The Proactive Employer Blog

I’m excited to announce the launch of my latest book, Compensating Your Employees Fairly: A Guide to Internal Pay Equity, published by Apress.

The book is a comprehensive handbook that provides all the information you need to ensure that compensation systems are equitable, auditable, internally consistent, and externally compliant with equal employment opportunity laws and regulations.

Technical information—both legal and statistical—in common-sense terms. The non-technical breakdown of complex statistical concepts distills just as much as practitioners need to know in order to effectively deploy and interpret the standard applications of statistical analysis to internal pay equity. The focus throughout the book is on real-world application, current examples, and up-to-the-minute information on recent and pending wrinkles in the evolving legal landscape.

Key topics covered in the book include:

Why internal equity in compensation matters
How to detect intentional and non-intentional discrimination in compensation
The basics of statistical inference and multiple regression analysis
The essentials of data availability, measurability, and collection
The criteria for assessing compensation systems for internal equity
How to investigate potential problems and react to formal complaints and actions
How to avoid litigation and put in place ongoing measures for proactive self-auditing

You can get the details and order a copy at Amazon.

Today marks the first day of spring. Our green spaces will soon be buzzing with birds, bugs and blooms. We’ll see more sunshine and the days will get longer. Spring cleaning, planting, and yard work will soon be on our weekend agendas.

For some of us, weekends are the only time we have to get our chores done. This is especially true for those with long commutes to work. Most people commute to work, but some travel farther than others. In his post entitled New Census Data on Commuters, Phil Miles reviews a new Census Bureau survey about commuters. According to the data, 8.1% of US workers have commutes of 60 minutes or longer. Nearly 600,000 full-time workers had “megacommutes” of at least 90 minutes and 50 miles.

When I was commuting by train, I loved looking out the window and seeing the landscape becoming greener by the day. I would try and identify as many plants as I could. When I spotted N. pseudonarcissus (wild daffodils) and S. canadensis (bloodroot), I knew spring was here. While you may not remember the scientific names for spring flowers, you should take the time to learn the names of your employees. In his post entitled Knowing Your Employees Is More Important Than You Think, Michael Haberman talks about why you should take the time to get to know your employees beyond their company existence. He frames it in terms of union avoidance, but it’s good advice for all employers, irrespective of organizing efforts.

As a child, I often engaged in the spring ritual of counting robins. These days, it seems there are more new employment laws than spring robin sightings. Ari Rosenstein writes about changes to California law regarding employees’ rights in accessing their personnel records, fixed salaries and overtime, and social media. You can read about the details in his post entitled California Employment Law: 3 New Laws for 2013. Robert Fitzpatrick writes about Recent Legislative and Regulatory Developments Regarding Non-Competes. His post summarizes six of the most significant developments during the last year. In her post entitled Council Passes Paid Sick Leave Bill, Crystal Spraggins writes about a new law in the City of Philadelphia requiring paid sick leave for all full-time and part-time employees. John Fullerton writes about an “important seal of approval” for mandatory class action waivers in the financial services industry. In his post FINRA Decision Permits Class Action Waivers, he outlines reasons why now may be the time for firms to consider class action waivers in their arbitration agreements with both customers and employees. If you find yourself in litigation, Eric Meyer draws on the film Point Break to illustrate the confidentiality of settlement offers in his post 100% Pure Settlement Offer? If Not, It May Be ADMISSABLE… AT… TRIAL!

After all of these updates, you may be longing for the simpler days of just counting robins. Mario Bordogna misses the simpler days before the headaches created by technology in the workplace. In his post entitled How the Need for a BYOD Policy Can Make Human Resources Begin to Yearn for the Olden Days, he talks about the pros and cons of a BYOD (Bring Your Own Device) policy, and offers some key points employers should consider when deciding whether this kind of policy is right for them. Technology also means that every one of the NCAA basketball tournament games will be available live online. In his post entitled Stop The Madness, Mark Toth outlines three approaches for dealing with March Madness. He has some great recommendations on how employers can minimize productivity and IT problems and embrace the madness!

Technology lets us stay connected no matter where we are. We can be outside, perhaps at a union protest, and still check our Twitter feed and post Facebook updates. One employee who was protesting a new work schedule was terminated for ”engaging in activity constituting or appearing to constitute a conflict with the interest of the company.” In his post Chrysler Terminates Employee for Conflict with the Interest of the Company, John Holmquist discusses this termination, and warns that in light of recent NLRB activity, employers should review their employee conduct policies.

