Author: Site Staff

Dear Quizzical:



You are right to ask a few questions, and you are likely to find one of the following answers:

• The employee and manager are working out mutual expectations for performance. The manager may have higher (or just different) standards for the employee’s performance than the prior manager, and he or she is simply establishing a new level for achievement. You may need to offer some coaching or support to help the employee meet the new requirements.

• The employee and manager are having some problems getting along. This might be a simple matter of a difference in communications style between the manager and the employee, or it could be a more significant difference. Either way, you may be able to help the manager and employee develop a better appreciation for their differences.

• The employee’s performance may have hit a “bump in the road.” If the employee has delivered a lower level of performance than usual, you and the manager may want to offer some coaching to help the employee get back on track. It’s not unusual to have some variation in performance, so it may help to offer a bit of encouragement to both the manager and the employee.

When coaching employeeperformance, your job is to help the manager and the employee work out the problem. Be sure to enlist the manager’s help, and focus on offering support and encouragement. Sometimes just opening the door a crack to let the light in is enough.

Start by asking the manager about the review. The manager may have a handle on the situation, but your support and positive approach can go a long way toward helping the employee succeed.

SOURCE: Patsy Svare, managing director, The Chatfield Group, Glenview, Illinois, December 17, 2004

LEARN MORE:How to Implement a New Performance-Management System Using New Managers

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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Dear Workforce Newsletter

The recent strike at Boeing by 18,300 members of the International Association of Machinists and Aerospace Workers demonstrates how pension concerns have taken precedence over other issues–including job security–for at least some workers.

During the weeks of heated negotiations preceding the strike that began September 1, the union, whose members’ average age is 49, refused to budge on the issue of pensions. In its third and last contract proposal, Boeing offered lump-sum bonuses of $5,000 over two years to about 17,500 machinists in the Puget Sound, Washington, and Gresham, Oregon, areas. It also offered a 2.5 percent wage increase in the third year of the contract, an incentive pay program that would provide five days of pay to Oregon and Washington workers if the company made target, expanded health care options and $66 per month in pension payments for every year worked, up from $60. The union was seeking $80 per month.

On September 23, Boeing management finally budged. The company has agreed to, among other things, increase the monthly pension payments to $70 per month, undo a provision that would have made union members pay higher medical insurance costs, and provide for a straight 8 percent bonus based on last year’s salary as well as a $3,000 cash bonus in the second and third years of the contract.

It had been management’s stance on pensions that was the biggest slap in the face to the union members, says Connie Kelliher, a spokeswoman for the International Association of Machinists and Aerospace Workers. “We were very clear that pensions were the top issue from the beginning, and the $6 increase is the lowest percentage that they have offered since the plan was established in 1955,” she says.

Given that Boeing made an after-tax profit of $1.87 billion last year, it seemed that it could offer more in pension payments and still be competitive, Kelliher says.

According to Stephen Sleigh, director of strategic resources for the machinists, it will cost Boeing $23 million to increase it to $70. He estimates that the $10 increase translates to a $230 million liability. Boeing spokesman Chaz Bickers declined to give specific estimates on the pension costs.

The speed with which Boeing management conceded to the machinists’ demands may prompt more unions to follow in their footsteps. As baby boomers retire and more pension defaults hit the headlines, industry observers expect to see more unions focus their attention on pensions. This makes sense particularly for employees in high-paying jobs, such as those at Boeing, where the average annual machinist salary is $58,000. Also, these workers are likely to be more successful in getting the public’s support by focusing on pensions rather than wages, says Philip Rosen, a managing partner at Jackson Lewis, a law firm that represents employers.

“They are doing what any good union leaders would do. Boeing has received some pretty good orders and they didn’t want a strike, so it was a good time for the unions to negotiate for more,” says Lowell Peterson, at attorney at New York-based Meyer, Suozzi, English & Klein who represents unions. “When times get bad, they are going to be asked to give some of it back, so they may as well get what they can while they can.”

—Jessica Marquez

One of the first oral arguments presented to new Supreme Court Chief Justice John G. Roberts Jr. may result in increased momentum for a new type of employment lawsuit.

On October 3, the opening day of its 2005-06 session, the court heard a case involving a worker at a meat processing plant in Pasco, Washington, who claims that her employer, IBP Inc., owes her pay for the time she spends each day putting on and removing 10 pounds of protective equipment.

