Author: Site Staff

Business books of the 1990s range from one profiling visionary companies for emulating to one that pokes fun at Corporate America. Some of the books actually started trends, while others have helped develop them. At any rate, the ’90s have provided a wealth of business acumen. Some of the most popular books are listed below, in no particular order.

Reengineering the Corporation: A Manifesto for Business Revolution
by Michael Hammer and James Champy (Harperbusiness)
This New York Times best seller started the reengineering revolution in the mid-1990s.

Seven Habits of Highly Effective People
by Stephen Covey (Fireside)
Although this was published in 1989, it became one of the self-help books of the decade.

Built to Last: Successful Habits of Visionary Companies
by James C. Collins and Jerry I. Porras (Harperbusiness)
An inquiry into corporate longevity that seems to be a mandatory footnote in every business book since.

The Fifth Discipline by Peter Senge (Doubleday)
This book introduced the emergence of the learning organization.

In Search of Excellence: Lessons from America’s Best-Run Companies
by Thomas J. Peters and Robert H. Waterman (Warner Books)
An American business management “bible” that presents eight specific management principles common to successful companies.

The One Minute Manager
by Kenneth H. Blanchard and Spencer Johnson (Berkley Publishing Group)
This book has been hailed a practical business guide for managers wanting to get the most from their employees.

The Dilbert Principle: A Cubicle’s-Eye View of Bosses, Meetings, Management Fads & Other Workplace Afflictions
by Scott Adams (Harperbusiness)
This book provides all too familiar portraits of the lunacy of the contemporary workplace.

Competing on the Edge : Strategy as Structured Chaos
by Shona L. Brown, and Kathleen M. Eisenhardt (Harvard Business School Press)
This book discusses how companies like Microsoft and Nike succeed because they’ve found a medium between structure and adaptability to market changes.

SOURCE: Charles Decker, president and publisher of Berrett-Koehler Communications, San Francisco; Theodore Kinni, editor of The Business Reader, a free online newsletter of business publications, Williamsburg, Virginia(bizbooks@gte.net); and Amazon.com.

Workforce, January 1999, Vol. 78, No. 1, p. 51.

Here are answers to questions employees may ask about the Family and Medical Leave Act (FMLA), a 1993 law that allows employees to take up to 12 weeks of unpaid, job-protected leave each year.

How much leave am I entitled to under FMLA?
If you are an eligible employee, you are entitled to 12 weeks of leave for certain family and medical reasons during a 12-month period.

How is the 12-month period calculated under FMLA?
Employers select one of four options for determining the 12-month period:

• The calendar year
• Any fixed 12-month “leave year” such as a fiscal year, a year required by state law, or a year starting on the employee’s “anniversary” date
• The 12-month period measured forward from the date any employee’s first FMLA leave begins
• A “rolling” 12-month period measured backward from the date an employee uses FMLA leave.

Does the law guarantee paid time off?
No, FMLA only requires unpaid leave. However, the law permits an employee to elect—or the employer to require—use of accrued paid leave, such as sick leave, for some or all of the FMLA leave period. When paid leave is substituted for unpaid FMLA leave, it may be counted against the 12-week FMLA leave entitlement if the employee is properly notified of the designation when the leave begins.

Does workers’ compensation leave count against an employee’s FMLA entitlement?
It can. FMLA leave and workers’ compensation leave can run together, provided the reason for the absence is due to a qualifying serious illness or injury and the employer properly notifies the employee in writing that the leave will be counted as FMLA leave.

Can an employer count leave taken due to pregnancy complications against the 12 weeks of FMLA leave for the birth and care of my child?
Yes. An eligible employee is entitled to a total of 12 weeks of FMLA leave in a 12-month period. If the employee has to use some of that leave for another reason, including a difficult pregnancy, it may be counted as part of the 12-week FMLA leave entitlement.

Can an employer count time on maternity leave as FMLA leave?
Yes. Pregnancy disability leave or maternity leave for the birth of a child would be considered qualifying FMLA leave for a serious health condition, and may be counted in the 12 weeks of leave so long as the employer properly notifies the employee in writing of the designation.

