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Navigating employee disability issues and providing reasonable accommodations is often incredibly challenging for employers who must comply with the ADA, FMLA and various state and local laws.

Employers need to thoroughly understand their legal obligations and implement a process for responding to accommodation requests and engaging in the interactive process. In a recent XpertHR webinar, Fox Rothschild attorney Andrew Russell provided helpful tips when it comes to navigating reasonable accommodations to stay compliant with the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA). Webinar participants asked some great questions about some particularly perplexing issues:

What does “regarded as having an impairment” mean?

To be “regarded as” having a physical or mental impairment means an employee or applicant experiences discrimination because of an actual or perceived impairment. An employee does not actually have to have a disability or an impairment that substantially limits a major life activity in order to be protected by the ADA.

Is pregnancy a disability under the ADA?

While a normal pregnancy without complications is not a disability under the ADA, a pregnancy-related impairment, even one arising from a healthy pregnancy (i.e., severe morning sickness, gestational diabetes, lower back pain), may qualify as a disability for purposes of the ADA, triggering the need for reasonable accommodations.

An impairment may also arise from the interaction between pregnancy and an underlying health condition. Be sure to consult relevant state and local laws which also may provide protections for pregnant women and require reasonable accommodations.

Is drug use protected by the ADA?

A person currently using illegal drugs or illegally using controlled substances (i.e., prescription drugs) is not considered disabled under the ADA. Illegal drug use doesn’t include prescription drugs taken under the supervision of a licensed health care provider.

Keep in mind some states permit the use of medical marijuana by patients with certain health and medical conditions, and some states permit recreational marijuana use. However, a recovering drug addict may be considered disabled if the individual is in a supervised rehabilitation program or is rehabilitated and no longer using drugs.

Is alcoholism covered by the ADA?

An alcoholic may be protected under the ADA and viewed as an individual with a disability However, an employer may discipline, terminate or deny employment to an alcoholic whose use of alcohol adversely affects job performance or conduct to such an extent that he or she is not qualified for the position.

Is anxiety and depression a disability?

The ADA provides expansive protections to both physical and mental disabilities including anxiety and depression.

Is an employer required to reach out to disabled employee on regular basis to “check in”?

It is best practice to continually reach out to an employee with a disability who has been provided with an accommodation to see if the accommodation is working or if any modifications need to be made. You also may want to see if the employee is experiencing any discrimination retaliation or harassment. Keep thorough notes and records of all communications.

Are emotional support animals protected under the ADA?

Emotional support animals or comfort animals may be used as part of a medical treatment plan as therapy animals, but they are not considered service animals under the ADA where a service animal is defined as an animal that has been individually trained to do work or perform tasks for an individual with a disability. The tasks performed must be directly related to the person’s disability. Keep in mind the definition of a service animal varies by states and some states have expanded the definition to include assistive animals, such as support animals.

Is telecommuting a reasonable accommodation?

It depends. Allowing an employee to telecommute may be a reasonable accommodation if the employee’s disability prevents the employee from successfully performing their job on-site and the job, or parts of the job, can be performed at home without causing the employer significant difficulty or expense. This may be unreasonable for some jobs and in-person attendance also may be an essential function of the job.

Does a reasonable accommodation request have to be substantiated by a doctor’s note?

If an employee request a reasonable accommodation, an employer may generally ask medical questions and require medical documentation from a health care provider to support the employee’s request. It is critical to keep all medical records and information confidential and in separate medical files.

Can an employer terminate an employee who exhausts FMLA leave?

An employee may not be automatically terminated after using his or her 12-week entitlement to FMLA leave. The employee may be entitled to additional leave under a state family and medical leave law, a state paid sick leave law or the employer’s own policy providing greater leave rights than the FMLA.

If all forms of required leave are exhausted, consider if additional medical leave may be a reasonable accommodation under the ADA or state disability law without creating an undue hardship.

What happens if a job is eliminated due to a reorganization while an employee is out on FMLA leave?

An employee on FMLA leave has no greater right to reinstatement or to other benefits and conditions of employment than if he or she had been continuously employed during the FMLA leave.

But if the employer lays off an employee on FMLA leave during a legitimate reduction in force (RIF), the employer will have the burden of showing that the employee would not have been otherwise employed at the time of the requested job reinstatement.

What can an employer do if a new employee who has not been employed for 12 months requests FMLA leave?

To be eligible for FMLA leave, an employee must have:

• Worked for the employer for 12 months;
• Worked 1,250 hours in the previous 12-month period; and
• Be employed at a worksite with 50 or more employees within a 75-mile radius.

However, under the ADA, if the individual is a qualified individual with a disability, the employee is eligible to request and receive reasonable accommodations from day one of employment, regardless of the time served or hours worked. A request for leave must be evaluated under the ADA, regardless of whether, the employee is covered by the FMLA, the employee is eligible for FMLA leave or the employee has exhausted FMLA leave.

The post Pressing Questions on Reasonable Accommodations under the ADA and FMLA appeared first on XpertHR US Blog.

