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NLRB’s Recent Ruling & How It Could Affect You

Posted on September 28, 2015 by Trinity HR

contractorsIn a potentially game-changing decision in Browning-Ferris Industries of California, Inc., the National Labor Relations Board (NLRB) cast aside its long-standing joint employer test in favor of a highly union-friendly standard. There is virtually no disputing that this new standard is likely to expand greatly the number of employers subject to collective bargaining and other obligations under the National Labor Relations Act (NLRA).

The NLRB recently redefined Board the word “employer,” concluding that both a company and its subcontractor serve as “joint employers” of a contractor. For any business that subcontracts workers through a third party, this news could mean big changes to the way they operate.

Each can be held liable not only for its own labor violations but also the other entity’s.
Joint employers can also be forced to participate in collective bargaining, regardless of which employer may be considered the primary employer.

As the dissenting Board members emphasized, this ruling is almost certain to have a dramatic impact on all employers.  This is especially true for those who use contractors, including from staffing agencies.

EMPLOYER ACTION

  1. Obtain legal advice on how this new ruling specifically applies to you.

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  2. In the meantime, to be safe, businesses that use contractors should be careful in assigning and requirements. Deadlines and specific outcomes are to be expected, but requiring projects be completed in a certain way during certain work hours can put a business in a position where it is seen as trying to bypass its tax and insurance obligations.

HOW TRINITY CAN HELP?

As an HR management consulting firm, Trinity does not practice law. However, we have relationships with several law firms that are considered to be outstanding in the practice if Employment Law.

Posted in HR Legal & Compliance

SO YOU THINK YOU KNOW WHAT CONSTITUTES WORK TIME FOR PAY PURPOSES!

Posted on September 10, 2015 by Trinity HR

The typical employer answer is “employees must be paid for all hours they work.”

  • Good news – That answer is right!
  • Bad news – That answer is very incomplete!

Here’s why that answer is very incomplete.  It needs to address how employees are to be paid under the following situations, which are very much determined by the specifics:

1. Waiting Time

  • Under what circumstances is an employee who is not performing work in the normal sense but is waiting to perform work required to be paid?

2. On-Call Time

  • Is the employee required to remain on call on the employer’s premises is working while on call?
  • Is the employee free to be wherever she/he desires, but is required to be reachable while on call?

3. Rest and Meal Periods

  • Is a rest period considered to be work time?
  • Under what circumstances is a meal period paid time?

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  • Do you know the four criteria that determine when these are paid or unpaid time?

5. Travel Time

  • Does your company know under what circumstances travel time must be treated as paid time?

Your company needs to know the answers to these questions!

➡ If you do not, you’re most likely either paying employees too much or too little – either way, you lose.

RECOMMENDED EMPLOYER ACTION

  1. Review how you are currently handling all of these circumstances.
  2. Ensure what you are doing aligns with what you are required to do.
    • You are free to be generous by paying employees for circumstances than you are not required to.
    • You MAY NOT fail to be employees for circumstances for which pay is required.
  3. Have pay/payroll policies & processes in writing that clearly spell out under what circumstances hours can as work time for which employees will be paid.

HOW TRINITY CAN HELP?

If your organization needs assistance on this often complex & confusing subject, Trinity’s Consultants can help you at a very competitive fee.

  • For more information, e mail Trinity at info@TrinityHR.net or visit our website at www.TrinityHR.net.
    You have HR questions…Trinity has answers!

Posted in Compensation & Performance Management

FINDING GREAT TALENT: A CORE COMPETENCY?

Posted on August 24, 2015 by Trinity HR

recruit-talent

Why is finding the right talent so important?  Simply stated, the quality of your organization’s products or services starts & continues with quality people.

  • Quality is all about the people who are performing the work!

So why then do some companies choose to do their own searches when it is something way outside their core competencies? The most common reason an organization chooses to do their search for talent is the cost of using a headhunter that specializes in executive searches and management searches.

  • There is clearly no denying that the cost in using an executive search firm is not insignificant.
  • However, there are factors that may lead that an organization to conclude that using an executive search consultant produces a sound return on investment:

These factors include:

1. There is no loss of focus internally.

  • There is commonly a loss of attention to other important matters due to the time spent by an internal person doing the search.

2.  Successful executive and management searches require advanced, specialized skills that may not be possessed internally.

  • A search consultant is a highly skilled interviewer, who has often conducted thousands of interviews.
  • They know how to ask probing questions.
  • Their evaluative skills enable them to determine which candidates are the best matches.

