Some Days There is Just Nothing...

There are some days that WRITERS BLOCK rears its ugly head. Today is one of those days. So, since you have nothing great to read from me, I suggest you go to my friend Jon Hyman's site and take a look at the compilation of blog posts he has read this week. I am flattered he put me in there. But there is alot of great stuff, most of it centered around compliance, that he has included. So check him out by clicking WIRTW #157 (the naughty or nice edition) Posted by Jon Hyman on Friday, December 17, 2010

Three Very Good Reads for a Wednesday

Here are three blog posts that are informative and thought provoking that would be well worth your time reading.

1. The first comes from Jon Hyman. Do You Know? ABA/DOL's Bridge to Justice (or Bridge Over Troubled Referrals) I have written about the link between the USDOL and plaintiffs attorneys, but Jon treats it in greater detail. Be afraid, be very afraid.
2. The second comes from Dan McCarthy at Great Leadership. His post, Great Employees Trump Perfect Processes , deals with the premise that you can't expect that great process are going to make great employees, regardless of what they bring to the table. They have to have the potential.
3. The third comes from Margaret O'Hanlon at Compensation Cafe. Her post,    Do You Hear What I Hear?, discusses the in-and-outs of employee surveys. They are not as easy as just asking questions. And if  you have ever screwed one up, or you ar considering doing one, you need to read her advice.

That is probably enough for a Wednesday, after all you have other things to do I am sure. But this stuff will make you better at your job, so don't skip it.

DOL Stands for Department of Labor NOT Department of Employers

I have written numerous times about the efforts of the US Department of Labor to increase their compliance efforts. They have taken a much more advesarial stance to dealing with employers. To find those posts I have written just do a search on this blog on USDOL. One of the posts you will find deals with their "WE CAN HELP" program. This is designed to help your employees report you, their employer, to the DOL so you can be investigated.

My fellow blogger Jon Hyman, an employment attorney, was poking around on the We Can Help pages and he came across something very interesting. He discovered something called the Work Hours Calendar. It is a tool for your employee to track their work time. It provides a way for employees to record arrival time, start time, break and meal times, stop time and when they actually leave. It gives lessons on overtime, misclassification, and what are called donning and doffing rules. These are the activities employees engage in to prepare for and to conclude work. They are told to keep these records and then to send them to the DOL. You can find this worksheet here.

Jon and I both believe that the Wage & Hour division is looking in particular for violations that can be classified as "off the clock". I strongly suggest that you go to Jon's blog and read his take on this. He can be found at  Do you know? The DOL is encouraging employee covert ops in your business.

Pay particular attention to his final line. Can you really put off that wage & hour audit? I don't think so. Find yourself a good consultant or good attorney and get this done. (In great modesty, I can make a very personal recommendation for a great consultant. )

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.)

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....

Five Great Blog Posts to Read for MidWeek

If you are like me you get a ton of things to read. Sometimes it is just INFORMATION OVERLOAD! That is why I like to have colleagues point me to great posts and articles to read. (A good use for Twitter, btw.) So I figured I would do the same for you. Here are five great blog posts that I think you will find useful and informative.

1. Margaret O'Hanlon, over at Compensation Cafe writes on You've Got Lemons...Time for Lemonade. This is a great take on learning and growing and employee engagement.
2. Ann Bares, at Compensation Force gives us a reminder lesson on The Perils of Setting Incentive Plan Targets: Revisiting Some Rules of Thumb. In these turbulent times having some guidance on what to do in the compensation arena is always a good thing.
3. Jon Hyman, at The Ohio Employer's Law Blog, provides us with some advice on what to do when the boss is the sexual harasser in What do you do when the boss is accused of harassment?
   Don't try to pretend you haven't thought of it... so take this advice.
4. Sharlyn Lauby, The HR Bartender, talks about how Being Selfish is Good for Your Career. Tell me that doesn't grab your attention.
5. David Zinger, at David Zinger Employee Engagement, has a great formula for employee engagement, Just Add Spinach

Ok, there you go. I have given you 5 great reads that will make you a much better HR professional or business manager than you were before you started reading this. Get to it!

What Companies Are Getting Sued Over!

Thanks to Jon Hyman over at the Ohio Employer's Law Blog who wrote the other day on Do you know? Employment Litigation Expected to increase in 2010. It was an eye opener. I clicked through from his blog to the Fulbright & Jaworski Fifth Annual Litigation Trends Survey and Highlights and read through the employment law section. Here is some of the information I gleaned from that report, but I would recommend you look at Hyman's analysis and also the actual report itself.

The report deals with multi-plantiff cases (aka class-action suits?) and here are some of the results (Note: I am only report results from the U.S., but there are results from the U.K. as well):

• In the U.S. largest increase in multi-plantiff cases where in FLSA wage & hour (19%), discrimination (14%), and Americans With Disabilities Act (10%).
• Increases in FLSA wage & hour cases were highest in California, the South and the Midwest.
• Education and retail had the highest increase in wage & hour cases.
• Discrimination increases where highest in education, financial services and retail.
• ERISA cases were highest in the Midwest and retail and engineering/construction sectors.
• Age discrimination cases rose the highest in education, financial services, retail, and technology/communication.
• Privacy cases were most common in California, but were generally a smaller percent of the overall cases.
• For small companies discrimination was the biggest issue followed by wage & hour. For big companies the reverse was true.

