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Posted on June 29, 2007July 10, 2018

Time-Off Request Too Vague for ADA Claim

Michelle Freadman, an insurance company manager, was diagnosed with ulcerative colitis and took medical leave from her job with Metropolitan Property & Casualty Insurance Co. in Rhode Island. Freadman returned to work and was permitted to work part time. In 2000 she was assigned to a high-profile project and, although she was not asked to do so, began working long hours, including nights and weekends.

    One week before a major presentation, Freadman told her supervisor that she was working too hard and “needed to take some time off because [she was] starting not to feel well” and “some of [her] symptoms may be returning.” The supervisor asked her to take time off after the presentation. After Freadman failed to follow instructions, the project was assigned to another lower-level manager and she began working at home, at first on an authorized and then an unauthorized basis.


    Freadman sued the company under the Americans With Disabilities Act and the equivalent state law on the grounds that the company had excluded her from the client presentation. A district court granted summary judgment against the employee on all claims. The U.S. Court of Appeals for the 1st Circuit in Boston affirmed the trial court’s decision.


    While the appeals court agreed that a request for time off or to work at home may constitute a requested accommodation, Freadman failed to show that she put the company “on notice of a sufficiently direct and specific” request for her desired accommodation. The court explained that Freadman had failed to clarify that she needed time off immediately. Freadman v. Metropolitan Prop. & Cas. Ins. Co., 1st Cir., No. 06-1486 (4/18/07)


    Impact: To avoid disputes about the nature of requested accommodations, it is suggested that, when requests for time off or job reassignments are made, employers require employees to specify, in writing, the nature of the request.


Workforce Management, June 25, 2007, p. 18 —Subscribe Now!


 

Posted on June 29, 2007July 10, 2018

The Independent Contractor Question

When California Overnight, a package delivery service, decided in 2002 to stop using employees as drivers and instead hire independent contractors, some of the drivers sued. Their contention: The switch was a scheme to avoid expensive extras like overtime pay and employee business expenses.


    In a ruling that may bode well for companies using independent contractors, a California state court found in February that California Overnight, which is based in San Diego, acted properly. The court said that the company’s delivery drivers were not being misclassified as independent contractors. The decision was a victory for companies trying to reduce costs by using independent contractors in place of full-time employees.


    Robert Hulteng, an attorney in the San Francisco office of Littler Mendelson who represented California Overnight, says he has received calls from other trucking and transportation companies about the ruling and expects more widespread interest if the case should survive an appeal.


    “I think it could become a very significant case in providing guidance on what you can and can’t do in using independent contractors,” Hulteng says.


    The use of independent contractors in place of employees has been on the rise in the U.S. for years and continues to stir debate over its impact on worker protections. The California Overnight case is among a growing number of court battles around the country filed by independent contractors against companies that hire them.


    Congress has recently taken a renewed interest in the subject with the arrival of a Democratic majority. U.S. Rep. Lynn Woolsey, a California Democrat who chairs the House Subcommittee on Workforce Protections, called a hearing in March to begin an examination of the use of independent contractors. At the hearing, Woolsey described the misclassification of employees as contract workers “a national problem with implications for federal laws and our federal coffers; a problem we must solve.”


    Woolsey pointed out at the hearing that one of the biggest issues surrounding the use of independent contractors is the lack of workers’ compensation insurance and employer-sponsored health insurance. Woolsey says that in California alone, an estimated 30 percent of the state’s 800,000 employers do not carry workers’ compensation insurance. While the hearing focused on workers in the construction industry, a broad range of other industries use contract workers, including trucking and delivery services, janitorial services, manufacturing and high tech.


    Government labor statistics do not specifically track independent contractors but rather lump them in with all contingent workers, a category that includes the staffing industry and temporary help. According to a Government Accountability Office report, there were 42.6 million contingent workers in the U.S. as of 2005—almost a third of the entire workforce.


    The staffing industry, a fast-growing group of companies that provides temporary and contingent labor to other companies, is tracking developments in the contract labor field, but so far, it’s been from the sidelines. Most staffing companies hire their workers as employees rather than using them as contract labor. By serving as employers of record, those staffing firms make payroll tax deductions, carry workers’ compensation insurance and follow other rules required of employers.


    “For the vast majority of staffing firms, this is not an issue,” says Stephen Dwyer, deputy general counsel of the American Staffing Association. “My take on it is that any company contemplating classifying workers as independent contractors should consult extensively with attorneys and accountants. The ramifications can be drastic to both the company and the workers.”


    One of the largest ongoing disputes over independent contractors involves FedEx Corp., which set up a separate operating company to handle traditional ground delivery service. FedEx Ground drivers are independent contractors rather than employees of the company.


    Like California Overnight, FedEx Ground was sued in a California state court by contract drivers who claimed they operated as employees and should have received benefits as such. In 2004, drivers won the first round in that case after a California state judge ruled that they should, in fact, be treated as employees.


    FedEx has been sued by drivers in a number of other states, and the issue is far from settled. In March, lawyers for FedEx Ground contract drivers asked a federal judge in South Bend, Indiana, to combine 32 cases into a nationwide federal class-action suit against the company. If FedEx ultimately loses and its 14,000 drivers are reclassified as employees, the company could be liable for up to $1 billion in overtime, business expenses, taxes, penalties and other costs, according to estimates.


    As with other challenges to independent contractor relationships, the FedEx case revolves around how much control a company can exercise over its contractors before they must be treated as employees. FedEx Ground drivers own and maintain their own trucks and they can hire their own workers or subcontractors to help them service routes.


    But the trucks must display the FedEx colors and logos, and the company maintains dress standards and various delivery and operational standards. Drivers who have sued contend those requirements put them under direct control of FedEx Ground and thus make them employees rather than independent contractors.


