Category: HR Administration

Posted on

Marissa Mayer, the Boss Who Has to Hire

Ed Frauenheim is on assignment.

Your new boss is hands-on. The kind of boss who wants to leave an imprint on everything, from the contingent budget to internal communications to the brand of coffee in the break room. There’s nothing the new boss isn’t touching even though it’s almost a year into the job.

Oh, and that new position you’re ready to pull the trigger on filling? Your candidate is meeting the new boss later today. Like the coffee and the contingents, it’s required that all potential hires meet the chief.

Still, it’s a slam dunk. Your choice is a perfect fit. Then why is there this nagging feeling in the pit of your stomach that you’ll be back to square one tomorrow morning?

Reuters recently posted a story updating the hiring policies that Marissa Mayer implemented at Yahoo last year. Like that new boss of yours, she signs off on all new hires.

Not surprisingly, some insiders at the company are grousing that, with her hands-on approach, perfectly good candidates are being tossed aside or they lose patience and walk because of interminable delays. From the story:

Another Google practice that Mayer has adopted at Yahoo is to personally review and sign off on every hire, which inevitably slows down recruiting.

Job applicants often go through the interview process, then “wait and wait,” said one executive who recently left Yahoo. “One person we wanted waited eight weeks, then they inevitably got another offer.”

Frustrating for sure, but who among us has gone through a series of interviews and then hired without meeting The Office El Jefe? My guess is not many. And delays? Whether it was a temporary hiring freeze, sudden budget constraints or a supervisor who kept putting off a decision, most of us have played that waiting game.

Before I was hired, I met with every publisher I ever worked for. The editors did the legwork, but then it was time to meet the boss. Some meetings were mere formalities; others were two hours of sheer torture. One publisher even asked me to lift up the lapel on my jacket to see if I was wearing a communist pin underneath. I think he was serious.

But that was his prerogative. To meet with me, I mean, not seek out my political affiliation.

Bosses should play a big role in hiring their next employee. It’s their company. And don’t tell me they’re too busy. Abe Lincoln signed off on virtually every federal hire after his inauguration. OK, it was the days of patronage and he owed a lot of favors, but still … “Let’s see, Georgia just seceded from the Union, Fort Sumter’s under siege, relations with England and France are sketchy at best … oh yeah, time to meet the guy who wants to be the pension office clerk.”

Mayer declared last year that she would be hands-on with her hiring. Despite the kvetching by some, it was no hollow promise. Not even a year into her tenure as Yahoo CEO, she’s realigned the C-suite with several big-name shakeups, named HR outsider Jacqueline Reses as her vice president of people and development, and implemented a telecommuting ban. Maybe there’s some merit to complaints about methodology but speed doesn’t appear to be an issue with her assault on the company’s personnel problems.

Mayer’s goal to be recruiter-in-chief is one more phase in a high-profile battle to save Yahoo. It’s one she appears determined to win.

Rick Bell is Workforce’s managing editor. Comment below or email editors@workforce.com. Follow Workforce on Twitter at @workforcenews.

Posted on

Exploring New Horizons: A Look at Ernst & Young’s Expatriate Program

In the increasingly globalized world of business, organizations are coming up with diverse ways to find the best employees to work in developing markets.

Ernst & Young, for example, has established its New Horizons program, geared to high-potential employees, with three to five years of experience, who work in an emerging market for three months.

One segment of the program sends American employees to Brazil, while Brazilian employees head to the United States or Canada. “This gives everyone involved diverse experiences and a chance to build their skills and global mindset,” says Troy Dickerson, director of mobility strategy and operational effectiveness.

Along with sending employees from developed countries, some companies are sending employees from that particular region, says Scott Sullivan, executive vice president of Brookfield Global Relocation Services. So someone might go from a more developed African country to a less developed one. “They may come from a background, lifestyle and culture that are closer to the realities” of the new place, he says.

Depending on the location, even basics such as the electricity supply, roads, health care and security can be issues for employees. “Everything you take for granted is just harder,” says Paula Larson, chief human resources officer for Western Union Holdings Inc., who has lived and worked around the world for a wide range of companies.

On the flip side, living in a growth market creates an opportunity for employees to showcase their abilities. They’re outside their comfort zone and have an opportunity to demonstrate what they can accomplish, Larson says. “Having experience in emerging markets makes for amazing leaders. They learn how to look at something through a different lens.”