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Have you been hearing a lot about paid family leave (PFL) lately? For those in the HR world, you may feel like the subject is hitting you from all sides with talk of legislation at the federal level and several states creating new PFL programs or expanding existing ones.

As an employer, you may be wondering about the significance of these laws and what they mean for your workplace. Below is a quick refresher on what PFL is and how your organization might be affected.

Paid Family Leave Overview

Several states have passed PFL-related laws to address a gap in coverage left by federal and state leave laws. While the federal Family and Medical Leave Act (and similar state laws) require covered employers to allow eligible employees to take job-protected leave for certain family and medical reasons, the leave is unpaid. As a result, many employees cannot afford to take full advantage of this time off. PFL helps employees by providing them an opportunity to take paid leave under similar circumstances.

Some of the original state PFL laws were insurance-based and provided only wage-replacement benefits (e.g., California and New Jersey). However, more recently, states have passed laws providing both wage-replacement benefits as well as leave and reinstatement rights.

Although several of the state PFL programs are funded by employee-paid payroll taxes with no employer contribution requirement, certain PFL laws also require employers to help with funding. In some states, PFL benefits are administered along with temporary disability insurance (TDI) by the applicable state agency. However, not all PFL laws fall under a TDI law.

In general, PFL laws consider absences to care for a seriously ill family member and to bond with a new child to be qualifying reasons for leave. Some laws also allow employees to use PFL benefits for a military-related qualifying exigency or for their own medical condition.

Existing State Laws

As of this writing, the following jurisdictions have PFL laws:

  • California;
  • Massachusetts;
  • New Jersey;
  • New York;
  • Rhode Island;
  • Washington;
  • San Francisco; and
  • Washington, DC.

The PFL program requirements for private employers may vary depending on the jurisdiction, including:

  • The absences that qualify an employee for PFL;
  • The family members that may be covered under the law;
  • Employee and employer contribution obligations;
  • Leave rights and insurance benefit entitlements;
  • Waiting period requirements; and
  • Notice and documentation requirements.

Proposed Federal Legislation

In the absence of a federal PFL requirement, states have been at the forefront of this area of law. However, there has been recent action at the federal level with several bills being introduced in the US Congress, and both sides of the political aisle approving of some type of federal PFL.

The current proposed legislation varies depending on how a federal PFL program would work and includes the following ideas:

  • Creating tax-exempt parental leave savings accounts similar to health savings accounts;
  • Providing partial wage replacement for FMLA-qualifying events;
  • Allowing parents to pull forward a portion of their Social Security benefits; and
  • Allowing parents to receive 1-3 months of paid leave by postponing their Social Security benefits.

With the current political climate, it may be difficult to get enough bipartisan support for any legislation to pass, but it is an issue that doesn’t appear to be going away soon and may be something that is raised frequently during the 2020 elections.

Employers Taking Action

Employers are increasingly embracing family-friendly benefits, with more organizations continuing to offer paid parental leave even without being required to do so by federal or state law. Parental leave is viewed by many employers that offer it as an ongoing commitment and investment in their employees’ health and welfare. This is because parental leave has often been cited for having a far-reaching impact on employees, including:

  • Physical and mental benefits;
  • Healthier children; and
  • Career advancement advantages.

Additionally, paid parental leave allows parents to be more prepared to come back to the workforce and easily transition back into their positions.

Compliance Issues

Employers should be aware of their obligations under existing laws and know how to identify and respond to requests for information regarding PFL benefits. It is also important to understand how state PFL laws interact with other leaves of absence protected under federal, state or local laws.

What’s clear is that PFL continues to be a trending issue, and more states are considering passing these laws. That’s why employers must be vigilant in tracking these developments to ensure compliance.

Is Paid Family Leave on your organization’s radar? Let us know by leaving a comment below.

The post Why Paid Family Leave Should Be on Your Radar – If It Isn’t Already appeared first on XpertHR US Blog.

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As sexual harassment in the workplace continues to be a focus for businesses, workers and enforcement agencies, evolving requirements and workplace demands have caused employers to focus on prevention strategies.

What is the chief takeaway for employers with respect to sexual harassment prevention? It can be summed up in two words: Do more.

More specifically, employers need to do more to:

  • Emphasize that sexual harassment prevention is a strategic focus for a business and not merely a compliance requirement;
  • Train as many employees as possible on sexual harassment prevention;
  • Enforce policies and procedures already in place;
  • Include training modules that go beyond those required; and
  • Emphasize a workplace culture that values respect, safety and engagement.

Above and Beyond

Different jurisdictions have a variety of requirements, resulting in employers having to ensure that they follow all applicable sexual harassment prevention training obligations.

Just in the past year, New York and New York City have added sexual harassment training prevention requirements for not only supervisors, but employees as well. For an employer in New York City, the training requirements may be confusing due to differing state and local requirements.

And what if an employer has operations in Connecticut, Maine and New York? Should an employer do the bare minimum required by jurisdiction, or offer a comprehensive training program to cover all worksites?

More and more, employers are choosing the latter. Embracing global solutions provides a more inclusive culture across all workplaces.

