The Mad Scientist of Cold Calling

By Geoffrey James

January 12th, 2010 @ 12:04 pm

2 Tricky Challenges: FMLA Bonding and Fetal Protection

Pregnant employees typically present a host of Family and Medical Leave Act (FMLA) issues, and then, for many employers, there's the very tricky balancing act of fetal protection—what to do when the mother wants to work in a job that might endanger the unborn child.

FMLA Protection for Pregnant Employees Under FMLA, incapacity because of pregnancy or prenatal care is generally considered a serious health condition. FMLA and the Birth of a Child Under the FMLA, leave for the birth of a child is available to either men or women. There are some special requirements and exceptions: Leave for the birth of a child must be completed within 12 months of the date of birth.  An employer is not required by the FMLA to grant intermittent or reduced leave to eligible employees to care for (meaning “to bond with”) their newborns. Employers, however, may elect to do so. However, if the mother has a serious health condition in connection with the birth of her child or if the newborn child has a serious health condition, the employer’s consent for intermittent or reduced leave would not be required. Employees can take as much or as little FMLA leave time as they want (subject, of course, to the 12-week maximum) and need not provide any certification. Leave for birth is available automatically and does not relate to any medical need of either the parent or the newborn child. Note: Many states have their own family and medical leave laws that are similar to the FMLA. Employers covered by the FMLA should follow its requirements with respect to pregnancy leave, unless the employer’s own disability/pregnancy leave policy or the state leave law is more generous.       Gender-Based Exclusions and Fetal Protection Although the Equal Employment Opportunity Commission (EEOC) has stated that it should be the employee’s decision whether the hazards in the workplace to unborn children are worth risking for the position, a ruling by the U.S. Supreme Court in 2002 upheld the employer’s right to exclude an applicant or employee from the workplace where it had determined that the workplace would subject the individual to substantial harm. So what should you do in these situations? Make a careful and well-documented determination of the danger. This determination should not be based on fear or speculation that a pregnancy may indicate a greater risk of future injury or absenteeism or may cause future workers’ compensation or insurance costs. An employer may disqualify a pregnant employee or applicant only where there is specific medical documentation, reflecting current medical knowledge, that this individual would be exposed to a significant, current risk of substantial harm to health or safety. Pregnancy, FMLA, fetal protection—just a few of what, a dozen challenges hitting your desk daily? How about those intermittent leave headaches, accommodation requests, or attendance problems? Let’s face it, in HR, if it’s not one thing, it’s another. And in a small department, it’s just that much tougher.

Is Your Cold Calling Script Effective?

By Geoffrey James

January 11th, 2010 @ 5:48 am

In this tough economic time where we are confronted with multiple and challenging employment decisions, it is rare that we find both wisdom and levity bound together so poignantly.

HOW TO RECRUIT THE RIGHT PERSON FOR THE JOB?

Put about 100 bricks in some Particular order in a closed Room with an Open window.

Then send 2 or 3 candidates in the room and close the door.

Leave them alone and come back after 6 hours and then analyze the situation.

If they are counting the Bricks, put them in the Accounting Department.

If they are recounting them, put them in Auditing.

If they have messed up the whole place with the bricks, put them in Engineering.

If they are arranging the bricks in some strange order, put them in Planning.

If they are throwing the bricks at each other, put them in Operations.

If they are sleeping, put them in Security.

If they have broken the bricks into pieces, put them in Information Technology.

If they are sitting idle, put them in Human Resources.

If they say they have tried different combinations, yet not a brick has been moved, put them in Sales.

If they have already left for the day, put them in Marketing.

If they are staring out of the window, put them on Strategic Planning.

And then last but not least.  If they are talking to each other and not a single brick has been moved,

Congratulate them and put them in Top Management.

Good Monday morning to you,

Phil Lower

DOL, EEOC, and Your Employees' Attorneys Are Reading This Report

A recently released report concludes that a stunning percentage of workers in this country are underpaid and otherwise mistreated at work. The surprisingly widespread incidence of violations suggests that they are probably happening to some extent in your workplace.

