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HR executives fear additional federal regulations

11 Aug

A recent study by Littler Mendelson showed that although those in charge of human resource management remain concerned about the Affordable Care Act, their biggest fear has now become increased regulations by the federal government.

According to HR Morning, some of these fears might be due to the added regulations this year having to do with the Family and Medical Leave Act (FMLA), along with increased monitoring of employee/contractor misclassification.

In a separate survey by Arthur J. Gallagher & Co. reported by Business Insurance, the same fears of regulation cropped up, although 63 percent of respondents were also concerned about the rising cost of health care benefits programs.

How to deal with the FMLA
The fears that a government agent will perform an audit of a company's compliance with FMLA rules are well-founded, according to HR Benefits Alert. The federal government has recently grown much more nit-picky about what it considers a violation of the FMLA.

However, companies can prepare themselves by knowing in advance what the feds have begun looking for in particular. Typically, what happens is a company will mistakenly do something it believes is unrelated to the FMLA, and the federal government, upon auditing the company, will find a connection. In one case, a company would fire employees who did not fill out their medical histories in a timely way. However, the medical histories included questions that were not considered permissible to ask in accordance with FMLA rules.

In another case, a company failed to provide someone with notification of her FMLA rights after asking for leave to take care of a very ill child. Additionally, the company fired the woman for taking too much time off, even though this leave was permissible under FMLA. In a separate example, a company fulfilled an FMLA request to take leave, then failed to return the employee to his job because he wasn't told he needed to complete a fitness-for-duty medical exam in order to come back to work.

Finally, one company failed to allow an FMLA request to pass because the worker was standing in loco parentis, meaning she was acting in the place of a parent. When a woman was fired for taking time off to take care of her niece, she was acting in place of a parent, but her FMLA request was denied.

It is likely the above companies did not intentionally try to game the rules, but even simple oversights can cause costly lawsuits. It is always more effective to pay attention to a company's employee management system to ensure compliance and prevent problems before they happen. Whatever human resource solution a company uses, it must ensure these are compliant with the most recent interpretations of the federal law.

Telecommuting now a part of reasonable accommodation

8 Aug

A recent decision by the U.S. Court of Appeals for the 6th Circuit has recently expanded the number of companies that must offer telecommuting as a reasonable accommodation to employees who otherwise wouldn't be able to work from the office, according to Talent Management.

A suit filed by the Equal Employment Opportunity Commission against Ford Motor Company, argued that in the case of workers who are otherwise able to work from home in a fully-functional capacity but who cannot work at the office much of the time because of medical or other conditions, companies should allow those employees to work from home as part of the government's ruling on reasonable accommodation.

According to the ruling, "the 'workplace' is anywhere that an employee can perform her job duties," Talent Management reported.

Working from home as an option
Those in a position for recruiting should keep in mind that telecommuting may become much more prevalent now, and making the option available for everyone may be a good idea. A study by Staples indicated that 65 percent of employers who permitted their employees to work from home reported their employees were happier. Thirty-three percent also reported there were fewer cases of absenteeism.

"Not only does telecommuting lead to a happier workforce, it's also a critical benefit to have from a recruiting standpoint," said Paul Mullen, vice president of technology solutions for Staples Advantage. "Employers who are flexible and support their staff with the tools they need to telecommute have a definite recruiting advantage."

Setting up a telecommuting system for the office could mean integrating more employee self-service programs in the workplace, as well as using technology such as cloud-based computing software to allow easy access to work wherever a person may be doing business.

Managing whistleblowers in the company

23 Jul

Whistleblowing is a serious concern for many businesses and finding a way to manage any occurrences can be difficult. According to Simply-Communicate, one of the best ways a business can protect itself from whistleblowers is by building the best company culture possible.

