Yesterday, Alison Davis discussed rant sites—the dark side of social media. Today, she shares proactive practices for controlling social media use. Plus, we'll take a look at a unique one-stop source for solving HR problems.

The best approach to keeping former employees quiet, Davis says, is to tie agreements about future behavior, non-disclosure, and so on, to a severance agreement. Keep the payoff for a date in the future, and make it clear, "If you violate this agreement, we won’t pay you your money."

Davis is CEO of Davis & Company (davisandco.com). She made her comments at a recent webinar.

What about Employees with No Severance Package?

"If you don't offer severance, you don’t have as many rights for controlling ex-employees. You can try to sue for slander or libel," Davis says, "but that's a difficult case to make because you have to prove damages to the company."

If an ex-employee who has no severance were to blog "I was fired, and here are the facts," you’ve got no basis for legal action, Davis says. If the person blogs, "I hated my boss," you've got no basis for action. If the person discloses "Here are my company's confidential plans and financial data," now that could be the basis for legal action, Davis says.

Proactive Steps You Can Take

How should you go about setting boundaries and guidelines for your employees and ex-employees? Start with your current employees, says Davis.

"There is no right or wrong answer about how to approach it; you have to decide as a company where you fall," Davis says. She thinks of it as color-coded:

Green—You encourage employees to contribute to social media sites. In other words, you decide that use of social media has equal or more benefit than risk.

Yellow—You acknowledge that employees participate and outline expectations—you may do this but not that, what you do at home is your own business except for this and that. In other words, you don't intend to prohibit use, but there are rules.

Red—No, you’re not letting anyone engage in this activity. In other words, you are going to restrict employees to using company electronic resources only for business-related matters. This approach is necessary for certain industries, for example for defense contractors, Davis notes.

For many employers, the first level of interest is to ensure that the personal use of social networking websites or systems does not interfere with working time. In any event, when employees are involved with these sites, it must be clear that they are not acting as a spokesperson for the company, Davis says.

Finally, Davis says, "don't forget logos. That’s a big one for many companies. You really don’t want people splashing your logo all over their Web pages."

Social media. Just one of dozens of challenges on the HR desk—COBRA changes, FMLA intermittent leave, ADA accommodation, off-the-clock workers, just to name a few.

Social media is clearly the coming thing for hip companies, but there is a dark side, says Alison Davis, a communications consultant. She recommends that employers take a proactive approach.

Davis is CEO of Davis & Company (davisandco.com). She made her comments at a recent webinar.

Information You Thought Was Protected

Davis shared a story of Gannett, owner of USA Today. Gannet planned major layoffs nationwide, but intended to announce them only at the local level, so that no one would know the total number of employees affected.

Soon a disgruntled ex-employee began a blog to track Gannett's layoffs. He began to post the information on his blog. "We're going to add it all up for you," he said. He created a map that showed all the layoffs nationwide.

Unfortunately for Gannett, Davis says, when you lay off journalists, you lay off a group who are pretty savvy about how to find information, and how to present it.

The main lesson is that the blogger was able to aggregate information that Gannett expected to keep private, and there wasn't much Gannett could do about it.

How About Those Rant Sites?

"Rant sites are a level worse," Davis notes. She calls them “moaning and complaining" sites. They encourage what she calls "management stinks" blogs.

Take, for example, JobSchmob.com, she says. Here's a taste:

Screenvision Is The Worst Company In The World!!

"I worked for about eight months in advertising sales for Screenvision, selling onscreen theatre advertising. Warning: Onscreen advertising is one step above being a total scam and a completely ineffective means of spending your advertising dollars. The commercial spots are an insignificant 10 seconds, and are shown mostly in half-empty theatres, to kids with no buying power or people who regard onscreen ads as little more than an annoyance. They are totally ineffective. The company has something like an 8% renewal rate! That's abysmal.

"… The company management is made up of idiots who are out of step and totally clueless as to the realities of the world we live in. The regional VP was located in our office. I have known doorknobs with more brains than this idiot.

"DO NOT ever do business with Screenvision, and don't ever consider going to work for them! They're the Anti-Christ of the advertising world."

"Not what you'd want a prospective employee or customer to be reading," notes Davis. But as long as the blogger is reciting his or her experience, there's not much you can do about it, she says.

Industry Sites

For another example of another kind of social media site, check out Cafepharma.com, says Davis. Cafe has a message group for every significant pharmaceutical company and for geographic regions and tech specialties like IT.

"Depending on industry, geography, and how strong a presence you are in your industry, these groups will spring up as places where people congregate and talk about your company," Davis warns.

In a previous post, we talked about the three different job descriptions most jobs have. Today, we'll look at 10 specific factors you can evaluate as you work to unite those three job descriptions into one.

These 10 elements describe the specific job requirements in terms of "compensable factors." You can use these factors to gauge whether the job description properly captures the job, and you can use these factors to help gauge the level of compensation that is appropriate, as well as the exempt/nonexempt status of the position.

Hereare the primary compensable factors:

1. Experience. How long should the incumbent have worked in this job or in closely related jobs to be fully qualified? Is it important that the experience be within or outside the organization?

2. Education. What does the job require in terms of formal schooling, training, certification, or knowledge of a specialized field?

3. Responsibility. Is the employee responsible for the safety of other employees or for the loss or damage to tools, materials, or equipment? How significant to the employer is the work the position is responsible for? How big is the budget the incumbent manages?

4. Complexity of duties. Does the job require the incumbent to show judgment and initiative or to make independent decisions?

5. Supervision received. How closely does the incumbent's immediate supervisor or manager check his or her work? Does the supervisor or manager outline specific methods or work procedures?

6. Supervision exercised. How many people does the incumbent supervise, directly and indirectly? What responsibility does he or she have for controlling policy decisions, costs, or work methods?

7. Consequences of error. If the incumbent made an error, what dollar loss would be likely to result? How often does the possibility of loss or error occur?

8. Working conditions. Is there anything in the work environment that is unusually hazardous or uncomfortable? For what percentage of the time is the incumbent exposed to such conditions?

9. Mental, physical, and visual demands. What degree of concentration is required? Are there special physical demands? Is eyestrain likely?

10. Confidential data. To what extent is the incumbent responsible for confidential information? What would be the consequences of unwarranted disclosure? To what extent are integrity and discretion important?

In our last Harassment article Attorney Rebecca Speer dissected "he said/she said" investigations. Today we'll get her take on how many witnesses to interview.

Deciding whom to interview, and how many people to interview, involves a careful balancing of two competing objectives: the need to be thorough and the need to protect confidentiality, Speer says. Speer is founder and principal of Speer Associates/Workplace Counsel in San Francisco.

How you strike that balance in any given investigation will depend on numerous factors. These might include the nature, extent, and complexity of the factual questions at issue; the number of witnesses who are believed to have information relevant to those issues; the fruitfulness of interviews you have conducted as you proceed through the investigation; and so forth.

In determining the scope of interviewing:

·         Continue your interviews until you have satisfied yourself that you have adequately explored the factual questions at issue. Ask yourself, do important gaps exist in information you have gathered? Have you reconciled competing witness accounts?  Have you adequately sought corroboration for the complainant's and accused's version of events?

·         Investigations typically will be faulted for being too narrow (not involving enough interviews), not for being too broad.  So, if a doubt exists in your mind, opt for a broader investigation, within reasonable limits, of course, Speer advises.

In choosing whom to interview, consider the following:

·         Don't come up with a definitive witness list at the outset of the investigation.  Instead, decide whom you will interview as the investigation progresses.  Oftentimes, interviews with certain prospective witnesses become unnecessary as you successfully uncover information at earlier points in the investigation.

·         In deciding on the most appropriate witnesses, ask: Who has been identified as having knowledge regarding a particular issue? Or, who is best-positioned to possess that knowledge? Be sure that you can articulate a clear rationale for selecting someone as a witness.