    Many of the same conditions exist at California Overnight, but there are some important differences. The court decision in the California Overnight case may provide some guidance on how the independent contractor relationship will ultimately be defined.


    “The central question is, how much control must a company give up in order to have a contractor relationship?” Hulteng says. “Companies desperately need clarification on where the lines are going to be drawn. The judge [in the California Overnight case] has issued a decision that, if upheld on appeal, will be very helpful in drawing those lines.”


    California Overnight uses about 1,800 contract drivers to deliver packages around the state. Originally its drivers were employees, although they still had to own their own trucks. In 2002, the company decided to switch to independent contractors to cut costs and increase profits. Some employees kept working for the company as independent contractors, but others left and were replaced by new independent contractors.


    When a group of former and current drivers sued, they argued that the switch to contractor status was simply a ruse to avoid paying overtime and other benefits that the drivers had as employees. Drivers were doing the same work—in many cases driving the same trucks. And they were an integral part of the company’s core business.


    But the company also adopted policies under the new contractor arrangement to put some distance between management and drivers. Delivery drivers did not have to wear company uniforms (although they could earn extra money if they did). They could make pickups and deliveries for other clients if they wanted, and they could turn down assignments from California Overnight. They were free to use other people to make deliveries. How they made the deliveries and handled their routes was up to them. The fees California Overnight paid were negotiated and varied from contractor to contractor. Some contractors prospered under the system and added routes; a few actually bid so low that they lost money delivering packages.


    The lawsuit ultimately required decisions from both a jury and a judge. Both reached the same conclusion: California Overnight drivers were not being treated as employees but rather as independent contractors.


    Hulteng says that the decisions point to several important items that companies need to consider when deciding to use independent contractors for ongoing tasks:


  • The contractor must be allowed to work for other clients.


  • The contractor must be allowed the option of turning down assignments.


  • The contractor must be allowed the option of having another person do the actual work.


  • The contractor must be able to determine how the work will be carried out.


    “If I am going to contract out a particular service to an independent contractor, I probably can’t say just, ‘Joe Smith, do it,’ ” Hulteng says. “But I can say, ‘I want the end product to be a certain way.’ You can control the end result. You just can’t control how they get there.”


    While that general principle sounds simple, its application has proved tricky enough to trip up some of the nation’s largest corporations. Catherine Ruckelshaus, litigation director for the National Employment Law Center in New York, who testified before the House subcommittee, noted that one of the problems is that there can be differences from state to state.


    “You could be found to be an independent contractor in one state and not in another,” Ruckelshaus says. “It can get a little bit confusing. Even within the same company they can have different regional practices.”


    As a result, companies that seek to use independent contractors find they have to hire accounting, tax and legal experts to help set up and run contractor relationships.


    For example, Albany, a global contingent workforce consultancy based in London with U.S. headquarters in Fort Lauderdale, Florida, offers a compliance service to help companies meet federal and state rules for using independent contractors. Albany says that on average, 62 percent of workers classified as independent contractors are actually employees.


    Albany’s Web site features a “compliance calculator” to give companies an idea of how much they might owe if their independent contractors are determined to be employees. Plug in the number of contractors, the average annual payment to each one, and the estimated number who may not be in compliance and the calculator spits out an estimate of how much the company might owe in taxes, penalties and other assessments.


    Jason Posel, Albany’s senior vice president in the U.S., says his firm advises companies to take a very cautious approach when using or considering independent contractors. “The trend we are seeing is that IRS is taking a closer look at this, and employees and workers know more about their rights,” Posel says. “It is important to take a conservative approach.”

Posted on June 29, 2007July 10, 2018

Opening Up the Books to Win Workers Trust

Yarde Metals has a lot of perks. The metal processor and distributor’s 665 employees can catch a little shut-eye in the company’s nap room, keep their dogs in the on-site kennel or work out in the 3,000-square-foot gym.


    But those are just niceties, says Craig Yarde, the company’s founder and former president and CEO. “The real issue is how we treat people,” he says. “That’s what defines us and that’s what I hope we are known for.”


    While regulators and activists are busy pressuring corporations to open their books to the public, Southington, Connecticut-based Yarde, which was privately held until last year, has been opening up its books to employees since 1996.


    Every month, employees can watch a 20-minute DVD featuring executives and employees detailing the company’s financial status.


    And since 1996, Yarde has distributed one-third of the company’s profits to associates through its “open book management” compensation program.


    On top of that, employees can also receive annual bonuses depending on how well the company does. The two plans make up 30 percent to 55 percent of employees’ base pay.


    Companies can train managers to be kinder and more open to employees, but only those organizations that are transparent and share their profits with employees will truly gain their trust, says Dan Purushotham, an assistant professor at Central Connecticut University.


    “Opening up the books is the greatest evidence of trust,” he says.


    Yarde decided to move to this open-book management style in 1996 after realizing that most employees had no clue how much the company made in annual profits. That year had been difficult financially. Yarde’s sales were up, but the company was growing too quickly and thus didn’t generate a profit. As a result, Yarde employees, who were accustomed to receiving some type of annual bonus, didn’t get anything.


    “Everyone was upset because they thought the company was holding back,” Yarde says.


    So Yarde went out on the floor and started asking associates how much they thought the company made in profits after taxes. “The range [of answers] went up to 50 percent, whereas the reality was more like 2 to 8 percent,” he says. “That’s when I said, ‘If they think we make that much money, we might as well open up the books.’ “


    Since then, the company has been profitable every year except for 2001, when the economy dipped, Yarde says. And employee performance during that difficult year is the key metric he uses to know his open-book management approach works, he says.


    During the first half of 2001, Yarde Metals laid off some workers and cut back on its medical benefits and 401(k) match.


    “We communicated with employees that if we didn’t make a gross profit of 1.85 percent, we would default on our loan with the bank,” Yarde says.


