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Despite the fact that getting a job with a living wage decreases the risk that an individual will commit another crime, society places many barriers to people with criminal records re-entering the workforce.

Many state regulations have occupational licensing requirements that prevent persons with a criminal history from obtaining a license to work. According to a recent study by the National Employment Law Project (NELP), one out of every four jobs now requires a professional or occupational license, including many good-paying jobs in high demand in the healthcare, construction and personal care industries. Perversely, sometimes those license restrictions are for occupations for which a person received training while in prison.

An Obama White House initiative aimed at reducing licensing requirements reported that over the past 50 years the percentage of US workers needing an occupational license to legally work in their chosen field has increased from 5 percent to nearly 33 percent.

Employer and Employee Perceptions

The perceptions of employers and employees also can present a difficult barrier for those with a criminal history to breach. A new survey by the Society of Human Resource Management (SHRM) and the Charles Koch Institute (CKI) found that employers’ concerns about hiring those with criminal records are focused on legal liability (e.g., the risk of theft, violence or criminal activity), customer and employee reactions, and regulations. Factors that would increase HR and managers’ willingness to hire from this group, according to the report, include:

  • An applicant’s demonstrated consistent work history;
  • Verifiable positive employment references; and
  • The completion of additional education or training while incarcerated.

The attitudes of fellow employees also can be a factor. Many non-management employees in the survey said that, while they believed they could work with a former inmate, they thought a majority of their coworkers might have difficulty doing so.

And the stigma is worse for women and minorities. The NELP report showed that employers did not call back 40 percent of men with a criminal record for a job interview, but that failure to call increased to 70 percent of formerly incarcerated women. And African American and Hispanic women are 93 percent and 61 percent, respectively, less likely to be contacted by employers for an interview or offered a job than white women with a prison record.

The result, a University of Maryland study found, is that “many persons with criminal records fail to apply for jobs because they believe their criminal background precludes them from being hired.”

Trends Favor Rethinking Hiring Policies

The May 2018 jobs report showed the US unemployment rate at 3.8 percent, the lowest rate since April 2000, and the second-lowest since 1969.

In addition, the number of US job openings exceeded the number of job seekers for the first time since the data started being tracked in 2000. The June 2018 Job Openings and Labor Turnover Survey (JOLTS) reported job vacancies exceeded the number of unemployed by a gap of 352,000 in April.

Another factor affecting the job surplus is the continued retirement of the baby boomer generation. Baby boomers are estimated to be retiring at a rate of 10,000 per day. The US Census Bureau forecasts that by 2030  all the baby boomers will be retired and will comprise 20 percent of the US population.

For employers, this data means it will be harder to fill job openings unless they can find untapped pools of qualified applicants. One of those pools is the more than 70 million Americans with prior criminal records.

“Companies must no longer view a criminal record as an automatic disqualification for employment,” advises Johnny C. Taylor, President and CEO of SHRM. “Nearly one in three working-age adults has a criminal record, so businesses must be willing to hire qualified applicants from this vast pool of nontraditional applicants, or else face a competitive disadvantage.”

Facts Disprove Perceptions

The misconceptions that prevent employers from considering job applicants with criminal histories are not supported by the data, according to SHRM.

Nor are companies that hire ex-offenders primarily motivated by government incentives or by being seen more favorably by the community. In fact, the SHRM/CKI survey found that less than 8 percent of HR professionals or hiring managers considered those issues in deciding to hire a person with a criminal history. Instead, 53 percent said they wanted to hire the best person available for the job and 33 percent wanted to make their community a better place.

Once hired, former prisoners prove to be as good or a better “quality of hire” than employees without a criminal record, according to 82 percent of managers and 67 percent of human resources professionals surveyed. And the cost of hiring individuals with criminal records is the same or lower than that of hiring individuals without criminal records according to the survey.

When Arte Nathan, president and COO of Strategic Development Worldwide, served as CHRO for Wynn Resorts from 1983 to 2006, he set up a program to hire former prisoners. “A program like this takes a lot of hard work. Helping these individuals successfully transition into the workforce requires a lot of coaching and mentoring – which in turn necessitates training for managers.”

But Nathan found the effort worthwhile both for the participants and the company. “Many company leaders who have hired people with criminal histories have found that they consistently come to work, have a positive attitude and don’t want to do anything to jeopardize their efforts to successfully re-enter society,” said Nathan.

SHRM’s Taylor also believes the formerly incarcerated have a lot to offer employers. “Many prisoners and ex-offenders are desperate to make an honest living and would make hardworking, loyal employees,” Taylor said. “All they need is a second chance.”

He also noted that a growing body of research shows that hiring workers with criminal records increases employee retention at a company and reduces turnover. “Although many employers are often hesitant to hire ex-offenders,” said Taylor, “they can expect a high degree of loyalty from these applicants for giving them an opportunity when others have not.”

Changing Governmental Landscape

In recent years, efforts to reduce the barriers that keep individuals with criminal records from successfully re-entering society have gained momentum. These initiatives include all levels of government, from municipalities to state legislatures and agencies to the White House. Eleven states and more than 30 municipalities, have passed “ban the box” laws to limit when private employers may ask prospective employees criminal history questions during the hiring process. Many of the nation’s biggest cities have passed broad “ban the box” laws, including:

  • Chicago;
  • Los Angeles;
  • New York City;
  • Philadelphia;
  • San Francisco; and
  • Seattle.

Some jurisdictions make it illegal for employers to ask applicants such questions until the interview stage while others ban the practice until a conditional job offer has been made. The goal is to prevent employers from treating all criminal convictions as a sort of “Scarlet Letter.” Some of these laws also delay when employers may conduct criminal background checks.

In May, President Donald Trump convened a White House summit on prison reform. A key focus of the summit, said Trump, was helping former inmates to find a path to success “so they can support their families and support their communities.”

