:: Human Resources

GAWDA Human Resource Management and Compliance Manual Updated November 2006

Developed by the Human Resource Committee

Gases and Welding Distributors Association
100 North 20th Street, 4th Floor
Philadelphia, PA 19103-1443

Copyright 2001-3 All rights reserved

Updated in its entirety, November 2006

Instructions for Using the Online Human Resource Manual

1. The Online Human Resource Manual is an exact replica of the written version with the following exceptions:
    a. Most reference to page numbers and sections in the written version have been replaced with hyperlinks.
    b. The Sample Employee Handbook in the written version has been replaced with a modified online version authored by the same HR consultant. 
    c. Certain government regulation sections in the written version have been replaced by hyperlinks to the current online government version of the same material.

2. Most of the HR Forms were scanned as images in .pdf format. You will need Adobe Acrobat Reader software to view these images. For a free download, click here.

3. Searching - The HR Manual may be searched in two ways: 
   a. For a topical index, the Table of Contents (both text and Forms) is the same as the written version. Simply "click" on the appropriate topic.
    b. The HR Manual may be word searched by using your browser. First, open the HR Manual in whichever browser you are using. If Internet Explorer, click "Edit", then "Find". Key any word or set of words and click "Find Next". If Netscape, click "Search", then "Find on this page". Key any word or set of words and click "Find".

Note: The written HR Manual was scanned and edited to create the Online version. There may be spacing or other punctuation errors. If you notice any errors, please email gawda@gawda.org

    

INTRODUCTION

As an important service provided by GAWDA, the Human Resource Management and Compliance Manual has been prepared to assist companies in developing or better organizing their human resource function. For ease of user reference, each manual section has been identified separately. Where appropriate, useful forms and checklists are presented for application by the organization's human resources specialists and management personnel.

Individual segments of the manual will be revised or added to when necessary in order to present as practical and current of a resource as possible. Member companies of GAWDA are encouraged to utilize their Government Affairs/Human Resource Consultant as an additional source of information and counsel when human resource issues arise.

GAWDA recognizes the importance of maintaining a productive and motivated employee workforce. This begins with the creation of pro-active human resource programs and practices all within applicable regulatory compliance guidelines. The Human Resource Management and Compliance Manual has been developed to help meet this key business objective!

This information was revised by:
Richard P. Schweitzer, P.L.L.C.
1776 K Street, N.W.
Suite 800
Washington, D.C. 20006
202-223-3040
202-223-3-41 (fax)
rpschweitzer@rpslegal.com


ACKNOWLEDGEMENTS


The following sources and references were utilized in publications of the Human Resource Management and Compliance Manual:

1.The Society for Human Resource Management.

2.The Federal Wage and Hour Laws, R. Brian Dixon, SRM Foundation.

3.The Employers Legal Handbook, Fred S. Steingold, NoLo Press.

4.Administering the Company Personnel Function, William Marshall,
Prentice Hall, Inc.

5.Do-It-YourseIf Personnel Department, Mary F. Cook, Prentice Hall, Inc.

6.Federal Employment Law, Alexander Hamilton Institute, Inc.

7."Effective Discipline" , Chris Posti, GAWDA Human Resource Bulletin
contributing editor.

8.G. Neil Human Resource Forms Publishing Company, Sunrise, FL. 33325.

9.Employee Section -A Legal Perspective, Loren K. Allison, Esp., SHRM
Foundation.

10.How To Stay Union Free, Gordon E. Jackson, Management Press, Inc.


DISCLAIMER

This Manual contains information designed to assist welding supply distributors in complying with federal regulations that affect their business. This Manual does not constitute legal advice. Users are advised to obtain competent legal counsel in developing their own regulatory compliance programs or when employment issues develop which may require a legal opinion. In addition, the regulations referenced herein are subject to change from time to time. The Gases and Welding Distributors Association or Human Resource Consultant do not guarantee the accuracy of the regulatory language in this Manual. GAWDA will provide updates to this Manual as appropriate.


TABLE OF CONTENTS

I. Recruitment and Selection

.Determining Accurate Job Specifications        
.Effective Recruiting Sources                        
.Recruitment Advertising                            
.Employment Application Form                    
.Job Posting                                               
.Conducting Effective Job Interviews
.Employment Testing
.New Employee Orientation
.Job Applicant Letters
.Employee Reference Checks                                                                  

II. Record Keeping and Administration

.Personnel File Maintenance
.Employee Payroll/Status Changes
.Calculating Employee Absenteeism And Turnover Rates
.Human Resource Information Systems

III. Regulatory Compliance

.Summary of Main Federal Human Resource Statutes
.Fair Labor Standards Act
.Federal and State Labor Law Posting Requirements
.Immigration Reform and Control Act of 1986
.Family and Medical Leave Act
.Consolidated Omnibus Budget Reconciliation Act (COBRA)
.Americans with Disabilities Act
.Affirmative Action Plans
.Annual EEO-1 Reporting Form
.Tips For Effectively Handling And Responding To A Charge Of Discrimination
.Child Labor Law Guidelines
.Health Insurance Portability And Accountability
Act of 1996 (HIPAA)

Appendix: 1. Handy Reference Guide To The Fair Labor Standards Act
            2. Affirmative Action Programs
            3. Sample EEO-l Reporting Form


IV. Human Resource Policies

.Reasons For Developing Human Resource Policies
.Areas to Include in a Policy Manual
.Sample Policy Format
.Maintaining a Policy Manual
.Communicating New or Revised Policies


V. Compensation Management

.Determining Pay Program Objectives
.Job Descriptions
.Communicating Pay Policies 
.Exempt vs. Non-exempt Job Classification
.Performance Appraisal
.Compensation Program Audit


VI. Employee Relations

.Effective Discipline
.Termination of Employees
.Documenting Personnel Actions
.Employee Problem Solving Procedure
.Sexual Harassment
.Exit Interviews
.Employee Assistance Programs
.Communicating With Employees
.Employee Handbook
.Human Resource Audit Checklist

VII. Remaining Union Free

.Situations Which Prompt Unions to Organize
.Eleven Reasons Why Employees Resort to Unionization
.Disadvantages of Unionization to Employees
.Selecting New Employees
.The Management Team
.Policies, Rules and Regulations
.Elimination of Unsatisfactory Employees
.Equitable Wages and Employee Benefits
.Elimination of Employee Irritants
.Communications in the Union Free Company
.Components of the National Labor Relations Act
.Supervisor Guidelines When Union Organizing Occurs

VIII. Employee Benefits

.Achieving an Effective Employee Benefits Program
.Benefits and Discrimination Considerations
.Types of Benefits Plans
.Flexible Benefits
.Benefit Surveys
.Calculating Benefits Costs
.Employee Benefits Statement
.Employee Benefit Plan Records
.Trends in New Benefits Programs
.Managing Benefits Programs



HUMAN RESOURCE FORMS AND CHECKLISTS

 



RECRUITMENT AND SELECTION



DETERMINING ACCURATE JOB SPECIFICATIONS

Before attempting to recruit external or internal applicants for approved job openings, the hiring manager and human resource specialist must have a clear picture of the job opening's requirements. To meet government regulatory guidelines, established position specifications must be job related.

In determining job specification categories, the following areas should be considered in relation to the job opening:

1. Level of Education
How much education is really necessary? Will high school be sufficient or is college courses, degree, etc. completion essential? What additional specialized training is preferred or required?

2. Previous Work Experience
What type and how much prior job experience should qualified applicants possess?

3. Specialized Skills
The interviewer should be aware, ahead of time, of any technical skills which are needed in order to satisfactorily complete the job. These would include the following:

4. Essential Personality Factors
Certain jobs require specific attributes which help ensure job success. Obviously, a person hired to a sales, customer service, or receptionist capacity should possess more of an outgoing
personality considering those individuals with whom this person will relate. One must be careful however that screening for special personality features remains job related. Many larger organizations have found it beneficial to complete a job requisition form prior to actual candidate recruiting. This document spells out the requirements of the job opening, as well as needed prior experience and training. Also, it helps maintain control over the recruiting process by allowing for the appropriate approval signatures. A sample Job Requisition Form is included for reader use.

EFFECTIVE RECRUITING SOURCES

The following is a list of potential sources from which to attract job applicants. This list is not all-inclusive and the reader no doubt can think of additions to what is presented here.

1. Newspaper advertisements
2. Public Employment Service
3. Unsolicited "walk-in" applicants
4. Advertising in trade, professional or business journals
5. High schools; trade and technical schools
6. Recommendations and referrals
7. Job fairs
8. Private employment services firms
9. College recruiting
10. Minority and community organizations

In the recruiting process, managers and human resources professionals must ensure objective and non-discriminatory methods are used in hiring new employees. Thus, it is usually beneficial (and safest), if when recruiting, companies utilize more than one of the applicant sources listed above.


RECRUITMENT ADVERTISING

An often used method for attracting qualified job applicants is newspaper advertising. To a lesser extent, companies may also advertise by means of periodicals, trade journals, radio or television. Employment advertising no matter how done, however, must follow certain guidelines regarding content accuracy, legal compliance and portraying the correct image as a desirable employer.

Improper wording in an ad can be used as evidence of discrimination against applicants of a particular gender, age or marital status. This includes the following examples: use of the words "Salesman", "young", "recent college graduate", "handyman", or "gal Friday" could all add to potential problems when stated in an ad. Requiring a high school or college degree may be discriminatory in some job categories. Saying "degree or equivalent experience" would greatly lessen any risk of litigation occurrences. Employment ads placed by federal contractors must include an Equal Opportunity Employer phrase. Basically, this assures that all applicants will receive consideration for employment without regard to race, color, age, religion, sex, disability or national origin.


Sample Employment Ads

To assist the reader in developing their own advertising, several sample employment ads are presented.

1. Clerical

Human Resources Assistant 

This part time position (20-34 flexible hours per week) is responsible for all areas of HR administration including word processing, filing, employee benefits and employee involvement. Will also maintain HRIS system. Must be highly organized with excellent organizational & communication skills. Must be MAC proficient; HR experience & knowledge of Ceridian/ Ensemble system a plus. Please forward resume and salary requirements to: 

Name, Title
Company
Address
City, State


2. Management (Blind Ad)

Director of Sales and Marketing

XYZ Welding Supply Company is a leading and well-established area distributor of industrial, medical and specialty gases, as well as welding equipment and industrial supplies. Continued company expansion has afforded an exciting career opportunity for an experienced sales and marketing professional looking to help a progressive organization achieve its growth objectives. Reporting to the President, the selected candidate will have complete responsibility for development and implementation of marketing plans, strategies, promotions and product advertising. The incumbent will also provide leadership to Sales Department activities including forecasting, territory management and overall managing of the company sales force. An appropriate educational degree is required along with a minimum of 10 years of all encompassing sales and marketing management experience. An excellent salary and benefits program are offered the selected applicant. Send resume including salary requirements to:

Box B-66
(Newspaper Name)
City , State, Zip Code
"An Equal Opportunity Employer"



3. Professional (Blind Ad)

General Accountant

Energetic and experienced accounting professional is needed for a growing local industrial products and services distributor. Accounting degree preferred along with a minimum of five years financial reporting, general ledger and accounts receivable experience. Ability to work under minimum supervision and meet critical time deadlines is also required. This opportunity affords the selected individual a competitive salary and numerous benefits programs including profit sharing and 401-K participation. Send resume including salary requirements in confidence to:

Box M-13
(Newspaper Name)
City, State, Zip Code



4. Hourly Worker


Delivery Driver

Area industrial gases and welding supplies distributor has an immediate need for a CDL certified (class A) truck driver. The successful candidate will make daily deliveries to customer accounts and resolve routine customer complaints. An excellent driving record is required along with effective communications skills. The incumbent must also exhibit good time management and organization capabilities. Excellent work environment is offered along with competitive wages and benefits package. Send resume in confidence to: (No phone calls please)

Company Name
Attn: Warehouse Manager
Address
City, State, Zip Code
"Equal Opportunity Employer"


The above employment advertisements are typical of the kind companies would use to attract a sufficient flow of qualified candidates. Each ad spells out the principal job duties and required qualifications. Note that example ads number 2 and 3 are what is termed a "blind ad." For various reasons the hiring company desires not to be identified. Rather, applicants are advised to submit their resume to a box number. While blind ads will cut back on time consuming phone calls made by job applicants to the hiring company, there is a downside as well. The kind of qualified candidates the company is looking to attract may hesitate on sending their resumes to an "unknown" location. In some instances individuals may fear that the blind ad is from the company where they are currently employed!

Overall, advertising is a main method used to solicit outside interest for a job opening and the prospective company. When done well it can be a very cost effective way to meet manpower requirement needs.

EMPLOYMENT APPLICATION FORM

When preparing an employment application form for company use, there are many practical and legal guidelines to consider. The most important of these guidelines is the following:

Request information that is job related and that can be used to make an employment decision. Do not ask about anything else.

Most application forms are divided into the following sections:

1. Biographical/ personal
2. Education
3. Work experience
4. References
5. Disclaimers

Special Points To Remember

1. Questions about age can lead to discrimination complaints under the Age Discrimination in Employment Act. DON'T ASK: How old are you or date of birth?

2. Discrimination complaints under the Americans with Disabilities Act may result from the following: DON'T ASK: Do you have any health related problems/ disabilities that may limit your ability to perform this job? Also, do not inquire about previous worker compensation claims filed.

3. The Immigration Reform and Control Act and Title VII prohibit discrimination based on national origin and race. DON'T ASK: Are you a U.S. Citizen? What language do you most commonly speak? Or request a recent photograph.

4. Requesting arrest records has been shown to have a potentially adverse impact on some minority groups. DON'T ASK: About any arrests. If asking about convictions state that a conviction will not be an absolute bar to employment.

5. Title VII prohibits discrimination on the basis of sex. The Pregnancy Discrimination Act is part of Title VII. DON'T ASK: Are you pregnant? Or do you have any children?

6. In terms of education, requesting dates of school attendance could reveal an applicant's age. It is preferable to ask applicants how many years attended?

7. Contacting previous work references is a big part of the hiring process. While covered more in-depth in another section of this manual, make sure the applicant signs an authorization prior to verifying credentials and checking references. Normally, this authorization section is located
near the end of the employment application.

8. Disclaimers should be as direct as possible. Make sure that you are consistent with existing policies and practices. The statement(s) should address such items as drug testing, employment at will or other conditions of employment.

 

SAMPLE APPLICATION FORMS

Each may be adopted to individual company needs. Revised or newly created application forms should be reviewed by legal counselor the GAWDA Human Resource Consultant prior to being given to job applicants.

JOB POSTING

Job posting is a method of communicating to employees jobs which are open in the company. The purpose is to fill as many jobs as possible from within the company as a means of rewarding and recognizing high performing employees. Companies that promote from within also find it easier to attract and retain ambitious, career oriented employees.

Job posting requires that a brief description of the available position, including significant job duties and education/ experience requirements, be posted where all employees will see it. Most often this would be in a well visited bulletin board area. A specific cutoff date for employees to apply is usually stated on the job posting.

Job posting can be a time consuming procedure since many workers could apply for the same job. It is recommended that everyone who applies for a posted position be interviewed. In this way everyone is treated consistently and at the very least has the opportunity to discuss career advancement with company management.

During the interview, the duties of the job opening are explained and the requirements outlined. The applicants training and experience are reviewed as well as the employee's personal interest in applying for the job opening. When the final selection is made, the decision must be reported individually to each remaining candidate. This communication is made in such a way as to get their understanding and also to encourage interest and re-application for future posted job openings.

A job posting program, if administered fairly, can help to minimize employee complaints of unfair treatment, unlawful discrimination, and favoritism which often arise when companies hand-pick candidates for promotion without posting the job openings.

For reader interest, a typical job posting format is shown next, outlining requirements and related information pertaining to the position opening.

XYZ COMPANY

NOTICE OF JOB OPENING

Job Title: Payroll Specialist                    Reports To: Accounting Manager
Department: Accounting                      J ob Grade: 8

Main Job Duties:

The incumbent will collect employee timecards, process work hours and ensure correct earnings calculations. Prepare necessary payroll reports and resolve employee payroll problems.

Education/ Experience Requirements:

High School graduate -business course emphasis preferred.

2-4 years prior bookkeeping, accounting or related experience. Prior exposure to personal computer applications required.

Qualified candidates must have an ability to meet job deadlines and work effectively with all levels of employees.

Final Date To Apply For This 0pening: 6/1/00

Interested employees must contact the Human Resource Administrator by the above date indicating their interest in the posted job opening.



CONDUCTING EFFECTIVE JOB INTERVIEWS


The objective of the job interview is to find out as much as possible about the applicants to enable the hiring manager to select one for an offer of employment. The successful interview consists of asking questions designed to elicit specific information and paying attention to the responses. Effective interviewing is based on one critical factor: listening. In the interview there are three areas of interest:

1. Find out as much as possible about the candidates total background, education, experience and personality.
2. Consider to what extent each candidate possess or lacks the necessary characteristics, skills and abilities.
3. Based on objective criteria, conclude how the candidate will l' perform in the company's work environment.

To improve listening ability, there exists further points to keep in mind:

To facilitate drawing information out of the candidate, the interviewer needs to make the candidate feel comfortable. This can be done by beginning with some small talk about a current event, the weather or a reference to something in the applicant's background that is relatively interesting or uncontroversial. This allows the applicant the opportunity to begin with something that he or she is familiar wit and shows that the interviewer is interested in him or her personally.

Although it is advisable to have the application or resume available during the interview, notations should not be made on them. Note necessary comments on a separate sheet of paper.

To facilitate eliciting information, ask open-ended questions, that is questions that cannot be answered yes or no. These questions begin with "what," "why," and "how". Open-ended questions are often hypothetical that is, "what would you do if ..."

Normally, an interviewer should spend 20-30 minutes immediately before the interview reviewing the candidates resume, employment application, the job requirements and list of potential questions to ask.

Overview - Interview Process

I. Understand Job Requirements

 A) Job Description

 If a job description exists, compare the candidate's background to the position requirements.

 B) Candidate Profile

Consider factors relative to personality and individualized traits which will  help the individual succeed in your environment.

* Team Player
* Energetic
* Hands -On
* Outgoing/Sociable		* Self -Starter
* Honesty /Integrity
* Oral Communications
* Listening Skills


II. Job Interview (Normally conducted in the following manner).

A) Introduction (2- 3 minutes)
    This is the social part of the interview designed to make the candidate feel at ease.

B) Questions to Candidate (see next page, 30- 40 minutes)
    (80/20 rule: candidate spends 80% of time answering questions)

C) Provide Information Regarding Company (10- 15 minutes)
    Be prepared to give an overview of the Company's operation including current and future    business needs.

D) Solicit Questions from Candidate


III. Additional Interviewing Recommendations

A) The Interview Must be Guided by the Interviewer:
    1. Interviewee encouraged to speak freely
    2. Interviewer encourages conversation by asking open-ended questions:
        "How do you feel about that?"
        "How did that affect you?"
        "How did you accomplish that?
        "What did you like about your last job?"
        "What are your strengths?"
        "What is your most important achievement?"

B) Review Previous Experience

C) Inquire about Information Missing on Resume or Application (gaps in employment, etc.)

D) Cannot Ask: Age, Marital Status, Religious Belief, Disability Status, etc.


IV. Sample Interview Questions

1.) Why are you considering a different job opportunity?
2.) What do you believe are the qualities necessary to be an effective (Job Title)?
3.) Describe your most rewarding accomplishment?
4.) How would employees in your organization describe you?
5.) What would your most recent supervisor say are your strengths?
6.) What would your most recent supervisor say are your weaknesses?
7.) Tell me about the success you have had in developing and/ or implementing (Operations Manager applicant):
        * Production scheduling
        * Manager/supervisor development
        * Improving workforce morale
        * Cost reduction programs
        * Processes which improved on-time deliveries

8.)Tell me of a time you satisfactorily resolved a problem with a customer.
9.) Give an example of how you try to motivate employees to accomplish department goals.
10.) Were there any Company policies at your last job with which you disagreed or had difficulty following?
11.) Describe how you would increase sales if hired as an outside sales representative.
12. ) What are your career goals?
13.) What are pay or salary requirements?
14.) What are the questions you have of me as the interviewer?

V. Interview Concerns:

A) "Halo Effect" (letting one factor affect your entire opinion of the candidate)

B) Unsupported Hunches Must Be Avoided

C) Ask Same Questions of ALL Candidates

D) Take Notes

E) Evaluate Applicant Qualifications Immediately After The Interview


DO'S AND DON'TS OF INTERVIEWING

Do: 
1. Use a quiet, comfortable place.
2. Put the interviewee at ease.
3. Show interest in the person as well as the job.
4. Outline clearly the requirements of the job.
5. Ensure understanding of the applicant's previous work experience.
6. Encourage the applicant to ask questions.
7. Guide the interview.
8. Listen; let the applicant talk freely.
9. Be natural; use a conversational tone.
10. Know when and how to close the interview.
11. Explain your next step and possible timing of a hiring decision.

Don't:
1. Keep the applicant needlessly waiting.
2. Not know what to look for during the interview.
3. Build false hopes or oversell the job.
4. Rush through the interview.
5. Ask questions of a non job-related or potentially illegal nature.
6. Prejudge the applicant.
7. Allow one undesirable factor to influence interviewer's judgment.
8. Never get back to the applicant regarding the hiring decision.

Documenting Interview Meeting

It is obviously difficult to simply remember applicant(s) responses and other important information gathered during the interview. Having access to documented interview discussions can help ensure the correct selection decision is made especially when several individuals are being considered.

As a means of documenting interviewing comments, impressions and overall candidate qualifications, two versions of an Applicant Appraisal Form are shown. These forms may be particularly useful when multiple individuals interview a job applicant. When completed, a selection decision can be made based on objective, factual, and well documented information concerning each candidate.



Illegal Interviewing Questions

An interviewer must keep job relatedness in mind as he/she is screening a job applicant. Accordingly, do not ask any questions that are Not Job Related. These include the following:

1. Marital status, child rearing plans, number of children or child care problems.
2. Age, Date of Birth
3. Education as related to age
4. Height, weight, strength, disabilities
5. National origin/race.
6. Friends or relatives within the organization.
7. Arrest records. You may ask about convictions, but convictions should be the basis for rejection only if their number or nature render the applicant unsuitable.
8. Citizenship.
9. Whether the applicant has ever filed a claim for workers compensation.
10. Name of spouse or spouses place of employment.
11. Questions regarding home or auto ownership, bankruptcy, credit ratings, or past garnishment of wages. Such questioning may tend to have an unequal impact on minorities.
12. Questions about religion or beliefs.
13. Questions regarding type of military discharge.
14. Employers must avoid asking for photographs until after hiring.
15. Clubs or organizations unless job related.
16. Union affiliation or organizing interest.

The above factors have nothing to do with how an applicant will do on the job. Also, much of this information is necessary for personnel records and may be obtained after the person is hired. The interviewer should concentrate on the qualifications, past job performance and potential ability to meet the job opening's requirements.



Job Interviews and ADA

Although covered more in-depth in another section of this Manual, the Americans with Disabilities Act greatly impacts the hiring process, Basically, the Americans with Disabilities Act (ADA) forbids discriminating against a job applicant or employee, with a disability , when he/ she is capable of performing a job's essential functions with or without reasonable accommodation. This law significantly affects what can be asked during the job interview.

The Equal Employment Opportunity Commission (EEOC) sets out examples of questions employers may not ask on application forms or in job interviews as prohibited by the Americans with Disabilities Act (ADA). These include:

Questions which may be asked under ADA:

Providing clear job descriptions that outline the essential functions of a job and break down the job into its physical requirements, psychological demands and working conditions will enable applicants to know what is required in order to request any accommodation, if necessary.

Employment Checklist - Hiring Persons With Disabilities

DO

DON'T


EMPLOYMENT TESTING

A test has been defined as a standard device used to measure skills, intellect, personality and other characteristics. Most small businesses operate on a slim profit margin and need to know that employees will be up to speed from day one. When hiring a typist, one may want to test the applicant for typing speed and accuracy. If hiring a driver to operate a commercial motor vehicle, a road test is required by the Federal Motor Carrier Safety Regulations. In addition, testing is required for all new hazardous materials employees as defined by 49 C.F.R. §171.8. As long as the skills tested for are related to the job duties, or the test is required by federal regulation, a skills test is generally legal. To insure the job relatedness, a job analysis should be conducted before any test is selected, designed and administered.

If it is decided to use aptitude or personality tests, companies must proceed cautiously: Make sure that the tests have been screened scientifically for validity and that they are correlated to job performance. Review them carefully for any questions which may intrude into an individual's privacy.

Be aware too that the American with Disabilities Act (ADA) sets special requirements when testing people who have impaired sensory, speaking or manual skills. Sensory skills include the abilities to hear and to see and to process information. If the individual being tested would not have to use the impaired skill, on the job, the test must be designed so that he or she doesn't have to use the impaired skill to take the tests.

Lie detector or polygraph tests, rarely used by small businesses anyhow, are virtually outlawed by the Federal Employee Polygraph Protection Act. With just a few exceptions, one cannot require job applicants to take lie detector tests. Use of a lie detector test could be allowed when an employee was reasonably suspected of being involved in a workplace theft or embezzlement.