If an employer fails to tell employees that the leave is FMLA leave, can it count the time they’ve already been off against the 12 weeks of FMLA leave?
In most situations, the employer cannot count leave as FMLA leave retroactively. Remember, the employee must be notified in writing that an absence is being designated as FMLA leave. If the employer wasn’t aware of the reason for the leave, leave may be designated as FMLA leave retroactively only while the leave is in progress or within two business days of the employee’s return to work.

Who is considered an “immediate family member” for purposes of taking FMLA leave?
An employee’s spouse, parents, and son or daughter are immediate family members for purposes of FMLA. The term “parent” does not include a parent “in-law.” The term “son or daughter” does not include individuals age 18 or over unless they’re “incapable of self-care” because of a mental or physical disability that limits one or more “major life activities,” as defined in regulations issued by the Equal Employment Opportunity Commission (EEOC) under the Americans With Disabilities Act (ADA).

May I take FMLA leave for visits to a therapist if my doctor prescribes the therapy?
Yes. FMLA permits you to take leave to receive “continuing treatment by a health care provider,” which can include recurring absences for therapy treatments such as those ordered by a doctor for physical therapy after a hospital stay, or for treatment of severe arthritis.

Which employees are eligible to take FMLA leave?
Employees are eligible to take FMLA leave if they’ve worked for their employer for at least 12 months, and have worked for at least 1,250 hours over the previous 12 months, and work at a location where at least 50 employees are employed by the employer within 75 miles.

Do the 12 months of service with the employer have to be continuous or consecutive?
No. The 12 months don’t have to be continuous or consecutive; all time worked for the employer is counted.

Do the 1,250 hours include paid leave time from work?
No. The 1,250 hours include only those hours actually worked for the employer. Paid leave and unpaid leave, including FMLA leave, are not included.

How do I determine if I have worked 1,250 hours in a 12-month period?
Your individual record of hours worked would be used to determine whether 1,250 hours had been worked in the 12 months prior to the commencement of FMLA leave. As a rule of thumb, the following may be helpful for estimating whether this test for eligibility has been met:

• 24 hours worked in each of the 52 weeks of the year
• Over 104 hours worked in each of the 12 months of the year
• 40 hours worked per week for more than 31 weeks (or more than seven months) of the year.

Do I have to give my employer medical records for leave due to a serious health condition?
No, you don’t have to provide medical records. The employer may, however, request that, for any leave taken due to a serious health condition, you provide a medical certification confirming that a serious health condition exists.

Can my employer require me to return to work before I exhaust my leave?
Subject to certain limitations, your employer may deny the continuation of FMLA leave due to a serious health condition if you fail to fulfill any obligations to provide supporting medical certification. The employer may not, however, require you to return to work early by offering you a light duty assignment.

Are there restrictions on how I spend my time while on leave?
Employers with established policies regarding outside employment while on paid or unpaid leave may uniformly apply those policies to employees on FMLA leave. Otherwise, the employer may not restrict your activities. The protections of FMLA will not, however, cover situations where the reason for leave no longer exists, where the employee has not provided required notices or certifications, or where the employee has misrepresented the reason for leave.

Can my employer make inquiries about my leave during my absence?
Yes, but only to you. Your employer may ask you questions to confirm whether the leave qualifies for FMLA purposes, and may require periodic reports on your status and intent to return to work after leave. Also, if the employer wishes to obtain another opinion, you may be required to obtain additional medical certification at the employer’s expense, or recertification during a period of FMLA leave. The employer may have a health care provider representing the employer contact your health care provider, with your permission, to clarify information in the medical certification or to confirm that it was provided by the health care provider. The inquiry may not seek additional information regarding your health condition or that of a family member.

Can my employer refuse to grant me FMLA leave?
If you are an eligible employee who has met FMLA’s notice and certification requirements (and you have not exhausted your FMLA leave entitlement for the year), you can’t be denied FMLA leave.

