OSHA: "A New Sheriff In Town"

In a speech to the American Bar Association in March 2010, Assistant Secretary of Labor for Occuaptional Safety and Health, David Michaels said "I know that by now you've all heard Secretary Solis describe DOL under this Administration as the "new sheriff in town." This is not an abstract wish; it is a stern description of how OSHA is now working - and I take this phrase seriously."


OSHA has taken a much more intense and "gonna get you" approach to dealing with employers. Michaels went on to further comment "First and foremost, we will emphasize strong enforcement - as evidenced in our record-breaking $84.7 million citation against BP Texas City, and the sharp increase in our egregious cases." He then added "If the threat of a fine isn't enough, we have other ways to drive home the point that employers need to obey the law." (My emphasis). To emphasis the point he stated "...we conducted the first-ever vehicle seizure in an OSHA whistleblower case..."
 
According to attorneys at Seyfarth Shaw much of what OSHA administers may now have criminal implications. Injuries may now be indictable and employer representatives and executives may now be subject to criminal prosecution. They number of citations will be stepped up in the "willful" catagories and fines will be increased substantially.
 
A company's liability under the Multi-employer Workplace Doctrine will increase. As an employer using outside contracting companies in your facility you will now be responsible for the safety training of those employees. Failure to provide this training is a violation and may be deemed a willful violation.
 
The general duty clause will take on broader meaning to allow OSHA to cover anything not specifically covered in the regulations. Ergonomics will become a bigger issue.
 
Michael's further states in his speech.. So, you can expect to see us moving, to the extent we can, toward higher penalties, not only to send a message to those employers who neglect their workplace responsibilities, but also to those employers who need reminding that a safe workplace is not something to think about only when it's convenient - when you have the time and money - but every day."
 
So, are you feeling that target on your back getting bigger?
 
Tomorrow I will conclude the week with some tips on what you can do to prevent or mitigate a visit from an OSHA inspector.

Five Steps to Diminish Wage & Hour Problems

First off let me get the disclaimer out of the way. I am NOT an attorney. I am NOT providing legal advice. I am making these statements from the perspective of an HR professional, consultant and HR instructor that has dealt with Wage & Hour issues for a long time. With that said here is my list of things that may help you avoid a wage & hour investigation or, if you have one, may help you come out better as a result.

1. Step 1: Be educated. If you have been in HR for any period of time you have run across FLSA issues. You may think you know them. Hopefully you do. However, my 12 years of teaching has shown is that many people know how their company does things and not what the law says. Many times the "company" way of doing things is NOT correct. Additionally, there are variations on wage & hour issues that vary by states and also muncipalities. There is alot of material out there that will provide you guidance, the only caveat is to make sure you are getting materials published as recently as possible. The FLSA was altered substantially in 2004, so stay away from pre-2004 materials. The USDOL website actually offers materials that will help educate you. You can see their powerpoint by clicking Fair Labor Standards Act.
2. Step 2: Educate your managers and supervisors. The interaction between manager and employee is where the "rubber meets the road" and most of your violations will occur here. Make sure they understand that no one works for "free." Make sure they understand not only the rules but also company policy on how to deal with issues as unauthorized overtime, breaks, meal times, travel time and "donning and doffing" time. Wage and Hour Law (Basic Training for Supervisors) is a guide book you can get from Amazon that provides some good basic training.
3. Step 3: Realize that jobs classified at EXEMPT must truly meet the exemptions standards set forth by the FLSA. Job titles do not reign supreme. You can review these exemptions by viewing this powerpoint on exemptions. If as a result of your review of the exemptions you find it necessary to interview managers and/or employees, the lawyers of Seyfarth Shaw recommend that you involve an attorney in order to preserve the attorney-client privilege. If you engage an outside consultant make sure their work is being directed by an attorney as well in order to safeguard the privilege.
4. Step 4: Create the appropriate policies. This includes a "Safe Harbor" policy to help protect you in case mistakes do get made. This policy needs to prohibit improper deductions, provides a mechanism for employees to complain TO YOU about them, and specifies you will correct the errors and promise to not make those mistakes again. Depending on the nature of your workforce you also need to specify other policies that deal with your employee population and the way they report time, get paid for that time and under what circumstances. These may include some of the things mentioned above, such as meal times, overtime, being fully relieved of work during meal times. But it may also include training time and travel time. You need to be specific to your workforce.
5. Step 5: Train your employees. We covered supervisor training, but rather than having them correct behavior all the time it is easier to explain to employees what correct behavior is and thus avoid wage and hour issues. So once you have the policies written make sure you spend some time educating.

