Author: Site Staff

Before you implement or change an employee incentive program, ask yourself the following questions:

• How will the program help support our corporate goals, such as increased profit or customer loyalty?

• How will the program support customers’ expectations of our products and services?

• How can I make sure the program criteria is objective?

• Which employees will be included?

• How much of a hardship, if any, will the program place on our organization?

• Am I committed to repeating the program or is it a one-shot deal?

SOURCE: LaBov & Beyond, a marketing communications company in Fort Wayne, Indiana.

Workforce, February 1999, Vol. 78, No. 2, p. 72.

Executives are exempt from the Federal overtime requirements if, among other things, they “customarily and regularly direct the work of two or more other employees.” Here, the U.S. Department of Labor explains what this requirement means.

1. An employee will qualify as an “executive” under 541.1 (the section of Federal overtime law that deals with executives) only if he customarily and regularly supervises at least two full-time employees or the equivalent. For example, if the “executive” supervises one full-time and two part-time employees of whom one works during mornings and the other during afternoons, or four part-time employees, two of whom work mornings and two afternoons, this requirement would be met.
2. The employees who are supervised must be employed by the department which the “executive” is managing.
3. A supervisor of as few as two employees usually performs nonexempt work in excess of the general 20-percent tolerance provided in 541.1.
4. In a large machine shop, there may be a machine-shop supervisor and two assistant machine-shop supervisors. Assuming they meet all the other 541.1 qualifications, particularly that they are not working foremen, they should certainly qualify for the exemption. A small department in a plant or in an office is usually supervised by one person. Any attempt to classify one of the other workers in the department as an executive merely by giving him an honorific title such as assistant supervisor will almost inevitably fail, as there won’t be sufficient true supervisory or other managerial work to keep two persons occupied. On the other hand, it’s incorrect to assume that in a large department, such as a large shoe department in a retail store which has separate sections for men’s, women’s and children’s shoes, for example, the supervision cannot be distributed among two or three employees, conceivably among more. In such instances, assuming that the other tests are met, especially the one concerning the performance of nonexempt work, each such employee “customarily and regularly directs the work of two or more other employees therein.”
5. An employee who merely assists the manager or buyer of a particular department and supervises two or more employees only in the actual manager’s or buyer’s absence, does not meet this requirement. For example, where a single unsegregated department, such as a women’s sportswear department or a men’s shirt department in a retail store, is managed by a buyer with the assistance of one or more assistant buyers, only one employee, the buyer, can be considered an executive, even though the assistant buyers at times exercise some managerial and supervisory responsibilities. A shared responsibility for the supervision of the same two or more employees in the same department does not satisfy the requirement that the employee “customarily and regularly directs the work of two or more employees therein.”

Source: The U.S. Department of Labor

Workforce Extra, February 1999, p. 1.

The most common reason for a DOL investigation is an employee complaint. Or the employer could be operating in a targeted industry, such as manufacturing or the building services. Employees are most likely to complain when a job is redesignated by the employer from nonexempt status to exempt, when overtime pay is not approved, or when an employee is terminated.

Auditors have wide latitude to inspect records and interview employees. Once an employer is notified that an audit is to be conducted, the employer should prepare for the investigation by conducting his or her own audit, immediately correcting compliance problems and preparing defense documentation.

Here are some tips for HR:

• Review the differences between state and federal law. Make sure you’re in compliance with the stricter of two laws.

• Review the job descriptions of the targeted jobs. Interview all the job incumbents and their managers to determine the accuracy of the job descriptions, to determine the actual duties being performed, and to determine whether timekeeping is accurate.

• Exemption classification interviews should pay close attention to the amount of time spent on nonexempt type duties and requirements for administrative exemptions. Also attend to jobs where the incumbent may spend less than 50 percent of the time during the workweek on duties that meet the primary duty definition for the executive, administrative, professional or outside sales tests.

• Conduct a training session for supervisors and managers on exemption status determinations.

• Correct inappropriate time-keeping and pay practices immediately, such as exemption reclassification, update job descriptions if they’re inaccurate, and back pay for unpaid overtime — including unapproved overtime that was worked.

• Work with an attorney who specializes in employment issues to review your policy manual or legal accuracy and completeness.

• If employees aren’t performing the job as management intends in regard to the nature of tasks performed or time spent working, then instruct the employee to perform the job as assigned.

• If you don’t have experience with wage and hour audits, seek help from a consultant or attorney. Interpretations of the law are difficult without knowledge of historical court cases.

SOURCE: Mae Lon Ding is president of Personnel Systems Associates in Anaheim Hills, California.

Workforce, February 1999, Vol. 78, No. 2, p. 44.

