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Posted on November 2, 1999July 10, 2018

EEOC’s New Stance Equal Remedies for Undocumented Workers

Once again the Equal Employment Opportunity Commission is sending a clear message that workplace discrimination will not be tolerated and that employers who violate civil rights laws must pay the consequences.


In an enforcement guidance issued October 26, 1999, the EEOC modified its position on remedies available to undocumented workers under federal employment discrimination laws. With few restrictions, says the EEOC, unauthorized workers are entitled to the same remedies as any other worker—including back pay and reinstatement.


The EEOC’s new position parallels that of the National Labor Relations Board with respect to discrimination on the basis of union activity. It applies to all of the laws enforced by the EEOC—Title VII, the Americans with Disabilities Act, the Rehabilitation Act, the Equal Pay Act, and the Age Discrimination in Employment Act.


EEOC’s prior position.
Since 1989, the Commission’s position had been that unauthorized workers were not entitled to reinstatement or to back pay for the period when they did not work because of a discriminatory failure to hire or termination. The EEOC reasoned that compliance with immigration laws forbidding the employment of undocumented workers was a legitimate nondiscriminatory reason to not employ unauthorized workers.


EEOC’s new position.
Workers’ undocumented status is never a justification for discriminatory working conditions or a failure to promote. The EEOC says it will no longer collect or evaluate evidence regarding a worker’s eligibility-to-work status. Rather, unauthorized workers will be presumptively entitled to reinstatement; however, if an employer knows that a worker who was hired after November 6, 1986, is unauthorized, reinstatement can be conditioned on the worker being able to satisfy verification requirements of the immigration laws within a reasonable time. Back pay is available to the extent it does not conflict with the purposes of the immigration laws. The EEOC construes this as limiting back pay relief only where the worker is unavailable for work by virtue of being out of the country.


Why the shift in policy?
A decade’s worth of legal developments is behind the Commission’s decision to change gears. All of these developments focus on deterring discrimination as the central goal and recognize that any failure to penalize employers who discriminate undermines that goal. If employers are not held responsible for discrimination against unauthorized workers, it could create an incentive for unscrupulous employers to engage in unlawful workplace conduct.


What should employers do?


Mixed motive and after-acquired evidence may limit remedies.
A worker’s unauthorized status can be a legitimate reason for a mixed motive or after-acquired evidence defense. Employers who knowingly employ unauthorized workers would not benefit from either of these defenses, however.


A mixed motive defense involves proof that an employer would have taken the same action even if discrimination were absent. In mixed motive cases, employers can be liable for attorney’s fees and injunctive relief but are not liable for reinstatement, back pay, or any damages.


After-acquired evidence refers to evidence acquired after a discriminatory act that would have caused the employer to take the same adverse action. In after-acquired evidence cases, a worker would not typically be entitled to reinstatement, and the period during which back pay accrues would be cut off as of the date that the employer discovered the unauthorized status.


Retaliatory investigation can trigger liability.
Unauthorized workers are particularly vulnerable to threats to report them to the Immigration and Naturalization Service. In every case in which the employer asserts that the worker is unauthorized and appears to have acquired that information after the worker complained of discrimination, the EEOC will determine whether the information was acquired through a retaliatory investigation. If the investigation was retaliatory, the employer will be liable for monetary damages without regard to the worker’s actual work status. Appropriate equitable relief is also available.


Cite: Policy Guidance: Remedies Available to Undocumented Workers under Federal Employment Discrimination Laws; October 26, 1999. Appendix B of Section 622, Volume II of the Compliance Manual.


Source: CCH Incorporated is a leading provider of information and software for human resources, legal, accounting, health-care and small-business professionals. CCH offers human resource management, payroll, employment, benefits, and worker-safety products and publications in print, CD, online and via the Internet. For more information and other updates on the latest HR news, check our Web site at http://hr.cch.com.


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.


Posted on November 1, 1999July 10, 2018

2000 IWorkforce-I Editorial Calendar

Contact your sales representative for more detailed information.


 

 

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JANUARY

11/24

12/1

Features

Special Issue:
HR 2010

 

 

HR 101

Incentives & Recognition for a Changing Workforce

 

 

Special Ad Section

CEO Perspectives:
HR 2010

 

 

 

 

 

 

 

FEBRUARY

12/27

1/4

Features

Benefits

 

 

HR 101

Competitive Relocation Practices

 

 

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Leader Summit:
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Bonus Exposure

Training 2000

 

 

 

 

 

 

 

MARCH

1/25

2/1

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Special Issue:
Optimas® Award Winners

 

 

HR 101

Training to Bridge the Skills Gap

 

 

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Leader Summit:
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HumanAssets.org

 

 

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Features

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HR 101

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Int’l SHRM

 

 

Bonus Exposure

EMA

 

 

 

 

 

 

 

MAY

3/27

4/3

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HR Technology

 

 

HR 101

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HR 101

HR Software as a Strategic Advantage

 

 

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SEPTEMBER

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HR 101

Managing the New Healthcare Economics

 

 

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NOVEMBER

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10/2

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Workforce 2000

 

 

 

 

 

 

 

DECEMBER

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11/1

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Success Stories

 

 

Posted on November 1, 1999July 10, 2018

How to Choose a Temporary Help Agency

This checklist will help you select an agency that can fill your request for temps with specific skills. It will also help in determining how often you need temporary help, under what conditions, and whether you want to deal with more than one agency or staffing company.


