Category: Archive

How can you encourage feedback from employees?

Here are a few tips on how employers can set the stage to receive complaints properly and improve communication.

• Solicit your employees for company improvement suggestions. Don’t just send out a survey once or twice a year that asks what they like and dislike about their jobs. Start a recommendation reward program. The program should reward any employee who suggests an improvement that helps the company save money, make more money, or become more efficient.

• When an employee brings a complaint to your company, LISTEN. Always ask them for their ideas on how to fix the problem.

• If an employee brings up a complaint or constructive suggestion during a group meeting, NEVER criticize or patronize the person in front of the group. Thank them for the comment and if it’s better to address it after the meeting, ask if you could spend some time later discussing and trying to fix the problem.

• Remember that most employees have or want a reason to work for your company. An employee who complains is probably just saying “let’s fix this problem so I can enjoy working here again.”

SOURCE: Matthew C. Hollingsworth, Techemployment.com, Cincinnati.

It is very important for employers to be aware of the scope of proper medical inquiries under the Americans with Disabilities Act. This is especially important considering that some courts will even allow nondisabled plaintiffs to pursue an ADA claim regarding improper medical inquiries. The Equal Employment Opportunity Commission offers the following advice on abiding by the ADA:

Pre-offer applicants:
Before making a job offer, an employer is forbidden from asking an applicant whether he or she is disabled. The employer is also forbidden from asking about the nature or severity of a known disability. Finally, the employer may not require the applicant to take a medical examination before making a job offer.

Nevertheless, the employer may ask questions the applicant’s about ability to perform job-related functions, so long as the questions are not phrased in terms of disability. The employer may also ask the applicant to describe or to demonstrate how, with or without reasonable accommodation, the applicant will perform job-related functions.

Post-offer prospective employees:
After a job offer is made, but prior to the commencement of employment duties, the employer may require the applicant to take a medical examination if everyone who will be working in the job category must also take the examination. The employer may lawfully condition the job offer on the results of the medical examination. However, if an individual is not hired because a medical examination reveals the existence of a disability, the employer must be able to show that the reasons for exclusion are job related and consistent with business necessity. The employer must also be able to show that there was no reasonable accommodation that would have made it possible for the individual to perform the essential job functions.

Current employees:
Once the employee has begun his or her job, the employer cannot require a medical examination or ask the employee questions about disability unless it can show that these requirements are job related and consistent with business necessity. However, the employer may offer voluntary medical examinations that are part of an employee health program.

The results of any medical examinations and any information gained from medical inquiries about a disability must be kept confidential and maintained in separate medical files. State workers’ compensation agencies, however, may receive medical information that is necessary for their administration of state workers’ compensation laws.

SOURCE: U.S. Equal Employment Opportunity Commission.

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.

Issue: An employee fills out a Form W-4 on which he claims 99 allowances and exempt status. After you forward the W-4 to the IRS, you receive an IRS notice instructing you to withhold tax at the single, no allowances rate and to ignore any further W-4s from that employee. If you withhold per the IRS instructions, can the employee file suit against you to recover the withheld taxes?

Answer: No. An employer cannot be held liable to an employee for complying with its legal duty to withhold tax. If the IRS issues a directive instructing an employer to disregard an employee’s W-4 as defective, the employer must withhold based on the directive, not the W-4.

Ordinarily, an employer is not concerned with the number of withholding exemptions an employee claims on Form W-4. You are under no duty to determine whether the number of exemptions claimed is more than the employee is entitled to. If, however, you have reason to believe that the number of exemptions claimed exceeds the number the employee is entitled to, you should so advise the appropriate IRS district director.

The following are instances when a Form W-4 would be clearly invalid:

1. If an employee claims more than 10 withholding allowances (you must withhold on the basis of the statements made in that certificate until receipt of a notice from the IRS);
2. If an employee claims to be exempt from withholding and earns more than $200 per week when the Form W-4 is filed (you must withhold on the basis of the statements made in that certificate until receipt of a notice from the IRS);
3. If the Form W-4 contains an alteration or unauthorized addition or does not fully and clearly set forth the required information;
4. If the employee clearly indicates that the Form W-4 is false by an oral or written statement made to you before or when he or she submits the certificate.