It's likely that these figures will spur government agencies (and plaintiffs' attorneys) to an even higher level of scrutiny of employers' wage and hour policies and practices—quite possibly your own. The survey was conducted under the auspices of three research organizations: The Center for Urban Economic Development, the National Employment Law Project, and the UCLA Institute for Research on Labor and Employment. Researchers for the Broken Laws, Unprotected Workers survey collected data in 2008 from 4,387 workers in low-wage industries in the three largest U.S. cities—Chicago, Los Angeles, and New York City. The researchers used an "innovative, rigorous methodology" designed to reach vulnerable workers who are often missed in standard surveys, such as unauthorized immigrants and those paid in cash. The study found that many employment and labor laws are regularly and systematically violated. The most frequent violations were: Minimum Wage Violations Fully 26 percent of workers surveyed were paid less than the legally required minimum wage in the previous workweek. Worse, the violations were not trivial: 60 percent of workers were underpaid by more than $1 per hour. Overtime Violations Of the respondents who worked more than 40 hours during the previous week (about 25 percent of respondents), 76 percent were not paid the legally required overtime rate by their employers. Like minimum wage violations, overtime violations were of substantial magnitude. The average worker with a violation had put in 11 hours of overtime—hours that were either underpaid or not paid at all.       "Off-the-clock" Violations Nearly a quarter of the surveyed workers had come in early and/or stayed late during the previous workweek. Of these workers, 70 percent did not receive any pay at all for the work they performed outside of their regular shift. Meal Break Violations The large majority of our respondents (86 percent) worked enough consecutive hours to be legally entitled to a daily meal break during the previous week. Of these workers, more than two-thirds (69 percent) received no break at all, had their break shortened, were interrupted by their employer, or worked during the break. (Editor's note: Federal law does not require meal breaks; however, many states do require them.) Pay Stub and Illegal Deduction Violations In the states surveyed (and many other states), workers are required to receive documentation of their earnings and deductions, regardless of whether they are paid in cash or by check. However, 57 percent of workers surveyed did not receive this mandatory documentation in the previous workweek. In addition, 41 percent of respondents reported deductions from their pay in the previous workweek that were viewed as illegal by authors of the survey.       Tipped Job Violations Of the tipped workers in the sample, 30 percent were not paid the tipped worker minimum wage. In addition, 12 percent of tipped workers experienced tip stealing or "sharing" by their employer or supervisor.

DOL Agrees: With Intermittent Leave, Enough Is Enough

No one likes dealing with the Family and Medical Leave Act (FMLA), but every HR manager is doing it. Barbara Dahlen's approach has satisfied DOL and other agencies while at the same time significantly reducing FMLA time off.

Take the case of "Bristol," says Dahlen, one of her employees who tried to wear her out. "It didn't work," she adds. Dahlen is an HR manager at Bellefontaine Habilitation Center in St. Louis. She made her remarks at the recent SHRM Annual Convention and Exposition in New Orleans. (For Dahlen's tips on managing intermittent leave,   Bristol's original FMLA request was submitted "for up to 10 days per month." That's half a month, says Dahlen. "You can't have employees out half the time. You're going to be short staffed, or you're going to have to shut a line down." Bristol was sent for a second opinion, which didn't concur. Dahlen gave Bristol a third opinion letter, "Pick from these three doctors." (They were psychiatrists and Bristol's problem was depression.) Bristol responded, "I don't like those doctors, they are too far from my house." Dahlen sent another letter with new doctors, the last ones she could find. ("It's hard to find doctors, let alone psychiatrists, who will do third opinions," she notes.) And, by the way, you pay dearly for additional opinions, Dahlen says. Typically, she pays $450 to $500 for a second opinion, and often $1,000 for a third opinion. Bristol rejected the new doctors, and found her own doctor in the phone book, not a psychiatrist, a general practitioner. She brought in a form with "Third Opinion" handwritten at the top. Dahlen sent out a new third opinion letter, stating that the first five doctors were still available. Bristol chose another doctor out of the phone book. Meanwhile, Dahlen says, she had had discussions with Bristol to explain why she was doing what she was doing. And she had had family members in to explain. At this point, Dahlen talked to DOL. "These are steps I've taken. Do you agree that I've done everything I needed to?" Eventually, Bristol was terminated for absences and the termination was upheld by DOL. "If you document everything, and you do everything you can possibly do, DOL will support you," Dahlen says.   .   If Condition Changes, New Certification Hold employees to what's on the "cert," Dahlen says. If the employee's condition changes, fine, he or she needs a new cert. DOL is clear on that, Dahlen says. "If you are missing more days than you are certified for, and there is no new cert, it goes to attendance," she tells employees. Terminate with Care You can terminate an employee for performance while he or she is out on FMLA, Dahlen says. One example, she says, would be when the substitute worker finds a cabinet full of work the person on leave was supposed to have done. However, she says, her advice is, "Always call the lawyers before you do a termination like that." You Can Demand Documents Don't be afraid to ask for proof, says Dahlen. "Danica" put in a claim for FMLA leave for problems relating to her child. Other employees said she had no legal relationship with the child. Dahlen requested the child's birth certificate. Danica said she wouldn't provide it. "They have to provide it and we don't have to pay for getting it," Dahlen says. You can also require a copy of a marriage license, she adds. Tell the employee, "If I don't get it, I will deny FMLA."

How Does Your 401(k) Stack Up?

By BLR Founder and CEO Bob Brady

A lot of things have changed in the past year, causing priorities to shift and business practices to be reevaluated. Are you wondering how the situation at your organization compares with others in your industry?