Will I lose my job if I take FMLA leave?
Generally, no. It is unlawful for any employer to interfere with or restrain or deny the exercise of any right provided under this law. Employers cannot use the taking of FMLA leave as a negative factor in employment actions—such as hiring, promotions or disciplinary actions—nor can FMLA leave be counted under “no fault” attendance policies. Under limited circumstances, an employer may deny reinstatement to work—but not the use of FMLA leave—to certain highly paid, salaried, “key” employees.

Are there other circumstances in which my employer can deny me FMLA leave or reinstatement to my job?
In addition to denying reinstatement in certain circumstances to key employees, employers are not required to continue FMLA benefits or reinstate employees who would have been laid off or otherwise had their employment terminated had they continued to work during the FMLA leave period as, for example, due to a general layoff.

Employees who give unequivocal notice that they do not intend to return to work lose their entitlement to FMLA leave. Employees who are unable to return to work and have exhausted their 12 weeks of FMLA leave in the designated 12-month period no longer have FMLA protections of leave or job restoration.

Under certain circumstances, employers who advise employees experiencing a serious health condition that they will require a medical certificate of fitness for duty to return to work may deny reinstatement to an employee who fails to provide the certification, or may delay reinstatement until the certification is submitted.

Can my employer fire me for complaining about a violation of FMLA?
No. And the employer can’t take any other adverse employment action on this basis. It’s unlawful for any employer to discharge or discriminate against an employee for opposing a practice made unlawful under FMLA.

Does an employer have to pay bonuses to employees who have been on FMLA leave?
The FMLA requires that employees be restored to the same or an equivalent position. If an employee was eligible for a bonus before taking FMLA leave, the employee would be eligible for the bonus upon returning to work.

The FMLA leave may not be counted against the employee. For example, if an employer offers a perfect attendance bonus and the employee hasn’t missed any time prior to taking FMLA leave, the employee would still be eligible for the bonus upon his or her return.

On the other hand, FMLA does not require that employees on FMLA leave be allowed to accrue benefits or seniority. For example, an employee on FMLA leave might not have sufficient sales to qualify for a bonus. The employer is not required to make any special accommodation for this employee because of FMLA. The employer must, of course, treat an employee who has used FMLA leave at least as well as other employees on paid and unpaid leave are treated.

SOURCE: The U.S. Department of Labor, Employment Standards Administration.

These 11 indicators offer a rough gauge of key areas that should be scrutinized when choosing an HMO.

