an employment relationship can be demonstrated. Remember the label used by the company is immaterial, when a company is audited the facts of the relationship, not its name, is what really counts.

Legal Risks Associate with Misclassification
The tax liabilities are the peskiest of legal risks associated with misclassification of independent contractors.
• Federal Tax Liability – Employers are liable for income tax that should have been withheld. If an employee still pays taxes, the employer may apply for relief, however penalties and interest may still apply. Penalties equal to 100% of unpaid federal income and FICA tax can be imposed on those who willfully fail to collect and pay over taxes. Criminal penalties are also possible.
• Unemployment Insurance Tax – Responsibility for unemployment insurance taxes apply and penalties in the form of accrued interest may apply depending on the state. An IRS or state audit can be triggered by a former contractor that files for unemployment benefits when unemployment insurance was not paid.
• State Workers’ Compensation Taxes – An independent contractor relationship would not require payment of such a tax, however if there is an employment relationship shown penalties in the form of accrued interest may apply depending on the state.

Get the Relationship Right
There are 3 ways to establish and participate in independent contractor relationships:
• Don’t use an independent contractor when you really want an employee. Enter into an independent contractor relationship only when there is no desire to direct or control the service provider. If there is that desire to direct or control make sure other factors preclude the existence of an employment relationship.
• Contract with businesses not individuals. Ensure that independent contractors have established and are conducting themselves as independent businesses. For example, the presence of a business license, insurance and tax compliance are ways to tell. Let the contractor develop its own forms, administrative procedures, and invoicing systems.
• Permanent relationships with independent contractors should not exist. Avoid relationships with independent contractors that exclusively serve the company and its customers. Don’t even think about treating them like employees by allowing them to do the same work, providing training, furnishing tools, uniform and equipment.

Expect a dramatic increase of enforcement efforts as states grapple with shrinking budgets. Recognizing that the efforts to reduce misclassification of workers, has the potential to not only improve workers lives but raise billions of dollars in new revenue for cash strapped states.
EE Staff

This weekly tip and blog post is not intended for use as a source of legal advice. Seek legal counsel for these and any other personnel matters.

EE Staff

A performance evaluation can be a stressful endeavor for the employee as well as the manager.  As a supervisor it is important to begin any high stakes process with full awareness of the goal and outcome.  Being mindful of the impact of a performance evaluation is just as important as the goal.

Being aware of and taking into account all internal and external issues that can affect a performance evaluation is critical.  The 4 “R’s” (Reflect, Research, Rehearse and Reconnect) will help expand your consciousness in a way that will bring real satisfaction to the employee you are evaluating and create new ways for you to view all of what you do at work.

Reflecting

Start by centering yourself in the here and now.  Take a few breathes and relax your body releasing any negativity or anxiety.

Clearly focus on your Oneness and the moment at hand.  Connect with the reality that you are one person, today is only one day and you only have so much time to get so much done.

Say to yourself consciously or out loud, “Today, I will accomplish a great deal and tomorrow is a new day.”

Continue to breathe and reflect on this moment in time.  After a few minutes of deep breathing and reflection prepare yourself to begin researching and writing a fantastic performance appraisal.

Research

Gather any notes, reports or other such documents that demonstrate the work of an employee you are evaluating.  Take time to document your own accomplishments as a way to deepen your research.  Acknowledge, you would not have been as successful in certain endeavors without some assistance of those you supervise.  Writing an employee’s performance evaluation from this place of gratitude and respect can allow positive accomplishments to come to the forefront very easily.  After the performance appraisal has been completed it is ready to be reviewed and rehearsed.

Rehearse

Imagine sitting in the office with the employee you will meet with to conduct the performance evaluations.  Imagine what you are wearing, where you are sitting, how the chairs are arranged, the temperature in the room.  Now visualize the employee’s face, what they are wearing and where they are sitting.  There should be no judgment brought to the rehearsal, just visualize peace and goodness.

Try trading places; imagine the emotions you might have when you are going to meet with your boss for a performance evaluation meeting.  You might be nervous, slightly perspiring and anxious.  Depending on your relationship with your boss you may also be excited and eager.   Now multiply that feeling times two and imagine how you direct report might be feeling as they sit down for their performance evaluation meeting with you.  Remain calm yet aware of your own body and the content of your thoughts.

Practice reading what you will say, focusing on how you will speak and what you will enthusiastically emphasize.  Imagine you are on display for all to observe and prepare for this very important occasion.

Reconnect

During the performance meeting with the employee find a way to reconnect.  If this is a person you were responsible for hiring, draw upon past experiences that allow you to appreciate their perspective.  For employees that you have not had the privilege of connecting with, seize this opportunity.  Create a connection that will serve you both in times of success and challenge.

Taking the time to reflect, research, and rehearse opens the door for real connection.  This process can turn any performance evaluation into a mindful practice that can be replicated many times over.  There is life and energy born into the process rather than any negative emotions.

I invite you to learn more about performance evaluations and obtaining a guidebook full of phrases that help make the process easier.  Visit:  http://EasyPerformanceEvaluations.com

An organizational chart will typically show position titles and reporting structures.  The organizational chart is typically presented in a top-down format, implying the positions closest to the top are most valuable and influential.  An organizational chart normally reflects the reporting relationship of any given position.

Consider suggesting to the Human Resources department a revised organizational chart that offers not only a description of reporting relationships, but also priority a short description of the role of any given position.  This helps any employee in the organization understand what positions exist to serve what function.  A more descriptive organizational chart makes collaboration easier, business processes more evident, and a valuable tool for cross training.

No matter how big or how small a positions role might be, the organizational chart can provide a consistent message for the entire organization.

EE Staff and Tita

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Employee Essential offers virtual human resources and online training.

Need for speed

Information denied is action delayed, costing precious employee hours.  Flat systems deliver information freely across the table.  Focus on critical issues, goals and watch priorities consolidate action.  Instant clarifications facilitate a quick and immediate action.

Break the rules

Paranoia and excessive ego often drive managers to formulate rules that hinder functioning.  Walls are built to protect ones ego reducing efficiency.  Once an employee fails to contribute to the collective goal of the company, performance suffers.  Building bridges eliminates all rules that hinder performance and break down all walls that suffocate employees’ innovative initiative.

Lanes and Loops

Too many departments create unnecessary traffic.  Files and folders increase, duplicating inefficiency.  Questioning every mail and missive helps in removing redundant routing.

Road map

Clear goals increase employee’s productivity.  Identify bottlenecks, simplify the processes, and reduce the stages.

Anil and EE Staff

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Employee Essential offers virtual Human Resource support and online training.  Let us help you with reducing redundancy and increasing productivity.