Medical Testing

To avoid violations of the Americans with Disabilities Act (ADA), interviewers must not ask the applicant about his or her medical history or schedule any medical exam before making a job offer. One can, however, offer a job conditioned on the applicant passing a medical exam. Companies which do require a post job offer exam must make sure it requires such exams for all entering employees who are doing the same job. If medical exams are given only to people with known disabilities, or those who it believes may have a disability, the company violates the ADA. If a job offer is withdrawn based on the results of an exam or inquiry it must be shown that:

Before making a job offer, the ADA forbids an employer from requiring an applicant to take a medical examination, respond to medical inquiries or provide information about workers' compensation claims. A pre-employment drug screening is not considered a medical exam under the ADA; nevertheless, it is better for an employer to require a drug screen only after making a conditional offer of employment

After making a conditional offer of employment, an employer may conduct a medical examination and make unrestricted inquiries of all potential employees in a job category, but may not refuse to hire an individual with a disability based on the results of such inquiries, unless the individual cannot perform the essential functions of the job with reasonable accommodation. The medical exam to qualify a commercial motor vehicle driver (required in 49 CFR Part 391) may be given at this time.

During employment, any medical examination or inquiry required of an employee must be job-related and justified by business necessity.

Because an employer may not conduct a medical examination unless it is administered to all applicants in a given job category, an employer may not require an individual applicant to take a medical exam based on a response to a preliminary post-offer medical question (e.g., for disclosure of a previous on-the-job injury), unless all applicants in the same category are required to take the same test.

Employee medical examinations may be conducted where there is evidence of a job performance or safety-related problem, where federal laws may require such examination (such as for truck drivers), where current fitness for a position must be determined (including persons returning from workers' compensation leave), where it is necessary to identify an effective reasonable accommodation, or where there exists a voluntary employee health program.

Workers injured on the job may be given a "job-related" medical examination, but not a full physical exam. Injured employees returning to work after a leave may only be required to have a "job-related" medical exam, not a full physical exam.

Finally, an employer may make pre-employment, pre-offer inquiries regarding the illegal use of drugs, and may administer a pre-employment drug and alcohol test (a pre-employment drug test is required by DOT regulations for all applicants for commercial motor vehicle driver positions). Obviously, an employer may deny employment to an applicant who fails a pre-employment drug or alcohol test.

NEW EMPLOYEE ORIENTATION

In the training of new employees, the process known as orientation is an organized effort on the part of the company to get the currently hired individual positively indoctrinated to the Company, their job and co-workers. It is an attempt to have the new worker learn quickly and accurately what he/ she would otherwise pick up over a longer period of time, and perhaps incorrectly.

Orientation programs instruct employees on company history, philosophies, mission, expectations, job requirements, personnel policies and benefits. An orientation program gives the company an excellent opportunity to show how much it depends upon its workers. Employees are made to feel that they belong and are important; otherwise they would have not been hired.

In order to be effective, orientation programs should involve someone knowledgeable about company personnel policy, pay practices and benefits programs. In addition, the new employee's supervisor should play a key role in the orientation process. The supervisor insures that the new employee is familiar with the department layout, provides introductions to fellow workers, and reviews job expectations, safety guidelines and specific department policies. It is often useful that during the first few weeks of a new hires employment, he/ she be assigned to a fellow employee who would act in a mentoring type capacity. Normally, this would be someone exhibiting positive work habits and attitude toward the company.

In bringing the orientation process to a successful close, the supervisor should schedule a meeting with the new employee 2 -3 weeks following initial employment. Discussion here would center on the new employees initial impressions about the job and company. Also, this is a time to answer any pertinent questions posed by the individual. It would be good if someone involved in the human resource function also completed a follow-up meeting with the employee. On occasion, an issue may occur involving the supervisor. Thus, it is important that the new employee (or any employee) have access to another company representative when problem areas develop.

As a guide for company use, presented is a sample employee orientation policy and checklist. Note both human resource related and supervisory responsibilities.


Sample Orientation Policy


It is the policy of (Company) to provide each new employee with a thorough orientation to the company including its operating philosophies, policies, procedures, compensation practices, and benefits programs.

Numerous company personnel playa key role in the successful implementation of this policy. The Human Resource Department and the new employee's immediate supervisor will be primarily responsible for completion of the orientation program procedures.


A. Program Coordination

1. The Human Resource Department will be responsible for organizing all orientation procedures following the establishing of the employees hire date. This includes coordination with the pertinent supervisor and other individuals involved in the orientation process (Safety and Environmental Manager, Switchboard Operator when applicable, etc.), scheduling of any needed meeting room and preparation of orientation materials.

2. The Human Resource Administrator will ensure that the appropriate orientation follow-up meetings occur with the new employee(s).

3. The new employee Orientation Checklist will be completed for each new hire, properly signed and remain a part of the employee personnel file.

4. The Human Resource Administrator and applicable supervisor will develop, coordinate and ensure successful completion of any specialized training required during the employee's initial weeks of employment.


B. Orientation Program Schedule

1.The orientation process will begin with the Human Resource Department completion of items as listed on the Orientation Checklist. This will occur on the new hires first day.

2. The new employee's supervisor will complete his/her portion of the orientation program. In the absence of the employee's supervisor, a substitute individual will be appointed to complete major portions of the orientation requirements.

3. The President and General Manager will, on a monthly basis, meet and welcome new employees to (Company). The Human Resource Administrator will coordinate the scheduling of this meeting.

Motivating the New Employee

Research has proven beyond a shadow of a doubt that the impressions new employees form during the first few days on the job have a tremendous impact on their performance throughout their tenure with the company. Some managers regard orienting new employees as the responsibility of human resources or the Office Manager. A disinterested reception by the supervisor, however, can undo all the good feelings that such a program has tried to establish.

Here are some suggestions for what supervisors can do to relieve new employee anxieties and shorten the adjustment period:

1. Explain the authority structure.

New employees want to know where they stand and how they fit into the organization as a whole. So take the newcomer aside and briefly sketch out how the department is set up, who reports to whom, and so on. Point out the individual to whom the new employee can speak if the supervisor is not there.

2. Describe performance expectations.

New employees rarely have a clear picture of exactly what is expected of them. Therefore, quality and productivity standards should be stressed early on. The same holds true for other job related standards, such as safety and absenteeism rules.

3. Ensure employee training for the job.

It can be very frustrating when one is left alone to "figure the job out for themselves." For the new hire, this can be a primary reason for quitting after just a week or "two on the job. Often, it helps to assign a fellow employee the role of working with the new person to assure their understanding of how to do the job. In addition to technical ability , however, make sure the employee doing the training is an effective communicator.

4. Provide periodic feedback.

Many new employees receive little or no feedback on their performance when they need it most - in the beginning! Remember, most new hires and employees in general, would prefer to know whether they are progressing satisfactorily or doing something wrong. Be sure to document critical incidents which contribute to satisfactory or unsatisfactory job performance.


JOB APPLICANT LETTERS

Below, sample letters are presented which are often used in the selection process. It is both a professional and personal courtesy that applicants be notified once a hiring decision is made. Format these sample letters to your own business setting and communications style.

JOB OFFER LETTER TO APPLICANT

Name
Address
City, State

Dear Mr./Ms. (_______________):

We take great pleasure in confirming an employment offer to you as Buyer in our Purchasing Department. In your new position you will report to John Jones, Purchasing Manager. Your starting date of employment will be Monday, May 16th.

Your annual compensation will be $30,000; paid bi-weekly this is $1,153.85. Enclosed are booklets which completely describe our many group insurance programs. Eligibility for coverage will occur on August 1lst. In addition, you will be eligible for two (2) weeks vacation following one year of employment. The enclosed schedule describes additional vacation eligibility based on length of employment service.

In accordance with company policy, this job offer is contingent upon your successfully passing a medical examination and test for illegal drugs. Please contact my office to set a convenient time for this examination to occur. Note that this employment offer is not to be construed as a contract. Also, employment with XYZ Company is not guaranteed for any specified time period.

We are delighted that you have verbally accepted our employment offer and look forward to seeing you on May 16th.

If you have any questions please feel free to contact me at anytime.

Sincerely,


Bill Glass
Administration Manager

SAMPLE APPLICANT LETTER

(When No Job Offer Is Made)


Name
Address
City , State

Dear Mr./Mrs.(_________________):

Thank you for your recent interest regarding our position opening for Shipping Supervisor. Although we are impressed with your abilities and background, we have selected someone whose experience more closely matches the position opening's requirements. Your resume will be retained for one year and you may be contacted if a related position becomes available.

Your interest in XYZ Company is very much appreciated and best of luck in your future career endeavors.

Sincerely,


Jane Smith
Human Resource Coordinator



Note: The above letter format may be used with unsuccessful applicants
responding to ads or interviewed and not receiving a job offer.

EMPLOYMENT REFERENCE CHECKS

Before making a selection decision, the hiring manager should know as much as possible about the job candidate. Past work references, if kept job related and done properly can provide valuable information regarding the applicant's suitability for employment.

Since many companies today are reluctant about giving out work references, it is best to have applicants sign releases. These authorize former employers to provide information which will be considered before making a decision to hire. In some organizations, this authorization release is printed on the employment application 

Two sample reference request forms are presented: one when contacting past employers by telephone and one by mail.

A vital question to ask in gathering reference information is "Would you rehire this person?" The response could help finalize the decision to hire or not to hire. Also, it is normally a good idea to ask about the applicant's specific strengths and weaknesses. These provide further insights into the individual's capabilities and potential fit with the organization.

If checking references lead to doubt or create more questions about the applicant, ask for still more references or schedule a more probing interview. Of course, another option is to simply move onto another candidate.

Keys In Obtaining Work References:

Review the following:

Refer to the sample reference check forms for use when conducting telephone or mail-in types of reference verification.


Possible Reference Check Questions


Handling Post -Employment Inquiries

Contrary to current opinion, the law does not require company representatives to completely clam up about a former employee when a prospective new employer calls. If some basic guidelines are followed, a significant amount of information can be disclosed without risking a lawsuit.


Key Guidelines

1. The key to protecting yourself is to stick to the facts and act in good faith. It is when you go beyond the facts or are motivated by a desire to harm the former employee or evade the truth that you can find yourself in deep trouble.

2. A practical approach is simply not to discuss an ex-employee with prospective employers if you can't say something positive. When an employee's record is mixed, it is usually possible to accent the positive while trying to put negative information into a half-way favorable, or at least less negative, perspective. One should not lie to a prospective employer, however, especially if the employee was terminated for some willful act of misconduct. Just be sure previous incidents are well documented and that the personnel file reflects fairness, objectivity and good faith.

3. It also pays to watch what is said in informal settings such as trade shows or with vendors and customers. If a customer wants to know what happened to the ex-employee and you reply in a vindictive way, word will likely spread. This could lead to legal complications if the employee became ostracized in the field or town because of your negative comments. Disclose the reason for firing on a strictly need to know basis and do not say anymore than is necessary.

4. In a trend designed to encourage fuller disclosure in responding to reference checks, some states have begun passing laws allowing companies to be more candid about former employees. These laws expand on the common law principles that protect companies if they act in good faith.

5. Before giving a work reference, request that the prospective employer submit a waiver signed by the ex-employee. Basically the wording would say:

"I authorize and request my former employers, references and educational institutions which have information regarding my suitability for employment to give ______________________ such information which (Company Name) may lawfully be disclosed. I release former employers, references and educational institutions from any liability or claim relating to such release of information."

____________________
Applicant Signature

____________________
Date

6. Companies may still want to take the conservative approach and confirm only prior employment dates and job title. Just be mindful that many organization's cooperation to your request will be based on your cooperation to their similar need for information.

 

Note: Employment References for Commercial Motor Vehicle Drivers

The Federal Motor Carrier Safety Administration has issued a Supplemental Notice of Proposed Rulemaking (SNPRM) on the minimum safety performance history new or prospective employers would be required to seek from CMV drivers and from where the information should be obtained. 68 Federal Register 42339 (July 17, 2003).

The Hazardous Materials Transportation Authorization Act of 1994 directed DOT to issue a rule specifying the minimum safety performance information to be investigated from previous employers when performing employment record investigations on driver candidates and newly hired drivers. The FMCSA's predecessor agency, the Federal Highway Administration, issued a Notice of Proposed Rulemaking (NPRM) on this issue on March 14, 1996 (61 Federal Register 10548) but never published a final rule. This latest SNPRM modifies the proposals contained in the 1996 NPRM.

The SNPRM would make the following changes to the Federal Motor Carrier Safety Regulations with regard to CMV drivers:

These changes are not yet final, but GAWDA will amend this Human Resources Manual to include these changes when they become final.





RECORDKEEPING AND ADMINISTRATION

 

PERSONNEL FILE MAINTENANCE

Employee files can be an important source of information to support actions such as disciplinary warnings, suspensions or terminations. On the other hand, considering that many states have laws concerning employee access to their personnel file, it is important that care be exerted on what goes into them.


Typical Documents to Include in Employee Files

1. Job application/resume.
2. Offer letter of employment
3. Personnel data form (reflecting pay rate, name change, job transfer, change of work status, etc.)
4. IRS W-4 Form.
5. Benefits enrollment forms.
6. Performance evaluation form.
7. Leave of absence forms.
8. Receipt of employee handbook.
9. Disciplinary action notices.
10. Notes on employee attendance and tardiness.
11. Separation notice and termination information.

Note: There should be no medical information retained in the personnel file. This would include post-job offer medical examination results and on-going, communications with physicians, labs, etc. A separate medical file must be created for privacy reasons. The medical file should be available only to the assigned human resource employee or management representative with a valid need to know. The Americans with Disabilities Act (ADA) allows very limited disclosure of medical information. For example, supervisors may be informed about necessary restrictions on an employee's duties and about necessary accommodations.

Keep all employee files locked. Again, make them available only to people in the company who have a legitimate business need to have access to the files-managers, for example, who must make decisions about promotions and discipline. Inform company personnel that the information in the files must remain confidential. While state law may dictate that an employee or former employee has a right to see his or her file make such access within well defined guidelines.

Employers should maintain personnel file records permanently. Any document regarding an employees work record, disciplinary warnings, performance evaluations, etc. should remain in the employee file. Many times these records will be used as evidence to justify an employee termination or further support the employer side in some legal matter.


Employee Access to Files

Most companies allow and in some states are mandated by law to allow employees, upon request, to review contents of their personnel file. This review time can be scheduled at the convenience of the company but should not be needlessly delayed. It may be designated that a human resource individual or supervisor be present to make sure nothing is taken, added or changed. Some state laws allow employees to obtain copies of items in their files. Employees should have copies made for them; they should not be allowed to make their own copies.

Usually you do not have to let the employee see sensitive items such as information assembled for a criminal investigation, reference letters, job interview notes, and information that might violate the privacy of other people. In a few states, employees may insert rebuttals regarding information in their personnel files with which they disagree. Other companies allow this even when not mandated by law to do so.

Basically, controlling what goes into the personnel file and who has access to them should eliminate the vast majority of potential problem areas. Employee requests to review their files will normally be few in number during the course of the year. Being pro-active, honest and open with employees, all within the guidelines presented here, will communicate the fact the company has nothing to hide regarding employee related documentation. Failure to heed this advice, however, could leave an employer open to lawsuits for invasion of privacy by an employee whose file was viewed by personnel without any need to have access to that information.

Additional Considerations


EMPLOYEE PAYROLL/STATUS CHANGES

There exists a number of reasons why documenting employee payroll, job transfer and employment status changes is so important in the maintaining of accurate employee records. These include compliance with various federal statues regarding employer record keeping, and the potential need for such documentation in employment litigation proceedings, including unemployment compensation hearings. Correctly documenting when an employee received a pay raise, was promoted to a new job, went on a leave of absence or terminated their employment is also just part of good human resource administrative practices.

Normally, any documented "status change" occurring during the employment relationship should be initiated by the supervisor and approved by the department manager and representative of the human resource department.

Following the processing of the status change, the form is inserted into the employee personnel file for possible future reference. A sample personnel change record form is presented which may be revised to satisfy each company's needs. This type of form is available from any human resource document publishing firm or can easily be developed by in-house human resource and payroll specialists.

CALCULATING EMPLOYEE ABSENTEEISM AND TURNOVER RATES

Employee turnover and absenteeism can significantly and negatively impact business profits if excessive. To determine what is excessive however, one must have a basis for first calculating the amount of turnover or absenteeism occurring, then comparing it to other companies norms. Taking the appropriate steps to improve upon these human resource measurements is addressed in other sections of this manual.

TURNOVER RATE FORMULA:

Number of employee separations during month x 100
average # of employees on payroll during month

Both voluntary and involuntary terminations are included in counting terminations. For example, voluntary terminations such as resignations and retirement are included. Involuntary terminations include workers who are fired but not laid off. Layoffs can constitute a significant percentage of involuntary terminations; however they should not be included in the calculation because they may artificially inflate the amount of turnover in the company for a given year.

JOB ABSENCE RATE FORMULA:

Number of worker days lost through absence during month X 100
(average # of employees) X (# of workdays)

Job absence is defined as unscheduled absence. It does not include long term absences after the first four days; vacations, holidays, or other scheduled leave; or absences of less than a full day.

Tables 1 and 2 provided by the Bureau of National Affairs, Inc. (BNA), depict actual job absence and turnover rates for a sampling of companies nationwide. The reader can compare their own company rates to these reported calculations. 



HUMAN RESOURCE INFORMATION SYSTEMS

Most businesses today are already using computers. Maintaining employee records regarding payroll, benefits eligibility, salary increases, completed training, EEO-1 status, etc. can be non-productive use of time if done manually.

For the company which has its payroll completed by an outside service, options normally exist for maintaining the necessary records and printing useful human resources reports. Internal computer departments or software vendors can also help with such requests.

Before installing or even changing a human resource informative system, several considerations must be kept in mind.

1. Perform a structured needs analysis on what information needs to be stored or retrieved and why.
2. Gather input from other company personnel on their needs for human resource related information. Be sensitive, however, to the need to know of certain information as well as legal compliance concerns. For example, an employee's medical history must be kept confidential.
3. Do not be excessive on the number and complexity of reports you want from a HRIS. Purchase a packaged system that already has most of the reports needed and make a few report modifications.
4. Contact other similar size and type companies to determine successes and pitfalls in their implementing human resource information systems.
5. Install a highly user oriented system that provides all the needed information on interviewing and selection, administration, compensation, benefits, training, labor relations, etc.
6. Ensure proper training of system users but again allow access to only those with a need to know.
7. Complete a yearly audit of your systems to determine areas for improvement or new application possibilities.


Human Resource Information Services

Every human resource professional lives with a shelf full of guidebooks and technical manuals covering everything from benefits administration to labor law to job classification. These books have dense and technical subject matter that is constantly changing; just keeping up with the HR field is a continual challenge. Modem computer technology now allows the human resource practitioner to hook-up to various reference sources such that needed information is literally at ones fingertips. For example, the Bureau of National Affairs (BNA) CD-ROM library includes titles on Employee Benefits, Environmental Compliance, Safety , Human Resources, Payroll and Compensation. Normally, such human resource information is available for preview on floppy disks, demonstration CD or by Internet access. There exist several vendor sources for this type service and comparisons should be made before completing the necessary investment.



Federal Record Retention Requirements





REGULATORY COMPLIANCE

 

SUMMARY OF MAIN FEDERAL HUMAN RESOURCE STATUTES


KEY FEDERAL STATUTES AFFECTING EMPLOYMENT, TERMINATION, EEO, COMPENSATION AND BENEFITS

Following is a brief overview of key regulations that relate to the human resource management function.


Title VII of the Civil Rights Act of 1964, Including Equal Employment Opportunity Act of 1972.

Prohibits job discrimination based on race, color, religion, sex, national origin, age and handicap pertaining to hiring, demotion, transfer, layoff, termination, compensation and benefits, and selection for training for those individuals in protected classes. Protected classes are defined as individuals over age 40, females, Black, Hispanic (Latin American, Mexican, Puerto Rican), Asian, Pacific Islander, Oriental, American Indian, Native American, and Alaskan Native.


1980 Sexual Harassment Guidelines Were Added to Title VII of the Civil Rights Act

Prohibits harassment and provides that an employer is responsible for the acts of its agents and supervisory employees with respect to sexual harassment.


Executive Orders 11246,11375,11141, and 12067; Title 41 of Code of Federal Registry;
Section 503 of the Rehabilitation Act of 1973

Pertains to federal government employees, federal contractors and subcontractors. Provides equal opportunity to all qualified persons; prohibits discrimination based on race, creed, color, national origin, handicap, sex, and age; and other equal employment opportunity guidelines.


Age Discrimination in Employment Act of 1967, Amended in 1978 and 1986 (ADEA)

Prohibits job discrimination based on age for individuals over age 40, regarding hiring, promotion, demotion, transfer, layoff, termination, compensation and benefits, and selection for training. Disallows mandatory retirement.


Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974

Section 402 relates to the Vietnam veteran's equal employment opportunity. It requires affirmative action in hiring qualified Vietnam Era vets for government contractors with contracts of $10,000 or more.


Immigration Reform and Control Act of 1986 (See separate description)

Prohibits hiring of individuals who are not legal residents of the U .S. or who do not have legal certification to be employed in the U.S. Requires proof of citizenship.


Freedom of Information and Privacy Act of 1974

Applies to most federal government agencies as well as private businesses and state and local governments which contract with federal agencies. Provides certain safeguards for an individual against an invasion of privacy. Pertains to required record keeping and access to and disclosure of records.


Family and Medical Leave Act (See separate description)

Under FMLA, businesses employing 50 or more individuals must be required to give an employee up to 12 weeks of unpaid leave for certain family and medical reasons.


Fair Labor Standards Act of 1938, Amended in 1966 (FLSA) (See separate description)

Establishes minimum wage, maximum hours, overtime pay, equal pay, and labor standards, unless an exemption applies (for example, for executives, administrative staff, salespersons, and others).


Equal Pay Act of 1963 (Amendment to Fair Labor Standards Act)

Provides for equal pay for females and males who work of an equal skill, effort, and responsibility, and performed under similar working conditions (excludes differences based upon longevity, merit, production, or any basis other than sex).


Rehabilitation Act of 1973

Designed to promote the employment of people with handicaps by banning discrimination. Pregnancy Discrimination Act of 1978 Establishes the eligibility for pregnancy-related benefits, including health insurance, disability income plans, and leaves of absence, on equal terms with other disabilities.


Employee Retirement Income Security Act of 1974 (ERISA)

Provides standards for employers' funding and vesting of employee benefits and pension plans.


Health Maintenance Organization Act of 1973 (HMO)

Provides for health maintenance organizations (HMOs) in the U.S. There are now over 120 qualified HMOs in the U.S.

HMO Act Amendments

In 1988, the HMO Act had its first significant amendments affecting employer-HMO relationships since initial passage. These amendments affect only federally qualified HMOs. The amendments include: nondiscriminatory employer contributions, a new rate setting method, disclosure of calculations, a self-referral option, and repeal of dual choice.


Omnibus Budget Reconciliation Act of 1986

Pertains to pension participation and taxation.


Consolidated Omnibus Budget Reconciliation Act of 1986 (CORBA) (See separate
description)

Covers continuation of health and dental insurance benefits to employees and their dependents at group rates upon the employees' termination from an employer, if employee pays premiums.

Occupational Safety and Health Act of 1970 (OSHA)

Pertains to providing a safe and healthy workplace, and provides guidelines to follow and forms that must be completed when an accident occurs. In addition, under Hazard Communication Standards, OSHA requires every workplace in the country to identify and list hazardous substances on the premises and train employees how to use them.


Tax Reform Act of 1986

Revision of the U.S. tax law. Changes the way benefits are taxed and the levels at which workers and employers are taxed. The Act contains changes to compensation and benefit provisions of the Internal Revenue Code.


Technical and Miscellaneous Revenue Act

Provides corrections and changes to the Tax Reform Act of 1986. Contains numerous changes to compensation and benefit provisions of the Internal Revenue Code. Reduced the penalty for violation of CORBA among other things. There are revisions in the areas of health care, cafeteria plans, dependent care, and educational assistance.


Worker Adjustment and Retraining Notification Act 

Requires employers of 100 or more full-time workers to give to days' advance notice of closings or major layoffs. Became effective February 4,1989. Impacts employers who are closing a facility or an operating unit with 50 or more workers, or who will layoff at least one-third, but not less than 50 of the full-time employees at a site.


Polygraph Protection Act

In 1989, Congress passed the Employee Polygraph Protection Act which prohibits most private employers from using lie detector examinations either for pre-employment screening or for screening during the course of a worker's employment.


The American with Disabilities Act of 1990 (See separate description)

This legislation prohibits employment discrimination of the disabled by businesses with fifteen or more employees. The Bill guarantees disabled Americans, including AIDS victims, rights to employment, transportation, and the use of restaurants and other businesses.


Drug-Free Workplace Act of 1988

Relates to federal contractors with contracts of $25,000 or more, mandating they provide a drug-free workplace. Contractor must post notice and establish an awareness program.


Resource Conservation and Recovery Act (RCRA)

Provides regulations and guidelines for all businesses in the U .5. regarding the handling of hazardous waste. Oversight of this Act is conducted by the Environmental Protection Agency (EPA). The EPA now requires organizations generating even small quantities of hazardous waste to train all workers to be thoroughly familiar with waste handling and emergency procedures.