The court also considered a companion case, brought against Barber Foods of Portland, Maine, by workers who allege that the poultry plant does not compensate them for the time required to assemble and don various pieces of safety equipment.

“The regulations in this area are somewhat confusing,” says Rafael Gely, professor of law at the University of Cincinnati. “It is also the case that employers try to push the limit wherever possible. A few seconds becomes a couple of minutes and that window keeps expanding a little bit at a time.”

Labor costs for employers could rise substantially if they are forced to pay each time the window opens. A Supreme Court ruling in favor of employees also would “add fuel to the fire” of an emerging area of litigation, says Edwin Keller Jr., a lawyer at Kamer Zucker & Abbott in Las Vegas.

“Wage and hour class-action lawsuits have become a cottage industry across the United States,” he says.

Other items on the court’s employment law docket so far include a whistle-blower case and the issue of collective bargaining for federal employees.

“It looks very similar to the last four or five Supreme Court terms, both in the number and mix of cases,” Gely says.

But this court session will feature a new chief justice and potentially a replacement for retiring Justice Sandra Day O’Connor, who took a nuanced, case-based approach to employment discrimination and was often a swing vote in 5-4 decisions.

The newly configured court also will hear a case that could determine whether judges or juries should decide who is an employee in discrimination suits.

Plaintiff, Jennifer Arbaugh alleges that a supervisor at the Moonlight Café in New Orleans sexually harassed her. In 2001, she quit and filed an employment discrimination civil rights suit against Y&H Corp., which owns the restaurant. Under Title VII of the 1964 Civil Rights Act, a business must employ at least 15 workers for 20 or more weeks to be subject to a suit.

Two weeks after the jury handed down its decision in Arbaugh’s favor, Y&H moved to have the case dismissed. It argued that a district court did not have jurisdiction because Y&H did not qualify as a 15-worker employer–unless delivery drivers and the restaurant owners and their wives were counted.

Employers want the Supreme Court to rule that defining who is an employee is a matter of law to be determined by a judge rather than a fact left up to a jury. “A judge is better equipped to apply these kinds of statutes,” Keller says.

—Mark Schoeff Jr.

Lack of Information, Duplicate Data Entry, and Paperwork Just Don’t Mix

While Fidelity Federal grew, nine human resource professionals tried to keep up with its tedious, paper-driven process. They were continuously faced with lost information, multiple data entry efforts, and database crashes. In some cases, it would take weeks for changes to appear in the computer system. The team desperately needed an HR system that could keep up with the rapid, continuous growth of the company and could accommodate multiple branch offices. Additionally, the staff needed a Human Resource Information System (HRIS) that granted access to more than one user at any given point in time.

Finding the Best Solution

To find the best solution, Fidelity Federal involved its entire HR department in the decision making process. The team researched and tested several HR systems, and iVantage® came out on top. “All of Fidelity’s HR staff was involved in the decision of which system to purchase,” said Shannon Letcher, System Administer at Fidelity Federal. “SPECTRUM’s iVantage system was the only system all of us could agree on, and we couldn’t be happier with its endless capabilities. During our research process, many of SPECTRUM’s competitors boasted of easy navigation, but we found that none of them could beat the flow of the iVantage system.” Fidelity Federal wasted no time putting its iVantage system into action.

Technology that Works

During its company-wide planning process, Fidelity Federal’s HR team utilizes iVantage as a way to extract and leverage critical human resource information for reporting such as: FMLA tracking, EEO 1, Vet 100, Affirmative Action and work proof eligibility. iVantage enables HR to quickly pull and present quality information to upper-management.

One of their primary goals included eliminating multiple data entry efforts and empowering employees throughout the company with instant access to information. To accommodate this request, Fidelity Federal implemented the iVantage Connect™ Self-Service module. Once the module was up and running, it gave HR more time to focus on other areas within the organization. One area involved spending more time concentrating on gathering and delivering mission critical data to the management team, rather than being bogged down with cumbersome data entry and numerous phone calls from their 750 employees. “The Self-Service functionality vastly reduced most of our phone calls and made our employees feel more involved and informed about their benefits,” said Letcher.