  • What are your most common requirements for temporary workers?


  • Do you want to deal with just one company, or would you like to have two or three to call on?


  • Do you want an agency that specializes in one or two industries (such as home healthcare aides or accountants) or do you want an agency that can provide workers for all departments in your organization?


  • In a multi-specialty agency, are there staff members who specialize in a particular field, such as technical, legal, secretarial or administrative?


  • Is the person who will fill your orders willing to meet with you personally to become better acquainted with your needs?


  • Will the agency representative visit your facility?


  • Can you visit the agency’s offices? Looking around the offices will give you an idea of how professional and well established the agency is.


  • What is the agency’s reputation in the community? Have any complaints been filed with the Better Business Bureau or any state agencies, such as the state department of labor?


  • What are the agency’s rates for your most common requirements? (Markups—the amount the agency charges you above the amount it pays the temporary employee—can range from 25 percent to as high as 100 percent over base wage, depending on employment costs and the availability of skilled workers. A 50 percent markup is average.)


  • Are the rates competitive for this area and for these particular skill requirements? (You could call several companies to determine an average rate for particular skill requirements.)


  • What do they pay the temporary employees who will fill your assignments? (you want to be sure that the temps are being paid well in relation to the amount that you are charged. If they are underpaid, they won’t do the job as well as you expect them to. And while you want to keep costs down, you’d do well to remember the old adage that “you get what you pay for.”)


  • What kind of training does the agency provide?


  • Will the agency provide specialized training to meet your company’s needs? This will depend on the number of temporary workers that you expect to use regularly, how long the assignments will be, and whether you will obtain them from one agency or more than one. It may also depend on whether other companies in the area require employees with the same skills. The temporary agency will expect to recover its costs for training temps to meet your specific needs through long-term or high-volume contracts.


  • What testing process does the agency use?


  • Are employees tested for their proficiency with the most common computer software programs, such as word processing and spreadsheets?


  • Does the agency test for production and manufacturing skills?


  • Does the agency use personality profiles, and are the results available to potential clients?


  • Does the agency do background checks on employees?


  • Are employees tested for basic math and spelling aptitude?


  • Can the agency meet your needs for special, customized testing?


  • Will the agency provide an on-site manager or supervisor? This may depend on how many temporary employees you will need at your workplace and for how long. The agency may be willing to provide an on-site manager at no extra cost if the volume of business it will derive from your company, and the profit to be made, warrant it.


  • What are the restrictions on hiring an employee from the temporary agency for your staff? Most companies require the employer to wait a certain number of weeks. Depending on the availability of workers with the required skill level, this waiting period can be as short as eight weeks or as long as 24.


  • Who pays for any advertising if the agency doesn’t already have an employee on its roster who will fit your needs?


  • How quickly can the agency get a qualified temporary worker to your office?

SOURCE: Excerpted with permission from “Managing a Flexible Workforce,” Copyright 1998 by the Bureau of Business Practice, a division of Aspen Publishers, Inc., Waterford, CT (800/243-0876, ext. 236).

Posted on November 1, 1999July 10, 2018

Five Strategies and Structures for Reducing Workplace Violence

The following list brings together some traditional or seemingly obvious education-interventions. It also provides steps that illustrate my personal experience in the fields of stress management and clinical therapy along with organizational violence prevention, conflict resolution and critical intervention.


  1. Clear Management Policy Plus Independent and Confidential Climate. The two pillars of a violence prevention program are:
    a) clear communication from all levels of management that violence will not be tolerated (including emotional and verbal harassment). Most important, the managers themselves must model this policy; they must be able to walk the talk, not just mouth the right words, and
    b) threats or abuse are to be reported to an anonymous call-in service. And threats don’t just have to be death threats. Bantering that’s crossing the taunting and harassment lines (or even bordering that line) needs to be designated off company limits. In Columbine fashion, I’ve experienced too many verbal taunting scenarios evolving into a vicious and destructive cycle.

    Both perpetrators and targets can “lose it.” It was like the case of a couple of postal employees continuously razzing two perceived “slackers” as management turned a deaf ear. (I suspect the manager was allowing these abusive workers to act out his frustration with “the slackers.”) One of the harassers, so caught up in his anger toward his “lazy” colleagues, was removed from the Service after making death threats to his psychiatrist.

    With reporting, especially in large organizations like the Postal Service, a complainant should have the opportunity to speak directly to an independent investigative body, such as the Postal Inspectors. Other reporting venues can be Human Resources, Equal Employment Opportunity Office, Cultural Diversity Office, etc. These bodies, of course, must not simply be management tools. Yet, don’t assume these bodies will be reflexively anti-management. For example, recently, I led a workshop with EEO Counselors for the Department of Defense. Their job stress had as much to do with confronting employees who really didn’t have legitimate EEO beefs as it did tangling with a management system allowing or encouraging harassment, bias or unfairness.