Fashioning a sexual harassment prevention program that goes above and beyond compliance obligations fosters fairness and engagement, thereby making the program well worth the investment.

Floors, not Ceilings

None of the laws regarding discrimination and harassment are meant to set the maximum that an employer may do to prevent workplace harassment. If an employer is not explicitly covered by a law (for example, they employ fewer than the minimum number of workers so that training is not required), then the employer may still wish to offer a sexual harassment prevention program that may consist of a number of initiatives, such as:

  • Implementing a workplace harassment prevention policy;
  • Holding brief information sessions on the policy; and
  • Offering training for supervisors.

Even if training requirements may not apply, chances are that compliance obligations with respect to broader antidiscrimination laws do. Taking steps toward ensuring a workplace that is safe from harassment may aid an employer in minimizing liability risks in the event of a complaint.

Evolving Obligations

Sexual harassment prevention training has evolved over the years to emphasize additional content, including:

  • Workplace bullying;
  • Workplace civility;
  • Other forms of harassment, such as harassment based on gender identity and expression; and
  • Bystander intervention.

A major step forward for regulators has been to acknowledge the importance of training employees as well as supervisors to report workplace misconduct. HR practitioners have been championing broader training for employees as a best practice for years.

HR should continue this practice, and encourage peers and employers to adopt comprehensive training models that target different employee populations.

Understand Interactivity

Compliance training often must be interactive – a requirement that the modules be participatory, with an opportunity for trainees to ask and answer questions. Employers should be careful not to conflate interactive training with in-person or classroom-based training – these terms are not synonymous. While in-person training may be interactive, the two are not mutually exclusive. In fact, interactive training can be made available in mobile-friendly, individualized modules that work well with limited budgets, busy schedules and remote work locations.

Separable modules may also add to increased comprehension and internalization of concepts by trainees. If a trainer drones on for hours, the concepts may not have as much of an impact as imparting discrete ideas in digestible chunks.

Finally, consider diverse employee populations with respect to interactivity: if employees are more comfortable in a language other than English, then efforts should be made to offer training sessions in the languages spoken by a significant percentage of the workforce.

How does your organization go above and beyond compliance obligations to foster a fair and inclusive workplace? Let us know!

The post Sexual Harassment Prevention: Employers Must Do More appeared first on XpertHR US Blog.

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When it comes to employee engagement, many employers are talking a good game. Indeed, the phrase has become popular among corporate leaders. But are companies actually moving the needle?

A Gallup report from a few years ago estimated that US businesses lose between $450 and $550 billion per year due to poor employee engagement. And that’s not million – as the mathematically-challenged Dr. Evil might have suggested in Austin Powers – but billion.

Part of that cost is having to replace talented workers who leave for other opportunities. Too many employers are turning “happy campers” into job seekers, says employee engagement authority David Lee.

On a recent podcast and webinar with XpertHR, Lee discussed where organizations are falling short with their employees, and what they can do to create a more positive work experience that keeps their A-list employees aboard.

“Do with your employees what you do with your customers,” said Lee. “Most companies don’t do this even though human capital is their number one asset.” Just as every decision you make matters with your brand, the same holds true with your employees. “Every interaction with supervisors matters,” noted Lee, who asserted that managers account for 70 percent of the factors affecting employee engagement.

In this competitive job market, he said it’s more important than ever for employers to create a work experience that top talent wants to be a part of. So here are some key questions to ask to keep employees from disengaging, according to Lee:

  • Do employees feel like their efforts matter?
  • Are your managers micro-managing?
  • Is there meaningful professional development?
  • Does the organization express appreciation for top performers?
  • Do you rely too much on goodies, gimmicks and gala events?
  • Is your employee engagement survey just “lip service” or real?

Only by answering these questions and addressing them can employers ensure that productive workers do not feel taken for granted.

And with younger employees becoming a higher percentage of the workforce, this is especially problematic. Younger employees are not as willing to “suck it up,” and are more willing to leave, according to Lee.

But with employees of any age, he is quick to add that organizations hurt their bottom line even when employees don’t depart. This is because poor engagement can lead to a team of ROAD Warriors (Retired on Active Duty) where people are showing up at work, but aren’t inspired to do a great job.

Acknowledging the low unemployment rate, Lee said, “It’s clear we’re getting the bodies in the door, but we’re not connecting with their hearts and minds.” For instance, he noted that the number one thing employees want from their managers is straightforward feedback. However, Lee says HR has found this is the skill most lacking in managers.

But connecting with your employees and making them feel appreciated can go a long way. Lee concludes that stay interviews –one-on-one interviews between managers and valued employees – are vital to learn both what these employees enjoy and what is frustrating them. Lee says stay interviews are a great way to help employers improve their employee retention efforts before it’s too late.

For more insights from Lee, listen to “How to Keep A-List Talent From Exiting Stage Left.”

What’s your biggest challenge in retaining good employees? Let us know by leaving a comment below.

The post How to Keep Your Best Employees From Walking Out the Door appeared first on XpertHR US Blog.

