impactnews: Understanding employer & employee rights and responsibilities- 08/28/2015

Are employer and employee relations essentially about conflict management or a balance of appropriate behavior? For Mary Davis, Senior Management Consultant at impactHR, it’s ideally the latter. To illustrate how, Davis shares a story from early in her HR career about a situation involving routine surgery in a Midwestern hospital’s operating room (OR).

The nurse on duty in the OR was tasked with removing all surgical implements from the patient’s body at the conclusion of the procedure. Yet tragedy ensued. The nurse left a surgical device inside the patient, causing the patient’s death. The nurse was ultimately fired for this act on the grounds of gross nursing practice. The hospital’s arbitration board, however, reinstated the nurse because it found the nurse’s action was due not to personal negligence but to a lack of a coordinated system in the OR designed to prevent this kind of incident from occurring. Roughly six months later, however, this nurse was ultimately fired for cause when – per a doctor’s phoned-in order – she put a breathing tube into the wrong patient.

According to Davis, this true story illustrates the often tenuous balance of employee and employer rights and responsibilities. “The way I look at it is this: you ask what were the restraints, the barriers, the systems, the resources an employee had in order to do their job properly. Once the employer provides this to the employee – and consistently does so to every other employee – you can progressively coach to solve problems and keep employees on track,” says Davis.

“When I conduct HR training, I talk about drawing four equal boxes – two boxes represent management’s rights and responsibilities and the other two are employees’ rights and responsibilities,” she adds. “What this means is  management has rights but they also have responsibilities to the employee. And employees have rights but they have responsibilities to the employer. In a perfect situation, these 4 boxes are equal and in some form of flexible balance all the time.”

For more information about employer/employee rights and responsibilities, please contact us at impactHR.

U.S. OFCCP Releases New Section 503 Compliance Checklist Tool

The U.S. Office of Federal Contract Compliance Programs (OFCCP) recently unveiled a new interactive checklist tool to help federal contractors comply with provisions of Section 503 of the Rehabilitation Act. The checklist aims to help contractors assess their compliance with the affirmative action program (AAP) requirements of Section 503 by answering a series of “yes/no” questions about their company’s practices and policies. Section 503 regulations prohibit discrimination against individuals with disabilities and requires Government contractors and subcontractors to take affirmative action to employ and advance in employment qualified individuals with disabilities. Learn more

Consider Conducting an Audit to Ensure Exempt and Nonexempt Compliance

The number of lawsuits under the Fair Labor Standards Act (FLSA) continues to climb – in fact, the 8,160 new cases filed near the end of 2014 are an all-time high, according to Law360. The FLSA, also known as the federal Wage and Hour Law, mandates overtime payments to qualifying, or “nonexempt,” employees.

One reason to pay close attention now to the FLSA is the pending proposal by the Obama administration to raise the salary level (currently $23,660) for overtime eligibility. To this end, determining whether a job is exempt or nonexempt under the FLSA is critical and employers should conduct regular FLSA audits to ensure compliance and to stay out of trouble.

Regular audits should be conducted:

  • To reduce the likelihood of a suit because it allows you to identify and correct problems before there are official complaints
  • To classify jobs as exempt/nonexempt and ensure that job descriptions are up-to-date and accurately outline the real duties employees perform
  • To determine whether supervisors and managers are treating both exempt and nonexempt employees appropriately and consistently under the law
  • To be able to show a U.S. Department of Labor (DOL) auditor or an attorney that your company does all it can and in good faith effort to ensure compliance with the FLSA
  • To help prepare for a DOL investigation with having data available and to be prepared for questions regarding potential issues

For FLSA audits, the most important thing is to focus on the job and not on the job title. In addition, the following points should be included:

  • Be sure position descriptions are current and accurate with details regarding essential job duties – this will ensure position classifications as exempt do fall within the exemptions as provided under the FLSA
  • Check and double check what employees actually do, especially if jobs have changed over time
  • Review and apply the exemption testing standards – using the most up-to-date position descriptions – under the FLSA to determine the correct classification of jobs
  • Review current pay practices, especially overtime calculations, to determine areas that may need improvement to ensure compliance with the FLSA
  • Be sure the latest FLSA-mandated notices are posted in plain sight for employees
  • Be sure your compliance is under the latest FLSA regulations

For more information about the FLSA and compliance audits, please contact us at impactHR: www.impacthrllc.com/hr-consulting

US Economy: Job “quits” and new hires remain flat in June

The U.S. economy isn’t slowing down, but it may not yet be on a real growth path either. The latest U.S. Bureau of Labor Statistics’ (BLS) monthly jobs report showed the national “quits” rate – the number of people who voluntarily Quits Rateleave their jobs – staying flat last June at 1.9% (of the total number of workers who separated from their employer). This rate has remained at this level since June 2014. Economists use the “quits” rate as a more accurate barometer of overall U.S. employment health since it tracks those workers willing or able to leave their employer to take advantage of new job openings. The BLS also reported the number of hires in June 2015 was 3.7% of total U.S. employment – flat from the previous month yet up from 3.5% in June 2014. Learn more

States move to protect employee social media accounts from employer access

With analytics becoming more of a must-have for HR professionals, employees’ social media accounts are seen as a rich trove of data to collect and analyze. Yet, HR legal experts say more states may clamp down on employers’ ability to request and obtain access to employees’ personal social media accounts, according to an article this week in TechTarget. As it stands, 21 states have laws that prohibit employers from gaining access to employees’ Twitter, Facebook or related accounts.

Maryland, for example, enacted a law in 2012 that prohibits employers from “requesting or requiring the disclosure of usernames or passwords to personal social media accounts, and prohibits employers from taking or threatening to take any disciplinary action against employees or applicants who refuse to disclose such information,” according to a SHRM Legal brief. Virginia’s law, which went into effect this past July, does not permit “employers from requiring prospective or current employees to disclose the username and password to their social media accounts.” Legal experts say these state restrictions, for example, inhibit employer analysis of social media data to determine the likelihood of high-value employees’ interest in possibly leaving their job. Learn more

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