Trade and Competitiveness Act of 1988

Provides programs to companies and their workers to help industries hurt by foreign competition to retrain their workers through the Job Training Partnership Act.


State Laws

State laws cover virtually all of the above areas, plus:

Workers Compensation Acts. Provide workers compensation benefits for job-related injuries, death, and disease, regardless of whether the employer or employee was at fault. Benefits provided through insurance paid for and provided by the employer.


Employment Security Acts. Provide for payment of unemployment compensation to individuals who have been separated from their jobs due to no fault of their own.



FAIR LABOR STANDARDS ACT COMPLIANCE

There exist several federal and state statues which regulate workplace wages and hours, imposing strict requirements on employers. These laws require, for example, that companies:

The main law affecting workers pay is the Federal Fair Labor Standards Act or F.L.S.A. which Congress passed in 1938. Key sections of F.L.S.A. coverage are linked here to aid companies in meeting compliance requirements.

The Fair Labor Standards Act establishes minimum wage, overtime pay, recordkeeping, and child labor standards affecting full-time and part-time workers in the private sector and in Federal, State, and local governments. Covered nonexempt workers are entitled to a minimum wage of not less than $5.15 an hour. Overtime pay at a rate of not less than one and one-half times their regular rates of pay is required after 40 hours of work in a workweek.

Unlike most federal statutes, however, the FLSA does not supercede state wage and hour law. Thus, if a state law has a higher minimum wage than the federal minimum wage (currently $5.15 per hour), the state minimum wage would apply to all workers in that state instead of the federal requirement.

Exemption of CMV Drivers from Overtime Provisions

Commercial Motor Vehicle Drivers who are subject to the federal motor carrier hours of service requirements in 49 CFR Part 395 are exempt from the overtime requirements of the FLSA. Section 13(b)(1) of the FLSA, 29 U.S.C. § 213(b)(1), provides an exemption from the overtime requirements (but not the minimum wage requirements) of the Act to any employee with respect to whom the Secretary of Transportation "has power to establish qualifications and maximum hours of service pursuant to the provisions of section 31502 of title 49 U.S.C."

In 1981 the DOTissued an interpretation of its jurisdiction to regulate driver qualifications (49 C.F.R. Part 391) and hours of service (49 C.F.R. Part 395) of drivers engaged in interstate or foreign commerce for purposes of invoking the motor carrier exemption from the FLSA. 46 Fed. Reg. 37902 (July 23, 1981). After reviewing the applicable case law, the DOT concluded that a driver who is called on, or who is subject to being called on, to drive in interstate commerce as part of the driver's regular employment is subject to the DOT's jurisdiction.

This jurisdiction applies even if the driver has not personally driven in interstate commerce if, because of company policy and activity, the driver could reasonably be expected to do interstate driving. For example, in one case a court said that a driver was not exempt from the FLSA because he was available for interstate hauls even though he had never made an interstate run and only two percent of the carrier's total operations were interstate; in another case, a court stated that employees were not subject to DOT safety jurisdiction because they could not reasonably be expected to handle an interstate run in the normal performance of their duties.

Furthermore, the DOT's interpretation stated that several interstate trips in a short period of time is not sufficient to support a finding of federal jurisdiction over a driver for an unlimited period. If a driver infrequently drives in interstate commerce, the DOT interpreted its jurisdiction to establish a "four-month rule," meaning that a driver who drives in interstate commerce or who is subject to being used in interstate commerce would be subject to Parts 391 and 395 for a period of four months. If the driver does not drive and is not subject to driving in interstate commerce during that four months, the federal jurisdiction no longer applies at the end of the period.

Under this interpretation, a driver who made a single trip across a state line would be subject to the FMCSR, and not subject to the overtime requirements of the FLSA, but only for four months unless the driver subsequently operates or is subject to operating in interstate commerce.

On February 8, 2000, the Federal Motor Carrier Safety Administration revised the 1981 interpretation to eliminate the arbitrary "four-month rule" that provides that a driver who operates in interstate commerce becomes subject to FMCSA jurisdiction for four months thereafter. In its place, the FMCSA instituted a 14/15-day rule, as follows:

1. Any driver who begins a trip in interstate commerce must continue to meet the requirements of 49 CFR 395.3(a) and (b) through the end of the next 7 to 8 consecutive days, depending on which rule the motor carrier operates under.

The driver must continue to comply with the requirements of 49 CFR Part 395, even if he/she operates exclusively in intrastate commerce for the remainder of the 60/70-hour period (i.e. 7-8 day schedule) at the end of the interstate trip. The driver must also continue to comply with the 10- and 15-hour rules as well as the 60- or 70-hour rules for the remainder of that day, and the following 7 days (if the 60-hour rule was applicable) or 8 days (if the 70-hour rule was applicable).

A driver who begins a trip in interstate commerce in a CMV must have in his/her possession a copy of records of duty status for the previous 7 consecutive days, as required by 49 CFR 395.8(k)(2) unless they meet 49 CFR 395.1(e), even if the driver operated only in intrastate commerce during that 7-day period. During the 7-day period prior to the interstate trip the driver may follow the state regulations applicable to intrastate commerce with regard to the states' CMV driving and on-duty requirements.

2. FMCSA investigators should cite drivers for violations of the 10- or 15-hour rules or the 60- or 70-hour rules that are committed while on the interstate trip or during the 7 or 8 days after completing the interstate trip (depending on which rule the motor carrier operates under).

The driver remains subject to Part 395 for 7 or 8 days after a trip in interstate commerce even if he/she drives only in intrastate commerce for that period. Violations of the policies stated here which are discovered during compliance reviews should be treated like any other violations of the FMCSRs in determining the motor carrier's safety rating and enforcement action may be taken.

The [Motor Carrier Safety Assistance Program] Tolerance Guidelines in Appendix C to 49 C.F.R. Part 350 are unchanged. This policy statement simply clarifies the difference between Paragraphs 2 and 3 of the Guidelines, i.e., between the type of trips subject to Federal jurisdiction, as opposed to those subject only to State jurisdiction

Thus, a CMV driver who operates a vehicle across state lines becomes subject to the Federal Motor Carrier Safety Regulations when the driver begins the trip in interstate commerce. The driver is then subject to the FMCSRs for the seven-day period prior to the trip (for purposes of hours of service requirements) and for either seven or eight days after the trip is ended, depending on whether the carrier uses a seven or eight-day week for hours of service purposes. Such drivers would be exempt from the FLSA overtime provisions for the period that they were subject to the DOT's jurisdiction under the 14/15-day rule.

Those drivers who operate solely within a single state are not subject to the FMCSA's jurisdiction under 49 U.S.C. § 31502 and are therefore not covered by the motor carrier exemption to the overtime provisions of the FLSA under 29 U.S.C. § 213(b)(1), however.

FEDERAL AND STATE LABOR LAW POSTING REQUIREMENTS

Federal and state laws require that every employer post specific labor law information in their workplace or risk monetary penalties. If your business has any branch offices or separate locations each must display a complete set of labor law postings.

As an employer, two sets of posting requirements must be completed: federal and individual state. The federal posting requirements include information regarding:

Each state also requires additional postings. Both the number of postings, as well as the legal information itself varies by state. Posters are available from Department of Labor offices both at the state and national level. Often times, posters are also available from local manufacturer or trade associations for a nominal fee. The reader may want to inquire with such sources in their own local area. Human resource forms publishers are another potential supplier of required posters.

The actual posting of these labor law requirements must occur in an area frequently accessed by employees, i.e., main bulleting board area, human resource department, time clock area, main company hallway, etc.

IMMIGRATION REFORM AND CONTROL ACT OF 1986

The Immigration Reform and Control Act of 1986 (IRCA) makes it illegal to discriminate against a person because he or she isn't a U.S. citizen or national. The law forbids discriminating against aliens who have been lawfully admitted to the U.S. for permanent or temporary residence - and aliens who have applied for temporary residence status.

Immigration laws enforced by the Immigration and Naturalization Service (INS) prohibit hiring aliens who don't have government authorization to work in the United States. There are specific procedures which must be followed when hiring employees, even those born and raised in the town where the employer is located.

The proper employer representative and new employee must complete INS Form I-9, Employment Eligibility Verification. This one-page form is intended to ensure that the employee can legally work in the United States and has proof of their identity.

The employee completes Section 1 of the form, attesting that he or she is a citizen or natural of the United States, a lawful permanent resident alien or an alien with work authorization. Only people in these three categories can lawfully work in the United States.

Section 2 of the form requires the employer to review specific documents such as a drivers license, social security card, passport or naturalization certificate presented by the employee as proof of the employee's identity and, employment eligibility.

The employer records the documents examined on the 1-9 Form. It is the employer's responsibility to see if the employee's documents appear valid. The INS requires that the employer must accept documents that reasonably appear to be genuine and relate to the person presenting them.

It is recommended that photocopies of the employee's documents be maintained in case the INS questions employer hiring practices in the future. IRCA documentation should be kept in a locked cabinet separate from all other documents.

Retain all I-9 forms for at least three (3) years following the date of hire or one year following the employee's termination, which ever is longer. The INS has the right to audit I-9's. Companies can be fined if they cannot produce them.


FAMILY AND MEDICAL LEAVE ACT

The following link presents an overview of requirements coming under the Family and Medical Leave Act of 1993. This legislation basically covers companies who have at least 50 employees working within a 75 mile radius.

The Family and Medical Leave Act of 1993 Factsheet (this is a same information as pages 15-18 in the manual)

Physician Certification Form for Family or Medical Leave 

CONSOLIDATED OMNIBUS BUDGET RECONCILIATION ACT (COBRA)

A federal law commonly known as COBRA applies to businesses employing 20 or more and offering a group healthcare plan. Employers covered by this law must offer employees and former employees the option of continuing their healthcare coverage if such coverage is lost or reduced because:

Members of the employees family must also be given the opportunity to continue coverage. The chart below depicts the circumstances - qualifying events that trigger an employer's obligation to allow continuing healthcare coverage under a group plan. COBRA gives rights to different people, depending on the qualifying event. How long the benefits must be continued is determined by the qualifying event and whether the covered employee is disabled.


Continuing Coverage For Former Employees

Qualifying EventPeople Entitled to Continuing CoverageHow Long
The employee quits or retiresEmployee, spouse, dependents18 months;  29 months for disabled worker
You fire or layoff the employee for reasons other than gross misconduct.Employee, spouse, dependents18 months;  29 months for disabled worker
You reduce the employee's Employee, spouse, dependents hours so he or she loses coverageEmployee, spouse, dependents18 months; 29 months for disabled worker
The employee diesSurviving spouse, dependents36 months
The employee divorces or becomes legally separatedFormer spouse, dependents36 months
The employee goes on MedicareSpouse, dependents36 months
A dependent loses coverage through marriage or ageDependent36 months

The employee must pay for continuing coverage under COBRA, including both the company and employee's share of the premium. Employers can charge 102% of the premium cost - using the extra 2% to cover administrative costs.

COBRA covers HMO and Pro plans in addition to traditional group insurance plans. COBRA also covers all other types of medical benefits, including dental and vision care.

Businesses covered by COBRA and having a group healthcare plan must give employees and their spouses a written explanation of their COBRA rights when they first become eligible to participate in the plan. When a qualifying event occurs that gives an employee or family member the right to continue coverage, the Plan Administrator then has 14 days to notify the beneficiaries of their rights under COBRA. These beneficiaries have 60 days following the notice to let the company know they want to continue their coverage. If so, the employee or eligible family member sends the proper company representative the monthly premium which is then forwarded to the insurance company. If the beneficiaries don't send the payment when due - or within the grace period - the company can cut off coverage.

THE AMERICANS WITH DISABILITIES ACT (ADA)

The primary purpose of Title I of the ADA is to allow individuals with disabilities to find and hold a job. It bars discrimination against qualified individuals with a disability in regard to job application procedures, hiring, promotion, termination, compensation, job training, and other terms and conditions of employment. To ensure this, the ADA requires equal opportunity and reasonable accommodation.

Employers with 15 or more employees, including part-time employees working for 20 or more calendar weeks in the current or preceding calendar year, must comply with the ADA.

Under the ADA, an employer may not discriminate against a qualified individual with a disability. A qualified individual is one who meets legitimate skill, experience, education or other requirements of an employment position that he/ she holds or seeks and who can perform the "essential functions" of the position with or without reasonable accommodation. An individual with a disability should not be considered unqualified simply because of the inability to perform marginal or incidental job functions. If an individual is qualified to perform essential job functions except for limitations caused by a disability, the employer must determine whether that person could perform the essential functions of the job with a reasonable accommodation. A written job description prepared prior to advertising or interviewing applicants for a job may be considered. as evidence of the essential functions of the job. Note: A complete section later in this manual discusses the development of job descriptions including ADA considerations.

Definition of Disability

A person with a disability under the ADA is an individual who has at least one of the following:

  1. a physical impairment which is defined as a physiological disorder or condition, cosmetic disfigurement or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory, cardiovascular, reproductive, digestive, genitourinary, hemic, lymphatic and skin;

  2. a mental impairment which is defined as any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and special learning disabilities. A person's impairment is
    determined without regard to any medication or assisted device being used.

  3. has a record of such an impairment; or

  4. is regarded as having such an impairment.

A person who is currently engaging in illegal drug use is not considered to have a protected disability under the ADA, however.

An employer must provide a reasonable accommodation to the known physical or mental limitations of a qualified applicant or employee with a disability unless the employer can show that the accommodation would impose an "undue hardship" on the business.

Reasonable accommodation is any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. Reasonable accommodation also includes adjustments to assure that a qualified individual with a disability has the same employment rights and privileges as those of employees without disabilities.

Although an employer is responsible for notifying job applicants and employees of its obligation to provide reasonable accommodations, it is the responsibility of the applicant or the employee to inform the employer that an accommodation is needed. An employer need not guess, or ask, if an applicant or employee requires an accommodation-the employer may assume that no accommodation is necessary unless the applicant/employee requests an accommodation.

Examples of reasonable accommodation include:

Reasonable accommodation may also include reassigning a current employee to a vacant position for which the individual is qualified, if the person is unable to perform the original job because of a disability, even with an accommodation. However, employers are not obligated to hire or transfer an applicant or employee who is not qualified for that position. And employers are not required to make an accommodation if it would impose an undue hardship on the operation of the employers business.

"Undue hardship" can include any action that is unduly costly, disruptive, or would fundamentally alter the nature or operation of the business. Factors considered in undue hardship analysis include:

1. the nature and net cost of accommodation;

2. the financial resources of the facility, number of employees and effect on expenses and resources of the facility;

3. the overall financial resources, size, number of employees, and type and location of facilities of the company or parent company; if any;

4. the type of operation of the company, including structureof the workforce, geographic separateness, and administrative or fiscal relationship of the facility to the company; and

5. the impact of the accommodation on the operation fot he facility, including impact on the ability of the other employees and the facility as a whole to conduct business.


Major Life Activities

Major life activities are activities that an average person can perform with little or no difficulty. Examples include speaking, walking, breathing, seeing, performing manual tasks, hearing and learning. The name of an impairment or a condition does not determine whether a person is protected by ADA, but rather the effect of an impairment or condition on the life of a particular person and how long it will last, or is expected to last. Some impairments, such as blindness, deafness, HIV infections or AIDS, are by their nature substantially limiting. Others such as broken limbs, sprains, infections, concussions, or appendicitis would not be considered disabilities because they are temporary conditions.


Job Interview Questions

A guiding principle according to EEOC requirements is that while employers may ask applicants about the ability to perform essential job functions, employers may not ask about a disability at the pre-offer stage. The focus on pre-offer inquiries should be on the applicant's ability to perform the job, not on physical characteristics. For example, it is illegal to ask:

An employer may describe orally or in writing the specific functions of the job, making it possible to ask whether the applicant can perform these functions, with or without an accommodation. An applicant may be asked to describe or demonstrate how he or she will perform specific job functions, if this is required of everyone applying for a job in this job category (although an applicant with a known disability that would appear to interfere with performance of a job-related function may be so asked even if other applicants are not).

Additional employment considerations affected by ADA are covered under the Recruitment and Selection portion of this manual.


Questions and Answers

Q. If I have several qualified applicants for a job, does the ADA require that I hire the applicant with a disability?
A. No. You may hire the most qualified applicant. The ADA only makes it unlawful for you to discriminate against a qualified individual with a disability on the basis of the disability.

Q. One of my employees has a broken arm that will heal but is temporarily unable to perform the essential functions of his/her job as a mechanic. Is this employee protected by the ADA?
A. No. Although this employee does have an impairment, it does not substantially limit a major life activity, if it is of limited duration and will have no long term effect.

Q. How do I determine whether reasonable accommodation is appropriate and the type of accommodation that should be made available?
A. The requirement generally will be triggered by a request from an individual with a disability, who frequently can suggest an appropriate accommodation. Accommodations must be made on a case-by-case basis, because the nature and extent of a disabling condition and the requirements of the job will vary. The principal test in selecting a particular type of accommodation is that of effectiveness (i.e., whether the accommodation will enable the person with a disability to perform the essential functions of the job). It need not be the best accommodation or the accommodation the individual with a disability would prefer, although primary consideration should be given to the preference of the individual involved. However, as the employer, you have the discretion to choose between effective accommodations and you may select one that is less expensive or easier to provide.

Q. When must I consider reassignment to another job for an employee with a disability as reasonable accommodation?
A. When an employee with a disability is unable to perform his/her present job even with the provision of a reasonable accommodation, you must consider reassigning the employee to an existing position that can be performed with or without reasonable accommodation. The requirement to consider reassignment applies only to employees and not to applicants. You are not required to create a position or to bump another employee in order to create a vacancy; nor are you required to promote an employee with a disability to a higher level position.

Q. What if an applicant or employee refuses to accept an accommodation that I offer?
A. The ADA provides that an employer cannot require a qualified individual with a disability to accept an accommodation that is neither requested nor needed by the individual. However, if a necessary reasonable accommodation is refused, the individual may be considered not qualified.

Q. Does the ADA cover people with AIDS?
A. Yes. The legislative history indicates that Congress intended the ADA to protect persons with AIDS and HIV disease from discrimination.

Q. Under the ADA, can I refuse to hire an individual or fire a current employee who uses drugs illegally?
A. Yes. Individuals who currently use drugs illegally are specifically excluded from the ADA's protection. However, the ADA does not exclude persons who have successfully completed or are currently in a rehabilitation program and are no longer illegally using drugs and persons erroneously regarded as engaging in the illegal use of drugs.

Q. Does the ADA require that I post a notice explaining its requirements?
A. The ADA requires that you post a notice in an accessible location to applicants, employees and members of labor organizations describing the provisions of the Act.

ADA AND DRIVER QUALIFICATION

The U.S. Supreme Court has affirmed that the physical qualifications of the Federal Motor Carrier Safety Regulations supercede the reasonable accommodation requirements of the Americans with Disabilities Act. Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999). That case was case brought by a monocular driver who wanted to require his motor carrier employer to qualify him under the FMCSA's voluntary vision waiver program. The Court determined that the validity of the physical qualification requirements in 49 CFR Part 391 "is unchallenged, they have the force of law, and they contain no qualifying language about individualized determinations."

Thus, the Court held that there would be "no basis" to question the carrier's "unconditional obligation to follow the [vision] regulation" and its "consequent right" to ignore the waiver program, even if that waiver program might allow the driver to be qualified otherwise. The Court specifically held that the ADA requirements did not require the carrier to avail itself of the waiver program to attempt to qualify the driver.


ADA AND DRUG AND ALCOHOL ABUSE

The ADA specifically permits employers to ensure that their workplace is free from the illegal use of drugs and the use of alcohol, and to comply with other federal laws and regulations regarding drug and alcohol use, including those in the Federal Motor Carrier Safety Regulations. At the same time, the ADA provides limited protection from discrimination to alcoholics and to recovering drug addicts.

An individual who is currently engaging in the illegal use of drugs (i.e., has not yet stopped using drugs or still has a drug habit) is not an "individual with a disability" when the employer acts on the basis of such use. An employer may prohibit the illegal use of drugs and the use of alcohol in the workplace.

Under the ADA, an employer may discharge, deny employment to, or discipline persons who currently engage in the illegal use of drugs, but may not discriminate against a drug addict who is not currently using drugs and who has been rehabilitated (because he or she has a record of impairment or is regarded as having an impairment); that is, an employer may not discriminate against a rehabilitated drug user because of that person's "reputation" as a prior drug user.

A person who is an alcoholic is an "individual with a disability" under the ADA, but an employer may discipline, discharge, or deny employment to an alcoholic whose use of alcohol impairs job performance or conduct to the extent that he or she is not a "qualified individual with a disability."

An employer must still require commercial motor vehicle drivers to comply with DOT rules prohibiting consumption of alcoholic beverages during and within four hours of going on duty, and prohibiting alcohol impairment (a blood alcohol content of .02 or greater) while on duty. Other employees may be required to meet similar company policies prohibiting alcohol use while on the job.

ADA AND COLLECTIVE BARGAINING AGREEMENTS

Employers and labor unions are prohibited by the ADA from taking any action through a labor contract that they could not take themselves. That is, a union may not bargain away rights guaranteed under the ADA in exchange for other benefits.

In addition, the terms of a collective bargaining agreement (e.g., seniority provisions) may be relevant in determining whether a particular accommodation would cause an employer undue hardship.

Also, while the job descriptions in a collective bargaining agreement might be considered evidence of "essential job functions," such evidence is not conclusive.


AFFIRMATIVE ACTION PLANS

An Affirmative Action Plan (AAP) is a detailed set of objectives and plans designed to achieve prompt and full utilization of minorities and women at all levels and in all job areas of the workforce. Affirmative action also includes seeking job opportunities for the handicapped, disabled veterans, and Vietnam era veterans.

An Affirmative Action Plan (AAP) is mandated when companies do business with the government in excess of $50,000 and employ more than 50 workers. Second-tier companies, that is firms which supply larger federal contractors, also are subject to affirmative action guidelines. Non-profit organizations that receive considerable amounts of federal funding, even those with fewer than 50 employees, may be required to have an AAP under certain circumstances, as are some companies that work on state sponsored projects. Companies that have been audited, or are likely to be audited by the Office of Federal Contract Compliance Programs, also are advised to have an established AAP in place.

There exist eight key elements that comprise an effective Affirmative Action Program. These include:

1. Corporate policy statement.
2. Policy dissemination/ communication.
3. Assignment of an EEO Coordinator.
4. Workforce analysis.
5. Goals.
6. Development and execution of the program.
7. Support of community and outreach programs.
8. Effective auditing and reporting systems.

Affirmative Action Plans can be quite lengthy, thus a model plan cannot be included here. However, linked here are specific government requirements for developing an AAP. Please contact your GAWDA Human Resource Consultant should further assistance be required.


ANNUAL EEO-1 REPORTING FORM

A company completed report required by the EEOC is the annual EEO-1 Form. This report is not voluntary. All employers with 100 or more employees or subsidiaries of another company that would total 100 employees must file the reports. Also, federal contractors who have a contract of $50,000 or more must file the annual report.

For companies with multiple facilities, the following reporting requirements are necessary:

1. Overall Company Consolidated Report
2. Headquarters Report
3. Separate report for all facilities employing 50 or more
4. For separate facilities employing less than 50, create an "establishment listing" detailing:

Attach each establishment listing to the Consolidated Report and submit to the indicated government location. Companies may obtain first time filing forms by calling the EEO Surveys Office at (202) 663-4968. After the initial request the government should automatically mail the form each year. 

TIPS FOR EFFECTIVELY HANDLING AND RESPONDING TO A CHARGE OF DISCRIMINATION

For a variety of reasons, a disgruntled employee may file a discrimination charge against a supervisor or company in general. It is important that the following points be observed in coming to a resolution of the charge.

1. Review the Charge for Procedural Defects. Charges can be, and often are, dismissed for procedural defects.

2. Immediately Review the Complainant's Personnel File. As soon as you receive notice of a charge, review the complainant's personnel file. Advise everyone associated with the charge to keep ALL records relating to it until final resolution of the complaint.

3. Ensure No Retaliatory Action Is Taken. Treat the complainant as if his/her discrimination complaint had not been filed.

4. Conduct an Investigation (Gather the Facts). Conduct your own investigation of the charge as quickly as possible to discover all relevant facts. A "team" approach that pairs an HR representative with legal counsel often proves the most effective device for ensuring a thorough and complete investigation.

5. Evaluate the Claim Determine Your Exposure. After the investigation is completed, truthfully evaluate whether your organization should defend itself against the charge, or whether it should pursue a settlement.

6. Submit a Statement of Position. This official response is a critical document, since it is used not only by the EEOC to evaluate the employee's claim, but also can be used against the employer in later proceedings. Prepare the document with that in mind. Do not reveal any information or documents that are not essential to the case.

7. Prepare for the Fact --Finding or Mediation Conference. Under newly adopted EEOC procedures, the investigator will attempt to mediate a settlement between the parties.

8. Prepare for an EEOC Investigation. Many times, the EEOC wants to conduct its fact-finding investigation "on-site," i.e., on the employer's premises. Before the EEOC investigator arrives: (1) prepare potential witnesses; and (2) narrow the scope of the investigation to the relevant issues.

9. Prepare for Settlement Negotiations. If the parties have not reached a settlement at this point in the EEOC process, be prepared for the EEOC investigator to begin settlement negotiations.