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Are companies taking a more active role in the current political and social discussion calling for greater diversity and inclusion? Panelists during a “fireside chat” at the 2019 Society for Human Resource Management (SHRM) Employment Law and Legislative Conference held in Washington, DC, said companies must address such issues and take steps to enhance employee engagement so their organizations can adapt in a rapidly changing and more competitive world.

The panel, composed of corporate executives representing a cross-section of industries, included:

  • Michelle Nettles, Chief People and Diversity Officer, Molson Coors;
  • Kevin Harper, Senior Vice President of HR Operations and Strategy (retired), Walmart;
  • Jessica Herrera-Flanigan, Executive Vice President of Government and Corporate Affairs, Univision Communications; and
  • Mohamed Younis, Editor-in-Chief, Gallup.

Engagement in Social Issues

According to recent Gallup polling data, 58% of workers say there has been a noticeable increase in political discussions at work. Communities and employees are increasingly calling on companies to take a stance on social issues. “Disruption is constant nowadays,” said Younis. “Companies’ ability to build teams and manage people is the only way to overcome disruption.”

Change often is pushed by the employees, especially younger employees, said Nettles. Molson Coors has no official political positions, but has chosen to be more active in its efforts to increase inclusion for women and the lesbian, gay, bisexual and transgender (LGBT) community.

For example, scantily clad women in bikinis used to be a staple of beer ads, Nettles said, and posters of them lined the walls at company headquarters. But, at the urging of employees, the company made a decision in 2015 to stop objectifying women in its advertising campaigns. She noted that pushback against that change decreased as the workforce at male-dominated beer distributors has become more diverse.

At Walmart, the leadership is more vocal about politics, Harper said. When the Arkansas legislature was considering a bill that many felt threatened LGBT rights, CEO Doug McMillon tweeted out his opposition and the bill was revised. The company also staked out its position on increasing the minimum wages by voluntarily increasing its minimum starting wage.

Herrera-Flanigan said the push for involvement comes from inside and outside as changes are requested by employees and community partners. Corporate leaders often get asked “Why aren’t you speaking out?” by employees and their customers. Univision was founded to give voice to Latin Americans, she explained. That audience looks to the company for basic help all the time – to inform, entertain and empower that community. When serving a community is a core part of a company’s mission, Herrera-Flanigan said, it must always ask “What does the organization’s base expect?”

Employee Engagement

There has been a shift in what employees want, Younis pointed out. Their expectations have shifted from “my paycheck to my purpose; my weaknesses to my strengths; and from my job to life,” he said. And the changes are not necessarily generational (i.e., because of the Millennials). The shifts are also due to new technology and social media. As a result, organizations need to be in touch with their employees and create an environment where employees take ownership.

Nettles advises employers to use tools to understand employee input. At Molson Coors, she notes, the employee engagement survey has been increased from once to twice per year. The company also moved to having one-on-one meetings for performance reviews and coaching with managers, which resulted in increased communications and resolving more problem at the managerial level. Nettles added that organizations can use communications tools like Yammer for real-time communications.

Walmart also has moved to conducting engagement survey twice yearly to monitor the ongoing engagement cycle, according to Harper. But surveys need to recognize who is the target audience and ask the right questions. They also solicit input from small groups, like the “Walmart Moms,” quarterly. In the case of the Walmart Moms, what started with a business purpose has expanded to include social and political feedback. “Merging areas of concerns is where the magic happens,” said Harper.

Ongoing Concerns

The issue of sexual harassment continues to be a major concern for employers with a clear split between how women and men view the problem, according to Younis. Recent Gallup data shows that 52% of women are disappointed with how society treats women. But 61% of men said they are satisfied with how society treats women.

And while 70% of women say workplace sexual harassment is a major problem, only 53% of men agree. Furthermore, 61% women say workplaces are not sensitive enough to sexual harassment. Yet only 48% of men agree with that statement, a figure that dropped significantly during and after the Supreme Court confirmation hearing for Justice Brett Kavanaugh. Finally, 48% of women report being sexually harassed – an increase from the previous survey of 6% overall and of 8% by women under age 50. Meanwhile, only 11% of men report being victims of sexual harassment.

Nettles said that her board is asking more questions about what the company is doing regarding sexual harassment, the #MeToo movement and training. When a company takes a stance to protect its female employees from harassment, it sends a clear message to employees. She said recently that Molson Coors demoted a manager for not protecting an employee from the sexually harassing behavior of a client’s employee.

For his part, Harper advises that third-party outsiders should conduct sexual harassment training for corporate officers. And that training “should be intensive and uncomfortable.” At Walmart’s recent training, leaders were made to answer “what would you do?” in very uncomfortable scenarios in front of their peers – and the answers were not always right. “Silence is not an option,” he noted.

“I think the opportunity for businesses to shape policy is a responsibility more people are taking seriously,” said Harper. “Organizations have to be more vocal. A large business can use their scale to effect change for the good.”

Is your organization involved in social issues? How does it choose whether and how to align itself on these issues? Please share your story by leaving a comment below.