The USDOL has targeted some specific industries, including healthcare, restaurants, janatorial services, day care, car washes, and the temporary help business. But just because you are not on this list does not make you safe. A complaint from an employee or ex-employee may also bring a visit. So hopefully this brief statement may help you avoid some problems. Will it stop all of them? No.. remember the FLSA is 700 pages long. But the more you can do to ward off complaints being filed, the more you can do to keep investigators from visiting, the more you can do to lessen the impact of what they may find if they do visit, the better off you will be.

Tomorrow, stay tuned for what lies in store from OSHA.

US Department of Labor: It's War! And Employers Are The Enemy

In a press release issued April 1 (yes April Fools Day, but this is no joke) Secretary of Labor Hilda Solis announced the release of the "We Can Help Program." If you were a trusting soul you might think this was a program to help employers correct wage and hour mistakes so that workers would be properly compensated. The FLSA is not an easy law to understand and deal with. After all there over 700 pages of regulatory text and over 50 statutory exemptions. So what would be better than a program to help employers to better understand this law. Well if this is what you think then you are the April FOOL.

The "We Can Help Program" is "being spearheaded by the department's Wage and Hour Division, will help connect America's most vulnerable and low-wage workers with the broad array of services offered by the Department of Labor. The campaign will place a special focus on reaching employees in such industries as construction, janitorial work, hotel/motel services, food services and home health care. It also will address such topics as rights in the workplace and how to file a complaint with the Wage and Hour Division to recover wages owed."  (My emphasis.) The AFL-CIO touted this announcement as a war on "wage theft" and Solis reiterated this by saying "If someone is stealing your wages, you can and should call the Department of Labor….We can help, and we will help. If you work in this country, you are protected by our laws. And you can count on the U.S. Department of Labor to see to it that those protections work for you." Employees are going to be "helped" to identify you as a thief and be taught how to report you. Luck you.

 

As further evidence that the USDOL is not going to be a friend of the American employer they have announced, according to Seyfarth Shaw attorney, and former Deputy and Acting Administrator of the USDOL, Alexander J. Passantino, that NO MORE opinion letters will issued. So an employer cannot ask for the USDOL to rule on a position to determine if it is exempt or not. Additionally, another 293 Wage & Hour investigators have been hired and trained and another 90 have been requested. A Chief Enforcement Officer has been appointed to head this effort up.
 
Additionaly actions that have or will occur include:

• Previous investigations will prompt more investigation
• An employers investigation history will be available on the website of the USDOL
• If  you accepted any stimulus money you will be investigated or if you are a subcontractor to someone who accepted stimulur money or is subject to Davis Bacon you will be subject to investigation.
• Information about investigations may be shared with other Federal agencies, such as the IRS and Department of Homeland Security and also with state department of labors.

One of the major outcomes of the second bullet is that personal injury attorneys these days are getting into the Wage & Hour business. They are bringing lawsuits on behalf of employees or ex-employees. They advertize on daytime TV these days. With the records of an investigation against you now being published on the USDOL website they now have identified targets and have been known to seek out your ex-employees or even your current employees. They are even actively soliciting the business when someone calls into them about other lawsuits, according to Seyfarth Shaw attorney, Louisa Johnson.

The USDOL has also announced increased OSHA efforts targeting employers and the NLRB will also step up efforts detrimental to businesses. Both of these issues will be discussed later in the week.

The net result of this new world order is that a BIG  target has been painted on the back of businesses and it is going to require you to be vigilant and proactive.

Tomorrow I will post on some of the Wage & Hour areas you need to pay particular attention to and what you should be looking for and doing with them. In the meantime, please pass this blog post around to other HR folks you know and in particular to any small businesses you know as well. Small business is particulary vunlerable just because they lack HR resources. Until tomorrow.....