10. Review Policies and Procedures. If a particular policy or procedure led to the charge, it needs to be revised. Any policy or practice that helped the employer defend itself should be used as a model.

11. Determine Whether Further Training or Disciplinary Action Is Needed. Review procedures to see if further training or disciplinary action is necessary to ensure the discriminatory practice or action, if it did occur, is stopped and that it does not occur again.

Companies presented with a discrimination complaint should contact their company or labor attorney for assistance in resolving the charge.

CHILD LABOR LAW GUIDELINES

The Fair Labor Standards Act regulates the employment of individuals less than 18 years of age. Presented is an overview of child labor regulations per specific government guidelines on this topic. The reader is encouraged to contact the GAWDA Human Resource Consultant as questions arise in this area.


Employment of Minors Outside Agriculture

Sixteen and seventeen year olds may work in any occupation except those which are viewed as particularly hazardous by the Department of Labor. Particularly hazardous occupations, pertaining to GAWDA company work environments, include those involved with:

There are no limitations on the hours which 16 and 17 year olds may work.


Key Points for GAWDA Companies

1. Per DOT guidelines (rule 49 CFR 391.11), a driver must be at least 21 years of age to operate a commercial motor vehicle. A commercial motor vehicle (CMV) is:

2. Some automotive insurance policies may additionally fix the minimum age of a driver working for one of their insured.


Employment of 14 and 15 Year Old Children

The employment of 14 and 15 year olds is much more restricted than the employment of older children. Fourteen and fifteen year olds may work in any occupation except the following:

Fourteen and fifteen year olds may not work during the following times:


Minors Under Age 14

Employment of minors under the age of 14 in non-agricultural occupations is prohibited. Exceptions are allowed when minors under the age of 14 are employed as follows:


HEALTH INSURANCE PORT ABILITY AND ACCOUNT ABILITY ACT OF 1996 (HIPAA)

HIP AA, effective July 1, 1997, offers protection for workers in danger of losing health insurance coverage, such as those who had illnesses before starting new coverage and are denied for that reason; or those who lose coverage for existing conditions when they change jobs. HIPAA offers protection by allowing employees to buy insurance on their own as long as they had insurance through their jobs for at least 18 months and exhausted coverage under COBRA. The Act also establishes new requirements for insured and self-insured health plans and modifies existing COBRA requirements.


Record Keeping Requirements

Plans must provide a written certification of all prior coverage and any waiting period under the plan to individuals who lose coverage, once at the time coverage ends, again when COBRA coverage ends, and upon request, at any time within 24 months following cessation of coverage. The certifying plan must also disclose information about coverage with respect to a specific class or category of benefit if asked to do so by another health plan.

In general, both group plans and insurers must furnish certificates, but duplicate certificates aren't required. So, for example, a group plan meets this burden if it and its insurer agree that the insurer will issue the certificates.

Certificates must be in writing and include the following information:

Due to the complexity of these requirements, GAWDA member companies are strongly encouraged to contact its group insurance carrier to insure compliance with HIP AA. Plan representatives should be able to answer questions regarding this important benefits change.

Handy Reference Guide to the Fair Labor Standards Act (same as pg 39-46 in manual)




HUMAN RESOURCE POLICIES

 

REASONS FOR DEVELOPING HUMAN RESOURCES POLICIES

A main objective of effective human resource management is that basic guidelines on how employees are to be treated exist and that each employee is treated consistently under these guidelines. The creation of company policies can help to accomplish this objective. Also, policies can help the company in litigation cases where an employee feels that he or she was not treated fairly. Policies are not needed to cover every single event that may occur. Rather, they provide general company direction on areas pertaining to legal compliance and the more difficult areas of human resource management like discipline and termination. It is a good idea that prior to developing human resource policies that consultations occur with department heads and supervisors. Getting input on current problem areas in managing employees can allow policy development to address real needs and thus maintain the interest and support of company managers.

AREAS TO INCLUDE IN A POLICY MANUAL

The following topics are usually addressed in developing a Policy Manual:

Clarification must often be made regarding the function of the Policy Manual and that of the Employee Handbook (discussed later). The employee handbook's purpose is to provide more of an overview of various company on the job practices and programs along with company management expectations of employees. The policy manual, however, is more for implementation use by the supervisor or manager. Here step by step guidance is presented in correctly administering developed company policies.

SAMPLE POLICY FORMAT

While there is no need to be overly sophisticated in writing policies, there should exist clarity in writing style and some organized means of maintaining and revising adopted policies. A simple format, as shown, may be used in creating human resource policies. While the policy itself may include only a few key sentences, an accompanying section should exist on stating how the policy is carried out.


HUMAN RESOURCE POLICIES
Policy Title:_________________
Policy Number:_______________
Human Resource Manual Section:_________		Approved By:_________________________
Date Adopted:_____ Last Rev. Date:______
  Policy: Steps and/or Procedures in implementing the above policy:

1.

2.

3.

4.

5.

6.

 

 

 


Sample Human Resource Policies
Employee Benefits

Our benefits programs have been designed to provide economic incentives and support for our employees in a fair and uniform manner, consistent with Company objectives. The Company will periodically review and modify, if necessary, its benefits package to make sure its employees receive adequate benefits within financial constraints. In the event that a benefit is added or withdrawn, employees will be informed as soon as practically possible.


Orientation

The Company provides a comprehensive orientation program to help new employees become acquainted with their positions as quickly as possible. It is the responsibility of the Human Resource Department to acquaint new employees with the Company's benefit programs, code of conduct and regulations regarding absences, illness, etc. It is the responsibility of new employees' immediate supervisor to instruct new employees on their job responsibilities and department safety guidelines. The appropriate orientation checklist will be completed for all new hires.


Hiring

We are an equal opportunity employer and will not discriminate in the hiring process on the basis of sex, religion, race, color, age, disability, martial or veteran status, or national origin. Complete records of this process will be maintained, and all job openings not filled within the Company will be placed as equal employment opportunity ads in selected newspapers.

The Company will hire the best qualified applicant. Whenever possible, new positions for which the Company will advertise will also be posted for all current employees interest.


Job Descriptions

A job description will be prepared when a new job or position is created or when an existing position is significantly altered. Revisions should be made as quickly as possible after a position's responsibilities change.

Every job description must include the essential duties and responsibilities which an employee performs every day or at regular intervals. It should also include occasional duties which they may be asked to perform on occasion, but which are not part of the normal job functions.

 


Note: The above four policy examples provide a general guideline on both the content and tone policies should contain. Each company should, however, develop policy statements consistent with its own operating philosophy and existing culture.


MAINTAINING A POLICY MANUAL

Human resource policies must be continually reviewed to ensure that they meet their intended objective. For example, does the policy on "employee performance appraisal" spell out when appraisals are due and define the approval levels needed before discussing the appraisal with the employee? Or in other words, do company policies provide answers to the more typical questions that may arise when managing the workforce?

Points to keep in mind:

DRUG AND ALCOHOL USE AND TESTING POLICY

Sample Company Policy for Commercial Motor Vehicle Drivers [Note: this policy may also be adapted for non-driver employees.

In accordance with the Federal Motor Carrier Safety Administration's drug use and alcohol misuse rules for drivers of commercial motor vehicles (CMVs), it is the policy of XYZ Company to prohibit the following alcohol and drug-related activities:

1. Reporting for duty or remaining on duty to perform safety-sensitive functions while having an alcohol concentration of 0.04 percent or greater;

2. Being on duty or operating a CMV while possessing alcohol, unless the alcohol is manifested and transported as part of a shipment. This includes the possession of medicines containing alcohol (prescription or over-the-counter), unless the packaging seal is unbroken;

3. Using alcohol while performing safety-sensitive functions;

4. Performing safety-sensitive functions within four hours after using alcohol;

5. When required to take a post-accident alcohol test, using alcohol within eight hours following the accident or prior to undergoing a post-accident alcohol test, whichever comes first;

6. Refusing to submit to an alcohol or controlled substance test required by post-accident, random, reasonable suspicion or follow-up testing requirements;

7. Performing any safety-sensitive function with an alcohol concentration of at least 0.02 percent but less than 0.04 percent. A test indicating this concentration level will require that the driver be prohibited from performing safety-sensitive functions for 24 hours;

8. Reporting for duty or remaining on duty, requiring the performance of safety-sensitive functions, when the driver uses any controlled substance, except when instructed by a physician who has advised the driver that the substance does not adversely affect the driver's ability to safely operate a CMV; and

9. Reporting for duty, remaining on duty or performing a safety-sensitive function if the driver tests positive for controlled substances.

"Safety-sensitive function" means any of those on-duty functions set forth in 49 CFR § 395.2 "On-Duty time," paragraphs (1) through (7). "Performing (a safety-sensitive function)" means any period in which a driver is actually performing, ready to perform, or immediately able to perform any safety-sensitive function.

In addition, no employee at any work site may possess any quantity of drug or alcohol which, in sufficient quantity, could result in impaired performance, except for authorized substances. "Work site" means any office building, motor vehicle or property (including parking lots) owned or operated by XYZ Company, or any other site at which an employee is to perform work for XYZ Company. "Possess" means to have either in or on an employee's person, personal effects, motor vehicle, tools or areas substantially entrusted to the control of the employee such as desks, files and lockers. Authorized substances include only (1) lawful over-the-counter drugs which do not have alcohol as an ingredient (in reasonable amounts); and (2) other lawful (prescription) drugs or alcohol, except for methadone, the possession of which management has been advised of and has been approved in advance.

Finally, no employee may use any illegal drug or controlled substance at any time, whether or not on company property. Although XYZ Company does not desire to intrude into the personal lives of its employees, it is recognized that off-the-job, as well as on-the-job, involvement with illegal drugs or controlled substances can have an adverse impact on the safety and security of the workplace and our ability to achieve our goal of maintaining a drug-free workplace. This requirement is based on the fact that such substances can place individuals under the influence of the drug to some degree, even if the impairment is not readily apparent. While employees may make their own lifestyle choices, the company will not accept the risks or performance problems that substance abuse and alcohol misuse can create.


COMMUNICATING NEW OR REVISED POLICIES



COMPENSATION MANAGEMENT

 

DETERMINING PAY PROGRAM OBJECTIVES

Wages and salaries paid to employees represent, in most cases, the largest expenditure by the distributor. Yet in many cases, companies have no real focus or established objectives in managing the employee compensation function.

The cornerstone of a sound compensation program is the establishment of the pay philosophy the organization wants to follow. For example:

One company's pay policy is the following:

"It is the policy of XYZ Corporation to provide pay levels which are comparable to those provided by the corporation's competition for employees of equivalent performance, required knowledge, skill and accountability."

The following five pay objectives are typical for most large and small companies wanting to more effectively manage its compensation function.

1. Internal Equity

It is not just the amount of pay received that makes an employee satisfied or dissatisfied but the amount received in relation to some other measure, such as those in similar jobs within the same company. It is important to establish the proper pay relationship between positions within the organization. The president or chief executive officer holds the top job without serious question, but beyond this point a formal system is necessary to rank positions in
descending order of importance.

2. External Competitiveness

Insuring that actual salaries paid are comparable to pay levels for similar jobs in like companies is usually achieved best by surveys. Companies may want to conduct its own surveyor purchase one already completed by a trade association (like the GAWDA pay and benefits survey), or consulting firm. Management must then decide after analyzing survey data, whether it wants to pay " average "above average" or be the "best".

For hourly and clerical jobs, local surveys would be utilized most often. For professional and managerial positions, however, regional and national survey data would be collected in addition to local survey information. In many cases, companies would have to hire a new employee from outside the immediate area to fill a key higher level position. Thus, it is important to know competitive pay practices from where these individuals might be recruited.

3. Pay for Performance

In recent years, a shift has occurred in granting pay increases. Cost-of-living or across the board increases are being replaced with pay adjustments based on individual or work team job performance. The need to improve productivity is one of the key economic issues facing organizations today. Pay systems should be designed to further the goal of increased employee productivity.

4. Legislative Compliance

Legislative regulations, executive orders and judicial decisions have a definite impact on an employer's pay program. Pay practices must insure compliance with Fair Labor Standards Act requirements, Equal Pay Act, Title VII of the Civil Rights Act and the Age Discrimination in Employment Act, to name but a few key legislative guidelines. These areas would include minimum wage and overtime pay requirements as well as compliance with child/labor and exempt vs. non-exempt mandates.

5. Administrative Efficiency

Excessive time and money should not be spent in pay program administration. Pay systems should be kept simple and flexible. Paper work should not become an end in itself.


JOB DESCRIPTIONS

A job description is a formal document that summarizes the important functions of a specific job in a uniform narrative format. Job descriptions are the foundation of every sound pay program. Managers and employees must know and understand not only their own job description but how it relates to their department's goals and objectives and how the department relates to the organization's overall goals and objectives.

Before individuals are asked to write a job description they should understand the many valuable uses that organizations have for these documents.

1. Compensation

The most widely recognized use of job descriptions is in the management of pay programs. Job descriptions establish the basis on which organizations build their job classification system. Job descriptions are also used to conduct wage and salary surveys, determine exempt-non-exempt status and identify participants in company incentive or bonus programs.

2. Performance Standards

Job descriptions create evidence of an agreement between worker and manager on the nature of the job and the basis on which good performance will be determined. Workers understand that job descriptions provide the ground rules for their employment and performance appraisal. Without a job description, it becomes a matter of opinion as to what the actual job duties and responsibilities are, and how "good" performance can be measured.

3. Legal Defense

Often, when employment litigation occurs, one of the first documents requested is the job description. Without up-to-date and clear job descriptions, the resolution of issues becomes difficult and either party, usually the employee's side, can take advantage of the absence of good job documentation. The ADA has highlighted the need for clear and accurate job descriptions due to the requirement that a job's essential and non-essential functions be identified.

4. Communications

Communications is the substance of good employee relations. The job description is the best tool for communicating to employees what is expected of them and reinforcing daily verbal directions. Job descriptions should be updated at the beginning of each performance review cycle.

5. Recruiting

Job descriptions help identify the specific hiring requirements for job openings. Without this important information available, candidates may be hired possessing the wrong education or experience. Also, the job description can be useful in orienting new employees. Even though a new employee may have a general understanding of the job based on the interviewing process with human resources or hiring manager, the job description specifically spells out expectations beginning with the first day of employment.


Who Should Write Job Descriptions?

Job incumbents are the best source of information about a job because they perform it everyday and know it best. However, not all job incumbents are skilled enough in language to write job descriptions. For this reason and more, supervisors, job analysts from human resources or outside consultants may have to write the job description. It is important however, to include employees in the data collecting process. Through questionnaire or individual interviews, employee input is key to developing accurate job descriptions. Employees will also buy into the process more favorably if they feel their involvement resulted in the successful completion of the job description project.


Considerations in Writing Job Descriptions

1. Focus on job content - essential job functions, not extraneous information.

2. List only the requirements that are necessary now - not additional expectations required several months in the future.

3. Keep education and experience requirements job related.

4. Don't focus on the incumbent. The job analysis and description are about the job, not the person.

5. Do not detail every activity of the job holder so that it appears like a "laundry list" of minor or rarely completed job duties. Job descriptions should not exceed 2-3 pages.

6. Describe physical and mental requirements and working conditions.

7. Avoid sexist language and do not state or infer that certain jobs are "male" or "female" jobs.

8. Limit use of the word "may". For example "periodically the employee substitutes for the receptionist. "Don't say "may substitute."

9. Use action verbs and be specific. Be as clear as possible. Instead of saying "handles files," say, "sets up files according to department procedures, pulls and re-files daily and creates new files as needed."


Essential Job Functions and Americans with Disabilities Act (ADA)

The term "essential functions" means the fundamental job duties of the position. It is imperative today that job descriptions specify those duties considered essential to completing the job purpose. According to ADA, a job function may be considered essential for any of several reasons including the following:

Build flexibility into all job descriptions by stating that the list of essential functions, critical to ADA compliance, is not exhaustive and will be supplemented as required. Specify how the job is to be supervised and to whom the employee must report.

Accurate job descriptions result from a thorough job analysis.

Sample Statements to Describe Physical and Mental Demands

Physical Demands

Mental Demands

Sample Job Descriptions

Included for the reader review are two sample job descriptions depicting major heading sections typically included in job descriptions. Sample 1; Sample 2.


COMMUNICATING PAY POLICIES

Many companies have found that effective communication with employees enhances the acceptance and therefore the success of their pay program. This includes communication of both the overall pay philosophy, as well as the policies and procedures which govern the operation of the pay program.

Subjects which might be considered for inclusion in the communication process include:

Techniques which may be used in the communication process include:

a.) written policy statements.
b.) presentation to employee groups.
c.) employee handbooks.
d.) direct communication between supervisor and employees.
e.) on-going written communications covering pay topics utilizing employee newsletters, payroll stuffers, etc.

The methodology employed in this communication process will depend to a great extent on the management style of the organization, the general employee relations atmosphere, as well as the resources that management is able and willing to commit.


EXEMPT VS. NON-EXEMPT JOB CLASSIFICATION

The Fair Standards Act (FLSA) is a federal law that requires that employees be paid at least the minimum wage and overtime for hours worked over 40 hours a week. Some employees ate "exempted" from (not covered by) the law, and do not have to be paid minimum wage or overtime if certain requirements are met.

The most common exemption is for white collar employees. To meet this exemption, white collar employees generally must meet the Department of Labor definition of an executive, administrative, professional, highly skilled computer-related occupation, or work in outside sales. In addition, the white collar employee must be paid on a salary basis.

Paid on a "salary basis" means that the employee is paid the same, pre-determined amount for each week that he or she performs any work. The theory behind this is that a white collar employee is paid for the work done, not for the number of hours worked. Non-exempt employees can also be paid a " salary", but also must be paid overtime for any hours they work over 40 hours a week.

The Department of Labor has a short and long test for executives, administrative employees, and professionals. These short tests and the test for outside sales employees and employees in computer related occupations are summarized below. If you have a specific question about whether a given employee meets the test, please contact the Department of Labor or GAWDA Human Resource Consultant.

1. Exempt Executive Employees

An individual will be considered to be an exempt executive under federal law if:

2. Exempt Administration Employees

An individual will be considered to be an overtime exempt administrative employee under federal law if:

3. Exempt Professional Employees

An individual will be considered to be an overtime exempt professional employee under federal law if:

4. Highly Skilled Computer Occupations

Employees who are engaged in highly skilled computer occupations are overtime exempt if:

5. Exempt Outside Salespersons

An individual will be considered to be an overtime exempt outside salesperson if:

In structuring its pay policies, an employer should bear in mind that overtime exempt status is determined on an individual basis. The fact that some of the individuals in a job classification are overtime exempt will not be determinative of the status of all of the individuals in the same job classification.

Note: Of particular interest to welding supply distributors is that "inside or counter sales" job functions usually are of a non-exempt nature. Thus, employees in this category are eligible for 1 1/2 overtime rate of pay for hours worked in excess of 40 hours in a regular work week.


Exemption Tests

Presented for reader review are the more in-depth government "long" and "short" tests which may be utilized in determining exempt or non-exempt status. Provided that the employee earns a salary of at least $250/week, the short or "streamlined" test may be used.


CHART OF WHITE-COLLAR EXEMPTION TESTS

EXECUTIVES

Tests: All six must be met.

A. Primary duty is the management of (1) the enterprise in which he is employed, or (2) a customarily recognized department or subdivision thereof.

B. Customarily and regularly directs the work of two or more other employees.

C. Has authority to hire or fire other employees or to make recommendations as to hiring, firing and the advancement, promotion, or change or status of employees.

D. Customarily and regularly exercises discretionary powers.

E. Receives payment on a salary basis at a rate or not less than:
(1) $155 a week in the 50 states: $130 a week if employed by other than the Federal Government in Puerto Rico, the Virgin Islands, and American Samoa.

F. Does not devote more than 20 percent or the hours worked in the workweek to activities which are not directly and closely related to the performance of exempt work; with the exception of

  (1) executive employees in retail or service establishments who may devote up to 40 percent of the hours worked in the workweek to activities not directly or closely related to executive activities.
  (2) an employee who owns at least 20-percent interest in the enterprise in which he is employed, and
  (3) an employee who is in sole charge of an independent establishment or a physically separated branch establishment.


Streamlined Tests for High-Paid Executives

Executive employee paid at least $250 ($200 If employed by other than the Federal Government in Puerto Rico, the Virgin Islands and American Samoa) weekly may quality for exemption if he meets these tests:

  (1) primary duty consists of the management or the enterprise in which he is employed or of a customarily recogn1zed department or subdivision thereof; and
  (2) such duty includes the customary and regular direction of the work of two or more other employees in the establishment or department.


ADMINISTRATIVE EMPLOYEES

Tests: A, B, D, and E must an be met along with one of the three tests in C.

A. Primary duty is the performance of office or non-manual work directly related to management policies or general business operations of his employer or his employer's customers, or the performance of functions in the administration of a school system or educational establishment or institution, or of a department or subdivision thereof,
in work directly related to academic instruction or training; and

B. Customarily and regularly exercises discretion and independent judgment; and
 
C. (1) Regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity , or
    (2) performs under only general supervision work along specialized or technical lines requiring special training, experience, or knowledge, or
    (3) executes under only general supervision special assignments and tasks; and

D. Does not devote more than 20 percent of his hours worked in the workweek to activities which are not directly and closely related to the performance of the work. described in subsections (A) through (C) above; with the exception of administrative employees in retail or service establishments who may devote up to 40 percent of the hours worked in the workweek to activities not directly and closely related to administrative activities; and

E. Receives payment on a salary or fee basis at a rate of not less than: (1) $155 a week in the 50 states: (2) $125 if employed by other than the Federal Government in Puerto Rico, the Virgin Islands, and American Samoa, or in the case of academic administrative personnel, is compensated for his services at either of the rates above or on a salary basis in an amount which is at least equal to the entrance salary for teachers in the school system or educational establishment or institution by which he is employed. (3) Administrative employees employed an a fee basis for less than a normal 40 hour week must be compensated at an hourly rate of not less than $3.875 ($3.125 if employed by other than the Federal Government in Puerto Rico, the Virgin Islands and American Samoa.) These figures represent the hourly rate at which such employees would ordinarily be compensated to reach the minimum salary rates, based on a 40 hour week, to qualify for exemption.


Streamlined Tests for High-Paid Administrative Employees

Administrative employees paid at least $250 ($200 if emp1oyed by other than the Federal Government in Puerto Rico, the Virgin Islands, and American Samoa) weekly may qualify for exemption it they meet these tests:

(1) primary duty is the performance of office or non-manual work directly related to management policies or general business operations of his employer or his employer's customers; and
(2) such duty includes work requiring the exercise of discretion and independent judgment.


PROFESSIONAL EMPLOYEES

Tests: One of the alternate requirements under A and all of the requirements B, C, D, E must be met.

A. Employee must have as his primary duty either (1) work requiring knowledge of advanced type in a field of science or learning, or (2) original and creative work in an artistic field, or (3) teaching, tutoring. instructing, or lecturing in the activity of imparting knowledge as a teacher certified or recognized as such in the school system or educational establishment or institution by which he is employed.

B. Work requires the consistent exercise of discretion and judgment.

C. Work must be (1) predominantly intellectual and varied in character as opposed to routine mental, manual, mechanical, or physical work; and (2) of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period or time.

D. Time spent in activities not "essential part or and necessarily incident" to professional duties may not exceed 20 percent or employee's own weekly hours worked.

E, Receives payment on a salary or fee basis at a rate of not less than (1) $170 a week in the 50 states: $150 if employed by other than the Federal Government in Puerto Rico, the V1rgin Islands, and American Samoa. The salary requirement in this paragraph E need not be met in the case of an employee (a) who holds a valid license or certificate permitting the practice of law or medicine or any of their branches and is actually engaged in the practice thereof, or (b) who holds the requisite academic degree for the general practice of medicine and is engaged in an internship or resident program pursuant to the practice of medicine or any of its branches, or (c) who is employed and engaged as a teacher. (2) Professional employees employed on a fee basis for less than a normal 40 hour week must be compensated at an hourly rate of not less than $4.25 ($3.74. if employed by other than the Federal Government in Puerto Rico, the Virgin Islands and American Samoa). These figures represent the hourly rate at which such employees would ordinarily be compensated to reach the minimum salary rate, based on a 40 hour week, to quality for exemption.


Streamlined Tests for High-Paid Professional Employees

Professional employees paid at least $250 ($200 if employed by other than the Federal Government in Puerto Rico, the Virgin Islands, and American Samoa) weekly may qualify for exemption if they meet either of these tests:

(1) primary duty consists of the performance or work either requiring knowledge of an advanced type in a field of science or learning, or teaching, including work that requires the consistent exercise of discretion and judgment; or (2) primary duty consists of the performance of work in a recognized field of artistic endeavor, including work that requires invention, imagination, or talent.


OUTSIDE SALESMEN

Tests: Two must be met.

A. Employed for the purpose of and is customarily and regularly engaged away from his employer's place of business in (1) making sales or (2) obtains orders or contracts for services or for the use facilities for which a consideration will be paid by the client or customer.

B. Hours of work of a nature other than described in the first test must not exceed 20 percent of the hours worked in the workweek by nonexempt employees of the employer. Work performed incidental to and in conjunction with the employee's own outside sales, including incidental deliveries and collections, shall not be regarded as nonexempt work.