1. Look for a 15- to 20-year history.
   Age is not a virtue by itself. But 15 to 20 years of maturation in your region of the country enables an organization to figure out a few things, including how to pay and retain good doctors and hospitals. An HMO that has solid relations with those front-line providers can usually deliver better and more coordinated care than an HMO that has just begun working with its doctors and hospitals.
2. Don’t go with a for-profit HMO and doctors with financial risk.
   A for-profit HMO is dramatically different from a not-for-profit plan. While both have an incentive to keep costs down, the not-for-profits in this country tend to be far more focused on members’ well-being.
3. Demand a fully accredited plan and reporting on FACCT measures.
   A plan that’s accredited by the National Committee for Quality Assurance is doing a great deal to improve the quality of its care. But a truly excellent plan is willing to hold itself up to an even higher standard of quality. The Foundation for Accountability (FACCT) is a Portland, Oregon, coalition of companies and consumer advocates which has begun formulating new quality measures. FACCT is asking an HMO not only how successful it has been in keeping breast cancer victims disease-free for five years, for example, but how the women felt about the information, communication, and services they received during treatment. Any HMO that is planning to answer such questions is exemplary—and any that is already doing so is extraordinary.
4. Don’t agree to high heart bypass and angioplasty rates.
   The national averages are 4.1 per thousand for bypasses and 4.8 per thousand for angioplasties. Look for a plan with rates that are lower.
5. Require high cervical and breast cancer screening rates.
   Use GTE’s best practice guidelines as your benchmarks: at least 85 percent of all women between the ages of 52 and 64 have had a mammogram during the prior two years, and at least 85 percent of all women between the ages of 21 and 64 have had a Pap test during the preceding three years. The national average is 70 percent for both, but that’s much too low.
6. Don’t accept a high proportion of C-sections.
   C-sections involve anesthesia, major surgery and longer recovery periods with more complications than normal deliveries. Look for a C-section rate of 15 percent or less of all childbirths. The national average is 20.7 percent.
7. Seek high diabetic retinal testing rates.
   Nationally, HMOs test only 37 percent of the appropriate diabetic population each year. Top HMOs are screening 64 percent.
8. Don’t skimp on mental illness.
   The question: how many of the HMO’s members who have been hospitalized with a mental disorder received a follow-up phone call or had a follow-up appointment within 30 days of their discharge? The national average is only 75 percent.
9. Find a plan with available doctors.
   Ask, “How many of your doctors have ‘open panels,’ or are accepting new patients?” Opt for an HMO with at least 90 percent open panels.
10. Don’t join a plan with unhappy doctors.
    Ask the HMO for its annual physician turnover rate. If more than 10 percent of an HMO’s doctors leave during a year, ask the HMO why. A second approach is to ask your HMO if it surveys its physicians about how happy they are with the HMO and, if so, to give you the results. If they are willing to disclose the results, chances are you’ll only get to see the most positive aspects of the doctors’ answers. Still, it’s worth a try. Finally, you should skip the HMO’s survey if you’re lucky enough to live in a region where an independent-minded consumer advocate group or medical association has surveyed physicians about HMO quality.
11. Look for highly satisfied members.
    Never use satisfaction surveys as a stand-in for an evaluation of overall quality, because they rely on members’ perceptions, not hard-core data. Nevertheless, satisfaction surveys can give you an excellent picture of how responsive an HMO is in answering the phone, fielding questions, and otherwise supporting its members.
    
    The best HMOs will have a high percentage of members who deem themselves “completely satisfied,” and a low percentage of those who are dissatisfied. Shoot for a better-than-average rate of 65 percent to 75 percent for the combined categories of “completely” and “very” satisfied.

SOURCE: Excerpted from “Choosing and Using an HMO.” Copyright 1998 by Ellyn Spragins. Published by arrangement with Bloomberg Press. Available at better bookstores and through Amazon.com. May not be modified, copied, reproduced, uploaded, posted, transmitted, or distributed in any manner.

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.” The U.S. Department of Labor explains what this means:

(a) An employee will qualify as an “executive” under 541.1 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 morning and one, afternoons; or four part-time employees, two of whom work mornings and two afternoons, this requirement would be met.

(b) The employees supervised must be employed in the department which the “executive” is managing.

(c) It has been the experience of the divisions that a supervisor of a few as two employees usually performs nonexempt work in excess of the general 20-percent tolerance provided in 541.1.

(d) In a large machine shop there may be a machine-shop supervisor and two assistant machine-shop supervisors. Assuming that they meet all the other qualifications 541.1 and 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 will not be sufficient true supervisory or other managerial work to keep two persons occupied. On the other hand, it is 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.”

(e) 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, however, 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: U.S. Department of Labor, Washington, D.C., December 18, 1998.

OSHA has amended their regulations on powered industrial trucks and permit-required confined spaces. Here’s a summary:

Truck Training
The Occupational Safety and Health Administration (OSHA) has issued new requirements for powered industrial truck operator training (29 CFR 1910.178(l)). The new requirements are intended to reduce the number of injuries and deaths that occur as a result of inadequate operator training. They apply to all industries (general industry, construction, shipyards, marine terminals, and longshoring operations) in which the trucks are being used, except agricultural operations.

The new provisions mandate a training program that bases the amount and type of training required on:

• the operator’s prior knowledge and skill;
• the types of powered industrial trucks the operator will operate in the workplace;
• the hazards present in the workplace
• the operator’s demonstrated ability to operate a powered industrial truck safely.