In his remarks, the president stated that as many as three out of four individuals released from prison have difficulty finding work. “It is not merely a waste of money, but a waste of human capital,” said Trump, “to put former inmates on public assistance instead of placing them into a steady job where they can pay taxes, contribute to their country, gain dignity and pride that comes with a career, love waking up in the morning and going to a job.”

The summit’s goals echoed earlier White House pronouncements. In his State of the Union Address, the president said he was fully committed to helping former inmates get a second chance. Later he declared April “Second Chance Month” to “celebrate those who have exited the prison system and successfully reentered society,” and also to encourage expanded opportunities for those willing to work hard to turn their lives around.

The post Hiring Those With Criminal Backgrounds: Leading the Conversation appeared first on XpertHR US Blog.

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Along with states, municipalities are leading the way in expanding employee rights by enacting various laws to protect workers and expand their rights.

So, if keeping up with state and federal law updates is not challenging enough, employers now find themselves trying to keep up with localities stretching their own legislative power to carve out rights and benefits for those employed in their city.

Municipal laws are being enacted at such a fast rate that it is sometimes hard for employers to keep up. Here are five rapidly developing issues that may be coming soon to even more municipalities:

  1. Paid Sick Leave

Paid sick leave laws continue to create headaches for employers that may be tasked with not only understanding their legal obligations under a particular law, but also with knowing how the law intersects with other laws plus their own absence and paid time off policies. Private employers in many municipalities are required (or soon will be required) to provide some form of paid sick leave to eligible employees.

While no federal law requires paid sick leave in private employment (other than Executive Order 13706 relating to federal contractors and subcontractors), there is a growing trend at the state and local levels to protect employees who may otherwise be forced to choose between going to work sick and losing pay (or even their jobs in some cases). Paid sick leave provides employees with financial peace of mind when they cannot work due to illness or because they need to care for a sick family member.

Considering the nuances of these municipal leave laws, employers face a daunting task in determining how these laws overlap with state requirements (if any) and federal requirements (e.g., the Family and Medical Leave Act (FMLA)) and managing conflicting eligibility requirements.

And depending on the circumstances, an employer may be required to comply with a variety of different leave laws, including:

  • Paid sick leave;
  • Paid family leave;
  • Military leave;
  • Bereavement leave;
  • Blood donor leave;
  • Domestic violence leave;
  • Emergency responder leave; and
  • School activities leave

Employers must know how local paid sick leave laws interact with such leave laws to make sure they correctly incorporate them into their employee handbooks, policies and notices.

  1. Ban the Box

Another growing trend among municipalities involves “ban the box” laws. The name stems from the box on job applications that prospective employees are often asked to check if they have ever been convicted of a crime. These laws make it illegal to include criminal history questions on initial job applications. However, some prohibitions go further to ban such questions until after a first interview or until a conditional employment offer has been made.

Many of the municipalities that have passed these “ban the box” laws cite the fact that those with criminal histories are often categorically rejected by employers. The primary goal behind these “ban the box” measures is to prevent qualified, rehabilitated job applicants from being automatically excluded from consideration without the chance for an interview. These laws are also thought to reduce recidivism.

  1. Predictable Scheduling

Another new development employers need to be aware of is the rise of predictable scheduling legislation. These laws aim to provide workers with greater control over their workplace schedules, terms and conditions by requiring an employer to provide additional compensation to an employee if the employer makes last-minute scheduling changes.

Predictable scheduling laws aim to provide employees with increased stability and certainty when it comes to their work schedules so they can make child care arrangements or attend school events, for example. These laws also prohibit employers from discriminating or retaliating against employees who request scheduling changes.

It is important to provide notice to employees of their rights under these laws in employee handbooks and offer details on how schedules are set, and how employees should request any scheduling changes.

Predictable work arrangements do not only encompass changes to one’s start times or place of work, but would give workers advance notice if, for example, a special project would require longer hours so that adequate caregiving arrangements can be made.

  1. Salary History and Pay Equity

In an effort to advance pay equity and eradicate the gender wage gap, a significant number of municipalities are enacting equal pay legislation or substantially revising longstanding equal pay laws. Such changes include:

  • Strengthening equal pay laws;
  • Narrowing an employer’s defenses; and
  • Expanding an employee’s entitlement to remedies and damages.

Some laws are aimed at increasing pay transparency by prohibiting employers from banning employees from discussing their wages. Other jurisdictions have taken steps to prohibit employers from requesting applicants’ salary history and from basing hiring decisions on past salary.

This salary history question prohibition aims to reduce wage inequality between men and women. Having knowledge about past salaries when making hiring decisions may perpetuate past discrimination when women may have been paid less than men for doing the same work.

Therefore, if employers are restricted from asking salary history questions, then applicants who may have been underpaid for discriminatory reasons will not have their compensation history used against them. Some of these laws extend equal protections to all protected classes (beyond gender).

  1. Minimum Wage

And finally, while the federal minimum wage has not increased since it was raised to $7.25 in July 2009, many states and localities have raised their minimum wages well above the federal minimum, with some of them scheduling increases to rates as high as $15.00 per hour.

To help ensure that the minimum wage keeps pace with the rising cost of living, many municipalities adjust (or will adjust) their minimum wage rates annually. Others adjust their minimum wage rates periodically through legislation or ballot initiatives.

For some of these local minimum wage laws, compliance involves little more than a change in the rate of pay. However, there can be complications. For instance, many states and municipalities have minimum wage rates that vary depending on the size of the employer. This means if a company has grown or downsized during a year, it may find itself in a different tier.

Employer Action Required

So what does the influx of new local laws mean for employers? First and foremost, an employer must now not only decide whether a municipal law affects its workplace but also determine how it relates to federal and state law.

Then, the employer should review its workplace policies, rules and employee handbooks to determine how a particular municipal law affects longstanding policies and practices and what changes may need to be made.

Want to know more about these growing local trends? Learn about XpertHR’s Five Municipal Trends Keeping HR on Their Toes.

The post Federal, State AND Local, Oh My! 5 Local Trends Challenging HR appeared first on XpertHR US Blog.

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The #MeToo and #TimesUp movements are going strong.

It seems like every day there is an evolving story:

  1. New York Attorney General Eric Schneiderman blocks the acquisition of the scandal-ridden Weinstein Company one week, resigns in disgrace the next.
  2. Uber is part of a scandal at the corporate level and there are reports of assaults between drivers and passengers one minute. Then, it makes news for ceasing to require mandatory arbitration in sexual harassment cases.
  3. Charlie Rose is fired from his prestigious post; later CBS becomes the focus of a lawsuit by former employees.

But whether or not this national conversation continues, the topic of sexual harassment prevention needs to remain a priority for HR. This is because workplaces with a culture of harassment are more likely to have a high turnover rate among employees and lower job satisfaction.  Productivity plummets. And the risk for claims grows.

Whether your organization operates in a state that requires sexual harassment prevention training, soon will require it, or does not require it at all, HR needs to:

  • Remain proactive regarding sexual harassment prevention in the workplace; and
  • Approach the issue in a holistic manner.

During XpertHR’s webinar, Coming Soon: 50 States, 50 Sexual Harassment Training Laws, Robin Shea and John MacDonald of Constangy, Brooks, Smith & Prophete discussed the following concepts:

  • Why effective sexual harassment training is needed now more than ever; and
  • Best practices that apply no matter where you are.

Why Training Is Needed Now More than Ever

Sexual harassment discussions and action plans are everywhere, including from the following perspectives:

  • Prevention;
  • Training;
  • Litigation; and
  • Legislation.

As litigation and legislation continue to alter the compliance landscape, HR should to reflect any changes in legal requirements or developments in best practices.

Workplace training programs should track closely the regulations and legal requirements of the particular jurisdiction(s) in which an employer operates. California, Connecticut and Maine require private employers to provide supervisor training on sexual harassment prevention, with forthcoming requirements in both New York State and New York City.

Depending on the jurisdiction, there are differing requirements regarding:

  • Definitions of sexual harassment;
  • Modules in training (e.g., California requires that abusive content be included); and
  • Frequency of training.

In addition, the types of workers that must receive training or are covered by anti-harassment laws differ by jurisdiction:

  • Maine requires that all employees receive training;
  • New York, as of April 12, 2018, protects non-employees (i.e., contractors, subcontractors, vendors, consultants, anyone else who performs services under a contract); and
  • New York City requires that interns receive training as of April 2019.

For New York employers specifically, the requirements regarding sexual harassment prevention in the workplace are changing drastically beginning October 2018. The 2018 New York state budget bill requires all employers to implement a policy and to provide training for all employees on an annual basis. Compare this to California’s training requirements (among the strictest in the nation), which only apply to larger employers, and require that only supervisors receive training every two years.

In addition, New York City training requirements will take effect in April 2019. Under the Stop Sexual Harassment in New York City Act, covered employers are subject to record retention and notice-posting requirements that differ from and build on the state’s existing requirements.

John MacDonald offered XpertHR attendees compliance tips, including that any New York employer that is subject to both New York City and state requirements should follow the New York City requirements, as these are more onerous and would result in compliance with both jurisdictions. (Unfortunately, New York City regulations may not be released ahead of the state compliance deadline.)

MacDonald also cautioned New York employers to provide supervisor training on state sexual harassment protections relating to third parties (e.g., contractors). Supervisors may not be aware of these enhanced discrimination protections that are already in effect.

Best Practices That Apply No Matter Where You Are

Even if there is no legal requirement to provide training in a particular jurisdiction, HR should focus training on supervisors because their actions, conduct and behavior bind the employer: legally, a supervisor is the employer. In addition, offering rank-and-file employees training may allow them a safe space to ask questions and clarify policies and practices as they may be reluctant to engage in those discussions in other contexts.

With respect to training, Shea encouraged employers to cover not just illegal – but also “risky” or “uncivil” behaviors. For example, while excessive drinking during office-sponsored parties is not necessarily illegal, it is often cited as a precursor to bad behavior. Likewise, engaging in aggressive workplace behaviors could be viewed as abusive, bullying or harassing – all of which could lead to civil or even criminal liability.

Shea encouraged employers to keep relevant records of training. Shea even probed the audience by saying, “Why wouldn’t you?” Training records show that an employer values prevention training and that it complies with its obligations, which are all beneficial to both an employer’s culture and its bottom line.

Other best practices (a few listed below quote an Equal Employment Opportunity Commission report) Shea suggests implementing in both the current and post-#MeToo workplace include:

  • “Training should be supported at the highest levels” of the company;
  • Training should be “conducted and reinforced on a regular basis”;
  • Live, interactive training sessions;
  • Effectiveness of training should be “routinely evaluated”; and
  • General civility, and “bystander intervention” training are also recommended (any Obama-era NLRB objections to civility training may be rolled back shortly).

How is your organization preparing for a post-#MeToo workplace? Please share with a comment below.

The post Sexual Harassment Prevention: Planning for a Post-#MeToo Workplace appeared first on XpertHR US Blog.

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As we approach Memorial Day and honor veterans for their service to the US military, it is important for an employer to recognize the discrimination and unfair treatment many veterans still face in the workplace today. In fact, just recently, a manufacturing company paid $75,000 to settle a disability discrimination and harassment lawsuit filed by the Equal Employment Opportunity Commission (EEOC) on behalf of a veteran with post-traumatic stress disorder (PTSD). The veteran claimed he was harassed and called a “psycho” by his supervisors and coworkers because of his condition.

Additionally, the EEOC recently sued a trucking company alleging that it failed to accommodate, refused to hire and retaliated against a veteran because he used a service dog to help control anxiety and to wake him from nightmares caused by PTSD.

So what can an employer do to make its workplace more veteran friendly and avoid these types of situations? The following are some affirmative steps an employer can take to make its workplace fairer towards veterans and provide them with increased professional opportunities to level the playing field.

1. Enforce EEO Laws With Respect to Veterans

It is essential for an employer to impress upon its workforce that discrimination, harassment and retaliation against veterans and members of the military will not be tolerated. This means an employer should include veterans and members of the military as a protected class in their employment policies and employee handbook and provide supervisors and employees with training on the issue.

There has also been recent movement in state and local jurisdictions regarding veteran and military-related protections. For example, New York City and New Jersey recently expanded antidiscrimination protections for veterans and military members.

Employers should also note that the Uniformed Services Employment and Reemployment Rights Act (USERRA) and its state counterparts provide that an employer may not discriminate against individuals based on their military obligations. These laws require employers to provide job protection and reinstatement rights if individuals leave their civilian jobs, voluntarily or involuntarily, to serve in the uniformed services, the reserve forces or in a state’s National Guard.

If faced with a discrimination complaint concerning a veteran, an employer should carefully document it and follow up with an investigation and interim and disciplinary measures if needed. Further, if an employer needs to take adverse action against a veteran, the employer should be careful to document this, making sure that they are not engaging in unlawful discrimination.

2. Aim to Hire More Veterans

An employer should aim to hire more veterans and recognize the unique skills, talent, dedication and experience that they may bring to the workforce. Targeting outreach to veteran organizations may assist in this process.

Additionally, an employer should take note of veterans’ preference laws that permit employers to voluntarily provide preferences to otherwise qualified veterans and at times, their spouses, when it comes to hiring, promotions and sometimes reductions in force without violating EEO laws. In recent years, veterans’ preference laws have been enacted in a number of states, and an employer should check to see if one is in effect in the jurisdictions it operates in.

An employer should also note that under the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA), certain federal contractors and subcontractors are required to take positive actions to hire and promote veterans. Covered employers must report their hiring efforts and establish an affirmative action plan that addresses veteran employment and provides priority to covered veterans.

3. Develop Employee Resource Groups for Veterans

In order to promote a diverse and inclusive workplace where veterans and military members feel valued and respected, an employer should consider creating employee resource or affinity groups geared toward veterans. This is a good way to demonstrate that the employer actively supports veterans and military members and is willing to provide mentoring and networking opportunities for them.

Veterans’ employee resource groups can also make onboarding easier and provide veterans with assistance and resources when transitioning back into civilian life. Such resource groups also may improve morale and camaraderie between and among veterans by providing them with the opportunity to network and share similar issues and experiences.

4. Provide Veterans with Accommodations

Many veterans may suffer from physical and mental disabilities arising out of their military service such as missing limbs, spinal cord injuries, hearing loss and PTSD.  Such individuals are often protected by disability discrimination laws and entitled to reasonable accommodations such as:

• Physical changes to the workplace (e.g., to accommodate a wheelchair);
• Modified equipment/devices and technology (e.g., to accommodate blindness);
• Telecommuting;
•  Modified or part-time work schedules;
• Use of a guide dog or service dog;
• A job coach or assistant; or
• Leave for treatment, recuperation or training.

If a veteran requests an accommodation, the employer should make a good faith effort to attempt to fulfill the request and engage in the interactive process with the employee, discussing the nature and need for the accommodation. An employer should make every effort to provide reasonable accommodations unless doing so would create an undue hardship given:

• The nature and cost of the accommodation;
• The overall financial resources of the employer;
• The overall size of the employer;
• The impact on other employees; and
• The composition/structure of the employer’s workforce.

An undue hardship analysis should be made on a case-by-case basis and should be clearly documented.

5. Grant Leave Requests

During the course of employment, veterans or their spouses or significant others may need time off for various reasons including to serve in the US military, to attend doctor’s appointments or celebrate Veterans Day. An employer should recognize that veterans and their spouses or significant others may be entitled to take leave and time off under various laws, including, but not limited to:

• USERRA;
• The family military leave provisions of the Family and Medical Leave Act (FMLA); and
• State laws providing veterans with time off for Veterans Day.

It is important for an employer to track veterans’ requests for time off and maintain records regarding whether the request was granted or denied. If an employer denies a request, it should ensure that the denial was based on legitimate nondiscriminatory business reasons.

What veteran friendly policies and procedures does your organization have in place? Let us know by leaving a comment below.

The post 5 Ways to Make Your Workplace More Veteran Friendly appeared first on XpertHR US Blog.

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As schools let out and the days get hotter, your company may be looking to take on a summer intern.

If you’re looking to have someone perform menial office tasks like stuffing envelopes or making photocopies, then you had better just hire them as an employee – and pay them at least the minimum wage and any overtime due. Otherwise, you’re inviting a lawsuit like the ones that have been filed against companies like Fox Searchlight, Condé Nast, Hearst, Warner Music Group and NBC Universal.

But if you’re looking to establish an unpaid internship, then be sure the intern – not your company – realizes most of the benefit. This doesn’t mean your organization will get no benefit out of the internship. After all, unpaid interns who show promise often can be converted to employees. Moreover, they can bring fresh ideas and an outsider’s perspective on how things can be done differently.

Still, under a test that has been adopted by several federal appellate courts and was recently adopted by the US Department of Labor (DOL) as well, the primary benefit must be for the intern.

Here are seven questions you should consider to be sure your internship qualifies:

  1. Do you and the intern both clearly understand that there is no expectation of compensation? Ideally, this understanding should be memorialized with a written acknowledgment from both the intern and the company.
  2. Will the internship provide training that would be similar to what would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions? This can prove a high bar to hurdle. Under an older test, the DOL said training should take place in a classroom or academy more than in the employer’s actual operations, and that it should provide the interns or trainees with skills they can use in other workplaces, not just at the employer’s workplace. Although that test has since been abandoned, meeting those guidelines would certainly help an employer’s case.
  3. Is the internship tied to the intern’s formal education program by integrated coursework or the receipt of academic credit? This will likely necessitate a partnership with a local college, university or trade school.
  4. Does the internship accommodate the intern’s academic commitments by corresponding to the academic calendar? For example, the internship shouldn’t run from Memorial Day to Labor Day, or from the summer solstice, June 21, to the fall equinox, September 22, unless the intern’s summer break spans the same timeframe.
  5. Will the internship stop if it no longer provides the intern with beneficial learning? Your intern must continue to learn during the entire duration of his or her internship. You can’t train them for a couple of weeks and then continue to have them perform work without further training.
  6. Will the intern’s work complement, rather than displace, the work of paid employees while providing significant educational benefits to the intern? Neither the courts nor the DOL will look kindly upon it if you take on unpaid interns with the goal of training them in a certain job so they can someday replace older workers.
  7. Do both you and the intern understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship? This is a two-way street. The intern must understand that he or she isn’t entitled to a paid job; and you the employer must understand that the intern is under no obligation to take a position with your company. As with Question 1, it is a good idea to memorialize this understanding with a written acknowledgment signed by both parties. This doesn’t mean you can’t offer a paying job to the intern if you’re impressed by them, just that they’re not entitled to one.

None of these questions is the final word. And they need not all point in the same direction for a court to conclude that an intern is not an employee. In addition, under the primary beneficiary test, the factors are “non-exhaustive,” which means that courts, in certain cases, may consider relevant evidence beyond the above questions. Still, if you can answer “yes,” to most or all of these questions, it will go a long way in helping limit the legal risks of an unpaid internship.

The post 7 Questions to Consider Before Taking on an Unpaid Intern appeared first on XpertHR US Blog.

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It’s just two weeks until the European’s Union’s (EU’s) much-discussed General Data Protection Regulation (GDPR) takes effect.

The GDPR marks the most significant change to European data security protections in more than 20 years, and will be the first time data breach notifications are mandatory for employers in all 28 EU states. But why does this matter for US employers?

For starters, we increasingly live in a world without borders. “Anyone who markets products over the web will have reason for concern and will have to look at their website privacy policy,” says Littler Mendelson employment attorney Philip Gordon, who co-chairs the firm’s Privacy and Background Checks Practice Group.

On my XpertHR podcast, Gordon discusses the GDPR’s many implications for US-based companies. He says the following employers could be affected:

  • Any US company with employees in the EU will need to address the GDPR (even a small business with a sales representative in Europe);
  • Any US company that offers products or services to EU residents is covered by this new privacy regulation; and
  • Covered employers must provide notice to their local supervisory authority within 72 hours of first becoming aware a data breach.

“We’re past the days where only Fortune 500 companies are multinational,” Gordon explains. “With the ease of communication, even small businesses today can be multinational companies with sales reps in Europe.”

He adds that the GDPR’s long-arm provision will capture any US business that targets consumers in the EU. These businesses will also bear responsibility for any of their third-party vendors’ actions on their behalf.

Another big issue with the GDPR involves consent, which EU regulators view very narrowly because of the hierarchical nature of the employment relationship. Gordon says employee consent under the GDPR must be unambiguous because of concern that employees may feel compelled to share personal data in order to keep their jobs. This means US employers cannot evade the data protection regulation by having employees sign opt-out agreements.

The overall idea behind the GDPR, Gordon notes, is both to give Europeans more control over their personal data and for employers to integrate data protection into their standard operating procedures. The GDPR defines personal data to be any information from which a person could be identified.

That definition and the GDPR’s impending May 25 effective date is creating consternation on both sides of the Atlantic. That’s because under the GDPR’s penalty provision, regulators can impose penalties on companies of up to $25 million or 4% of annual global sales, whichever is larger.

According to Gordon, the number one question people are asking is, “What happens if I don’t get everything done by May 25th?”

Forunately, he says that regulators are starting to recognize that compliance will take time. As a result, Gordon predicts that so long as companies can show good-faith efforts to begin the process to get everything completed as soon as possible, they are likely to avoid stiff monetary penalties in the early going.

“Don’t panic if you haven’t gotten started,” advises Gordon. “This is very doable. Create a team and break down what needs to get done into smaller pieces and take your obligations seriously,” says Gordon. “If you do that, your organization will be fine.”

Our XpertHR podcast features more insights from Littler Mendelson’s Philip Gordon on what US employers need to know about the GDPR.

 

 

 

The post Why US Employers Can’t Ignore EU’s General Data Protection Regulation appeared first on XpertHR US Blog.

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Do your employees have trouble disconnecting from work? Are they logged on to workforce systems at all hours of the day and night? Do they answer emails while on vacation or over the weekend?

In the era of smartphones, tablets and Apple watches, everyone has information at the touch of a button or tap of a screen. This includes work information, and many employees have trouble disconnecting from their jobs outside of standard work hours. Employees can find themselves sending e-mails, attending Skype meetings or completing assignments after normal work hours or even while they are on vacation.

24/7 Workforce Problems

On the one hand, employers may be happy to see their employees working extra time. They may think it shows great commitment to the organization and are reassured that they can count on their employees any time they need them.

However, having your employees available and ready to work 24/7 can be a problem for both employers and employees. For employers, it may result in wage and hour violations and distracted driving claims. Meanwhile, employees who are connected to work all the time may have trouble with:

  • Stress;
  • Burnout and productivity problems;
  • Lack of work-life balance; and
  • Health issues.

The expectation of being available 24 hours a day through digital means can be especially detrimental to workaholics. Workaholics may stay late every day, take work home with them and work even while on vacation. While a workaholic may seem like an ideal employee at first, this behavior leads to stress and burnout, which may eventually render the employee unable to work.

Vive la France

Being unable to disengage from work after hours appears to be becoming more of a workforce issue, and France is leading the charge in helping workers disconnect from work. Employees in France now have, in principle, a legal “right to disconnect.”

Although this right is not precisely defined by French law, it gives workers an implied entitlement to stop contact with work through computer-based technology outside of working hours. This means employees could choose not to read or respond to work-related e-mails or decide to switch off their work smartphones.

However, the way this right to disconnect is implemented is mainly left to negotiation and consultation at the level of individual employers.

First Stop France, Next NYC?

While France is often at the forefront of employee rights and protections, its novel approach may be spreading across the Atlantic. New York City is currently considering a bill that would provide its workers with a right to disconnect as well.

The bill, if passed, would prohibit private New York City employers with 10 or more employees from requiring their employees to access work-related electronic communications outside of their usual work hours, except in cases of emergency.

Employers would be required to adopt a written policy addressing employee use of electronic devices to send or receive emails, text messages, or other work-related digital communications outside of work hours. Such a policy would have to provide the usual work hours for each employee class and the categories of paid time off to which employees are entitled (e.g., vacation, personal and sick days), which would all be considered non-work hours.

However, there would be some exceptions to the New York City law. For instance, it would not apply to:

  • Employees required to be on call 24 hours a day (on days when they are working);
  • Certain employees in work study programs;
  • Certain scholarship recipients; and
  • Independent contractors.

The bill also includes a notice of rights obligation and contains provisions outlining retaliation protections and when employers might be subject to potential fines. A New York City employer could potentially face fines ranging from $50 to $2,500 per violation.

Now the bill, if passed, wouldn’t prevent employees from working outside of work hours. It is only designed to prohibit employers from retaliating against those who decide to disconnect from work.

Benefits of Digital Detoxing

Even if right to disconnect laws don’t become a trend in the US, employers should still make sure they are taking into account the work-life balance of their employees. This includes addressing issues that arise because technology has made it possible for employees to work day and night.

One action an employer could consider taking to encourage its employees to disconnect from work is promoting the benefits of digital detoxing. According to Wikipedia, a digital detox “refers to a period of time during which a person refrains from using electronic connecting devices such as smartphones and computers.” Encouraging such behavior could be good for employees and result in:

  • Reduced stress and anxiety;
  • Higher productivity during work hours;
  • Burnout prevention; and
  • More focus on social interaction and activities.

How does your organization handle employees who have trouble disconnecting from work? Let us know by leaving a comment below.

The post Helping Employees Disconnect from Work in the Digital Age appeared first on XpertHR US Blog.

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With the #MeToo and #Time’sUp movements bringing more focus to the issue of equal pay for women, employers are taking gender pay equity more seriously, with some reporting success.

In March, Starbucks announced that it had reached 100 percent pay equity for employees or “partners” of all genders and races in its US operations. The Seattle-based coffee company had been working to reach that milestone for 10 years, according to the announcement. It now is focusing on maintaining pay equity in the US and encouraging and verifying pay equity at its stores around the globe.

Entertainment giant HBO announced on Equal Pay Day (April 10) that it had corrected its gender pay disparities throughout the network. HBO said it had conducted extensive pay audits to ensure pay equality. “We just finished our process where we went through and made sure that there were no inappropriate disparities in pay,” said Casey Bloys, HBO’s president of programming. And where the network found disparities, Bloys added, it corrected them going forward.

Trends Favoring Pay Equity

The legal landscape also is changing in favor of pay equity. A report by Seyfarth Shaw on trends and developments in pay equity found that more states are passing or strengthening their equal pay laws. New Jersey recently enacted what some have called the toughest pay equity law in the nation. Not surprisingly, given the increase in laws, the report also found increased interest in litigation under the federal Equal Pay Law and state counterparts.

A recent survey by global outplacement and executive coaching firm Challenger, Gray & Christmas reached the following findings:

  • 48% of companies are assessing their compensation policies to guarantee pay equity;
  • 27.5% said they already pay men and women equally; and
  • 17% reported not reviewing their policies.

“Employers in all industries at companies of all sizes are examining their compensation structures to ensure their workers are being paid fairly for their contributions, regardless of sex,” said company vice president Andrew Challenger.

Gender Pay Gap Reporting in the UK

The push for equal pay is not just a US priority. In the UK, all employers with 250 or more employees are legally required to report six key metrics annually about their gender pay and gender bonus gaps. The first deadline for filing the survey was April 4, 2018. Mark Crail, content director of XpertHR UK, reported that over 10,000 companies met the deadline for reporting their first gender pay gap figures. As part of its offerings, XpertHR provides a gender pay gap reporting service and also has the results of the first pay survey, which reveals a mean gender pay gap average of 14.5% in the UK.

Crail said that the survey has irrevocably changed the pay landscape. “All this is now public,” he said. “It’s not going to go away. Perhaps a lot of people thought: ‘Oh well, we will report, there might be a bit of fuss and then it will die down.’ I really don’t think that is going to be the case,” Crail said.

And employers that fail to take steps to resolve pay disparities are being “really foolish” said Crail, who observed that employers need to really understand the issues that are driving their wage gap. “It’s not enough to say, ‘Oh, we’ve got lots in technology roles and that’s largely male,’ or ‘We’ve got lots of men at the top and lots of women at the bottom’,” said Crail. “That’s not an explanation, that’s just a description.”

Employers Must Push Forward

Although progress is being made, it is too soon to say that the push for equal pay is reaching a tipping point. Employers therefore need to be proactive by setting policies and creating a workplace culture that fosters pay equity.

One step that an employer can take is to adopt the principles for compensation equity recently published by the Society for Human Resource Management (SHRM). The core concept of the principles is this: Pay decisions should be based on bona fide business factors and not on non-job-related characteristics.

SHRM president and CEO Johnny Taylor, Jr. explained that employers should be able to consider bona fide business factors in determining pay, such as education, certifications, relevant experience, skills, seniority and geographic location. However, he said, “What employers can’t do is pay people differently because of their sex, race, national origin or any other protected classification. This is prohibited by federal law, and it also makes no business sense.”

To move toward achieving pay equity, employers should do the following:

  • Substitute salary expectations for salary history;
  • Encourage transparency about pay, including sharing how pay decisions are made;
  • Adopt workplace flexibility; and
  • Audit pay practices regularly and make corrections as needed.

What steps has your organization taken to reach pay equity? What were the challenges in the process? Share your experiences in the comments.

The post Pay Equity Efforts Gain Momentum appeared first on XpertHR US Blog.

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Let’s be fair and assume that when you did your most recent handbook update – historically that would be end of 2017 or early 2018 – you prudently accounted for the dozens of laws that would change around the country on January 1st. Good news: you were ahead of the curve when you did that as many companies do not even perform an annual handbook review. It’s quite horrifying.

The bad news? You’re already behind the eight-ball for handbook updates only three short months later. That’s because more than two dozen additional changes in employment law have already occurred around the country since January 1st, particularly in hot spots like New York, Massachusetts, New Jersey, Maryland, Colorado and several major municipalities, including:

  • Chicago;
  • Seattle;
  • Sacramento;
  • San Francisco; and
  • Santa Fe.

And that’s only part of the bad news, because the volatility continues through May and June with Utah, West Virginia, Oregon, Washington State and even Alabama getting in on the action.

And if you’re in California – home of the most complicated employee handbooks to begin with – you know that rapidly-approaching July 1st is one of two annual employment law overhauls common to the Golden State. If California were a snake, it would molt its HR skin almost entirely twice per year.

On the bright side, XpertHR has covered this topic in great detail with big updates to our Employee Handbook tool on a regular basis and even a 2018 handbook update blog in March, focused on some of the modern handbook policy update trends like pay equity, predictive scheduling, sexual harassment, pregnancy accommodations and employee leaves.

The takeaway here is that your handbook is only as good as its last update, the last update is only as good as how recently it occurred and your sanity is dependent on the quality of your handbook-updating protocol. Because even if you did a recent update, it might not be good anymore, depending on where your company is located.

Thus, a modern employee handbook truly needs to be a living, breathing document in the sense that:

  • It can always be changed;
  • Your company is agile in its ability to respond to compliance changes;
  • Employees have constant access to the handbook; and
  • They are fully in the loop when handbook updates alter the terms and conditions of their employment.

A truly modern handbook is perhaps a digital handbook to which employees have access across several devices, which lives in an ecosystem where HR and legal departments work collectively toward comprehensive but employee-friendly policy language. That digital functionality enables seamless updating and the existence of a digital “master” copy to which HR professionals can refer employees when they have straightforward questions about their rights and responsibilities.

If your company is in multiple states, you also potentially have the “macro vs. micro” problem in the sense that you can either have one standard for everyone at the most employee-friendly level (macro) or a location-specific administration of employee rights and responsibilities (micro), requiring lots more local knowledge and fact-specific troubleshooting of employee questions and concerns.

And even if you are able to pull all that off – your handbook is digital, it’s up to date, it’s accurate and compliant and it solves the macro vs. micro puzzle for multi-state companies – you’re still left with the single greatest challenge around employee handbooks that HR professionals routinely face: getting your employees to actually read it.

Give Me Pay Equity or Give Me Death

Salary history is the new “don’t ask, don’t tell.” Not only can employers get in trouble for asking the question – if not legal trouble then there is potential backlash from applicants and competitors along public relations lines – but employees should take the initiative to protect themselves by not offering up the information when it’s not solicited.

Historically, prudent job interviewers generally have developed ways around these types of questions anyway. “What are your salary expectations for this job?” is a different way of obtaining a similar data point from an applicant, but without running afoul of a salary history question prohibition.

Currently, California, Delaware and Oregon have restrictions in place at the state level, as well as several municipalities, including New York City. In July 2018, Massachusetts, San Francisco and Westchester County, New York will join the party, further spreading these prohibitions around the country. If the trend follows other recent patterns in employment law like paid sick leave and ban the box, it is just getting started.

But restrictions on questions about salary history are only one aspect of the pay equity equation. “Pay equity” laws broadly aim to close the persistent wage gap between men and women and in some cases, across many other protected classes as well. In New Jersey, for example, the Diane B. Allen Equal Pay Act will apply across any and all categories of employees that are protected by the New Jersey Law Against Discrimination (LAD).  The new law will allow employees to sue for up to six years of back pay and provide for “triple damages” as of July 1, 2018.

Then there’s the 9th Circuit Court of Appeals, which recently delivered a decision in a gender discrimination case, finding that a female employee’s 5-percent pay increase over what she earned in her previous job did not insulate the employer from her discrimination claim since male co-workers were earning much more for performing similar work. That type of ruling underscores the responsibility employers have – not only to stop asking about past salaries, but to be transparent and audit its pay practices in a meaningful way.

Company Cannabis Conundrum

Here’s a question that thousands of HR professionals are asking themselves these days, “Can we still test job applicants and employees for marijuana?

Unfortunately, the correct answer to that question (“it depends”) provides little satisfaction and potentially high legal bills. A comprehensively correct answer is one that requires several questions to be answered first. At the very least, the decision of whether or not to test a job applicant or employee for marijuana depends on the following:

  • Has the state where the applicant is looking to work legalized medical and/or recreational marijuana?
  • Does your company currently test job applicants or employees for drugs and, if so, does it test every applicant or employee, or only applicants or employees in certain types of jobs?
  • If your company only tests certain types of applicants or employees, what is the rationale for why those particular jobs require drug tests while others do not?
  • If it’s an employee, how does the state where the employee works treat “reasonable suspicion,” or other objective requirements prior to asking an employee to complete a drug test?
  • How does the state in which the applicant or employee works treat “random” drug testing?
  • Does the state where the applicant is looking to work have protections in place for “lawful, off-duty conduct?
  • What exactly are you trying to accomplish by testing job applicants or employees for marijuana?

Given the increasingly complex regulatory scheme when it comes to the legality of marijuana, together with the likelihood that widening legalization will lead to increased usage among adults, perhaps the best question is not whether you can test a job applicant for marijuana. After all, modern American companies increasingly report difficulties with finding qualified applicants for their open positions. Given that reality, perhaps the better question is should you test an applicant or employee for marijuana?

Outrageous HR Outliers

A former USPS worker was fired after fraudulently claiming that she had non-Hodgkin’s lymphoma and that she required time off from work to treat the condition. After being granted leeway and accommodations, the USPS ultimately grew suspicious of the worker’s claim when one of her “doctor’s notes” contained a misspelling of the doctor’s name. Reasoning that a physician would be unlikely to misspell his or her own name, the USPS started an investigation.

Ultimately, the investigator found that the employee was never treated at any of the facilities she claimed to be visiting for her condition. As a result, the USPS determined that this cancer-free worker was a cancer around the office, but the federal government added insult to fake injury by indicting the employee for forgery, wire fraud and possession of false papers aimed at defrauding the United States. Capping this strange and pathetic tale was the employee’s courtroom admission in the criminal trial: she faked the whole thing because she was upset at being passed over for a promotion!

Think that’s bad? Here are some more HR horror stories. Personal favorites: the drunk daycare worker sneaking sips of liquor in a Gatorade bottle while dishing out milk bottles to toddlers and a hotel supervisor who marked rooms unavailable to guests when he wanted to sleep off a late night bender.

So remember, as hard as HR seems sometimes, it could always be a lot worse.

Got any of your own HR horror stories to share? Or perhaps you just want to vent about your “new” handbook already being old? Let us know in the comments section below or on Twitter.

The post HR Intel: Your New Employee Handbook is Already Old appeared first on XpertHR US Blog.

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Among the hottest trends an employer needs to be aware of in the US today is the push for pay equity and the multiple efforts to close the persistent wage gap between men and women. It is essential for employers to take note of the growing number of laws prohibiting salary history inquiries, including California, Delaware, Massachusetts, Oregon and others.

The rationale behind these laws is that women have been at a historical disadvantage and if compensation is based on a woman’s current or previous pay, then that disparity will continue. In a recent XpertHR webinar, Fisher Phillips employment attorney Cheryl Pinarchick provided the following tips to keep in mind when confronting these salary history bans:

Recognize the Rapidly Changing Landscape

Salary history bans are a quickly shifting legal landscape and such laws often are part of greater legislation addressing equal pay and wage disclosure. Therefore, it is important for employers to have someone in their organization charged with staying on top of these new laws that are being proposed and passed at the state and city level.

Pinarchick cautions that it is not just employers and HR that need to be aware of these laws, but also recruiters and third parties who communicate with applicants and candidates. Ignorance of the law is no excuse, and compliance by external recruiters or other third party services should be confirmed. Further, Pinarchick warns that even if an employer is not subject to a salary history ban, relying on salary history may still expose an employer to a claim under the Equal Pay Act.

Understand That Each Law Is Different

Pinarchick notes that these salary history bans differ, so there can be no cookie cutter approach. Therefore, it is essential for multi-state employers to understand the parameters of each law to ensure compliance. For instance, an employer needs to know if it is prohibited from:

• Requesting or requiring an applicant to provide prior salary history information;
• Relying on prior salary history and using it as a factor to determine whether to offer employment or what salary to offer;
• Asking about salary history on a job application or during the interview process; or
• Conducting internet or other searches or background checks in an effort to determine the applicant’s salary history.

In some instances, an employer will be able to use salary history to consider or verify salary information to determine salary, benefits and compensation but only if the disclosure is voluntary and not prompted by the employer. Additionally, many of the new laws generally do not prohibit employers from discussing salary expectations and ranges with candidates.

Even if an employer is not operating in a jurisdiction with such as law, it may soon be subject to one or it may face additional challenges as a multistate or multi-city employer. That’s why Pinarchick says employers need to determine if they will devise a national approach to addressing these laws or simply address them on an individual basis.

Train Managers and Supervisors

Pinarchick advises that managers, supervisors and those with the authority to recruit and hire must be trained on the various parameters of the new laws, including what may be asked and what is off limits during the interview process. For starters, managers and supervisors should be warned against asking for the current or past salary from the applicant themselves or a former employer.

It is generally permissible to inquire about and document salary expectations and ranges, but Pinarchick warns employers to avoid follow up questions which may lead to a disclosure of salary history. Instead, the focus should remain on the applicant’s salary demands as well as the skills and qualifications the individual has that entitles them to a particular salary.

When responding to reference checks, managers and supervisors should also avoid releasing a former’s employee’s salary history to a prospective employer without authorization from the current or former employee.

Implement a Process to Handle Voluntary Disclosures

There may come a time during the hiring process when an applicant volunteers his or her salary history. Therefore, Pinarchick recommends that employers implement a process for documenting voluntary disclosures of salary history.

Along these lines, it may be prudent for an employer to warn applicants at the start of the process that they should not provide salary history information. It also may be a good idea to put in a salary range in any job advertisements or materials, Pinarchick says, as this may save both parties time. If salary history is voluntarily disclosed, the employer should make sure to document this in writing to protect the employer’s interests if it is later challenged.

Determine What a Job Is Worth

Pinarchick advises that an employer should begin by determining what a job is worth and then come up with a pay range and salary guidelines based on lawful justifications such as:

• Education;
• Skills;
• Merit;
• Experience;
• Longevity/Seniority;
• Licensures;
• Billable hours;
• Awards;
• Sales history (revenues/targets/goals);
• Performance history; or
• Book of business or profits generated.

Any or all of these factors may provide a legal justification for paying different wages for the same or a similar position.

Additionally, an employer can still use market survey data and benchmarking information, which will provide employers as well as employees with a ballpark salary.

For more insights from Cheryl Pinarchick on this rapidly evolving area, listen in to our latest XpertHR webinar, “Don’t Ask, Don’t Tell: Salary History Bans in Connection with the Pay Equity Movement.”

The post Top Tips for Addressing Salary History Bans appeared first on XpertHR US Blog.

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