Last December, a survey conducted by WorldatWork and the American Benefits Council found that the financial crisis had not significantly discouraged employer 401(k) contributions or participation. A full 74 percent of employers reported they were planning no change in their matching contribution; 15 percent had either increased or were considering increasing the employer match; 8 percent had either decreased or were considering decreasing the 401(k) match; and 3 percent reported eliminating the match. The survey found that more than 9 out of 10 U.S. companies were offering an employee 401(k) plan. In addition, despite the widely reported drop in account balances, two-thirds (66 percent) of organizations indicated that at least 70 percent of eligible employees participated in those 401(k) plans in 2008. But, as they say, that was then and this is now.       For years, BLR has surveyed employee benefits to find out what HR and benefits professionals had seen in the preceding year and what they were expecting in the coming year. This year, we are expanding that program by conducting a series of brief, targeted benefits surveys. The findings of these surveys will be analyzed and presented free to all respondents. And we're starting with 401(k) benefits. Today's topic: 401(k) Employers continue to be concerned about employees' financial preparations for retirement, the company's role in supporting the plans, and the proper place of 401(k)s as an important tool in overall benefits program design. How confident are you with your answers to the following: ·         Are you offering competitive 401(k)/pension benefits to your employees? (Or considering it?) ·         Are you confident that your company's plan is effective for recruiting talent? ·         Is your current plan helping with retention? ·         Are you providing adequate retirement resources? Take our brief survey and see how your current course and plans for the future stack up against those of the country's most successful companies. The survey only takes a few minutes to complete, and it will help you stay on top of your industry and keep your company competitive.       Complete the 401(k)/Pension Benefit Survey Now By sharing your insight, opinions, and experience, you'll help us highlight trends and define benchmarks—by industry, geographic location, and size of employer—that will inform your decision making for the coming year. At the same time, you'll gain a highly valuable strategic planning tool that will help ensure that your company is offering competitive benefits. Please be assured that all responses are confidential and only aggregate findings will be published.

Simple Rewards Program Yields 48% Drop in Absenteeism

By Nicole Capehart, HR Manager, American Realcorp

Use short-term rewards to reap long-term benefits, says HR manager Nicole Capehart. She has achieved a 48% drop in absenteeism for essentially the cost of a few dozen donuts.

Fresh out of college with my new degree in hand, I took my first HR job, ready to revolutionize my new workplace. Of course, I had no idea what was in store for me. Effecting change is a lot of work; it is a lot of pushing, prodding, and coming up against brick walls. It is almost enough to make the status quo look inviting. I have found though, that change can happen, and one of the best ways to encourage change is to have a solid employee motivational program in place. Although a simple program is easy to implement and maintain, I have seen that the idea is often discounted or practiced inconsistently.       My motivational program has four parts and costs very little, yet it has made a great impact on the company. My strategy is easy: Set long-term goals but award in the short term. At the start of the year, employees are asked to meet goals throughout the year that increase company productivity and revenue. For example, one of our companywide challenges for this year was for employees to have a year of perfect attendance. Once the goals are established, the next hurdle is to keep employees focused on the long-term goals in the present. I do this through a series of reward levels. This is how "Operation Motivate Employees" was born. It has four parts. Part One: Reward Weekly Every week, short praise notes are sent to employees in each department throughout the company. Notes contain such praise as "Thanks for going the extra mile with your customer" or "Thanks for staying late to get the job done!" (You can do this yourself if you are able to observe employee actions, or you can insist that managers and supervisors single out employees each week.) Part Two: Reward Monthly Every month each department has a breakfast awards meeting to honor employees who have met the established goals for the entire month. Additionally, the department that has performed the best for the month earns the company's "traveling trophy." The only cost is the price of breakfast food (donuts are always a favorite), a congratulatory certificate, and candy bars to go with the certificates. (Set up a clear system for calculating the departmental traveling trophy winner—competition can become fierce!) Part Three: Reward Quarterly Once each quarter the entire company meets for awards. Employees who have met or exceeded the established goals for the entire quarter are recognized. Prizes include coupons for paid time off or small gift cards, and, of course, there are always donuts!       Part Four: Reward Yearly At the end of the year, at a special event, the company honors employees who have met the established goals all year long. The prizes are significant (OK, this does cost more than a donut), and the employees strive to earn them. To date, this simple strategy has employees working harder than ever before. They want to win the traveling trophy recognizing their department as the best in the company, they want to earn the individual prizes, and they want to be recognized in front of their peers. The Payoff And the payoff for the company? Absenteeism is down 48%, productivity is up, and the company has directly saved $9,500. The great thing about a motivational program like this one is it can be designed and tweaked to fit any company. Our company is small, and giving rewards often keeps the employees focused. A bigger organization may have different needs, but regardless of the size or nature of your organization, the foundation that a motivational program lays has the potential to make the revolutionary changes you have in mind. I'm already making the ones I had in mind at the start of my career. That's Nicole Capehart's e-pinion. How about yours? Do you have low-cost—or high-cost—reward systems that produce results? Let us know how your system works, and what its results have been, and we'll publish the answers. Contact us at info@onwardeducation.com.