HR Development: Making HR Better

Several blog posts in the last couple of days stimulated my thinking about talent, skills, job security and development of HR professionals. I recommend these three posts to you and then offer my own thoughts. These three great posts are:

1. Want to Build a Winning Foundation? Don't Forget HR Development by Kathy Rapp of hrQ, post at Fistful of Talent. She talks about the importance of making sure your HR people are being developed.
2. A Fundamental Shift in Talent Management: Will "Active Job Security" Replace "Passive Job Security"? by Ann Bares at Compensation Cafe. Ann talks about the balance beam that employers must walk in order to stimulate workers, make them realize that they have to engage in "active job security", yet keep them at the company. She contrasts this with "passive job security."
3. HR Should Get Out of the Talent Game by Paul Herbert at Fistful of Talent. Paul points out that "talent", which is the big item discussed in HR, is not the most important thing HR can focus on. Rather HR should focus on developing skills to best leverage the native talents that employees have.

So what deep thoughts have these three posts prompted in my little brain?  (I feel like the scarecrow ... 'If I only had a brain....')

• The changes in the economic situation in this country have prompted a change in the mind set of employees. No longer do they want opportunity, rather they are interested in job security. Unfortunately the "old days" are gone and the traditional "passive job security" is gone. Employers no longer let you stay "just because." You have to perform. And employees know that they have some responsibility for their "active job security" yet they feel unprepared to deal with it.
• Companies need to seize this opportunity and do a GREAT DEAL MORE skill development. Take the "talent" that has been recruited and spend time and money on making them better at what they do. Impressing on the employees that improving their "resumes" on an annual basis is the best way to engage in "active job security." "And they reason you want to stay with us, is because we provide you with the opportunity to constantly get better and more valuable." I am a big fan of Tom Peters' idea of improved resume as performance evaluation idea.
• To faciliate this skills improvement, and to deal with the ever-changing, topsy-turvy world that HR is today, we need to have better HR professionals. Yet few, very few, HR departments demand that their professionals get better. Sure they may offer some encouragement, such as tuition reimbursement or extra money if you get a PHR, but few actually require this kind of development. I teach PHR prep and over my 12 years of doing so, most attendees are there on a volunteer basis. Some get their money back if they pass. Some get more money if they pass. Some employers even arrange for a class to be taught especially for people in their organization. But even then attendance is voluntary.
• To me, the CEO of an organization should demand that his/her HR professionals be the best in the business. In an economy where most of the companies assets are the tied up in the brain power of the people working for the company, having an HR department that can handle this is of utmost importance. Thus HR at all levels needs to be developed, not on a voluntary basis, but as a requirement of continued employment. Don't want to learn and improve? Then leave and make room for someone that does!
• Not everyone can earn a PHR/SPHR. You have to hold an exempt position in HR to qualify. But that doesn't mean non-exempt HR should be ignored. Classes can, and should, be structured to give EVERYONE IN HR, a learning experience to make them the best. All professional, exempt level, HR should be required to achieve the PHR or SPHR designation. Beyond that,  if there are other professional designations that can be earned, such as CEBS, then these should be required as well. The good news is that if for some reason you are ever let go, you are much more employeable as a result of this training.

I know this is pretty intense. But if an organization is truly committed to having the best HR pros, in order to have the best employees then this is the kind of committment needed. I have not yet run across any companies yet with this kind of committment to HR.

Do you kow of any? Wish to profile your company's committment to professional HR?

Jump Start Your Brain: Great Reading for a Monday

Last Wednesday on March 31st the HR Carnival was published at the Precept Employee Benefits Blog. What great reading. A feast of knowledge to jump start your brain on a Monday following a holiday weekend. Blog posts include:

• Succession managment
• Getting a delegated task back on track
• Employee engagement is not the end goal
• How to work for a younger manager
• How good is your performance data?
• What makes a good leader
• 9 ways to make your boss happy
• and of course my post on Strategy Alert: Too Few Workers and Union Activity

So wander on over and feed your brain some "breakfast of knowledge." You will be better for it.

Down the Rabbit Hole: My Career In HR

One of the alternative defintions to "Down the rabbit hole" is that "by extension the term has also come to signify any event which triggers a completely unexpected situation." And that pretty much defines my career in HR.