    The company ended up hitting its numbers, and by 2002 it was able to reinstate its 401(k) match and health care benefits.


    “It was the worst year the company ever had, but everyone went beyond the call of duty to show those numbers,” Yarde says.


    Today, the company is publicly owned, and Yarde’s daughter, Tracy Yarde Smith, is president and is maintaining the culture.


    “It just makes sense,” Yarde says. “If you treat people right, you will get the most out of them.”


Workforce Management, June 25, 2007, p. 45 — Subscribe Now!

Posted on June 29, 2007July 10, 2018

Kindness Pays Or Does It

Rocky Flats, Colorado, wasn’t a place people wanted to work at in 1995. But an engineering firm’s successful project there is being cited as evidence that a corporate culture rooted in kindness and positive feedback can make companies winners in the cutthroat world of business.


    Even before deadly levels of radiation at Rocky Flats prompted an FBI raid and its shutdown in the early 1990s, the former Cold War-era nuclear weapons production facility was the target of union strikes, fierce anti-nuclear protests and intense media scrutiny. Closing Rocky Flats Plant, a multi-building, 3 million-square-foot facility atop a wind-swept plateau 20 miles west of Denver, turned out to be the easy part. The cleanup was quite another matter.


    The Department of Energy estimated it would take 70 years and cost $36 billion to clean up Rocky Flats, originally built in the early 1950s to manufacture hydrogen bombs. But a relative newcomer, Denver-based engineering and construction firm Kaiser-Hill, not only met the Energy Department’s estimates, it beat them by 60 years and came in $30 billion under budget.


    The company finished its work in 2005. It turned over the Rocky Flats site, which now is largely a wildlife refuge, to the federal Interior and Energy departments. Since completing the project, Kaiser-Hill has won three other Department of Energy contracts and is a major player among nuclear cleanup companies, says Bud Ahearn, senior vice president of CH2MHILL, Kaiser-Hill’s parent company.


    Company executives attribute their success to a corporate culture based on using positive strategies to motivate employees and then rewarding and celebrating their victories. Since 1999, CH2MHILL has spent more than $5 million to put 700 senior managers though a University of Michigan training program that focuses on a philosophy called “positive organizational scholarship,” which is based on the idea that by using positive communication, companies can demonstrate superior performance. The company, which puts 120 executives through the program each year, estimates its annual overall training budget is more than $20 million.


    CH2MHILL is one of a number of organizations that are spending training dollars on teaching managers to be kinder and more positive.


    “Companies are realizing that culture is as important as strategy and that they can’t just look at the short term anymore,” says Barbara Bilodeau, director of market research and analysis at Boston-based Bain & Co.


    Nine out of 10 executives believe that corporate culture is important today as a strategy for business success, according to a recent Bain survey. In the United States, employees rank “senior management interest in employee well-being” as the top driver for employee engagement, according to Towers Perrin.


    And companies that have focused on creating a positive corporate culture seem to have better financial performance than those that don’t, according to the San Francisco-based Great Places to Work Institute.


    When looking at stock performance from 1998 to 2006, the 100 companies on Fortune’s Best Places to Work list have outperformed the Standard & Poor’s 500 by more than 8 percentage points, according to data collected by the Great Places to Work Institute.


    “Over time there is a cumulative effect that says the 100 Best Places to Work are better financial performers than others,” institute co-founder Amy Lyman says. “All of these companies have established trust, which is the glue that helps employees work well with each other.”


    Yet skeptics are wary of the notion that creating a kinder corporate culture results in a more engaged workforce.


    “I think that you can have an engaged workforce without applying people-friendly processes,” says Bob Eichinger, CEO of Lominger International, a Minneapolis-based subsidiary of Korn/Ferry that specializes in leadership development.


    Focusing too much on kindness can result in companies with satisfied employees who aren’t engaged, he says, noting that one-third of a company’s workforce are typically low-maintenance employees who don’t look for social support in their work environment.


    “They just want to do their jobs and are motivated more by exciting opportunities than bosses who care about them,” he says.


    Even if creating a kinder workplace results in a more engaged workforce, it’s debatable whether that will create better business performance, says Phil Rosenzweig, a professor at IMD Business School in Lausanne, Switzerland, and author of The Halo Effect.


    “I’m not going to say that it’s not important to create a positive workplace and try to engage workers,” he says. “But it’s not a given that companies with an engaged workforce perform better than those that don’t. It could be argued that high-performing companies have a more engaged workforce because they are high-performing.”


    Disciples of positive organizational scholarship admit that they can’t draw a direct line from their business results back to the cultures they have created, but they still believe it’s worth the investment.


    CH2MHILL says its positive culture has allowed it to grow into the international firm it is today—with 19,000 employees, up from 10,500 in 2001, and 2006 revenue of $4.5 billion, compared with $2.3 billion in 2001. Executives say employee surveys back up the theory that company culture has been the driver of its growth.”Our employees say the top motivator to work is the challenging nature of what we do,” Ahearn says. “But the second reason they come to work is the respectful nature of the workforce. Money comes third.”


    Voluntary turnover is 9 percent, about two percentage points lower than the average of firms in Fortune’s 100 Best Companies to Work For, according to the firm.


    “It’s one of those things that is so much a part of us that it’s impossible to measure,” says Jim Downey, corporate director of learning and organizational development. “It’s more of question of, if we took this away, what kind of company would we be?”


Overcoming mistrust
    CH2MHILL executives were clear about the challenges they faced at Rocky Flats when they won the contract. On top of the dangerous nature of the work, there was a huge sense of mistrust among the 5,000 members of the Rocky Flats workforce, says Jerry Long, who started at Rocky Flats in 1998 and became manager of engineering safety, health and quality in 2000.


    Previous contractors at the site had operated in a “command and control” style, he says. “It would have been rare for hourly employees to feel that they could go to the company president about an issue.”