The costs associated with dealing with these cases, excluding settlements often exceed $50,000 per case and almost a quarter of the time exceed $100,000. For a small company that can be devestating. The areas that cost the most to deal with are race, sex and wage & hour cases.

What are we to conclude from these facts and figures? Well the overall conclusion of the report is that companies are going to be spending more on litigation in 2010. Other conclusions that I reached are:

• Education is having some difficulty. That arena made it on just about every list. Anyone have a reason for this? Suggest some.
• Small businesses probably need to do alot more training and education to both supervisors and employees, with race and sex discrimination still being the big expensive issues.
• There is still alot of misunderstanding of the Fair Labor Standards Act, which has only been around since 1938. My experience has been that many companies unknowingly and knowingly violated the FLSA.
• The recession is probably driving alot of this litigation. As people are let go and then have difficulty finding work they start grasping at straws to provide income. One way to do that is to sue your former employer. All the TV ad lawyers will tell you that.

How can you avoid some of this litigation increase? Three things pop to my mind.

1. Understand the laws, train supervisors on the laws, train HR on the laws and abide by the laws. (I can hear all the bitching and moaning about compliance now.)
2. Document that training, document your decisions, especially your compensation decisions (Ledbetter requires it) and document your actions with employees.
3. Treat people with respect and dignity, even when you are firing them for gross misconduct. People are more likely to sue you when they feel like they have been mistreated.

So there you go. As Jon concluded in his blog post about this topic "What does all this data mean for your business? Your legal budgets will likely increase next year. The question you need to answer is whether you want those funds to pay to defend lawsuits, or to proactively audit your internal personnel and employment practices to limit your litigation costs?" I vote that you be proactive! And of course I know a good consultant that would be more than happy to help you. LOL. 

Five Great Reads in Human Resources Blogs This Week

I have done some reading today and I am passing on to you five blogs that I think are important reads. What a great guy I am. (Said blushing... well not really) This is not to say that there are not at least another 100 good blog posts out there to read, there are. But if you read these you will be a bit more educated on some important subjects.

1. First up is Ann Bares at Compensation Cafe. She wrote Managers: The Next Critical Shortage. If you did not have a compelling reason to work on development programs and incentive programs you will now.


2. Secondly is Kris Dunn at The HR Capitalist. He wrote Here's Why Companies That Have Used Card Check In The Past Are Silent These Days... This is an update on the Employee Free Choice Act (EFCA) and why companies that have used card check in the past are NOT singing its praises. Great info from someone who has been there.


3. Eva Rykr, of iOrgPsych writes about The Case for Analytics in HR. She says analytics is more than just measurement. And in this day and age of making a contribution to the organization (so both it and you survive) this is an essential understanding to have. A KEY HR SKILL.


4. Another KEY HR SKILL is giving presentations. Steve Tobak writes on How to Give a Killer Online Presentation. Well the advice works for in person presentations as well.


5. Lastly, but not the least, Jon Hyman tells a personal story that should be very instructive to people about NOT USING COPYRIGHTED MATERIAL in A short rant, and a lesson in employee appreciation. Jon has his taken and he did not take to it kindly, even though the "thief" thought they were doing him a favor. He even throws in a bit of HR wisdom.

Well there you have it. Great reading, great lessons. As always, keep reading HR Observations and pass it on to your friends and colleagues. And BTW, if you know of organizations that are looking for consulting work in human resources I have a great team put together. (Hey it is the first commercial I have ever done.)

Follow Up on Non-Discretionary Bonuses

In my post yesterday, Getting Punished for Doing Good, about QuikTrip's fine at the hands of the USDOL for not calculating non-discretionary bonus into overtime for nonexempt employees I was asked on Twitter if that included non-cash bonuses. Well I was not sure, though I suspected it might if it was production related. So I asked around. Good blog friend Ann Bares pointed me in a couple of directions and I also asked, via Twitter. two attorneys, Eric B. Meyer and Jon Hyman. Both replied that the answer was a resounding YES! I was pointed to the following fact sheet from the US Department of Labor, Fact Sheet #23, which clearly states on page 2 "Where non-cash payments are made to employees in the form of goods or facilities, the reasonable cost to the employer or fair value of such goods or facilities must be included in the regular rate."

So clearly, if you are giving non-discretionary bonuses based upon production standards, the amount of the bonuses or the value of the award must be added to the base pay rate of the employee and then overtime must be calculated on this amount. If you fail to do so you run the risk of falling into the same trap that caught QuikTrip and many others. Go back and read the comments from yesterday, they are very informative.

As additional resources on this topic see also Ann Bares post on Compensation Force entitled
Know Ye the Regs When Awarding Bonuses or Lump Sums to Nonexempts and Michael Moore's post entitled Bonus and other Lump Sum Payments to Nonexempt Employees may Impact Overtime Calculations . Both are very informative.

Now you have no excuse for making this mistake and you can make yourself an HR HERO in your company.