A report from the National Business Ethics (NBE) Survey, 45 percent of employees in 2011 admitted to viewing misconduct at work. From those who saw misconduct, 65 percent of respondents said they reported the bad behavior they witnessed. The report also found that 1 in 5 employees who reported misconduct felt they went through some form of retaliation.

With 42 percent of respondents saying their workplace environment has weak ethical culture, businesses have to find ways to improve corporate culture.

What exactly is a whistleblower?
Whistleblowers are oftentimes known as employees who complain about company misconduct for reasons connected to health or safety violations, shareholder fraud or financial mismanagement, legal site Nolo Press reported. Typically, employees who don't engage with the initial complaint are titled protected whistleblowers, which are protected by several state and federal laws.

Daniel Goleman, an author, psychologist and journalist, explained the most common reaction to whistleblowing is a worker getting dropped from the company through either transfers or being fired, Simply-Communicate reported. Goleman added that for government and private industry workers, 80 percent of whistleblowers "suffer immensely."

"The paradox of this is that the whistleblower is actually highly loyal to the organization," said Goleman, according to the source. "He/she is not blowing the whistle because they want to get someone, but because they feel the basic mission, the higher ideal is getting violated and they can't live with that. Their own ethics drive them to tell the truth. The organization, paradoxically feels betrayed, angry and retaliates."

How retaliating can harm business operations
When companies retaliate against whistleblowers, retention rates are severely damaged and top performers will realize how quickly businesses can turn their backs on workers, the source reported. The NBE survey also found that 7 out of 10 employees who suffered retaliation planned to quit their job within five years.

Businesses should always keep the anonymity of the whistleblower to avoid any sort of retaliation claim, the New Hampshire Business Review reported. When companies are oblivious to the whistleblower, the less likely any lawsuit can be instigated.

Instead, companies should keep open and clear communication between the worker and not push the idea too much to keep the report confidential. According to the source, businesses should let the employee know both parties remaining quiet about the situation will be best for everyone and that the complaint is being addressed.

Whistleblowers often notify the government because they believe their first report didn't receive enough attention and to protect themselves from any sort of retaliation. According to the source, businesses shouldn't keep employees from contacting the government when they are making a report as it could be reported in a claims case.

"All of these people feel they are loyal and that they are doing what they should be doing," said Jim Lukaszewski, a crisis communication consultant, according to Simply-Communicate. "They believe they are saving the company from further damage. However, from the standpoint of management, they are considered to be disgruntled employees."

Companies have a responsibility to avoid retaliation and to resolve the issues with the initial report.

The Importance of Creating an Equal Opportunity Work Environment

17 Jul

Approximately 50 years ago, Title VII was created as a federal law that prohibits workplace harassment and discrimination with all private employers, state, local and federal governments, and education institutions, Business Legal Resources reported.

The law prevents employers to discriminate against employees because of race, color, national origin, religion and sex. In the half-century since the law was created, many businesses are still under pressure to make sure they follow all the correct hiring, firing and recruitment processes that abide the federal regulation.

Since there are many more opportunities for employees to take legal action against a company for not being an equal opportunity employer, it's critical for human resources departments to ensure their firms are providing fair opportunities for everyone.

According to XpertHR, many businesses understand the importance of being an equal opportunity employer, but failing to stop discrimination in the workplace can lead to higher employee turnover and absenteeism rates, lower morale, reduced productivity and higher insurance premiums and defense costs.

Affirmative Action in Recruiting
Human resources departments have to understand that affirmative action in company recruiting policies are more important than ever. According to the Houston Chronicle, the whole purpose of affirmative action is to create a more diverse group and in the recruiting process, it will help the pool of qualified candidates grow larger.

Businesses can reach out to more qualified candidates by reaching out to specific programs designed to attract women and minority workers, the source reported. There are many routes employers can take to ensure their companies are being completely fair and balanced in their recruitment process.

Shift in Employment Practices
In the last 50 years, there have been major shifts in employment practices with affirmative action. According to Northern Illinois University College of Law's "Regulating Appearance in the Workplace," in the last several years, the amount of appearance-based discrimination claims has had a significant increase.

