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HR Departments Should Get Involved in Contingent Labor Management

A corporate showdown could be in the making.

It’s a looming battle between HR and procurement over who “owns” contingent labor. And I’m cheering on HR, for the sake of both companies and contingent workers.

For years, procurement departments have largely run the show with respect to temporary workers and independent contractors. Procurement, or purchasing, departments are the company officials responsible for buying the supplies a company needs to operate. These folks are great at pinching pennies. While in charge of contingents, they have put in software systems to cut costs and make it more efficient for managers to order up temporary workers through staffing agencies.

But there’s a downside to letting the people who buy staplers and cubicle furniture also oversee the placement of workers into those cubes.

As John Healy, a vice president at staffing provider Kelly Services notes, managing the contingent workforce is both an art and a science. Procurement has the science down. But they don’t have the art; they don’t have the part down that understands how companies may have to be flexible relating to high-skilled contractors; and they don’t have the part down that understands how to motivate temp workers so they’ll give their best efforts and want to come back.

That art piece is the province of HR.

And that piece is increasingly important as organizations ramp up their use of contingents, and more and more workers—especially those with specialized talents—choose to be free agents. Companies have to pay more attention to the engagement of contingents in order to get the best ones and get better quality work from them.

HR needs to get involved in managing contingent labor, says Jay Lash, a vice president at MBO Enterprise Solutions, a firm that helps organizations manage independent contractors. What’s more, Lash argues, HR officials should get involved soon, while the labor market still favors employers.

“If HR doesn’t get their arms around it now, when talent isn’t in as much demand, they’ll always be playing catch up,” Lash says.

HR folks putting their arms around the contingent labor issue will mean putting their arms around contingents to a greater extent. It will mean showing more love to people who often feel unwanted. After all, many of those workers wish someone would hire them for a permanent job. And it will mean giving more attention to workers who, even if they prefer life as a contractor or temp, are typically hungry for more feedback.

Ideally, there’s a balance here—procurement and HR work things out. But such power-sharing is rarely smooth in real life. Departments set up fiefdoms and don’t want to let go of their turf, so HR probably is going to have to fight to get a piece of the contingent action.

HR pros might be thinking: Why would I want to add something else to my full plate, especially when it means likely getting into an interoffice scrap?

The answer is: That’s the price of leadership. You’ll be battling for a noble cause, a victory that will both make contingents happier and boost your company’s bottom line. So go ahead, HR. Tell procurement to put up its dukes.

Ed Frauenheim is Workforce Management’s senior editor. Comment below or email editors@workforce.com.

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Does a ‘Good Faith Belief’ About an Illegal Pay Practice Support an FLSA Retaliation Claim?

April Hurd worked as a nurse’s aide for Blossom 24 Hour We Care Center. The company fired her 10 days after she complained about unpaid overtime. Easy case for the employee? If you think this is an open-and-shut case of retaliation under the FLSA, you are mistaken.

In Hurd v. Blossom 24 Hour We Care Center, Inc. (Ohio Ct. App. 8/2/12) [pdf], the court quickly disposed of Hurd’s retaliation claim:

There is no evidence that Hurd engaged in protected activity by requesting overtime. The U.S. Supreme Court has held that home health care workers are not entitled to overtime compensation because they constitute FLSA-exempt “domestic service” employees. Thus, because Hurd is exempt, her request for overtime did not constitute a protected activity.
Should this case have been this simple? In Title VII retaliation cases, there is a long-standing rule that an employee engages in protect activity by opposing an alleged unlawful employment practice with a reasonable a good-faith belief that the employer has violated Title VII. Some courts have extended this rule to retaliation cases brought under the FLSA.
 
If an exempt employee has a good-faith belief that he or she is not exempt and complains about missing overtime pay, shouldn’t that employee receive the same benefit as an employee complaining about an alleged unlawful employment practice under Title VII? Shouldn’t the employee’s good faith belief in the perceived illegality be put to the test?
 
What is the lesson for employers? Despite the ruling in Hurd, if an employee you have classified as exempt complains about overtime pay, do not assume it is safe to retaliate. The court deciding that employee’s case might not be as generous as the court was in Hurd.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

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How Late Is Too Late for an FMLA Medical Certification?

Jon Hyman The Practical Employer

Under the FMLA, an employee requesting leave for a serious health condition must provide a medical certification for the leave upon request by the employer.