Note: The Wage and Hour Division of the Department of Labor has issued a major proposed rulemaking that would substantially revise the categories for exempt and non-exempt employees. 68 Federal Register 15560 (March 31, 2003). According to the Department of Labor, this proposal would guarantee overtime pay for 1.3 million more low-wage workers.

For the first time since 1975, the Department's proposed regulations would raise the salary threshold-below which workers would automatically qualify for overtime-from $155 a week to $425 a week. This increase of $270 a week would be the largest since Congress passed the FLSA in 1938. The impact of this revision will be to increase the wages of 1.3 million lower-income workers and reduce the number of low-wage salaried workers currently being denied overtime pay.

Other proposed changes include revising job duties required to qualify for the exemption to better correspond to 21st century workplace realities. The old regulations, written in 1949, mention job classifications that no longer exist, such as key punch operators, straw bosses, leg men and gang leaders. Clarifying which job duties qualify for overtime pay will help workers and employers easily determine overtime entitlement for millions of workers whose status is currently unclear.

GAWDA will update this section of the HR Manual when these proposals become final regulations


PERFORMANCE APPRAISAL

Most companies have some type of process for evaluating employee job performance. Unfortunately, most programs fail to meet their intended objectives. Developing an evaluation process for a workforce composed of employees with different personalities, attitudes and aptitudes is not an easy task. Many managers put off giving performance reviews; sometimes it is because they do not like to criticize employees or they do not know how to evaluate performance objectively.

Employees want to know how they are doing and be recognized for good performance. It is crucial that managers learn the techniques required to conducting effective performance appraisals.

In its simplest form performance appraisal begins when an employee says he/she will accomplish something and then someone inspects to see that it was accomplished.


Determining Performance Standards

Job descriptions provide key information needed to measure employee performance objectively. Listed job duties, or essential functions, can be primary standards of performance to determine how the employee is performing. Of course, this assumes that job descriptions are current and truly reflect what the employee does.

Quantitative standards may also be used in evaluating performance. Should an employee in position X be producing Y amount per hour? Or, should he/she be meeting a certain amount of deadlines each week?

At the higher levels in the organization, specifically developed goals and objectives, previously established, may be measured. These include goals pertaining to sales volume, on-time shipments, errors/rework, customer response time or department accident record. All of the previous can affect an organization's overall success and thus should be considered in the employee appraisal process.

Employees have the right to know the standards used to evaluate them and should have input in determining those standards.


Considerations In Creating Goals

1. Make certain goals are attainable and measurable.
2. Goals must be consistent with the overall business plan.
3. Both the manager and employee must know when the goal has been achieved.
4. Periodic, at least quarterly, checkpoints should be established to review progress toward meeting goals.
5. Both managers and employees must have the appropriate training in developing
goals.


The Appraisal Form

No part of the performance appraisal process has received more attention than the design of the evaluation tool. For some, the form is more important than the process and the results. One must remember that the passage of the Civil Rights Act of 1964 characterized performance appraisal forms as a test of adverse impact. Careful thought must go into the appraisal form, as to its design, so that every employee is evaluated fairly.

Sample appraisal forms have been included for reader review (Sample 1; Sample 2; Sample 3). They are not offered for use ''as is"; rather, a company should develop an appraisal form or instrument that meets its own specific needs. Companies may use different forms for hourly, non-exempt, and exempt employees. The hourly and non-exempt appraisal forms are usually less sophisticated and easier to complete. The exempt appraisal forms may be more extensive and precise because employees have broader responsibilities and goal accountabilities. It is very important that when completing the appraisal form, the rater be as specific as possible in documenting incidents of good or unacceptable job performance. Subjective comments such as, "is lazy" or "does not perform well" lacks in identifying the specific problem area.


The Appraisal Interview

The appraisal interview is the most critical part of the performance appraisal process. The following guidelines, when implemented, should allow for a more constructive appraisal meeting involving the manager and employee.

1. Adequate Preparation - Performance review is not something "to get over with." Sufficient time should be taken to review employee performance records, goal attainment and critical work incidents happening during the year. The reviewer may even want to prepare additional notes on areas to be discussed during the interview.

2. Choose the time carefully - The appraisal interview should be pre-scheduled well ahead of time to allow the employee adequate time to prepare. Also, the appraisal interview should not be conducted 10 minutes before quitting time or right after having disciplined the employee. The evaluators time must be as objective as possible, free of competing thoughts.

3. Explain the purpose of the interview - Employees must be assured that their manager wants to help them do a better job and reach their full potential. The appraisal discussion is not a time to "chew out the employee" or become hostile. While unsatisfactory performance areas must be discussed, the supervisor should constructively structure the meeting.

4. Present the evaluation - Positive or job strength areas should be discussed first then the weak areas. Comments should be specific using actual examples of good or unacceptable job performance.

5. Ask for comments - It is suggested that open-ended questions be used when soliciting employee feedback. That is, questions that cannot be answered with just a "yes" or "no". For example, ask questions like, "what are your suggestions to improve customer response time?" Or, "how do you think we can lessen products requiring rework?"

6. Do not criticize needlessly -There is little to be gained and much to be lost by criticizing the person's personality. Concentrate on performance, not personality. If the employee needs improved people handling skills, provide the necessary training and tie this into the job's requirements.

7. End the interview on a positive note -Targets and an action plan must be established for the next rating period. To guard against possible misunderstandings, review the goals and agreements decided upon and schedule a quarterly or 6-month meeting to note progress in meeting them. Finally, the employee must be assured of the supervisor's continued support.


Legal Considerations in Performance Appraisal

Individuals completing performance evaluations must be aware that anything written or said may at some time have to undergo a court test. Thus, it is important that the rater refrain from commenting on anything about the employee other than his or her actual performance. For example, a supervisor may suspect that an employee is unstable, or is an alcoholic, or has even stolen some valuable supplies from the company. But unless solid proof for those suspicions exist they should be left out of the records. One must also make sure that they are not influenced by such factors as the employee's race, national origin, sex, age, religion, or disability - only his or her performance.

Though subjective judgments are difficult to document, many are begging for examples. The rater, as mentioned earlier, must have supporting evidence to justify the use of subjective standards. When an employee "isn't aggressive enough" and "lacks leadership qualities," point to behavior that reflects those deficiencies, and give the person concrete examples of how they are expected to be "more aggressive" and exhibit "leadership." If one can't provide examples, perhaps these judgments should not be made. It can't be said too often - documented records are the best defense against charges of bias, so get it down on paper. When an employee has been tardy, uncooperative, insubordinate, or guilty of poor performance, enter the incident into the records and document it. Point to those performance records when conducting an evaluation, and take notes to document discussions with the employee. These notes are then a part of the overall records.

COMPENSATION PROGRAM AUDIT

Job Descriptions

Salary Structure


Policies



EMPLOYEE RELATIONS

 

EFFECTIVE DISCIPLINE

A good disciplinary system should resolve most of the disputes that tend to come up in workplace, and in such a way that they stay resolved. Most employers agree that a progressive system providing several predictable steps before terminating an employee works best. This is known as a "progressive discipline" system. Under progressive discipline, an employee gets two or three warnings and only then, if there is no change, is the employee terminated.

Progressive discipline is a strong defense in court because when a terminated employee tells the judge and jury he was fired "unfairly," the judge is going to have just one question: "How can you say you were fired unfairly when your employer warned you verbally ...then warned you again, in writing ...then warned you a third time with a three-day suspension ...and only then-after three warnings - terminated you?" It is hard to imagine a system that is more fair to the employee.


Questions To Ask Prior To Taking Disciplinary Action

The key to appropriate discipline is equal treatment and internal consistency.


The Steps of Progressive Discipline

A progressive discipline system typically consists of three or four steps. The first is a verbal warning, the second is a written warning; and the third is usually termination. Some employers, however, prefer to have four steps, perhaps a step of some sort of intermediate punishment, such as suspension without pay, prior to the termination step. The actual number of steps is up to the employer. What is of utmost importance, however, is that the steps are administered objectively and consistent with policy.

With a progressive discipline system, most cases will not reach a courtroom, because lawyers will advise potential plaintiffs they don't have a strong enough case. Terminations can still be ruled unlawful, though, even with a sound disciplinary system, if a termination is determined to be actually due to discrimination or some other illegal reason.

To make sure your discipline policy will stand up in court, be sure it is clearly written and includes a caveat that serious misconduct may not warrant a warning, but rather immediate termination. This means that instances of tardiness, absenteeism, or failure to put away tools would likely be subject to progressive discipline. Poor work performance, too, is normally a progressive discipline case. Op the other hand, such activities as stealing and vandalism would usually warrant immediate termination.


Implementing Each Step

The first step (the verbal warning) is simply a "counseling" session, wherein the supervisor verbally notifies the employee of a performance or work rule problem and the need and ways to rectify it. The supervisor makes a note of the meeting and inserts a copy in the employee's personnel file.

If the employee breaks the same rule again or is not improving performance as required, the supervisor meets with the employee again and moves on to the second (written) step. The supervisor reminds the employee of his agreement to abide by the standard and asks again for the employee's cooperation. This time, the supervisor places a record of the meeting in the employee's personnel file and gives a copy to the employee. The written report should include a plan for improvement and deadlines. Deadlines do not have to be the same for all employees, but normally they would be the same for all employees being disciplined for similar situations. If there are no more infractions in, say, six months, it may be the employer's policy of making a future violation treated as a new incident. Disciplinary related documents no matter how old, however, should always remain a part of the employee file.

If the verbal and written warnings fail to result in improvement, or when a serious offense has occurred, the discipline may be suspension without pay, or even termination. If the employee is to be terminated, the employer should provide a formal letter of discharge.

To avoid mistakes in decisions to terminate, consider these questions before taking action:


Communicating the Policy

Employers must clearly communicate their discipline policy to all employees. The policy may be posted on bulletin boards, included in an employee handbook, or given to each employee individually. As a safeguard, it is best to require employees to sign an acknowledgment of receipt of the policy.

Periodically review the policy and disciplinary actions. This will facilitate equitable treatment and will increase the prospects of successfully defending disciplinary actions.

SAMPLE POLICY

Work Conduct and Disciplinary Action


In any organization, it is necessary to have guidelines covering a number of subjects, including on the job conduct. It would be impossible to write rules to cover every situation. However, acceptable conduct is expected of all employees. Improper or illegal conduct such as that listed in the following may result in disciplinary action up to and including discharge.

1. Theft, vandalism or careless destruction of company property or property belonging to fellow employees.
2. Drinking, using, possessing, or selling intoxicants or narcotics on company premises or while in company vehicles. In addition, reporting to work under the influence of intoxicants or narcotics.
3. Use or possession of firearms while on company premises.
4. Making fraudulent statements on employment applications or job records.
5. Performing work of a personal nature while on company time.
6. Soliciting or distribution in violation of Company policy.
7. Gambling during working time or on Company property.
8. Insubordination or willful disregard of a supervisor's instructions.
9. Fighting on company property.
10. Excessive absenteeism. Failure to observe work schedules in regards to starting times, lunch periods and quitting times. Excessive punching in and out of time-cards.
11. Violation of safe work practices.
12. Refusing to adhere to the "No Smoking-Tobacco Use" policy.

The list of work rules is not all-inclusive and may be amended at any time without notice. (Company) reserves the right to terminate an employee immediately for any reason it considers sufficient. The severity of the incident will determine whether a verbal reprimand, written warning, suspension or termination is appropriate. A final decision is rendered only after the incident is thoroughly reviewed. An employee will also be subject to progressive counseling should their on-the-job productivity or work quality be unacceptable.

Employee Warning Notice Form

Final Warning Notice Form



TERMINATION OF EMPLOYEES

Terminations fall into two categories: voluntary (employee-initiated) or involuntary (employer-initiated). Determining the cause of a termination is essential for the employer to carry out company and legal policies governing severance pay, workers compensation, unemployment compensation, continuation of benefits and pensions. Here are some common reasons for termination:

Misconduct

Most disciplinary policies allow termination of employees for gross misconduct, such as theft, dishonesty, violence, unsafe acts, or insubordination.

Unsatisfactory performance

Dismissal for unsatisfactory performance can follow repeated absence or lateness; failure to meet deadlines, quality standards or quotas; or inability to do the work.

Organizational change

Permanent layoffs occur when jobs are eliminated or when employees' knowledge, skills, or abilities do not meet job demands after a reorganization or a change in control. Unlike other forms of involuntary termination, some companies provide severance pay (usually based on length of service) for employees who lose their jobs due to reorganizing or downsizing.

Resignation

Employees may voluntarily leave to pursue better job opportunities, to spend more time with family, to deal with personal problems, or merely to escape an unappealing job.

Retirement

Since mandatory retirement is allowed only in rare cases, retirements are really just voluntary resignations. Retirement differs from other voluntary terminations in that the separating employee is eligible for pension or other retirement benefits.

Death

At times, the employment relationship ends because of an employee's death. The employer's termination policy should address this possibility and establish mechanisms to inform families of applicable employer-sponsored benefits, such as life insurance policies and surviving spouse benefits.


Reviewing discharge decisions

Every discharge should be carried out using well established termination procedures. While following a set policy does not guarantee an organization will never be sued for wrongful discharge, it does minimize the risks. Safeguards to incorporate into discharge procedures include the following:

Seek approval

Supervisors should be required to seek formal approval from senior management or human resources before firing an employee. This practice prevents rash actions and ensures that sound reasons exist for the supervisor's action.

Document rationale

In requesting to terminate an employee, supervisors should give written reason(s) for the discharge and attach any supporting documents (e.g., performance appraisals, documentation of performance problems, and warning notices).

Investigate reasons

Senior management and/or human resources should investigate the grounds for discharge. Allow the employee to respond to the supervisor's written reasons for seeking the termination. Open communication gives the employee a hearing that otherwise might occur in court. In addition, if supervisors have conformed to policy, the reasons for discharge should not contain any charge which the employee has not already heard during a performance review or warning notice. Often times, an employee is suspended, pending termination, while an investigation is completed. This would occur for more serious acts of misconduct i.e., fighting, theft, etc.

Examine alternatives

Since juries often expect employers to reward loyalty, examine alternatives, such as transfer or demotion, before firing a long-term employee (providing the reason for firing is not gross misconduct). Layoff decisions also should come only after exhausting all other remedies, such as waiting for natural attrition, reassigning or retraining employees for other work, and offering flexible employment, job reassignment, generous severance for employees who leave voluntarily, or early retirement incentives. If termination is unavoidable, consider providing severance pay and outplacement assistance to long-term and laid-off employees.


Conducting the termination interview

What the supervisor says and the manner in which the news is delivered can influence the employee's decision to sue, the employer's odds of winning such a suit, and the emotional and financial well-being of the employee over a period of months or even years to come. To prevent problems resulting from a poorly conducted termination interview I use these guidelines:

Set the tone

The supervisor should maintain a businesslike tone by reiterating documented facts about the employee's conduct and stating that the employer has decided to discontinue employment.


Disclose the reason for discharge

Although in most states an employer is not required to disclose the reason for discharge, candidly advising the employee of the reasons, provided the supervisor has well-documented grounds for the termination, might reduce the chance that the individual will challenge the decision. But the supervisor should limit the discussion to reiterations of behaviors that violated policy or failed to meet performance standards and should not make reference to the employee's personal character or discuss suspected but unproven charges.


Clearly establish termination

After stating the reason(s) for discharge, the supervisor should state clearly, without using euphemisms, that the employer has decided to terminate the employee, and give the effective date (usually immediately). Since people sometimes buffer themselves from traumatic news by failing to hear or understand, the supervisor needs to convey clearly that the employee is fired and that the decision is final. It is best to have a termination letter to give to the employee at this time. The letter shows the employee that the decision is final. It gives the employee something concrete to focus on during an emotional time. It can reassure the employee that he will (may) be provided with some assistance while looking for another job. The letter also eliminates confusion over such items as the effective date of the termination and details pertaining to severance benefits if applicable.


Cope with emotional reactions

Employees' reactions to termination can run the gamut from anger to tears to relief. Loss of employment can come as a severe shock, even when there has been ample warning. The supervisor needs to remain calm, courteous and respectful. Although the supervisor may feel sympathetic, the best response is to merely listen and avoid getting involved in a prolonged discussion with the employee.


Deal with threats

A terminated employee often makes threats that he does not intend to carry out. If the employee threatens to go to a lawyer, the supervisor should respond with silence or make a neutral comment, such as "That is entirely your decision." If, however, the employee makes a threat of violence or illegal activity, the supervisor may want to call in another person as a witness, or contact security staff or even the police, if violence appears imminent.


Discuss references

A terminated employee usually needs reassurance that despite not performing well in one job, he can get a fresh start elsewhere. A supervisor may want to point out strengths that may help the fired employee find more suitable work, but this discussion should also note why those strengths did not help the employee in his present position. Referral to an outplacement firm can help a fired employee get on with his life. The supervisor should also clarify what information the employer will tell the unemployment compensation board and prospective employers about the reason for termination.


Close the interview compassionately

If the termination takes place in a room where the employee may be left alone, the supervisor may offer to leave the employee in privacy for a time. Do not stand on guard over the employee as he cleans out his desk or escort him to the exit, unless there are concerns about violence or beach of confidentiality. Let the employee know who to contact to discuss benefits coverage or other termination related issues.


Letter to Employee on Termination for Excessive Absenteeism



October 10,1999


John W. Smith
Route 1. Box 300
Atlanta, Georgia 30345

Dear John:

As stated in my letter to you of August 10, your record of absenteeism has kept you from performing the full schedule of assignments for your position. I further indicated that a continuation of that pattern of absence would lead to your termination of employment.

A current review of your attendance indicates that you have been absent from work for 20 out of the last 60 days since my letter of August 10.

In view of your poor attendance record, I am notifying you, by copy of this letter, that your employment with the company is terminated effective October 10.

You will be notified by our Office Manager as to receipt of your final paycheck as well as remaining benefits eligibility issues.

Sincerely,


Fred Jones
Operations Manager


DOCUMENTING PERSONNEL ACTIONS

Keeping accurate records during an employee's career is almost a cradle-to-grave requirement. The need for documentation begins during the hiring process, continues during the employment relationship and ends at termination or retirement. Maintaining inadequate or untrue documentation concerning an employee can contribute to a company's losing a case pertaining to imposed discipline, job promotion issues, or termination.


Documentation Considerations

1. The Personnel File -The most important item in any personnel documentation system is the individual employee's personnel file. It is here that is stored disciplinary and performance records which form the basis for career decisions. It is here also that the employee's interest in privacy and accuracy is focused. As mentioned earlier in this manual, the contents of personnel files should be available only to employees with legitimate need-to-know reasons. A separate file must be maintained concerning records of an employee's illnesses and injuries.

2. Standards and Procedures -One cannot make supervisors like paperwork, but they must be convinced of the need for factual and objective record-keeping. No one in authority should fall victim to the temptation to take short-cuts, file incomplete information, or engage in "guesswork" when completing reports and forms pertaining to their employees.

3. Documenting Discipline -An employee is normally discharged for one of the two following disciplinary reasons:

In disciplinary cases, the supervisor's records are vital. At each step of the process, the supervisor should complete every required form and report, obtain necessary signatures, and make sure the documents reach their proper destinations - affected employee, personnel file, etc.

When issuing disciplinary warnings, the supervisor should make every effort to get the employee's signature, on the warning form or letter, acknowledging that the warning has been issued and received. In this way, the employee cannot later claim that the warning was never received.

Finally, in disciplinary cases it is particularly important that interviews with witnesses or others involved in the case be documented. Specific attention should be placed on pertinent dates, names of those involved and basically who saw or said what concerning the incident.

4. Accurate Performance Appraisal - Many supervisors dislike the role of judge and the employee's reaction when unfavorable comments must be made on a performance review form. Not being truthful and accurate, however, can cause problems should the company find justification in wanting to terminate the employee. Documenting performance can occur in a couple of ways:

Again, in performance appraisal the supervisor must be specific when discussing or writing examples of good or bad performance. Saying Tom "is a lousy employee" is too subjective and personal. Rather, "Tom failed to meet the established quota for customer calls and was absent 31 days the past year", is specific and defines unacceptable performance. Although more time consuming, this extra effort in accurately describing employee performance can help keep a company out of court, but is also more fair to the employee. After all, the ultimate purpose of performance appraisal is to help the employee improve and develop within the organization.


EMPLOYEE PROBLEM SOLVING PROCEDURE

It is very important that employees know where to go to or who to contact when they have a problem or complaint. Especially in the non-union workplace, a formal procedure should exist to address employee concerns so that the individual(s) involved do not feel the need for third party (union) assistance. Of course in the unionized company a formal grievance procedure is usually part of the negotiated agreement.

The problem solving procedure should be communicated adequately by means of employee handbooks, bulletin board postings and supervisor - employee type meetings. Employees should not feel that any retaliation will occur by utilizing the procedure.

It is important for management of any company to resolve employee complaints quickly and effectively. To aid in the development of a problem solving procedure, the following checklist of questions must be considered:

SAMPLE PROBLEM SOLVING PROCEDURE POLICY


We encourage you to bring your questions, suggestions and complaints to our attention. We will give careful consideration to your ideas and concerns in our continuing effort to improve our operations.

If there is anything about your job that is bothering you, let's get it out in the open and talk about it. Discuss it frankly with us and we will do everything we can to help you "iron it out." You may be sure that your complaint will be handled in an open and fair manner.

First, if you feel you have a problem, you should present the situation to your supervisor or department manager so that the problem can be settled quickly. Your supervisor knows you and your job best. Past situations have shown that most problems can be settled by simple examination and discussion of the facts.

If you are not satisfied with your supervisor's or department manager's response, of if for some reason you do not wish to bring the problem to your supervisor, you may take the problem to the Human Resource Manager for resolution.

Finally, if you are still not satisfied with the proposed resolution to your concern, you may contact the President and General Manager of (Company) for assistance in resolving the issue. His/her decision will be considered as binding. We are anxious to hear from you on any work related subject. Our goal is to give you every opportunity to discuss your problems freely and to reach a fair resolution to your concerns.

Alternative Dispute Resolution

Many companies today are utilizing a means to resolve employee disputes called alternative dispute resolution (ADR). Resolving employee disputes within the court system is expensive and can take years. Litigation causes a win-lose situation between employer and employee. Court cases also fuel havoc and disharmony within the workplace, as they become hot topics for employee debate. ADR provides employees with an opportunity to raise questions or problems in confidence and without fear of reprisal or discrimination.

Alternative dispute resolution basically involves an outside third party who is called in when previous problem resolution steps have failed to reach an agreement. ADR processes most commonly used by companies include standard mediation and mediation/arbitration.

Standard mediation is most useful for emotionally charged disputes where the parties have widely differing perceptions of the situation. Typically, the mediator holds a full-day joint session with both parties and helps each party create settlement options which are further narrowed down until a mutual agreement is reached.

The arbitration process is used when both parties want the benefits of mediation and also the certainty that the dispute will end even if a mutual voluntary agreement is not reached. At the very beginning, the parties agree that if they are unable to come to a decision through mediation, together they will choose a neutral individual (the arbitrator) who will impose a decision as a judge does. But unlike court action, arbitration is private, confidential and quick.

Both of these alternative dispute resolution techniques can help companies solve employee relations problems less expensively than going to court. In addition, they can reduce personal animosity by making available an impartial third party. Companies interested in knowing more about alternative dispute resolution as well as obtaining a listing of those qualified to serve as ADR mediators or arbitrators should contact their local Chamber of Commerce, the American Arbitration Association, or U .5. Department of Labor at (202) 606-5445. Also, many times the business department at local colleges and universities are staffed with individuals experienced in handling mediation or arbitration issues. In some cases, retired judges have been utilized to resolve workplace disputes.


SEXUAL HARASSMENT

Title VII of the Civil Rights Act of 1964 doesn't specifically mention sexual harassment. But in 1980, the U.S. Equal Employment Opportunity Commission (EEOC) issued guidelines stating that sexual harassment in the workplace is a form of sex discrimination prohibited by Title VII.

Sexually harassment basically involves unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:

The most important aspect of this definition is the "unwelcome" element. The behavior must be unwelcome in order to fall within the legal definition of sexual harassment. As a practical matter, the issue often causes difficulties, since the accuser and the defendant often have different perceptions of whether the behavior was in fact welcome.

Sexual harassment can occur in different forms, including physical, verbal or visual acts; mild or severe events; only one incident or a pattern of behavior; sexually explicit or non-sexually related behavior; and male or female oriented.

Sexual harassment in the workplace can consist, as well, of many other activities, including:

In short, any hostile or offensive behavior in the workplace that has a sexual component can constitute sexual harassment - and is illegal.


Patterns of Harassment

Types of Sexual Harassment Cases

The courts generally have divided sexual harassment cases into two categories: "quid pro quo" cases and "hostile environment" cases. Quid pro quo sexual harassment occurs when an individual explicitly or implicitly conditions a job, a job benefit, or the absence of a job detriment, upon an employee's acceptance of sexual conduct. Put another way, it is the linking of tangible job benefits to the acceptance or rejection of sexual favors.