These appearance lawsuits have come from claims about dress codes, makeup, body weight, body art and grooming, the source reported. Since the federal law first started, now more employers are being cautious about age discrimination or disability claims.

The risk of litigation is possible for many companies and that's why human resources departments have to stay up to date with the latest regulations and federal laws to not only protect the business, but their employees as well.

Rescinding Job Offers: When Is It Legal? And What Does HR Need to Know?

9 Jul

The hiring process doesn't stop when a company asks a job seeker to be on the payroll. Sometimes, there are issues that pop up after an offer is extended and recruiting for the job needs to start once more. Even the most experienced HR professionals have had to null and void a job offer to a candidate. There are many reasons why job offers have to be rescinded – here are just a few:

  • The company's corporate health is poor and cannot take on another employee
  • The business must reorganize its employment structures
  • The department's budget is cut 
  • The candidate acts inappropriately after the company has already extended an offer of employment
  • The job seeker doesn't pass the background test 

According to CIO, rescinding job offers increased in commonality during the recession, but it can still come as a surprise to many job seekers. HR professionals must be careful with how they handle taking back an offer of employment.

Employee management is as important at the end of the talent acquisition process as when new hires officially become part of the organization. HR professionals need to ensure they are following the proper procedures – both the company's own policies and the state's – to act appropriately during these situations. 

What are the Legalities Involved? 
HR professionals know they have to walk a fine line when it comes to rescinding job offers, but taking back an offer of employment is considered acceptable in certain circumstances. An article in Media Bistro noted that offers are simply offers and are considered to be an offer of employment "at will" in most circumstances. Because of this, it is legal to rescind most job offers.

The Ohio State Bar Association defines "employment at will" to mean "that, unless you agree otherwise with your employer, either you or your employer may terminate the employment relationship at any time for any reason that does not contradict the law." The Center for Career and Professional Development at Rensselaer Polytechnic Institute, an institute of higher education in New York, noted each state has its own laws regarding the legality of rescinding job offers when they have been accepted, but most courts have accepted the concept of employment at will.

However, according to the Society for Human Resource Management, an offer of employment is often seen to be an official promise of a job, and this has been used in court by candidates with rescinded job offers to win their cases. Cases have been found in favor of job candidates under the legal doctrine of promissory estoppel, which "supports a harmed party in enforcing such promises made." A court can also side with the plaintiff if it finds there was a breach of contract because the employment contract was signed by the involved parties.

According to HR news site HC Online, discrimination and misrepresentation of the company and/or position can also be brought up in court by candidates. SHRM recommended HR professionals only rescind an offer of employment after legal counsel has looked over the matter.

When Is Rescinding Job Offers Acceptable?
It is sometimes acceptable for HR professionals and their employers to rescind job offers. Internal issues like company reorganization and budget cuts can factor into whether the offered job is even available anymore, but HC Online noted external elements, such as if the candidate lied on his or her application, can come into play as well. Even the candidate's behavior and etiquette can end up impacting whether her or she will still have an offer of employment.

For example, Inc. magazine reported that a journalist wrote on his blog that he received an offer of employment at a newspaper. Although his editor assured him the post was acceptable, he had used the business's logo without permission and quoted the offer letter, both of which the newspaper said was not allowed. An HR expert noted that the company may be partly at fault in this situation, because it may not have communicated that the newspaper wanted to announce the job offer or that the candidate would be on probation.

What Happens When the Worker Already Left His or Her Job?
Yet one of the biggest issues with rescinding job offers is the problem of whether the candidate offered his or her previous employer with a notice of intent to leave his or her job because the job seeker accepted the new job in good faith. There have been court cases regarding this. SHRM noted some have been won on the grounds of promissory estoppel, and HC Online noted a large banking organization was found liable for a worker quitting his or her former job to work at the company and then having to rescind the offer of employment.