·         You will need to ask the complainant and the accused, and other witnesses as well, whom they suggest that you interview. Be sure to ask the reasons they have suggested someone as a witness. Take that information into consideration as you decide whether or not an interview with a particular person is necessary or not.

Ultimately, no hard-and-fast rules exist for deciding the scope of an investigation; in the end, it all comes down to the exercise of good judgment, thoughtfulness, and caution, Speer says.

What's your policy on investigations? How about your policies on harassment and discrimination? Could they be among, say 50 or so of your policies that need regular updating (or maybe need to be written?). It's easy to let it slide, but you can't afford to backburner work on your policies—they're your only hope for consistent and compliant management that avoids lawsuits.

There's not much trickier than investigating "he said/she said" accusations. The key to dealing with these situations, says attorney Rebecca Speer, is to do everything reasonably in your power to uncover "corroborating evidence," that is, information that would support the complainant's—or the accused's—version of events.

"In my experience," Speer says, "Even the most starkly seeming he said/she said situations can offer ample opportunity for corroboration, and it's one of your main duties as a diligent investigator to seek it out." 

Speer is founder and principal of Speer Associates/Workplace Counsel in San Francisco.

Corroboration takes many forms, she notes, and is not limited to the accounts of direct witness-observers to an alleged incident.  For instance, she says, "If a female employee contends that, over a period of time, her manager engaged in offensive behavior towards her in private—outside the presence or earshot of anyone—I would want to know:

·         Did the complainant complain to anyone about the behavior in question around the time it supposedly occurred? 

·         Did the complainant engage in any contemporaneous, or near-contemporaneous, conversations with anyone (e.g., close co-workers, a supervisor) that offer any insight into whether or not certain events occurred and, if so, precisely what occurred?

·         Similarly, did the accused engage in any conversations or make statements during the relevant time period(s) that offer insight into whether or not he engaged in the alleged offensive behavior?  

·         Did anyone notice a change in rapport between the complainant and the accused around the relevant time period(s), signaling possible tensions or problems?

·         Do any e-mail communications or other documents between the complainant and accused, or between either of them and others, provide information and insight into alleged events?

·         Do any circumstances occurring during the relevant time period(s) (e.g., an extended absence or precipitous drop in performance by the complainant) suggest that the alleged events occurred?

·         Does any other information (e.g., past complaints about similar behavior by the accused or, alternatively, a history of exemplary behavior by the accused) provide some support for the complainant's allegations or the accused's version of events?

·         Does any information exist indicating any motivation the complainant might have to lie or exaggerate about the matters in question? The accused?

·         Does the absence of information on the above fronts suggest anything to you? "

Ultimately, it's important to do everything in your power not to stop an investigation in its tracks when you encounter the "he said/she said" dilemma, says Speer.  When you cannot identify any direct witnesses to alleged incidents, don’t give up. 

Instead, focus on the "ripple effect," that is, on the events or circumstances that you would expect to see if the alleged incidents occurred (or, alternatively, did not occur). Doing so will bring you closer to a comfortable determination of whether sufficient evidence exists to support the complainant's, or the accused's version of events.

In tomorrow's Advisor, we'll get Speer's take on interviewing witnesses, and we'll take a look at a unique HR policy program that will help you avoid “he said/she said” situations and many other day-to-day problems.

When an employee does not perform well and a manager needs to put something in writing, whether for a performance review or between evaluations, attorney Marie Burke Kenny recommends keeping two acronyms in mind: CONTACT and SMART.

Kenny, appearing again in today's Advisor courtesy of the Employer Resource Institute^®, is a partner in the San Diego office of the law firm Luce, Forward, Hamilton & Scripps, LLP.

CONTACT Is Key

C stands for "comprehensive." Make sure the memo is comprehensive in describing the history of the issue and why now is the appropriate time to write up the employee for poor performance.

O stands for "objective." A supervisor should get HR's input on an evaluation. A second set of eyes helps the supervisor be more objective. Supervisors should also hold onto whatever they write for at least 24 hours because that break in time can change their perspective.

N is for "no charity." No charity means not being dishonest for the sake of complimenting the employee. It's always a good idea to identify something the employee is doing well, but you should not tell an employee that he or she is doing something well if it's not true. Kenny says she sees too many performance reviews and memos that are filled with charity, which employees use against the company down the line in lawsuits.

T stands for "timely." The feedback has to be timely. It's wrong to write up an employee for something that happened 6 months ago.

A stands for "accurate." Make sure the facts in an evaluation are absolutely correct and independently verifiable through calendars, appointments, and other sources.

C #2 stands for "candid." Be straightforward and honest about an employee's performance.

T stands for "training." Any time an employee is promoted from a subordinate to a supervisor position, there should be training on how to manage employees. It can save the company a lot of heartache and money in legal bills.

SMART Keeps You in Line

S stands for "specific." You should specify what the performance issue is. If your sales employee is not meeting his or her sales quota, says Kenny, you could say, "You've only hit 40 percent of your sales quota for the last two months. At the end of the next two months, we expect you to hit 65 percent."

M is for "measurable." Whatever you're asking of the employee must be measurable. For example:

·         Generate $50,000 in sales per month.

·         Meet all weekly report deadlines.

A stands for "achievable." Managers may be frustrated that a sales employee is not hitting his or her sales goals, but they let it slide for a few months. Then, all of a sudden, they tell the employee, "That's it! I let you slide for a few months; you've been at 50 percent of sales quota, I want to see you at 100 percent by the end of this month"--and it's halfway through the month. Is that really achievable? Not likely.

R is for "realistic," which ties in with achievable. A goal is not realistic if it's not achievable within the stated time frame.

T is for "turnaround.”  When do you expect to see the desired performance?

What's the most important letter? That's easy—T for "training." It's how you make all the others happen.  Your managers and supervisors need training on performance management. Come to think of it, they also need training on hiring and firing—and everything in between.

Training is especially critical for supervisors who are new to the job. They don’t know how to handle hiring, they don’t know how to handle other basic tasks like appraising and firing, and that’s to say nothing of handling intermittent leave 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.

A longtime employee who gets a "24-hour bug" every other week, usually on a sunny Friday. A sales rep who smashes quota one month but slacks off the next. The line supervisor who is "just a few minutes" late most days.  Recognize any of these folks? If you're in HR, you do.

Problem employees. You're not ready to fire them, but you certainly have to do something. In today's Advisor, courtesy of the Employer Resource Institute®, we get answers from Marie Burke Kenny, an experienced employment law attorney and a partner in the San Diego office of the law firm Luce, Forward, Hamilton & Scripps, LLP.

Do you have an overarching piece of advice to give to employers, right off the bat?

"Starting right at the interviewing stage, the most important thing employers and supervisors can do is to set clear expectations. Employees must understand in very specific terms what is expected of them.

"Many managers believe employees should 'just know' what's expected of them. That's a big mistake."

What should an employer do when an employee has been given clear expectations but still falls short?

"Early intervention is often the key. Supervisors tend to wait and stew on an issue, and by the time they raise it with the employee, they have become too upset about it."

Kenny says she often hears this from supervisors: "This employee is useless. From day 1, she's never done her job correctly." "So I say, 'It's been 13 months and you've never talked to her about this? Well, she must be doing something right.'

"Supervisors often respond by telling me, 'I don't want to put anything she's doing right in writing; I'm setting her up for termination.' That is a big mistake. Judges, juries, and arbitrators want to believe the employee was treated fairly, and they want to see documentation that illustrates that the supervisor gave the employee a reasonable and fair opportunity to turn work performance around."

Should an employer delve into the reasons an employee is not meeting expectations?