A short test and long test to help classify employees:

Short Test	Long Test
Executives o Primary Duty: management (50%) o Direct two or more employees o Salary: $250/week (Other criteria assumed)	Executives The primary duty is management. These people must direct the work of at least two people, have hiring and firing authority, and use discretionary powers. No more than 20 percent (40 percent if retail) of their workweek can be spent in nonexempt work.
Administrative employees o Primary Duty: office (non-manual) o Duties related to management o Exercise of discretion o Salary: $250/week (Other criteria assumed)	Administrative employees The primary duty is either: one, performing office work related to management policies or general business practices or, two, the administration of a school system. Also included are staff employees who perform special assignments, like purchasing agents or auditors. One test is the use of independent judgment and discretion. No more than 20 percent (40 percent if retail) of their workweek can be spent in nonexempt work.
Outside salespeople o Sell away from employer’s business o No more than 20% non-selling hours o No salary test (Other criteria assumed)	Outside salespeople Outside salespeople are exempt if they meet two requirements: one, they are customarily engaged in selling or getting orders for the company’s products or services, and, two, they spend less than 20 percent of their workweek in non-sales activities. There is no minimum salary requirement.
Professionals o Primary Duty: work requiring knowledge through prolonged course of study o Exercise of discretion o Salary: $250/week (Other criteria assumed)	Professionals The primary work requires either one, advanced knowledge customarily acquired by specialized study or, two, originality and creativity. They must use discretion and independent judgment. Their work must be intellectual and varied, not standardized. No more than 20 percent of their workweek can be spent in nonexempt tasks.

 

Source: Ahlberg & Company, P.C. in McLean, Virginia

Workforce, February 1999, Vol. 78, No. 2, pp. 40-51.

If you just got downsized, is it a good time to take a good, long vacation?

Not really. The window of job opportunity is best when you’re a fresh candidate. Take a brief period (a week or two) off and then start pounding the pavement for a new job.

 

SOURCE: Challenger, Gray & Christmas, Inc., Northbrook, IL, December 18, 1998

At popular request, here is a recap of the sexual harassment cases from 1998.

Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth (U.S. Supreme Court).

Summary:
In these two cases, the Supreme Court held that employers can be liable for sexual harassment perpetrated by supervisors even if they were unaware of the harassment and even if the harassment did not result in a “tangible employment action” (such as termination or demotion).

Implications for Employers:
Following these cases, employers can avoid liability only if they can demonstrate that (1) they exercised reasonable care to prevent and promptly correct any sexually harassing behavior; and (2) the employee unreasonably failed to take advantage of any available preventive or corrective opportunities. In plain language, this means that employers should act now to adopt rigorous anti-harassment policies. These policies must be clearly stated, widely publicized and rigorously enforced, following up on all complaints. Businesses that do not have the internal human resources staff to follow up on these matters should definitely seek outside, expert help. Money spent on preventive steps is infinitesimal compared to the cost of a lawsuit.

Source: Jackson, Lewis, Schnitzler & Krupman, White Plains, NY, December 14, 1998.

Follow these links to Amazon.com.

1,001 Ways to Inspire: Your Organization, Your Team and Yourself
Written by David E. Rye
February 1998, Career Press

Reward Management: Employee Performance, Motivation and Pay
Written by David A. Hume
November 1995, Blackwell Publishing

Managing Through Incentives: How to Develop a More Collaborative, Productive, and Profitable Organization
Written by Richard B. McKenzie and Dwight R. Lee
September 1998, Oxford University Press

Supermotivation: A Blueprint for Energizing Your Organization from Top to Bottom
Written by Dean R. Spitzer
September 1995, AMACOM

By adopting the following strategies, you will save time, reduce stress and create more of what you want.

1. Each week, review your goals and link them to your activities for the week.
2. Ask yourself if each activity takes your closer to your goals. Prioritize those activities that contribute most to the achievement of your goals.
3. Set deadlines for all critical activities and meet them.
4. Each day, plan your schedule for the next day to support your goals. Allow flexibility to handle “emergencies” by leaving room to respond to last-minute changes.
5. Schedule creative or challenging activities for your peak hours. For example, if you’re a morning person, negotiate early and return calls in the afternoon.
6. Do less. Delegate the things that others can do. Use delegation to help other employees grow and take on more responsibility.
7. Take charge of interruptions. If possible, schedule a time later to address the situation and ask the person to return then.
8. Plan phone calls. Make them one at a time. Jot down what you hope to accomplish before calling. Leave detailed messages indicating a call-back window of time. Put calls on hold on speakerphone.
9. Set up paper flow to reduce the possibility of a logjam. Hire an organizational consultant to help you manage the paper flow if necessary.