Like many HR people who have been in the field I did not intend to be in HR. In fact at that time HR did not exist. It was Personnel and SHRM was ASPA. (Got to have grey hair to remember that!) I was a graduate student at the time and up to that point had no interest in business. I was working on a Ph.D. in comparative animal psychology and was working at the Yerkes Primate Center in Atlanta, Georgia on the Lana Chimpanzee Project. Before that I had gotten an undergraduate in Psychology from the University of California/Riverside and had studied monkeys there too. I decided to take a break from my Ph.D. program (and never returned) and went to work on a research project studying... you guessed it... monkeys. When a TB outbreak occured and most of the monkeys died (TB is fatal in all primates execpt humans) I decided it was time to search out something else. I had a career oriented wife and a son ( a daughter showed up later) so I thought I needed to get a real job.

Well with that background who hires you? Answer: Almost no one!  But the placement agency I had filed with thought I had some smarts and some personality so they offered me the opportunity to find jobs for clerical people. I then graduated to placing sales candidates. In the meantime I learned alot about business and decided I wanted to be on the other side of the desk. So I quit my job and started doing my own search. But luck had it that a collegue thought I would be a good match for one of his clients. Ten weeks later I was a Personnel Trainee for Printpack in Atlanta, GA. I was with them for about 10 years as a plant personnel manager and the Corporate Recruiting Manager. With that background I then worked on a Masters degree in Industrial Relations (HR) and then moved to a software company. After a short and explosive ride with KnowledgeWare I then found myself with the opportunity to be self-employed. And launched the consulting career I have today, in 1991.

Now I have heard all the cracks (and have used them) about transitioning from monkeys and apes to personnel, so you can laugh if you want. But I did pick up some good information about behavior and learning that has proved helpful. I have also encountered some people who were not quite as bright as was Lana chimpanzee.

As I was relating my background to Trish McFarlane of HRRingleader fame in a phone call we wondered how many other people "fell into the rabbit hole" or as many of us say "we fell into HR". Today many people see it as a viable career opportunity and there are degree programs for it. However, I suspect many people still "fall into HR".

So I am curious. What is your story? How did you get into HR? If you have a "rabbit hole" story please share. If you intended to get into HR and persued a degree let us know what attracted you to the field. Please leave a comment and share with us.

Exposing Breasts in the Workplace: Part of Healthcare!

Ok now that I have your attention, get your mind out of the gutter. This has to deal with the Healthcare bill. The Healthcare Bill, officially, The Patient Protection and Affordable Care Act, and the "fix-it" bill being signed today, contains a broad spectrum of issues to which we must pay attention. The items are diverse and include not just insurance regulations, but also requirements to post caloric values of foods by all fast food restaurants, taxes on medical devices and drugs, taxes on Medicare wages and even a revamping of the Pell Grant program. (Explain the healthcare implications of that one for me!)

One of the little known aspects of the PPACA is the requirement for companies to provide unpaid breastfeeding breaks. This is an amendment to the Fair Labor Standards Act (FLSA) and "....requires employers to provide reasonable, unpaid break time to employees who are nursing mothers to express breast milk for their infants. The Act amends section 207 of the Fair Labor Standards Act (FLSA) and requires an employer to provide a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child's birth each time such employee has need to express the milk. The employer shall also make reasonable efforts to provide a place, other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public, which may be used by an employee to express breast milk." (Source: Smith Gambrell & Russell, LLC Client Alert, March 25, 2010.)

Employers of fewer than 50 employees are exempt from this amendment if "...such breaks would 'impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer's business.'" Hmmm... how do you really deny this one regardless of the size of the company?

One challenge here is recording of this time so you can make it non-paid. I think it would cost more to attend to the recording of time than it would be to just allow the mothers the time to perform this act. So a possible solution is just make it paid break time. But of course then you will have to deal with all the whinny men and women who don't get this paid break time. However, it would put them on par with all the smokers who take unathorized breaks to get their fix.

Anyone have a suggestion on what is going to be the best way to deal with this? I am all ears.