Before Fidelity Federal went live in August 2003, the HR team worked with SPECTRUM’s staff to tailor the iVantage system to meet all of their needs. One area included uploading specific items for its unique paid time-off (PTO) program. The company bases their PTO on length of service, officer status, and exempt or non-exempt status. Their PTO program works like any other traditional PTO program, with the exception that any time left over at year-end is transferred into a special absence account that employees can draw upon for extended absences, such as family emergencies or sick time off. “We have so many exceptions, based on so many different rules,” said Letcher. “SPECTRUM made our accrual process work perfectly.”

Additionally, Fidelity Federal set up an import/export link to their training department. This enables them to import data from their training database into their iVantage system using certain fields and populations. The entire process makes it quick and easy for the company to transfer or cross-reference information.

Fidelity Federal also finds it critical to their operations to have enhanced reports. Their HR team created several reports to handle their reporting needs, including salary analysis, termination and Affirmative Action. “Termination is especially critical because the banking industry is known for high-turnover,” said Letcher. “It took up precious hours of our HR staff’s time whenever we had to terminate an employee. I don’t know how we could keep track of the ever-changing staff if it weren’t for iVantage and the reports it generates.”

The Right Choice with iVantage

The HR team made the right decision by choosing iVantage. “Accuracy is very important to us and accuracy is what we got,” said Letcher. “The link to our payroll processor has rid us of dual entry and significantly decreased the amount of man hours spent on it. We used to support three Access systems and had to create our reports manually—iVantage has put an end to all of that.” Fidelity Federal was also able to reduce person hours by enabling the HR staff to log on to the system from remote locations. “Now we don’t have to rely on one person to maintain the entire database. Anyone, at anytime, can access iVantage.”

Last, Letcher raves about the service SPECTRUM provides. “We love the system and its capabilities, but most of all we love the support we get. We haven’t met nicer or more helpful people than we have at SPECTRUM. They have a way of making us feel like their #1 client every time we call!”

As recruiters flock to the Gulf Coast hoping to help displaced workers find new jobs, they’re discovering that the usual rules and corporate procedures have to be adapted to the unusual circumstances the job seekers are in.

“This is something that people in our industry need to get their arms around,” says Craig Silverman, executive vice president for sales and marketing with the recruiting technology vendor Hireability and a founder of Recruiters for Katrina.

Recruiters for Katrina is a Yahoo discussion group he started that now has some 120 HR professionals talking about how best to help displaced workers find jobs. Some of the members have volunteered to help job seekers write résumés. Others have volunteered to help place workers directly, while a few corporate recruiters have listed job openings.

As valuable as these efforts are, Silverman says the most important contribution of the group is planning for future disasters and educating companies about the special circumstances they need to consider when recruiting displaced workers.

What this means in practical terms is illustrated by the challenges Waste Management faces as it attempts to recruit upwards of 400 workers in the region to help with the cleanup. Last week, the company set up an RV and two recruiters in Baton Rouge as a test. Radio commercials and ads in the Sunday paper invited job seekers to call an 800 screening line. Those who made the cut then met with one of the recruiters.

Because federal regulations require drug screens and a physical for some of the jobs, the company hired a paramedic to stand by to do the exams. Those who passed got a job offer on the spot.

“We were very careful to consider the special circumstances,” says company spokesman Wes Muir. For candidates without transportation, “we’d get them to us. We did the prescreening (by telephone) to make it easier on them and to make sure they had the qualifications before making them come in.”

Four people were hired–getting a $100-a-day bonus plus a $35 per diem food allowance– before the company had to evacuate the staff in advance of the arrival of hurricane Rita.

Wal-Mart, which had 34,000 employees working in the affected area of the Gulf Coast, set up phone lines and posted information on company Web sites. Wal-Mart’s Web site served to help employees locate family members who became separated during the evacuation.

Wal-Mart spokesman Marty Heires says the company offered dislocated workers immediate employment at any Wal-Mart store in the country. About 2,400 workers are now working in stores as far away as Nevada and California. The company is also looking into converting unused stores and space into temporary employee housing.

Recruitment consultant Gerry Crispin, who toured the Gulf Coast region by RV in a trip underwritten by HotJobs to see firsthand what kind of recruitment help was needed, says that the most critical element in the hiring process was speed.

“Be prepared to operate with a sense of urgency. Forget that ‘We’ll get back to you’ stuff,” he says. “These people don’t have the time to wait and they may not be there, wherever there was, when you decide to get back to them.”

