The Clock Is Ticking: NLRB Speeds On Decisions

A newsletter I received today from the law firm of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., was entitled NLRB Issues Numerous Controversial Anti-Business Decisions. The newsletter detailed a number of decisions that the current board has quickly made. According to the authors "In one day, August 27, the current NLRB majority, consisting of Chairman Wilma Liebman and Board Members Mark Pearce and Craig Becker, issued over 30 major decisions..."


The newsletter further states "...there are many that, under questionable and closely contested facts, expand interpretations of 'protected concerted activity.' The result is a clear pattern where the Board exercises increased scrutiny of employer conduct when a union loses a representation election."

One of the reasons they are rushing through these decisions is that Craig Becker, former Chief Counsel for the SEIU, is a recess appointment. You can read more on him here An Union Update: Craig Becker and the NLRB. But what that means is that they are rushing through as many decisions as possible before his term is up at the end of the year. They know he will not be in that position come January, and will have not chance of getting reappointed, since he could not get confirmed by the Senate this year. With the changes likely to happen in the mid-term election his chances will become "slim to none" with the emphasis on the "none."

So in the meantime they are cranking out as many "union friendly" decisions as possible. Well here, let me make it easy and offer them this form they can use.

This will make their job just a bit easier.

Strategic HR: Demographics Alert

For many of you this may have gone unnoticed. For some of you your thought may have been "that is interesting" or "I am not surprised." If you are a strategic HR person your thought should have been "What impact will this have on our employee base? How will this impact our HR system as a whole?"

"What is he talking about?" you ask. What I am talking about is the article that appeared in the WSJ on the September 29 Online edition. The article was entitled New Vow: I Don't Take Thee - Young Single Adults Surpass Married Peers Amid High Divorce, Cohabitation Rates. Author Connor Dougherty starts off with " For the first time since the U.S. began tallying marriages, more Americans of prime marrying age have stayed single rather than tied the knot, the culmination of a tectonic shift in the role of marriage and relationships that began in the 1960s."  The author continues with "... data released Tuesday by the Census Bureau show that for the first time the proportion of people between the ages of 25 and 34 who have never been married exceeded those who were married in 2009—46.3% versus 44.9%, according to an analysis by Mark Mather, a demographer at the Population Reference Bureau, a non-profit research organization in Washington." If you combine this with adults who have been divorced the married population has dropped to 52%, the lowest share in history. Compare this to 72.2% in 1960.

The article talks about a lot of the "whys" of this, but to get that information you need to read the article. What I was most interested in, and want you to think about, are the implication for your particular workforce in the coming 5 or more years. I want you to think strategically. What will this impact possible be for you and how will you be prepared to handle it.

Here are some of my general thoughts:

• Recruitment- Might this have the effect of opening up a market of candidates that might be more willing to relocate in the future? What effect might this have on your pool of candidates? Will it make it easier to find people?
• Compensation- Because there are more women getting college degrees and more women in the workforce who are now forestalling having children will this raise the overall compensation of women in the workforce. Will this have any impact on your pay policies (it shouldn't if  you have been doing it right before this, but you never know?)
• Benefits- How will a workforce composed of a large group of single people impact your benefit structure? Of course, many of these single people have "partners" (both hetero- and homosexual). Does this mean you will have to alter plans to cover more domestic partner situations?

Those are just three areas that quickly come to mind. What else might be included? That will depend on your company's circumstances. But you need to be thinking about it now, proactively, and producing a contingency plan that will allow you to say to upper management "Here is a trend, here is how it will impact us near-term and long-term, and here is what we need to do about it." Talk about earning your stripes.

Of course this may have been unnecessary for me to say. You already recoginize this stuff and do this strategic environmental scanning all the time? RIGHT!

When HR Is Harassed: What Then?

In the September issue of HR magazine there is an article written by attorney V. John Ella of Jackson Lewis LLP entitled HR vs. HR. (You will have to look it up.) He talks about a number of different situations where an HR employee becomes a plaintiff in a lawsuit against her employer. ("Her" is the appropriate term to use given that 75% of HR employees are women.) I am not going to write about the entire article, I will let you read it, and it is worth it.

But, one example he used is well worth discussion. I have never really thought about this situation. His case involved a female HR employee (am I being redundant?) sued her employer for sexual harassment. She claimed she was harassed by the CEO and had no recourse for filing a complaint, because, (do you see what is coming?) the employee handbook said that any employee with a complaint of sexual harassment had to report it to HR or to the CEO. She had no where to turn.

That gave me pause and I asked myself  "Self... how many handbooks out there have a policy written just like that?" I know most of the ones I have seen are written just that way and they never have an allowance for HR being the harassed party. Perhaps that is because of my male perspective. No one has ever harassed me, at least not since I have been in HR. (There was this one time with a female boss a long time ago.... but you will have to take one of my classes to hear that story.)

So my question is this: Have you female HR employees written your handbooks differently? Is there an option for you reporting sexual harassment, especially if the other person in the reporting heirarchy is the harasser? What have you done? This can be especially problematic in smaller companies.