Susan Ladika is a writer based in Tampa, Florida. Comment below or email editors@workforce.com.

Posted on

Obsessing (Compulsively) Over Reasonable Accommodations

I grew up with a guy who really liked the Presidents of the United States (the actual Presidents, not the 90s alt-rock band). He was so fond of them, in fact, that he had a complete collection of presidential figurines in his bedroom. He kept them in chronological order, in perfectly straight rows, on his dresser. And he instinctively knew if you moved one out of line. He’d swoop in and fix it almost as quickly as one could say “John Adams.”

As far as I know, this person did not have obsessive-compulsive disorder. But, what if he did, and he what if he worked for you? Would you have to accommodate this employee’s OCD, and if so, how?

The first question is the easy one to answer. Under the American with Disabilities Act’s liberal definition of disability, OCD is almost certainly a covered mental disability.

The second question, however, is trickier. If the OCD inhibits the employee’s ability to perform the essential functions or his or her job, then, yes, you have to make a reasonable accommodation, but only if you can do so in way that will enable the employee to perform those affected essential functions.

In other words, it depends. Consider these two examples:

  • In Earl v. Mervyns, Inc. (11th Cir. 2000), the plaintiff, a retail manager, claimed that his OCD prevented him from arriving to work on time in the morning. The court agreed with the employer that punctuality was an essential function of his position, and concluded that no accommodation would meet the needs of his OCD. Thus, the court deemed the plaintiff “not qualified” under the ADA and upheld the dismissal of his disability discrimination claim.
  • Yet, in Humphrey v. Memorial Hosps. Ass’n (9th Cir. 2001), the court concluded that the employer failed to consider whether either a leave of absence or telecommuting arrangement would have enabled the plaintiff, a medical records transcriber, to perform her job with her OCD.

The lesson here is not so much about accommodating OCD as an ADA-covered disability, but a broader lesson about handling any disability in the workplace. You need to have a dialogue with an employee about reasonable accommodations. Without opening the channels of communication, you will never know what is feasible. More importantly, without the dialogue, you probably have not satisfied your obligations under the ADA. As the court in Humphrey correctly pointed out:

Once an employer becomes aware of the need for accommodation, that employer has a mandatory obligation under the ADA to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations…. The interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees…. Employers, who fail to engage in the interactive process in good faith, face liability for the remedies imposed by the statute if a reasonable accommodation would have been possible….

Moreover, … the employer’s obligation to engage in the interactive process extends beyond the first attempt at accommodation and continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed. This rule fosters the framework of cooperative problem-solving contemplated by the ADA, by encouraging employers to seek to find accommodations that really work, and by avoiding the creation of a perverse incentive for employees to request the most drastic and burdensome accommodation possible out of fear that a lesser accommodation might be ineffective.

In other words, talk with the employee. You’d be surprised how many employment problems you could head off with an earnest and open conversation.

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.

Posted on

Labor Department: Employers Find It Easy to Comply With the FMLA. What?!?!

Twenty year ago today, President Clinton signed the Family and Medical Leave Act into law. To commemorate this anniversary, the Department of Labor has released the results of a survey of employers on the status of this law.

According to the Labor Department:

The study shows that employers generally find it easy to comply with the law, and misuse of the FMLA by workers is rare. The vast majority of employers, 91 percent, report that complying with the FMLA has either no noticeable effect or a positive effect on business operations such as employee absenteeism, turnover and morale.

Did I read that right? Does the Labor Department really conclude that “employers generally find it easy to comply with the” FMLA? I started practicing law in 1997; I’ve spent my entire career advising employers on the FMLA. I am not aware of any company that finds it “easy to comply with” the FMLA. In fact, most companies whom I have counseled would tell you that FMLA administration is among the most complicated of all HR functions.

Either the Labor Department found the only 1,649 employers (91 percent of the 1,812 worksites surveyed) who “find it easy to comply with” the FMLA, the Labor Department is putting some major spin on its survey results, or my read on FMLA administration is way off.

To find out for sure, I’m running my own poll, which asks the question, How difficult has it been for your company to comply with the FMLA?

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.

Posted on

HHS Gives $1.5 Billion in Grants to 11 States to Set Up Health Exchanges

The U.S. Department of Health and Human Services announced Jan. 17 that it is giving $1.5 billion in grants to 11 states to launch or further develop health insurance exchanges.