The post #SHRMLEG 2019 Fireside Chat: Future of Work Involves More Employee, Social Issues Engagement appeared first on XpertHR US Blog.

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I’m always amused when employment lawyers trip over themselves each year at this time to blog about the risks of gambling and lost productivity with the always-popular NCAA basketball tournament. It’s akin to the famed quote from Casablanca when Captain Renault says in Rick’s Cafe, “I’m shocked, shocked to find that gambling is going on in here!”

With March Madness upon us this week, it’s a near certainty that employees will chat about these games, debate the seedings and have a friendly office pool to boot. Far from being a detriment, employers should look upon the tournament as a good opportunity to boost morale and employee engagement. Granted, the stakes should remain reasonable—no $100 entry fees—but there are other incentives as well.

For instance, one blogger suggests a company could offer a free vacation day to the winner of the office pool and show that the company gets it. That incentive would certainly boost the engagement of many employees. And the lunch or break time discussions of everyone’s favorite team can do so as well.

Indeed, some surveys show that March Madness office pools actually boost morale and help employee productivity rather than harm it.

What’s more, in this day and age of flexible scheduling, employees can make an effort to get work done ahead of time or else work late to ensure deadlines are still met if they are losing a little time here and there.

Of course, some common sense lines can be drawn. If your colleague in the next cubicle is spending two-and-a-half hours streaming the Duke vs. Palooka State game on his laptop, the employer need not look the other way as that’s not exactly a quick check of the scores.

But someone who would do that during the work day is likely a problem outside of March Madness time as well. As a former professor of mine once said, “Common sense is the least common of all the senses.”

Do you have any special concerns about March Madness in the workplace? And who do you think will win the tournament? Let us know by leaving a comment below.

The post March Madness 2019: Why Employers Should Embrace It…To a Point appeared first on XpertHR US Blog.

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As we celebrate Women’s History Month this March, it has been 55 years since the passage of Title VII which banned gender discrimination (along with race, religion, color and national origin discrimination) by employers. Since that time, workplaces have become increasingly diverse. Women now make up almost half of the labor force (approximately 47%), and have entered a number of fields once known only known to men. Still, women continue to lag behind.

Although the gender pay gap has narrowed somewhat, women still earn an average of 80 cents for every dollar a man makes doing similar work. Further, all too often women are mommy-tracked and not taken as seriously as their male counterparts. And, they continue to generally lag behind when it comes to leadership positions in government, business and law firms regardless of their educational qualifications.

That’s why it is truly up to each individual employer to step up to the plate to combat gender discrimination and ensure that women are treated fairly in the workplace. Here are eight steps to make it happen:

1. Make Gender Equity a Goal

From the start, an employer should make gender equity a goal and a focus, including aiming to have a diverse and inclusive workforce. All job descriptions and job advertisements should be gender-neutral and free of bias.

Avoid interview questions that discriminate based on sex, such as inquires about an employee’s caregiving responsibilities, pregnancies and married/family life. Throughout the employee life cycle, do not stereotype women when it comes to job duties and responsibilities and don’t steer them into lower-paid positions with limited opportunities.

2. Maintain a Multichannel EEO Complaint Procedure

It is critical to develop, maintain and enforce a multichannel complaint procedure for EEO complaints and permit individuals to bring complaints of discrimination, harassment or retaliation to various members of management.

Once it’s aware of a complaint, the employer should commit to undertaking a thorough investigation by gathering evidence, interviewing witnesses, creating a report and taking any necessary interim or disciplinary measures. The employer should make clear that it takes all complaints seriously and ensure that all individuals in the organization, regardless of their position, will be held accountable for their conduct and behavior.

3. Create Gender-Neutral Dress and Appearance Policies

An employer should make sure that all dress code and personal appearance policies are neutral and free of bias. Individuals should be permitted to dress in the gender that they identity with regardless of the assigned sex at birth. While managers have a right to request that employees look professional for work, they should make sure that any dress code policies do not discriminate against one gender or another, or impose unequal burdens on one gender over the other.

4. Consider Remote and Flexible Work Options

An employer today should be family-friendly and take advantage of technological advances in communications by permitting both men and women to telecommute or work remotely so they can tend to family obligations for young children or aging parents. You also may want to consider flexible schedules or job shares as another way to permit employees to bring value to the company while at the same time allowing them to tend to personal obligations and commitments.

5. Make Equal Pay and Wage Transparency a Priority

It’s important to be all in when it comes to pay equity and being transparent about the wages your organization provides to employees. Men and women should be paid equally unless there is a bona fide reason not to do so based on skills, qualifications or experience. Along these lines, be aware of new state and municipal laws banning employers from requesting salary history information as this may perpetuate an existing wage gap. Additionally, an employer should not prevent employees from freely and openly discussing their wages.

6. Audit Pay Practices

Your organization should also routinely audit its pay practices, job descriptions and salaries of all employees to root out discrimination with respect to:

• Wages;
• Bonuses;
• Equity;
• Benefits; and
• Any other forms of compensation.