"Pursuing the reasons why is not the appropriate focus; instead, concentrate on what the performance issue is. Give the employee the opportunity to volunteer the information rather than say, for example, 'I know you're going through a divorce right now,' or 'Have you gone to a psychiatrist recently? You're acting manic.' Don't put yourself in a position in which you judge a person's life or diagnose his or her behaviors in the workplace.

"It's more appropriate to meet with the employee to discuss the performance issues and say, at the conclusion of the meeting, 'We've developed a performance action plan here—how can I help you succeed in this job?' That will usually unveil any issues on the employee's mind. The person might say, 'I need a leave of absence,' or 'I need to work part-time for a while,' or 'Actually, I'm seeing a psychiatrist and I'm on medication; we haven't fine-tuned the dosage yet.' Such comments trigger red flags about the employer's duty to accommodate a disability, but it's certainly not up to the supervisor to try to diagnose the reason for the employee's poor performance. Again, it's better to focus on the performance issue itself."

How do performance evaluations fit into all this?

"You never want surprises showing up in the written performance evaluation. I have heard supervisors say, 'This employee has been performing horribly for months, and I'm really keeping a detailed log on it. Boy, wait until he gets that performance evaluation—he's going to be blown out of the water.'

"Supervisors should not store up these comments. Instead, they should provide feedback on an ongoing basis so there are no surprises in the written performance evaluation."

There's little doubt that the most puzzling and frustrating trio in HR is FMLA, ADA, and Workers' Compensation. In today's Advisor, we'll answer key questions about the overlapping of the three laws.

What's the main issue with the workers’ compensation, FMLA, and ADA overlap?

If a worker is on leave because of a work-related injury that qualifies for workers’ compensation, the leave may also qualify as FMLA leave. Employers will generally want to designate qualified workers’ compensation leaves as FMLA leaves in order to begin exhausting the 12-week leave allotment. The work-related injury may also qualify the employee for protections under the ADA (e.g., if the injury substantially limits a major life activity), in which case, an accommodation may be needed.

Does a workers’ compensation injury always qualify for FMLA?

No. In order to constitute a serious health condition under the FMLA, the injury must meet FMLA criteria (e.g., it must require continuing medical treatment for a period of 3 or more days). An employee could sustain an injury at work that required a single medical visit—for example, a minor sprain. Workers’ compensation would probably apply and cover the employee’s medical expenses but, unless the sprain were severe enough to require continued medical treatment and to require that the employee be away from work for 3 or more days, it would not qualify for FMLA.

Does a workers’ compensation injury or illness or an FMLA serious health condition necessarily constitute an ADA disability?

No. An ADA disability is an impairment that “substantially limits one or more major life activities” (caring for oneself, performing manual tasks, walking, seeing, hearing, sitting, standing, bending, lifting, speaking, breathing, learning, and working). It also includes cognitive skills and the capacity to concentrate, remember, and reason, or having a record of such an impairment or being regarded as having such an impairment.

Many workers’ compensation injuries are not “disabilities” under the ADA, meaning that they may not substantially limit a worker’s ability to perform a major life activity.

What does it mean that workers’ compensation and FMLA leave run concurrently?

If the employer designates a workers’ compensation leave as an FMLA leave as well, it means that the normally unpaid FMLA leave will probably be paid to some degree because wage replacement will be paid by workers’ compensation. It also means that the person may not be fired for absence, even if the person is out of work beyond the employer’s cut-off absence day.

Can the employer fire the worker out on leave?

Workers’ compensation:  In almost all states, it is illegal to fire an employee expressly for filing for or using workers’ compensation benefits. On the other hand, employers may fire an employee out on workers’ compensation for violating a neutral and consistently enforced employee absence program or if the employee is not able to do his or her job.

A few states require that the employer make every effort to reinstate the employee to his or her former job or an equivalent job if possible. Employers should check the law in their own state.

FMLA: FMLA guarantees the employee’s right to restoration to the same job or an equivalent job when the employee returns to work. Additionally, time out on FMLA leave may not be counted as absence at all. The FMLA also prohibits employers from retaliating against employees for taking an FMLA leave. Therefore, if an employer terminates an employee during or shortly after an FMLA leave, the employer runs the risk that the termination will be perceived to be retaliatory, exposing the employer to potential liability.

ADA:  A qualified individual with a disability is entitled to return to the same or an equivalent position unless the employer demonstrates that holding the position open would impose an undue hardship. An employer may not apply a “no-fault” leave policy (under which employees are automatically terminated after they have been on leave for a certain period of time) to an employee with a disability who needs leave beyond the set period. Instead, the employer must modify its no-fault leave policy to provide the employee with the additional leave, unless it can show that an undue hardship would result.

No matter what you do, your company is going to be featured on blogs, says Alison Davis. "So you have a choice as a company—either you lay out the story from your perspective, or you let someone else write it."

Davis, a communications consultant, recommends a thorough and proactive approach to social media on the Web. Davis is CEO of Davis & Company (davisandco.com). She made her comments at a recent webinar.

The first step is to set up collaboration with your communications group. Consider the following:

Monitor ongoing Web activity. Remind your communications people to be on the lookout for negative blogging or other social media problems. There are services and software that help you to troll the Web to see what is brewing out there, Davis says.

Develop a response strategy. Again, work with communications. If X, how will we respond? "We need to be out front on this. We need to tell our side of the story. Don't let someone else tell it."

Determine everyone's roles. In particular, clarify roles of senior management and "spokespersons."

Decide on your stance. You might want to be aggressive—what this person is saying is not true. Or you might want a gentler approach—this is our position on this topic. Or you might want to ignore the situation entirely.

Take a holistic approach. Davis suggests that a social media presence that displays a positive impression of your organization will counteract the negative that's bound to be out there. For example, says Davis, check out these possibilities:

·         Ernst & Young^®—Facebook page. It is designed for recruiting. Employees talk about life at the company and answer questions. The overall impression is that it's a positive site to visit, you can get your questions answered, and you'll be convinced that this is a great place to work. "It is a great balancing force—all these positive voices of former employees," says Davis.

·         Best Buy^®—their site just for store associates, Blue Shirt Nation, that establishes a sense of community. It's an interesting approach, Davis says. You can make connections, can ask other employees questions, etc. It's very proactive and forward thinking, Davis believes.

·         KMPG^®—their program to stay in touch with former employees. A number of firms are doing this, Davis says. The former employee could be a client, could recommend you, or could come back and work for you.

Balance freedom of speech and company guidelines. There's no one right answer, Davis says. How much freedom do you want people to have while making sure that they are using time appropriately? You want to be neither too restrictive nor too loose.

What sort of culture do you have? Casual golf shirt, don't monitor lunch hours, or do you have more "rules and guidelines and boundaries"? The culture can be reflected in your social media policy. "Make it fit," Davis says.

Still not completely sure how your organization can use social media? Don't know what to tweet or when? Have specific questions about how to go about it? You're in luck, because there's a BLR-sponsored webinar next week to answer your questions about Twitter and other social media sites.

More and more Americans and their employers are hopping on the Twitter bandwagon. A recent survey by Jobvite.com revealed that 80 percent of the organizations polled plan to use this social networking tool to recruit talent, with 42 percent of recruiters saying they already tweet to attract and hire candidates.

Couple those statistics with a recent Challenger, Gray & Christmas report indicating that Twitter is one of the preeminent tools jobseekers are using to find jobs—and it's no wonder that Twitter is so hot. 

Social media usage is coming like a tidal wave, and employers need to be thinking about their offense—how to present themselves online—and their defense—how to respond to negative expressions about their company on blogs and rant sites.

Alison Davis, a communications consultant, recommends a thorough and proactive approach. Davis is CEO of Davis & Company (davisandco.com). She made her comments at a recent webinar.