If outdoor union protests aren’t your thing, you can still enjoy the spring weather by opening the windows and doors. You may even spot some ladybugs on your screens! Just be careful they aren’t peering in, stealing your login information, and turning it over to current and prospective employers… Jon Hyman wants to know Are Employers Really Asking for Social Media Logins and Passwords? He’s conducting a survey to learn whether employers are insisting on social medial logins and passwords, or if it’s just a bunch of hype by news media and special interest groups. There are some situations, however, where employers can access this social media information legally. Heather Bussing outlines How Employers Can Still See Employee Social Media Accounts in situations of investigations, employer-provided devices, and employer policies.

Spring is the time of renewal, and a great time to refresh employer policies. A great place to start is with your hiring practices. Janette Levey Frisch brings us the inside story on Background Checks and the FCRA: A “Roadmap” for Employers and Background Checks and the EEOC: Navigating the Minefield. Mitchell Quick reminds us that it’s important to stick to those policies and procedures once they’re set. In his post entitled No Good Deed Goes Unpunished, he reminds us of the dangers of bending the rules to do “good deeds” – it rarely works out favorably. If one of your employees isn’t performing up to standards, disciplinary action may be required. Timothy Eavenson discusses the “Last Chance” Agreements: A Good Tool Misused and cautions employers against making these agreements overly broad. His key takeaway: you can’t require employees to waive their right to file a claim of discrimination based on an adverse employment action that may happen in the future as a condition of keeping their jobs now. Donna Ballman reminds us that you don’t have to sign everything that an employer puts in front of you. In her post Employees: You Have the Right To Say No, she outlines a variety of situations, like termination / resignation / severance, admission of a crime, and polygraph tests, where employees should think twice before signing.

Spring 2013 marks several milestones in employment law. April 9 will mark the 17th anniversary of Equal Pay Day, the day symbolizing how far into 2013 women must work to earn what men earned in 2012. In her post entitled Pay Gap? Yes. Discrimination? Rarely. Robin Shea points out that as the 50th anniversary of the Equal Pay Act approaches, there is still controversy as to the source of the gender pay gap. But according to Robin, one thing is incontrovertible: the gap is not the result of discrimination.

Also this spring, the FMLA celebrates its 20th anniversary. To mark this milestone, the Department of Labor recently conducted a study on how FMLA has impacted employers, workers and their families. Compensation Cafe has a review of the key findings of this survey in a post entitled 20 Years Later, Is FMLA Working? Based on the results of this survey, the DOL concludes that “it appears that employee use of leave and employers granting and administration of leave has achieved a level of stability.” But even after 20 years, FMLA still poses challenges for employers, and the application of FMLA is still being litigated. Randy Enochs talks about FMLA interference, FMLA retaliation and failure to accommodate under the ADA in his post entitled 7th Circuit Holds Light Duty is NOT a Right Employee Can Assert Under FMLA. The upshot is that FMLA is not always as simple as it may seem.

If you submitted a link for the carnival and do not see your entry here, that is likely my error. Please send me your submission again and I will add it.

Employers have long recognized that conducting due diligence on new hires is a mission critical task. Firms cannot afford to be sidetracked by employee problems such as workplace violence, theft, false resumes, embezzlement, harassment or trumped-up injury claims. Employers can be sued for negligent hiring if they hire someone they should have known, through the exercise of due diligence, as dangerous, unfit, dishonest or unqualified.

In this week’s episode of The Proactive Employer, we’ll be talking with Les Rosen about the top 10 trends and best practices for 2013 when it comes to background checks and safe hiring. We discuss the use of social networking sites, the EEOC approach to the use of criminal records and credit reports, international background screening, resume fraud, dealing with temporary workers, privacy and off shoring of personal data, and tools to protect against workplace violence. We wrap up the conversation with some legally compliant best practices to keep businesses productive and out of court, as well as steps businesses can take immediately to avoid a bad hire.

This show will air live on Thursday, February 7th at 3 PM Eastern / 12 Noon Pacific on BlogTalkRadio.

Tweet your questions using the hashtag #TPESHOW or call in at 1-888-553-6673 to talk to our guests. The show will be available for on-demand listening at The Proactive Employer website, on BlogTalkRadio and via iTunes following the broadcast.

As a result of a supposed message from God, one long time human resources professional was fired after a mere two weeks working in her new position.

Isabel Perez, who had been employed in HR for 15 years at the time she accepted a position as HR Director for Ashley Furniture Home Store, is married to a woman and claims that her manger fired her based on her sexual orientation stating that God told her to after she noticed a sticker in support of gay rights on Perez’s vehicle.