Lawyer Ella, in the summation of his article, suggests that you "Make sure your sexual harassment policy provided guidance for an HR employee to report harassment." Unfortunately he does not provide any guidance on what this may be. So I will tender a few suggestions. Perhaps the following parties could be included in the policy:

• A member of the Board of Directors
• An outside employment attorney retained for such an event
• An EAP, set up to handle such a complaint
• An HR consultant, retained for such an event

These are a few suggestions. You can do it if you want or not. Of course you can always leave it to the plaintiff's attorney and the EEOC. They will be happy to help solve the problem.

I would love to have someone share what they consider to be an effective harassment policy. You can post it in the comment section or you can find an email link on the panel to the right of this post.

Independent Contractors: Perhaps the Government Should Clean Up Its Own Mess

I have a WIN-WIN-WIN suggestion based on the following news story I heard on the WSB radio in Atlanta this morning. Scott Slade reported:

ONE REASON THE POSTAL SERVICE LOSES SO MUCH MONEY IS ITS USE OF THE PRIVATE-CONTRACTOR GAME. NEWLY RELEASED AUDITS SHOW THE AGENCY HAS HIRED BACK HUNDREDS OF FORMER TOP EXECUTIVES AND LOWER-LEVEL WORKERS AS PRIVATE CONSULTANTS, SOMETIMES AT TWICE THEIR OLD PAY SCALES.... THIS WEEK THE POSTAL SERVICE IS EXPECTED TO REPORT BILLIONS MORE IN LOSSES DUE TO DECLINING VOLUME. IT FACES A BUDGET GAP OF $230 BILLION OVER THE NEXT 10 YEARS.

Now if this was a large company in the private sector the Department of Labor and the IRS would be all over this abuse of the use of INDEPENDENT CONTRACTORS. I am pretty sure what the Post Office is doing would not pass the IRS rules for independent contractors. If you need to be remind of what these are you can read my post The IRS and HR: Who is an Employee?

What are the WINS in the IRS and USDOL cleaning up the Post Office?

• Win #1: The Post Office will stem the loss of money. We need the Post Office to survive. (At least at my house anyway, my wife works for an envelope company. Send more letters!)
• Win #2: The investigation of the Post Office will give the government some badly needed credibility. It will show they hold themselves to the same standard as they hold the private sector. (Well almost, you still cannot sue the government.) It could serve as a strong warning to the private sector to clean up their IC issues.
• Win #3: Having investigators occupied with the Post Office will keep some of them out of the field investigating private companies. Someone out there, perhaps you, might get a reprieve.

There you have it. A WIN-WIN-WIN suggestion to start off a Monday. Do you see any other positives that could come out of this? What about the downside?

Five for Friday: Great Blog Posts to End The Week

Not everyone has time to read blog posts. I probably do more than most given that I am a consultant and a blogger myself. It is my research. So to help you along I am posting links to five I think are great to read as a way to end the workweek.

First up is Kris Dunn at The HR Capitalist. His post is Your Company's United Way Campaign = Union Avoidance. It is that time of year for United Way during a time where unions are more active. So this is instructional. It is important to read the comments on this one.

Second post is by Laura Schroeder writing in Compensation Cafe. Her post is entitled What's My Line? She tells a story to show how versitility is an important trait in a new hire and how many companies are missing the boat today because of an abundance of candidates. She has a great line at the end that I thought was as good as the one she remembers from her youth.

The Third post comes from Ben Eubanks at Upstart HR. Ben wrote about a subject that I asked him to write about when he was soliciting ideas. I asked him to write about being a young man in a profession becoming dominated by women. You can read his answer in Men In HR- A National Geographic Exclusive. He has gotten many responses so I suggest you read them. Makes for some interesting conversation with you colleagues. You can also click through and read my original post on the subject Are Men in HR Going the Way of the Dinosaur? There are some people that seem to think that men have never been in HR... well if you have some gray hair you know better.

The fourth post is written by attorney Jon Hyman at the Ohio Employer's Law Blog. He has a great post that points out all the BAD LEGISLATION that is currently pending out there. Actually reading this is a bad way to end the week, but it is better than reading it on Monday and starting out the week in a crappy way. So head on over to WIRTW #145 (the bad legislation edition).

And lastly is a post from Wally Bock. Wally is not an HR guy. He is a leadership guru. In this post he tells a great story about the Wright Brothers to illustrate a point about innovation. So read Learning from the Wright Brothers and make sure you then put the Three Star Leadership blog on your "must read list." After all he is followed and tweeted by Tom Peters. (He follows me too on Twitter, but I don't think he has ever retweeted me like he does Wally.)

The ADA's Impact on Your Website: New USDOJ Rules Coming

Well is that a subject you have ever thought about? Not me. But thanks to Adam Santucci of the Pennsylvania Labor & Employment Blog  I have now. Adam reports that the litigation group from their lawfirm published a newsletter discussing The Internet - The Next Frontier for the ADA: Will Your Website Comply?  Writer Kimberly Colonna talks about the U.S. Department of Justice's publication in the Federal Register of a notice soliciting the private sectors input about requiring Americans with Disabilities Act compliance on access to websites. They are asking for public input into the questions they ask about accessibility, not whether or not it is a good thing. They are going to be making rules and enforcing those rules on all websites in the future. So it is important that you prepare.