Retaliation Suits Are Up—But HR Can Prevent Them

Retaliation suits are the one type of EEOC suit that is increasing, and Attorney Judith A. Moldover says HR managers have an "incredible role" in sparing their organizations the expense those suits invariably bring—even if you "win" them.

Retaliation claims are very fact related, says Moldover, and that makes it especially important that someone with good judgment—like an HR manager—be there to guide management through the case. They're Not Over 'Til They're Over By the way, Moldover says, HR's role doesn't end when the case ends—you have to keep an eye on management as long as the employee who complained is employed. Moldover's comments came at the recent Legal and Legislative Conference of HRNY, the New York City chapter of SHRM. Moldover is with the New York City office of law firm Ford & Harrison LLP. What Rises to the Level of 'Materially Adverse Action'? One of the keystones in a claim of retaliation is that the employee must have suffered a materially adverse action. As a result of the Burlington Northern case, Moldover says, we have a definition for retaliation: an action that would dissuade a reasonable employee from making or supporting a charge. Furthermore, the action need not be employment related. In the Burlington case, a supervisor constantly told a female worker, "Women shouldn't do this work." Then he started saying other things to her with sexual overtones. When she complained, the company investigated and punished the supervisor by giving him a 2-week suspension without pay and making him go to sexual harassment training. So far so good, says Moldover. But then, the same day the complaining employee was told about how her complaint was resolved, she was taken off her relatively easy forklift job and given a much harder and more physical job. She didn't lose seniority, pay, or title, but the court did find that the action was adverse.       In another case, an HR manager who reported to top management made a complaint. Soon thereafter he lost all his staff, was moved to another area, and found himself reporting to a middle manager. His new boss said to him, "I don't know why they sent you to me. I don't have anything for you to do." As with Burlington, the manager kept his title and his pay, but the courts found that the action was an adverse action. However, in another case, a company moved an employee who had complained about sexual harassment away from the harassing supervisor. The new location involved a slightly longer commute. This action was not found to be adverse, but in fact it was judged to be a reasonable response to the complaint. Moldover offered the following examples of other potentially adverse actions: ·         Giving a lower evaluation. Even if the evaluation is only lowered from "superb" to "excellent," it could be considered an adverse action, especially if pay or promotional opportunities are affected. ·         Transferring to a less desirable position. Transferring a person to another position or office could be adverse, although as noted, in sexual harassment cases, a move may be the best thing to do. ·         Ultimate employment actions. Naturally, when you take ultimate employment actions, such as firing, demoting, not giving a promotion, or imposing discipline, you are likely taking adverse action. ·         Lowering benefits. Removing a significant benefit could also be considered an adverse action, Moldover says.       Counterclaims Could Be More Retaliation When an employee files a charge or complains about a manager, the manager's response is often, "I'm going to sue for defamation!" You probably don't want to do that, says Moldover. First of all, that case is going to be hard to win, and it's going to take resources and engender bad publicity. And if that's not enough, the countersuit itself could be viewed as retaliation.

The Trouble with Disruptive Change

By Jeffrey Pfeffer

September 10th, 2009 @ 4:44 pm

I Taught Them, But They Didn't Learn

It's a pretty common scenario—you've gone through the motions of training, but the participants didn't pay much attention. That's a real problem with HR subjects, because the stakes are high. Today we'll offer tips for getting—and holding—your audience's attention.

What's the attention span of your trainees? According to studies of adult learners, your trainees are paying a lot less attention to vital training than you think. Most studies suggest that for most adults the outer limit of adult attention spans is about 20 minutes. And the longer a session continues, the shorter the attention span. One study indicates that after an hour of uninterrupted lecture, attention spans can drop to 3 or 4 minutes, punctuated by long periods of inattention. You have to wonder—and worry—about what trainees might have missed during those lapses in attention. Was it the essential piece of information that could have prevented a lawsuit? How to Keep Trainees' Attention So what can you do to maintain focus? Training experts suggest the following: ·         Plan training sessions in reasonably small bits and bites. Say you're going to train on sexual harassment—what it is, how to respond, and how to report. Rather than delivering information about all three points in one continuous stream, break it up into three chunks.     Include interactivity when you lecture. Try these suggestions: o    Talk for a bit and then discuss what you've just covered, encouraging lots of trainee participation. o    Have a question and answer period between training points. o    Divide large training groups into small groups to discuss issues or complete training exercises. o    Use quizzes and problem-solving exercises to challenge trainees and make them think about what they're learning. o    Give trainees a chance to practice what they've learned for a few minutes before proceeding to the next point. ·         Take age into account. Realize that the younger your trainees are, the more you need to take attention span into account. ·         Use a combination of training techniques. For instance, give a brief 5-minute introduction, show a short training video, have a discussion about key points, give a quiz, and then provide a handout and have a short review. ·         Allow rest breaks during long training sessions. Give trainees a chance to get up and move around, have some coffee, and refresh themselves for the next round. Training—meaningful training—is more critical than ever. And that's especially true for supervisors who are new to the job. They don't know how to handle basic tasks like hiring and firing, let alone intermittent leave, harassment, or accommodating a disability. It's not their fault—you didn't hire them for their HR knowledge—and you can't expect them to act appropriately right out of the box. But you can train them to do it. To train effectively, you need a program that's easy for you to deliver and that requires little time from busy schedules. Also, if you're like most companies in these tight budget days, you need a program that's reasonable in cost.