Refresher training is required if:

• the operator is involved in an accident or a near-miss incident;
• the operator has been observed operating the vehicle in an unsafe manner;
• the operator has been determined during an evaluation to need additional training;
• there are changes in the workplace that could affect safe operation of the truck;
• operator is assigned to operate a different type of truck.

Evaluations of each operator’s performance are required as part of the initial and refresher training, and at least once every three years.

OSHA estimates that this rule will prevent 11 deaths and 9,422 injuries per year and that the annualized cost of this rule is approximately $16.9 million for all affected industries.

Effective Date:
The effective date is March 1, 1999 for the revised powered industrial truck regulation.

Compliance Dates:
The dates by which powered industrial truck operators must be trained are as follows:

• For employees hired before December 1, 1999, the initial training and evaluation of that employee must be completed by December 1, 1999.
• For employees hired after December 1, 1999, the initial training and evaluation of that employee must be completed before the employee is assigned to operate a powered industrial truck.

Permit-Required Confined-Spaces

The amendments revise paragraphs (c), (d), and (e) addressing the development and implementation of permit space entry programs as well as (k) which covers employer responsibilities for rescue services. A new paragraph (l) on employee participation is being added as well as a new non-mandatory Appendix F which will help employers in selecting properly trained and equipped rescuers.

The standard will give employees more say in determining whether confined work spaces need permits. Employees will also be able to observe their employers’ monitoring and testing of spaces that may need permits. OSHA has also clarified employers’ responsibilities in rescue situations, and given them more flexibility when deciding where to attach safety retrieval lines.

Effective Date:
The confined spaces rule is effective February 1, 1999.

Source: Business and Legal Reports, Madison, CT, December 4, 1998.

Here is a checklist for payroll and payroll tax administrators to use as you approach the year-end and tax season.

Reviewed holiday schedule for Thanksgiving, Christmas, New Years, Martin Luther King, and Washington/Lincoln’s Day. Enter holiday hours where applicable.

Notified employees to review W-4 status, to file a new W-5 for employees receiving advanced earned income credit, and to file a new W-4 for employees claiming exempt or claiming over 10 exemptions

Verified questionable social security numbers

Removed any non-standard 401K limits

Reviewed PTO plan rolls

Reviewed deduction/supplemental pay limits and periods

Identified last payroll(s) of the current year and first payroll(s) of the new year.

Verified earnings and deductions tax flags.

Contacted Accounts Payable requesting information regarding payments such as:

• Taxable and non-taxable moving expenses
• Personal use of company-provided automobiles
• Non-accountable business expenses
• Non-Cash Fringe Benefits
• Awards
• Taxable Educational Assistance
• Petty Cash Payments
• Adoption Assistance

Developed a schedule with Accounts Payable to receive data

Reviewed Negative Wage Report

Scheduled year-end payroll adjustment runs for recording reportable compensation. Schedule should consider tax requirements

Determined method of W-2 distribution (e.g., distribute internally for active employees and mail the remaining forms) and notified mailroom, if appropriate.

Informed mailroom where to distribute undeliverable or returned Forms W-2, (e.g., payroll, human resources, etc.)

Scheduled any quarterly or unique year-end reports.

Verified legal name and address which will print on the W-2s

Determined W-2 sort for employee and employer copies

Identified earnings or deductions codes that should be suppressed from printing on the W-2 or summarized

Determined logic for W-2 pension and deferred compensation boxes

Contact plan administrator if clarification is necessary.

Verified tax ID numbers. Follow-up on any “applied for” numbers

Reset 1999 Benefit Limits and special accumulators.

Source: ProBusiness, Palo Alto, CA, December 4, 1998. ProBusiness provides outsourced payroll processing, payroll tax and benefits administration services, as well as human resources software, to large employers within diverse industries.

Two recent decisions demonstrate that time spent by an employee primarily for an employer’s benefit must be compensated.

In the first case, five foremen of the Rich Kramer Construction Co. used company vehicles to transport workers, equipment and supplies to various work sites each day from a central shop. They were also required to load equipment and review blueprints at the shop. The company classified the foremen as commuters and did not pay them for their time in the shop or travel time. The foremen sued, alleging violations of the Fair Labor Standards Act (FLSA).