    And the employees were essentially working themselves out of a job. Many of them had worked at the site for years, but when the cleanup was done, it would be closed, says CH2MHILL spokesman John Corsi.


    Despite the challenges, CH2MHILL kept the workers instead of replacing them with its own people. It was a gesture of good faith, Corsi says.


    The company, however, replaced much of Rocky Flats’ senior management and some middle management to instill a new culture.



The company opted to have executives work on the project floor with employees. “It was a way of showing that we valued our workforce and were willing to get dirty with them.”
–John Corsi, spokesman, CH2MHILL

    At first, many of the changes at Rocky Flats were symbolic. The weekend after the company signed the contract for the site, it demolished a Cold War-era guard shack that employees had to pass to get to work.


    The company also tore down a building of executive offices, dubbed “mahogany row,” in the middle of the site. Executives then worked on the project floor with the employees, Corsi says.


    “It was a way of showing that we valued our workforce and were willing to get dirty with them,” he says.


    To reinforce the new culture, CH2MHILL implemented an incentive program. Both hourly and salaried employees could receive a mix of cash bonuses and units similar to performance-based stock if the project met specific goals and deadlines.


    The company set an internal stretch goal of finishing the cleanup by December 2005, even though the renewal contract, which the company signed with the Department of Energy in 2000, called for a December 2006 closing.


    “We finished in October 2005, which meant everyone got some incentive pay,” Corsi says. The company paid out more than $100 million, or 20 percent of the fee it received for the cleanup, in employee incentives.


    Within weeks of the new program being launched, there was more brainstorming between workers and managers, Long says.


    Because managers were listening to their ideas, workers started innovating on their own, Corsi says. Gary Clark, a steelworker, noticed it was taking too long for workers to take off the heavy lead gloves they used to handle plutonium. Workers would stick their hands in the gloves through holes in a large steel container called a glove box to protect themselves during the work, but taking off the gloves was difficult and they often would tear if they were removed too quickly.


    One weekend, Clark designed a new tool that would do it faster, Corsi says. Workers went from removing six gloves an hour to 27. “That guy received a bonus check on the spot,” Corsi says.


    Teams also held parties to celebrate small project wins, a key point in creating a positive culture, executives say.


    “We would have barbecues or bagel parties—something we still do today on other projects,” says Long, who is now vice president of waste feed operations at the Hanford nuclear cleanup site in Washington state. “It’s not about the food; it’s about breaking bread with the workers and showing them you care.”


Institutionalizing kindness
    In 1999, CH2MHILL realized that it didn’t have the leadership capacity to sustain the level of growth it was shooting for, Ahearn says. The company went on a search for a leadership development program that would take into account the corporate values it recognized as the core of its success, he says.


    The company found what it was looking for with the Center for Positive Organizational Scholarship at the University of Michigan’s Ross School of Business.


    “Their approach of embracing the desire to not only be the best in the world but the best for the world really spoke to the core of our culture,” Ahearn says.


    In December 2000, CH2MHILL began putting its most senior leaders though a nine-month leadership course there.



“Their approach of embracing the desire to not only be the best in the world but the best for the world really spoke to the core of our culture.”
 –Bud Ahearn, senior VP, CH2MHILL,
on the positive organizational scholarship method

    The course begins with a four-day program at the university, where CH2MHILL chief executive Ralph Peterson talks about the company’s strategy and culture.


    “You really get how important positive organizational scholarship is to the company when the CEO shows up and talks for four or five hours about it,” says Long, who recently attended the course.


    During the next few days, instructors—along with the company’s senior executives—teach courses incorporating the company’s strategy with key positive organizational scholarship, or POS, principles.


    The 50 students are given the results of a 360 review completed earlier. But unlike other 360 reviews, these assessments focus more on the positive traits of the employee rather than on the negative, says Kim Cameron, who is one of the founding professors of positive organizational scholarship and helps run the course.


    “For the reviews, we ask people who know the employees to discuss a time when that employee performed exceptionally well,” Cameron says. “Then we can develop a program based on how that employee can capitalize on what they do well.”


    At the end of the four-day course, participants get an assignment to complete an action learning project. “They have to do something significant that will take them out of their leadership comfort zone and apply some of the learning to an action that will help the enterprise,” CH2MHILL’s Downey says.


    The student is assisted by a sponsor and the relevant business group leader and has approximately eight months to complete the project.


    Another company that has made positive organizational scholarship a focus of its leadership development program is Grand Rapids, Michigan-based supermarket chain Meijer, which operates 180 stores with 60,000 employees throughout the Midwest.


    For Meijer, creating a kinder corporate culture is part of the key to developing talent in an industry where growth is paramount and retention is extremely difficult, says David Beach, vice president of workforce planning and development.


    Turnover in the retail industry tends to be high, and for Meijer, a family-owned chain going up against the likes of Wal-Mart, retaining talent is a key differentiator, he says.


    “We realized that we need our company to be a place where people want to work,” Beach says.


    Meijer has added a five-day course on positive organizational scholarship to its leadership program, which includes five other leadership seminars.


    So far, nine of the company’s 27 vice presidents have gone through the program and Meijer expects all 27 to complete it by the end of 2008.


    Like CH2MHILL, Meijer can’t say that its focus on creating kinder leaders has resulted in better financial performance. But turnover is below industry average and 70 percent of promotions are internal, Beach says.


    “I can’t say that by following this idea we are moving the needle on business performance. But I don’t know how you could argue that creating a positive culture doesn’t move the needle and just create a better work environment,” says Dan Shaheen, vice president of flagship stores, who has taken the courses.


Challenges
    Because of a lack of metrics and short-term results, organizations often have trouble getting results-based managers to devote time to creating a positive culture, observers say.