3.      Search firms are “hunters of talent”.

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  • They know how to find candidates who are not necessarily actively pursuing a new opportunity. Often such individuals are other organizations’ “stars”.
  • You get the best talent available, not just someone who happened to learn of your opening — or a handful of resumes who happen to have or get from some connection you have.

4.      How much is your time worth?

  • A search firm will typically bring you a slate of 3-5 candidates who have been researched, interviewed, and screened for success.

5.      The success rate of a hire from a search firm is higher.

  • This reduces the likelihood of the emotional energy expended, momentum lost & lack of progress made due to a bad hiring decision.

➡ Plus the financial expense typically associated with exiting a bad hire.
• Typically, a search firm offers a guarantee the candidate hired will remain with the organization for a period of time or it will replace the person at no additional cost.

EMPLOYER ACTION
Perhaps it’s time for you to re-evaluate your past approach of the search for talent being a “do it yourself” activity.

HOW TRINITY CAN HELP?
If your organization has a talent acquisition need, Trinity can conduct an effective, highly professional search on your behalf & at a very competitive fee.

Posted in Talent Acquisition, Executive Search, Employment & Employee Retention

HOW MUCH WILL NEW OVERTIME REGULATIONS COST YOU?

Posted on August 10, 2015 by Trinity HR

overtime

It is virtually a certainty that the Department of Labor will in 2016 enact its proposed new Fair Labor Standards Act (FLSA) regulations. One key change that will adversely affect all or almost all employers will be which employees will continue to qualify as being classified as “exempt” from overtime pay.

  • It is estimated that almost 5 million employees who are currently exempt will become eligible for mandatory overtime pay.

NOW
There are two parts to the test to determine whether or not an employee meets the qualifications to be classified as exempt.

  1. Salary
    • The salary must be $455 per week ($23,660 per year) or greater.
    • The government’s contention is that this threshold is far too low.
  2. Duties
    • Using the nature of the work (for example, how much independent judgment is involved) & the amount of time employee engages in various duties

NEW
The duties test will not change, but the compensation minimum is increasing dramatically.

  • A minimum of $970 per week ($50,440 per year)—more than 2x the current threshold.

Employers who now treat as employees as exempt but they make less than $50,440 will have 2 options — both of which will increase labor costs:
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  1. Increase their salary to this minimum level
  2. Re-classify them as non-exempt and begin paying them at time and ½ their regular rate of pay for all hours worked in excess of 40 in any given week.

RECOMMENDED EMPLOYER ACTION

  1. Make sure you have a formal, written process in place to determine in a position truly qualifies as exempt based on the duties and salary tests—and the process includes identification of which of the FLSA’s multiple exempt categories is met.
    • If you don’t have a process in place, establish it now.
    WHY THIS STEP?
    • The Department of Labor has already increased its FLSA compliance audits, and it is expected to increase its enforcement efforts.
  2. Do an analysis to determine which employees currently treated as exempt make less than $50,440 and how many hours are they working more than 40 in a given week.
    • This analysis will enable you to calculate the financial impact.

HOW TRINITY CAN HELP
Trinity’s Team has the experience and expertise to provide assistance expertly and affordably.

Posted in HR Legal & Compliance

STRATEGIC PLANNING…THE ROADMAP TO A SUCCESSFUL FUTURE

Posted on July 13, 2015 by Trinity HR

road-sign

We all know that strategic planning is an important aspect of business success. It is the “bridge” or road map between where the organization is now and where you want it to be.

But did you know that, according to one study, businesses that are committed to strategic thinking & planning show an increase of:

  • 12% to the bottom line
  • 11% to the top line in comparison to those that don’t do strategic planning.

Strategy planning almost always requires:

  • Strategic thinking
  • Sound goal setting, decision making & problem solving
  • Setting standards to measure the effectiveness of the strategy
  • Seeing how the people aspects impact its success—or can cause it to fail

It’s been said that there are three types of companies:

  1. Those that make things happen

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  2. Those that watch things happen
    and
  3. Those that wonder what happened

Those in the “make things happen” category are organizations that:

  • Are nimble
  • Have well-established, effective goal setting, decision making & problem solving processes

HOW TRINITY CAN HELP
Trinity’s Team can provide assistance expertly & affordably to help your organization to:

  • improve its decision making & problem solving processes
  • more readily embrace change
  • integrate its overall strategies with its people-related strategies

For more information, e mail Trinity at info@TrinityHR.net or visit our website at www.TrinityHR.net.

Posted in Strategy, Management & Leadership

DOES YOUR BUSINESS DASHBOARD MEASURE UP?

Posted on June 29, 2015 by Trinity HR

dashboardVirtually all successful organizations have dashboards. Simply stated, a dashboard is a monitoring tool that shows how a company is performing relative to a set of KPIs/metrics at any given time.

  • They’re typically done in a visual fashion, making them easy to assess read & interpret.
  • Think of them as the dashboard on a car—telling you at which speed you’re driving, how much gas you have, your average miles per gallon, etc.

Business dashboards allow managers to examine information in greater levels of specificity, which can help to quickly identify and focus on potential problem areas. However, too often, the dashboard does not include HR related information—or if it does, the dashboard is not measuring the most crucial HR elements.

HR DASHBOARDS
The most successful organizations have an HR dashboard in order to provide them with
data related to the most critical measures of HR success. By linking the data on the dashboard to the key organizational metrics, managers can more effectively see the ties between HR outcomes and corporate goals.

Some common HR dashboard components include:

  • Absenteeism Rate
  • Employee Turnover Rate
  • # of Work-Related Injuries

SOME TRINITY RECOMMENDED COMPONENTS ON AN HR DASHBOARD
The above examples are all valid. However, Trinity believes the best HR dashboard includes measurements of a more specific nature. Here are two examples:
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  • HR expenses as a % of total operating expenses
  • Revenue per employee
  • Employee Satisfaction Index (using Trinity’s Employee PulseTM ) tool

RECOMMENDED EMPLOYER ACTION
Answer the following questions:

  1. Do we have an HR dashboard?
  2. Is it integrated with our overall dashboard?
  3. Is it displaying the right people-related information

HOW TRINITY CAN HELP
Trinity’s Team can expertly and affordably help you to have an HR dashboard that displays the most important and impactful data.

Posted in HR Management

AVOIDING PAY HEADACHES

Posted on June 8, 2015 by Trinity HR

pay-headachesNo organization purposely seeks to create headaches for itself when it comes to payroll. However, this basic function is often a source of major problems, including employee relations & legal ones.
➡ Want to aggravate employees? Don’t pay them what they should be paid!

The most frequent reasons that organizations find themselves with pay related employee relations and legal problems (including big dollar lawsuits, civil money penalties [up to $1,100 for each violation for repeated or willful violations] and fines) are:

  1. Misclassification
    • By misclassifying employees as exempt, employers fail to pay required overtime.
      ➡ Exempt means they are not required to be paid overtime for hours worked in excess of 40 per week.
    • In their proper classification as nonexempt, employees are required to be paid time and ½ of their “regular rate of pay” (see the next reason) for any and all hours greater than 40 in a work week.
  2. “RegularThe cialis without prescription continue reading to find out more side effects that come with the usual methods of treating the disease, including erectile dysfunction, bowel dysfunction, and urinary incontinence, are rather well known by men. rate of pay” in making overtime payments
    • In calculating the correct “regular rate of pay” in paying for overtime, employers must take into account all payments to employees.
    • Examples include shift differentials and non-discretionary bonuses.
  3. Off the clock work
    • Even if employees say they are willing to do so, they must be paid for such time.
    • An example is working during unpaid lunch time.

RECOMMENDED EMPLOYER ACTION

  1. Conduct an FLSA exempt – non-exempt review & determination, & document the method and basis for it
  2. Carefully review how the “regular rate of pay” is being computed
  3. Do not allow working off the clock – no matter what the circumstances

HOW TRINITY CAN HELP
If your organization needs help with ensuring your organization is not exposing itself to payroll-related negative employee relations costly or potentially embarrassing lawsuits, penalties and fines, Trinity’s Team of Consultants can provide assistance expertly & affordably.

Posted in Compensation & Performance Management

HOW PREPARED ARE YOU FOR A SEXUAL HARASSMENT ALLEGATION?

Posted on May 26, 2015 by Trinity HR

harassmentIn 2014, the U.S. Equal Employment Opportunity Commission received just under 7,000 claims of sexual harassment.

  • Employers spent millions of dollars to defend themselves against unwarranted claims & tens of millions more in settlements for both bona fide & dubious claims.

It is surprising how many employers do not realize that an employer is liable for sexual harassment by a supervisor—even when the employer had no knowledge of it. This lack of realization exists despite the fact that the U.S. Supreme Court made this very clear as far back as 1998.

  • In two 1998 cases (1-Burlington Industries, Inc. v. Ellerth & 2-Faragher v. City of Boca Raton), the Court held that employers are subject to “vicarious liability” for unlawful harassment by supervisors.

However, the U.S. Supreme Court also noted that an employer may be able to avoid liability or at least limit damages by establishing an “affirmative defense”, the elements of which are described in the next paragraph.

RECOMMENDED EMPLOYER ACTION

  1. Periodically conduct anti-sexual harassment training for all employees
  2. Have & consistently enforce a written anti-harassment policy stating such actions will not be tolerated

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  3. Ensure the existence of a complaint process by which employees who feel they have been subjected to sexual harassment can safely make it known

HOW TRINITY CAN HELP
Trinity’s Team has the experience and expertise to:

  • Conduct anti-sexual harassment training
  • Develop or strengthen your anti-harassment policy
  • Review your complaint process
  • Review your investigation process

For more information, email Trinity at info@TrinityHR.net or visit our website at www.TrinityHR.net.

Posted in HR Legal & Compliance

WELLNESS PROGRAMS: EEOC CLARIFICATION

Posted on May 11, 2015 by Trinity HR

WELLNESS PROGRAM PRIMER
Many companies that provide health insurance offer wellness programs that encourage healthier lifestyles. To participate in these wellness programs, employees may be required to undergo health risk assessments such as body weight and cholesterol, blood glucose, and blood pressure.

  • Often programs offer employees financial or other incentives to encourage participation.
  • Such incentives have typically increased employee participation levels.

EEOC’S PROPOSED RULE
The U.S. Equal Employment Opportunity Commission (EEOC) has issued a proposed rule to clarify the use of financial incentives in worksite wellness programs. Specifically, the clarification relates to certain provisions of the American with Disabilities Act (ADA).
arrow-bullet Although clarification may be needed, the EEOC proposed rule is not employer-friendly.

The ADA currently limits the circumstances in which employers may ask employees about their health or require them to undergo medical examinations.

  • It allows such inquiries and exams if they are voluntary.
  • Workers, however, can’t be required to participate in such programs, and they can’t be denied health coverage or disciplined if they refuse to participate.

The proposed clarification rule:

1. Reduces the amount of financial incentives permitted.
arrow-bullet A reduction has the potential to reduce employee participation, and in turn reduce the
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advantages of a wellness program for both by the employer and its employees.
2. Requires an employer to provide a Wellness Program Notice to its employees that contains information as specified by the EEOC.

The EEOC has published a Fact Sheet for Small Businesses. Below is a link to the Fact Sheet.

https://www.federalregister.gov/articles/2015/04/20/2015-08827/regulations-under-the-americans-with-disabilities-act-amendments

RECOMMENDED EMPLOYER ACTION
Urge any professional association to which you belong to oppose the changes that rollback the amount of financial incentives allowed:

• For example, the amount that an employer can offer as part of a tobacco use cessation incentive
arrow-bulletThe rule public notice and comment period ends on June 19, 2015.

If your organization needs help with this, Trinity’s Team of Consultants can provide assistance expertly and affordably.

You have questions…Trinity has answers.

Posted in Benefits Management

WHAT YOU NEED TO KNOW ABOUT INTERNSHIPS

Posted on April 27, 2015 by Trinity HR

internsIn the vast majority of instances, internships in the “for profit non-government sector constitute employment. As a result, an individual must be paid for all hours for which she/he provides services. In limited instances, internships may qualify for being treated as non-employment. In these instances, interns do not have to be paid.

 

• For this to be the case, there are six criteria from the U.S. Department of Labor that must be met.
• All six of the criteria must be met for the intern not to receive pay.
➡ The federal government’s position clearly leans toward interns are not free labor.

Interns in the “for-profit” non-government sector who qualify as employees rather than interns or trainees must be paid at least the minimum wage and overtime compensation (at 1 & ½ times their regular rate of pay) for any hours worked over forty in a workweek. Here’s two examples of the six criteria:

  1. The internship is similar to training which would be given in an educational environment.
  2. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded.

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RECOMMENDED EMPLOYER ACTION If you have interns or are planning to utilize interns at the end of the college school year:

  1. Evaluate the specifics of your internship.
  2. If you are not paying interns/do not plan on paying interns, ensure the internships meets all six Department of Labor qualifications in order for the internship to be in regulatory compliance .

If your organization needs help with the issue of internships, Trinity’s Team of Consultants can provide assistance expertly and economically.

• For more information, e mail Trinity at info@TrinityHR.net or visit our website at www.TrinityHR.net.

You have questions…Trinity has answers.

Posted in HR Legal & Compliance