    Independence is also essential not just in the reporting phase but also in the investigative process. Again, the integrity of this expert is critical. While some will be dismissive if the expert lacks in-depth in-house knowledge or experience, more people will feel there’s greater likelihood for independence and objectivity. Clearly, this consultant needs to assert his or her own autonomy and professionalism. He or she must model objective and understanding listening with all parties and be a conflict-resolving and problem-solving catalyst. In addition, an outside expert should not be a defender of upper management or the organization. However, what can be affirmed is that management, at some level, is: a) investing substantial time and money in defusing or removing destructive workplace conditions and interpersonal tension, b) attempting to repair a sense of order and trust while c) opening up genuine grievance and communication channels.

    Sometimes dramatic organizational signals and statements are needed. After a period of gun violence culminating in shooting deaths in separate states in one day, the Postal Service took aggressive preventive (if not belated) action. A number of stress management and violence prevention consultants were hired to run national focus groups at various processing plants and individual stations. (My territory was the Mid-Atlantic Region.) The key questions: what are the factors contributing to stress and workplace violence and what can be done to reverse the destructive trend?

    In the aftermath of a focus group, a Plant Manager of a large Postal Processing and Distribution Plant asked if I’d come on board as a consultant to help the organization—management and employees—grapple with stress and conflict levels. And a closing thought before outlining our uncommon organizational experiment. Management, if so motivated, can send a message: abuse and violence are no longer business as usual!

  2. Stress Management by Wandering Around. Many organizations assume that: a) having an independent body/office for the reporting and investigating of violent incidents, b) providing sexual harassment and cultural diversity training, c) doing careful pre-hiring screening and d) having an EAP (Employee Assistance Program) means management has taken the necessary and legal steps to deal with the workplace violence issue. Based on the above-mentioned Processing and Distribution Plant experience, the above steps are necessary but may not be a sufficient deterrent to violence, especially in large organizations. Also, these steps may lag if violence prevention, not just critical intervention, is the goal.

  3. EAP Presence: Visible and Confidential. While Stress Management by Wandering Around (SMBWA) makes an uncommon contribution, this method is an EAP complement. Though not the main course for defusing conflict or preventing violence, still, some of the key concepts of SMBWA should be integrated into the EAP operation. (Help, call the Initials/Acronym Hotline … I’m having an alphabetaholics attack.)

    First, EAP operations need to establish or, more likely, regain the trust of supervisors and employees. Organizational mistrust or indifference can arise when: a) some employees have experienced or perceive their confidentiality being compromised, b) significant numbers view the EAP more as a management-inspired punishment tool rather than a supportive resource, c) the EAP has been staffed by (good-intentioned) individuals who were not mental health professionals and d) the EAP was or is more a paper program than a management supported and marketed one with an active, visible presence.

    There needs to be an EAP orientation, in fairly small groupings—even mixing managers, supervisors and employees—that provides all levels of the organization the opportunity to raise questions, concerns, fears, etc., about the past and present purpose, procedures and performance of the EAP. Once the trust issues have surfaced and employees perceive management and the EAP staff handling people’s concerns and objections in a non-defensive, non-retaliatory fashion, then “How to Use the EAP” training can begin in earnest. Remember: when dealing with an emotionally charged learning curve, venting and confrontation must precede procedural training and education.

    Clearly, a critical training component is helping supervisors integrate the EAP referral as a useful management option, both for their employees and for themselves. For example, a recent Johns Hopkins University study affirmed that depression shadows a significant number of employees in the American workplace. And, this psychological and biochemical condition and/or illness adversely impacts productivity—through mistakes, lateness, absenteeism, etc. Helping supervisors more quickly recognize signs of employee depression or other stress-related conditions would clearly be prophylactic. Alas, only sporadically comes a lone workshop testimonial from a supervisor who thankfully asked for EAP help with handling an employee exhibiting a pattern of dysfunctional psychological and/or behavioral warning signs.

    Finally, EAP visibility requires more than an initial training session and a spiffy flier. In-house EAP marketing needs to be ongoing, including a connection with the consultant wandering around, an ongoing dialogue with supervisors and brown bag lunches or health and wellness workshops for all personnel.

    Clearly, to meet this expansive mission, the company EAP needs to be adequately staffed and funded. Still it’s a wise bottom-line move. Research shows that a competent EAP is a sound investment not just for curbing violence, but for reducing grievances and health insurance costs. It’s a business and human relations tool for enhancing productivity and employee morale.

  4. Quick and Decisive Intervention. The compelling case for rapid intervention, of course, is much easier made with hindsight. Still, a couple of times being burned by delay and denial may speed the development of foresight. I recall the plight of a new female supervisor in a large government agency harassed verbally and non-verbally by an experienced male employee. The latter, a mostly productive worker, was also known for his eccentricities and moodiness. The trigger eludes me. Maybe it was jealousy rearing its irritated ego with a colleague’s promotion to management status. Maybe resentment festered along with unrequited “romantic” obsessions. Initially, the supervisor’s management superiors downplayed what would now surely constitute harassing, if not overtly threatening, behavior. Perhaps these two higher ups (both males) minimized the increasing gravity and oddity of this employee’s behavior from having worked many years together. Maybe they learned to adapt somewhat to his provocative personality. And then the denial bubble burst when this troubled employee threatened the supervisor with a sharpened knife. At this point, of course, he was removed.