HR professionals must consider the potential of having to take back the employment offer. U.S. News suggested candidates provide a written acceptance letter and don't give notice of intent to leave to their current employers until there is confirmation of employment. HR professionals may want to ask candidates for a written acceptance letter, communicate about acceptable behavior during the probation period and recommend they don't leave their jobs or make any sudden life changes until they have confirmation they are officially starting on the job.

What Employers Can Do About Self-Destruct Text Messaging Apps in the Workplace

23 Jun

It is becoming easier than ever for people to use their smartphones and tablets to document discussions in the workplace. Employers are starting to encounter issues with mobile devices in regard to workers using messaging apps that cause texts sent through them to automatically delete after a set time limit. Companies can make policies stating what can and cannot be sent through mobile devices in the workplace, and establish procedures for what to do if issues do occur. In fact, it might be a good employee management strategy for employers to encourage workers not to use their own devices at work, as it can be legally and ethically risky for an employer to ask to see workers' personal devices to look at text messages.

Know Where the Danger Is
There are numerous apps on the market that automatically cause messages sent through them to self-destruct. Snapchat may be the most well-known, but, according to The Business Journals, there is a similar app called TigerText that even allows users to send each other cloud storage files. The app encrypts the messages, which expire after a set amount of time. Technology news source Gigaom reported another app, Privatext, also uses encryption to keep messages private, and these texts or pictures automatically delete after a period of time even if they aren't read. 

Employers should also be aware that the latest operating system from Apple – iOS 8 – will have a self-destruction function for pictures and video messages as well, according to CNN. These files can self-destruct in just a few minutes, which Apple says is meant to keep space open on the devices.

Deleted Text Messages Aren't the End
It's true that text messages have been traditionally hard to bring back once they have been deleted, but that's not always the case anymore, according to CIO. Paul Luehr, who has worked as a federal prosecutor and the supervisor of the Federal Trade Commission's Internet fraud program, told CIO in certain situations forensics experts can retrieve deleted messages. Luehr even said his firm just had a case where they recovered 8,000 text messages – more than a year's worth of messages – and that it's now common for texts to be part of court cases. Luehr noted it is all about the app's software and the phone models involved in the situation.

For example, during the examination into allegations that Miami Dolphins player Richie Incognito bullied one of his teammates, a National Football League investigator was able to uncover deleted text messages between the players. 

Employers should establish policies prohibiting workers from using these apps in the workplace in regards to work-related files. According to Luehr, it can be costly for hire mobile forensic investigators to dig through devices and messages looking for evidence to an investigation. It is always better for employers to be proactive at preventing issues in the workplace rather than reactive when a situation occurs. 

What HR Reps Should Remember When Using Social Media for Recruiting

17 Jun

Social media is now a go-to recruiting strategy for HR representatives. If an HR professional or company isn't on social media, it can mean that person or business is missing out on networking with others in their industry and finding great talent.

When it comes to hiring top performers, HR professionals know they have to use their resources effectively and go to where those talented workers are online. According to an infographic by, 93 percent of businesses turned to LinkedIn as part of their recruiting strategies in 2012, a significant increase from only 87 percent and 78 percent that did so in 2011 and 2010 respectively. So many companies are using online social networking sites to hire candidates because scoping out candidates is more efficient in terms of time and money than other types of recruiting platforms. The infographic noted 20 percent of companies consider recruiting new hires from social media to take less time to bring in new hires than other forms of hiring, and 42 percent have seen their quality of hires improve just by using social media as part of their recruiting.

Yet HR professionals must always be aware of the legal risks associated with recruiting workers on social media. Essentially, HR representatives should be conscientious of what they should and shouldn't do when hiring employees through social media job postings and tools. 

