Discussing Pay at the Office

Many employers restrict their employees from conversations about pay at the office, but is this legal?

It is a common practice in many companies for the employee policy manual to contain some verbiage about not discussing compensation and pay with other employees. This policy is easily agreed to by the employees and thus the company has achieved its goal of keeping the often times illegal practice of pay secrecy in place.

Is Pay Secrecy Illegal?
In 1935, Congress passed a law entitled, the National Labor Relations Act or the “Wagner Act”. Under this act, private-sector employees have the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” For this reason, restricting private-sector employees from discussing their compensation with one another is illegal. There is a limit as to who can discuss pay with other employees. Supervisors, for example, would not be considered an “employee” and therefore they can be prohibited from discussing pay. In addition, employees who have access to a company’s payroll could also be prohibited from sharing other employee’s private salary information.


Why is the Wagner Act in Place?

It was the purpose of the Wagner Act to protect employees against unfair pay practices. Giving the employees the freedom to discuss their compensation does a lot to help avoid unfair pay practices and puts pressure on a company to ensure pay-for-value (pay based on experience, education, skills, and the assigned responsibilities of the job) is in place. If an organization has a pay-for-value system in place, then they would not be afraid of employees discussing their compensation with each other. It is when a company has something to hide within their pay practices that problems arise when pay is discussed.

Employers Who Violate This Law

Employers who violate this law could have repercussions that would range anywhere from a wrongfully terminated lawsuit to the possible loss of federal contracts.

If an employee has been wrongfully fired for discussing their pay, they are may contact the National Labor Relations Board (NLRB) and file a complaint. The NLRB may begin an investigation into the matter regarding their former employer.

In most cases, pay secrecy is against the law. Employer should have a pay-for-value system in place and avoid any possible penalties for violating the Wagner Act.

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New I-9 Form Available As Of July 17, 2017

U.S. Citizenship and Immigration Services (USCIS) has released a revised version of Form I-9, Employment Eligibility Verification, as of July 17, 2017. 

Instructions for how to download Form I-9 are available on the Form I-9 page. Employers can use this revised version or continue using Form I-9 with a revision date of 11/14/16 N through Sept. 17, 2017. On Sept. 18, 2017 employers must use the revised form with a revision date of 07/17/17 N. Employers must continue following existing storage and retention rules for any previously completed Form I-9.

Revisions to the Form I-9 instructions include:

• Changed the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name, Immigrant and Employee Rights Section.
• Removed “the end of” from the phrase “the first day of employment.”

Revisions related to the List of Acceptable Documents on Form I-9 include:

• Added the Consular Report of Birth Abroad (Form FS-240) to List C. Employers completing Form I-9 on a computer will be able to select Form FS-240 from the drop-down menus available in List C of Sections 2 and 3. E-Verify users will also be able to select Form FS-240 when creating a case for an employee who has presented this document for Form I-9.
• Combined all the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) into selection C #2 in List C.
• Renumbered all List C documents except the Social Security card. For example, the employment authorization document issued by the Department of Homeland Security on List C changed from List C #8 to List C #7.

These changes are also included in the revised Handbook for Employers: Guidance for Completing Form I-9 (M-274), which is now easier for users to navigate. 

E-Verify User Manual Update

E-Verify recently revised the E-Verify User Manual to include the most current system enhancements and policy updates. The manual has a new look and feel, looks better on the computer screen, and has a more user friendly navigation. Some sections have been reorganized and consolidated to improve the flow and readability of the information. To assist you in identifying the updates, the revised manual includes a Table of Changes.

See the Contact E-Verify page for E-Verify technical support, phone numbers and e-mail addresses.

Visit I-9 Central to get more details and to stay informed of other upcoming changes.

Healthcare Compliance Solutions Inc. (HCSI) clients will also be able to download the new I-9 form and "Handbook for Employers: Guidance for Completing Form I-9" from our website https://www.hcsiinc.com/ in the "Employment Law (HR)" section found under the in the "Updates/News" link.

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The DOL’s New FMLA Poster and Your FLMA Policy

Do You Need To Post The New FMLA Poster?

In April 2016, the U.S. Department of Labor (“DOL”) issued a new “Employee Rights Under The Family And Medical Leave Act” poster, to replace the prior poster on this subject.  The DOL has stated that the old poster (revised Feb. 2013) is still valid and can continue to be used – until further notice – to meet the posting requirement under the FMLA regulations. 