Davis finds that employers tend to divide into three groups:

1.     Those not using social media and would rather not

2.     Those who are planning and starting to use social media

3.     Those who are actually using social media

Davis says that most of her clients are in the middle group—feeling their way along. She strongly recommends that those in the first group, not even considering social media, start to get involved now.

What Is Social Media?

Davis points out that traditional media—newspapers, TV, radio—are one-way streets: They produce, package, and present content, but the audience doesn't participate. Whereas in social media, it's a two-way street and everyone gets to play. It's fully participative.

"With social media, there is listening, learning, and sharing," Davis says. "The spectrum is vast. And it's growing so fast and expanding so fast, it is hard to keep up.

"You've got sites like Facebook for everyone, and then you've got specific, narrow networks, for example, for people who love to knit. You've got long blogs and then things like Twitter, the microblog where all messages are 140 characters or less."

The underlying context is that individual users can share what they are doing, what they think, their videos, photos, conversations, and comments.

Who Is Using It

Davis quotes a Pew Research Center survey that found the following percentages of usage over various age groups:

What's surprising is how fast the usage by older groups is growing, Davis notes.

Another survey, by global IT consulting firm Avanade, found that 60% of top 500 executives said that social media was not on their agenda. Their reasons were:

·         Security: 75%

·         Senior apathy: 57%

·         Fear of unproven technologies: 58%

Another survey of 500 executives, done for Deloitte, found the following:

·         31% say their CEO is on Facebook

·         30% say social networking is part of their business and operations strategy

·         29% utilize social networking as a tool to manage and build their brand

·         23% utilize social networking as an internal communications tool

·         23% utilize social media to recruit employees

·         21% utilize social media to engage employees

·         18% have an employee-created Facebook group

·         13% post corporate videos on YouTube

Deloitte also did an interesting survey that focused on employees.

·         74% agreed that it's easy to damage a company's reputation on social media

·         53% said their Facebook pages are none of employers' business

·         24% don't even know if their company has a policy

·         49% say a policy would not change how they behave

The last statistic is perhaps the most interesting, Davis says. In general, she finds a lot of confusion about social media policies. People feel that the policy applies only to what they do at work and not what happens at home or away from the office. And, apparently, about half of employees, as indicated above, just don't care what the policy says. 

What Are the Challenges and Concerns?

Davis suggests that the biggest concern is negative publicity that could harm the company's reputation, result in loss of sales, discourage top candidates from applying to the company, and reduce morale within the ranks.

A secondary concern is the legal ramifications associated with potentially violating employees' privacy either with online searches or internal corporate restrictions.

Are your employees happy? Probably not, says Dave Anderson, an author and lecturer and president of Dave Anderson's Learn to Lead. The most recent survey by the Conference Board suggests that only 45 percent of Americans are satisfied with their work—an all-time low since the study was established in 1987. And unhappiness on the job has some very real consequences.

It is impossible to create a healthy company with unhealthy employees. Make no mistake: Unhappy employees are unhealthy employees—psychologically, emotionally, and sometimes even physically. Their misery infects everything they do. And it certainly prevents them from working at top capacity.

The good news is that great leaders can inspire and motivate their employees and help them find renewed passion for their work—even in a less-than-thriving economy.

1. Redefine the Vision for 2010

Get clear about where you're going, and enroll others in the campaign. It's time for leaders to pull those dreams out of the mothballs and create a new, bold vision for their organization. They should also redefine performance and behavioral expectations (core values) for their people. These aspects of business are often watered down or completely forgotten about during a downturn. But the fact is, it motivates people to know where they're going and what's in it for them when they reach the destination—and what is expected of them along the way.

Without clarity of vision, core values, and performance expectations, you have chaos in the cubicles. People run on their own agendas—and unwittingly work against one another—because the leader failed to create a common vision that unites the team.

2. Stop Micromanaging

The tendency during a downturn is to begin nitpicking and second-guessing your people, making every decision and coming up with every idea yourself. This sort of micromanagement saps the energy and morale from your team. Increase the latitude and discretion of your best people and watch their motivation and creativity levels soar!

3. Celebrate Singles

Business leaders love to celebrate the homeruns in their business. But in a downturn, there are fewer "big hits" to cheer, and much time can elapse between such occasions. Begin looking for the "little" things that people do right, and that go right, and celebrate those. Reinforce them publicly, quickly, and loudly.

4. Lead from the Front

Get out of your office and reengage with your people and your customers. Become more visible, accessible, instructional, and motivational, and eventually you'll become unstoppable. Ask more questions and give fewer answers. Questions engage employees and show that you value them.

Quite frankly, the biggest morale problem in most businesses today is rooted in the fact that the leaders of the organization have stopped leading. Instead, they tweak, tinker, tamper, manage, massage, maintain, administer, and preside—but have no positive impact on their people or culture. This is why the old saw is true: "A fish rots at the head."

5. Set Shorter-Term Goals

Long-term goals are less relevant during a downturn because of uncertainty. Besides, when things are tough, you need to see something happen now. Shorter-term goals—daily goals—narrow an employee's focus and cause him or her to get into motion and take action today.

The additional structure that daily goals bring will create positive motion and employee energy that evokes emotion and shakes out apathy.

Dave Anderson is the author of the books If You Don't Make Waves You'll Drown, Up Your Business, and How to Run Your Business by THE BOOK: A Biblical Blueprint to Bless Your Business (Details at LearntoLead.com).

A lot of new supervisors fail, but it's usually not their fault. They simply don't know how to be a supervisor until you teach them, say Jonna Contacos-Sawyer and Polly Heeter Wright.

Contacos-Sawyer and Wright, both with HR Consultants, Inc., of Johnstown, Pennsylvania, suggest the following outline for briefing new supervisors about compliance. They gave their tips at a recent audio conference sponsored by BLR®.

Compliance is a very broad area that needs special in-depth training, says Wright. Supervisors have to have some knowledge of federal, state, and local laws, as well as be aware of the organization's policies.

A Big Change in Status

The first thing for supervisors to know is that their status brings a big change—now their actions and inactions are attributable to the organization. Once employees tell their supervisor, the organization is legally on notice.

It's particularly important to stress that inaction is often as bad as action, says Wright.  When supervisors don't pass information on to their managers or HR, it can cause real problems.

Discrimination

First, your training for supervisors must cover applicable laws, says Wright. There are the main federal statutes, as well as state and local statutes, in the areas of:

·         Title VII of the Civil Rights Act

·         Pregnancy Discrimination Act (PDA)

·         Americans with Disabilities Act (ADA)

·         Equal Pay Act

·         Age Discrimination in Employment Act  (ADEA)

·         Uniformed Services Employment and Reemployment Rights Act (USERRA)

Be sure to cover protected classes:

·         Race

·         Color

·         Religion

·         Gender

·         Age

·         National origin

·         Disability

·         Military status

Also consider other classes, such as sexual orientation, that may be protected by state and local law, and also situations that may result in quasi-protected status, such as employees who have recently complained or filed a charge or suit.

Supervisors need to know that they may not allow harassment or a harassing environment in their departments. Also, let supervisors know discrimination doesn't have to be overt to be a problem. For example, not providing equal access to training and other development opportunities is discriminatory.

Compensation

Brief new supervisors on the Fair Labor Standards Act (FLSA) and state wage and hour laws. Be sure to mention two particularly troublesome areas: work off the clock, and having employees volunteer their time. "You can't do either," Wright says.

Another common mistake is asking employees to make up hours in a different workweek. That's also forbidden.

Unemployment Benefits

Unemployment issues often crop up because supervisors haven't properly documented performance issues or other reasons for termination. Typically, says Wright, the reason given for the termination is poor performance. Then you look at the performance appraisals, and they all say "meets expectations" with no comments.