Invalid withholding certificates must be submitted with Form 941, 941E, or 941-M for the last month of the reporting period. Copies of the invalid certificates must be sent to the IRS even if they are not in effect at the end of the quarter. The IRS may send you a notice to advise you that the employee is not entitled to claim exemption from withholding or is not entitled to claim a total number of withholding exemptions in excess of a number specified by the IRS. Regardless of whether you receive a corrected certificate from the employee, you must withhold on the basis of the maximum number specified in the IRS notice.

Cite: Pesci v. IRS, et al., (DC Nev 1999), Dkt. No. CV-S-98-00245-DWH.

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.

It’s usually a good idea to say your “pleases” and your “thank yous.” It’s good customer service, and builds good will.

But is it always a good idea?

Keep in mind that each of these words has a specific connotation in marketing and customer service. Today I noticed the can of Sun-Maid® Raisins, for example. It says, “Please use our Web site.” The connotation: “If you use our Web site, you’d really be doing us a favor. There’s nothing in it for you, since the last thing you want to do is read about raisins on the Internet. The only benefit is for us at Sun-Maid®.”

When you’re working on a business deal, and you thank the other party, it has a similar connotation. It means the other party just did you a favor, and in a sense, you “owe them one.”

Use this rule of thumb: If someone lets you out of the subway car on the way to work in lieu of plowing you over, thank him or her.

But if you’re negotiating the purchase of an automobile, and the dealer throws a couple free car mats into the mix, hold on to your thank-you before you lose the upper hand.

SOURCE: Workforce Online Editor Todd Raphael.

Issue: Your company provides its employees with a notice describing their Family and Medical Leave Act (FMLA) rights. However, your notice does not unambiguously and “explicitly state that FMLA leave would run concurrently with paid sick leave and vacation time.” Is your notice nevertheless adequate under federal law and regulations?

No: Even though an employer’s FMLA guidelines “arguably” provided notice that FMLA leave would run concurrently with available paid leave, a federal district court in Chicago ruled that the guidelines were too “ambiguous” to entitle either party to a dispositive finding that the guidelines did or did not provide adequate notice, as required by FMLA regulations, that the employees’ FMLA leave and available paid time off would run concurrently.

How clear does notice need to be?
To determine whether the notice was adequate, the court compared the language the employer had used and the language of the “Prototype Notice” found in the regulations. As the court explained, the language the employer had used (“any leave requested for the employee’s own illness will be paid through accrued sick time … [and] vacation time, personal and bonus time may is [sic] payable once the sick bank is exhausted”), even setting aside the typographical error, didn’t make it “unambiguously clear” that what the employer was trying to say was that (1) it would substitute vacation leave and sick leave for FMLA leave, and (2) the employees’ FMLA leave would run concurrently with paid time off.

In contrast, the prototype notice did explicitly specify when, and under what “conditions” an employee’s paid leave would be substituted for FMLA leave. The prototype stated in pertinent part, “This is to inform you that … [ ] you may elect to substitute paid leave for unpaid FMLA leave. We [ ] will [ ] will not require that you substitute accrued paid leave for unpaid FMLA leave. If paid leave will be used the following conditions will apply:” When compared against the clear wording of the prototype, the court declared, the employer’s guidelines were simply “too ambiguous” to support a finding that they had provided the employee with “adequate notice as a matter of law.”

What should you do?
Employers who have written guidance for employees about benefits or leave rights, such as employee handbooks, must include information about FMLA entitlements and employee obligations, including any requirement that an employee provide a fitness-for-duty certification to return to work.

When employers do not have written policies, manuals, or handbooks describing employee benefits and leave provisions, employers must provide clear and unambiguous written guidance about employee rights and obligations to employees who request leave under the FMLA. It is strongly suggested that employers duplicate and give employees a copy of the FMLA Fact Sheet, which can be obtained from local offices of the Wage and Hour Division of the Department of Labor.

Cite: Chan v Loyola University Medical Center, (ND Ill 1999) 138 LC 33,918.

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.

According to a recent report from the Government Accounting Offices (GAO), implementing the Health Insurance Portability and Accountability Act of 1996 (HIPAA) has proceeded fairly smoothly in the large-employer market. But one area of concern cited by the GAO is the model certificate of creditable coverage jointly issued by the Department of Labor (DOL), IRS and Department of Health and Human Services, which is used by many employers to inform health plan participants of their rights. According to the GAO, the model certificates do little to explain some of the key concepts of the law. Therefore, the GAO is recommending that the three federal agencies amend the model certificate when final regulations are released.