Five Advantages of Hiring Gen Y Employees

By Jessica Stillman

September 3rd, 2009 @ 6:09 am

Use First Impressions as Sales Tools

By Geoffrey James

September 3rd, 2009 @ 11:24 am

Did the Recession Make Your Job Descriptions "Lawyer Bait"?

By BLR Founder and CEO Bob Brady

During the recent recession, many employees saw their jobs change and grow. There may be fewer bodies, but the work still has to get done. In a lot of cases this, means that job descriptions are out of date and inaccurate. They may be fodder for significant lawsuits if, for example, an employee is classified as exempt, but is now doing some non-exempt work, according to Attorney Sandra Rappaport.

"In this age of downsizing and job consolidation, even your best, most complete job descriptions have likely become outdated," she said, "and outdated job descriptions are a plaintiff's lawyer's best friend." 'Exempt' Employees Who Aren't Rappaport said that if you're using an old job description that suggests exempt status, but your employee is performing non-exempt duties, you've got the makings of a costly lawsuit on your hands. "Wage-and-hour class action lawsuits are in vogue now," she said, "and many are based on misclassification issues."       Rappaport, a partner at the San Francisco office of law firm Hanson Bridgett, LLP, notes that many employers don't realize that it's what an employee does that matters, not the person's job title: "Someone called a "manager" may not be an exempt employee," she said. "Exempt workers who perform too many nonexempt duties may not be exempt." Rappaport explained that even if you have a job description that was once accurate, employers around the country are doing more with less these days. In many cases, that means that once-exempt workers are spending more time on non-exempt duties. When the balance tips too far in that direction, you're required to pay overtime. You could even be on the hook for years of back overtime, depending on how long the misclassification has gone on. "Relying on an old job description and thinking you're safe is a sure path to disaster," she said.

Jack Welch: 'HR, Get Out of the Picnic Business'

"How many out there (of perhaps 6,000 HR managers in the audience) are perceived by your organizations as equal in importance to the CFO?" Jack Welch asked. About 10 percent believed they were. "That's not enough," he said.

Welch, former head of GE and a great supporter of HR, offered his tips for HR managers at the recent Society for Human Resource Management (SHRM) Conference and Exposition in New Orleans. If I Owned a Football Team Welch said that if you owned a football team, you wouldn't hang around with the accountant. You'd hang around with the manager of player personnel. That's where the action is. And that's how it should be for HR managers everywhere. How do you make your case? "Get out of the picnic and insurance forms business," Welch said. Honesty in Evaluation No employee should wonder where he or she stands. When we have layoffs, all the affected personnel are saying, "Why me?" That means there haven't been good evaluations, Welch says. Isn't the 20-70-10 System Barbaric? Welch spoke about his famous (or infamous) 20-70-10 system that he installed at GE. (Briefly, under the system, 20 percent are rated as exceptional, 70 percent as fine, and the bottom 10 percent are eliminated.) Don't get the wrong idea about the 10 percent, he says. "The idea wasn't to machine-gun them—we worked with them, found a better situation for them, or helped them move on. Many of them had very successful careers." "The number one thing to do to prove your value is to develop rigorous development and evaluation plans," Welch said.       "I don't want to work for the man." The shock of the downturn has many employees thinking, "I don't like this." Your stars might stay a while, but when things get better, they're going to want out—a chance to control their own destinies—unless they work for a company that offers flexibility, growth, and excitement.   Challenge your organization to create that kind of atmosphere—"Grab them by the shirts." In today's market, you have to get creative taking care of the best and raising the average. "Make it better every day," Welch said. Do not be a victim, a player who doesn't suit up for the game. Communicate like Hell Everybody is scared these days, said Welch. Are you feeling excitement, thinking about new ways of doing things, and how to restructure to come out thriving? Or are you hunkering down scared? "You have to make it vibrate—feel the excitement of tomorrow not the pain of today."   No whining, said Welch. And no over-positive cheerleading either. "People don't want cheerleaders when the thing is leaking," he added.   Walk the floor, tweet, do what you can to communicate, so employees think, "They're working for me."       Long-Term and Short-Term Management "First of all," said Welch, "recognize that any jackass can manage for the short term—you just squeeze the hell out of it." And any jackass can manage for the long term—you just share your dream. But you have to do both, and that is hard. Welch on HR: "HR is important in good times; it defines bad times."