Workers' Compensation

Wright often sees a failure to take all injuries seriously. In some cases, where there are incentives for no lost days, workers will try to cover up injuries. Your new supervisors must be trained to be sure that HR or safety supervisors know the details about accidents on the job.

FMLA/Leave of Absence

Failure to document requests for leave and the reasons the employee is requesting the leave is another frequent problem for new supervisors. When they find themselves in the "Bermuda Triangle" of the Family and Medical Leave Act (FMLA), ADA, and workers' compensation, they should involve HR.  It's too complex for them to deal with on their own.

Discipline

Wright says, "Tell supervisors that the first thing HR will ask when you want to discipline is, 'What's your reason?'. If you don't have a reason, there will be suspicion that there might be a forbidden reason, like discrimination."

When there is a rule violation, supervisors must be trained to properly inform an employee of the rule that has been violated and what performance expectations are, says Wright. Follow progressive discipline, where appropriate, and warn the person of future consequences. It's also important to be consistent with discipline, Wright adds.

Performance Appraisal

It's important to accurately assess performance on an ongoing basis. "Avoid rating errors," Wright says. As mentioned above, it's difficult to claim poor performance if the documents the supervisor signed all say "satisfactory."

There's an "obesity epidemic" in the U.S., and that means there's probably one at your workplace, too. Obesity is a natural target for wellness programs. The effects of obesity—from cardiac problems to diabetes—are dire, but they are reversible through exercise, diet, and nutrition.

What works best to reduce obesity? The Centers for Disease Control and Prevention (CDC) set out to find out what works in weight control. They identified six promising strategies and then developed a program, LEAN Works!.  (Check out their program at cdc.gov/leanworks.)

"LEAN" stands for Leading Employees to Activity and Nutrition. It's a free Web-based resource that offers interactive tools and evidence-based resources to design effective worksite obesity prevention and control programs. It includes an obesity cost calculator to estimate how much obesity is costing your company and how much savings your company could realize with different workplace interventions.

The program is based on research findings from the Guide to Community Preventive Services. The Guide summarizes what is known about the effectiveness, economic efficiency, and feasibility of interventions to promote community health and prevent disease.

Promising practices are strategies delivered to employees through their employer that demonstrate a reduction in a "weight-related outcome" (i.e., weight, body mass index (BMI), body fat, waist circumference, waist-to-hip ratio) or prevalence of individuals who are overweight or obese.

As you can see in this chart, CDC divides its promising practices into three groups: environmental and policy, informational and educational, and behavioral interventions.

Which of these promising practices deserve a place in your wellness program? Here's some more detail on what CDC found.

Corporate wellness programs show great ROI. And they are win-win—employees feel better and are more productive, and employers reap the benefits.

Environmental and Policy Strategies

Environmental and policy strategies address the entire workforce or large groups of workers (not individuals) and target physical and organizational structures to develop worksite policies that support healthy behaviors. They are likely to be sustained for a longer period of time than individually oriented strategies.

Promising Practice #1: Enhanced Access to Opportunities for Physical Activity Combined with Health Education

Enhanced access to opportunities for physical activity combined with health education refers to practices that enable or facilitate access to physical activity programs, workshops, classes, and other resources in a worksite setting.

Such practices can include:

·         Developing walking trails,

·         Building a fitness center at the worksite, or

·         Creating a par course (fitness trail).

CDC found five studies that evaluated the effectiveness of enhanced access. The studies' mean weight reduction was 3.24 percent.

Informational and Educational Strategies

Informational and educational strategies focus on the provision of information designed to increase awareness and knowledge as a requisite to motivate behavioral change.

These strategies present both general health information, including information about weight loss and maintenance, chronic disease prevention and risk reduction, and specific information about physical activity and nutrition.

Promising Practice #2: Exercise Prescriptions Alone

Exercise prescriptions involve a planned or structured physical activity regimen given to an individual or group that includes specific recommendations for the frequency, intensity, and type of exercise.

The programs reviewed typically recruit participants into voluntary groups at the worksites. After completing physical fitness evaluations, participants are placed in exercise training programs of mild, moderate, or vigorous intensity.

Promising Practice #3: Multi-component Educational Practices

Multi-component educational practices are aimed at providing information, addressing health promotion (e.g., healthy lifestyles, physical activity, and nutrition), and risk reduction (e.g., weight management, cardiovascular risks, and diabetes risks).

In addition to health education sessions, these programs incorporated components such as exercise prescription, nutrition prescription, and small media (e.g., brochures, pamphlets, electronic messages).

CDC found 24 studies that evaluated the effectiveness of multi-component programs, 17 of which measured weight. They showed a median loss of 5.2 pounds.

The CDC's strategies for dealing with obesity. Today we take a look at a unique wellness guide that could get you a 300% return on your investment.

Of course, it's not easy for most people to diet and lose weight, and then keep it off. Behavioral interventions are often the key to success. Behavioral strategies for obesity prevention and control focus on teaching behavioral management skills and structuring the social environment to provide support for people trying to initiate or maintain weight change.

Strategies often include individual or group behavioral counseling, and often involve co-workers, family members, and other intermediaries who are part of an individual's social environment.

Behavioral methods include:

·         Modeling or demonstration

·         Participatory skill development

·         Individual benchmarking (i.e., goal setting and achievement)

·         Providing feedback

·         Providing incentives or disincentives

·         Providing materials necessary to enhance the desired behavior (e.g., pedometers, food journals)

Promising Practice #4: Weight-loss Competitions and Incentives

Competitions and incentives consist of rewards for losing weight, making behavioral changes, increasing physical activity, or improving nutrition. The rewards can be in-kind, financial, or just the pride of winning. The incentives can vary in size and by type and can be used for:

·         Screening

·         Enrollment

·         Compliance (i.e., staying in the program)

·         Completing the program

·         Maintenance of the changes after completing the program

Promising Practice #5: Behavioral Practices with Incentives

Behavioral practices teach behavioral management skills, modeling or demonstration, participatory skill development, and individual benchmarking (i.e., goal setting and achievement), provide feedback, and build social support for behavioral patterns.

Such practices are complemented by in-kind or financial incentives, typically given for participation and completing the program.

Promising Practice #6: Behavioral Practices Without Incentives

These programs offer the same types of behavioral skills development as the programs described above, but do not offer incentives. The typical behavioral practice consisted of one-on-one or group consultations with personalized goals or plans of action to improve employees' nutrition, increase their physical activity, or help them lose weight.

There's little doubt that the programming described above can help with obesity. And that's an important part of a complete wellness program.

Well-structured and well-run wellness programs generate ROI of up to 300 percent—music to management’s ears! But the key words are “well-structured” and “well-run.” Poorly structured programs just spin their wheels—no health benefit and no positive ROI, either.

Consider this scenario: An employee is a major problem. Regularly late. Misses deadlines. Difficult to deal with. Her supervisors have given good counseling along the way. The file is in good shape, clearly documenting the problem and what has been done. HR is involved, and the plan is to terminate the employee. A meeting has been scheduled.

Then, out of the blue before the meeting can be held, she files a harassment suit against someone else in the company, an employee who was in no way involved in the original problem.

Can you go ahead with the termination? What should you do if you want to do so?

Retaliation fears

That was the question posed by Tara Bedeau, of the San Francisco office of the Littler Mendelson law firm, at BLR’s first annual National Employment Law Update, held November 2008 in Orlando.

Members of the audience had various suggestions:

·         "Check the file."

·         "Continue the investigation."

·         "Put her on notice."

But Bedeau said that the key to whether you can consider going ahead is simple. First of all, are you certain there is no connection between the planned discipline and the harassment claim? Secondly, "How have you treated other similarly situated people?" she asked. If the documentation in this case is good, proving that there is no connection and that you’ve treated other employees the same way, it may be possible to go ahead with your plans.