Carefully compare the pay of men and women doing the same work, identify any pay gaps and eliminate those gaps that cannot be explained on grounds other than gender. If wage differentials are not supported by well documented and legitimate nondiscriminatory reasons, the pay differences should be corrected.

7. Establish Mentoring Groups

Consider creating mentoring groups where women can mentor other women and provide them with a path to professional development and leadership. In such forums, women would have the opportunity to learn from colleagues about how to overcome challenges and barriers to success.

8. Provide Pregnancy and Lactation Accommodations

Just because a woman is pregnant or breastfeeding, an employer should not assume she is unwilling to take on her duties, tasks and responsibilities. It’s important to make employees who are pregnant, or have a need to express milk for an infant child, feel comfortable at work and provide them with reasonable accommodations so they can perform their job duties.

For pregnant women, an employer should consider accommodations such as:

• Redistributing marginal or nonessential functions (i.e., lifting);
• Altering how a nonessential or marginal function is performed;
• Modifying workplace policies (permitting longer breaks));
• Modifying work schedules;
• Permitting an employee on bed rest to telecommute;
• Providing additional leave;
• Providing equipment to assist with the essential job functions (i.e., a stool to sit on); or
• Temporary reassignment to a light-duty position.

When it comes to employees who are breastfeeding or have a need to express milk, an employer should consider:

• Providing breastfeeding breaks;
• Designating a private room as a lactation room that is safe and clean;
• Providing a storage area for breast milk; and
• Providing access to a sink, an electrical outlet for a breast pump and a comfortable chair.

In response to an accommodation request, an employer should engage in a good-faith interactive process and attempt to find an accommodation that works for both the employer and the employee.

How does your workplace measure up? Feel free to share your thoughts with us.

The post Aiming for Gender Equity One Employer at a Time appeared first on XpertHR US Blog.

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Make no mistake, in order to get ahead of the game, an employer today must plan for an aging workforce and make a strong effort to attract and retain older workers.

Recent statistics from the US Census Bureau show that by 2030, one-fifth of all US residents will be older than age 65.  People are living longer, remaining in the workforce and putting off retirement as the cost of living has gone up and many still need income. Therefore, it is critical for an employer to take note of the value older workers can bring to an organization and consider the following steps to address their needs and desires within the context of workforce planning.

Recognize the Benefits of Older Workers

It is important for employers to recognize the benefits of attracting and retaining older workers in today’s global economy. Older workers can be highly valued as they bring years of knowledge, skills and experience as well as a sense of dedication, strong work ethic and loyalty to the job in the context of a multigenerational workforce.

Older workers also can improve workplace diversity and inclusion and make an employer more competitive as an organization is better able to connect with a growing base of older customers. In addition, these workers often are able to provide leadership and mentoring to younger generations.

Look to Recruit Older Workers

As part of recruiting and hiring efforts, an employer should make a concerted effort to hire older workers who may bring valuable skills to the team. An employer may want to consider:

• Reaching out to AARP and other organizations where older workers are looking for opportunities;
• Using word of mouth referrals and personal connections;
• Creating a formal program to target older candidates;
• Avoiding terms like “digital native,” “recent grads,” “college student,” “young and energetic” in any job advertisements or job descriptions; and
• Steering clear of biased questions during the interviewing process which may be viewed as age discrimination.

Ultimately, the goal should be to find the best individual for the position the employer is seeking to fill.

Offer Appealing Benefits

Part of attracting and retaining older workers means offering benefits that they find appealing and useful. Benefits may include:

• Comprehensive healthcare benefits;
• Long term and short term disability;
• 401(k) plans;
• Retirement benefits;
• Financial planning and investment counseling;
• Elder care support (to assist workers with aging parents);
• Wellness programs;
• Onsite child care for grandchildren; and
• Gym memberships.

An employer should also ensure that all benefits are effectively communicated to employees in the employee handbook or through other communication channels.

Offer Reasonable Accommodations

While older workers may be able to continue doing the work they have always done, age-related illnesses, conditions or health issues may prevent them from working to the capacity and extent they once did.

Additionally, some older workers may have a disability under the Americans with Disabilities Act and relevant state and local laws. Therefore, it may be a good idea to consider providing reasonable accommodations to older workers that will enable them to perform the essential functions of their jobs.  For example, a factory may want to provide older workers with increased seating, softer flooring, lifting devices and frequent breaks.

Other accommodations include assistive listening devices and optical magnifiers/large print material. The important thing is that all workers are able to perform their jobs safely, securely and efficiently.

Provide Scheduling Options

Providing flexible scheduling or other scheduling options may be a good way to retain older workers moving into the next phase of life. For example, CVS offers employees a snowbird program which gives employees the opportunity to temporarily transfer on a seasonal basis and work in a store in a warmer state during the winter. The employer benefits as it is better able to serve customers in warmer climate stores during the busy winter season and employees are able to remain at their jobs while spending the winter months where they prefer.

An employer also may want to consider offering flexible scheduling in the form of:

• Reduced or staggered hours;
• Remote working options; and
• Compressed schedules or job sharing.