 “Every morning in Africa a gazelle wakes up. It knows it must run faster than the fastest lion or it will be killed. Every morning a lion wakes up. It knows it must outrun the slowest gazelle or it will starve to death. It doesn't matter whether you are a lion or a gazelle - when the sun comes up, you'd better be running.”

                                                                                           Author Unknown

Running away from what's chasing you isn't living, it's survival.  Chasing everything or anything that comes along also isn't living, it's the other side of the coin.  Living a passionate life requires defined goals.  But the process of defining them takes a teacher, time, and practice. 

Thomas Leonard, the Father of Modern Coaching and Founder of Coachville, wrote about the 10 Reasons to Hire a Coach.  They include:

1.  You will set far better goals that motivate you.

2.  Accomplish goals, tasks, and projects more quickly.

3.  Make fewer mistakes in your business life and your personal life.

4.  Move up to your next level of your professional and personal life.

5.  Reduce the number of problems you have and better resolve those that are left.

6.  Make more money in your career, profession, or business.

7.  You'll be a lot happier and this happiness will last.

8.  You'll be much more effective and influential with others:  family, business, and personal relationships.

9.  You'll become much more attractive to others - on the inside and outside.

10.  You'll have a better life, not just a better lifestyle.

As someone who has used a Life Coach/Mentor, the process has proved to be illuminating.  Their ability to cut through my personal malarky has checked my mental attitude on more than one occasion.  Not only can I see the trees and the forest much more clearly but I can recommend the process highly.

If you're doing 80% of everything right, it's the 20% that you're not doing or don't know your not doing that is holding you back.  In my opinion, you'd be foolish not to fully consider the option.

Can You Fine Obese Employees? Smokers?

Clarian Health of Indianapolis, Indiana, has announced that it will begin to charge employees who smoke, are obese, or fail to control high blood pressure or cholesterol. Management believes that a $5 per-paycheck fine will motivate people to change. But according to expert Lisa Ballentine, wellness rewards do a better job.

Most companies sponsor wellness initiatives with the goal of reducing ever-increasing costs of healthcare coverage. Clearly, that works, and such savings are surely Clarian Health's goal in doling out penalties. But there's much more at stake, attorney Ballentine.   Employees who exercise regularly bring good attitudes to work with them, because working out gets their endorphins flowing, Ballentine said. And, because they have more energy, they are more productive than their less-active colleagues. More to Fitness than Saving Healthcare Costs It's clear that lack of exercise, smoking, and excess weight cause or exacerbate serious health risks. Some 23 percent of U.S. adults smoke, while 65 percent are either overweight or obese. So why not just refuse to hire smokers and obese people? No Smokers Allowed Employers in Michigan, Nebraska, Washington, and a few other states can legally reject smokers. But in more than 30 states, Ballentine warned, it's illegal to discriminate against candidates who engage in legal activities outside of work. So as long as smoking, alcohol, and overeating are legal, employers can't consider these habits in hiring. Furthermore, she cautions, obesity can sometimes be classified as a disability under the Americans with Disabilities Act—especially if a spurned applicant can show in court that the employer regarded him or her as disabled based on appearance.       Take a Positive Approach "Invest in your people," Ballentine said. Take a positive rather than a punitive approach to wellness. A cornerstone of her strategy is to educate employees about the benefits of staying healthy and the risks of failing to do so. "Foster a culture that values and rewards health progress," she advised.   For example, she suggested: ·         Bring in health experts to offer 'lunch and learn' sessions about various aspects of wellness. ·         Create company walking programs. ·         Invite a weight-loss provider to sign your employees up for meetings on your premises. ·         Sponsor employees for a stop-smoking program and reward them if they succeed. ·         Conduct a health fair. ·         Offer stress-reduction classes or information. Positive Spirit Infectious When wellness programs catch on with a few employees, Ballentine said, "You'd be amazed how contagious the spirit can become," with more and more people joining the effort to exercise, lose weight, or quit smoking.   Ballentine suggested affordable incentives that are easy to find and have a wide appeal to employees. For example: ·         Cater a luncheon for program participants. ·         Give movie tickets. ·         Give free DVD rentals. ·         Offer a paid day off. ·         Give a small gift certificate from a local merchant. How Much Can You Reward Participants for Succeeding? Don't just pay for employee participation in stop-smoking courses, but also reward employees if they succeed in quitting, Ballentine suggested. Of course, while it is possible to do that, HIPAA (Health Insurance Portability and Accountability Act) privacy regulations make it a bit tricky. The following are some compliance tips for wellness programs. Participation Only Rewards Employee rewards based on participation only, rather than achievements or outcomes, are generally acceptable.   However, alternative means of participation must be devised and offered to employees who cannot, because of a medical condition, participate in the expected way. Examples might be someone in a wheelchair or someone with lung disease who must carry supplemental oxygen, either of whom might be unable to participate in an exercise program.     Achievement Rewards If employers want to offer rewards based on achievement rather than on participation (e.g., actually quitting smoking as opposed to just participating in the program), their programs must meet five requirements: 1. The total individual reward cannot exceed 20 percent of the total cost of employee-only healthcare coverage. 2. The programs that give rewards must be reasonably designed to promote health or prevent disease. 3. Participants in a program must be given the chance to earn the reward at least annually. 4. Programs must be available to all employees, so reward programs must give any employee for whom achieving the basic standard would be unreasonably difficult or medically inadvisable the chance to earn the reward in another way. 5. All communications material about the programs must state clearly that reasonable alternatives to the basic standard are available or that the standard can be waived if necessary. In tomorrow's Advisor, we'll look at more tips for dealing with legal but unhealthy behaviors, and we'll take a look at a trusted program for developing a wellness program with a great ROI.