Hostile environment sexual harassment is often more difficult to recognize, since there does not have to be the linkage of job benefits with sexual favors that occurs with quid pro quo cases. Rather, hostile environment sexual harassment occurs when unwelcome gender-based behavior has the purpose or effect of unreasonably interfering with a person's work performance or creating an intimidating, hostile or offensive environment. Offensive behavior does not have to be directed at a particular person to be intentionally offensive; if it has the effect of creating an intimidating, hostile or offensive environment, that may be sufficient to provide the basis for a claim.

Employers should also understand that they and individual harassers may face potential liability for sexual harassment under various federal and state discrimination and tort laws, and that sexual harassment charges, when filed, often include claims for intentional infliction of emotional distress, gender discrimination, assault, battery, and wrongful discharge.


Steps Toward Preventing Sexual Harassment

1. Establish a company policy to clearly state the organization's position on the issue of sexual harassment.

2. In the policy, state that employees are encouraged to report sexual harassment situations and list the persons to whom this should be reported. Also, state that violations of this policy will not be permitted and may include penalties up to and including discharge.

3. Develop an effective, "user friendly" procedure to investigate complaints about sexual harassment.

4. Train managers and communicate to employees the company policy on sexual harassment. Training 4hould create an awareness and sensitivity to the perceptions, reactions and feelings of other persons in the organization. This awareness can be reinforced by stating the possible consequences of violations of the law.The company might also consider using an outside firm to conduct a seminar for all employees on sexual harassment and its repercussions in the workplace.

5. Prominently display the company policy against sexual harassment where all employees can view it.


Investigating Sexual Harassment Complaints

Those who investigate claims of sexual harassment must take every complaint seriously and complete the investigation thoroughly. Effective implementation of a sexual harassment policy will be blocked if complaints are not appropriately addressed when made. Also, courts take into account a company's complaint resolution procedures and action when ruling on sexual harassment claims against the company

Employees need assurance that there are people within the company to whom they can report sexual harassment without fear of embarrassment, publicity or retaliation. It is not sufficient for a company to encourage employees to report sexual harassment to their supervisors, since a supervisor may the individual who is the subject of the claim of harassment.

The preferred approach is to designate one or more managers as being responsible for receiving such complaints. These individuals should be trained to handle sexual harassment complaints and reports. They should be trained in how to properly investigate a claim of sexual harassment.

In addition, the following key steps provide guidance on completing sexual harassment investigations successfully.


Sample Non-Harassment Policy

It is extremely important that a company develop and communicate its policy regarding any type of on-the-job harassment. This policy should be posted on employee bulletin boards, be included in employee handbooks and reviewed periodically at employee management meetings. Employees must be re-assured that harassment, in any form, will not be tolerated. The following may be used as a model for companies developing their own non-harassment policy.

Non-Harassment Policy

It is our company's policy to prohibit harassment of one person by another person on the basis of race, color, religious creed, ancestry, citizenship, age, sex, national origin, or non-job related disability or handicap. The purpose of this policy is not to regulate our employees' personal morality. It is to assure that, in the workplace, no person harasses another in any manner. While it is not easy to define precisely what harassment is, it certainly includes slurs, epithets, threats, derogatory comments, unwelcome jokes, teasing,
sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature such as uninvited touching or sexually-related comments. Any person who feels that he/ she has been subject to such harassment should immediately report the matter to the General Manager or any other manager of the organization. A complete investigation of the alleged incident will occur. Violations of this policy will result in disciplinary action up to an including discharge.

A sexual harassment complaint will be investigated promptly by the company. All investigations into complaints of sexual harassment and all actions taken to resolve such complaints will be kept confidential to the extent possible.

The company will not tolerate retaliatory action against an employee who has in good faith made a complaint of sexual harassment. However, an employee who makes a groundless charge of sexual harassment may be subject to discipline.

The company's policy against sexual harassment of its employees also applies to its employees' dealings in the workplace with persons who are not employees of the company. An employee should promptly report any such instance of sexual harassment in the same manner as set forth above. Such a complaint shall be investigated promptly by the company and in the event that the company determines that sexual harassment has occurred, the company shall take appropriate action with respect to the responsible person.



EXIT INTERVIEWS

Employees may voluntarily quit organizations for various reasons including a better job opportunity, dissatisfaction with pay, working conditions or their supervisor. If the conflict or disagreement is so great, that the employee resigns, the exit interview provides one last opportunity to discover the nature of the complaint. A main objective in conducting exit interviews is to gather useful information which may identify human resource practices in need of review or the identification of supervisors who may need strengthening of leadership abilities. Because of this, the departing employee may be very reluctant to discuss reasons for leaving. No matter how much one might enjoy "leveling" with the interviewer and saying what you really think of the boss or organization, references for the next job must come from the present organization.

Some companies have found that an exit interview mailed after 1-2 months have passed produces more honest and useful information. By this time the ex-employee usually has another job and no longer fears a poor reference.

Exit interview procedures may involve the departing employee completing a structured questionnaire. From here, the interviewer can more easily discuss with the individual their likes and dislikes of the organization. Open-ended questionnaires are perhaps the preferred option for getting the employee to reveal their true feelings. An example of an exit interview form is presented for reader use.

Decisions must also be made on who in the organization will receive feedback once the exit interview is completed. While confidentiality is crucial, the departing employee's supervisor and/ or department manager should receive follow-up communication regarding discussions from the exit interview. Certainly no attempt should be made, however, to confront or harass the terminating individual based on their comments to the interviewer .

Those within the organization who are in a policy making or recommendation role should maintain a record of exit interview trends or patterns concerning reasons for leaving. Where warranted, human resource policies and practices may have to be revised. In other cases, needed supervisor training may help lessen the rate of voluntary termination. 


EMPLOYEE ASSISTANCE PROGRAMS

During the past several years many employers have adopted employee assistance health promotion programs to deal with a variety of problems that affect worker performance and productivity. More recently there has been legitimate concern about the impact of illegal drugs on the business community. Estimates are that perhaps 20% of employees use alcohol and other drugs while at work.

A major consequence of this abuse is absenteeism and tardiness. Another major consequence is chronic illness and heavier than usual use of health care benefits. Also, work-related accidents are three to four times more likely to occur to workers involved with alcohol or drugs. But while substance abuse may be the most visible reason employers establish Employee Assistance Programs, it is not the only reason.

Employee performance and productivity problems may be caused by other reasons including stress and marital difficulties. Employee Assistance Programs have, through the years, broadened their services to deal with such issues. While not as common as some programs aimed at substance abuse and mental, emotional and stress problems, many EAP's offer counseling service to assist employees with legal, financial and retirement planning. Frequently EAP's may use health promotion, or wellness programs to address such issues as diet, exercise, and health risk screening. 

Employee Assistance Programs can be structured in a variety of ways. Usually, EAP services are contracted out to a health care, mental health or consulting group specializing in assessment, treatment and/ or referral of the individual. Outside EAP programs may generate more trust on the part of employees, since confidentiality is better assured.

Employees may seek EAP services on their own (self-referral), or be referred by a supervisor. Generally, the only time a supervisor is involved in referring an employee to an EAP is when an employee's job performance is affected by his or her problem. Many employers today prefer to keep qualified employees and attempt to resolve problems contributing to poor performance by referring them to an EAP. 

Listings of EAP providers are generally included under headings such as crisis intervention, counseling and mental health. Other community resources include health care providers such as doctors and hospitals who may maintain listings of counseling and support groups. Many times hospitals have their own Employee Assistance Program department for employer utilization.

A company's cost in contracting with an EAP provider is normally not that expensive and may be renewed on an annual basis. Employees using the EAP may be required to pay for certain services not covered by employer provided health insurance. Some counseling services may be provided at no charge. Many organizations pay for the employee's initial office visit or assessment meeting with follow-up sessions submitted to the health insurance plan for payment consideration.

EAP Program Offerings

COMMUNICATING WITH EMPLOYEES

Effective communication amongst mangers and other employees helps the company achieve its business objectives and maintain a positive work climate.


A Basic Objective

While business objectives may vary I there is an employee communication objective which is common.

THE COMMUNICATION OBJECTIVE IS TO MOTIVATE EMPLOYEES TO GIVE THEIR BEST POSSIBLE PERFORMANCE TOWARD THE ACHIEVEMENT OF THE GOALS OF THE COMPANY THROUGH ON GOING AND TIMELY SHARING OF BUSINESS INFORMATION AND SOLICITING OF EMPLOYEE FEEDBACK.

A motivated workforce is a tremendous asset to any organization. Employees are motivated when they feel they are an important part of a company - not just working for it. This sense of belonging to a worthwhile organization comes from being well informed about company activities, about company motives and intentions which they feel are sound and equitable, and about their own role in the company.

Employee communication should tell employees more than merely what has happened. It should explain why it happened, what it means to employees, and what it may mean in the future. It should give employees the experience of involvement with the day-to-day activities of the business with which they are associated.


Periodic Review of Employee Relations Practices

In the successful management of a company's workforce, it is usually necessary to compensate for the reluctance of employees to call to management's attention matters which may be causing them concern. This need is met several ways, such as intensive two-way communication, the vigorous implementation of an employee complaint system, and the periodic review of all employee relations practices.

A periodic review of practices is most important in insuring that the highest standards are being maintained in all employee relations matters. This "climate analysis" recommended at least once a year, includes a review of pay, benefits, working conditions, individual treatment, disciplinary actions, upgradings and downgradings, the distribution of over-time, individual job changes, etc. Whenever shortcomings are found, corrective action is taken. Reference is also made to the Human Resource Audit Checklist in helping to determine employee relations practices needing special attention.

The communication program keeps employees informed regarding the diligence of management in seeking out their needs, and making any indicated changes promptly, with respect to all such matters. Often, employees themselves participate in analyzing the problem and making recommendations to their management.


Two-Way Communication Between Supervisors and Employees

A close, cordial and productive relationship between each employee and his supervisor is essential. Such a relationship is fostered through full and frank two-way communication, enabling them to work together in achieving the goals of the business, and in resolving problems which may be of concern to the employee. The following aspects of this relationship are particularly important.

1. Supervisor - employee relationships which are close enough to permit the discussion of not only day-to-day matters, but also potentially controversial work-related matters as well.

2. The "question-asking" habit on the part of employees, stimulated by the supervisor's willingness to listen, with careful consideration and frank answering of all questions raised.

3. No "taboos" on the discussion of union-related subjects. This is essential if employees are not to "freeze up" at the very time the question of union membership most needs to be discussed - when an organizer is urging them to join a union.

These relationships are maintained by the supervisors both in their day-to-day contacts and in periodic "round table" meetings with their people.


Two-Way Management - Employee Communication

Higher levels of management also have an essential role in the success of the communication program, including such activities as:

1. Meetings of the General or Operation's Manager with employees periodically to discuss the progress of the business, usually including a question-and-answer period. Other managers also hold meetings with their people as appropriate.

2. Personal contacts on a day-to-day basis between the top manager and employees, and between other managers and their people.

3. Periodic employee opinion surveys, reporting back to employees the results of the survey, and the actions being taken to correct any problems which show up.

4. New employees orientation meetings, which include discussion of such matters as company philosophies, human resource policies, company .expectations, benefit programs, etc.

5. The planning, implementing, and guiding of the entire communication effort by the human resource or employee relations specialist, working with managers, supervisors and directly with employees as appropriate.


A Comprehensive Employee Handbook

Among union-free groups, the employee handbook has a special role, comparable to that of a union contract. It must fill this role by comprehensively covering all important aspects of the employee relation's practices just as specifically as does a typical union contract, and its provisions must be meticulously observed.

Here are five questions by which an employee handbook can be appraised.

1. Can employees have most of their day to day job related questions answered by referring to the handbook?
2. Do the supervisors use the handbook regularly in discussing practices with employees, so that employees see it as a living document strictly adhered to in the supervising of the group?
3. Is the handbook receiving continuing support in employee publications, through reference to it in explanations of management decisions, actions, and practices?
4. Do employees feel that the practices as described in the handbook are fair and that they are being followed? This can be determined by the supervisors in their daily use of the handbook, and as they discuss the various practices with employees in their round-table meetings.
5. Could it be used to demonstrate compatibility - at least equivalent treatment with union contract forms?

The following definitions and inventory listing can be useful to the manager who wants to identify the employee communication needs and resources of his organization as the first step in developing an effective year round employee communication plan.


Definitions of Selected Media and Practices

1. NEWSPAPER - Usual characteristics such as: normally four or more pages, uses photos, journalistic approach; broadest editorial content of any printed media; published regularly, generally monthly or quarterly; operates to a deadline but late breaking stories can be handled on a timely basis.

2. MANAGEMENT INFORMATION -An "as needed" publication for managers and supervisors but may include all exempt or professional employees; publication cycle of a few hours; for quick dissemination of information of high topical interest or needed management action; may or may not be special format, e.g., "Management Newsletter."

3. EMPLOYEE NEWSLETTER -Scheduled or "as needed" publication for all employees; for quick dissemination of information of high topical interest; a special format, e.g., "Employee Bulletin" or in some cases special edition of the "newspaper" if it can be published on a short-cycle basis.

4. ROUND-TABLE MEETINGS -Regularly scheduled meetings, usually monthly, between first-line supervisors and salaried or hourly employees in their work groups; prime purpose is frank discussion on matters of employee and management concern. Ample opportunity for employee questions and gripes. May use guest resource person or presentation.

5.EMPLOYEE INQUIRY - Any system (telephone hot lines; forms; question boxes; question and answer features) established to encourage and provide employees with the opportunity to submit gripes, concerns, rumors, etc., to management for clarification or answers. Response assured through one of the communication media.

6. INDIVIDUAL PROBLEM SOLVING - A system established by written policy by which union-free employees may submit a problem or complaint and be assured of a specified appeal and review process with appropriate management response.

7. SPECIAL AUDIENCE - Any publication provided on a planned regular schedule whose content, editorial style and format are designed to appeal to or to meet the needs of a particular segment of the employee population (e.g. Hourly Reporter).

8. ORIENTATION -Planned program for new employees, live and/or audio/visual, including such things as company history, organization, products, social responsibility, business/plant mission, objectives, products and organization, key employee relations practices/policies, e.g., benefits, compensation plan, performance expectations and appraisal practices, discipline and grievance method, training and development, union-free mode of operation, etc.

9. SURVEY- A planned program -written and/or oral -designed to elicit employee attitudes/perceptions on aspects of their job climate, e.g., management credibility, supervision, communication, pay. All or a representative sample of employees may be surveyed periodically and trends analyzed.

10. INFORMATIVE MEETING -A meeting of all employees with top business management at one or separate sessions depending on logistics, employee, mix, informational content, etc., where management reviews past progress, achievements, setbacks and future goals, objectives and changes in terms of their impact on employee and the business.

EMPLOYEE HANDBOOK

Employee handbooks are a basic human resources tool for communicating information to employees. They are one of the few publications that all employees receive, and probably one of the few almost all employees read. They can be printed as a small booklet or in a ring binder; in some small companies they may just be a few stapled pages.


Advantages for Having an Employee Handbook

As employee handbook can be of practical help in running a business. Once given to an employee there can be no dispute regarding vacation entitlement, attendance requirements or overall personnel policies. Review the handbook and update it periodically (at least annually) to incorporate changes.

Published rules and policies help assure employees that everyone is being treated fairly and consistently This assumes of course that management follows the rules and policies found in the handbook.

An employee handbook also helps meet legal requirements. By law, certain information must be provided to employees in writing. A handbook can easily fulfill some of these needs.


Avoiding Legal Issues

Companies must ensure that their handbook is not constructed as a commitment to provide continued employment or to maintain indefinitely, benefits programs. To guard against such legal action, the handbook should prominently feature disclaimers stating that it is not a contract and that policies described are subject to changes at the company's discretion.

Additional safeguards:

The Disclaimer

A "disclaimer" is language which makes it clear that the company does not intend to have the handbook construed as a "contract." To be effective, a disclaimer should include the following:

Preparing the Employee Handbook

How long should an employee handbook be? There is no such thing as "one size fits all." Typically, however, employee handbooks run between 25-35 pages depending upon company size and existing policies and benefit programs in place.

Many small companies put together a rough draft and then have a human resource consulting firm review the document for further recommendations. At the early stages it is good to involve supervisors or even employees to insure their concerns are covered. When the final draft is completed, the company owner or manager responsible may want their legal counsel to review the document prior to release to employees.


Typical Employee Handbook Content

As shown by the "handbook content checklist," there exist several broad areas to include in the handbook. The most important of these would be:


Handbook Distribution

It is preferable to ask employees to sign an acknowledgement that they have received and understand the handbook. The acknowledgement should be placed in each employee's personnel file. Note that employees do not have to say that they agree with everything in the handbook.

Be wary of using the handbook to introduce new rules. It is better to announce policy changes well in advance of the publication of the handbook document. The company wants the handbook to be seen as a useful guide for both employees and supervisors, not a vehicle for imposing strict new regulations.

Finally, rather than just passing out the handbook, small group meetings with employees should be established. This is an excellent method to insure employee understanding of the purposes for developing the handbook as well as its content. Of course, supervisors should be properly trained in administering handbook policies fairly and consistently.

HUMAN RESOURCE AUDIT CHECKLIST

For the company wanting to review the overall effectiveness of its human resource practices, the following audit checklist is offered. Here the human resource specialist or manager can carefully analyze each human resource function or responsibility listed and note where present efforts are satisfactory or in need of improvement. Priorities and timetables should be established in order to bring the human resource program to a desirable level of effectiveness and success.



REMAINING UNION FREE



Statistical sources reflect that a unionized employer will pay an average of 25% more in labor costs than a Union Free employer. This average 25% increase in labor costs does not take into consideration any increase in wages or fringe benefits. It is merely representative of the additional costs necessitated by "interaction" with a union. It reflects the costs associated with negotiations, grievances and arbitrations, strikes, sabotages, loss of sales, services and customers, and inefficiencies and "feather-bedding" that creep into an unionized operation.

Why are some operations a constant beehive of union organizing activity while others enjoy relative freedom from union attention? The answer lies in the employer's employee relations program. An employer who practices good employee relations is less likely to be organized.

The essence of preventive labor relations, i.e., avoiding or averting union activity, lies in establishing and maintaining an aggressive employee relations program designed to build employee morale, loyalty and commitment to the goals of the business. Such a program must be initiated long before any signs of union organizing activity and must be maintained with a single-minded dedication. It may well require more management effort and attention than dealing with a union.

The primary objective of a sound employee relations program is to contribute to the success and profitability of the business. Lower unit labor costs through greater employee productivity, improved product quality, and reduced absenteeism and turnover are but some of the benefits. Employees benefit too. Working in a healthy, profitable enterprise, they enjoy steady, secure work and regular improvements in wages, fringe benefits and working conditions. A company's non-union status is a by-product of this program.

The keystone of an effective employee relations program is good employee communications. It plays a decisive role both as a preventive tool and in winning an organizing election. Other elements of the program include:

The challenge for the employer today is to apply these basic concepts in such a way that they become the foundation of a sound employee relations policy. Then, such an employer can truly say to its' employees:


SITUATIONS WHICH PROMPT UNIONS TO ORGANIZE

In order to gauge their vulnerability and the degree of commitment and effort that must be directed to the task at hand, Union Free employers should be aware of several situations which generally prompt unions to engage in organizational efforts:

(1) Most obviously, unions will respond to employees who seek them out and ask their help in organizing. If a majority of employees solicit such aid, then all the better for the union. However, even a small minority actively seeking unionization provides a union organizer with an irresistible opportunity for he has acquired a ready made base upon which he can work to build the majority support the union needs. The smart organizer knows that for every employee who has reached the point where he is ready to speak out, there are ten more who have reached the point where they are ready to listen.

(2) Unions attack employers whom they believe will not put up a fight. An employer that has never implemented a policy of maintaining Union Free status is surely "union bait".

(3) Unions seek out employers that have a reputation of unsatisfactory supervision, substandard wages, inequitable policies and a host of other negative qualities.

(4) Unions attempt to unionize employers in pro-union labor climates more so than in areas in which there are cultural and social pressures working against unionization. Metropolitan areas traditionally have more unions per capita than do smaller or rural communities.

(5) Many unions attack employers out of revenge for moving to a new location after a complete or partial closure of a unionized facility. These so-called "run-away" shops are some of the most vulnerable employers because of the resentment harbored against them.

(6) Unions tend to refrain from "attacking" employers that are strongly and genuinely committed to a Union Free environment, those that have backed up that commitment with positive and affirmative steps to assure fair and firm discipline, accessible and responsive supervision, full and open communications, competitive and equitable wages and fringe benefits, and those that honor seniority rights in many personnel actions and the sanctity of a fair and equitable grievance procedure.

The basic principle which must be kept in mind is that as a general rule employees who seek out a union do not do so for positive reasons. That is to say, employees most commonly do not seek out a union and eventually vote for a union out of a yearning to be unionized. Rather they seek out a union in resentment of their employer and in response to its failings.


ELEVEN REASONS WHY EMPLOYEES RESORT TO UNIONIZATION

(1) DEFICIENT SUPERVISOR. Supervision can be "deficient" for various reasons, including a lack of any sophisticated or formal instruction in proper personnel techniques and the handling of people. Mainly, however, "deficient" supervision relates directly to perceived unfair and harsh treatment of employees.

(2) INCONSISTENT TREATMENT. Many union drives have been initiated strictly because of supervisors " playing favorites" among the rank and file. To be less than consistent in the treatment of each and every employee in each and every situation is always an open invitation to third party representation.

(3) LACK OF WRITTEN RULES AND POLICIES. Not only will employees seek out a third party representative because of the lack of personnel policies and employee benefits, but employees often contact unions in an effort to require the employer to put policies and benefits in writing.

(4) LACK OF PERSONAL RECOGNITION. The emotional need for personal recognition is one of the strongest needs in human behavior. Employees who do not receive adequate recognition are sure to question the feeling of management toward them, and an too often they will turn to unions to force recognition from their employer.

(5) LACK OF EMPLOYEE PARTICIPATION. Although the most liberalized management does not turn over the operation of its business to the "rank and file" employees, the more enlightened employers recognize that controlled "participative management" is both profitable and emotionally rewarding.

(6) INADEQUATE AND/OR INEQUITABLE EMPLOYEE BENEFITS. Most employees do not seek out a union because of benefits if their benefits are in the "ball park" and comparable to those of other employers in the area. However, when there is a substantial disparity in benefits compared to those of other employers, employees do seek out unionization in an effort to "close the gap".

(7) INADEQUATE COMPENSATION. To the same extent that employees seek out unions because of inadequate benefits, they seek out unions when their wages are substandard or inequitable.

(8) FAILURE TO RECOGNIZE SENIORITY. Major organizations in this country have long had specific programs to recognize and commemorate an employee's length of service. Seniority rights, additional vacations, pension programs and the like all go to show proper respect and recognition. Longevity pins and awards are also beneficial methods by which to fulfill this obligation.

(9) LACK OF GRIEVANCE PROCEDURE. When employees are treated harshly and unfairly by their immediate supervisor (see (1) above), unless they have a means of "getting around" the supervisor to talk to higher management, these employees may feel that they have no choice but to vent their frustration through some outside third party, namely, a union. Therefore, not only must Union Free employers have an "open door" policy - they must keep the door open.

(10) LACK OF JOB SECURITY. There are many reasons why employees become insecure in their jobs. An employer may have seasonal work or scheduling problems, which necessitate layoffs. In other situations, employees might feel insecure because some fellow employee was discharged for reasons that do not seem just. Anyone who is at all familiar with union campaign propaganda knows that the issue of "job security" is the focus of many union promises.

(11) NEGLECT OF SAFETY MATTERS. Union Free employers know that they must safeguard the safety and well being of their employees. If employees sense that their employer is not protecting their lives to the fullest extent possible, seeking some kind of help from the outside is a natural inclination and reaction.


DISADVANTAGES OF UNIONIZATION TO EMPLOYEES

A Union Free employer should make an effort to collect and maintain newspaper clippings and other objective materials showing the many negative aspects of unions. Such materials can be utilized to depict local examples of the disadvantages of unions to the employees. These materials can also be used in the employer's "subtle but steady" campaigns to depict union dangers.

Obviously employees are not going to be overly interested in the disadvantages of unions to the employer. But most intelligent employees will be responsive to legal and factual materials that objectively display union hazards to them.

What then are the disadvantages of unionization to employees?

1. COSTS. Unions are in the collection business. They collect union dues and other types of revenue. Their source of survival is in the revenue they collect from employees, such as; a) initiation fees, b) reinstatement fees, c) dues, d) per capita taxes, e) special assessments, f) strike assessments, g) political contributions and h) fines.

These costs can add up to hundreds of dollars per year for an employee, most of the time paid out for benefits and rights he already had or would have gotten anyway from the company.

2. INFRINGEMENT UPON INDIVIDUAL JOB FREEDOM. When an employee works in a unionized facility, the union is the exclusive collective bargaining representative of all the employees in the respective bargaining unit. Employees are thereafter pressured, if not directed, to take their grievances and related problems to the union steward, rather than deal directly with their employer about them. This fact can be most counter-productive and handicaps the employee as well as the employer. Additionally, a union contract may restrict an employee's job duties to the extent that under it, he may have a part-time job as compared to a full-time job previously held when the employer had the flexibility to change employees from job to job to keep everyone busy and get work done more quickly.