    A Scary Hard Worker
    Another brief example to clinch the decisive point. This one involves a hard-working, big and burly veteran warehouse worker known to have some psychiatric disorder. When the disorder was in relative remission, he mostly talked to himself. When under more stress or in some state of decompensation, his self-talk and voices got louder.

    Periodically, he would yell and sometimes glare at a passerby. Management was slow to respond to fellow employee complaints both for selfish and seemingly compassionate reasons. Management did not want to lose his productivity and they also felt sorry for this troubled worker. Alas, this stance only breeds trouble for all concerned. Not surprisingly, word surfaced that a fight nearly broke out between this individual and other warehouse personnel.

    By the time I was asked to intervene (along with a supportive supervisor) this individual was in a fairly delusional state. While initially denying his outbursts had increased, he eventually explained his yelling as a survival measure against the radioactive waves the police were beaming into his head. By empathizing with his stressful plight, without arguing the veracity of his explanation, I informed him that management was requiring an immediate fitness for duty psychiatric evaluation. The next day this fellow checked himself into the psychiatric hospital. And the day after his mother called his supervisor to thank us for motivating her son to get the help he had been refusing. Many lives were spared needless and potentially dangerous tension by this belated, yet decisive, encounter.

  5. Allow for Grievance and Grieving. The complement to rapid and decisive critical intervention with a troubled employee is an intervention process that recognizes the broad impact of a major organizational restructuring. This intervention encourages people to experience and constructively express a variety of fairly predictable emotional states. Such workplace community intervention is especially vital when challenged by rapid and permanent change or an uncertain but chronically looming reorg coming down the pike. Emotions such as shock and denial, betrayal and rage, anxiety and panic and helplessness and depression are often components of a transition-inspired grief process. And these reactions are more pronounced when the loss is sudden and unexpected and/or the employee hasn’t evolved coping with change and restructuring skills, both in his personal and professional roles.

    Perhaps the most critical part of the grief process is transforming vicious cycle fear and rage into vital anger. This transformation facilitates productive motivation and momentum, regaining a new focus and reaching a necessary level of acceptance regarding the loss and change experience. Venting and bonding ease the way and support cord cutting, letting go and moving onward. And, as indicated, there’s a need for expressing and channeling anger both in one-on-one and group forums.

    Actually, my change consulting/training work has involved three types of transitional categories: a) an organization/workforce anticipating a restructuring or downsizing; the scenario is most hazardous when dull gray, LA smog-like uncertainty hangs in the organizational air, b) the “survivors” of a major restructuring or RIF (Reduction in Force) and c) folks who did not survive the reorganization, that is, employees who are now unemployed.

  1. Anticipated Restructuring or Downsizing. For many this is the most stressful transitional period. Uncertainty and rumors run neck and neck. Especially when large numbers may become “RIF raff” the potential for major system tension and conflict, constructive advocacy and destructive sabotage increases. Also, don’t be misled by seeming passivity. These employees are agitated: “Damned if I do, damned if I don’t. Damned if I stay, damned if I leave.” Apparent feelings of helplessness and paralysis can quickly turn into a rageful state. And rage unchecked or unharnessed breeds violence.

    My inaugural work with the Postal Service provided insight into some of the dilemmas. The USPS in the early ’90s implemented a major restructuring. However, the USPS technically did not have a RIF or Reduction In Force. Instead, for example, at Washington, DC Headquarters they created a large transition center for folks bereft of job but still receiving a paycheck. Don’t be deceived. This place was more a leper colony than Paradise Island. After awhile, other workers shunned the folks relegated to the “7th Floor.” The purpose of the Center was to motivate applications for postal positions in less geographically staffed (or desirable) locations around the country. And another goal was to encourage (not pressure, of course) employees to update their resumes and to migrate from the Postal Service.

    Toward this end, the USPS hired a hot shot outplacement firm from New York City to positively motivate and cheerlead the troops. Big surprise … very few participants were getting with the outplacement program. As one employee, previously on a management fast track, cried out: “I once had a career path. Then this boulder fell from the sky and crushed it!” You don’t think she was feeling betrayed, abandoned and enraged? This “rah rah,” shut down real feelings approach only added insult to injury. Finally someone from the EAP realized that “The Outplacement Emperor” had no clothes or clout. I was brought in to lead workshops dealing with the inevitable issues and emotions of loss and depression, fear and anger. As one participant said, “Why did we have to wait three months to get this program?” Better late than never … but why not sooner!

  2. The Restructuring Survivors. For survivors of a downsizing or reorganization the most noxious message is simple: “Just be grateful you still have a job!” This can only be heard as, “Stuff your real feelings, I (the supervisor) or we (management), don’t want to deal with them.” People have lost close colleagues, may have been shifted to a strange department and/or must quickly take on new tasks or job descriptions. Not surprisingly, a person feels his or her mission, self-worth and sense of purpose has been downgraded. As a bank officer bemoaned after his bank had been submerged by a larger financial institution, “Around here it feels like a losing team locker room.”