    “It can be difficult to get managers who are very focused on getting their jobs done to see the value in stopping and taking a few minutes to talk to employees when they walk into their offices just to chat,” says Kevin Cashman, president and CEO of LeaderSource, a Minneapolis-based leadership consultancy and subsidiary of Korn/Ferry.



To compete with the likes of Wal-Mart, retaining talent is vital. “We realized that we need our company to be a place where people want to work.”
–David Beach, VP of workforce planning and development, Meijer

    Shaheen admits that this was a challenge for him in the beginning. One of the basics that Shaheen learned when he attended the University of Michigan’s course on positive organizational scholarship was how to use personal management interviews as a tool to engage employees.


    “It was about the need to sit down with your immediate staff one-on-one to catch up with them and set expectations and move on,” he says. “The course said it would save me time, but I was skeptical.”


    Shaheen was accustomed to holding weekly staff meetings with his five direct reports and wasn’t convinced that meeting with each one individually would save time.


    But in the end, Shaheen found that he and his team accomplished more in the individual meetings than they did in the staff meetings. “It causes people to think about what they are going to talk about with you, and so there are less tangents and interruptions,” he says. “And the staff really values that face time.”


    Without hard metrics, however, many experts are skeptical that a rush of companies will embrace the notion of spending money on developing a positive and kinder organization.


    “These positive workplace models pop up whenever the economy starts to tank,” says Peter Cappelli, professor of management at the University of Pennsylvania’s Wharton School of Business. “But then the labor market improves and it turns around. No one is worrying about the long term.”


    A number of companies that don’t subscribe to this philosophy do very well, observers say. “Jack Welch is not necessarily a nice person, but people want to work for him,” Eichinger says. People want to work at companies like General Electric or a high-stress Wall Street firm because they have a challenging environment with vision, not because they’re are necessarily kind folks, he says.


    Executives at CH2MHILL, however, say they are in it for the long term. The company just held its 22nd course in positive organizational scholarship and recently added a program for new senior hires.


    “The fact is that this has been our culture for 60 years. But positive organizational scholarship just helps us to understand it,” Ahearn says. “It’s impossible to make a direct tie between it and business performance, but when it’s happening, we feel it.” wƒm


Workforce Management, June 25, 2007, p. 40-49 — Subscribe Now!

Posted on June 29, 2007July 10, 2018

Undocumented Workers Can Sue for Unpaid Wages

Cesar Martinez Corral, an undocumented worker illegally employed in Kansas, filed a claim with the Kansas Department of Labor to collect unpaid wages earned from his job with Coma Corp. The agency awarded Corral the full amount he was owed, plus interest, and a civil penalty imposed by the Kansas Wage Payment Act in an amount equal to the unpaid wages.

   A Kansas district court reversed the Labor Department’s award, in part holding that although the state’s Wage Payment Act applies to undocumented workers, he was only entitled to the applicable minimum wage because the employment contract was illegal because of his undocumented status.


   In reversing the district court’s holding, the Kansas Supreme Court rejected the employer’s argument that, because Corral was undocumented, federal immigration law pre-empts state law claims for unpaid wages. The court concluded that federal immigration policy is furthered by enforcement of the state wage law because it eliminates an incentive for hiring illegal workers if employers know they must pay them properly.


   The court also concluded that the worker was entitled to an award of wages in accordance with the oral employment contract and that he was entitled to the civil penalty. The court held that the state’s policy of protecting wages and wage earners would be directly contravened by denying or diluting an action for wages earned but not paid on the grounds that such employment contracts are illegal. The court recognized that the Kansas Wage Payment Act is “plain and unambiguous” and does not carve out any “illegal alien” exception. Coma Corp. v. Kansas Dep’t of Labor, Kan., No. 95,537 (3/23/07).


    Impact: Employers are advised that state wage/hour laws may not be pre-empted by federal immigration law. Employers who hire illegal workers may be liable to those illegal workers under applicable state wage laws in the same way as to legal workers.


Workforce Management, June 25, 2007, p. 18 —Subscribe Now!

Posted on June 29, 2007July 10, 2018

Dear Workforce How Do We Determine Which Employees Are Best Suited for Expatriate Assignments

Dear Before We Send Them:



Yours is a great question, and one that is becoming increasingly relevant with the steady increase in globalization we are currently experiencing. I am happy to say that there has been a good bit of research to demonstrate the effectiveness of using assessments to determine an individual’s propensity for success in long-term overseas assignments.

It is important to open by saying that this research has clearly shown the No. 1 reason for failure in such assignments is the inability of spouses or other family members to adapt to the new environment. This is often brought on by the fact that it is hard for the trailing spouse to find meaningful work during the assignment. For this reason, one of the very first things I recommend is to have a candidate’s spouse and family go through an education and evaluation session to be sure they are up for the task. Part of this may also involve helping provide the spouse with career-development assistance and a liaison in the host country.

Besides family issues, there has been a good deal of research that has shown the importance of several other factors. Chief among these is previous overseas experience. It goes without saying that those who have successfully completed and enjoyed a previous assignment will be more likely to have what it takes to complete similar assignments. That is, provided that the individual also possesses the interest and motivation to take on the assignment.

Beyond family, experience and motivation, research has also shown the value of assessing certain key personality “constructs” that have been shown to be related to one’s ability to adapt to a foreign assignment. In the past, many companies selected workers for expatriate assignments based solely on their technical skills. This has proved to be problematic because technical aptitude alone has almost no bearing on the ability of an individual to adapt to life in a foreign culture. When asking someone to perform within a foreign environment, it is critical to attend to some additional factors. Failure to assess these things as part of the selection process can prove quite costly, as failed expatriate assignments can carry substantial economic consequences.

Research has shown that evaluation of an individual, in terms of their propensity to succeed on an expatriate assignment, should account for several dimensions. Although a full explanation of these things is beyond the scope of this article, included below is a brief explanation of these findings.