Strategy Alert: Too Few Workers and Union Activity

Here are some strategic tidbits to start your week off. First, I am sure you heard that Craig Becker was given a recess appointment to the National Labor Relations Board. If you are not sure why this is important read my post NLRB Nominees: Loading the Dice in Favor of Labor Unions. If you consider yourself strategic you would have already been planning for this, but in case you haven't been paying attention here is what you might plan for. With Becker and Pearce both getting appointed you can now expect a much more union friendly environment. There have already been indications that this Democrat (read Union) controlled board will overturn many previous decisions of the board under the Bush administration. One possible ruling may be having the Weingarten Rule reinstated for non-union workers. Weingarten established the right of representation for workers who feel they will be disciplined. Employers who refuse to allow this representation may be charged with an unfair labor practice, even if no union is present, and may be required by the NLRB to reinstate the workers and pay back pay. Having this right may encourage workers to review the other "benefits" of having union representation. (If you would like a history on this back and forth decision see this 2004 article from Law at Work.) 

The second strategic point is farther off in the distance, but you need to plan for it now. The Dukakis Center at Northeastern University just released a report projecting a significant labor shortage by 2018. A couple of highlights from the report include:

• By 2018, with an expected return to healthy economic growth but no change in current labor force participation rates or immigration rates, there will likely be more jobs than people to fill them.
• If the baby boom generation retires from the labor force at the same rate and age as current older workers, the baby bust generation that follows will likely be too small to fill many of the projected new jobs.
• There could be at least 5 million potential job vacancies in the United States, nearly half of them (2.4 million) in social sector jobs in education, health care, government and nonprofit organizations.
• The loss in total output could limit the growth of needed services and cost the economy as much as $3 trillion over the five-year period beginning in 2018.

The report, called After the Recovery: Help Needed, reports that some of this shortage may be offset by enticing Baby Boomers to stay in what they call "encore" jobs. These are mostly medical, social service and education positions that not only provide income but also provide personal fulfillment to the baby boomers. This frees up younger workers to fill other positions.

Obviously if you are in healthcare right now you need to pay heed to these numbers. 2018 is not that far away. But everyone needs to pay attention to this. Issues include:

1. What jobs do we have that we may be unable to find workers for?
2. How will changing technology alter the job picture for us?
3. What is the composition of our current workforce? What is the expected loss to us?
4. What possible training will we need to do and what will be the expense?
5. How will we do this training?
6. Who or where do we need to team with to insure a future supply of workers?
7. What effect will this have on our recruitment structure and compensation structure?

These are just some of the issues. So ask yourself am I being strategic?

Did You Know That OSHA Repairs The Holes in SOX?

There is an old saying that "You learn something new everyday." (For those of you with memory problems that statement is "You learn something knew everyday", LOL) Well today I did. I got One Minute Memo from the Seyfarth Shaw law firm entitled OSHA Steps Up Enforcement of Sarbanes-Oxley Whistleblower Claims. My first reaction to that headline was WHAT????  What does OSHA have to do with enforcing Sarbanes-Oxley violations? I was truly puzzled. What does violations of a financial disclosure law have to do with the agency that does safety inspections??
 
Do you know the answer? (Before you read the answer.)
 
Well it turns out that anyone that claims violations of Sarbanes-Oxley, in particular claims retaliation for reporting violations, must make the claim with the US Department of Labor. OSHA is part of the Department of Labor. And they just happen to have a lot of experience in investigating claims of retaliation for safety violations. As quoted in The Whistleblower Provisions of the Sarbanes-Oxley Act of 2002 by George R. Salem and Laura M. Franze:

"In the past, the Occupational Safety and Health Administration (OSHA) has reviewed the bulk of the complaints received by DOL, probably because most of the current whistleblower statutes administered by DOL involve allegations of safety violations. OSHA also has significant experience in handling allegations of retaliation. It is possible that a new unit, possibly one with specific financial experience, will be set up to handle initial investigations under Sarbanes-Oxley. However, OSHA currently has jurisdiction. Under current practices, the DOL investigates and then issues a “determination letter.” If the letter determination is not accepted by both parties, or the case is not otherwise resolved, the matter is assigned to the Office of ALJ and goes to administrative hearing. These hearings are relatively formal and resemble full-blown trials."