3. DISCRIMINATION AGAINST ITS MEMBERS. Union members are frequently discriminated against by their union in many ways. Court cases reveal numerous instances where members have been fined by their union for attempting a decertification petition by which to vote the union out. Members have also received fines, expulsions and terminations as a result of crossing picket lines or failing to pay union dues or attend union meetings. Union members are also mistreated by their unions when they are fined or terminated as a result of their "speaking out" at union meetings. Union politics often result in employee discrimination when an employee loses "favor" with the "group" in power and is consequently forced out of his job so that some union "favorite" may receive it.

4. UNFULFILLED PROMISES. Union organizers "puff" their wares to the extent that they create false hopes in employees. Impressionable employees to a large extent, and most employees to some extent, are led to believe that they will receive substantially more wages and fringe benefits with a union than they would have otherwise received. These same union organizers fail to inform their prospective members about the "negotiation process" and the fact that employees may lose as well as gain in the negotiation arena. They fail to advise employees that the law does not require or compel the employer to make unrealistic concessions, in fact, any concessions at all. The employer's obligation is only to bargain in good faith.

Consequently, when the employer does not agree to union demands and employees wind up with less than promised - possibly less than they would have otherwise received - the employee has been once again victimized by the union.

5. STRIKES AND THEIR CONSEQUENCES. Strikes are a great disadvantage to an employee. Once on strike, his paycheck ceases; so do his fringe benefits, if the employer chooses. The employee is not entitled to any unemployment compensation in most states. Many strikers consequently wind up losing their personal savings, their homes, automobiles and more. Entire families suffer.

Frequently, strikers become overly zealous and are subjected to arrests, fines and jail sentences. Strikers are often replaced on their jobs, either temporarily or permanently. Strikers are sometimes forced into crossing a picket line to protect their job from replacement or because of financial distress.

In crossing the picket line they subject themselves to possible harassment, intimidation, threats, personal injury and property damage. They subject their families to the same hazards. If they are members of the union, they also subject themselves to fines when they cross the picket line - fines that have been known to reach into several hundreds of dollars - even thousands of dollars in some instances.

6. LOSS OF JOBS. Contrary to union propaganda, job security does not lie with a union's representation of a certain group of employees, just the opposite. When a union is on the scene, any employee may lose his job in two different ways.

First, in an economic strike, the employer has the legal right to permanently replace a striking employee. The replacement is permanent as long as the replacement employee desires the job. The net result in many cases is that the striking employee has lost his job to his replacement - permanently.

Secondly, many employers are forced to close their operation as a result of a strike during which they cannot meet customer demands, or because they have been forced into uncompetitive positions due to unreasonable union demands. Whether the employee loses his job as a result of a permanent replacement taking his job or because the facility is closed, the result is the same. The union has indirectly cost him his job.

The Union Free employer must not only know what disadvantages of unionization can mean to itself; it has the responsibility of familiarizing itself with the disadvantages and hazards which unionization can mean to its employees. It has further responsibility of imparting this information to its employees, keeping within legal guidelines, particularly if and when the union knocks on its door.


SELECTING NEW EMPLOYEES

Whether a facility has ten employees, or ten thousand, union avoidance is a "numbers game".

First, for those employers who fall under the National Labor Relations Board (NLRB) jurisdiction, a union must obtain authorization cards from at least 30% of the employees before the NLRB will order an election. Secondly, assuming a union does have at least 30% of the employees "signed up" and the NLRB orders an election to determine whether the employees desire a union, the union must receive a majority of votes from the eligible employees voting before it can become the exclusive collective bargaining representative of the employees at which point an employer would be required to recognize and bargain with the union.

If a union is unable to convince at least 30% of the employees at a union free facility into signing union authorization cards, the employer remains Union Free. If a union fails to obtain a majority of the employees' votes in an NLRB conducted election, the employer remains Union Free. Better yet, if there is never a union attempt, the employer remains Union Free.

In a nutshell, it is the employees who will directly determine whether or not the employer will remain Union Free; it is the disposition of employees toward the union combined with the employer's treatment of employees that will indirectly determine whether or not the employer will remain Union Free. The ultimate objective then is to have employees who will refrain from signing that first union card. A primary consideration then in maintaining Union Free status lies in the selection of employees who will neither feel the need for a union (because of good
management and fair treatment) nor be attracted to a union at a later date because of their
behavioral patterns.

Union Free employers should be aware that it is a violation of the National Labor Relations Act to fail to hire an employee because of his/her union background or sympathies. However, the law does not require an employer to hire employees who are unproductive or similar "problem" employees. Also, it does not require employers to hire unreliable or irresponsible employees.

It is therefore critical for the interviewer, as well as the entire management team, to be truly expert in the selection of proper employees.

The hiring manager must be educated in every facet of the employee selection process. (Refer to Section 1 of this Manual.). He must be "schooled" to interview in depth so as to assure the procurement of the most productive, positive, and responsible employees available. He must have the resources and the know-how to determine the work record and background of every employee seeking a job. He must know how to ask " open-ended" questions so as to afford the applicant the full opportunity of expressing his true motivations, desires and abilities.

Equally important is the patience required in the selection process. Distribution and operation's managers must understand that it takes time and effort to screen and to hire responsible and efficient employees. Managers and supervisors who demand for more bodies instead of carefully selecting employees greatly jeopardize and compromise the Union Free commitments.

THE MANAGEMENT TEAM

"Supervisors either win NLRB elections for you - or they lose them for you".

This statement has been used so many times that for many employers it has become a cliché. However, for the Union Free employer it remains something much more. It is a truism worthy of more than lip service.

Employers who have outstanding supervisory personnel and who have been involved in counter-union campaigns can well appreciate the value of that asset because these employers were most likely winners. Employers who have been through counter-union campaigns and were burdened with unsound, ill-trained and deficient supervisory personnel can likewise appreciate the value of good supervisors, because without them, they most likely lost.

Therefore, a key to building a Union Free defense is the selection of outstanding management personnel and the training of deficient and unsophisticated supervisors to bring them up to the level required of a Union Free management team. A "fair and consistent" management style is the cornerstone of a strong Union Free program.

What, then, are the qualities and characteristics of a Union Free manager? Of a Union Free supervisor? What factors and points should one consider in the selection and training of management personnel?

The Union Free employer must have a selection checklist by which to assure a sound and responsible management team. It must establish safeguards to enhance the quality of front line supervision and it must educate and train its management personnel to their highest potential.

The checklist by which to screen management applicants consists of seven specific tests:


MANAGEMENT SELECTION CHECKLIST


POLICIES, RULES AND REGULATIONS

Once an employer has committed itself to Union Free objectives and has selected the requisite blend of Union Free managers and employees, the foundation and structure of a Union Free environment is virtually completed.

But what are the guidelines, rules, policies, regulations and practices through which this teamwork will function? In other words, after the question of "who" is satisfied, the "how" must be resolved.

Thus, another important ingredient toward a Union Free operation is the implementation of fair and equitable policies, rules and regulations.

Employees, like any other disciplined individuals, appreciate knowing exactly what is expected of them both with respect to their job duties and their personal conduct. Therefore, the employee should be carefully and comprehensively instructed about all facets of his or her job. He should be shown how his job duties "tie-in" with the entire operation and their importance to the overall function of the business.

The employees job duties and responsibilities should be specified into a job description of both a detailed and general nature. It should be sufficiently detailed to outline each and every essential function of the job to which the employee is most frequently assigned. However, it should also contain language that the employee's job duties include any and all other types of jobs to which he might be assigned.

Flexibility is one of the many residual benefits of a Union Free operation and it should not be jeopardized by limiting employees to one task or one function, a sure method of producing "prima donnas".

The evaluation standards and job performance measurements by which the employee will be "graded" should be fully explained to the employee. These standards should be based upon objective and measurable criteria instead of on such loosely defined subjective areas as "attitude," "appearance," "disposition" or "initiative." Such subjective factors can be improperly applied by managers and supervisors and can result in favoritism and other unacceptable practices.

Management personnel must be educated to administer job performance evaluations honestly and fairly instead of as a tool of individual discretion. Once his job functions and the standards by which he will be evaluated have been explained to the employee, he should be given an opportunity to repeat his understanding of those duties and standards to his supervisor to insure that both are on the same wave length.

The same thorough interchange of communication and understanding must exist in the relationship to the employer's rules of conduct. Rules of conduct are most important for at least two distinct reasons.

First, without the existence of set rules, it is most difficult to administer a method by which to eliminate "unsatisfactory employees."

The second and related reason that rules of conduct must exist is that without them it is most difficult to discipline and/or discharge employees in any consistent fashion, and consistency is mandatory in order to comply with the various federal and state discrimination laws such as Title VII of the Civil Rights Act (EEO), the Age Discrimination laws, etc.

What then are the best methods by which to implement rules of conduct for a Union Free employer?

The first principle in fashioning conduct is to make sure that the are published and distributed to the employees. They may be posted on bulletin boards, made a part of the employee handbook, or given to each employee individually, but proper notice to the employee is essential.

The second principle in establishing rules of conduct is to make sure a fair and equitable system exists through which the rules of conduct can be consistently administered. A breach of a major rule of conduct should subject an employee to automatic dismissal. Examples of major offenses include stealing, being intoxicated on the job, damaging property of the employer or striking a fellow employee.

Less serious offenses are based upon a progressive disciplinary concept whereby the employee is given a certain number of written warnings before he is discharged. Many Union Free employers use a three written warning sequence so that upon the third written warning the employee is subject to discharge. Examples of less serious offenses include tardiness or an unexcused absence, horseplay or over-extending break periods. Again each employer must set its own standards.

It should be recognized that in considering major and less serious offenses, an employer cannot hope to foresee and include all types of employee misconduct which may occur. Therefore, in the case of both categories the Union Free employer should specifically note that the list is not all inclusive and that employees engaging in unlisted acts of misconduct are no less subject to disciplinary. The Union Free employer will note those unlisted acts of misconduct which do occur both for the purpose of insuring disciplinary consistency should the misconduct occur again, and for the purpose of including such acts in any redraft of the rules. Note: under the "employment at will" doctrine the employer may terminate the employee at any time and for any reason (not in violation of a public policy). This disclaimer should be included in any disciplinary policy. Refer to the Employee Relations section of this Manual for a complete discussion on disciplinary procedures.

A third principle to be remembered in establishing roles of conduct is that utilization of discipline in the Union Free environment should be regarded as corrective instead of punitive. Especially for the loyal and dedicated employee who might have innocently and unintentionally breached a rule of conduct, it is most important that the employee be counseled in the right manner. The less sophisticated manager may well make an enemy out of a very good employee by improper handling of the problem involved, whereas a more knowledgeable supervisor may be able to turn the event into a better and closer relationship with the employee. In this connection, managers and supervisors should be cognizant of some basic concepts in correcting, counseling and disciplining employees:

"TEN COMMANDMENTS" FOR PROPER DISCIPLINE


1. Make sure the employee clearly understood the particular rule in question or the instruction given.

2. The employee should be allowed to explain the reasons for his acts, if any.

3. Avoid using abusive language in the disciplinary action.

4. Discuss the mistake, instead of "running down" the individual.

5. Avoid bringing up past mistakes that have no reference to the situation at hand.

6. Do not discipline and "chew out" an employee in front of his co-workers.

7. Do not call the disciplined employee "names" or refer to him in a ridiculing manner.

8. Do not discuss with other employees the nature of the disciplinary problem of a fellow employee (unless such would constitute a group disciplinary action).

9. Avoid referring to your position as a supervisor or boasting of your superior position at the time you discipline an employee.

10. Some positiveness should be interjected into the disciplinary action as so to reflect the corrective nature of the action as contrasted to the punitive. Involving the employee in developing a personal improvement plan is such an example


The Union Free employer must also establish proper rules to limit union campaigning on its premises to the fullest extent possible. First, all persons not employed by the employer should be notified that it is not permissible to solicit employees on the employer's premises. This is best accomplished by placing a sign on the employer's premises to that effect.

Second, the employer must have in existence a legal "no solicitation/no distribution" rule for its employees. It should be noted that the National Labor Relations Act provides employees the right to solicit union membership from fellow employees as well as to distribute union materials to them during break times, lunch periods and before and after work. No rule can prohibit this protected right of the employee. However, the employer can fashion a rule to prohibit an employee from soliciting or distributing union materials during his work time - and such a rule is a must! This rule should be spelled out in the company handbook. Its wording would be such as the following:

Distribution of advertising material, handbills, printed or written literature of any kind in working areas of the Company is prohibited at all times. Distribution of literature by non-employees on Company premises is prohibited at all times. Distribution of literature by employees who are supposed to be working is also prohibited. Solicitation by an employee of another employee is prohibited while either person is on working time.

Third, there is no reason why employees should linger around the premises before or after work. Where such practice is condoned during union campaigns, pro-union employees frequently take advantage of this situation and mingle into other shifts to converse with other employees in an attempt to move them toward the union cause. Accordingly, a rule should be implemented that would prohibit employees from being inside the facility except during their specific work period, of course, taking into consideration a reasonable time before and after work to coordinate their transportation or other necessary activity.

Policies concerning wages, fringe benefits, promotions, transfers, grievances, and seniority are also important to the employer-employee relationship. And the Union Free employer should have two methods of compiling and distributing these written policies and procedures.

First, it should have at its disposal what is frequently referred to as a "policy and procedure manual" for use by management and supervisory personnel. This manual should fully describe all the employer's policies and contain guidelines as to the proper manner of administering them. Each and every policy relating to employee-employer relations should be included in this
particular manual.

Second, there should be an employee handbook for the benefit of employees. This handbook should describe the positive benefits that the employer provides to its employees as well as employer expectations concerning job performance, attendance, etc.

This handbook should also contain a certain amount of "sell" so that the employee can better appreciate the background and history of his employer and the favorable attributes attached to the organization. The rules of conduct outline the expected behavior. But it is most important the handbook contain such rules so that the employee will be given notice of their existence and the overall disciplinary procedures. In this regard it is advisable that each employee be required to sign for the handbook and told that it is his responsibility to become
familiar with it. A sample employee handbook is provided in a later section of this Manual for reader review.

A "policy and procedure manual" for the management team and an employee handbook for the employees reinforce the sound policies already established.

Finally, caution should be taken in changing any policy or in announcing any new policy. Sudden changes in policies affecting employees can cause enormous unrest and insecurity. It only makes good business sense to involve the entire management team in any major decision that might cause employee frustration and it is equally wise to send up "trial balloons" or solicit employee input before making a final decision.

Above all, if and when major policy changes are announced, a full explanation should be given employees. Rumors spread and discontent grows when employees feel they are not being given the truth about major changes.


ELIMINATION OF UNSATISFACTORY EMPLOYEES

Termination of employees may come about during the introductory period, after several years of employment, or upon retirement - but termination occurs at some point.

Another necessary step, which helps ensure Union Free status, is the prompt elimination of employees and supervisors who do not meet the standards of the Union Free employer. 

There are many potential dangers in terminating employees both from legal and practical considerations. The Union Free employer must understand both.

The Union Free employer should be knowledgeable of the Civil Right's Act of 1964, Title VII, which precludes discharge (as well as other actions taken against employees) on the basis of race, sex, religion, color and national origin. It should also be aware of the Age Discrimination in Employment Act (ADEA) which presently precludes discharge because of age.

The Union Free employer should fully appreciate the impact of the retaliation sections of the Fair Labor Standards Act, Occupational Health and Safety Act, National Labor Relations Act, Equal Pay Act and other labor relations laws that make it illegal to discharge an employee as a result of his filing a complaint with the agency enforcing the respective law.

The National Labor Relation's Board looks very closely at an employer that discharges an employee during a union campaign. When discharges occur at such times, most employers seek to justify their action by showing that the employee was fired for good cause; for example, insubordination, poor work performance or attendance.

In such cases it is not uncommon to hear the employer comment that it should have gotten rid of the employee months or years earlier because of the offensive conduct, but that they simply never got around to it. Had the employer discharged the employee earlier because of his unsatisfactory conduct, there probably would have been no basis for the unfair labor practice charge and the employer would not need to face the emotional strain of attempting to justify its position. Moreover, the employer would not have to face the fact that his very tolerance and condoning of the employee's previous failings may well be used to prove the case against him.

Thus, it is imperative that the Union Free employer recognizes the importance of eliminating unsatisfactory performing employees and this begins with the introductory period. If during such a period or at its conclusion there is genuine doubt that the employee can measure up to the employer's standards, the Union Free employer must have the "guts" to terminate such an employee.

In this regard, it is the responsibility of the entire management team and most particularly of the specific supervisor and business owner, to recognize their obligation to preserve the high quality of the employee workforce.

That is not to say that each and every employee should not be given full opportunity and the necessary training by which to accomplish his or her assigned job. It does mean that "problem" employees frequently surface during the introductory period and if it appears that the employee will not make the "grade", it is much better to face up to that fact then and terminate the employee at the earliest time possible.

As mentioned, the Union Free employer should understand the practical consequences of discharge in addition to the legal ramifications. Obviously, an employee may be discharged for reasons, which are not prohibited by the various federal, state or local employment discrimination laws. However, the Union Free employer recognizes that in the employer/ employee relationship, discharge constitutes "capital punishment" .Thus, the Union Free employer is sensitive to the employee unrest and insecurity which discharge can generate. The most beneficial practical consequence of discharging an employee at an early date, as opposed to an employee with several years seniority, is that insecurity is not as great with the remaining employees.

Most employees who are responsible and dedicated do not desire that a "goof off" or "insubordinate" employee continue on the payroll. As part of their identification with participative management, they empathize with the employer's decision to terminate such an employee at an early date and welcome the decision. That is, they do if the employee who is discharged is relatively new.

However, if the employer discharges an employee who has been "on board" for several years, even with some long term deficiencies in performance, some employees will identify with the discharged employee rather than with the employer. 

This is not to suggest that long term "problem" employees should not be terminated. They indeed should be terminated if they have not become reliable and productive employees. The point is simply that the longer an unproductive or marginal employee (or some other undesirable employee) is allowed to remain with the employer, the less the remaining employees may be likely to accept the discharge as a rational and fair one.

Sometimes the discharge of an employee can generate a feeling amongst fellow employees to the effect that the discharged employee is in some way a "martyr". This is especially true if the discharged employee is very popular and his discharge is suspect in the eyes of a large percentage of the remaining employees.

The "martyr" phenomenon often is initiated by a union to gain support for its cause. A union may in fact purposely coach a pro-union employee into getting himself discharged, and, thereafter, propagandize that the employee was discharged unfairly. The union is then in a position to further spread propaganda that without the union's so-called protection the remaining employee's jobs are equally in jeopardy.

In summary, the Union Free employer when discharging an employee, must protect itself against the possibility of job insecurity and/ or " martyr" backlash. This can be done by following certain self-imposed principles.

The first principle is that it must have its rules of conduct and related policies properly published and distributed to all employees.

The second principle is that the rules and policies must be consistently enforced.

The third principle is that the facts and circumstances relating to the reasons for discharge must be fully documented.

The fourth principle is that the employer should discharge deficient employees at the earliest possible stage (introductory period) if it appears inevitable that such will be the later course of action.

The fifth principle is that the employer should establish a discharge checklist and educate each and every management member to follow it religiously. The following is a sample discharge checklist which might be considered:


CHECKLIST TO FOLLOW BEFORE DISCHARGING AN EMPLOYEE

1. Suspend the employee and initiate a thorough investigation in order to get all the facts (unless there are absolutely no facts in dispute and the conduct calls for immediate dismissal).

2. Get all the facts including any remarks the employee in question might care to make.

3. Determine whether there is a rule or policy which calls for dismissal based upon the facts involved.

4. Determine whether the employee was aware of the rule or policy in question.

5. Determine whether there have been any exceptions to the rule or policy.

6. If there have been exceptions, determine if the factual situation at hand fits any of the exceptions.

7. If this is the first discharge case under a particular rule, double check the original purpose and intent of the rule and confirm that it is still a timely and proper one.

8. If the employee in question is a minority or some other class protected employee, insure there are no disparate applications of the rule relating to federal or state law (age, race, sex, etc).

9. If the discharge has been brought about because the last step in the progressive disciplinary procedure has been reached, recheck to make sure that all past steps or procedures have been properly followed.

10. Make sure the employee is not engaged in any type of protected concerted activity (as far as is known).

11. Determine whether the discharge will make the employee a "martyr" and, if so, set up communication plans to overcome the effect of such "martyrdom".

12. Make sure that the employee's file has proper documentation and witnesses exist to support the discharge case. 

13. At the time of actual discharge, make sure there is another managerial employee present.

14. At the time of discharge, be short and brief without references to sympathy or "passing the buck".

15. If at all possible, reference the specific rule of conduct which has been violated, as well as any previous warnings given.

16. Make sure that the procedures utilized in conducting the discharge and exit of the employee are the same as those utilized in previous discharges. 

The Union Free employer must also recognize its obligation to promptly eliminate from the management team deficient supervisors or managers who either cannot or will not reform their substandard practice.

Normally, the discharge of a supervisor does not create the anxiety and insecurity which might occur in the case of the termination of a fellow employee. In fact, when the supervisor possesses many negative characteristics the employees will most likely welcome the change. Nevertheless, the discharge of a supervisor may create the same job insecurity and "martyr" effects, which the discharge of long-term employees can generate. Thus, the Union Free employer should be mindful of these possibilities and seek to counteract them if they should arise amongst employees or among fellow supervisors.

The reader should not conclude that the Union Free employer refrain from attempting to help the deficient employee or supervisor conform to its standards. The Union Free employer does, in fact, have the responsibility and should afford the deficient employee and supervisor every possible educational tool and instructional device available.

But when the deficient employee or supervisor does not change after such training and attention, the Union Free philosophy dictates that such employee or supervisor be terminated.


EQUITABLE WAGES AND EMPLOYEE BENEFITS

Most union campaigns are not brought about because of issues concerning wages and fringe benefits. In fact, very few are. That is not to say that money is not a major issue in most union campaigns. It is. It simply means that usually, wages and benefits are not the driving force behind the initial union push.

When an employer can show its employees that it is paying at least an average rate of pay and benefits compared with like businesses or institutions and when the employees have no genuine complaint about the internal administration of the wage and fringe benefit program, the employer is in a good position to counteract the union's propaganda about getting the employee substantially more money and benefits. 


WAGES

"Equal pay for equal work" is a maxim which if followed will serve the Union Free employer well from a legal perspective. It is a must to staying non-union. Employees will understand and accept, as equitable, wage differentials based upon four conditions.


(1) LONGEVITY. Most employees understand a system in which employees with longer service receive more wages as a result of their seniority, even though the younger employees are doing the same work as the more senior employees and all are equally proficient in their jobs.

(2) EQUITABLE CLASSIFICATIONS. Employees readily accept the fact that a truck driver should make more money than a janitor at the facility. As long as the various classifications or labor grades are properly structured, most employees will have few problems in accepting the policy of higher wages for harder or more skilled work or more responsibility.

(3) MEASURED INCENTIVE. Employees do not find fault with incentive systems that provide more money for more work produced. An acceptable incentive system, however, must have measurable controls to determine the qualitative or quantitative results of an employee's efforts.

(4) SHIFT DIFFERENTIALS OR SPECIAL CIRCUMSTANCES. When an employee must work at a less desirable time or in a less desirable location, other employees generally agree that such employee should gain some additional money for his inconvenience, even though the job itself might be the same. Shift differentials are an example of this and many Union Free employers give such additional pay.


MERIT SYSTEMS

Many non-union organizations stress the value of a merit system so that employees may be justly rewarded for their special efforts.

However, few union contracts contain a merit system of pay. There is a good reason why union representatives dislike traditional merit increases. It is not because of their disapproval of the principle of more pay for better performance. Rather, it is a distaste for the administrative defects typically found in the system, such as susceptibility to inequities based on the biases or favoritism of some supervisors and managers. Any Union Free employer looking to administer an objective merit pay system must ensure that their supervisors are adequately trained to do so. Many companies make performance appraisal strictly development oriented. The supervisor reviews employee strengths, weaknesses and future goal areas; however, the employee still receives the automatic pay increase unless performance is totally unsatisfactory.


WAGE STRUCTURES

In addition to the need to properly and equitably classify employees into wage categories and labor grades, there is the question of longevity and what increase, if any, should be based upon seniority.

Many Union Free employers structure wage programs as follows:

(1). An entry rate of pay is established for each classification or job category.
(2). The new employee receives a pay increase at the end of his introductory period.
(3). The employee receives a pay raise at the end of his first year.
(4). He receives a raise at the end of his second year.
(5). Possibly at the end of his third or fourth year he receives another raise.

These raises are frequently referred to as "longevity" or " seniority" raises. They do not include annual increases or "across the board" increases which normally are given to all employees irrespective of their years of service with the employer.

Most longevity raises "top out", both with unionized employers and non- union employers, after a few years in order to maintain an acceptable differential among all employees doing the same job.

Most employees find longevity raises equitable because each has the same opportunity of receiving them based upon seniority.

Example: Deliver Driver wage range:

In-HireIntroductory Period
(90 Days)		1 Year2 Years3 Years4 Years
$9.75$10.00$10.35$10.70$11.05
$11.45

Union Free employers should constantly survey comparable union and non-union businesses in their geographical area to determine what are competitive wages and salaries for similar positions and job categories. The Union Free employer strives to be in the "ballpark" with its wage and benefit programs, and preferably to exceed those of unionized employers. Reference is made to Employee Compensation and Benefits Report available from GAWDA Headquarters. This is an excellent source of regional and national distributor pay and employee benefits information which is updated periodically.