These options will permit older workers to tend to grandchildren in their care or other personal obligations.

Make Older Workers Feel Valued

It is critical for an employer to make older workers feel valued and respected. An employer may be able to do this by opening up the lines of communication with older workers and sending messages of thanks and appreciation. An employer also should consider setting up formal coaching and mentoring programs where older emplyoes can share their knowledge and experience with younger workers.

Most importantly, employers and supervisors must avoid stereotyping older workers and making assumptions about their abilities. Instead, focus on their strengths and applaud them for their ability to give back to the organization.

Offer Older Workers Additional Training

Providing increased training and educational opportunities to older workers also may increase their engagement. For example, an employer may want to provide additional classes on computers or mobile devices and other technologies to older workers who may feel threatened or intimidated by general employee training, but still have the capacity, desire and need to learn new skills.

By training older workers and continuing to invest in them, there is a greater chance that these individuals may continue to bring value to the organization.

Propose Phased Retirement

Frequently, older workers do not want to completely disengage, they just want to work less. That’s why offering phased retirement may be an attractive solution as it may allow a worker to slowly decrease his or her days and hours over a period of months or years while at the same time allowing the organization to benefit from the worker’s knowledge and expertise.

Phased retirement also enables a worker to continue earning a salary to help with future retirement or healthcare costs, and allows for continued medical, dental and vision coverage.

Finally, increased time away from work, may give older workers a window into how they want to spend their retirement once they are fully retired. A gradual transition, rather than an abrupt one, may be the best solution for both the employer and the employee.

The post Creative Ways to Attract and Retain Older Workers appeared first on XpertHR US Blog.

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With the launch of the #MeToo era, and increased attention being paid to other suspected workplace wrongdoing, the quality of your company’s internal investigation process is more important than ever.

XpertHR recently connected with a pair of leading investigators, Allison West and Michael W. Johnson, to discuss what to do, and just as importantly, what not to do when questioning witnesses. CBS News brought West in to deliver harassment training in the wake of Charlie Rose’s termination. Meanwhile, Johnson has provided client-specific investigations training to dozens of Fortune 500 companies.

West discussed what you need to know when investigating sexual harassment claims in her webinar, while Johnson spoke more generally in a wide-ranging podcast that focused on avoiding missteps when trying to judge an individual’s truthfulness in any sort of investigation.

Here are some of their top tips:

  1. Participation Does NOT Equal Welcomeness

Investigators must always remember there is a huge difference between welcomeness and consent when it comes to workplace harassment, said West. During her webinar with us, West noted a number of comments she often hears during investigations that serve to illustrate the difference:

  • “She kept working on the team. How bad could it have been?”
  • “Everyone loves my jokes. No one said they were offended.”
  • “That’s just Joe. He didn’t mean anything by it.”

West explained that just because someone continues to work on a team does not mean they gave consent to be subjected to harassing behavior.

  1. Do Not Discount Hearsay

If you have watched any sort of courtroom drama, you’ve undoubtedly heard that hearsay evidence – providing secondhand testimony when the person being quoted is not present –  is inadmissible in court.

But West calls herself a vocal proponent of hearsay evidence. “Hearsay can lead to relevant evidence,” she stressed. “Do not discount it!  It’s investigator malpractice if you do not follow ALL of the facts.”

West explained that just because someone heard something secondhand does not mean it’s untrue. Investigators need to follow leads and assess credibility in he-said, she-said situations. “You’ll be clubbed on the witness stand if you’re asked why you didn’t talk to certain people,” she said.

  1. Ensure Victims Are Comfortable

Oftentimes an investigator conducts interviews in he-said, she-said cases with a sense that an accused sexual harasser might be guilty, according to Johnson. But the investigator often has no way of finding evidence to support that instinct.

“So what happens is a lot of these he-said, she-said cases are deemed unsubstantiated,” said Johnson. “And so the message that gets sent to employees is unless you have some smoking-gun evidence or an eyewitness, don’t bother coming forward.”

In Johnson’s experience, there are two key reasons why witnesses do not come forward in the absence of hard evidence:

  • Fear of retaliation; and
  • Fear their claims will not be substantiated.

As a result, women and even men remain silent out of a belief that nothing will happen. “Unfortunately in most organizations they’re right,” concedes Johnson. “It’s not necessarily because of bad intention on the part of the employer, but just because they haven’t invested the resources to train the people doing the investigations properly.”

  1. Ask Open-Ended Questions

Johnson is a big proponent of letting witnesses do the vast majority of the talking. Asking yes or no questions or others that only require short responses can be problematic. “If the person is lying that makes it quite easy for them to maintain the lie,” he said.

Additionally, asking questions that are accusatory is a sure-fire way to get a witness to shut down. Instead, Johnson suggests asking a witness to tell you everything that happened and give as much detail as possible, while you gently prod, “And then what?”

“If they’re being truthful, we’ll likely get lots of details,” said Johnson. “If they’re lying, we’ll probably get a very bare-bones account of the story because when people are making up stories that never happened, to make up details takes a lot of mental effort.”