Crispin offers four recommendations for recruiters heading to the Gulf Coast:

1. Maintain your standards, but simplify the application. Make applying as easy as possible. Make sure the applicant understands the process.
   
   
2. Job seekers may not have all the necessary paperwork. Put the applicants to work right away, but make all job offers conditional on completing the review process. The I9 requirement (proof of eligibility to work in the U.S.) was suspended for 45 days to give workers time to replace or locate lost documents. It could be suspended longer. For some jobs, such as an emergency room nurse, it may be necessary to first confirm background, but for other jobs not requiring as much licensing, be flexible in how that is accomplished.
   
   
3. Be quick to make a decision. Let the applicant know on the spot if he or she is hired. If that’s not possible, do it in 24 hours.
   
   
4. Help your new hires. They may need a salary advance to buy clothes or food. If the job is out of the area, pay the relocation costs upfront. They may also need help or at least time to work out arrangements for family members who are staying with them. Help them make connections.

—John Zappe

Dear Bumpy:



Your organization’s ability to compete hinges in large part on neither underpaying nor overpaying your people. This is an opportunity for you to reinforce this point to your workforce.

Given your brief tenure, it would be time well spent to learn about the pay history of these particular individuals. Also, find out how similar situations were handled in the past. You are not necessarily bound to abide by existing precedents, but you certainly want to be aware of them.

Telling loyal, productive employees they aren’t eligible for raises is a far cry from telling them they are overpaid and shouldn’t expect future increases. Share with them any objective market data used in making your decision. Be prepared to explain the means and frequency for reviewing the situation going forward.

Also, consider any mechanisms your organization uses to give these hard workers incentives to remain with your company. (Remember the adage that it costs more to rehire than retain.)

Examine ways to reward them that don’t add to the fixed payroll obligation: bonuses (based on acquired skills, quality, teaching others),paid time off or specialrecognition awards. Make certain any such rewards recognize meritorious performance and aren’t just window dressing.

Whatever you do, make it your paramount objective to ensure that these folks come away from the discussion with their managers–that’s who should be delivering the message–as focused and engaged as ever. Good luck.

LEARN MORE: Bill Catlette, co-author,Contented Cows Give Better Milk, www.ContentedCows.com, Nov. 22, 2004.

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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Dear Workforce Newsletter

Only 28 percent of employers believe the primary responsibility for controlling health care costs lies with the people getting and giving care: employees, doctors and hospitals. Instead, many employers say, the responsibility lies with intermediaries such as insurers, the government and employers themselves.

United Benefit Advisors and Ingenix, a health research and information company, surveyed 794 U.S. employers, ranging from workplaces with fewer than 49 employees to large employers with more than a thousand.

Thirty-nine percent of employers surveyed said they’re more supportive of federal intervention to address health care costs than they were a year ago. Thirty-three percent were not. Generally, this desire for federal intervention is aimed at getting more information about costs and quality of care. The overwhelming majority of employers–about 90 percent–say that over the next five years the U.S. will avoid turning to a taxpayer-financed health care system like Canada has.

Also from the survey:

·    Employers are committed to providing health benefits to employees, saying that it improves recruiting and retention. On the other hand, they “feel little obligation to do so for retirees.”

·    Nothing employers have done to control health care costs, according to the study, has consistently been effective in continually reducing those costs. While many employers, for example, say that wellness programs and the management of chronic diseases have been effective, about the same number say that those practices have had little impact. And most employers just don’t know yet if consumer-driven health care will cut costs in the long run.

·    New employees need not worry about coverage: employers are widely opposed to the idea of saving on health care costs by increasing the waiting period for new hires.

United Benefit Advisors released a separate survey, related to premium costs, in late August.

—Todd Raphael

Short of Funds

Declining interest rates and equity values, rising benefit obligations, increasing liabilities and a lack of sufficient cash contributions to defined-benefit pension plans have caused total underfunding to rise from about $40 billion in 2000 to $450 billion in 2004. If all plan sponsors decided to exit the defined-benefit system simultaneously, they would have to buy $450 billion in private sector annuities to satisfy their pension obligations.