These individual skills have been categorized into three dimensions by experts Mark Mendenhall and Gary Oddou: the self dimension, which includes skills that enable expatriates to maintain mental health and psychological well-being; the relationship dimension, which includes skills for fostering relationships with foreign nationals; and the perception dimension, which refers to an expatriate’s ability to perceive and evaluate the environment. The literature also emphasizes the importance of factoring in the “cultural toughness” of the host country: namely, how different that country is from the expatriate’s home country.

A wide range of tests are available for assessing individual characteristics that are known predictors of success. In general, these tests measure things such as:

  • Expectations
  • Open-mindedness
  • Respect for the beliefs of others
  • Trust
  • Flexibility
  • Tolerance for discomfort
  • Social adaptability
  • Initiative
  • Risk taking

My advice is to look for an organization that has created and validated an assessment that covers these or similar dimensions. Discuss with them how well their assessment might work in your situation. You should look for them to provide evidence that this assessment has been properly constructed and has a good track record. There are a number of firms that I feel can definitely help you out. Good luck.

SOURCE: Charles A. Handler Ph.D., PHR, Rocket-Hire, New Orleans, July 10, 2006.

LEARN MORE: Please read a list of tips on how to minimize expatriate turnover. Also notable: What to know when sending nonexempt employees overseas.

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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Posted on June 27, 2007July 10, 2018

Unions Question Private Equity Firm Buyouts

While many of Wall Street’s most powerful executives convened at a conference inside the New York Stock Exchange, labor organizers on the street outside voiced their concerns about the implications of these deals on the workforce and on American families.


Braving 93-degree heat today, June 27, officials from the Service Employees International Union and the Working Families Party held a news conference on Wall Street to kick off a yearlong campaign addressing their concerns about private equity buyouts.


Inside the New York Stock Exchange,  The Wall Street Journal was hosting a conference on “Deals & Dealmakers.” Speakers included Lloyd Blankfein, the chairman and CEO of Goldman Sachs, and Carl Icahn, a longtime player in the private equity world.


“While they are talking about the future of the industry, we are talking about how this is affecting working families throughout the country,” said Dan Cantor, executive director of the Working Families Party, a New York-based labor party, in an interview before the press conference.


During the press conference, Cantor and Stephen Lerner, assistant to SEIU president Andy Stern, announced the launch of the yearlong Private Equity Accountability Campaign, during which the union and labor party will target specific private equity firms with protests and demonstrations.


On June 28, in Chicago, the groups plan to hold a prayer vigil outside a shareholder vote on Clayton, Dubilier & Rice’s buyout of ServiceMaster, a Memphis, Tennessee-based home-services provider.


“ServiceMaster uses toxic chemicals,” Lerner said in the press conference. “We are calling on them to become a truly green company.”


A spokeswoman for ServiceMaster was unavailable for comment.


The next stop on the campaign will be Times Square in New York, where on July 18, the groups will hold a tour of the various businesses now owned by private equity.


“From Dunkin’ Donuts to AMC Theatres to Madame Tussaud’s—these are all owned by private equity,” Cantor says.


Other targets of the campaign will be Bain Capital, a Boston-based venture capital firm, and Bank of America and JPMorgan Chase, which are leading a private equity takeover of Sallie Mae, the student loan provider.


The goal of the campaign is to pressure private equity firms to make their intentions more public and to work with labor to ensure that workers don’t lose their pensions and their jobs, Lerner said.


“These takeovers are not just happening with distressed manufacturers, they are also happening in other parts of the economy,” Lerner said in an interview.


Last month, the SEIU published a paper, “Behind the Buyouts,” which details how private equity deals have cost workers their benefits and jobs.


Lerner realizes it’s going to take more than a few union protests to get private equity firms to address the group’s concerns.


Ultimately, the groups hope to persuade Congress to pass legislation that will force private equity firms to be more public with their transactions.


“This is going to take some time,” Lerner said at the press conference. “We believe legislation will be necessary.”


—Jessica Marquez


For a related story, please see: “Union Takes Aim at Equity Buyouts”


 


Posted on June 27, 2007July 10, 2018

More Pension Plans Look at Governance, Study Says


Many multinational companies are scrutinizing global investment policies and risk management strategies related to their retirement plans, according to a new Watson Wyatt Worldwide survey.


About 78 percent of companies surveyed reported that the efficient governance of worldwide pension plans is a major issue. Roughly 53 percent have reviewed their global governance procedures in the last three years, and of those, 83 percent changed their procedures as a result, the survey found. Concern over regulatory risk was the reason for the change 69 percent of the time.

Several multinational companies also reported that the consistency of their global pension strategies was an issue. Roughly 31 percent of respondents are considering moving toward a more consistent global investment policy for retirement plans, and 9 percent plan to implement a consistent global risk management policy during the next three years.

The study included data collected in the fall of 2006 from 101 multinational companies with pension plans in several countries.


Filed by Pensions & Investments, a sister publication of Workforce Management. To comment, e-mail editors@workforce.com.

Posted on June 26, 2007July 10, 2018

Should You Use Credit Reports on Applicants and Employees

A class-action lawsuit was recently filed against RadioShack alleging that the company’s practice of using credit information in hiring decisions discriminated against minorities. The lawsuit specifically asserts that the practice of using such credit information, while neutral on its face, has a disparate impact on African Americans and Hispanics, resulting in individuals from those minority groups being denied employment more frequently than non-minority applicants.


    In the employment context, the Federal Fair Credit Reporting Act allows employers to use consumer reports for “employment purposes,” which include employment, promotion, reassignment or retention as an employee. But an employer does so at its own risk, which can be substantial.


    If an employer wants to utilize a consumer report in making employment decisions, it must strictly adhere to the following FCRA procedures:


  • Clearly and conspicuously disclose in writing that a consumer report may be obtained, and the purpose for which the information will be used.