These accessibility rules are already required for State and Local governments. If you want to review what is required currently you can visit the ADA Best Practices Tool Kit for State and Local Governments.  If you would like to read the proposed rules you can go to Nondiscrimination on the Basis of Disability: Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations and you can even leave a comment.

According to Colonna, some of the accessability issues identified include:

• websites that do not allow font color and size to be adjusted to accommodate the visually impaired;
• websites that rely heavily on images without captions, such that “screen readers” or other assistive technology cannot read the information aloud to persons who cannot see the images;
• websites that require timed responses from users, but do not provide an option for a user to indicate that more time is needed; and
• CAPTCHAs (Completely Automated Public Turing Test to Tell Computers and Humans Apart), the distorted text that websites may require a user to input before completing a transaction, which may be impossible for a person with a visual impairment. 


This has a human resources impact because lack of accessibility to your website may become an employment discrimination issue. How is a candidate supposed to apply for a position if the website is not accessible to visually impaired individuals. Even with employees who work for you, if they acquire a disability due to accident or health problem, will they have access to your website for purposes of work or obtaining company related information? Something to think about.

And you blog writers. It is something to think about as well. Many of us have the "spam guard" identification measures in place on our comment sections. Will this have to change. (Of course some of us get less comment traffic than others. So for some that may not be an issue.)

So, HR work with your web folks and make sure you can be compliant because the RULES ARE COMING!

What Do Marijuana, the Teamsters and $54,000 Have In Common?

And the answer is a company called Marjyn Investments LLC located in Oakland, California. Earlier this month the Teamsters, saying membership was waning and they needed more members, organized the 40 employees that grow pot plants for Marjyn Investments, a company that grows marijuana for medicinal purposes. The company did not resist (insert joke about being under the influence) and the Teamsters got the workers a sweet two year contract starting at $18 per hour and moving to $26 per hour in 15 months. Yep you read that right. In just over a year they will be making $54, 040 a year to tend pot plants. I guess the fact that this is pot that has to be given by prescription, thus high prices can be charged, makes it easy to pay such high wages for gardening. The company thought it was a great deal because as they said "... it gives the company a stable, committed workforce in a protected environment." Where they having turnover problems? And why did the employees feel compeled to call the union. You would think that executives at a marijuana growing operation would be mellow.

Medical marijuana is legal in California, but violates Federal law. That fact did not deter the Teamsters because as Marty Frates of the Teamster Local 70 said "We have had our problems, so we've had to diversify" as he talked about membership issues. Of course the Teamsters have long history of not letting the law get in their way.

Proponents of the legalization of marijuana point to this as further legitimizing their move. Opponents call it an embarassment to the State of California and the city of Oakland. Actually they called Oakland an embarassement to the State of California as well. Oakland has one of the country's laxest attitudes toward marijuana. (Makes one wonder if the smog over Oakland is really from cars or not.)

By the way, the contract negotiated also include benefits and a pension. I wonder if they have some similar benefits to the brewery companies in being able to sample products at lunch and take a case home?

Certainly conjurs up images of Cheech & Chong doesn't it. Well it would if you were my age.. some of you will have no idea what I am talking about... LOL

Paycheck Fairness Act: You Decide Is This Necessary?

I and several other bloggers have written about the Paycheck Fairness Act which the Obama Administration is trying to get passed. Primary among this is a post entitled Paycheck Fairness Act Part II. This post points you to a position paper written by Camille Olsen of SayfarthShaw that is one of the best analyses of the case on the Paycheck Fairness Act. This legislation is very alive today. In the Sunday Atlanta Journal Constitution on the OP/ED page there was one of those Should We Pass The Paycheck Fairness Act pieces that had a proponent and an opponent. Of course the proponents argument was that wage discrimination needs to be totally eliminated and this law will do that. The opponents argument was that we have a law, the Equal Pay Act, that already offers that protection, so there is no need for a new law.

Rather than offering my opinion in this post (if you are a constant reader you have read my stand before anyway) I am going to tell you the major provisions of the legislation and I will let you decide whether we need this law or not. And then I would like you to take a minute and express that opinion in the comments section. So here we go.
Major Provisions:

• Amends the Equal Pay Act amendment to the FLSA, which allowed bona fide pay differentials for factors such as education, training, experience, difference in the quality or quantity of work, a merit system, a seniority system, or geographic differences. Gender differences was not an allowed factor.  States that the bona fide factor defense shall apply only if the employer demonstrates that such factor:
  (1) is not based upon or derived from a sex-based differential in compensation;
  (2) is job-related with respect to the position in question; and
  (3) is consistent with business necessity.
• The defense is not allowed however,  where the employee demonstrates that:
  
  (1) an alternative employment practice exists that would serve the same business purpose without producing such differential; and
  (2) the employer has refused to adopt such alternative practice.
• Prohibits retaliation for inquiring about, discussing, or disclosing the wages of the employee or another employee in response to a complaint or charge.
• Makes employers who violate sex discrimination prohibitions liable in a civil action for either compensatory or (except for the federal government) punitive damages.
• Any action brought to enforce the prohibition against sex discrimination may be maintained as a class action in which individuals may be joined as party plaintiffs without their written consent.
• Requires the Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs to train EEOC employees and affected individuals and entities on matters involving wage discrimination.
• Authorizes the Secretary to make grants to eligible entities for negotiation skills training programs for girls and women. (If everything is going to be equal what has to be negotiated?)
• Amends the Civil Rights Act of 1964 to require the EEOC to collect from employers pay information data regarding the sex, race, and national origin of employees for use in the enforcement of federal laws prohibiting pay discrimination.