    Now, of course, there’s the anxiety and frustration of having “to do more with less” staff, resources, etc. All the above is a combustible formula for people swinging between helplessness and feeling “lean-and-MEAN!” Also, passive-aggressive inertia may be a byproduct of unresolved loss and conflict. This posture is a fairly predictable response when people perceive their freedom or sense of autonomy and control is being threatened. Many times, the most senior employees are the most resistant to change. They know better what the good old days were like. They have already carved out their niche of success and don’t want to rock the status quo. Frequently, the less senior folks are more willing to grapple with the dangers and opportunities in this amorphous new context. They don’t want to cruise toward retirement. And if senior management is also feeling overwhelmed or burnt out by prolonged transition and time pressures, lack of resources, wounds to the ego, etc., increasing entropy if not outright decay may hover like a dark cloud about a mountain top. As will be illustrated in the second strategy section, the key is sanctioning a group grief process and creating new interconnections and supportive problem-solving teams.

  3. The Downsized, Right-Sized, Outsourced and Terminated. For the past eighteen months, under the aegis of the Fairfax County Government in Northern, VA, I’ve been leading twice/monthly stress and change workshops with white collar (and some blue) professionals who have lost their jobs for a variety of reasons. Realizing that their downsizing was due to larger economic forces often expedites the resolution of an individual’s grief process. For the “Multiply Downsized,” especially folks in the aerospace and computer fields, industries fraught with instability or rapid startup and crash down, this roller coaster proved double-edged. Some had career transition inoculation; they had the grief, anger, letting go and moving on sequence down pat. For others who had relocated, yet again, and then experienced the downsizing replay, the emotional wiring was pretty frayed.

    Other categories of the outraged and bitter include individuals believing they were: a) bounced at the first sign of ill health and b) were forced out by a jealous and/or incompetent manager who feared the skill level of the employee and feared for their own position in the company. While I’m sure some of these hard luck stories are more fiction than fact, there were too many from reliable informants to dismiss the magnitude of the problem … and the potential for employee retribution. Trust me, in the workshop group psychological drawing exercises the violent imagery—bombs, swords, circling sharks, the devil with a whip in hand—is palpable.

    Beyond coaching, disciplining and rooting out unprofessional managers and having consistent standards for satisfactory employee attendance and job performance, my recommendation before termination is simple: have a one-on-one grievance procedure. Allow folks to express their perceptions, biases, provide their case, hear your constraints and operational realities if you’ve decided to sever them from the company. Too often the procedure is cowardly: leaving a pink slip in the cubicle telling the employee to “Pack up. Your services are no longer needed. Thank you!” (And preventing an employee from retrieving their personal computer files only fuels the rageful fires.) Even contractors shouldn’t be dismissed without some notice. This kind of harsh and abrupt termination, unless truly an emergency, can too easily sow the seeds for future destruction.

Posted on November 1, 1999July 10, 2018

What to Look For in a Technology-based Learning Program

With tighter training budgets, companies are seeking alternative methods of training professional development skills such as Sexual Harassment Prevention, Managing Difficult People, and Resolving Conflicts.


As a result of increased merger and acquisition activity and continued downsizing, companies need better ways to assimilate and retain employees, and improve their overall work force performance. An effective solution is technology-based learning, which is growing at 30% a year.


Unlike classroom training, technology-based learning offers consistency of training methodology and content, as well as the ability to track user participation and success. Development costs are also reduced, as are travel and employee time away from the office.


By offering realistic interactive simulations in the privacy of their own home or workspace, employees can practice without fear of embarrassing themselves or offending others, and immediately see the impact of a response in a given situation.


What to Look For in a Technology-Based Learning Program:


Learning objectives linked to business goals
Does the software content describe concrete learning objectives? Are these learning objectives in line with current, specific business goals?


Solid instructional design
Don’t mistake whiz-bang special effects for solid instructional design. Does the software adhere to the latest adult-learning techniques; namely, a self-directed, task-specific, learn-by-doing design?


Appropriate use of media
Is the program merely a reproduction of a workshop manual or binder? This “text under glass” approach rarely works. It’s difficult enough to get people to read a manual; try getting them to read lengthy text on a computer screen.


Engaging and interactive methodologies
Adults learn by doing. The software should engage the participant in realistic situations through a variety of interactive media, such as high-quality video, audio, and animation.


Realistic examples and situations
Adult learners want direct links between what they’re learning and real life. Cartoons may get a smile, but if they are irrelevant to the learner’s work environment, they are time wasters. Examples and situations used should grab the user’s attention and credence.


Friendly navigation
Effective technology-based learning is highly intuitive, enabling the learner to navigate through the program quickly and easily. Example: Users should be able to quit the program quickly at any time, and then return later to the exact spot in the program.


Skilled application assessment
All good technology-based professional development programs should be able to assess how well employees can apply the skills they are learning to real-life situations.


Tracking capabilities
One of the benefits of technology is its ability to compile critical information and facilitate analysis. Effective technology-based training can track results individually, departmentally, and organizationally.


Multiple deployment options
Most organizations have a wide variety of technological platforms. To make technology-based training available to as many people in the organization as possible, it should offer a variety of deployment options, such as CD-ROM, the Internet, or your organization’s Intranet.


When it comes to professional development software, it’s a mistake to simply rely on eye-popping graphics and attention-grabbing software. It all comes down to learning by doing—still the best, most effective learning method there is.


SOURCE: © 1999 HR Outlook newsletter, Drake Beam Morin. Reprinted with permission. For more information contact shari_critchley@dbm.com or visit Drake Beam Morin at http://www.dbm.com.

Posted on November 1, 1999July 10, 2018

Key Components of a Dangerously Dysfunctional Work Environment

Key components of a dangerously dysfunctional work environment:


  1. From TLC to TNC. Don’t support a work environment that’s driven by “time, numbers and crises,” and not by “tender loving care.” Beware a philosophy that extols customers as kings while treating employees as peasants; it’s a formula for revolt, inertia or sabotage.

  2. Rapid and Unpredictable Change. This can happen during either a downsizing or expansionary mode. There is unstable leadership, and a workforce that’s adjusting to new personnel or loss of wisdom. Rules and procedures don’t appear to be operational; “the book” has lost some critical pages. There’s chronic uncertainty from lack of timely information or from communication not perceived as genuine or accurate.

  3. Destructive Communication Style. This includes excessively aggressive, condescending, explosive or passive aggressive styles of communication, and excessive work-floor razzing or scapegoating. Managers talk over employees, and nobody truly listens. This is characterized by either defensive counterattacking or robotic groupthinking.

  4. Authoritarian Leadership. There’s a rigid, militaristic mind-set of “superiors vs. subordinates.” Typical slogans include: “You don’t get paid to think,” or “My way or the highway.” Leaders blow up if they’re challenged, and break up any participatory decision-making or team-building efforts.

  5. Defensive Attitude. There’s a dismissive attitude and atmosphere regarding feedback, and little interest in evaluation of people and policies. Only numbers count. It isn’t safe to give feedback; people are quick to feel disrespected or rejected. Yelling, intimidation or avoidance are the preferred ways of dealing with conflict.

  6. Double Standard. There are different policies and procedures, bias in application, for management and employees, blue collar or white collar, racial or sexual discrimination. There’s a “work floor vs. tower” dichotomy. This double standard also manifests as management gets substantial training or support for dealing with change processes and employees get minimal orientation and ongoing support.

  7. Unresolved Grievances. There are no mechanisms or only adversarial ones—”us vs. them”—to settle grievances. Or dysfunctional individuals are protected or ignored because of contractual provisions, red tape, an old boy network or union cover and so on.

  8. Emotionally Troubled Personnel. Management isn’t actively assisting, in a timely manner, troubled employees to get needed help. It isn’t professionally engaging the troubled employee (or supervisor), which can create a tumor for the work team—characterized by scapegoating, loss of respect for leader, apathy and lowered morale.

  9. Repetitive, Boring Work. This isn’t just assembly-line syndrome. Your niche of success becomes the ditch of excess and stagnation. There’s a lack of opportunity for job rotation, or not enough new blood coming into the system. (Also, see “Hazardous Setting.”)

  10. Faulty Equipment/Deficient Training. This means equipment or procedures (or lack of) that don’t allow people to work effectively or efficiently. Then, workers are criticized for not being productive. Also, rapidly inundating people with new equipment and operational standards while not providing sufficient time and resources for successful startup.

  11. Hazardous Setting. This includes disruptive ambient work conditions—temperature, air quality, repetitive motion issues, overcrowded space, problematic noise levels, excessive overtime, nocturnal schedule and interrupted sleep, etc. Personnel shortage causes a lack of backup, which results in potentially dangerous work expectations and conditions.

  12. Culture of Violence. This environment has a culture or past history of individual and/or violence and abuse. There are violent or explosive role models, alcohol and drug abuse, and employees with lingering Post-Traumatic Stress Disorder (PTSD).

Posted on November 1, 1999July 10, 2018

Are Time Limits the Answer to Liability

The Microsoft “retroactive benefits” lawsuit and similar cases have companies worried about their potential liability for employees assigned to them by staffing firms. Many are asking, “How long can I use your employees before I become an employer?” Some impose time limits on temporary assignments. But time limits may not be the answer to companies’ liability concerns.


There are no black-and-white answers when it comes to determining who’s an employer. Length of service is never the sole issue. It’s one of many factors in a test often referred to as the common-law “control” test. (For a list of the factors making up this test, see American Staffing Association Co-employment Handbook.) To complicate matters, different versions of this test are used depending on what area of the law is involved.


Because this test is complicated, companies are looking for a foolproof way to avoid getting into disputes over whether they are employers. Many think placing a “bright line” limit on assignments is the best way to avoid liability.


However, such limits may protect companies from benefits liability, but not from other types of liability—for example, for violating EEO laws. Moreover, “churning” workers is an inefficient way to use temporary help and doesn’t work for organizations needing long-term staffing assistance.


Fortunately, there are practical alternatives that will serve companies better than cutting back on their use of temporary help or placing arbitrary time limits on worker assignments.