  • Obtain written authorization from the individual before obtaining the report.


  • Certify that the required disclosure has been made to the applicant or employee, that the information will not be utilized in violation of state or federal EEO laws, and that a copy of the report and summary of rights will be provided if an adverse decision is based on the report.


    While a person may refuse to release his or her credit report, courts have made it clear that an employer is permitted under the Fair Credit Reporting Act to take adverse action against an employee or applicant who refuses to sign an authorization for an employer to obtain a report. (The act “does not prohibit an employer from taking adverse action against an employee or applicant who refuses to authorize the employer to procure a consumer report.”)


    One court noted: “It is clear that Congress desired to give employers the right to obtain consumer reports on their employees, since that information might bear on their qualifications for employment. Congress recognized a legitimate need on the part of employers to review their employees’ credit standing, as well as their character and general reputation.”


    The court held that it would be inconsistent with the intent of the law to allow applicants to be able to refuse an employer’s request for authorization and still maintain eligibility for hiring consideration. Therefore, while an employer may not obtain a consumer credit report on a job candidate without having a properly executed authorization, the employer may require the authorization to be executed as a condition of employment.


    If, after receiving the report, the applicant or employee is subjected to an adverse decision or action (such as a refusal to hire or promote, a demotion, or an employment termination) that is in any way based on the report (in whole or in part), the employer must provide the employee or applicant with:


  • The name, address and toll-free telephone number of the agency from which it received the report.


  • Assurance that the agency itself did not make the adverse decision.


  • Confirmation that a copy of the consumer credit report relied upon can be obtained from the agency free of charge during the next 60 days.


  • An explanation of the right to dispute the completeness or accuracy of the information contained in the report.


  • Failure to comply with any of the provisions of the Fair Credit Reporting Act can lead to litigation and awards for damages, including punitive damages and reasonable attorneys’ fees.


    While these requirements presumably provide restrictions on the proper use of consumer credit reports by employers and allow employees or applicants an opportunity to respond or correct inaccurate or misleading information contained in the credit reports, it is interesting to note that once the adverse action is taken, there is no legal obligation on the part of the employer to reverse the decision if the employee or applicant ultimately establishes the information relied upon in the report was inaccurate.


    Despite the rather burdensome procedural aspects of using consumer credit reports in employment decisions, employers often continue to rely on them because of the belief that people with good credit make good employees. Specifically, employers believe that employees with good credit histories are less likely to steal or commit other crimes and are more responsible.


    Credit reports can reveal bankruptcies, late payments, overdrawn credit and debt collection activity. Such information may be evidence of the suitability of an applicant for positions that deal with cash, corporate finance or sensitive client information. It is reasonable to expect employees who handle large funds, such as payroll, to have backgrounds free of criminal activity or debt or credit issues that may motivate theft.


    However, the real danger of relying too heavily on information contained in such reports comes in the form of discrimination claims like the RadioShack complaint noted above. In such cases, the plaintiff generally alleges that the employer’s reliance on credit reports for hiring or promoting individuals has a disparate impact on minorities in violation of Title VII of the Civil Rights Act of 1964.


    In its Guide to Pre-employment Inquiries, the EEOC has previously stated that rejecting applicants based on credit records has a disparate impact on minority groups because such groups tend to be poorer and have more credit difficulties than non-minority groups. The EEOC therefore advised employers that relying on credit reports to make employment decisions is unlawful unless the employer can demonstrate business necessity. Business necessity means tying it to the particular duties of the job in question.


    In the pivotal case of Griggs v. Duke Power and Light, the U.S. Supreme Court found that the employer’s practice of requiring a high school diploma and successful scores on two aptitude tests for all applicants except those in the lowest-paying jobs was unlawful. The court found that the requirements operated to disqualify minority applicants at a substantially higher rate than non-minority applicants and were not related to successful job performance and therefore violated Title VII. As a result, employers are cautioned to use mechanical testing and measuring devices (such as credit scores) only if they can demonstrate a “reasonable measure of job performance.”


    So while there are many valid reasons for employers to request and review credit reports of current and prospective employees—most importantly where the employees will hold positions of financial responsibility—these benefits must be weighed against not only the limitations imposed by the Fair Credit Reporting Act but also the risks of being accused of utilizing screening methods that have a disparate impact on minorities. Employers should not require credit reports for all applicants or employees, but limit requests to those positions where it has been demonstrated that an employee’s credit history has a meaningful relationship to job performance.

Posted on June 26, 2007July 10, 2018

Job Boards Eye Big Pool of Small Business

Monster’s Talent Management Suite is a powerful tool. The software allows executives to manage a broad range of complex HR activities—applicant tracking, onboarding, employee development, performance management and salary analysis—from a convenient, centralized command system.


    What’s turning heads, however, isn’t so much the platform’s functionality, but the price tag. Subscription fees range from $5,000 to $10,000—a bargain, considering employers generally spend $100,000 to $200,000 to get this type of sophisticated system from an assortment of vendors, says Mike Madden, senior vice president of product at Monster.


    The affordability of Monster’s Talent Management Suite is no discount-bin special or a gaffe by the billing department. It’s part of a broader, calculated strategy to go after smaller employers. The so-called Big Three job boards—Monster Worldwide, CareerBuilder and Yahoo HotJobs—are rolling out lucrative products at affordable prices for companies with workforces of 1,000 to 5,000 people.


    The shift is a drastic departure from the time when big, high-profile clients got the VIP treatment and smaller employers were largely ignored, no matter what the corporate rhetoric.


    Pursuing small and medium-size companies makes sense, since many employers in the limited pool of Fortune 1,000 companies are already locked into deals with job boards. The largely untapped small and medium-size markets could provide billions of dollars in new revenue, job board executives say.


    With stakes so high, job boards are aggressively developing targeted products and pricing structures that cater to the needs of smaller clients. The industry is also encouraged with this strategy as it has proved to be highly successful for other HR technology vendors, such as applicant tracking system companies.