Those are the major provisions. There are some minor ones as well. You can read the whole bill here. To summarize, under this bill:

• You have to explain the business necessity of all pay differentials
• You have to defend that business necessity as the only method
• You can be sued by one employee which then automatically gets you sued by all the women in your workforce (The plantiff attorneys are lobbying big time for this one)
• You will have keep more records which will then have to be turned over to the Federal govenment so they can then prosecute you
• Women will be trained to be better negotiators.

OK, maybe my biases came out that summary. But you are big enough to make your own decisions.

So the options are:

1. YES we need this law. Discrimination is active and needs to be eradicated
2. NO we have a law in place that provides the protection needed.
3. Maybe, maybe not I am a fence rider and I don't want to make waves. (Ok, not a real option.)

Cost of an Employee: Government and Some Employers Don't Get It

Believe it or not, there are still many people who think that the cost of having an employee is just the wage you pay that employee. If  you are one of them I have some news for you.... YOU ARE WRONG BUCKO! Included among this group are the Federal Government, some employers and many employees.

What inspired (if inspiration is the appropriate word) is the passage of the most recent "small business stimulus package." This package is supposed to free up money to banks in order to allow them to lend more money to small buisinesses in order to allow them to hire more employees. Well I have news for them, it is probably NOT going to spur alot of business to borrow or to hire. There are risks and costs associated with hiring that go beyond the wage and some of them will discourage small businesses from taking that step in an uncertain business environment. The costs associated with a new hire include:

• Recruitment costs, which include:
• Ad costs
• Cost of time spent in interviews
• Cost of reference checks
• Cost of any screening test conducted
• Cost of drug testing
• The actual wage you have to pay
• The tax burdern you assume, which includes:
• FICA
• Federal unemployment
• State unemployment
• Workers' Comp
• Cost of healthcare.
• Cost associated with health insurance impact of employee or employee's family health
• Cost of paid time off, which includes:
• Sick time
• Vacation time
• Cost of training, even for OJT
• Cost of lost productivity for workers conducting training
• Cost of opportunities lost during training and onboarding due to inept, untrained, incapable employees
• Cost of materials, tools, uniforms, equipment, etc. for new employee
• Cost associated with turnover if employee leaves because of:
• mismatch to job
• lack of qualification
• lack of trainability
• Cost of impact on experience rating on Unemployment or Workers' Comp

So as you can see hiring someone is not as simple as have some money in pocket- hire an employee. And I just don't think the government gets it. Most people in congress have never run a business, so they just don't know. Or if they did, it was so long ago they forgot. But, in my opinion, this last bit of stimulus is not going to spur anymore hiring in small businesses than did the last stimulus bill.

There are two other groups that don't get it either. One group is that type of employer who thinks they can hire, try some one out and if they don't work out just discard them. If they paid attention to this list they would see that could be an expensive lesson. This is why temporary agencies were created.

And the last group that doesn't get it is some employees. If that is the case then you need to do some education. Employees should realize the cost associated with having them on the payroll. A bit of education may help you retain someone.

The Rut of Success Can Actually Be a Roadblock

The word "rut" is kind of a funny word. It is one of the English words that has multiple meanings. For those of you that are deer hunters you know that "rut" is that time of the season where male deer have an over abundance of testosterone flowing as they try to win the favors of "the ladies." Otherwise known as "breeding season." Well hate to disappoint you but I am not talking about deer sex. I am not qualified. (Do to a past life in academia however, I can talk about Rhesus monkey sex, if anyone is interested.)

The kind of rut that I am talking about is defined as "A fixed, usually boring routine." Most people are familiar with that concept. Ruts usually have a negative connotation, sometimes being described as graves with a bit more room. As Ellen Glasgow said “The only difference between a rut and a grave is their dimensions.” (Fascinating bio on her btw, click her name.) The Essential Ellen Glasgow Collection (8 books). Some people however, see ruts as a path to success, as a Grand Mason once said in a speech ruts indicate the paths others have taken and can lead you there as well. Or as novelist Arnold Bennett said “The great advantage of being in a rut is that when one is in a rut, one knows exactly where one is.”

However in today's fast changing business world a rut is not a good place to be. And unfortunately past success can lead to thinking in a rut. While there is nothing wrong with savorying the success continuing to repeat the mantra "If it ain't broke, don't fix it!" can become an obstacle to effective strategic foresight. As Hines and Bishop say in Thinking about the Future, Guidelines for Strategic Foresight the organization needs to be constantly reminded that all performance follows an "S-curve" and will eventually slow down. To be prepared for this slow down some strategic foresight is needed in order to have a plan in place. The organization needs to be asking "how do we handle risk and how do we handle failure."

According to them the "rut of success" can become a foxhole, it shields people from the incoming missles of failure or slowdown. Companies that want to break out of the "rut of success" must accept failure and reward risk. There have been many companies and many industries that rode in the rut of success until they found that the rut had gotten so deep it had become a road block to further success. Think music industry. Vinyl, 8-tracks, Cassettes, CDs and now downloads. The industry was not prepared. In the HR field  what about recruitment adverstising? Long set up to handle print media what has the Internet done to them? Many say that the same type of thing is happening to job boards because of social media.

So always be thinking ahead. Do some scenario planning. Do that enviromental scanning. Look at past successes turned failures to provide examples of how you need to be planning your exit strategy from your rut of success before you are stuck and the road to success becomes blocked by that success.

NLRB Is Set to Rule in Favor of Unions Not Employees

I know most of you have to stiffle a yawn when you see a post about unions. Well you shouldn't! It is important stuff under the actions of the current administration. But I will try to keep this relatively brief. First a little background. The National Labor Relations Board (NLRB) is made up of 5 appointed members, 3 from the political party in power and the other 2 from the other party. Today that means the the NLRB is composed of 3 Democrat party appointees and 2 Republican. The actual number seated will depend on resignations, tenure of appointment (as in a recess appointment), and difficulty of getting appointees through the Senate approval process. During the Bush administration the Senate Democrats blocked a number of appointments so that NLRB was usually small in numbers. But they still decided on a number of cases.

One of these cases was that of Dana Corp. The issue at hand dealt with voluntary recognition of a union by management and whether employees had the right to contest that voluntary recognition by calling for a secret ballot election to decertify the union accepted by the company. The Bush-era NLRB said "yes" employees have that right and they altered the "bar to an election" that prohibited an election within one year of voluntary recognition. They said that EMPLOYEES may petition for an election. You can read the decision from the NLRB by clicking here for the write up.

This is a decision that  I personally agree with. In the world of union organizing the signing of authorization cards can be subject to acts of intimidation and people may be inclined to sign in order to save their kneecaps. Thus presentation of a bunch of cards with signatures may not accurately reflect the true feelings of the employees. Giving them a chance to vote on the union status will give you a more accurate test.

And that is the way things stand today. However, because the Bush-era NLRB was understaffed a Federal court declared that decisions made by that board were invalid and ordered the current NLRB to revisit those  (nearly 800) decisions. One of the first ones up is Dana Corp. And the early indications are that they will reverse the decision. They will declare that the voluntary recognition bar must stand and that if a union and management agree on the majority status of a union, and deem them to be the official representative of the employees, the employees will have no say in the process. For a great analysis of this and a story of personal experience in this read Jon Hyman's Card Check is Dead...Long Live Card Check.

What I find telling about this is that the NLRB is NOT about protecting the rights of employees, it is ALL about protecting the union organization. They are not interested in employees getting what is good for them, they are interested in protecting the status of the union, who through possible intimidation may be able to convince an employer that their employees would like to have that union. The unions know, as does the union-friendly NLRB, that if these situations are put to the test of an election they may lose because the true desire of the employees is expressed on the ballot and not on the authorization card. So the best way to prevent that is to take away the secret ballot election, much like EFCA was proposing.

So there you have it. The NLRB's first major decision will be one that is pro-union but ANTI-EMPLOYEE. So much for having your rights protected....

Employee Handbooks: Damned If You Do, Damned If You Don't

In my consulting practice (which is geared primarily toward small businesses) I see and revise, or write, alot of employee handbooks. Some are well done, most are generally not. Few are recently revised and most are out of date, woefully out of date. Even in some larger companies keeping you handbook current can be a challenge in a rapidly changing legislative environment.

I occasionally run into a company that feels they don't need to have an employee handbook. To them I explain that they are missing a superb communication piece that not only helps them comply with many legislative requirements but can help them communicate culture and expectations. Other times I run into companies which have handbooks that are so legalistic that even I have a hard time understanding them. To them I also explain they are missing a superb communication opportunity.

Another common mistake I see is that rather than having a handbook to guide employees the company produces a "policy and procedures" manual. This is a mistake. A P&P manual is great for supervisors and managers to be able to understand the actions they must take regarding employee interactions and behaviors. It is, however, not something you want to give to your employees. A P&P manual will by its nature be too wordy and complicated for what you are trying to accomplish.

Here are some tips that I have learned about employee handbooks that you may find helpful:

1. Remember is is a communication tool. It should be written at a level to enhance understanding by your employees. It should also be written to communicate your culture. One of the best I ever saw at doing this was one written a number of years ago by The Motely Fools. It match the culture perfectly.
2. Remember, there are compliance issues that need to be dealt with, such as FMLA, harassment, USERRA, etc. But these do not have to be presented in a legalistic manner.
3. Remember this is NOT an contract and you do not want it to be. So a good review by an attorney is a good idea.
4. Remember you do need to have some disclaimers in there, such as NOT a Contract, Employment-at-Will, and management's right to change policies without notice.
5. Remember to have an Acknowledgement signed. The unemployment office will ask if the employee knew the rules.
6. Remember, special agreements, such as non-disclosures or arbitration agreements need to be separate documents and not buried in a handbook.
7. Remember, try to present things in using positive language. Make it more about the "do's" of proper behavior rather than the "don'ts".
8. And lastly, train your supervisors and managers on what is in the handbook! And have a procedures manual for them on what to do when confronted with a situation.

Of one thing I am certain. You must have an employee handbook. You may have to dance around some issues if it is poorly done, but more often than not, the FAILURE TO HAVE A HANDBOOK will get you in trouble many more times than when you have one.

I am sure I have missed a number of good ideas. What are they? Let me kow.

Don't Use Sexual Harassment to Sell Doughnuts

Quik Trip is a chain of convienience stores in 10 states. They have a heavy representation in the State of Georgia, over a hundred stores. I am a frequent customer. They are clean, well lighted at night, and their employees are efficient and generally friendly. I even enlisted them one time to come to a job fair I was hosting at a local high school. So what I am about to say does not come from a dislike of the company or its business.

I heard one of their radio ads the other morning and I was APPALLED! Here is the scenario of the ad. A woman in an office is having to fend off the attention of a co-worker wants to date her. He is persistent and pushy. He promises to stop asking her for a date if she will go out one time for coffee with him. She relents and she picks Quik Trip for a cup of coffee... and oh, a doughnut, because it is quick, with the emphasis on the quick. That way she can be done with him in short order and not have to endure a disagreeable date.

Well perhaps it is my HR sensabilities but I practically screamed at the radio "YOU CAN'T USE SEXUAL HARASSMENT TO SELL DOUGHNUTS!" I can guarantee the marketing person that put that ad together was not a woman. Too many women in business and school have to deal with this kind of crappy situation. And they should not have to. This woman in the commericial should have been reporting this jerk to her boss or HR department rather than accepting a "date" that could lead to an unsafe situation.

I would encourage Quik Trip to drop this ad as soon as possible and to encourge their ad agency to engage in some sexual harassment training awareness because obviously they don't get it. (BTW, I happen to know a consultant that could help them with that. ) Perhaps in the future they need to have HR screen some of the ads.

But as a lesson to everyone, DON'T USE SEXUAL HARASSMENT TO SELL ANYTHING.

Employment Law Compliance: It Is Not Your Father's USDOL

I know there have been some arguments amongst HR people calling for reform in the HR field to have "legal" handle compliance and let HR deal with "people/talent" issues. My reaction to that statement is that it works very well in a company that has "legal". However, far many more companies do not have an in-house legal department and to go to outside to legal counsel would be very expensive. So the HR practioner has to be the "compliance officer." And in today's world that is NOT a simple issue. As I have stated many times in this blog the world of employment compliance is much more complicated and dangerous. The USDOL has hired 250 more wage & hour investigators, another 200 or so OSHA investigators, another 100 or so contract compliance officers for the OFCCP, the IRS is putting on more people to investigate independent contractor situations, the EEOC has been given several million dollars to beef up its efforts, ICE is getting hot and bothered about I-9s and all of them say the fines will be increased heavily and they are looking for CRIMINAL cases not civil remedies. And State DOLs are jumping on the bandwagon too.

One well known "Co-Employer" or PEO, which used to advertise their services as a way to recruit and retain employees is now advertising using the phrases "Trampled by overpowering employment law", "steeper fines", "harsher penalties" and "choking on red tape". So people are starting to sit up and pay attention. You should too...

I borrowed from the old Oldsmobile commercial for my title. This is not the same USDOL from 20 years ago. This one has stated you as an employer are stealing from your workers and they are out to get you. So beware and remember this is the US DEPARTMENT OF LABOR, NOT THE US DEPARTMENT OF EMPLOYERS. Hone those compliance skills and keep up to date on the ever changing world of employment law.

And, by the way, you had better pay attention to the National Labor Relations Board too. They also are not on your side and may make rules changes that may make it much easier for someone to organize you employees. You make wake up one day and have a union in your lap.

Great way to start a week huh?....

Creating Jobs By Eliminating the Minimum Wage

I mentioned earlier in the week that the September 13th issue of Forbes had several articles that I wanted to post about. The second of these is an article entitled Scrap The Minimum Wage written by Art Carden, and assistant professor of economics and business at Rhodes College in Memphis, Tenn. Dr. Carden talks about his research that shows that "The effect of a minimum wage is a classic example of the law of unintended consequences. Minimum wages create unemployment: At above-market prices people want to supply more labor than employers wish to hire." He goes on to suggest "Repealing the minimum wage would have two effects. First, it would create job opportunities, particularly for teenagers, and the chance to acquire experience today that can translate into higher future earnings. Second, it would send a powerful message to employer, employees and investors that they can hire and invest without fear of punishment."

Carden makes the observation that the increase in the minimum wage from $5.15 per hour to $7.25 per had the effect of reducing employment 6.9% among teens, even more so for minority teens. Carden writes that repealing the minimum wage would create work and says "even a low-wage job in most cases beats no job and no wages." He points out that "supporters of the minimum wage argue that earning $7.25 an hour makes a statement about the kind of society we live in." But as he further states "Unfortunately, that statement amounts to: "We don't understand how competitive markets work." He concludes with "Minimum wage advocates might mean well, but other people without jobs can't buy food, clothing and shelter with others' good intentions."