Areas of concern.
According to the GAO, the model certificates are deficient in several areas. For example, the certificate fails to inform participants that once they leave the group market:

• They may have a right to obtain health insurance in the individual market.
• If they accept other employment, they might not have to fulfill a preexisting condition period under the new employer’s group health plan.

The GAO has made several recommendations for retooling the certificate to better educate the health plan consumer, and the DOL and the Health Care Financing Administration have generally agreed with the GAO’s recommendations. Therefore, it wouldn’t be surprising to see some changes in the model certificate when final regulations are released. (Currently, the GAO notes that officials expect to finalize HIPAA regulations in 2000.)

What should employers do?
Employers wishing to stay ahead of the game should consider revising their certificates to incorporate some of the GAO’s recommendations. Specifically, the GAO recommends that the following information be highlighted:

• The rules relating to preexisting conditions and the guaranteed renewability of health coverage.
• The prohibition against discrimination against an insured on the basis of that individual’s health status.
• The right to guaranteed access to insurance for individuals losing group coverage.

In addition, the GAO strongly recommends that the certificates inform participants whom they should contact for further information about their rights under HIPAA. Adding this information to the certificate should take plan administrators little time and, in the long run, may actually save time, since employees will be better informed and may have less need to contact plan administrators for further information after employment is terminated.

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.

Issue: During a clerk’s required attendance at a meeting with human resources and the employer’s legal counsel, the clerk was told that her employer was investigating allegations of sexual harassment made by another employee against a supervisor. The meeting was part of the employer’s internal investigation, conducted in response to an EEOC notice of a separate charge of discrimination. The clerk answered questions regarding the office interactions between the other employee and the supervisor. Four days after attending the meeting, the clerk was terminated, purportedly for giving false information about why she was late to the meeting.

As HR director, you know that reprisals against employees who have filed a charge or testified, assisted, or participated in any manner in an investigation, proceeding, or hearing are prohibited. That part of the retaliation provision relating to this kind of activity is known as the “participation clause.” Does the clerk’s conduct during the meeting qualify as protected conduct under the “participation clause” of Title VII of the Civil Rights Act of 1964?

Answer: Most likely. By participating in her employer’s internal investigation—an investigation that was conducted in response to an EEOC notice of charge of discrimination—the clerk engaged in statutorily protected conduct under Title VII’s participation clause, according to the 11th Circuit Court of Appeals. An employee’s participation in an internal investigation counts as participation in the EEOC investigation, “at least where an employer conducts its investigation in response to a notice of charge of discrimination, and is thus aware that the evidence gathered in that inquiry will be considered by the EEOC as part of its investigation,” reasoned the court.

Cite: Clover v. Total Systems Services (11thCir 1998) 74 EPD 45,606, 157 F3d 824; vac’d (11thCir 1999) 75 EPD 45,802; on petition for reh’g (11thCir 1999) 75 EPD 45,890.

Note: In its 1998 opinion, the 11th Circuit held that the “participation clause” protects an employee from retaliation only in cases where the employee participates in an investigation conducted by the EEOC or its designated representatives. In other words, the court narrowly interpreted the scope of Title VII’s participation clause to hold that the clause does not cover an employee’s involvement in an employer’s internal discrimination investigation. However, on rehearing, the court said its previous opinion was in error because it focused exclusively on whether or not the employee was participating in an EEOC investigation.

What should you do?

• Avoid unequal treatment.
  Employers should take care to treat employees participating in Title VII proceedings on behalf of discrimination claimants the same as individuals who participate in such proceedings on behalf of the employer.
  
  Example: A U.S. Postal Service policy of paying employees who testified on behalf of the government while denying paid leave to employees who testified for the party opposing the government was held to be unlawful because of the “chilling effect” the practice had on those who participated in Title VII proceedings on behalf of charging parties.
  
  Cite: Stup v. Bolger (EDVa 1984) 36 EPD 35,011, 578 FSupp 1394; Davis v. Bolger (DDC 1980) 23 EPD 31,151, 496 FSupp 559.