The district court and the court of appeals held that the activities were performed for the employer’s benefit. Each foreman was awarded $33,700 in back pay. Herman vs. Rich Kramer Construction Inc., 8th Cir., No. 97-4308WMS, 9/21/98.

In a similar case, 16 maintenance workers of IBP, a beef processing plant, sued IBP for violations of the FLSA. They alleged that the company’s practice of not paying them for their 30-minute meal periods, despite frequent interruptions for problems requiring immediate attention, was a violation of the FLSA.

The district court and the court of appeals held that because the maintenance workers couldn’t use meal periods for personal business and were frequently required to work during them, the meal periods must be paid. They were awarded back wages, overtime and liquidated damages. Bernard vs. IBP Inc. of Nebraska, 5th Cir., No. 97-1-955, 9/21/98.

Impact:
Employers must compensate employees for all time spent primarily for the employer’s benefit.

Source: D. Diane Hatch, Ph.D., a human resources consultant based in San Francisco, and James E. Hall, an attorney with Barlow, Kobata & Denis, based in Los Angeles and Chicago, December 18, 1998.

The Worker Adjustment and Retraining Notification Act (WARN) requires 60 days’ notice of a mass layoff or plant closing. An exception applies if an unforeseen business circumstance arises that precludes notice.

John Halkias worked on a U.S. Navy contract that General Dynamics realized as early as May 1990 would require an extra $700 million. On December 17, 1990, the Navy informed General Dynamics the contract might be terminated January 7, 1991. The company issued layoff notices on December 21, 1990, and Halkias was laid off on January 7, 1991. Halkias sued, alleging a lack of WARN notice.

The district court granted summary judgment to General Dynamics. The court of appeals affirmed and the U.S. Supreme Court denied review. Cancellation was not foreseeable because the Navy supported the program until December. To require notice, possibility of a layoff isn’t enough. Prior to December, the cancellation was possible, not probable, so the notice requirement didn’t apply. Halkias vs. General Dynamics, 137 F.3d 333 (5th Cir. 1998), cert. denied, U.S. Sup. Ct. 10/5/98.

Impact:
Employers can invoke the WARN exception when a circumstance is a possibility, but not a probability.

Source: D. Diane Hatch, Ph.D., a human resources consultant based in San Francisco, and James E. Hall, an attorney with Barlow, Kobata & Denis, based in Los Angeles and Chicago, December 18, 1998.

Recently, a municipal employer instituted height and weight guidelines for its firefighters and other public safety employees. When an employee came in overweight, he was fired. The employee sued, saying that he was disabled and the employer violated the ADA by firing him.

The appeals court (Francis v. City of Meriden, CA 2, No. 1663, 96-9610) did not rule in the employee’s favor. It said that the employer’s guidelines were non-discriminatory.

Setting guidelines related to height, weight, language, and physical ability aren’t necessarily prohibited under all circumstances. However, they must be related to the requirements of the designated position.

Source: You and the Law, National Institute of Business Management, 1750 Old Meadow Rd, Suite 302, McLean, VA 22102, November 1998. 800/543-2055. Cost: $187/year.

Recently, a woman who worked at a department store alleged that she wasn’t paid the same as two male counterparts at her company. The males were assistant product managers. She was not, but had some of the same responsibilities.

An appeals court ( Sprague v. Thorn Americas Inc., CA 10, No. 96-3021) ruled that the woman’s responsibilities were “comparable” to the mens’, but that they were not “substantially equal.”

The court in this case said that “comparable” work is much different than the “same” work with respect to equal pay.

Generally, an employer should base their pay on skill level required, effort, responsibility, and working conditions. Gender cannot be a factor.

Source: You and the Law, National Institute of Business Management, 1750 Old Meadow Rd, Suite 302, McLean, VA 22102, November 1998. 800/543-2055. Cost: $187/year.