I like Carden's idea. I have seen companies that cut down on staffing because of the increase in the mimimum wage. Just like overtime, minimum wage was put in place during a time of economic depression and recovery in order to "provide" for the welfare. I have also seen the marketplace work where companies did not pay minimum wage, even fast food companies, because the labor pool was too small and they were competing for workers.

However, I have a very hard time seeing this coming about. Just like anything else, especially govenment programs and mandates, if you provide it too long it becomes an entitlement. I don't see any politician supporting getting rid of the minimum wage. I see the reverse. In today's environment I actually see another minimum wage increase coming. Another 3 step process to get it to $10  per hour. It will most likely be called the Ted Kennedy Memorial Wage Increase or Wage Increase for Equity (WIFE). Let's see how good of a futurist I may be...

Good News! The Sex Pay Gap Is Gone!

In a September 2, 2010 article in USA Today reported research done by Reach Advisors on 2008 Census data. This data compared the income data for single men and women ages 22-30 in major metropolitan areas. The results showed that single women in this age bracket when compared to single men in that age bracket out earned them by significant factor, in a range of 12% to 21%. Several factors where cited, but the prime reason was education. More women than men are going to college and they are 1.5 more likely to graduate. This trend is even more apparent in cities with higher minority populations. As an example single women in the study made 21% more than their male counterparts in Atlanta.

Women in their 20's who are married and have children do not have the wage advantage their single "sisters" have. They are making just 90% of what married with children males make. Hmmmm... could that be due to the career interruption of having the child? Could it also be that women in that age bracket with children are also less likely to have college degrees?

Does this mean that sex discrimination in pay may not be the "great evil" it was once considered to be? Does this mean that legislation such as the Paycheck Fairness Act is unnecessary? Can the market actually take care of this, as many have postulated?

What do you think???

Solution To Job Creation Is To Make Everyone an Entrepreneur

The September 13th issue of Forbes magazine had several interesting articles on job creation. The first one I want to discuss is that of Tim Kane of the Ewing Marion Kauffmann Foundation. Mr. Kane's article is entitled Every Man (and Woman) An Entrepreneur. (Sorry no online version available). He makes the point that America will not see more job creation without more job creators and he quotes a study he had done that shows that since 1970 all net job creation was accounted for by new companies. Existing firms since that time have accounted for over 1 million jobs lost. Kane goes on to say that government(s) make becoming an entrepreneur too expensive with fees and taxes and therefore people are hesitant to start companies and thus create new jobs. Without freeing up the ability to start a company by removing these restrictions we will not see the jobs needed being created. He also says that the current structure requires companies to be "paternalistic" and thus life becomes too comfortable for workers discouraging them to become entrepreneurs. His solution is to make everyone an entrepreneur.

Now being an entrepreneur myself, since 1991 in fact, I am all for the concept. I am also for the concept of reducing taxes, removing fees and other roadblocks to people starting businesses. The only problem is the Federal and state governments themselves, particularly the current Federal administration. Mr. Kane even gives the real reason they will not change things to allow freer entrepreneurship. The third line of his article is "Of all the money government collects, none makes less sense than the $800 billion a year scraped from payrolls." There is the answer... $800 BILLION... which I will say is easily collected from payroll taxes on corporations. If the government had to try and collect that from individual entrepreneurs they would be broke. And the government is not in a mindset to collect less taxes, they blame tax breaks for the recession.

Additionally, the current mindset of the Federal government is that workers cannot protect themselves so they have to do it. If everyone was an entrepreneur what would the US DOL do?

So as noble and productive as the idea may be of making everyone an entrepreneur, free to negotiate pay and benefits, I just don't see it happening anytime soon. Any of you know any politicians willing to give up $800 billion?

The History of Labor Day

Labor Day as an observance of the "working man" originated in 1882 in New York City and was observed on September 5th of that year. Although the originator is in some dispute it is generally attributed to Matthew Maguire, a machinist and  later secretary for a machinist local. In 1884 the first Monday of September was suggested as the day of observance, rather than the 5th of September. As labor unions caught on the movement for celebrating became more widespread. That did not occur until 1894 following a contenscious and violent strike by Pullman Rail Car workers, which had been declared a violation of Federal law, by President Grover Cleveland. Because it was an election year, Cleveland was looking for a way to appease the labor unions (gee imagine a politician doing such a thing). Thus right after the Pullman strike was settled (not in favor of the union by the way) Cleveland had a law rushed through Congress and he signed it 6 days after the strike ended. That made Labor Day a Federal holiday. (It also cemented it in September, keeping it away from May Day, which many European countries celebrate for workers and communists and socialists.) States also passed state legislation and the dawn of the 20th century saw widespread observance.

The holiday was origianlly supposed to be on involving speeches and parades. Today it has lost much of that ballyhoo.. It is for many the mark of the end of summer. Pools close, even though in the South September can be a very hot month. So we head to lakes. Children get ready to return to school, though that has changed too. Here in Georgia kids have been in school since the middle of August. It is marked by massive retail sales. Cars, appliances, home goods and much more go on sale. It also means that Halloween candy, if it is not already out on store shelves, will soon be.