Those states are California, Delaware, Iowa, Kentucky, Massachusetts, Michigan, Minnesota, New York, North Carolina, Oregon and Vermont.

“These states are working to implement the health care law, and we continue to support them as they build new affordable insurance marketplaces,” HHS Secretary Kathleen Sebelius said in a statement. “Starting in 2014, Americans in all states will have access to quality affordable health insurance, and these grants are helping to make that a reality.”

State exchanges are a key part of the Patient Protection and Affordable Care Act. Millions of lower-income uninsured individuals, for example, will receive federal premium subsidies, starting in 2014, to buy coverage through the exchanges, while small employers also will be able to purchase coverage in exchanges for their employees.

Delaware, Iowa, Michigan, Minnesota, North Carolina, and Vermont received Level One Exchange Establishment Grants, which are one-year grants states will use to build marketplaces.

California, Kentucky, Massachusetts, New York, and Oregon received Level Two Exchange Establishment Grants. Level Two grants are multiyear awards to states to further develop their marketplaces. Massachusetts, under a 2006 law, already operates two insurance exchanges, but it will need to make certain changes to comply with the federal health care reform law.

In all, 17 states plus the District of Columbia have announced they intend to operate exchanges. Other states such as Arkansas say they will enter partnership arrangements with HHS.

The federal government will operate exchanges in states that decline to set up their own exchanges or do not enter into partnership agreements with HHS.

Jerry Geisel writes for Business Insurance, a sister publication of Workforce Management. Comment below or email editors@workforce.com.

Stay informed and connected. Get human resources news and HR features via Workforce Management’s Twitter feed or RSS feeds for mobile devices and news readers.

Posted on

When HR and Legal Worlds Collide

Quick! Between your human resource and legal advisers, which group is more likely to say, “It looks like we’re in pretty good shape. Nothing’s ever perfect, but claims are way down. We don’t have many lawsuits, and the ones we have we think we can settle reasonably— or, if need be, win. Everyone has signed off on our policies. All of our training has been completed. We could get a claim, but if we do, we should be in good shape to defend it. We can prove everyone got our policies and everyone attended our classes.”

Of the two groups, lawyers are generally more likely to see the state of the workplace landscape this way. These statements focus on legal risk, because that’s what lawyers do. What can be disconcerting is to have human resource professionals review the same facts and take a completely different position. They might say, “We have a workplace laden with risk. There are problems all over the place. This place has disaster written all over it. We’re facing a stack of challenges.”

If these two groups are looking at the same situation, which one should we believe? Whose views should govern what we do? The answer is that both may be right. What’s present here is an occupational difference in focus and perspective.

Lawyers tend to concentrate on legal risk — in many organizations, that’s the key element of their jobs. Conversely, human resource professionals look at an overlapping but different range of people issues and the impact on the workplace environment. HR professionals will examine engagement surveys, internal and external complaints, exit interviews, retention rates, safety records, and other data. They may see signs of internal turmoil, abusive leadership, or declining productivity that are all matters for concern but offer no obvious indicators of ongoing or imminent illegal acts or practices.

When looked at retrospectively, it’s rare that violations spring from out of the blue with no hint or danger signals. As an example, consider harassment resulting in sexual or racial misconduct. Long before there is a visible event that could lead to a charge or lawsuit, there might be signals: perhaps high employee turnover via resignations or transfers as vacancies emerge. Such legal hazards might not be raised by internal complaints or external charges in today’s workplaces. As jobs remain scarce, employees often choose not to speak up rather than chance overt or subtle retaliation.

The most effective way to manage all risk, legal and other, is to integrate what both legal and HR professionals advise: Look at legal risk and “non-legal” indicators that may be the bellwether for upcoming claims. This is the type of “combined” thinking and planning that best conserves organizational resources and minimizes liability. In other words, don’t be satisfied even when all is going “legally well.”

Finally, organizations work best when legal and human resource professionals work together. That’s how to prevent the legal and HR worlds from colliding. And along the way, you’ll build a more productive, engaged workplace.