Surprisingly, in many states, it is legal to fire someone for being gay. However, in Perez’s favor, New Jersey is not one of them and she has decided to file suit.

Perez, who began working for Ashley in 2011, states that even in her first interviews she suspected that her sexual orientation could pose an issue. During the interview process, she apparently was questioned about the ring on her finger and inquiries were made about her view of hiring gays and African Americans.

At the time, Perez openly voiced her beliefs regarding equal employment but dodged questions regarding her marriage. While she admits, “It was uncomfortable,” she says. “As a human resources person, you think, ‘I’ll be able to change the culture…this is a point I could bring up later and discuss.’”

Perez was not successful in changing the culture and attitudes within the company and in her extremely short tenure was given gender and race specifications for job openings. She claims to have been directed by executives to hire only women or white people for certain jobs and to avoid hiring gays or lesbians.

Immediately objecting to the stipulations, she was told that maybe she didn’t fit in. In what may have been the final straw, Perez was warned, “you won’t last here,” by an employee processing her human resources paperwork which indicated that she had a female partner.

Not long after that, the chain’s director of People Services and Development, Kathy Martin, spotted a Human Rights Campaign sticker on Perez’s car, and questioned Perez about it. During the conversation, Martin stated that she needed to speak to God about the matter.

The following day, just two weeks into her employment, Perez was fired and told by Martin in a meeting between the two and a sales manager that God had spoken to Martin and that while the termination was not performance related and that Martin believed Perez could “easily manage the entire department,” she just didn’t “fit the culture” and that her “beliefs just don’t fit.”

“I had just given up everything to join an organization, thinking I could change the culture,” says Perez, who believes that she was retaliated against for standing up to discriminatory comments and standing up for her own sexual orientation.

Perez has acquired a new sense of purpose through her ordeal. In addition to filing suit in New Jersey, where it is illegal for private employers to terminate an employee solely on their sexual orientation regardless of the employer’s beliefs, she plans to bring awareness to the fact that there are no federal laws protecting gay, bisexual, and transgender Americans. She adds, “I have to make a difference within the human resources community.”

‘Tis the season: flu season. You’re coughing, sniffling, achy, and feverish. While climbing back into bed with the box of tissues by your side sounds like a great idea, do you do it? Or do you drag yourself to work?

If you are one of the estimated 40% of American workers who have no paid sick days, it’s likely that you will dose up on some over the counter medication and head to work.

Under current U.S. labor law, employers are not required to provide short-term paid sick days or longer-term paid sick leave causing tens of millions of workers to go without paid sick time. Millions of workers each year go to work sick resulting in decreased productivity and increased risk of spreading germs and illness to co-workers, clients and customers.

As the number of flu cases increases, so does the debate surrounding paid sick leave. While we can probably all agree that if you’re sick the best place for you is at home resting, getting well and keeping your germs to yourself. But for many, their financial situation and workplace policies dictate otherwise.

For Diana Zavala, a school speech therapist working as an independent contractor, missing work was not an option even though she was feeling miserable and fearful she had caught the flu. As she puts it, not having paid sick time creates “a balancing act” between physical health and financial well-being.

According to Connecticut Representative Rosa DeLauro and Iowa Senator Tom Harkin, who are calling on colleagues in the House and Senate to cosponsor the Healthy Families Act (HFA), it doesn’t have to be this way. DeLauro, who initially introduced the plan with Senator Edward M. Kennedy back in 2004, plans to reintroduce HFA with Harkin in mid-February.

Under the HFA, workers would be eligible to earn up to 1 hour of paid sick time for each 30 hours worked, up to 7 days of leave.

But many employers and small business owners, while sympathetic to their employees’ situations, find themselves in the midst of their own financial struggles and say requiring them to pay employees for sick days would impose an unrealistic and impractical burden.

It’s a tough call: assist employees at the cost of the company or vice-versa? We mustn’t forget the other important dynamic that needs to be taken into consideration: the well-being of customers and clients.

While paying a sick employee for the day off might not be the best financial option for your business, neither is losing customers because your barista is making the morning lattes while hacking with a cough, a sneezing waitress is delivering lunch to the table or a feverish executive is spreading more germs than ideas around the conference table.

It will be interesting to see what, if any, compromises can be made to protect the interests of all involved: employers, employees and consumers.

The Proactive Employer

Launch of “Compensating Your Employees Fairly”

Employment Law Blog Carnival: The “Spring is in Bloom” Edition

Top 10 Trends in Background Checks for 2013

Message from God Prompts Alleged Wrongful Termination

Are Your Employees Spreading Ideas – or Germs?