 

This was written in 2003. Given the One Minute Memo from Seyfarth Shaw it is apparent that no new unit was created. So if you are a public company who retaliates against employees for reporting financial violations you will be dealing with OSHA. Given that the Obama Administration Department of Labor has already announce increased enforcement in Wage & Hour and workplace safety this is an indication that SOX enforcement may also be stepped up. As a result Seyfarth Shaw recommends "...employers covered by SOX ... take steps to minimize the risk of claims alleging retaliation for protected whistleblowing. In particular, covered employers should promulgate appropriate ethics and anti-retaliation policies, train supervisors to comply with those policies, and implement hotlines and other methods by which complaints can be fielded and appropriately resolved without actual or perceived retaliation."

 

The lesson here is to make sure you darn your own SOX before OSHA comes in and sticks it to you!

"Free Agent Nation" A Thing of The Past? Not In My World.

I came across a report the other day from Towers Watson (the merged result of Towers Perrin and Watson Wyatt) that basically declared the "free agent nation" dead. The concept of "Free Agent Nation"  was developed by Daniel Pink of Fast Company Magazine. It was used to describe a notion that you only worked for yourself and sold your services to a succession of employers. Tom Peters and other were (are) heavily invested in the concept as well. Thus, you had control of your career, your options, your education and your compensation. If you did not like working for someone you then left and "sold" your services to another buyer. I personally was and still am a big believer in the idea. To me, being tied to one employer, whether or not you like it, is allowing yourself to become entrapped in VICTIM MENTALITY.

Thus, I was somewhat surprised to come across the Towers Watson report Jobless Recovery in the U.S. Leaving Trail of Recession-Weary Employees in Its Wake, According to New Study. Sure you would expect to read that people are tired of being laid off  or losing their jobs by job elimination. But surprisingly this has lead to a CULTURAL ATTITUDE SHIFT and people are now looking for more permancy in their relationships with their employers. The report states that "A startling eight out of 10 respondents want to settle into a job, with roughly half saying they want to work for a single company their entire career and the rest wanting to work for no more than two to three companies." Whoa! Are these people wanting to return to the their fathers' world of work? The report also says that  this is driven by the recession. They state "This move toward workplace “nesting” is no doubt influenced by a perceived dearth of job opportunities, coupled with U.S. employees’ lower appetite for the risks inherent in changing jobs. In fact, more than half (56%) of the U.S. workforce expects little change in the job market over the next year, and over a quarter (28%) anticipate continued deterioration in the employment picture."

Rather than grab the "bull by the horns" (idiom explained) and reinventing themselves many workers have expressed a desire for "stability". As reported by the Global Workforce Study "...the GWS found that:

 

• 51% of those polled said there are no career advancement opportunities in their current roles, and another 43% believe they must leave their organization and join another in order to advance to a higher-level job. 
• Yet, despite these obstacles to advancement, and the erosion of many of the benefits fundamental to the traditional and highly paternalistic deal, fully 81% of respondents said they are not actively looking for other positions."

Well the bad news is, despite many workers wanting to return to the state of the nation in the 1950s where everyone went to work for one company and stayed for life (e.g., IBM ) those days are over with. As quoted in the GWS report “ 'For many employers, the recession has put the final nail in the coffin of the traditional ‘deal’ that once existed between employees and employers,' said Max Caldwell, a leader of the company’s Talent & Rewards business." (My emphasis)

So if you are one of those people who are hoping for stability from your employer WAKE UP AND SMELL THE COFFEE! The only stability you can hope for in your work life is what you make through what you know, your education, your experience and how you continually upgrade your skills or reinvent yourself. By making yourself continually valuable you make yourself continually employable. Now you may get fortunate enough to be able to "sell yourself" to one employer for a nice long "contract." But don't count on lifetime employement. Be prepared to seek out and secure another "contract". If your skill set looks like everyone elses then you have nothing unique to sell. Make yourself unique.

As someone who has been a "free agent" for a long time I am a big believer in the concept. I do not believe at a time when so many people find themselves with an opportunity to take control of their lifes that we will see "free agency" go away.

Who else out there has made themselves a successful free agent? Any advice for others?