Beware of the Legal Risks
According to Human Resource Executive (HRE) Online, there are legal risks with not having a policy in place for using social media during recruiting. HR departments need to have social media procedures or put their businesses at risk of legal consequences if HR professionals gain information they shouldn't have because they are recruiting through social media.

An attorney in Boston gave HRE Online the example of an HR professional finding out a candidate's sexual orientation from looking the person up on social media. The HR representative wouldn't have received this information through other methods, and if the company eventually hired another person for the position, there is the risk that the original candidate can come back stating he or she was discriminated against because of his or her sexual orientation just because HR professionals were using social media.

It should be noted that sometimes the law isn't always up to date. HR professionals must be aware that there are new social media apps coming out every day, so the law can be behind in what is truly happening on social media, according to Business 2 Community. This means that while HR professionals may be in compliance with social media and employment legislation at the present, they may be putting themselves at risk of a lawsuit if candidates or employees question how they use social media. According to Business 2 Community, HR professionals shouldn't utilize social media as a recruiting strategy without first considering the legal risks.

Adopt Social Media Recruiting Best Practices
The best way to protect the business legally and still recruit the most talented new hires is to always use certain best practices. Business 2 Community advised HR professionals to never ask candidates or workers for their personal social media information. Not only can this represent legal risks, but it can damage the company's reputation.

HR professionals should also treat social media as they would any other channel in which they would meet candidates. Remaining respectful and professional during communications is essential for applicants to get a good impression of the company and feel as if they are truly being recruited, not part of a spamming scheme. 

Another important consideration is to have an overarching policy regarding social media recruitment. HRE Online noted that HR departments need to have one so every HR professional understands what they can and cannot do, which can make a difference to how the company remains in compliance with employment and privacy laws. 

There are many other best practices out there HR professionals can utilize to optimize their social media recruiting without putting themselves in legal binds. These best practices continue to evolve, but there is one that doesn't: networking with peers. HR representatives should consider building relationships with other HR professionals to gain more knowledge of what does and doesn't work when recruiting through social media. Sometimes, sharing experiences with colleagues can help HR professionals learn new tips and best practices they would not have otherwise come into contact with.

Consider the Latest Tools
Lastly, using some of the latest social media tools can help HR professionals improve their social media recruiting. According to, Social Recruitment Monitor is a free tool that provides HR professionals with measurements on retweets and video views, just to name a few. Another article noted Quora is a good forum to answer questions from potential candidates, giving recruiters an inside look into their expertise and how certain candidates think and their expertise. 

Interview with Alix Rubin: How Employers Can Offer Legally-Compliant Internships

17 Jun

When companies hire interns, they need to be especially careful in regard to their payroll and employee management strategies. Simply saying the internship is to provide interns with education and experience in the industry doesn't mean businesses can get away with not paying their interns.

We talked to Alix R. Rubin, founder of Rubin Employment Law and an employee misconduct investigator at Verita LLC, to gain a better understanding about how companies' internship programs can comply with employment legislation like the Fair Labor Standards Act, and what the U.S. Department of Labor says constitutes as an internship.

Q: What types of internships are legally allowed to be unpaid?

A: It's pretty simple – it's not simple to execute. There are six requirements that the DOL says a company has to meet, and the business has to meet all six of them to have a qualified unpaid internship under the Fair Labor Standards Act.

The first requirement is: The internship has to be training in an educational environment. Whether the intern is a student or not, the employer must provide education and monitoring. I recommend weekly meetings with the intern to go over what did the person accomplished during week, what they did and – most importantly – what they learned. In essence, employers should ask, "What did you learn this week and how can I help you learn more?" Employers can have interns shadow employees for education, as shadowing helps interns gain knowledge and test their skill sets. However, it's essential that shadowing is closely supervised.

It's helpful if the internship is part of a school program, which can be through the intern's college, university or high school. If the intern is actually a student somewhere, he or she must receive academic credit and have to submit either weekly reports to whichever instructor or professor is advising the intern on the internship. The intern can also submit a paper at the end of the internship or a type of work product that would make sense in the educational environment.