"Consistency is the key," she said.

The claim of harassment elevates the risks, but Bedeau cautioned that you must still manage performance. You have to be confident that the discipline is totally unrelated to the harassment claim and that it is consistent with what you’ve done in the past. You still have a duty to investigate her charge and, if it is found to have merit, to take action against the offender. There is some risk.

Retaliation

The topic of Bedeau’s presentation was "Preventing Unlawful Retaliation: Making Sure You're Headed in the Right Direction." And, as she listed the dozens of laws prohibiting retaliation, she made it clear that retaliation claims are serious. There have been numerous cases when employees have sued, lost on their original claim, but won large penalties because of retaliation.

Tips

Bedeau offered these tips for avoiding retaliation claims:

·         Pay attention (to any protected activity).

·         Preempt retaliation claims by quickly and effectively responding to all complaints of unlawful conduct or illegal activity.

·         Have an independent, competent professional thoroughly investigate complaints.

·         With retaliation claims, pay careful attention to the chronology of events, especially "action-reaction."

·         Follow up and monitor situations.

·         Make sure to deal separately with any additional issue that might arise during an investigation (e.g., a complainant’s performance problem or misconduct). Mixing other issues with the complaint may set the stage for a retaliation claim.

·         Never threaten retaliation against an employee—even in the mildest form.

·         Avoid any negative emotional expressions about an employee’s complaint, in statements or in e-mail.

·         Respond quickly and thoroughly to any complaint of unlawfulness or illegality.

·         Before you act against an employee who has engaged in protected activity, stop and review all of the facts.

·         Have a good anti-retaliation policy that is well publicized.

·         Work with HR and legal.

·         Be wary of requiring a complainant to transfer or change jobs to resolve a harassment situation.

·         Document. Good documentation is systematic, ongoing, detailed, and accurate.

·         Train management.

Remember that whistleblowers are heroes to the public. Public sentiment will be against you if the case becomes public.

Tara Bedeau is an attorney with the San Francisco office of Littler Mendelson, a well-known and highly respected employment law firm. Her practice consists almost entirely of training HR and other company managers in employment-related matters.

Our experts recommended an exit interview for every separating employee. Today we'll look at two reasons why exit interviews are important from a legal standpoint, and we'll take a look at an extraordinary program that will help you generate an exit interview protocol and dozens of other critical HR policies.

A well-thought-out exit interview can help an employer:

·         Avert serious lawsuits;

·         Gather critical feedback about salaries, morale, and management practices;

·         Determine the causes of turnover;

·         Gain information required by law; and

·         Take care of necessary administrative actions.

The main purpose is to give departing employees an opportunity to express any residual feelings—positive or negative—that they have about their departure, and to offer their suggestions for how the job or the work environment might be improved.

Some companies draw a distinction between exit interviews (for employees who have terminated voluntarily) and termination interviews (for employees who have been dismissed). From the interviewer’s point of view, the two experiences can be quite different.

In a voluntary situation, a properly conducted interview and signed statement creates a formal record of the departing employee’s reason for leaving, so that he or she cannot later allege some form of discrimination or harassment.

In an involuntary situation, the exit interview may help avoid costly legal action by a disgruntled employee (or, other damaging or detrimental actions).

In some cases, simply providing the employee with an opportunity to talk about work issues with a professional, concerned interviewer may be enough to vent negative feelings and thwart the desire to file a lawsuit. Even if it doesn’t, at least management won’t be surprised when a claim is filed.

Some Typical Exit Interview Questions

·         Why are you leaving?

·         What did you like most and least about the job?

·         Did the job give you an opportunity to make adequate use of your skills and abilities?

·         How do you feel about your salary and the company’s salary structure?  Were you paid fairly?

·         How do you feel about the company’s benefits and incentives programs?

·         What did you think about the performance assessment process? Did you know where you stood in your supervisor’s eyes?

·         How do you feel about the quality of the supervision you received on the job?  Were you watched too closely? Were you given clear instructions and expectations?

·         Do you feel your work was appreciated?

·         How did you feel about your working conditions?

·         Did you receive adequate training?

·         How would you rate this company as a place to work?  Would you ever want to work here again?

If the exit interview indicates your company discriminated against or unjustly dismissed an employee, you should take action to reduce your liability. Immediately notify top management and your employment attorney. Remember, you can be found personally liable for discrimination and unjust dismissal.

How about your policies on termination and exit interviews? They’re probably among 50 or so of your policies that should be updated (or maybe written?). It's easy to let it slide, but you can't afford to backburner work on your policies—they're your only hope for consistent and compliant management that avoids lawsuits.

The way you treat the people you terminate can make the difference between an ex-employee who is upset but moving on, and an ex-employee who is angry and calling 1-800-LAWYER.

Lin Grensing-Pophal, writing in Human Resource Executive, cited several tales that highlight what disgruntled employees might do:

·         One made a false accusation of harassment that took months to unravel.

·         Another flipped off a switch that the remaining employees didn't know about, thus disabling the corporate computer system and causing IT experts to spend 2 weeks chasing down what they thought was a computer virus.

·         A third implanted a virus into his company's computer system that was timed to take effect 2 weeks after the employee departed.

And the list goes on—file deletions, theft of proprietary information, etc. Anecdotal evidence suggests that many of these egregious acts would not ever have taken place if the people involved had just been treated with respect during their terminations.

A recent article in Corporate Counsel points to another avenue of employee reprisal—damaging claims of whistleblowing retaliation and/or wrongful discharge. In the article, attorneys Russell Hayman and Jon Dean note that lawsuits which are in reality simple claims of wrongful discharge take on an aura of respectability when attached to a charge of whistleblowing or other retaliation.

Hayman and Dean offer the following suggestions for avoiding such claims:

Treat outgoing employees with dignity and respect at all times. It's not hard to do and it will pay off handsomely.

Have an internal company policy in place on how to handle terminations. You want departing employees treated according to a set, consistently applied process, the attorneys say.

Conduct an effective and extensive exit interview. Do the interview for all departing employees, whether the separations are voluntary or involuntary. Have two people perform the interview if possible, so there are two witnesses to the interview.

If allegations of wrongdoing surface, take them seriously. Inform management, and conduct an investigation. Demonstrate that the company takes all such concerns seriously and is committed to compliance.

Document all actions you take in responding to compliance concerns. If you don't act after you are on notice of a problem, your actions will become "willful" violations, the attorneys note.

Take corrective action if allegations prove to be true, or be prepared to show that the allegations are false. This minimizes your exposure to later claims of retaliation. Your careful attention to investigating mitigates any claim that the employer was "motivated" to terminate the employee, say Hayman and Dean.

You Can't Single Out the Bad Eggs

Many employers believe that they can identify the most likely-to-sue employees, and so they take preventive actions with respect to those particular employees only. That's a mistake, say Hayman and Dean. First of all, your suspicions won't be accurate, because it's hard to predict who will sue and who will not. And secondly, consistency is important, so it's best to treat all employees the same.

Hayman and Dean are partners at the Los Angeles office of the law firm  McDermott Will & Emery.

In yesterday's Advisor, we covered legal issues related to contact management, or how to avoid turning "contacts" into "applicants," courtesy of Peopleclick ^® Research Institute's Lisa D. Grant Harpe. Today, we'll cover the rest of her discussion and take a look at a unique training system for supervisors and managers.

Harpe, an industrial psychologist and senior consultant at the Institute, is the author of Peopleclick's e-book, Using Contact Management in Compliance with Federal Regulations.

Criterion 3—The contact meets basic qualifications

Until you have a specific opening in mind, you won’t really know whether an individual meets the basic qualifications for a position. However, since you will likely use contact management to facilitate communication with individuals you have identified as having high potential, these contacts likely meet some standard of qualifications, says Harpe.