It is no longer a day, which, as Samuel Gompers, head of the America Federation of Labor (the AFL in what would become the AFL-CIO that most people are familiar with) once called it "the day for which the toilers in past centuries looked forward, when their rights and their wrongs would be discussed...that the workers of our day may not only lay down their tools of labor for a holiday, but upon which they may touch shoulders in marching phalanx and feel the stronger for it."

So if you happen to be reading this on Monday, September 6th, then finish up, pop a cold one and put a burger on grill for me.

For further reading, as if you might be interested you can go to these links:
Pbs.org online NewsHour
USDOL History of Labor Day
Labor Day in Wikipedia

A Pre-Labor Day Warning

As we come up to Labor Day, a day originally intended to appease labor unions, I thought it would be constructive to remind readers of the current state of affairs with the U.S. Department of Labor. Notice that last word please... it is NOT the U.S. Department of Employers. There is a Secretary of Labor, who has a union background and family history. She has publically stated that that employers are stealing money from their employees and that she is "the new sheriff in town" who will rectify the situation. So the Wage & Hour section has hired more investigators. The Office of Federal Contract Compliance, part of the USDOL, has also stepped up investigations, in particular applying a standard of equal wages to federal contractors. OSHA, also part of the USDOL, has hired more investigators and the Assistant Secretary has announced that he intends to pursue CRIMINAL solutions to safety violations.

The USDOL has also broadcast a program called WE CAN HELP. See my April 6, 2010 post entitled US Department of Labor: It's War! And Employers Are The Enemy .

So what can you do as an employer? Well I would suggest the following:

• Have accurate records of all employees rates of pay.
• Make sure all employees are accurately classified.
• Make sure your independent contractors are indeed independent.
• Have clear policies on overtime and make sure employees and supervisors know them and follow them.
• Have clear policies on work performed outside of "normal" work hours. Often called "donning" and "doffing" rules they deal with the prepartory work necessary to do work.
• Make sure people taking meal breaks do so for at least a half hour and that they are full relieved of ALL duties.

I will give you an example of a violation. My son worked for a landscaping company. The boss had them arrive at the workplace for a meeting prior to being released to the worksite at 8 am. He did not pay them for the meeting. He paid them from 8 am until 5 pm. His reasoning was that they were not performing the work they were hired for by sitting in the meeting. BIG NO-NO.

So if you are dealing with alot of hourly workers be very, very aware.

A Great Job Description for HR?

I received the most recent issue of The Futurist, the publication of the World Future Society. (I have just joined because I want to be a futurist. Saying that reminds me of the movie It a Wonderful Life where young George Baily says "I am going to be an explorer, because I am a member of the National Geographic Society." ) Anyway, I digress. The first article I read was the featured one entitled Wisdom Facing Forward-What it Means to Have Heightened Future Consciousness, written by Tom Lombardo. Lombardo is a psychologist and is the director of the Center for Future Consciousness and is the author of The Evolution of Future Consciousness: The Nature and Historical Development of the Human Capacity to Think about the Future. He also wrote Contemporary Futurist Thought: Science Fiction, Future Studies, and Theories and Visions of the Future in the Last Century.

Ok, so far you are saying "so what?" while stiffiling a yawn. But stick with me, I will get to HR. In this article Lombardo connects wisdom and future consciousness. To him both require similar thought processes. As I read further I started to think this would be a good job description for the Chief Human Resources Officer (CHRO). See if you agree. Lombardo defines wisdom as:

"...the continually evolving understanding of and fascination with the big picture of life and what is important, ethical, and meaningful; it includes the desire and ability to apply this understanding to enhance the well being of life, both of for oneself and for others.... wisdom sees the forest and not simply the trees. It searches to the horizen and beyond, and identifies what is really signigicant in life.... it combines knowledge with practical application (and) lastly wisdom has an ethical dimension. It is not simply self-serving, but is applied to the benefit of others."

Lombardo then goes on to define future consciousness as:

"...part of our general awareness of time, our consciousness of past, present, and future. It is the human capacity to have thoughts, feelings and goals about the future. It is the total integrative set of psychological abilities, processes and experiences that humans use to understand and deal with the future. Future consciousness covers everything in human psychology that pertains to the future."

To offer a summary statement Lombardo says "Wisdom brings the lessons of the past to the problems and challenges of today and tomorrow; heightened future consciousness see patterns across time and extrapolates from past and present into the future."

I don't know about you but that is a pretty good description of a skill set I would want to have in my CHRO. It sounds strategic. It embraces ethics and empathy. There is a future focus that allows proactive actions, yet maintains a touch point with the past.

Perhaps we should put more screening for wisdom in our HR hiring and promotion processes. What do you think? Know anyone in who exhibits both wisdom and future consciousness?

Unions.. Well What Can I Say

Ah Yes....Local 32BJ of the SEIU was out marching the other day (as an anti-rally to Glenn Beck's Washington rally) showing you why you want to be a union member. They are all about workers' rights and freedom and the AMERCAN way... oops... isn't that missing something... that's right! There is no "I" in union it is "WE."  No... wait a minute there is an "I". Hmmmm may be we need to change the spelling to UNWEON.

(photo credit Joe Schoffstall, eyeblast.tv)