Source: Testimony of Bradley Belt before the House Committee on Education and the Workforce, March 2, 2005

To gain a better sense of the pluses and pitfalls of consumer-driven plans, McKinsey & Co. interviewed more than 1,000 employees who have been covered by a consumer-driven plan for at least 12 months. McKinsey’s analysis compared the health behaviors of those employees with employees covered by other health insurance. As a group, the employees covered by consumer-driven plans were:
• 50 percent more likely to ask about medical costs
• 20 percent more likely to participate in company wellness programs
• 30 percent more likely to get an annual check
• Satisfied (44 percent) with the switch to consumer-driven care
• Dissatisfied (80 percent) with insufficient pricing information, specifically doctors’ charges
Source: “Consumer-Directed Health Plan Report—Early Evidence Is Promising,” June 2005

Workforce Management, September 2005, p. 58 —Subscribe Now!

The following letter relates to a recent article about a court ruling affecting integrity tests.

Dear Editor:

While there has been a lot of confusion regarding the 7th Circuit Court of Appeals recent decision regarding an employer’s use of the Minnesota Multiphasic Personality Inventory (“MMPI”), your publication’s recent article entitled “Court Ruling that Employer’s Integrity Tests Violated ADA Could Open Door to Litigation” really takes this lack of understanding to a new level.

Contrary to the article’s assertion that the MMPI is “…the most popular screening test used by U.S. employers…”, it is not a commonly used test in the employment domain. In fact, it is used only by a handful of employers to screen for safety-sensitive positions (e.g., flight crew, nuclear plant operator, police officer)–except in some isolated, misguided instances like Rent-a-Center’s use.

With respect to the recent litigation that stimulated the article, Karraker v. Rent-A-Center…(the) holding by the Seventh Circuit has no impact on the vast majority of testing instruments utilized by employers. The instruments used by most employers were not developed to help identify any disabilities nor do they contain items that are likely to reveal the existence of a disability.

According to the ADA and extensive guidance provided by the Equal Employment Opportunity Commission, such tests are not medical in nature and should be administered prior to tendering a conditional offer of employment.

The Seventh Circuit’s opinion relied extensively upon long-existing Equal Employment Opportunity Commission guidelines regarding medical examinations, and merely reinforced the commonly held notion that the District Court had erred in deciding that the MMPI was not a medical test. The decision’s impact is minimal except for correcting the District Court’s misguided decision regarding when the MMPI can legally be administered. The opinion merely said that the MMPI could not be administered prior to an employer tendering a conditional offer of employment.

Flying in the face of your article’s characterization that the MMPI is an integrity test, the 7th Circuit Court of Appeals acknowledged that “Psychological tests that are designed to identify a mental disorder or impairment qualify as medical examinations, but psychological tests that measure personality traits such as HONESTY (emphasis added), preferences, and habits do not.”

The article also indicated that a “…recent survey found fewer than a dozen…” lawsuits had been filed against employers use of integrity tests. In reality, there have been approximately 35 complaints filed against employers who are using integrity tests–a relatively small number in light of the large number of these instruments administered.

And unmentioned in the article, these suits have been consistently disposed of (in favor of employers) at the administrative level (e.g., EEOC, California Department of Fair Employment and Housing) because the instruments have been shown not to exhibit disparate impact and have extensive validation evidence documenting that they are job related and consistent with business necessity. Apparently employers use integrity tests since they aren’t commonly challenged, they don’t contain invasive items, they don’t exhibit disparate impact and they have been shown to be job-related.

Very truly yours,

William G. Harris, Ph.D.
David W. Arnold, Ph.D., J.D.
Executive Director
General Counsel
Association of Test Publishers

Editor’s note: The story took particular note of the fact that the MMPI was not designed as a workplace integrity tool. It also pointed out that this has not prevented employers for using it as such, as was the case with Rent-a-Center. Further, the story did not contend that all integrity tests are now suspect. The issue is that integrity tests whose design is similar to the MMPI might run afoul of the ADA. And while the Association of Test Publishers believes that the 7th Circuit Court’s decision has limited impact, other employment law and testing specialists disagree, as the story shows.

As to the MMPI’s popularity, the story relied on research by employment law attorney John Canoni, who is quoted in the article. Mr. Canoni defers to the Association of Test Publishers in its assertion that that the MMPI is not the most popular test in use by employers. Finally, because of an editing error, the story incorrectly said that the 1991 decision in the Target case was a U.S. Court of Appeals decision. The court that handed down the ruling was the California Court of Appeals.