The more you screen individuals before entering them into your contact management database, she says, the more likely they are to meet the basic qualifications of positions that you fill. It requires a little bit of thought before you can definitively say that a contact does or does not meet criterion 3, she notes.

Criterion 4—The individual has not withdrawn from consideration

Contacts who withdraw from consideration are no longer applicants.

If contacts meet all four criteria for an Internet applicant, you are required to solicit race and gender information from them as well as fulfill extensive recordkeeping and reporting requirements.

The safest way to avoid turning your "contacts" into "applicants" is to avoid searching on qualifications, Harpe says. "You can search on preferences without triggering recordkeeping and reporting requirements. You may also conduct general searches on qualifications to fill pipeline requisitions, not particular positions," says Harpe.

If you use contact management to send individuals general information, such as newsletters, articles of interest, or notices about upcoming events, or if you send them an invitation to visit the company career site and ask them to look for positions that might interest them, you are OK. These are not contacts about a particular position, Harpe says.

Getting a little closer to that line, you may send a request to a contact to look for a certain type of position opening, such as retail manager positions, which may be open in the near future. Because you have not indicated a particular position (e.g., manager of the bakery department at the Lakeland Heights store), you are OK.

Harpe offers one important caveat: If people from your contacts database are given preferential treatment in the hiring process, and your contacts are predominantly of one race or gender, the tool could be seen as a means to give preferential treatment based on race or gender.

"Therefore, it is critical that all jobseekers for each requisition are given equal consideration and go through the same process. If the contacts are truly more qualified, they should quickly rise to the top during the standard screening process," Harpe says.

If you maintain a formal contact management program, or even an informal one, your managers and supervisors need training on how to manage it and your hiring system. Come to think of it, they also need training on your firing system—and everything in between.

Training is especially critical for supervisors who are new to the job. They don’t know how to handle hiring, they don’t know how to handle other basic tasks like appraising and firing, and that’s to say nothing of handling intermittent leave 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.

Contact management seems like a no-brainer—maintain contact with promising candidates for whom you have no current opening—but there's a legal line you don't want to cross, says Peopleclick's Lisa D. Grant Harpe.

Harpe, an industrial psychologist and senior consultant at the Peopleclick® Research Institute, is the author of Peopleclick's e-book, Using Contact Management in Compliance with Federal Regulations.

Contact management systems typically:

·         Collect information—Capture contact data and information about job interests and experience, etc.

·         Maintain a diary—Record a complete history of interactions with each contact.

·         Permit pooling—Allow you to categorize contacts in various ways.

·         Support campaigns—Facilitate reaching out to contacts in a structured, scheduled manner.

·         Offer alerts and notifications—Let you set reminders for yourself and others.

·         Perform administrative tasks—Permit you to set configuration, access, etc.

The Legal Challenge

The tricky part of contact management is that there's a thin line between "contact" management and "applicant" management. "Contacts" don't fall under federal recordkeeping rules, while "applicants" do.

So when does a contact become an applicant? (And thus require that you solicit race and gender information and maintain records.)

In general, says Harpe, if you use contact management as a tool, similar to your Rolodex™ or Outlook^®, to simply maintain general information about individuals without reviewing their qualifications for the purpose of filling a position, federal regulations do not apply and you can avoid all of the related recordkeeping and reporting regulations.

However, if you start using your contact management system to:

·         Store résumés,

·         Search for individuals with certain job-related qualifications, or

·         Review the resumes or other documents containing information about qualifications for a position, you start to cross the line and may be required to maintain certain records to comply with federal regulations.

To help avoid this blurry line, it is a best practice to keep your contact management tools physically separate from your applicant tracking system (ATS), Harpe says.

Harpe finds the official definition of "Internet applicant" to be the most useful to help understand when contacts become applicants. The definition applies to all federal contractors and is enforced by the Office of Federal Contract Compliance Programs (OFCCP).

To be considered an Internet applicant, individuals must meet four criteria:

1.     The individual expresses interest in employment through the Internet or related data technologies.

2.     The employer considers the individual for a particular position.

3.     The individual meets the basic qualifications for the position.

4.     The individual does not withdraw from consideration before  receiving an offer.

Criterion 1—Contacts who have expressed interest in employment

One of the most common reasons to implement a contact management tool is to help you retain information about individuals who are already employed or not currently seeking a job opportunity. These folks have not expressed interest in a position with your company and do not meet criterion 1, says Harpe.

However, another great reason to use contact management is to store information for your runner-ups, people who have applied for a position within your company and were not hired. These contacts would meet criterion 1.

(Remember that an individual must meet all four criteria to be considered an Internet applicant.)

Criterion 2—Contacts who have been considered for a particular position

Recruiters often conduct exploratory searches in the contact management database to see how many contacts are located in a geographic region, interested in retail work, willing to relocate, etc., all without having a particular position in mind. That's OK and doesn't meet criterion 2.

The line gets a little blurry if you start searching your contacts to find potential jobseekers for a pipeline requisition, such as chemists or retail managers in general. Often, pipeline requisitions are used to store information about jobseekers with specific qualifications that are hard to find or to store jobseekers for positions that are constantly open. If you do not have a particular position in mind, you do not meet criterion 2.

If you search contacts using qualifications required for a specific current or future opening (e.g., a doctoral degree or chemistry of clinical background), these contacts would meet criterion 2. Also, if you start opening resumes, if you store these in the contact management database, and review qualifications to fill a particular position, these contacts would meet criterion 2.

In yesterday's Advisor, we entered the Bermuda Triangle of HR—the dangerous waters where the Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), and Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) intersect. Today, we'll see what the Employee Retirement Income Security Act (ERISA) and Fair Labor Standards Act (FLSA) have to do with the FMLA, and we'll introduce a comprehensive program that will keep your FMLA hassles to a minimum.

FMLA and ERISA

The FMLA allows for the discontinuation of employee health benefits during a leave if the employee fails to pay his or her portion of the premium. However, the FMLA requires that any discontinued benefits provided pursuant to an employee benefit plan, as defined by ERISA, be resumed when an employee returns from FMLA leave, without any qualifying period.

This requirement makes it necessary for employers to review their benefit plans to ensure that an employee returning from leave will be able to be fully reinstated to all benefits. For example, it may be necessary for the employer to continue life insurance for an employee on FMLA leave to avoid the employee’s having to pass a new physical for the life insurance carrier.

In addition, any period of FMLA leave must be treated as continued service for purposes of vesting and eligibility to participate in pension and other retirement plans.

FLSA and FMLA

The FMLA and the FLSA interact in two important ways. First, the FMLA provides a special FLSA exemption for salaried, exempt employees. Second, the FMLA requires that FMLA-covered entities maintain records in accordance with the FLSA.

Exemption for Salaried Employees

Normally, employers may not deduct hourly amounts from exempt employees' salaries. The FMLA provides an exception, stating that an employer may deduct hourly amounts from an employee's salary when providing FMLA leave without affecting the employee's exempt status under the FLSA.

Recordkeeping

The burden of proof is on the employer to prove an employee is ineligible for leave because he or she has not worked the requisite 1,250 hours. In determining an employee’s eligibility for leave under the FMLA, the appropriate measure of “hours of service” is the standard used by the FLSA that considers only actual hours worked by the employee.

If you do not keep time records, you may have a difficult time establishing your case. To this end, the FMLA requires employers to make, keep, and preserve records related to their obligations under the FMLA, according to the recordkeeping requirements of the FLSA.

FMLA hassles—they just won't go away, will they? And, now, of course, there are all the new FMLA responsibilities—like military leave and reinstatement.  Still a little shell-shocked?

It's an almost overwhelming task to keep up with the FMLA, let alone get in compliance with the far-reaching changes. You're going to need a helping hand.