One example I really like is an internship at a newspaper. If the intern is writing stories for the newspaper, he or she should submit the articles to his or her academic adviser as part of a portfolio.

The second requirement is: The internship experience must primarily benefit the intern, not the company. To me, this is the overriding requirement for the entire program. Because the company isn't paying the intern, there has to be more benefit to the intern than to the employer. When the employer gets a fresh perspective on its business and gets to give back to the community, which benefits the employer, it's considered OK. What's not OK is when interns are doing real work. If the company is making money off interns, it should be paying them.

Employers should note the first and second requirement can easily overlap, because if it's an educational experience, then it's primarily for the intern's benefit.

The third requirement is: The intern can't displace regular employees and must work under close supervision. If the company could hire a regular employee to do the intern's job, then that's really not an intern. The employer can still call it an internship if the company pays the intern either the state, city or federal minimum wage – whichever one is higher. If the intern works more than 40 hours a week, he or she will need to be paid time and a half. However, the employer does have to ensure the intern is covered by workers' compensation whether or not he or she is paid.

The fourth requirement is: The employer cannot derive an immediate advantage from the intern's activities. In fact, the intern's activities, such as shadowing, may occasionally impede operations if it interrupts workflow.

The fifth requirement is: The intern is not necessarily entitled to a job at the conclusion of the internship. While the employer is allowed to hire the intern after the conclusion of the internship or when he or she has graduated school, the company can't promise or guarantee the intern a job at the end of the internship. It can't be as if the employer and the intern are trying each other out, even if that may be the case. Sometimes, the intern wants to get experience in the industry and be able to put something on his or her resume, and that's fine as it benefits the intern.

The sixth requirement is: The intern must understand he or she is not entitled to wages. This should be in writing in a contract or an internship agreement that lays out what the intern is at the company to do, how the employer is going to benefit the intern and any tasks the intern will need to complete as part of the unpaid educational experience. Employers should incorporate as many of the six requirements into the agreement as they can, and need abide by the agreement.

Q: So if people complete an internship but it did not meet these six requirements, what steps should they take?

A: The first step is hire a lawyer and file a lawsuit. If there were a group of interns involved and they were all treated the same way, they can file a class-action lawsuit together, which has happened.

One notable case is Glatt v. Fox Searchlight Pictures Inc. The company had produced the movie "Black Swan" with the help of interns, and the southern district of New York trial court judge found the types of low-level tasks the interns completed – such as taking lunch orders, making deliveries, organizing file cabinets and making photocopies – were typically performed by paid employees. The case is currently up on appeal.

Another one is Davenport v. Elite Model Management Corp, which was the suit against Elite Model Management that ended up being settled for $450,000. There were 100-plus former interns involved in the case, and the company paid each intern between $700 and $1,750, plus the attorneys.

Q: Can you think of any challenges involved in putting interns on payroll?

A: Not really. Then the company is treating them like any other employee who is not exempt from overtime. There are basically some other exemptions as well, but the basic ones are executive, administrative and professional, and there are certain factors the company has to meet for each one to be exempt from overtime.

However, this may be changing. President Barack Obama has asked the DOL to make it harder to be exempt from overtime, and companies may have to pay interns overtime if they are eligible. It's similar to having a seasonal employee on the payroll. Employers should outline in the intern agreement or contract that the internship is for a certain term, and need to include language that says, "But we have the right to fire you at any time, with or without notice for any reason or no reason, and you can quit at any time, too." It's still actual employment, but it doesn't go beyond a certain date unless the company makes a job offer.

Q: What are some consequences of not classifying interns correctly?

A: The employer could be required to settle for a large amount, such as the $450,000 stated above, and pay every intern minimum wage plus overtime if that applies. If the company didn't keep accurate records – as many don't if they don't pay their interns – the court will go by whatever the interns say, such as many hours they say they worked. If the company is paying them, it needs to make sure to maintain timesheets either manually or electronically because the DOL requires them.