The employee has 15 days to return the requested certification, unless it is not practicable to do so under the particular circumstances. If an employee fails to provide certification, the employer may deny the FMLA leave.

What happens, however, if an employee returns the requested medical certification late—after the expiration of the 15-day time limit? According to the Northern District of Ohio, in Kinds v. Ohio Bell Telephone Co. (7/30/12) [pdf], an employer can lawfully deny FMLA benefits when an employee submits the medical certification beyond the 15-day deadline, even if the employee only misses it by a short amount of time.

Ohio Bell’s decision to deny Kinds FMLA coverage due to untimely certification is justified …. In spite of ample notification by Ohio Bell, Kinds did not submit certification by the 13th …. Ohio Bell would have been justified in denying coverage for this failure alone, but the company nonetheless granted Kinds an extension. Kinds failed to submit certification by the January 27, 2010, deadline as well. Finally, on February 16, 2010, Kinds submitted the medical certification, but it failed to provide an explanation—a request made by FMLA Operations as a condition for giving Kinds a third extension—as to why she failed to submit certification earlier. As a matter of law, it cannot be said that Ohio Bell’s refusal to accept Kinds’s twice late and still inadequate certification—submitted one month past the FMLA required 15-day period—constituted interference with Kinds’s FMLA rights.

To sum up:

  • How late is too late for an employee to submit a medical certification to support a request for FMLA leave? One day.
  • Can you extend the 15-day period and accept a late certification? Yes.
  • Do you have to? No.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

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How Do We Prove the Value of Training to Our Executives?

Dear All Ears:

You have made me think about my own three decades of work in this field, particularly in our own niche specialties of engagement and development. I find that reinforcement from the designer of the learning solution is critical. We do this with a variety of “sustainers” that are added to the solution itself. However, it doesn’t work if the client is not willing to add some teeth to the process and hold the participants accountable also.

If both of these are done, the chances increase that there will, in fact, be a return on investment in the learning.

It is a shame that human resources/training must do all of this simply to hold participants accountable for putting the training to use. Given all the pressures on learners these days and how full their plates are, it makes the old saying—paraphrasing here—”folks will do what is inspected, not just expected” easier to understand. That still seems to be case in these rushed times.

As to research materials: Calhoun Wick, Roy Pollock and Andrew Jefferson co-authored “The Six Disciplines of Breakthrough Learning: How to Turn Training and Development into Business Results.” It lays out (in great detail) a model for all the components of training design, including reinforcement.

SOURCE: Bev Kaye, Career Systems International, Scranton, Pennsylvania

LEARN MORE: Well-Trained Managers Can Curb Attrition.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

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What Is Wrong With Our Recruitment Process?

Dear It Hurts:

Turnover mostly occurs early in a person’s tenure. However, if turnover in your organization is unacceptably high, it could indicate a systemic problem. There are a number of things that could contribute to early turnover, including:

  • Poor supervision or management
  • Bad working conditions
  • Poor fit between the person and the company’s culture
  • Disconnect between the jobs as described versus the actual on-the-job experience.

The best way to analyze the real cause is to conduct exit interviews with departing candidates. That helps you determine the root causes of the problem. You then are better able to take the appropriate remedial actions, which might include changes to the hiring profiles, realistic job previews, job redesign or supervisory training. As you imply, this may be an issue with your recruiting process, which is frequently the case of very early turnover (less than six months or so). Or it may be due to other systemic issues that the company and the recruiting department need to address.

SOURCE: Ed Davis, Alta Search Group, Chicago

LEARN MORE: The cost of poor hiring decisions continues to worry many organizations.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

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How Do We Cope With Generational Conflict?

Dear Generation Gaps:

Multigenerational conflict has long been an issue, but for the first time in history, four generations are present in the workplace. Each has its own skill set, communication style, work habits and values, which can create a challenging dynamic. Here are some strategies to better engage the different generations in your workforce:

1. Do your homework. Educate yourself and your team about the nuances of each generation. Talk about the preferences and styles with your team. Making your team aware helps it to take a more strategic approach to communicating and working together.

Best practice: Host a lunch and learn to discuss generational differences and how they are manifested in your workplace.

2. Defy the golden rule. At work, don’t treat others the way you want to be treated. Treat others the way they want to be treated. Recognize that a “one-size-fits-all” approach does not work with a multigenerational workforce. Some younger workers might prefer to be rewarded with a spot bonus, while others may desire a more flexible work schedule.

Best practice: Ask your employees what motivates them and how they like to communicate and use their ideas as the basis for real change.