Benefits
Microsoft got off on the wrong foot by classifying the workers in question as “independent contractors.” After the IRS reclassified them as employees, Microsoft tried to fix the problem by placing them on the payroll of staffing firms. The 9th Circuit Court of Appeals held that this didn’t change their status as Microsoft employees for benefits purposes. To make matters worse, Microsoft conceded in court that the workers were their employees. On these atypical facts, the court ruled that Microsoft must pay benefits.


Limiting Contacts With Workers
Companies should be able to avoid Microsoft’s fate if they limit their contacts with the assigned employees to the extent necessary to ensure that the job gets done and leave just about everything else to the staffing firm so it can fulfill its role as employer.


For example, organizations should avoid recruiting, making wage and benefit decisions and providing worker training (other than site-specific safety training). Likewise, workplace complaints and injuries regarding assigned employees should be promptly reported to the staffing firm for action.


A recent federal district court decision in California (Burrey vs. Pacific Gas & Electric, May 12, 1999) recognized substantial employer responsibilities of the staffing firm and held that it, not the company, was the employer for benefits purposes despite the company’s day-to-day involvement with the workers.


Time Limits
HR can impose time limits if they have concerns that the assigned employees may be considered their common-law employees despite efforts to minimize contacts. ERISA allows employers to write their retirement and 401(k) plans to expressly exclude employees who work less than 1,000 hours in a year.


Companies whose plans contain such a provision can exclude staffing firm employees by holding assignments under 1,000 hours. But there is an alternative to time limits that avoids disrupting the worker’s assignment and the company’s operations.


Companies shouldn’t have to resort to limiting temporary assignments to avoid benefits liability. Courts, including the 9th Circuit itself, have held that employers can exclude employees from their retirement and 401(k) plans for reasons other than failure to meet the 1,000-hour service test as long as they use clear exclusionary language. Employee waivers that are supported by the company’s plan documents may provide added protection. It’s important to consult expert benefits counsel regarding proper plan language and the terms of any employee waiver agreements.


Tax Issues
While organizations aren’t legally required to provide benefits to staffing-firm employees, there may be adverse consequences for the company’s plan if they’re excluded.


Federal tax law prohibits discrimination in favor of highly paid employees. So failure to provide benefits to staffing-firm employees working more than 1,000 hours in a year (and who are considered to be the company’s common-law employees) could cause discrimination problems, depending on how many covered, highly paid employees they have relative to covered lower-paid employees. Even if assigned employees aren’t their common-law employees, discrimination problems could arise under the so-called “leased employee” rules if workers perform services for the company during more than 1,500 hours in a year.


Tax issues are of particular concern in the case of employee stock-option plans qualified under section 423 of the Internal Revenue Code (not all stock-option plans are qualified under this provision). Unlike the discrimination rules applicable to retirement plans, the rules for these stock-option plans require (with limited exceptions, e.g., for shorter-service employees) that all employees be covered in order for the plan to receive favorable tax treatment, not just a specified percentage. Again, these issues should be discussed with counsel.


Non-Benefits Areas
Companies have long been considered to have co-employer obligations to staffing-firm employees in non-benefits areas. Civil rights, workplace safety and collective bargaining are a few examples.


In non-benefits areas, limiting assignments to a specified time period won’t necessarily protect the company from liability. In some cases, it’s possible that a company could be considered to be an employer from day one. This hasn’t been a big concern to organizations since the staffing firm takes care of obligations such as paying the workers’ wages. A company can protect itself in other areas, such as civil rights and workplace safety, by putting procedures and safeguards in place to minimize liability.


Time limits aren’t the solution.
Time limits don’t provide blanket protection under most labor and employment laws such as EEO and wage and hour. While time limits may avoid liability in the benefits area, it isn’t a good solution for businesses that need long-term staffing help. By carefully managing staffing to minimize contacts with staffing-firm employees, coupled with properly drafted benefit plans and employee waivers, companies should be able to limit their liability in the benefits area as effectively as they have in other areas of the law.


Workforce, November 1999, Vol. 78, No. 11, pp. 61-63.


Posted on November 1, 1999July 10, 2018

Everyone Can Win When Negotiating Rates

Managing temporary-help expenses involves negotiating a pricing agreement that creates a win-win situation for three parties: the organization, the temporary-staffing company and the temporary workers.


It’s important to keep in mind that the agreement you negotiate with the temporary-staffing service will have a direct impact on what they pay temporary workers assigned to your company. Though it’s important to negotiate a fair deal for your organization, if you negotiate rates that are below market average, you’ll likely end up with second-choice candidates who are lacking the skills, commitment and quality you need.


One way to determine if the rates you’re being quoted are competitive is to compare pricing between services. Keep in mind, however, that rates will vary depending on the volume of temporary workers you use (higher volume creates more negotiating power) and the skill set you require.


For instance, highly specialized skills in the technical area are in great demand, command high rates and leave little room for negotiation. Although some companies prefer to negotiate based on the markup the temporary-staffing company adds to the pay rate, temporary-staffing services discourage this practice because they believe it undermines their ability to control pay-rate decisions, and treats the service as a commodity versus a professional resource.