Source: Patricia Haddock, San Francisco, January 20, 1999. Haddock is the author of Office Management: A Productivity and Effectiveness Guide and Leadership Skills for Women. Order this book now from Amazon.com Isbn 1560520051.

Issue:
Two long-term employees, non-union computer programmers, have announced that they refuse to work because they have discovered that they are being paid less than the industry average wage. Their manager orders them to get back to work. They refuse, and state that they want a guarantee of a wage increase before they work any longer for substandard wages. Irate, the manager comes to you, asking whether he can discipline the employees. Can he?

Answer:
No, the manager cannot discipline these employees. By the nature of their complaints, these workers have become economic strikers engaged in protected concerted activity under the National Labor Relations Act. Even though they are non-union workers, they are protected by the NLRA since they are acting together to protest terms and conditions of employment.

What can the manager do?
Present no-work option to the strikers. After consultation with HR, the manager should inform the employees that continuing their work stoppage will result in the following:

• the employees will be categorized as economic strikers and placed on inactive status;
• non-striking employees will be hired to replace them;
• the strikers will be eligible to apply for any openings in the future should one occur;
  any prospective employers that call for a reference will be told that the employees are employed by the company and have been placed on inactive status due to a protected job action;
• and the employees will be asked to leave the building.

Upon being advised of the company’s rights to take such action, the employees will probably stay and get back to work.

Hire replacements, if necessary.
Should the employees choose to continue to strike, the manager may hire replacements and the strikers will have no right to immediate reinstatement. However, if the strikers make an unconditional offer to return to work before they are replaced, the manager must reinstate them. In order to avoid an unfair labor charge by the NLRB, it is also important that the manager carefully word communications to the economic strikers when hiring replacements. The manager should not use any language that implies the strikers are being discharged or that their rights are not being protected.

Do not ignore the problem.
Even if the strikers return to work, the manager should not ignore what has happened. The employees have communicated their dissatisfaction with their salary and have indicated that the company is not paying competitive wages. Such discontent may eventually result in employee turnover and/or union organizing—both of which can lead to many problems for the company. When employees band together and make demands for improved working conditions or higher pay or benefits, managers should be trained to respond to the problem and to recite actions the company has done to resolve workplace issues.

Cite: National Labor Relations Act, Section 7; NLRB v. Mackay Radio & Telegraph Co. (SCt 1938) 1 LC 17,034, 304 US 333.

Source: CCH Incorporated is a leading provider of information and software for human resources, legal, accounting, health care and small business professionals. CCH offers human resource management, payroll, employment, benefits, and worker safety products and publications in print, CD, online, and via the Internet.

Issue:
It’s 8:00 a.m. A frantic employee calls in requesting an unscheduled day off under the company’s paid time off (PTO) program. The manager refuses the unscheduled leave because of pressing work deadlines that need to be met for a critical product to ship. The employee does not relent, arguing he needs the time to admit his grandfather to the hospital. How should the manager respond?

Answer:
The manager needs to ask for more information. There is a potential Family and Medical Leave Act (FMLA) violation if the manager does not allow the employee to take PTO. FMLA leave must be granted for purposes of caring for a parent who has a serious health condition. While the grandfather is not at first glance a “parent,” the law also says that FMLA applies to someone who acted “in the place of a parent” to an employee.

Parent for FMLA leave means a biological parent or an individual who stands or stood in loco parentis (in the place of a parent) to an employee when the employee was either under age 18, or age 18 or older and “incapable of self-care because of a mental or physical disability.”

What should you do?
Ask during new employee orientation whether employees have a “parental relationship” with anyone other than a biological or adoptive parent. In many cases a grandparent may have filled that parental role by assuming day-to-day parental duties and responsibilities, which is why many companies ask during orientation if employees have someone in their family (an aunt, uncle, godmother) who filled that role. However, the law is clear that parent does not include parents “in-law.”

FMLA also requires the employee to provide as much notice as possible before taking leave, but if the grandfather has taken a sudden turn for the worse, the employee may be providing all the notice he can.

Train first-line supervisors on their FMLA responsibilities.
In the event the grandfather did act as a parent to the employee and paid time off is granted, the employee must be notified within two days that the time off will be designated as FMLA leave. In most cases immediate supervisors, who have the power to grant or deny time off, are the only ones who know if FMLA leave of less than five days is being taken. Consequently, they are the only members of management in a position to give the FMLA-required two-day notice or alert the HR department that notice must be provided.

Cite: U.S. Department of Labor, Wage and Hour Division, Family and Medical Leave Act final regulations; 29 CFR 825.113(b) and (c).

Source: CCH Incorporated is a leading provider of information and software for human resources, legal, accounting, health care and small business professionals. CCH offers human resource management, payroll, employment, benefits, and worker safety products and publications in print, CD, online, and via the Internet.