    Industry experts say this strategy brings together the best of both worlds, generating economic growth for job boards while putting cutting-edge technology and recruiting tactics into the hands of smaller employers.


Establishing a foundation
   Strategic workforce management practices, such as employment branding and marketing, are often foreign concepts to small and medium-size employers, which is why job boards are going to great lengths to educate this segment of the market.


    “Our sales process is practically a consultancy service,” says Dave Dalton, director of business-to-business marketing at HotJobs. “We often have to explain basic recruitment methods that are second nature for big corporations but uncharted waters for small employers.”


    The success of Yahoo Media, one of HotJobs’ most recent launches, hinges largely on the job board’s ability to educate its clients. Not only must HotJobs describe the product’s capabilities, it also must provide a framework explaining the product’s usefulness. Yahoo Media enables clients to post branded banner advertisements on various Yahoo Web sites, which attract niche audiences through interest-specific online content.


    In the case of large companies with savvy HR executives, little hand-holding would be required because they recognize the inherent value of targeted recruiting. The opposite, however, holds true for smaller employers that generally aren’t familiar with sophisticated recruiting practices and don’t realize that reaching niche audiences can yield successful results. Consequently, HotJobs has to go the extra mile in explaining the product, Dalton notes.


    “Small and medium-size employers in the trucking industry are not only made aware that they can post ads onto Yahoo’s NASCAR site,” he says. “We arm them with additional knowledge by emphasizing that some 80 percent of truckers are fans of NASCAR and could potentially be drawn to this type of Web site content, which can then enable companies to target qualified talent more effectively.”


    CareerBuilder also is chasing smaller clients, betting heavily on the largely untapped market and using training and development as a strategic cornerstone. The underlying philosophy is to expose potential clients to sophisticated talent management approaches in hopes of brokering new deals, says Jason Ferrara, director of corporate marketing for the Chicago-based job board.


    Two years ago, CareerBuilder created a specific marketing group—dubbed the Small Business Unit—to offer clients guidance on what it considers to be best practices in recruiting tactics. Employers are coached on everything from developing a corporate brand to writing job postings that are clear and enticing.


    They are taught to emphasize key attributes about their unique environment—a move intended to make them as appealing as large employers with recognizable brands.


    “Small businesses have a lot to offer employees,” Ferrara says. “Our job is to help them highlight these characteristics so they can have a shot at competing with big-name corporations.”


    Some of the attributes mentioned in the descriptions could include a small company’s ability to offer more hands-on responsibilities to employees, deeper participation in the community and a more flexible work-life balance.


Tailored offerings
   
Education is just one of the many tactics job boards are using to attract smaller clients. There’s also a trend toward generating products and services that are priced more affordably and sold in smaller bundles that are easier to deploy.


    It came as little surprise when Monster announced last year that it would eliminate the traditional per-application pricing structure on its Monster Performance Assessment tool and offer one with a more affordable pricing model. The applicant screening program, which once cost thousands of dollars, can be bundled in smaller service packages that start around $100.


    “Small companies can now get their hands on sophisticated automated tools that make their life easier,” Madden says. Monster believes the performance assessment tool will be particularly useful for smaller clients, which are generally short-staffed and don’t have the resources to sift through heaps of résumés in search of suitable candidates. The software picks the candidates that best match the requirements for the position.


    “The assessment tool does the prioritizing for the companies,” Madden says. “All they have to do is select their favorites from the narrowed list.”


    Monster has stiff competition when it comes to courting small clients. This segment of the market has become so strategic for HotJobs that the company takes their needs into consideration once the new products and services are conceptualized.


    “They are not afterthoughts,” Dalton says. “Our goal is not to create a product and then trickle it downstream, but to develop something that from its inception serves all of our clients.”


    With this line of thinking in mind, HotJobs decided to make the Yahoo Media products scalable. Customers can negotiate a predefined price for subscribing to the service, virtually eliminating the risk of overspending. In addition, the media products are offered on a pay-per-click basis, which can be cost-effective for employers on tight budgets.


    CareerBuilder also is taking significant steps to meet the needs of smaller clients. Whenever possible, job openings for its Small Business Unit are filled with individuals who have experience in selling products and providing services to small-business clients. Their market knowledge is used to effectively sell as well as proactively develop offerings that are suitable for this segment.


    “We recognize that the needs of small clients are very specific,” Ferrara says. “Our goal is to have representatives who understand how these businesses function and offer them tools to make life easier.”


A trend that’s here to stay
   Small and midsize employers are in luck because, for the foreseeable future, all signs indicate that job boards will continue to cater to their needs. It is a trend that extends well beyond the industry. Many providers of applicant tracking systems, such as Taleo, have made significant inroads in the small and medium-size markets.


    The company launched Taleo Business Edition, which was specifically tailored for this segment, two years ago. The offering is affordable, costing about $1,000 annually for basic users, says Jason Blessing, general manager of Business Edition. The company is able to bring in some 150 small and midsize customers each quarter.


    “It has become a very important part of our strategic pillar,” Blessing notes.


    Besides deploying significant resources to introduce targeted products and services, job boards have launched other efforts that extend the trend, industry experts say. One of the catalysts for partnering with newspapers and other media outlets is so that job boards could expand their reach.


    “Forging alliances with newspapers gets more feet on the ground and increases the job board’s ability to get in touch with smaller employers,” says Jim Townsend of Classified Intelligence.


    As appealing as this segment may be for job boards, they should establish certain boundaries, Townsend explains. Given the high degree of education and hand-holding these clients require, job boards should have certain established limits.


    “Bringing up to speed an employer that only recruits using ‘for hire’ signs is not going to be cost-effective,” Townsend says. “Converting them into clients wouldn’t be the best approach.”

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