In a similar vein, West said an investigator should always ask certain questions to encourage people to open up:

  • Who?
  • What?
  • Where?

But the California investigator is quick to caution against asking “why,” saying it’s a word that sounds accusatory. West added, “Ask ‘what was going on?’ instead of ‘why did you do that?’”

  1. No Place for Amateurs

Finally, there is no substitute for an experienced investigator when investigating a sexual harassment claim. Johnson notes that he has served as an expert witness where his only job was to attack the quality of a company’s investigation. “Part of that was the qualifications of the investigator, many of whom had not been trained in the latest research-based techniques,” he said.

West highly recommends getting an outside investigator, especially when the accused harasser is in a position of power. Pointing out the tremendous risk of retaliation, she said, “You need an experienced investigator” because of the extremely delicate nature of these investigations.

For more insights, check out The Top 10 Things You Need to Know When Investigating Sexual Harassment Claims featuring Allison West, and Investigations Expert Discusses How to Spot Deception featuring Michael W. Johnson.

The post Investigations 101: 5 Things You Really Need to Know appeared first on XpertHR US Blog.

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With winter in full swing, we have the joys of reduced daylight, snowstorms and the dreaded cold and flu season. The flu, along with other infectious illnesses, has the potential to affect an entire workforce. Not only do contagious employees risk spreading their sickness to other workers, they are often less productive.

Flu season in the US typically falls between fall and early spring, with February often considered the worst month. During this season, employers should attempt to prevent the flu and other illnesses from overtaking the workplace if they haven’t done so already.

Below are some tips to help prepare your workplace for cold and flu season.

Offer Vaccinations

Employers can choose to provide vaccinations on site to better prevent illnesses. This makes the process as convenient and low-cost as possible, while ensuring higher rates of protection among employees.

Health practitioners are usually able to offer lower rates to groups than the individual employee would have to pay at a private practice for similar immunizations (such as the flu vaccine). Consider having the organization’s managers and leaders vaccinated first – to lead by example – at the flu clinic. Also, an employer may want to offer the vaccines to employees’ family members as a potential motivational tool as well.

While vaccines are important, an employer should be careful about not requiring employees to receive one. There may be employees who refuse to get a vaccine because of a religious belief or because of a medical condition. In these cases, an employer should not take any disciplinary or retaliatory measures against those employees.

If few employees are getting vaccinated, the employer may want to educate employees on the importance of vaccines. This can be done by:

  • Sending an email to all employees;
  • Hanging posters in high traffic areas; or
  • Offering a class as part of a wellness program.

Promote Proper Hygiene

It’s important for employers to promote proper hygiene in the workplace to help prevent the spread of illnesses. An employer should educate employees on ways to reduce the risk of exposure and how to protect themselves.

For example, an employer may want to consider providing hand sanitizer in high-traffic areas or around items that are handled by numerous people (e.g., shared computers, copiers, bathrooms).

Additionally, inviting health care professionals to provide information and seminars, including demonstrations (hand-washing, covering a cough, etc.), can provide the workforce with invaluable tools to stay healthy and ensure the continuity of productivity for an organization.

Encourage Use of Sick Time

It’s common for an employee to come to work while sick. Upon waking, he or she may feel under the weather, yet, at the same time, overwhelmed because of the amount of work there is to do. Rarely does the notion of spreading germs cross that employee’s mind when deciding to enter the workplace. Unfortunately, this scenario is all too common and is one of the reasons infectious diseases spread so rapidly in the workplace.

Providing paid time off while sick is an effective way to prevent having sick employees trudge into the office. It is especially important during cold and flu season for management to set a good example. When members of management come to work sick, they set the expectation for the entire workforce.

It’s also a good idea to consider allowing employees to carry over sick days if it is consistent with your policies. Because not every cold and flu season is as severe as the next, and employees often have good and bad years when it comes to their health, employers that allow employees to carry over some or all of their unused sick days will give employees a better way to manage the time they need to recover.

Be Flexible

As an alternate to asking an employee to take a sick day, if the job description and employer technology permit, HR may want to offer to let the employee work from home. This will allow the work to continue while protecting the employee from a loss in pay.

By allowing ill employees to work remotely, it limits their interaction with other employees and therefore the spread of illness. Again, employers must make an effort to protect the well-being of their employees, and giving them the flexibility to work remotely not only reflects the employer’s commitment to that ideal, but also boosts employee morale.

However, both employers and employees must remember that not all job positions lend themselves to telecommuting. In such cases, employers should work together with employees to agree upon an alternative accommodation.

Additionally, encouraging employees to telecommute while they are sick is really only a good idea when the employee feels well enough to work but does not want to infect his or her fellow workers. If employees are really feeling under the weather, they should be taking time off to rest and get better and not worrying about working (even if they are at home).

How does your organization deal with cold and flu season? Let us know by leaving a comment below.

The post How Employers Can Prepare for Cold and Flu Season appeared first on XpertHR US Blog.

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