(Note: HCSI clients can also download this poster from the "Employment Law (HR)" section in the "Updates/News" area of our website http://www.hcsiinc.com.) 

The big question: If you already have an FMLA poster on your break room bulletin board, are you now required to display this new poster instead?  The answer is no, you don't have to post this new version as long as you are currently displaying a legal FMLA poster.  (The DOL poster that was last updated in 2013 is still valid).

The new 2016 version contains basically the same information as the 2013 poster, but the new version is organized in a more reader-friendly format. This version also adds more color to the poster. Plus, it highlights the DOL's contact information to file a complaint.

You do not need to rush to update your poster but... yet just as daylight saving time is a good time to change the batteries in your smoke alarms, now is a good time to review your FMLA policy to ensure that it contains all of the information that is on the new poster.  Of course, it is to your benefit to include additional provisions in your policy, such as a prohibition on the misuse of FMLA leave.  At a minimum, all of the information that is in the poster must be included.

This is a great time to re-evaluate your FMLA policy and make sure that your policy is updated to reflect and address all the entitlements and requirements of the new poster.  The FMLA regulations provide that, if an FMLA-covered employer has any FMLA-eligible employees, and if the employer has a written policy on the subject of leave/benefits, then the employer must ensure that its policy contains the same information that is in the FMLA poster.  (The notice requirements are discussed at pp. 12-13 of the helpful new publication from the DOL, “The Employer’s Guide to The Family and Medical Leave Act”.)

Note that “all” means “all”; your policy must include, for example, not only information about the employee’s rights and responsibilities, but also the information in the poster regarding the employer’s responsibilities, along with enforcement information such as the employee’s right to file a complaint with the U.S. Department of Labor (“DOL”) and the DOL’s contact information.

Some employers may choose to comply with the FMLA notice regulations by attaching a copy of the FMLA poster to their employee handbook, instead of incorporating all of the language in the poster into their FLMA policy.  If that’s your approach, just ensure that you update the attachment with the new poster.  Either way, however, you should make sure that your policy is compliant.  Because the information in the poster represents basic FMLA information, you should take steps to review and, if necessary, revise your FMLA policy now, even if you wait to hang up the new FMLA poster.

Source(s): https://www.dol.gov, http://www.jdsupra.com, http://www.lexology.com, http://www.businessmanagementdaily.com, HCSI

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Top 10 Checklist When Firing an Employee

Employee terminations have an impact on everyone within the organization

The key to a “successful termination” begins with hiring and continues throughout the employer/employee relationship. Performance reviews also play a critical role in a “successful termination”, but the actual process of termination is what stays on everyone’s mind the longest time.

Here is a checklist to follow when firing an employee:

• Decide exactly, and succinctly, why you want to fire the employee.
• Compare your reasons for wanting to fire the employee with the job descriptions for that employee’s position. Does at least one of your reasons include that the employee is actually not doing the job properly?
• If the employee is working pursuant to a contract, you must comply with the terms of the contract having to do with termination; otherwise you may be in breach of contract.
• Inform the employee as to the reason behind their termination. This should be presented to them in writing (termination letter) at the time the firing occurs. The termination should occur in a private area. Be sure to have a witness with you during this time, but the witness should not be a co-worker or manager of the employee being fired.
• After you tell the employee why they are being fired, allow them to tell you any defenses or other responses they have to your reasons for termination. It just may be that you are making a mistake or the employee may confirm your decision to fire them.
• Make sure the employees’ files include a copy of the termination letter. In addition, add an additional note outlining what the employee said in their defense.
• Be sure all wages, benefits, property, or other items belonging to the employee or to which the employee is entitled are given to the employee when they are notified of their firing.
• At all stages of the termination process, treat the employee with common respect and courtesy.
• Never do anything to humiliate the employee. Simply being fired is humiliation enough for an employee.
• In general, the less said to co-workers and other employees the better. It is important to notify them of the firing, but you do not want to infringe on the terminated employee’s privacy.

Firing an employee is not a pleasant thing. However, being confident in your decision, following proper procedures, and keeping objective records of the decision and the event can put you in the best position possible in case the employee later makes accusations against you, or if they decide to pursue legal action.