3. Communicate and give feedback. People may feel uncomfortable giving feedback at work. But this lack of communication contributes to most workplace issues. Teams need communicate in order to thrive.

Best practice: Encourage managers to sit down with employees at least once a quarter to casually discuss how things are going. Challenge your team members to communicate directly with one another rather than through their managers or human resources.

SOURCE: Brad Karsh, JB Training Solutions, Chicago

LEARN MORE: Although generational issues are not new, they are more pressing than ever in a digitized, globally connected economy.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

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Men Get Prison, Must Repay $5 Million for Defrauding Staffing Firms

Six men received lengthy prison sentences and were ordered to pay $5.0 million in restitution for defrauding 42 staffing firms, the U.S. Attorney’s Office for the District of Colorado reported. Five of the men received sentences of more than 10 years while a sixth was sentenced to more than seven years.

All six were found guilty in a three-week trial that ended Oct. 20, 2011, with the six representing themselves in court, according to the U.S. Attorney’s Office. Sentencings began last week, and the last sentencing took place July 30.

The six defendants sentenced are:

  • David Banks, sentenced to 135 months in federal prison
  • Demetrius Harper, sentenced to 121 months
  • Gary Walker, sentenced to 135 months
  • Clinton Stewart, sentenced to 121 months
  • David Zirpolo, sentenced to 121 months
  • Kendrick Barnes, sentenced to 87 months

Each defendant was taken into custody after sentencing.

Banks and the co-defendants were developing a software program they claimed would help law enforcement agencies, according to the U.S. Attorney’s Office. They acted through companies known as Leading Team Inc., IRP Solutions Corp.and DKH in Colorado Springs, Colorado.

The six used staffing firms to payroll employees despite having no source of income to pay staffing firms, the U.S. Attorney’s Office reported. In many cases, a defendant would report hours to a staffing firm while another defendant approved those hours for payment by the staffing firm.

The incidents occurred from October 2002 to February 2005, according to the indictment in the case.

When staffing firms billed the defendants’ firms, they did not receive payment, according to the U.S. Attorney’s Office. The scheme also included submitting time cards containing false information to staffing firms.

Defendants defrauded staffing firms of $5.1 million, the U.S. Attorney’s Office reported.

“The sentences handed down to these defendants appropriately reflect the seriousness of the specific crimes they committed,” said FBI Denver Special Agent in Charge James Yacone. “The number of victims and amount of loss were significant. Hopefully, this will serve as a deterrent to others contemplating such crimes in the future.”

Filed by Staffing Industry Analysts, a sister company of Workforce Management. To comment, email editors@workforce.com.

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Swapping Shifts and Religious Accommodation

Four days after the University of Tennessee, Knoxville, hired Kimberly Crider, she informed her supervisor that she was a Seventh Day Adventist, which precluded her from working from sundown Friday through sundown Saturday.

Crider’s job responsibilities included monitoring an emergency cell phone on a rotating basis during weekends. When Crider’s co-workers refused to exchange shifts to accommodate her, the university determined she was unable to fulfill her job duties and terminated her.

As you would guess, Crider sued, claiming religious discrimination under Title VII.

Title VII requires an employer to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship.

An accommodation poses an undue hardship if it causes more than de minimis cost on the operation of the employer’s business. In Crider v. University of Tennessee, Knoxville (6th Cir. 7/23/12) [pdf], the 6th Circuit applied these principles and concluded that a jury should decide whether the university lawfully refused to force its employees to change shifts to accommodate a co-worker’s religion.

UTK insists that requiring its employees to work Saturday shifts every other weekend would have created an undue hardship for Crider’s former co-workers…. UTK … insist[s] that a significant effect on a co-worker will suffice to establish an undue hardship…. Title VII does not exempt accommodation which creates undue hardship on the employees; it requires reasonable accommodation “without undue hardship on the conduct of the employer’s business.”

The court concluded that “employee dissatisfaction or inconvenience alone” does not create an undue hardship. Instead, “it is the effect such dissatisfaction has on the employer’s ability to operate its business that may alleviate the duty to accommodate.”

According to the EEOC, “It would pose an undue hardship to require employees involuntarily to substitute for one another or swap shifts.” Some might argue that this case undercuts the EEOC’s position. In reality, I think that the employer simply failed to prove the undue hardship with actual facts and data relative to its operations.

If you are planning on rejecting an employee’s request for a shift change as a religious accommodation, you must be able to support the claim of hardship with facts.

  • How does it impact your scheduling?
  • Do you have to hire additional staffing to cover for the missed shifts?
  • How much would it cost you in added overtime or other premium wages?
  • How often would you have to pay overtime or other premium wages?

Without providing answers to these questions, you will be hard-pressed to prove that a shift swap creates an undue hardship.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

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Is a Multirating System a Fit for Us?

Dear Hearing Voices:

Here are some important points to keep in mind:

Understand the key benefits

Certain organizations collect input from multiple raters to ensure performance gets accurately assessed. It’s a form of performance management especially suited for project-centric organizations, in which collaboration among many people (and even across cultures) is critical to success.

Multirater feedback is on the rise as companies shift from command-and-control structures to networked environments.

From a performance culture perspective, multirater feedback provides an added benefit: increasing a person’s awareness of, and personal accountability for, individual performance. If done correctly, multirater feedback provides a richer and objective evaluation of individuals and serves as an aid in identifying future potential.

Sidestep potential pitfalls

Education is critical. Many organizations launch multirater feedback without adequately educating their people. This often is the first time that individuals receive written feedback about their performance. Thus, make sure your managers and other leaders learn how to do so.

Culture can kill feedback. Even if the feedback is anonymous, it may be possible to identify the individual(s) who provided negative feedback. Many will fear retribution or strained relationships and thus not provide any negative feedback or examples, making the feedback difficult to interpret accurately.

Identifying raters is a struggle for most organizations. Think about how you can fairly identify the raters for an individual.

Be prepared for the administrative effort this process requires. Organizations frequently underestimate the amount of administration necessary to support multi-rater feedback.

Knowing where to begin

Your company should ask this question: “Why do we want to use multirater feedback?” The answering should help determine the scope and approach of the implementation.

Gain management sponsorship. This is a big cultural shift that has significant organizational impact, making senior-level support pivotal to its success.

Consider a pilot. Perhaps the first time you do this, the feedback should be used for developmental purposes only, rather than included in a performance assessment.

SOURCE: Fumiko Kondo, managing director, Intellilink Solutions, New York

LEARN MORE: Once-a-year feedback via the performance review isn’t cutting it anymore.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

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How High a Priority Is Time-to-Fill When Filling Vacant Positions?

Dear Quality Not Quantity:

Well-managed organizations, in health care and elsewhere, pay attention to the time it takes to fill open positions. But the importance of this metric falls far, far behind the importance of filling each position with the best person available.

We can guarantee that no patient in your hospital has ever said anything such as, “I was so impressed—the nurse who cared for me accepted his position after it had been vacant for only 3.4 weeks.” Patients instead judge their health care experience on the basis of the quality of care rendered by skilled and committed professionals. No health care provider can afford to promote time-to-fill over the more critical factors of finding the best talent and the right “fit” for the job and the organization.

Ask your employees which they would prefer: a) to fill open positions with less than the best or b) to work a little harder for a little longer until the right person can be found. We suspect that we—and you—know the answer.

Time-to-fill is, however, a telling statistic—not so much as a measure of the firepower of your human resources department, but as an indicator of the organization’s reputation as an employer.

Hospitals with well-founded reputations as employers of choice—Griffin Hospital in Derby, Connecticut, and East Alabama Medical Center in Opelika, for example—experience significantly lower employee turnover and time-to-fill statistics than do other providers in their respective areas.

Time-to-fill is useful for determining how effectively leadership, at all levels, is distinguishing your organization as a great place to work. A culture of leadership, appreciation, reward and high standards goes a long way toward attracting top talent.

A time-to-fill measurement is rarely useful in isolation. It can be valuable, though, to track year-over-year variations in the metric, as well as in some cases to make comparisons among departments within an organization. If your time-to-fill is increasing measurably from year to year, or if it varies widely among departments, it may suggest a need to investigate the underlying causes.

It is vitally important to bear in mind that it is not the exclusive responsibility of human resources to recruit talent. It’s the job of every leader, from first-line supervisors to CEO, to be out there beating the bushes every day for talented, committed people. When you do that, and create a great place to work, you’ll see your time-to-fill stats drop like the cholesterol of a patient on the latest statin drug.

SOURCE: Richard Hadden and Bill Catlette, co-authors, Contented Cows Give Better Milk, Jacksonville, Florida

LEARN MORE: Read how using verifiable data can help your organization improve recruiting.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.