Insanely Great Marketing

by Chris Morrison

Background Checks on MySpace—Dangerous or Due Diligence? 

Is it now negligence if you don't do background checks on MySpaceTM and Facebook? "We're not there yet for every job," says attorney Joseph Beachboard, "but it's getting there for sensitive jobs like installers and home care providers."

Beachboard's comments came at the recent Society for Human Resource Management (SHRM) Annual Convention and Exposition in New Orleans. He is a shareholder at the Los Angeles office of Ogletree Deakins.   Where Are Companies Looking? Beachboard finds his clients looking at the following types of websites: Search engines: ·         Google ·         Yahoo!® Social networking sites: ·         Facebook ·         MySpace ·         Twitter ·         Classmates® ·         Virtual worlds (sites where users create their own characters) Rant sites ·         Fthisjob ·         Jobvent   What Are the Issues with Internet Searches? Beachboard offered several lawsuits as examples of the types of situations employers are facing.   A Delta Airlines flight attendant posted provocative pictures of herself in her uniform on company planes on her personal website.   The Arlington, Oregon, mayor posed for photos wearing lingerie and sitting on town fire trucks. The photos were discovered on the mayor's MySpace page.   "Cisco fatty" tweeted that "Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work." Cisco rescinded the offer. (Cisco Fatty was getting an information management degree, Beachboard points out.)   A librarian with the same name as the "Wii Fit Girl" (YouTube's 3-million hit "Why Every Guy Should Buy His Girlfriend a Wii Fit") had trouble getting a job because people thought she was the Wii Fit Girl.   Underlying these situations is an essential conflict between employee and employer expectations, Beachboard says.   ·         Employees expect that their "private" information won't be used. ·         Employers are searching for the best information to make decisions.   What's the Potential Liability? Although there are no federal laws prohibiting online searches for information about applicants and employees, there are some laws that come into play:   FCRA, the Fair Credit Reporting Act, requires certain notifications and procedures for credit reports conducted by third parties. If you engage a third party to conduct the searches, you must comply with FCRA.   NLRA (National Labor Relations Act) may also come into play if unions are involved. Websites and blogs about terms and conditions of employment may be "concerted activity."   Discrimination statutes protect against discrimination on the basis of race, age, gender, etc. You are likely to get information about those factors during a search. Once you have the information, you are open to a claim that you acted based on that knowledge.   The Stored Communications Act (SCA) may also cover certain actions related to obtaining information.   State Laws Also Apply Many states offer broader protections. And most states have common law privacy rights called "intrusion upon seclusion" and "publication of private facts."   The Question of Balance The question is this: Does the employer's need for information outweigh the employee's right to privacy?   The employer's strategy is to show that need is high, while at the same time making the reasonable expectation of privacy low.   Pros and Cons   Beachboard identifies the following pros and cons of doing Internet searches in the employment context.   Pros for doing the search ·         It's a critical decision. ·         You may gain invaluable information about character. ·         It's far easier to avoid a bad hire than to get rid of a bad hire. ·         "Failure to hire" suits are much less likely than suits over termination. ·         It may help to avoid a negligent hiring claim.   Cons for doing the search ·         Sites are rife with information impermissible to consider. ·         Possession of information may taint an otherwise well-based decision. ·         There is the possibility of making a decision based on incorrect information (like Wii Fit girl). ·         You'll increase the likelihood of litigation. ·         You may generate bad publicity.