For more information on this and other topics related to HR, HIPAA, OSHA, and Medicare, please emailsupport@hcsiinc.com or visit our website at http://www.hcsiinc.com

Be sure to become a member of our Linkedin group by visiting; http://bit.ly/1FWmtq6

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Religious Discrimination Case Against UPS

New Ruling Shines Spotlight on Religious Discrimination

In July, the U.S. Equal Opportunity Commission sued the world’s largest package delivery service, United Parcel Services, claiming that UPS failed to hire, promote and accommodate Muslims, Rastafarians and Christians whose religions dictate grooming practices that UPS found objectionable. The lawsuit claims that UPS prohibits male employees who are supervisors or who have dealings with customers from wearing beards or growing their hair below collar length.

One example in the lawsuit is that of a Muslim applying for a driver’s helper position in New York who wears a beard as part of his religious beliefs. He was told to shave if he wanted the position and that “God would understand.” Another example in the lawsuit is that of a Rastafarian load supervisor in Fort Lauderdale who does not cut his hair as part of his religious beliefs and who was told “we don’t want any employees looking like women on management teams.”

The lawsuit against UPS comes on the heels of the U.S. Supreme Court ruling against retailer Abercrombie & Fitch on another religious discrimination claim. There, the company refused to hire a then 17-year-old woman in Oklahoma for a position at a store because she wore a “hijab,” or head scarf. The retailer claimed that the scarf, and all other head coverings, did not conform to the company’s dress code.

Both of these suits claim that the actions of the employers violated Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based upon (among other things) religion. As the Supreme Court stated in its Abercrombie decision, “an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”

Further, under Title VII, unless it would pose an undue hardship on the employer, an employer must make reasonable accommodations to its employees and cannot refuse to hire or promote an applicant/employee if the need for a religious accommodation is a motivating factor. “Undue hardship” on an employer is defined as an action that imposes “more than a minimal burden” on the business. Examples include causing a lack of necessary staffing, jeopardizing security, or costing the employer more than a minimal amount. What is considered “minimal” by an employer and the EEOC can vary significantly.

These cases make clear that religious discrimination is an area of strong interest (and enforcement attention) of the EEOC. It underscores the need for policies and practices that every employer should follow:

● Employers should ensure that managers know the EEOC guidelines, as well as the company’s policies, by providing periodic training to all managers. These trainings should especially cover policies relating to scheduling, dress codes and grooming standards – three of the most common areas of company policies that can run afoul of certain religious practices.

● There should be strict guidance provided to hiring managers prohibiting any jokes or sarcasm directed at any religious belief. These statements, even if made in a non-serious fashion, have no place in the workplace and often form objective proof of and the basis for claims.

● Hiring managers should be aware that an applicant is not required to make a specific request for a religious accommodation, nor may an employer make an adverse hiring, promotion or termination decision based upon “actual knowledge, suspicion or merely a hunch” that an applicant will request an accommodation.

● Policies should require that all managers inform their HR department if an existing or prospective employee requests an accommodation or if they believe such a request will be made.

● Hiring managers should not ask employees or applicants directly if they are groomed or wearing attire for religious reasons. This type of inquiry can lead to a discussion that may trigger a later religious discrimination claim.

● Employers should carefully consider all options available to them before denying an accommodation request, especially on the basis of undue hardship to the company.

Religious discrimination cases, even those resolved prior to any formal lawsuit, are costly and distracting for a business. Implementing an HR training program that reaches all levels of an organization is a wise investment in preventing discrimination of all types in the workplace.

(EBN website)

Employee Handbook Guidelines

Guidelines for Employee Handbooks

An employee handbook is essential for the well-being of every organization. It communicates the employer’s mission, vision and culture, as well as information on rules, policies and benefits. It also contains information on state and federal employment laws.

When well-constructed, employee handbooks help employers build trusting relationships with workers, avoid conflicts and ensure fair treatment in the workplace. When poorly written, they can create a nightmare of situations for HR, ranging from hostile work environments to lawsuits.