Posted on

Be Careful What You Bring Upon Yourself When Suing an Ex-Employee

Last week—in Quicken Loans,Inc. (1/8/13) [pdf]—an NLRB administrative law judge invalidated the confidentiality and non-disparagement provisions in an employment agreement between Quicken Loans an an ex-mortgage banker, Lydia Garza. This decision continues the NLRB’s march towards the overly broad expansion of the definition of protected concerted activity. Molly DiBianca, at her Delaware Employment Law Blog, sums up the decision thusly:

Admittedly, the ALJ’s conclusion that an employer is not free to contract with its highly compensated professional employees that those individuals will not disparage their employer or steal its confidential and proprietary information is a bit depressing. But keep in mind the remedy, friends. Having found that the provisions violated the NLRA, the remedy ordered by the ALJ was that the provisions be revised. Or, if the employer didn’t want to go to the trouble of reprinting new agreements for all of its highly compensated brokers, it could simply provide a single-page addendum, notifying those highly paid employees that the two provisions were rescinded.

I want to focus on another business lesson from the decision—why the employee filed the case in the first place. Here’s the ALJ’s summary of the charging party’s motivation for filing the charge with the NLRB.

Garza testified that shortly after she left the Respondent’s employ, she and five other former employees of the Respondent were sued by the Respondent for an alleged violation of the no contact/no raiding and the non-compete provisions of the Agreement.

I’m fairly certain that Garza never even thought filing a challenge to her employment agreement with the NLRB until she got sued and had to hire a lawyer, who, in turn, reviewed the agreement and saw an opening.

If you are going to sue an employee, current or former, make sure you do your diligence of your own potential liabilities. If you uncover something that can come back and bite you, make sure it is a claim with which you can live. Depending on what you unearth, leaving well enough alone with your employee may be the most prudent course of action.

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.

Posted on

Employers Must See Big Picture Around ‘De Minimis’ Time

The Fair Labor Standards Act requires employers to accurately record the hours their employees work and to compensate them for each of those hours. While this mandate appears simple enough, there are several traps an employer can fall into with regard to accurately recording the time that an employee actually works.

Generally, every employer must record any part of the employee’s regular, fixed working time, however small, as hours worked. The FLSA, however, provides that in recording working time, employers may disregard insignificant periods of time outside of scheduled working hours that cannot, as a practical matter, be precisely recorded. According to the U.S. Labor Department, this exception applies only where a few seconds or minutes of work are involved and where the failure to count such time is because of considerations justified by industrial realities. The courts have dubbed this rule the “de minimis doctrine.”

Predictably, the question of what qualifies as de minimis time has been the subject of litigation. There is no general consensus among those courts that have been confronted with the issue. However, at least some courts have applied a multifactor analysis to determine whether an employee’s work is de minimis:

  • The amount of daily time spent on the additional work.
  • The practical administrative difficulty of recording the additional time.
  • The aggregate amount of compensable time.
  • The regularity of the additional work.

No one factor resolves the issue, and the future applicability of these factors is not certain since very few appellate courts have ruled on the issue. For now, however, these factors provide the only real guidance in this area, and employers should carefully consider each of them in deciding whether employee work is de minimis.

To be sure, the periods of time that will likely be considered de minimis will generally be very short. But the amount of time an employee spends on arguably de minimis work is only part of the inquiry. For example, in a 2008 case, the 2nd Circuit held that New York City’s practice of requiring its fire inspectors to safely transport certain documents during their commute to work fell under the de minimis doctrine.

The inspectors’ commute was certainly more than just a few minutes. But the court in Singh v. City of New York found that New York’s requirement did not affect the inspectors’ commute on a regular basis such that the commuting time should be compensable. In reaching its conclusion, the court addressed three of the four factors listed above.

Apart from considering the irregularity of the work, the court noted that as a practical administrative matter, it would be difficult, if not impossible, to record and monitor the additional commuting time for each inspector. The court also found that inspectors’ aggregate claims were small, generally amounting to only a few minutes a day, which was in line with the policy rationale underlying the de minimis rule.

Based on those facts, the court concluded that the additional commuting time was de minimis as a matter of law. Singh and cases like it make clear that employers should consider the four factors as a whole, in the context of their business, to determine whether an employee’s work, performed outside of the employee’s fixed schedule, qualifies as de minimis.

A related issue with respect to recording working time involves the practice of “rounding.” The Labor Department allows employers to compute the time an employee spends working by rounding to the nearest one-tenth or quarter of an hour. For example, where an employee clocks in at 8:55 a.m. for the start of a 9 a.m. shift, the employer may record that the employee clocked in at 9 a.m., without having to pay the employee for the additional five minutes of time. Similarly, if an employee clocks out at 5:05 p.m. for a shift ending at 5 p.m., the employer may record that the employee clocked out at 5 p.m., again, without having to compensate the employee for the additional working time.