• Establish an independent basis for discipline.
  The ban on retaliation for participation in Title VII proceedings does not prevent an employer from disciplining an employee when discipline is warranted. However, discipline can never be based on an employee’s participation in protected proceedings. Since unlawful motive is the key, employers must be careful not to create an appearance of unlawful motive.
  
  Example: A male sales representative who involuntarily testified that he had sexually harassed a female receptionist was protected by Title VII’s anti-retaliation provision. Because there was direct evidence that the sales rep’s testimony was the reason he was fired, an appeals court revived the sales rep’s lawsuit for retaliation. In order to determine what action to take against five employees accused of sexually harassing the receptionist, the company president reviewed all deposition testimony, but did not undertake an independent investigation. The company president also told the sales rep that “your deposition was the most damning to [the employer’s] case, and you no longer have a place here.”
  
  The 11^th Circuit stressed that its decision was not intended to prohibit imposing discipline on an employee who sexually harasses other employees. Direct evidence of retaliatory motive made the case a rare exception. Absent such evidence, the appeals court said that summary disposition in the employer’s favor should be the rule.
  
  Cite: Merritt v. Dillard Paper Co (11thCir 1997) 71 EPD 44,977.

• Don’t try to limit participation rights.
  Promises not to file a charge or participate in an EEOC proceeding should not be included in agreements such as contracts requiring the use of alternative dispute resolution procedures, waiver agreements, employee handbooks, employee benefit plans, and noncompete agreements. Such promises are generally not enforceable; they may also amount to separate and discrete violations of the anti-retaliation provisions of the civil rights laws.
  
  Example: Settlement agreements that prohibited individuals who had complained of sexual harassment from aiding the EEOC in its investigation of class-wide improprieties were void as against public policy. However, provisions banning the individuals from filing EEOC charges were upheld; they did not irreparably harm the EEOC’s investigation of existing charges.
  
  Cite: EEOC v. Astra USA Inc. (1stCir 1996) 68 EPD 44,220, 94 F3d 738.

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.

Issue: You have discovered that in one of your company’s departments, a supervisor has systematically been paying males less than females for the same work. Upon being confronted with this inequity, the supervisor, feeling the budget pinch, suggests that pay rates for females be reduced. How should you respond?

Achieving compliance with equal pay standard. In order to comply with the Equal Pay Act, lower rates paid to females performing the same work as males must be increased to the levels of higher rates paid to males. Similarly, lower rates paid to males who perform the same work as females would have to be raised to the higher rates paid to females. Rates can be equalized only by increases; reducing rates to equalize pay is prohibited by the statute. These rules apply as well to the elimination of unlawful differentials in the draw of employees who work on commission.

Remember, the equal pay directive applies only where both sexes perform equal work in the same establishment. Although the directive alone would appear to permit an employer to assign men and women to different operations within an establishment, or to restrict employees of particular establishments to one sex, such actions would violate the federal sex discrimination ban.

Even under the Equal Pay Act, if a job performed by a man becomes vacant and then is filled by a woman, the employer cannot pay the woman a lower wage rate than was paid for the same job when performed by the man. Similarly, an employer cannot remove all employees of one sex from a particular job and retain employees of only one sex in a job previously performed interchangeably or concurrently by both sexes.

Where wage rate differentials have been or are being paid on the basis of sex to employees performing equal work, rates of higher paid employees may not be “red circled” in order to comply with the statute. The Supreme Court has ruled that an employer does not cure an unlawful wage differential between an all-male and an all-female shift by opening up the men’s shift to women. The same is true with respect to separate job classifications.

Don’t wait for a court to equalize the rates.
In equalizing the rates of male and female employees doing equal work, a court may “incidentally” eliminate any legal differentials in the rates of the same sex when making upward adjustments to eliminate unlawful sex differentials. This will happen if there is no employer plan establishing lawful differentials based on seniority, merit, incentives or any other factor other than sex. Courts don’t have the discretion that employers have to establish these kinds of differentials.

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.

The change management team needs to have its finger on the pulse of what is and isn’t working so they can intervene where appropriate.

Many companies try to take as much cost as possible out of their change initiatives by developing and conducting their own training, or by short circuiting many of the items mentioned over the last couple days’ tips.

Keep on top of what’s going on, constantly referring back to your original goals and commitments. Be willing to make modifications where necessary, without compromising standards.

SOURCE: Randa A. Wilbur, Dechert-Hame & Company.