According to Allan H. Weitzman, head of the Labor and Employment Law Department of Proskauer Rose LLP, when it comes to employee handbooks, “every word counts.” He says there are seven principles every HR professional should follow when creating one:

1.      Make sure your handbook is NOT an employment contract.

2.      Plainly state employer rules, regulations and procedures.

3.      Describe your policies designed to assist employees.

4.      Communicate your commitment to equal opportunity.

5.      Set guidelines for the termination of employment.

6.      Develop cutting-edge policies.

7.      Incorporate state and local legal requirements into your handbook.

It is imperative that employers update their handbooks on a regular basis to ensure compliance with all state and federal employment laws and with changes to their own policies and procedures. When faced with lawsuits by employees, these check-ups could make or break an employer’s case in court.

Changing Trends in Hiring Healthcare Talent

Trends in Healthcare Talent Acquisition

It’s hard to keep up with all the changes happening in health care, especially as they relate to talent acquisition and the evolving roles of the health care workforce. To help health care recruiters and HR professionals stay current with the latest trends, AHACareerCenter.org has released a comprehensive report using resources from the American Hospital Association and other trusted sources.

Here are three insights from the 2015 Healthcare Talent Acquisition Environmental Scan:

●        The age range of health care workers spans more than forty years, creating distinctive challenges and opportunities for both employers and employees, such as:

○        Organizational hierarchies may be restructured as Gen Xers and Millennials rise to leadership roles. As Gen Xers and Millennials become leaders, health care organizations may need to consider flattening their structure and removing departmental and management hierarchies. Gen Xers and Millennials, the bulk of the workforce, consider organizational hierarchies as barriers to creativity and innovation.

○        Health care organizations may need to modify job requirements to cater to new and emerging roles. This includes adjusting competencies so that the workforce aligns with new population health needs. For example, some jobs will need to be redesigned as technology advances. As jobs are redefined, the workforce may transition and redeploy to different settings, roles and organizational structures.

●        With changing demographics, communities are becoming increasingly diverse. The unique diversity of a community should be reflected in the leadership and staff of its hospitals and health care systems. However, gaps in diversity still exist, made evident by the following statistics:

○        Minorities represented 31% of patients nationally in 2013, up from 29% in 2011. However, minorities comprise only 14% of hospital board members, 12% of executive leadership positions, and 17% of first- and mid-level management positions.

○        Diversity efforts in hospital recruitment and retention are lacking. Just under half of respondents (48%) said their hospital has a documented plan to recruit and retain a diverse workforce that reflects the organization’s patient population. Only 22% of hospital hiring managers have a diversity goal in their performance expectations.

●        The rate at which physicians are employed directly by hospitals continues to increase. In fact, physician employment by hospitals has risen by more than 54% since 2000. Other statistics gathered in regards to the physician employment market include:

○        More than 244,000 physicians have found positions in hospitals, due to a variety of reasons: changes in lifestyle, decreased interest in owning a business, levels of regulation, and more. Meanwhile, hospitals are seeking out physicians as a way to increase coordination and manage costs.

○        Only 10% of hospital senior leaders are physicians, according to most surveyed CEOs. This is due in part to the fact that most medical schools don’t include formal business training on running a practice, much less a multimillion-dollar health system. With more than half of new physicians entering the field as salaried employees, the potential pool of physician leaders has grown exponentially larger. Soon, having physician leaders will not only will be important, but a mandate.

(HealthcareSource website)

Using Reference Checks Effectively

5 Tips for Effective Reference Checks

There are many reasons why you should check the references of prospective employees. Often, applicants’ resumes and application forms are incomplete or even contain misrepresentations that could lead to a bad hiring decision. So, if you check references, you can help eliminate undesirable applicants, identify the best candidate, reduce turnover and training costs, and even prevent liability for negligent hiring.

At a minimum, carefully conducted reference checks can help ensure that your hiring decisions are more informed. Generally, reference checks should be made before the offer of employment is extended so that you have as much information about a candidate as possible. However, it may be difficult to get a reference-giver to provide helpful information because of their fears of defamation claims and restrictive corporate policies allowing only the release of a former employee’s name, rank, and serial number.  The following five strategies can help your organization conduct effective reference checks:

1. Insist that every applicant sign a release.

Never check references before obtaining the candidate’s written permission to do so. Consent is a strong defense to defamation and other tort (wrongful act) claims an applicant may bring, and it also generally is required under the Fair Credit Reporting Act before an employer can use a third party to conduct checks. To protect further against applicant lawsuits, the consent form also should include language that releases the organization and its agents, as well as former employers and reference givers, from any legal liability that may result from the checks.