However, 29 C.F.R. § 785.48(b) requires that if an employer incorporates a rounding protocol into its time-keeping systems, the system must ultimately result in compensating employees for all the time they have worked. Thus, employers must be careful to apply the rounding practice in an egalitarian manner. Over the long term, the result of the rounding practice must be that the time credited to both the employee and the employer average out.

Practically speaking, employers need to ensure that they not only round up when their employee clocks in at 8:55 a.m., but also round down when that employee clocks in at 9:05 a.m. Put another way, the employee should be credited with beginning his or her shift at 9 a.m. and paid for the five minute gap even though the employee actually clocks in a few minutes before or after the start of their shift. Under this model, which assumes that most employees occasionally clock in before or after the start of their scheduled shifts, the employee would, over time, ultimately, be compensated for all actual time worked.

Many employers will undoubtedly chafe at the idea of paying employees for a full shift when they arrive late to work. But if those employers benefit by not paying employees for time worked before their shifts then they need to extend the same benefit to their employees as well.

Jim Nicholas is a member of law firm Mintz Levin. Based in its Boston office, Nicholas practices in the firm’s employment, labor and benefits section. Comment below or email editors@workforce.com.

Posted on

12 is the Magic Number: 12 Thoughts for Your Workplace

Today is 12/12/12. The number 12 holds a lot of historical significance. There are 12 tribes of Israel, 12 months in the Gregorian calendar, 12 signs of the zodiac, 12 days of Christmas, and 12 original studio albums released by the Beatles (in the UK).

Since today won’t come around for another 100 years, I thought I’d honor its unique date with 12 thoughts to help better your workplace.

  1. Review your employee handbooks and other personnel policies (annually is preferred).
  2. If you don’t have policiesaddressingsocialmedia and the other roles technology plays in your workplace, draft one(and train your employees on them).
  3. Hold company-wide harassment training (least once every two years, if not every year).
  4. Make it a point to rid your workplace of bullies (even though there is no law against it).
  5. Even if your business is not a jurisdiction that bans sexual orientation discrimination, adopt a policy outlawing it anyway.
  6. Audit your wage and hour practices.
  7. Document all discipline and performance problems.
  8. Do not make promises to your employees that you cannot keep.
  9. Make hiring and firing decisions based on performance.
  10. Be more understanding of your employees’ family responsibilities outside of the office.
  11. Employ the golden rule — treat your employees as you would want to be treated.
  12. Have fun (but not too much fun).

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.

Posted on

Korn/Ferry to Pay $80 Million for Leadership Firm

Executive search firm Korn/Ferry International Inc. (NYSE: KFY) signed a deal to acquire leadership advisory firm PDI Ninth House for $80 million in cash at closing plus an earn-out of up to $15 million. PDI Ninth House provides leadership assessments, leadership development services, coaching, online learning for leaders and leadership strategy services.

The deal marks the second major acquisition of a leadership consulting firm for Korn/Ferry. In September, it acquired Global Novations LLC for $35 million in cash plus an earn-out of $5 million, according to a filing with the U.S. Securities and Exchange Commission. Global Novations provides diversity and leadership offerings that include consulting, training, education and e-learning.

PDI Ninth House is on track for fee revenue of between $90 million and $100 million this year and is based in Minneapolis. Korn/Ferry expects to close the acquisition by the end of the year.

“We believe the combined suite of talent management offerings, rich intellectual property and world-class people will immediately increase Korn/Ferry’s depth and scale in being the most relevant leadership organization in the world,” Korn/Ferry CEO Gary Burnison. “PDI Ninth House not only has capabilities that are a strong fit for our clients, but they share our same vision that despite all of the technological innovations of the past century, it is still great people that drive business success.”

Korn/Ferry also today posted revenue of $196.2 million in its fiscal second quarter ended Oct. 31. Revenue was down 2.0 percent from the same period last year.

Staffing Industry Analysts is a sister company of Workforce Management. Comment below or email editors@workforce.com.

Stay informed and connected. Get human resources news and HR features via Workforce Management’s Twitter feed or RSS feeds for mobile devices and news readers.