The best approach to managing temporary-help expenses is to establish your buying criteria, conduct research to identify services that meet your requirements, and compare rates between those services. Also, be prepared to incur periodic rate increases. These may occur quarterly or annually—sometimes sooner if the skills you need are in very high demand.


The American Staffing Association reports that hourly wages for temporary employees have increased more than 5 percent in the past six months. You can be sure those increases were passed along to client companies and were reflected in higher bill rates.


Workforce, November 1999, Vol. 78, No. 11, pp. 63-64.


Posted on November 1, 1999July 10, 2018

Ideas for Staffing Creatively

Here are some alternative recruitment options that companies have used to hire qualified people:



  • Hire the unexpected. For example, Internet-service provider Netscape once hired three students from Berkeley who pointed out a software implementation error to the company. Explained the vice president of HR, “the people who hack into our system know something that we don’t, and we can learn from them.”
  • Train them yourself. In order to remedy a shortage of machinists, printing equipment company Max Daetwyler Corporation created an apprenticeship program at a local high school. Students began working at the company part-time during their senior year of high school, then continued full time while they attended college classes at the company’s expense. The students earned associate’s degrees in manufacturing engineering technology, and the company earned a supply of custom-trained recruits.
  • Look in distant places. The Opryland Hotel in Nashville, Tennessee once recruited new employees from Puerto Rico, which had many experienced workers in the hospitality industry, and high unemployment. Using such tools as job fairs and recruiting trips, and offering such perks as temporary employee housing, helped fill gaps in the expanding hotel’s employee ranks.

SOURCE: Excerpted from “Creative Staffing Drives Success” by Shannon Peters Talbott, copyright Spring 1996, Personnel Journal (now known as Workforce). All rights reserved.

Posted on November 1, 1999July 10, 2018

California Work Schedule Changes Leave Employers Scrambling

Payroll departments, staffing managers and other HR types in California companies will have to adapt to some significant changes effective January 1, 2000. After a one-year “experiment” with no daily overtime, California has returned to the requirement that any work in excess of eight hours in one workday must be paid time-and-a-half. The same is true for any work in excess of 40 hours in any one workweek. The new provisions can wreak havoc with existing alternative work schedules, although there are ways to implement such schedules under the new law. But pay attention; it’s complicated.


Adoption by secret ballot election.
If suggested by an employer, employees may adopt a regularly scheduled alternative workweek of no longer than 10 hours a day within a 40-hour workweek without incurring overtime. “Adoption” requires a secret ballot election with at least two-thirds of affected employees in a work unit approving the schedule. The alternative workweek may be a single work schedule that would become the standard schedule for employees, or a menu of work schedule options from which each employee in the unit would be entitled to choose.


If actual work hours exceed those established by an alternative workweek under this provision, the employee is entitled to overtime-either time and a half or double time depending upon whether the work per day exceeds 12 hours or goes beyond eight hours for days worked beyond the regular schedule.


Effect on existing alternative work schedules.
Any alternative schedule in effect on January 1, 2000, can be repealed by the employees affected. And the law says that any alternative workweek schedule that was adopted under former Wage Orders 1, 4, 5, 7 or 9 is null and void, except for a schedule that provided for no more than 10 hours’ work in a workday and was adopted by a two-thirds vote of affected employees in a secret ballot election under wage orders in effect before 1998.


However, if an employee is voluntarily working an alternative workweek schedule of not more than 10 hours work in a workday as of July 1, 1999, the employee may continue to work that schedule, without daily overtime, if the employee makes a written request to work that schedule.


Special rules for the health-care industry.
An alternative workweek schedule in the health-care industry that was adopted by a two-thirds vote of affected employees in a secret ballot election (under Wage Orders 4 and 5 in effect prior to 1998) that authorized workdays over 10 hours but not over 12 hours without overtime remains valid until July 1, 2000. However, health-care employers must make a reasonable effort to accommodate any employee who is unable to work the alternative schedule.


Licensed hospitals.
A licensed hospital that institutes a regularly scheduled workweek authorizing no more than three working days of no more than 12 hours each within any workweek must make a reasonable effort to find an alternative work assignment for any employee who participated in the vote which authorized the schedule but is unable to work 12-hour workday schedules. However, an employer is not required to offer an alternative work assignment to an employee if an alternative work assignment is not available or if the employee was hired after the adoption of the 12-hour, 3-day workweek schedule. (This provision is effective only until July 1, 2000.)



Accommodating employees who can’t work the alternative schedules.
All employers must make a reasonable effort to find an eight-hour per day work schedule in order to accommodate any employee who was in the work unit when the election was held and who is unable to work the alternative schedule established as the result of that election.


Cite: “Eight-Hour-Day Restoration and Workplace Flexibility Act of 1999” (A.B. 60), L. 1999, effective 1/1/00.


Source: CCH Incorporated is a leading provider of information and software for human resources, legal, accounting, health-care and small-business professionals. CCH offers human resource management, payroll, employment, benefits, and worker-safety products and publications in print, CD, online and via the Internet. For more information and other updates on the latest HR news, check our Web site at http://hr.cch.com.


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.


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