2. Get job-related information from applicants.

Before conducting reference checks, request that applicants provide background documentation such as old pay stubs, business cards, job descriptions, and performance appraisals. These items can be used to verify information provided in resumes, application forms, and interviews and can help identify specific issues to follow up on in reference inquiries.

3. Minimize reference resistance.

Expect reference sources to be guarded, or even defensive, since so many organizations try to limit potential legal exposure by releasing only the “name, rank and serial number” of former employees. To facilitate the process, fax or mail the signed consent and release to the reference giver. When calling references, the interviewer can help break the ice by briefly sharing information about himself, the organization, and the job the candidate has applied for. Some employers even ask an applicant to contact referrers first to help ensure that they can actually get through to them.

4. Keep questions pertinent.

To obtain relevant and consistent information on applicants, develop a reference check form with a list of standard questions and require its use for all checks. At a minimum, the form should cover the basics including dates of employment, positions held, and pay rates. In addition, it should contain open-ended questions about skills, qualifications, strengths, weaknesses, work habits, and suitability for the position. The form also should include specific questions about performance issues and disciplinary actions, eligibility for rehire, and reasons for leaving.

5. Document responses, even if limited.

Keep an accurate written record of all your reference discussions to support your hiring decisions and to help protect against negligent hiring, defamation, and other legal claims. And, if the reference giver refuses to provide any information, document the request and the lack of cooperation.

Of course, reference checks are just one of many tools that you need to make a good hiring decision. You also should verify other information on a candidate’s resume or application (such as educational history pertinent to the job) and consider performing additional background checks (such as criminal, credit, and driving checks) if the nature of the job warrants these checks. In addition, you may want to conduct skills testing to further evaluate a candidate’s abilities. All of these steps will help you make more effective hiring decisions.

Required HR Posters

Employers Are Required to Post These Notices

To maintain legal compliance, employers must advise employees of many of their rights—and several of these notices must be made in the form of a publicly visible posting or notice.

The list of required notices is long, and it depends on who the employer is. For example, public employers have different requirements than private employers. Large businesses have more requirements than small businesses. In short, there is no one-size-fits-all answer for what’s necessary, so this list is comprised of the notices that the majority of employers will be required to post. Evaluate your unique situation to see which of these will apply to you, and don’t forget to check local and state laws to see what additional requirements you may be subject to.

All postings are available on the HCSI website, except where noted.

●        FLSA-Required Postings

The FLSA requires employers to post federal minimum wage requirements. The Wage and Hour Division of the Department of Labor (DOL) also requires employers to post about special minimum wages for disabled workers.

●        OSHA-Required Postings

The federal Occupational Safety and Health Administration (OSHA) requires employers to post a notice about job safety and health protection. This is the “OSHA Job Safety and Health: It’s the Law” poster, which advises employees of their rights.

●        EEOC-Required Postings

The poster “Equal Employment Opportunity is the Law” must be posted by any employer that is subject to EEO and nondiscrimination laws. This poster covers the nondiscrimination rights of employees and applicants based on Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Equal Pay Act, and the Genetic Information Nondiscrimination Act (GINA).

●        FMLA-Required Postings

Any employer covered by the Family and Medical Leave Act (FMLA) must post a notice outlining employee FMLA rights and responsibilities.

●        USERRA-Required Postings

The Uniformed Services Employment and Reemployment Rights Act (USERRA) requires employers to provide notice to any employees entitled to USERRA rights. They can do so with a conspicuous poster or by other means, as long as the full text is provided to anyone who is entitled to the rights and benefits of USERRA.

Other Required Notices or Postings

●        The Employee Polygraph Protection Act of 1988 (EPPA) makes it illegal in most cases for an employer to submit an employee or applicant to a lie detector test.

●        For employers that participate in the E-Verify program, they must post a notice of such, visible to employees and applicants. The E-Verify participation poster is available here: http://www.uscis.gov/e-verify/publications/participation-posters/e-verify-participation-posters

Posters can be downloaded and printed from our website in the Updates/News section under Employment Law (HR)   www.hcsiinc.com