Much has been written about the Bermuda Triangle of Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), and Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), but that's not the only triangle that makes FMLA compliance tricky. Compliance gets even murkier when the ramifications of the Pregnancy Discrimination Act (PDA), ADA, and COBRA are factored in.

FMLA regulations specify that the FMLA does not override other applicable laws, and that where multiple laws apply to a leave situation, FMLA should be coordinated with the other applicable laws. Understanding which laws apply in a given situation, and how they interact, can be complex and confusing, to say the least. Here's a rundown.

The Pregnancy Discrimination Act and FMLA

The PDA, which amends Title VII of the Civil Rights Act of 1964, makes it unlawful to fire, fail to hire, refuse to promote, or otherwise discriminate against a woman because she is pregnant.

The basic principle behind the PDA is that women affected by pregnancy and related conditions must be treated the same as other applicants and employees on the basis of their ability or inability to work.

As regards FMLA leave, this means:

·         A pregnant woman may not be forced to go on leave as long as she can still work.

·         If other employees who take disability leave are entitled to get their jobs back, so are women who have been unable to work because of pregnancy.

·         If pregnant employees are treated differently with respect to their FMLA leave than nonpregnant employees who request leave because of a serious health condition, you may be guilty of discrimination.

·         If a woman is terminated allegedly because of pregnancy or the birth of a child, she may be able to sue under both FMLA and PDA.

Please keep in mind that some states have laws that mandate maternity leave.

COBRA and FMLA

COBRA contains rules regarding employees’ rights to healthcare coverage.

The major question for employers who must comply with both COBRA and FMLA is when COBRA benefits begin. According to guidance issued by the Internal Revenue Service (IRS Notice 94-103), taking leave under the FMLA does not constitute a COBRA-qualifying event setting off COBRA’s notification requirements. A qualifying event does occur if the following conditions are met:

·         The employee (or spouse or dependent) is covered by the employer’s group health plan on the day before the first day of FMLA leave,

·         The employee does not return to work at the end of the FMLA leave, and

·         The employee would, in the absence of COBRA, lose coverage under the health plan before the end of the maximum coverage period provided by COBRA.

If these three conditions are met, a qualifying event occurs on the last day of FMLA leave. The maximum COBRA coverage period is generally measured from the date of this qualifying event. If coverage would be lost on a later date, the maximum COBRA coverage period would be measured from that date.

The IRS guidance also says that:

·         Any state and local laws that require group health plan coverage during a leave of absence for more time than required by FMLA do not affect the determination of when a COBRA qualifying event has occurred.

·         A qualifying event also occurs if an employee fails to pay his or her share of group health plan premiums during the FMLA leave or declines group health plan coverage during the leave.

·         The right to take COBRA continuation may not be conditioned on repayment by an ex-employee of any premiums paid by the employer for group health coverage during FMLA leave.

Instead of designating employee paid time off as vacation days, sick leave, and such, many employers have started to lump it together and simply call it paid time off, or PTO for short. But there are pros and cons.

The advantages of undesignated paid time off for employers include reduced tracking of employee PTO and, often, reduced employee sick-leave abuse. Many employers use PTO as a strategic recruiting tool, and they find it to be just as successful for employee retention.

Increasing the number of days that employees can take off from work and still get paid seems to make workers happy. And, because most employees are healthy and don't ever use all of their sick leave, why not let them take the difference as extra vacation time?

PTO a Bad Thing? Are Employees In or Out?

Unfortunately, the bad sometimes comes along with the good. PTO programs can invite abuse.

Abuse #1 — Employees are out of the office more frequently.

Because an organization no longer knows why an employee takes time off, their employees, in some cases, are gone more frequently. While this can be controlled somewhat by requiring prior approval for PTO, those employees who never used sick leave will start to use some if not all of that time in their PTO every year.

Abuse #2 — Sick employees are not using sick leave.

One of the most costly abuses of PTO is sick employees not taking time off. If employees begin to view all PTO as vacation time, they don't want to use up their "vacation" time when they're sick, so they come to work and spread germs. This results in productivity declines as more and more of the workforce gets sick.

So How Can PTO Be Effective?

Be sure that your company culture suits the flexibility of a PTO program. If your company culture isn't flexible, the flexibility of a PTO program may invite abuse.

You must establish clear guidelines in advance. That will eliminate abuse at some level.

Most important, manage your employees and not the PTO program. If employees are sick, make sure they aren't in the office. You have an obligation to provide a safe workplace to all your employees. If someone is sick and contagious, send him or her home immediately!

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.

When employees become pregnant, everyone wants to be understanding and protective, but it's easy for "protective" and "caring" to turn into "discrimination" in court.

The general rule is, a woman affected by pregnancy must be treated the same as other applicants and employees on the basis of their ability or inability to work. Employees with pregnancy-related disabilities must be treated the same as other temporarily disabled employees for accrual and crediting of seniority, vacation calculation, pay increases, and temporary disability benefits.

Let's look specifically at how the American with Disabilities Act (ADA), the Pregnancy Discrimination Act (PDA), and the Family and Medical Leave Act (FMLA) deal with pregnancy.

Pregnancy and the ADA

An Interpretive Guidance issued by the Equal Employment Opportunity Commission (EEOC) on the ADA states that pregnancy, in and of itself, is not an impairment covered by the ADA. According to EEOC, disability from a normal childbirth is “temporary” and not protected by the ADA. However, pregnant employees who suffer from severe pregnancy- or birth-related complications may be covered by the ADA if their medical complications substantially limit a major life activity.

Pregnancy and the PDA

Under the PDA, an amendment to Title VII of the Civil Rights Act of 1964, discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination.

The PDA states that women who are pregnant or affected by related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations.

Under Title VII's pregnancy-related protections, employers are prohibited from discriminating as follows:

Hiring

An employer cannot refuse to hire a pregnant woman because of her pregnancy, because of a pregnancy-related condition, or because of the prejudices of co-workers, clients, or customers.

Approving/Requiring Leave

An employer may not single out pregnancy-related conditions for special procedures to determine an employee's ability to work.

If an employee is temporarily unable to perform her job due to pregnancy, the employer must treat her the same as any other temporarily disabled employee. For example, if the employer allows other temporarily disabled employees to modify tasks, perform alternative assignments, or take disability leave or leave without pay, the employer must also allow an employee who is temporarily disabled due to pregnancy to do the same.

Pregnant employees must be permitted to work as long as they are able to perform their jobs. If an employee has been absent from work as a result of a pregnancy-related condition and recovers, her employer may not require her to remain on leave until the baby's birth.

Note: Some state laws go further and require that special leaves, or leaves for a specific period of time, and reinstatement be offered to pregnant employees, even if these leaves are not offered to other temporarily disabled employees.

Return to Work

An employer may not have a rule that prohibits an employee from returning to work for a predetermined length of time after childbirth.

Employers must hold a job for a pregnancy-related absence open the same length of time jobs are held open for employees on sick or disability leave.

Health Insurance

Any health insurance provided by an employer must cover expenses for pregnancy-related conditions on the same basis as costs for other medical conditions. Health insurance for expenses arising from abortion is not required, except where the life of the mother is endangered.

The amounts payable by the insurance provider can be limited only to the same extent as amounts payable for other conditions. No additional, increased, or larger deductible can be imposed.

Fringe Benefits

Pregnancy-related benefits cannot be limited to married employees.

If an employer provides any benefits to workers on leave, the employer must provide the same benefits for those on leave for pregnancy-related conditions.

Employees with pregnancy-related disabilities must be treated the same as other temporarily disabled employees for accrual and crediting of seniority, vacation calculation, pay increases, and temporary disability benefits.

Retaliation Prohibited

Finally, it is unlawful to retaliate against an individual for opposing employment practices that discriminate based on pregnancy or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII.