Surviving a visit by the Feds: How do handle the regulators and survive

Because the current administration is taking an aggressive stance to ensure compliance to these and existing rules, tens of thousands of new regulators are being added to the federal payroll.

As a result, the chances that your organization will be audited by one or more federal agencies are significantly higher than ever before.
If your organization is confronted by a federal regulator, keep the following points in mind:

• Beat the regulators to the punch. Conduct an annual self-assessment of your organization focusing on those areas where you might be the most vulnerable. Particularly audit FLSA exemptions, discrimination in hiring, pay, promotions and other employment benefits, and safety. Familiarize yourself and ensure compliance with new federal healthcare regulations as they are published.
• Get help. Your first act after receiving notice of a federal audit or having a regulator knock on your door for a surprise visit should be to call your attorney. In certain situations, it is better to deal with regulators through an experienced representative.
• Remember the golden rule. Regulators should be treated professionally and with courtesy. Rude or obstructive behavior will only come back to bite you in the end.
• Regulators are not your friends. They have come to your organization to ensure that you are complying with the law and will do what it takes to ensure your compliance.
• Document discussions and agreements. Do not assume the regulators will remember tomorrow what they agreed to today. Make sure any disagreements with findings, views, or processes are noted in writing and delivered to the lead regulator as soon after the event as possible.
• Understand the regulator’s options and your options. Make sure you are clear as to what the regulators can examine, how the examination may occur and what types of decisions the regulators might render. Understand your options in dealing with the regulator’s proposals. DON’T ASSUME ANYTHING.
• Work for a win/win solution. Understand that the regulators are not there to put you out of business, but to ensure your compliance. As a result, they may be willing to negotiate a reasonable conclusion that corrects the problems they identify while limiting the financial or administrative impact on the organization.

Business ethics: constancy in a world of change
Unprecedented change is affecting our business and personal lives. Does this mean personal and professional ethical values are changing too? The Committee of Sponsoring Organizations (COSO) formed under the direction of the Treadway Commission (a gathering of public and private sector representatives asked to study fraudulent business activity) identified integrity and ethical values as a primary component of organization success.

Participants in this training program will understand the role of ethics in business dealings and gain a greater appreciation for strong moral principles that not only minimize corporate liability, but ultimately, maximize company profits.

To learn more about this and other BAI services and workshops, call us today at 801.444.9919

Pay overtime or pay up!

As we’ve mentioned in previous editions of The Employer’s Advantage, the US Department of Labor is significantly stepping up its oversight and regulatory enforcement activities. As proof, the Department of Labor announced that employers who intentionally or unintentionally fail to comply with federal regulations will be liable for back pay AND liquidated damages. In the past, liquidated damages were only assessed for intentional violations.

To support this increased regulatory intervention, the DOL has hired over 1,500 new compliance officers.

We cannot emphasize enough the importance of accurately tracking hours worked and paying overtime at one and one-half times the hourly rate for any work done in excess of 40 hours per week. Even if employees volunteer to work overtime without pay or work overtime without permission, THEY MUST BE PAID.

For private sector employers comp time unless taken in the work week in which it is earned is not permissible. While the public sector has enjoyed the flexibility of comp time for over two decades, federal law strictly prohibits private employers from doing so.

Paying employees on a salaried basis DOES NOT alleviate overtime pay requirements. ALL employees must be paid overtime regardless of whether they are paid hourly or a salary unless the employee’s specific job duties qualify for a federal overtime exemption.

For your protection, establish and distribute your pay policy to all employees. Ensure first line supervisors are particularly familiar with the policy and understand that violation of the policy may lead to disciplinary action, up to and including discharge.

Pay issues are coming to the legal forefront and they are costly in time and money. To avoid problems with the regulators, ensure you scrupulously comply with every aspect of federal wage and hour law.

The BAI employee opinion survey will let you take your organization’s temperature!

The BAI employee opinion survey process is an invaluable tool that secures and analyzes employee perceptions on a variety of critical business issues. Not only does it generate the hard data required to make sound decisions related to successfully managing employees, it helps identify training needs, potential discrimination or harassment problems, perceived salary inequities, possible union organizing initiatives and a myriad of other issues that cost organization’s valuable time, attention and money.

Ultimately, the BAI employee opinion survey process creates greater employee commitment to the organization and its ongoing success by giving employees an opportunity to share their opinions and perspectives in a meaningful way.

To learn more about this and other BAI services and workshops, call us today at 801.444.9919.

Asking job applicants about criminal convictions

Several weeks ago, the Equal Employment Opportunity Commission issued guidance to employers regarding criminal background checks. The commission suggested that employers should remove questions about criminal convictions from employment applications because these questions adversely impact African American and Hispanic job applicants.

Instead, employers are encouraged to evaluate what information they ask in relation to the specific position being filled and when they should ask it. In most situations, information regarding criminal convictions should be incorporated into later phases of the selection process and tailored to the exact job in question.

For example, if the applicant is being considered for a cashier position, questions probing for information about convictions for theft, fraud, or related crimes would be appropriate during a job interview. Likewise, candidates being considered for a position in a school or similar work environment should be asked about convictions for sex-related offenses.

Because the guidance does not have the force of law, employers may choose not to follow the commission’s direction and instead continue to request conviction information on the employment application. While this may be an appropriate short term strategy, careful consideration should be given to reviewing policies regarding criminal convictions and how these policies apply to specific job families in your organization.

Understanding the brain and how it helps you be a better manager

Neuroscience is the physiological study of the brain. Thanks to new technology including magnetic resonance imaging (MRI) and positron emission tomography, researchers are able to study the neural connections as they happen in the living brain. This research is shedding new light on human behavior and has tremendous implications in how to most effectively manage people.
Some of the most important implications include:

• People need sufficient sleep to integrate learning into long-term memory.
• Social pain such as rejection or being belittled affects the brain in the same way as physical pain.
• Social fairness and respect give the brain a chemical boost while unfairness and disrespect do the opposite.
• Stress causes people to think unclearly.
• Uncertainty arouses fear circuits and decreases the ability to make decisions.
• People require ownership over decisions to accept change.
• Engaging people in more active learning techniques improves retention.
• People’s ability to think clearly is hindered when they are exposed to uncertainty or their expectations are not met.

By understanding the results of neuroscientific research, managers can better create and implement strategies that will maximize employee productivity and engagement.

Think carefully before you add to staff!

As the economy gradually improves and your organization starts to consider adding to your headcount, ask yourself the following questions:

• Is adding full time positions to the organization congruent with our strategic plan? It’s critical that staffing requirements are based on your organization’s strategy. If you haven’t updated your strategic plan and established a clear direction for your organization, you should not even begin to consider additional headcount.
• Have we considered the cost of a new hire? Base salary is only a portion of the overall cost of an employee. You must also consider costs related to recruiting, benefits, employment taxes, and other overhead expenses.
• Have we considered using temps? Not only do temporary agencies relieve you of much of the administrative burden connected with the hiring process, but they allow you staffing flexibility and the opportunity to “try before you buy.”
• Have we clearly identified the skill sets and character attributes that we require to meet our internal job requirements and ensure the employee fits in the organization’s culture? The better you clarify the type of person who will be successful in a given position, the greater the chance that the person will succeed in the job.
• Are the managers, supervisors, and employees who will be involved in the recruiting process adequately trained? This means these individuals not only understand the full range of skills and personality traits that the organization requires, but they are intimately familiar with best practices and legal requirements related to recruiting and hiring.

While an improved business outlook may be great for your organization, don’t create future problems by making staffing decisions precipitously. Wise managers understand that adding to regular headcount should always be a course of last resort.


BAI salary surveys help you keep pace with the market
Most organizations desire a pay structure that is competitive within the marketplace. This, however, is easier said than done. Because market pricing is not an exact science and because market pressures create an endless ebb and flow, it is difficult for most companies to identify and manage salaries relative to their actual market position.
To help organizations maintain a competitive compensation structure that makes sense and controls costs, BAI provides the following assistance:

• Conduct targeted salary surveys tailored to a client’s particular target market.
• Design and conduct surveys to identify competitive benefit and perquisite packages.
• Wage and salary data from BAI’s proprietary salary database.

To speak with a BAI compensation consultant about this and other services and workshops, call us today at 801.444.9919.

Fair compensation key to employee retention

Despite the fact that unemployment continues to hover above 8%, an increased demand for skilled workers and key contributors is creating higher turnover for many employers. To avoid losing their best and brightest, organizations should be doing all they can to retain their talent and limit the likelihood that these valuable assets are wooed to work for the competition.

For many companies, this may be an uphill battle. According to a recent Watson Wyatt survey, commitment levels of top performers have fallen by nearly 25%, while over a third of top performers feel their relationship with their company has worsened.

As the economy improves, valuable workers who have felt neglected and unappreciated will readily discover that the fastest way to obtain a significant pay increase and brighter employment prospects may be to change employers. The loss of key performers during this period of renewed economic expansion can be devastating.

While it should be noted that increasing pay does not typically enhance employee satisfaction, failure to pay what the employee feels is fair is a prime dis-satisfier. It is, therefore, critical for employers to ensure that they are paying competitively, particularly for skilled workers and key contributors.

Another compensation challenge facing employers is the continuing downward pressure on wages of unskilled and semi-skilled workers. As a result, many employees in these positions may be currently over-paid relative to the market.

As employers look for ways to manage payroll costs, careful evaluation of compensation levels for all job groups should be undertaken. Traditional annual merit increases might be reconsidered in light of the market’s downward pressure.

The bottom line is that it is now time to sit down with your organization's compensation consultant to develop an appropriate strategy and plan that best fits your retention objectives. Failure to do so could well result in a situation where you retain employees you can afford to lose and lose employees that your organization is counting on.

To speak with a compensation consultant or to learn about other ways BAI can help your company grow, call us today at 801.444.9919.

Obamacare mandates time and space for nursing mothers

Under provisions of the Patient Protection and Affordable Care Act (a.k.a. Obamacare), companies are required to provide break time for nursing mothers “to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express milk.” According to the law, employers must also provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”

This law applies to all companies with a total of 50 or more employees regardless of where these employees are located and applies to all nonexempt employees of the organization.

Employers with fewer than 50 employees are not subject to the law if compliance imposes undue hardship determined by the difficulty or expense of compliance in comparison to the size, financial resources, nature and structure of the employer’s business.

While under federal law employees need not be compensated for the break, if the company currently provides compensated breaks, an employee who uses this time to express milk must be paid in the same way other employees are paid for breaks.

For additional information about break time for nursing mothers, please refer to the following US Department of Labor Fact Sheet: http://www.dol.gov/whd/regs/compliance/whdfs73.htm .

To learn more about this and other human resources issues, call BAI today at 801.444.9919.

Executive coaching creates competitive advantage

Executive coaching is a management development approach that involves personal interaction between a coach and an executive to improve job performance. Like personal trainers hired by athletes to enhance their competitive capacity, coaching has become the tool of choice for helping executives and managers adjust to the challenges of today’s demanding business environment.

Executive coaching typically consists of a series of one-on-one interactions between a coach and an executive or manager that focuses on the components of job performance. Coaching typically involves an initial assessment, face-to-face discussions, telephone conversations and email communication. Coaches serve as trainers, facilitators, motivators, moderators, sounding boards and confidantes. Although not a substitute for psychological counseling or substance abuse treatment, coaching assists individuals in addressing crucial managerial weaknesses and can empower executives to higher levels of performance.

While coaching was originally intended as a mechanism designed to save problem managers, it has become the central process for enhancing performance of key personnel throughout the organization. Because of the effectiveness of this one-on-one approach to management development, companies like Coca-Cola have made coaching central to their management development process.

Although large organizations have adopted comprehensive coaching initiatives, executives and managers of small and midsize companies find even greater success with coaching efforts. Because executives in these organizations generally have limited developmental resources, coaches offer the objective perspective that only an outsider can provide.

When was the last time you took the pulse of your organization?
When was the last time you asked your employees how they feel about working for you? The BAI employee opinion survey process is an invaluable tool that secures and analyzes employee perceptions on a variety of critical business issues. Not only does it generate the hard data required to make sound decisions related to successfully managing employees, it helps identify training needs, potential discrimination or harassment problems, perceived salary inequities, possible union organizing initiatives and a myriad of other issues that cost organization’s valuable time, attention and money.