If the DOL comes in and wants to do an audit and the business doesn't have the required records, it will issue penalties even if the business is paying its interns correctly. Companies need to protect themselves, as not maintaining accurate records also leaves room for employees to take advantage. The company wouldn't have to just provide back pay and overtime, but comply with the payroll tax, unemployment insurance and disability insurance – all of employees' payroll withholdings.

The other thing is that New York City just passed new law that protects unpaid interns under antidiscrimination laws, as they weren't before. The new law states that for the purposes of discrimination and harassment, employers must treat interns like employees.

Even whistleblower laws should apply to interns, employers and HR professionals should be aware of that, too. It's a delicate balance: Employers don't want to treat interns like employee they would then have to pay the interns, but employers don't have to give interns the whole employee handbook because most of it isn't going to apply to them if they're unpaid. Employers should give interns copies of relevant policies like the company's non-discrimination, anti-harassment policy. Those are the types of things interns require.

Q: Finally, since there aren't any tests for HR professionals or employers to take, what sources would you recommend people consider before taking on an intern?

A: They should follow DOL Fact Sheet #71:

Other than that, employers should look at their state DOL website as well and see what the state requires for internships. Employers should also hire an attorney to review their internships program for employers. If employers aren't sure about how to set it up, they should really have an attorney work with them on that.

How HR Can Comply with Background Check Regulations

16 Jun

Many human resources departments perform pre-employment background checks of job candidates during recruiting. Most know that the U.S. Equal Employment Opportunity Commission prohibits employers from discriminating against candidates based on their criminal histories, even though employers have not necessarily been barred from examining job applicants' past crimes. However, it is important that HR professionals understand new regulations for background checks. 

Information on New Regulations
While there have historically been few regulations on background checks and legislation on this issue has varied from state to state, Human Resource Executive (HRE) Online noted the federal government and certain states and cities have started taking action regarding checking the criminal histories of candidates. According to a Q&A in HRE Online, regulations on pre-employment background checks are becoming more common, and HR professionals need to ensure their recruiting and application policies comply with these regulations.

For instance, the HRE Online article said Minnesota, Indiana and North Carolina have taken legislative action regarding pre-employment background checks. Minnesota in particular has a new law that came into effect at the start of this year that stops employers from asking or even considering a candidate's criminal record after he or she has already been picked for an interview or offered employment, HRE Online noted. HR professionals should always be conscious of state and federal laws, which often overlap or differ from one another, in regards to compliance with employment legislation.

Insights into the Bed Bath & Beyond Case
Employers can take it upon themselves to stop rejecting job applicants with crimes in their backgrounds. According to Bloomberg, Bed Bath & Beyond has already done so after an investigation by New York into the company's practices. Bed Bath & Beyond came under fire after one of its HR professionals said at a job fair that the company doesn't hire people who have been convicted of felonies. The New York State Attorney General's office investigated the matter and found the company needed to better train its workers about state regulations.

The retailer has since reached a settlement with the state, agreeing to pay $125,000 and another $40,000 in restitution. A Bed Bath & Beyond spokeswoman has since said the company acknowledges state and federal laws regarding employment, and understands "employment opportunities should remain open to individuals with criminal histories that have been rehabilitated," Bloomberg reported.

How Employers and HR Professionals Can Ensure Safety
Some companies have implemented policies against hiring people with felonies or criminal histories to keep the workplace safe. According to an article in TLNT, a lawsuit brought forth by Texas against the EEOC claimed that the organization's guidance about background checks can actually put people in harm's way, as the state would have to consider those with criminal histories for law enforcement and teachers, just to name a few. TLNT noted the EEOC only provides guidance in this matter, and doesn't necessarily require employers to hire those with criminal histories.