Feds issue ‘How to Sue Your Employer’ instructions

by Jim Giuliano

Denial of FMLA Reinstatement: Employee Options 

The key employee who has received notification that reinstatement after FMLA leave will be denied has two choices:   1. The key employee may cancel or wrap up the leave. If the employee has not started the leave, he or she may simply cancel it. In other words, employers may not force key employees to go on leave if they change their minds faced with the facts of non-reinstatement.   If the key employee is already on leave when he or she receives the non-reinstatement notice, the employer must give the key employee a reasonable amount of time to return to work, taking into account the circumstances, such as the length of the leave and the urgency of the need for the employee to return. If the employee is able to return within the allotted time, the employee must be reinstated to his or her former position, or one equivalent to it.   2. The employee may take or continue leave. The other option for employees is to continue with the leave as planned. The employer must grant the full FMLA leave even if it doesn't intend to take the key employee back. Just like nonkey employees who go on leave, key employees are entitled to continuation of their group healthcare benefits. In fact, if the company continues to offer other benefits to employees during FMLA leave, such as pension plan contributions or group life insurance, those will likewise be continued for the key employee, even if that employee will be denied reinstatement at the end of the leave. In addition, the employer may not recover its cost of health benefit premiums from key employees denied reinstatement (as it could from other employees who do not return after completing their leave).   Coverage must continue throughout the duration of the leave, unless the employee formally resigns by unequivocally stating that he or she will not be returning. This is the same for all employees on FMLA leave.   Requesting Reinstatement Anyway At the end of a key employee's scheduled leave, he or she is allowed to request reinstatement even when previously informed that reinstatement will be denied, and even if the employee did not return to work in response to the employer's notice. The company must respond to such requests for reinstatement by re-examining their circumstances and determining whether, given the facts at the time of the reinstatement request, the reinstatement would still cause substantial and grievous economic injury.   If the company reaffirms its denial of reinstatement, it must inform the key employee in person or by certified mail.   That's the story on key employees. But what about all the other FMLA hassles like intermittent leave? And, especially, what about all the new FMLA responsibilities? Like military leave and reinstatement? Still a little shell-shocked? Frankly, it's an almost overwhelming task to get in compliance with these far-reaching changes to the FMLA.

Who's a 'Key Employee'? Should You Care? 

Confusion reigns over the status of "key employees" under the FMLA, what their reinstatement rights are, and what the employer's notice requirements are.

Who is a Key Employee? A "key employee" is: ·         Salaried ·         FMLA-eligible (meets service requirements of 12 months and at least 1250 hours) ·         FMLA-covered (employer is covered by FMLA, has 50 workers within a 75-mile radius) ·         Among the highest paid 10 percent of all the employees employed by the employer within 75 miles of the employee's worksite   Because of their high salary, and because they often have senior-level positions with critical responsibilities, the FMLA gives companies a little more leeway in how they handle leave for key employees. Most important, the law allows the company to deny reinstatement in certain circumstances.   However, due to the stringency of the requirements, in the vast majority of cases, key employees will be treated just like regular employees.   Notice Requirements When a key employee requests leave, the employer is required to inform the employee, in writing, of his or her status as a key employee. This notice should be made as soon as possible after leave is requested.   The employer must also, at the same time, tell the employee what the key employee designation means: a) that it is possible that the key employee might be denied reinstatement if the employer determines that substantial and grievous economic injury to the employer's operations will result from reinstatement, and b) that the employee's benefits during leave won't be affected.   If the notice cannot be given immediately because of the need to determine whether the employee is a key employee, it must be given as soon as practicable after being notified of a need for leave.   Important: Key employee status does not mean that an employer may deny leave to key employees. It's only reinstatement after leave that is at issue.   The Notice Must Be Timely The notice requirement must be observed in a timely manner. If the employer does not notify key employees of their status within a reasonable amount of time after they request leave, the employer loses the right to deny reinstatement, and the employees retain full job reinstatement protection under the regular provisions of the FMLA, just as if they were not key employees.   DOL points out that it expects that in most circumstances there will be no desire that an employee be denied restoration after FMLA leave and, therefore, there would be no need to provide notice to a key employee.   Denial of Reinstatement A key employee may be denied reinstatement if—and only if—returning that employee to his or her job would cause "substantial and grievous economic injury" to the employer's business operations. The employer determines what situations count as true economic injury; however, the legal threshold is quite high, so denial of reinstatement is not common.   Notice of Intent to Deny Reinstatement As soon as the employers makes a "good faith" determination, based on facts available, that a key employee's reinstatement would cause them economic injury, the employer must inform the key employee, in writing, that the company intends to deny job reinstatement at the end of the leave.   The notification must include a statement that the employer cannot deny FMLA leave and that it intends to deny restoration on completion of the leave. It also must include an explanation of why reinstating the key employee would cause such serious economic injury to the company. The notice must be delivered in person or by certified mail. Typically, this decision and notice should take place before leave begins, but because business situations sometimes change, notice may be delivered during leave.

How to Give a Killer Online Presentation

By Steve Tobak

July 30th, 2009 @ 10:03 am