Ultimately, the BAI employee opinion survey process creates greater employee commitment to the organization and its ongoing success by giving employees an opportunity to share their opinions and perspectives in a meaningful way.

To learn more about this and other BAI services and workshops, call us today at 801.444.9919.

Your HR to-do list

With a more aggressive federal regulatory stance, it is critical that you are proactive in your efforts to protect your organization. The following is a list of action items that should be priorities for every organization:

• Update your company FMLA policy. The Family and Medical Leave Act impacts most organizations with 50 or more employees. Although changes in the policy went into effect in 2009, many organizations have failed to update their policy to reflect those changes. 
• Review your organization’s harassment policy. During the next staff meeting, ask each supervisor to read and discuss the company’s harassment policy with all employees. Specific prohibited behaviors should be discussed along with penalties for failure to comply with the policy and avenues for reporting harassment. Dates for annual harassment training should also be set.
• Get to know GINA. The Genetic Information Nondiscrimination Act which became law in November, 2008, prohibits among other things, employers from collecting genetic information or engaging in any type of employment discrimination based on genetic information. As a result, it is critical that you review your wellness programs, your physical exam practices, your hiring procedures to ensure that prohibited data is not collected. It is also critical that EEO, discrimination, and harassment policies are revised to reflect a prohibition of discrimination or harassment based on genetic information.
• Audit your I-9 files. Review your I-9 documents and procedures to ensure you are complying with the law. US Immigration and Customs Enforcement has recently announced that it will significantly increase I-9 audits. Failure to comply with the regulations may result not just in stiff monetary penalties, but could also result in jail time for company managers.
• Review the exemption status of each employee. Re-familiarize yourself with the Fair Labor Standards Act and review the exemption status of each exempt employee to ensure the exemption is appropriately granted. REMEMBER, YOU CANNOT JUST PUT AN EMPLOYEE ON A SALARY AND THEN EXPECT THEM TO WORK OVERTIME WITHOUT COMPENSATION. The law requires that all employees who are exempt from overtime pay meet a series of very strict rules. Failure to comply may result in costly litigation and stiff fines.
• Update your technology resources and social media policies. Ensure that these policies clearly inform employees that they have no ownership of emails, text messages, voice mails, or other media using company equipment. They should also limit the employees’ ability to share confidential or proprietary information on blogs, postings or through other electronic means. Finally, the policies should clearly state that the employee should expect no right of privacy with regard to the workplace and work-related activities.

While this list of action items is by no means comprehensive, it does provide a starting point for protecting your organization’s investment in its human capital.

If you have questions about any of these or other issues impacting your organization, feel free to call BAI consultant Allen Miller at 801.444.9919.

Have you held your annual harassment training?

In 1998, the U.S. Supreme Court issued two decisions that have had tremendous impact on business. These decisions, known as Faragher and Ellerth, set standards regarding sexual harassment in the workplace. While the Faragher and Ellerth decisions clarified definitions of sexual harassment, the real impact of the cases involved who was liable for harassment when it occurred.

In Faragher, the court ruled that the employer was liable for harassment regardless of whether or not the company was aware of the behavior. In Ellerth, the court declared that harassment could occur even if there was no tangible detrimental impact on the job of the person being harassed.

While these decisions seemed to make life more difficult for employers, the court provided a clear defense. This defense has two parts: The company can show that 1) it used reasonable care to prevent harassment and 2) the employee failed to make the issue known to proper authorities in the company.

In one of the written decisions, the court specifically cited the employer for not providing adequate training. This sent a clear message to companies throughout the country that failure to adequately train supervisors and employees regarding all aspects of sexual harassment in the workplace deprives the company of its most effective defense.

To paraphrase a Nation’s Business article that appeared soon after the decisions, as a result of the Supreme Court’s most recent sexual harassment rulings, companies of any size must have sexual harassment training for supervisors and employees. (Nation’s Business, December 1, 1998, p. 18.)

With over 25% of all discrimination and harassment suits costing businesses in excess of $1,000,000 each, conducting a carefully developed sexual harassment seminar for supervisors and employees will be time and money well spent.

Contact BAI consultant Allen Miller today at 801.444.9919 for to schedule harassment training for your organization.