Employers should also be careful not to speculate about if a convicted felon can harm others in the workforce. In fact, Madeline Neighly, staff attorney for the National Employment Law Project, told Bloomberg in an email regarding the Bed Bath & Beyond case that it can actually benefit public safety to hire those with criminal histories.

"Excluding anyone with a criminal history from employment undermines public safety," Neighly wrote in the email. "Employment is key to reducing recidivism and strengthening families and community involvement."

HR professionals need to always be aware about how their employment and employee management policies comply with discrimination and employment regulations and guidance.

Best Practices for Complying with VEVRAA and Section 503′s New Regulations

28 Apr

When it comes to human resource planning to comply with federal employment legislation, human resources professionals need to stay updated to ensure they don't miss the implementation of new regulations. The U.S. Department of Labor's Officer of Federal Contract Compliance Programs (OFCCP) recently issued final rules under the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (VEVRAA), which deals with the employment of veterans, and Section 503 of the Rehabilitation Act of 1973, which requires affirmative action for the disabled.

The new regulations for both laws came into effect on March 24, according to DOL, so it's essential that HR professionals waste no time ensuring they are following the requirements. Only those contractors that had a written affirmation action program (AAP) implemented by March 24 are able to have more time to comply with the regulations. In addition, the Society for Human Resources Management (SHRM) noted HR professionals can wait until their next affirmative action plan to start following some of the rules, such as the collection of data.

These two pieces of legislation are meant to motivate contractors to employ veterans and disabled persons without the need to meet quotas, according to SHRM. Each of the final rules require HR professionals to improve their hiring processes to meet certain employment benchmarks, including keeping certain types of data on file for future use and updating language in subcontracts. For human resource planning, this means HR professionals need to make sure they are adhering to each of the final rules, which may require HR departments to take time to work with other departments and adjust their recordkeeping procedures. 

How to Comply with VEVRAA and Section 503
According to DOL, there numerous new regulations that contractors need to follow, and each of these rules require their own methods of compliance. VEVRAA and Section 503 share some updated regulations. Here are just three and how HR professionals can comply with them:

  • Ask for self-identification: HR professionals and hiring managers must ask candidates before and after the offer of employment to self-identify as a veteran or a disabled person. According to The HR Group, this requires HR departments to draft a new section on their employment applications. There are samples from the DOL for this very purpose that HR professionals should utilize if they have not already done so.
  • Maintain quantitative data on the hiring of veterans and disabled persons: HR professionals now need to document and update quantitative comparisons on how many former service members and disabled Americans apply for jobs and the number who are hired, according to DOL. This could require HR departments to continually keep track of this data, and investing in human resource management system software can help.
  • The EO clause: Both VEVRAA and Section 503 now require HR professionals to incorporate the equal opportunity clause within job postings. However, HR representatives can't simply create their own clauses – they must follow the format of their state or local job service. 

VEVRAA has one regulation in particular that is unique to it. Contractors must now establish annual hiring benchmarks. They have two methods to choose from to do this, and HR professionals need to examine whether it is more beneficial for the business to follow the national percentage of veterans in the civilian labor force or if using data from the U.S. Bureau of Labor Statistics or veterans' employment data from another departments is best. HR professionals can do this by understanding their company's hiring needs.

Section 503 also has an exclusive requirement: updating the definition of disability. According to DOL, HR professionals now must make the changes set down by the ADA Amendments Act of 2008, and so HR professionals need to ensure they are revising their companies' nondiscrimination provisions correctly. HR professionals can draft the new definition and amend nondiscrimination policies by using government resources, such as from the Equal Employment Opportunity Commission.

There are numerous actions HR professionals need to take to adhere to the new VEVRAA and Section 503 regulations, many of which can be made easier with an employee management system. From keeping track of worker data and hiring information to improving the company's affirmative action policies, HR software can help human resource representatives monitor their compliance with VEVRAA and Section 503.

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