EMPLOYEE BENEFITS

The Union Free employer should be as attentive to its employee benefits program as it is to its wage policies. There are many benefits that Union Free employers should include in their package. They include the following:

HEALTH INSURANCE
Although an employer may not be financially able to pay for the most sophisticated medical plan available, Union Free employers should provide some basic coverage for their employees. Few, if any, union contracts do not have some type of health insurance.

HOLIDAYS
Union Free employers should provide time off with pay on most traditional holidays and should make an effort to observe holidays which may be recognized locally.

VACATIONS
Union Free employers should not only have a competitive vacation plan, but should make sure the plan is clear and administratively functional. The plan should recognize seniority in some way by providing more vacation time for more senior employees with reference to some specific seniority dates.

LEAVES OF ABSENCE
Although employees may not feel that leaves of absence are benefits, the Union Free employer should educate its employees that they are additional benefits because such leaves are a handicap to the employer and not all employers allow them unless legally required (such as Family and Medical Leave).

Standards should be established through which leaves will be granted and these standards should not be compromised.

JURY DUTY PAY
The cost of jury duty pay is relatively inexpensive and is required by law in several states. The pay is generally the difference between what the employee receives from the Court and what he would have made had he been able to work.

FUNERAL PAY
Most Union Free employers pay employees for a limited number of days (usually 2 or 3) that are required to be off as a result of a death in their immediately family. Most union contracts provide for such benefits and the Union Free employer should do no less. Funeral pay may well be an area where an employer can start off with a "light" program and build upon it by announcing improvements from time to time.

SICK DAYS
The Union Free employer should have a sick leave policy and allow employees off so many days over a certain period 0f time for verifiable medical reasons. Again, sick leave may be an area in which a "light" program can be utilized to bring the benefit into existence and subsequent improvements can be the basis for announcements of improved benefits. Self-insuring some type of short term disability program, for verifiable medical reasons, may be cheaper than through a group carrier program.

SHIFT DIFFERENTIALS
Although the employee might view the shift differential as only pay, it should be communicated as an additional benefit for it surely is for those who receive it. The Union Free employer should pay such differentials when employee inconvenience is involved.

LIFE INSURANCE
Term life insurance policies normally accompany group health insurance. If policies do not include life insurance, it is relatively inexpensive to acquire smaller amounts of life coverage. Some form of life insurance should be implemented as an additional benefit of the Union Free employer.

There are numerous other benefits, which could be added to the foregoing list, such as dental, profit sharing or retirement plans. The Union Free employer should attempt to implement as many and varied benefits as cost effectively possible. In particular, it should develop and implement benefits that are common to its own operation or industry.

The employees should be told the additional costs, in cents per hour, of their benefits and this information should frequently be communicated to them through such devices as pay envelope stuffers or benefits statements.


ELIMINATION OF EMPLOYEE IRRITANTS

Many unions use a collective list of employees "pet peeves" as a means of, stirring up union support and identifying common problems that the employer has left unattended. The union's sales pitch is that it will make the employer respond to such problems. Whether small or large in the eyes of the management team, continuous irritations are leading factors in union victories. Their elimination is essential to maintaining Union Free status. Most noteworthy are the following:

A. Working Conditions
Employees appreciate their jobs more and perform more efficiently when they work in a clean, pleasant and attractive atmosphere. This includes:

B. Parking Facilities

C. Tools and Equipment

D. Housekeeping

The Union Free employer should have adequate janitorial services to eliminate building cleanliness issues. It must do everything reasonably possible to make working areas an attractive part of the work climate.

COMMUNICATIONS IN THE UNION FREE COMPANY

Employee Right of Review

Unions typically exploit two weaknesses of many non-union employers. They proclaim that the employees do not have meaningful grievance procedures and equally proclaim that the respective employees do not have job security. In order to maintain Union Free status, companies must maintain a sound and responsive procedure through which employees may protest any adverse action taken against them. This can occur in several ways.

The Open Door Policy

The "Open Door Policy" is a most beneficial approach to grievance handling. The Union Free open door policy assures the employee of the right to take his problem or complaint directly to anyone in management including the General Manager or business owner, after informing his supervisor that he so desires to meet with a higher management member.

Lower level supervisors often frown upon the "Open Door" system because it allows employees to "go over their heads" to higher management.

The Union Free employer will educate the supervisor so that he will not fear the "open door" system. Organizations can ill afford to back a supervisor when he is wrong in his actions. Supporting a wrong supervisor in disregard of an employee's fair treatment is a sure means of bringing a union into the company.

The "open door policy" should be publicized by policy directive, employee handbook and from the employee's initial orientation process to their retirement banquet!


Grievance Procedure

A formal grievance or "problem solving" procedure provides the employee an additional avenue to process his appeal of an adverse action to several individuals of the higher echelon. It affords the employee some special attention and documentation that might not be present in the "open door" or other communications systems. A sample grievance policy in the Union Free
setting might be as follows:

If an employee has a problem or complaint, they should discus the problem frankly and thoroughly with their immediate supervisor. If the answer or solution offered by the immediate supervisor is not satisfactory, the employee may submit the problem to the Department Manager. If the employee is still unsatisfied with the answer or solution offered by the Department Manager, they may submit the problem to the President of the Company.

All complaints submitted to the President of the Company shall be in written form and shall state clearly (a) the employee's complaint; (b) the matter of fact upon which the complaint is based; (c) the relief sought by the employee. The President will arrange a meeting to discuss the complaint, normally within ten (10) work days, following the receipt of the complaint. The President shall issue his decision
within ten (10) work days after meeting with the employee. The decision of the President shall be final and binding on all parties and shall not be appealable or reviewable by a court of law unless the matter involves a perceived violation of public policy or employment law.

The final element in the formalized grievance procedure is the requisite objectivity needed at each phase of the procedure. If the employee has been "wronged", it should be made right. If the policy is wrong, it likewise should be changed.

Fair play is the underlying theme of both the "open door" and the more formal approach to the grievance solving process.


IMPORTANCE OF ADDITIONAL GOOD COMMUNICATIONS PROGRAMS

In addition to resolution of employee grievances there exists many other communication programs Union Free employers must consider.

A. Orientation Program
Intense anxiety is normally experienced by any new employee. Thus, it is important that at least some formal program of introduction to the Company occurs, once hired. Section 1 of this Manual presents suggestions for an effective orientation
process.

B. Small Group Meetings
The mechanics of this communication's program is that the General Manager and/ or business owner meets with groups of employees numbering in size from 5 to 15 for the dual purpose of importing newsworthy information and seeking out any ideas, suggestions or any concerns or complaints that employees might desire to ventilate through the meetings.

C. Employee Committees
The use of such committees is both positive and dangerous. It must be noted that creation of an employee committee that has the recognized power and authority to bargain with the employer over wages, benefits and working conditions constitutes a violation of the National Labor Relations Act. Should this situation exist within the company, the "Committee" would likely be considered a company dominated union and as such, open to an unfair labor practices charge.

Frequently, employers create entertainment or recreation committees so employees can help plan and coordinate such employer sponsored events as picnics, open-houses and other parties or events, Safety Committees, too, are prevalent in most organizations.

D. Bulletin Boards
Attractive and abundant bulletin boards are another communication tool to which a Union Free employer should give considerable attention. Normally displayed are items concerning new policy, job promotion or new-hire notices, benefits programs, upcoming events, management announcements or safety news. Most bulletin boards are displayed in an attractive location, with proper lighting and enclosed by glass to protect and preserve the contents. Equally important is the removal of old and outdated materials. Employee requests to post notices on bulletin boards should be met with the with the approval of higher management.

E. Management "State of the Company" Speeches

Most employees appreciate being assembled as a body and hearing from their leader whether done monthly, quarterly or on an annual basis. Employees are interested in knowing how the company is doing, what future prospects are, customer feedback and to dispel unpleasant rumors.

F. Employee Opinion Surveys

Opinion surveys can be an excellent upward communications tool but extreme care must be shown if they are to be utilized. It is vitally important that the results be communicated back to the workforce along with an "action plan" of what will or not be done with the results. Nothing sours employee attitudes more than their providing requested input or suggestions, but only to see nothing happening
afterwards.

In conclusion then, perhaps no one area of human resource management helps maintain Union Free status more than the effectiveness of employee communications. In today's work world, employees want information about their company, want to provide input and want to know that someone will listen when they have a problem or complaint. If the company won't listen they can be assured that a sympathetic union organizer will.

 


'TOP TEN' CHECKLIST REMINDER FOR MAINTAINING UNION-FREE STATUS

OKNEEDS
WORK ON		COMMENTS
(1. ) Effective applicant screening and hiring practices.__________________
(2.) Formal new employee orientation/ training programs.__________________
(3. ) Existence and elimination of poor job performers.__________________
(4.) Properly trained supervisors.__________________
(5.) Equitable pay and benefits__________________
(6.) Current employee handbook or human resource policies.__________________
(7.) Effective "up and down" employee communications.__________________
(8. ) Employee recognition programs - length of service, attendance, work quality , etc.__________________
(9. ) Safe and clean work environment.__________________
(10.) Legal knowledge of what can and cannot be said during an organizing attempt. (Refer to the following section).__________________



KEY COMPONENTS OF THE NATIONAL LABOR RELATION'S ACT

The NLRA gives employees the right to take collective action to form labor organizations and to bargain with management on an equal basis over wages, hours, and other working conditions, and to engage in other protected concerted activities. The NLRA also protects employees from unfair labor practices by employers and unions in relation to these labor organization issues. The National Labor Relations Board (NLRB) was created to enforce these provisions.

Employers and unions may not engage in unfair labor practices for the purpose of intimidating, threatening, discriminating or retaliating against employees who participate, or choose not to participate, in protected activities.


Unfair Labor Practices - Management

The following are unfair labor practices which the NLRA prohibits employers from doing:

1. Restraining, coercing, or otherwise interfering with employees exercising protected rights, including:

2. Unlawfully dominating or interfering with labor organizations by:

3. Discriminating or retaliating against employees for engaging in union activity, including:

4. Refusing to bargain with a labor organization which has been certified as the majority representative of a collective bargaining unit, including:


Employers found guilty of unfair labor practices can be required to:

1. Cease and desist from any such further conduct;
2. Reinstate an employee who has been unlawfully discharged;
3. Pay back wages and restore benefits lost by an employee as a consequence of the employer's unfair labor practice.


Unfair Labor Practices - Union

The following are unfair labor practices which the NLRA prohibits a labor organization or its agents from doing.

1. Refusing to bargain collectively with an employer.
2. Restraining, coercing, or otherwise interfering with employees exercising protected rights.
3. Engaging in or inducing or encouraging any individual to engage in an unlawful strike or a refusal to use, manufacture, process, transport or otherwise handle or work on any goods, articles, materials or commodities.
4. Forcing or requiring an employer to recognize or bargain with a labor organization other than the one that has been certified to represent the employees.
5. Forcing employers to discriminate against employees who engage in protected activities.
6. Forcing or requiring employers to give preferential treatment to employees in a particular labor organization over employees in a different labor organization.
7. Requiring employees covered by an agreement to pay an excessive amount in relation to the industry norm for a labor organization and current employees wages.
8. Causing or attempting to cause an employer to pay or provide compensation for services which are not performed.


Employer Rights

An employer may fire employees for any reason (lawful), as long as the discharge is not based on union membership or activity or other protected concerted activity. An employer can restrict union activity during working hours.

An employer has the exclusive right to manage the business, but it must abide by any agreement reached with the union that limits this right. An employer has the right to terminate the business, but cannot use this threat to discourage employees from supporting or participating in a union. An employer is protected from harassment arising out of labor disputes.

Employee Rights

Employees have the right to engage in "concerted activities for the purpose of mutual aid and protection." They do not have to join or form a labor organization for these activities to be protected under the NLRA. And they have the right to refrain from union activities.

Employees have the right to file charges with, or testify before, the NLRB without fear of retaliation by the employer. They are entitled to rights granted by the employer in the collective bargaining agreement. And they can wear union insignia on the job as long as it does not interfere with their work.

Employee Prohibitions

Employees may not picket or strike to force an employer to bargain with an uncertified union. Employees may not participate in secondary boycotts. Employees must follow any grievance procedures set forth in the collective bargaining agreement. They can't sue their employers without first exhausting the remedies under the collective bargaining agreement.

QUESTIONS AND ANSWER

Q. Can an employer ask job applicants whether they belong to a union or whether they have signed a union application or authorization card?

A. Absolutely not.

Q. Is it considered an unfair labor practice for an employer to inform employees of misconduct by the union or its officers?

A. No, it's not, if the employer's information is based on fact, and the information is relevant to the employees' selection or rejection of the union.

Q. Is it legal for an employer to stop union organizers from soliciting on company premises?

A. The right of employees to organize into unions includes having a time and place to engage in organizing activity. But employers also have the right to control the use of its property .So an employer must make it clear to employees that such activities may only be done during free time, such as lunch or breaks, or it may prohibit all soliciting on company premises. However, danger lies in how consistent the employer is in applying its solicitation policy. If other
organizations are allowed to solicit on company time, but unions aren't, that may be considered discrimination.

Q. Can an employer ask employees about union activities?

A. If an employee volunteers the information, an employer may listen. But the employer may not ask questions to get additional information. The NLRA prohibits interrogating employees about union activities so the safest course would be to avoid discussing union meetings with employees.

SUPERVISOR GUIDELINES WHEN UNION ORGANIZING OCCURS

The following explains what supervisors should and are legally allowed to do during an organizing attempt:

General Guidelines: Do Nots

Remember TIPS! Do not....

T Threaten
I Interrogate
P Promise
S Spy

The following is what supervisors should NOT do if union organizing occurs:


CONCLUSION

Due to the inherent legal complexities involved, the distributor or manufacturer is encouraged to seek legal advice should an organizing attempt become apparent. The governing law, which spells out the rights of employers and employees in such situations, is as we have learned, the National Labor Relation's Act. However, by carefully considering and implementing the preventative steps outlined in this section, the odds of having to deal with union organizers at your company steps will be greatly lessened.

Remaining Union Free is both a science and an art. The science encompasses the policies, procedures and programs necessary to afford a firm, fair and equitable system for all; the art concerns the creative use of human relations skills in the implementation and administration of Union Free principles. A challenge, yes! But the rewards and potential savings in costs make remaining Union Free a key business objective.




EMPLOYEE BENEFITS

 

ACHIEVING AN EFFECTIVE EMPLOYEE BENEFITS PROGRAM

There is a good reason why employee benefits are known as the "hidden paycheck"; while employee's may take them for granted or even overlook them altogether, distributors and manufacturers are probably spending one-third of their total payroll budget for the many forms of indirect compensation provided. Benefits programs should help employers attract, hold and motivate employees.

Key features in maintaining an effective benefits program include the following:


BENEFITS AND DISCRIMINATION CONSIDERATIONS

Title VII of the Civil Rights Act, the Age Discrimination in Employment Act and the Pregnancy Discrimination Act all have benefit plan applications. There exist three basic categories to be aware of:

Examples of Employee Benefits

TYPES OF BENEFITS PLANS

Four kinds of benefits are typically provided to employees: paid time away from work, life and health insurance, employee services, and retirement income. Some benefits are legally mandated, such as unemployment insurance, workers compensation, and Social Security. Companies often do not track the cost of these benefits, mistakenly believing they would be paying the salary anyway or that the cost is small compared with other labor costs. However, in many large companies, the cost of benefits exceeds 40 percent of payroll and is fast approaching 50 percent! Many companies offer a "cafeteria plan" of benefits and offer employees choices amongst the benefits offered; usually on an annual basis.


PAID TIME AWAY FROM WORK

Employers usually offer pay for holidays and vacations; sometimes they pay for sick leave. Neither managers nor employees see the real cost of providing these benefits. If the position is really needed, any time away from work means something is not getting completed or someone else has been assigned to do the work and the company is paying double.


INSURANCE

Three major forms of insurance are common: health, disability-accident, and life. Health insurance is extremely costly and very popular with employees. Coverage may include prescription drugs, mental health services, and dental care. In spite of cost-containment efforts by both employers and the government, health care costs continue to escalate dramatically. Group life insurance is generally very inexpensive, however, for most employees, life insurance is a low priority. Long-term and short term sickness and accident or disability insurance protects employees who have accidents or injuries off the job that leave them temporarily or permanently unable to work.

Payment for Healthcare Coverage

Companies should explore all the alternatives when deciding to provide employee healthcare coverage. These alternatives include traditional group health insurance policies as well as various managed care possibilities. Many insurance plans are once again increasing in terms of premiums paid at a rate exceeding 10% per year! Thus, until employers periodically "shop around," they will not know which arrangement will be least costly to both the business and employee, while at the same time providing adequate coverage.

Under some plans, employees pay for a portion of their medical expenses - usually called co-payments. The theory is that employees will seek only essential treatment if they are paying some of the cost.

Among the choices for who will pay the insurance premium are the following:

Another way to shift some costs to the employee is through a deductible plan which requires the employee to pay a specified amount of medical expenses $500.00 each year, for example - before the plan's coverage begins.


EMPLOYEE SERVICES

"Employee services" is a catch-all category for a variety of voluntary benefits, such as cafeterias, saunas and gyms, health club memberships, EAP's, commuter vans, discount on company products, and child care.

Educational programs. Many organizations provide educational assistance for employees. The coverage varies considerably for everything from job-related training to degree and advanced degree programs. Educational support is often part of the employee development program.

Social and recreational programs. Many companies are finding that wellness and recreational programs increase productivity and reduce health care costs. Some such as smoking cessation and employee assistance programs have significant, proven cost-cutting benefits; others - such as in house gyms may not have the same return on the investment.

Child care. Some employers support on-premise child care centers, but there are serious disadvantages. Most companies that offer a child care benefit subsidize the cost but do not actually operate the center. Many offer referral programs, assisting employees in finding suitable child care arrangements.

RETIREMENT INCOME

Employees' retirement income comes from four sources - Social Security benefits, private pensions, investment income and earnings.

Retirement (pension) plans. The Employee Retirement Income Security Act (ERISA) (1974) and subsequent federal tax legislation have subjected qualified pension and other benefit plans to comprehensive government control. The purpose of this law and subsequent amendments is to ensure that employees who put money into retirement plans and depend on them for retirement funds actually will receive the money when they retire.

Qualified plans. Qualified plans must (1) be in writing and communicated to employees; (2) be established for the exclusive benefit of employees or their beneficiaries; (3) satisfy rules concerning eligibility, vesting, and funding; and (4) not discriminate in terms of contributions or benefits in favor of officers, shareholders, or highly compensated employees. Qualified plans offer tax-favored benefits to both employers and employees. The plan may be either contributory or noncontributory.

Nonqualified plans. Federal law has made it difficult to use company benefits to compensate highly paid executives. One way for companies to provide additional benefits for key executives is to offer nonqualified deferred compensation plans. These plans are a promise by the employer to pay a given amount at a later date. Nonqualified plans are not deductible to the employer, nor are the benefits guaranteed to the individual.


Mandated Benefits

Employers are legally required to offer certain benefits to employees; these include Social Security, unemployment compensation, and workers' compensation. The employee and the employer have little or no discretion over these benefits.


Social Security

The Social Security Act of 1935 created a system designed to prevent the severe financial hardship that many elderly people suffer during retirement. Covered employees are compelled to pay a certain percentage of their annual income to the system throughout their working careers, and employers must match this amount. At retirement age, the contributors become eligible to receive payments from the general Social Security fund. When people refer to "Social Security," they normally are referring to Old-Age, Survivors, and Disability Insurance (OASDI). Taxes paid into the Social Security fund are governed by the provisions of the Federal Insurance Contribution Act.

Eligibility for social security benefits is based on the number of quarters of coverage an individual has been credited with during employment. There are three categories. *

1. Fully insured status grants eligibility for all type of old-age and survivor benefits. For an individual to achieve fully insured status, quarters of coverage must equal or exceed the number of years since 1950 or since age 21.

2. Insured status grants eligibility for some survivor benefits. It requires at least 6 quarters of coverage in the 13-quarter period ending with death, disability, or the attainment of age 62.

3. Disability status grants eligibility for benefits. It requires at least 20 quarters of coverage in the 40 quarters preceding disablement.

Benefit amounts are calculated by means of a complicated formula that is modified annually to account for cost-of-living increases. The benefit formulas are heavily weighted in favor of lower income contributions.

HR professionals or business owners should have a general understanding of Social Security to answer employee questions, understand to whom and under what circumstances benefits are payable, and encourage employees to plan for their retirement. Of course for more complex questions, employees should contact their local Social Security Office.

* NOTE: Social Security provisions and requirements for eligibility change periodically. The reader is encouraged to contact their nearest Social Security Office as questions or rules interpretation issues occur.


Unemployment compensation insurance

The premium paid by employers is based on each company's experience rating (claims filed by its employees). An employer with a good record can substantially reduce its tax, while a company with a high turnover rate will pay more. This system encourages employers to keep turnover low and to oppose unwarranted unemployment compensation claims. Eligible employees must have worked a specified amount of time and must be available and actively seeking work. Also, employees may be disqualified if they refuse to accept suitable employment.


Unemployment Claims: Cost - Saving Tips

Taking extra care in hiring and termination procedures, and challenging unwarranted unemployment claims are two basic steps employers can take to reduce their unemployment insurance tax rates. Following are tips that can help control the organization's unemployment insurance costs:


Workers' compensation insurance

Workers' compensation insurance statutes establish a process through which employees who are injured on the company's premises or while performing duties within the scope of employment are covered for medical costs and for their disability. Employees are entitled to benefits regardless of fault or the employer's liability. The benefit for employers is that liability is limited by the schedule set by state regulations.

Workers' compensation insurance is a state system, and benefits vary considerably from state to state. Payments for hospital and medical expense and rehabilitation services are normally included. Injured employees may also receive compensation for lost wages and for permanent partial disability. The system is generally funded through private insurance, self-insurance, or
payment into a state fund. The amount paid by each employer is determined by various factors, including type of industry, type of work performed, and previous accident rate. All states require that every company with employees be covered. If an employee is injured and the company does not have workers' compensation insurance, the company may be subject to general personal injury liability without limits and may be assessed severe penalties by the state.

As with unemployment compensation situations an employer should not hesitate to challenge worker compensation claims when it is felt warranted. Working closely with ones worker compensation insurance carrier can best accomplish this.


FLEXIBLE BENEFITS

Traditionally, employees were involved in their benefits program only to the extent of being asked to choose amongst options offered by their employer. Today, many employees are involved in choosing not only the types of benefits offered but also the components for which they will pay. Surveys have shown that with increased participation and involvement, benefits programs are more responsive to employees' needs and employees are more satisfied with them.

Generally, companies mandate a certain level of health and life insurance and some minimal level of retirement contribution. The company generally pays part or the full cost of these benefits. The company then offers a cash contribution from which the employee may choose additional health, life, or retirement benefits. Some companies require that the contribution be used within specific guidelines; others allow employees to use this amount for benefits without any restriction. Employees may choose more personal or dependent life insurance, dependent health care, long-term disability insurance, or dental coverage. Some companies allow employees to use the cash for child care services, add it to their retirement investments, or even buy additional vacation time or days off.

The advantage of flexible benefits is that employees can choose those that fit their needs. Someone with a family might choose additional insurance coverage, while a single person might want to put money into more days off. The disadvantage is that the tax treatment of flexible benefits plans is subject to the whims of Congress and to changing Internal Revenue Service regulations. A flexible benefit plan requires a significant amount of administrative time, which
may be outsourced to a plan administrator. Also, because of the wide choice of benefits, the cost of individual components of the plan may increase dramatically in one area: For example, if employees with many medical expenses are the only ones to choose an enhanced health plan, the cost of that plan is likely to rise.

Many companies, even very large ones, are beginning to rethink their benefits contribution process. Rather than increasing their contribution, more companies are allocating a small cash contribution and supplementing it with additional cash bonuses based on profitability. This eliminates the need to meet all the benefits cost increases.

Whatever option the company chooses, it must inform employees and ensure that they understand the total compensation process. Several years ago, a large telecommunications company unilaterally implemented a flexible benefits plan. The major union (Communication Workers of America), which had previously been unsuccessful in efforts to organize the company, suddenly found enough support to launch a major organizational campaign. In another municipal organization, the city's unilateral decision to change health insurance carriers within the flexible benefits program caused several employees to seek union
representation.

Flexible Benefits Plan Options


Under a typical flexible benefits plan, an employee gets to choose from a menu of benefits such as:

Typically, the employer provides a significant dollar allowance to be allocated by the employee. If an employee selects benefits that exceed the allowance, the additional amount is paid for through payroll deductions. If an employee doesn't use the full allowance, the leftover amount is added to his or her paycheck.

These plans are attractive because they allow employees to tailor their benefits to their particular needs, while giving the employer some control over benefit costs. Most benefit-consulting firms can assist employers in establishing the appropriate flexible benefit plan option.


BENEFIT SURVEYS

Various research organizations, industry groups, trade associations and government agencies conduct surveys of employee benefit programs and their related cost. By keeping informed about these survey findings, employers can keep tabs on how their benefits compare with those of other comparable firms and in similar geographic locations. Special reference is made to the GAWDA Benefits Survey completed jointly with the Compensation Practices Survey every two year period. The reader is encouraged to contact GAWDA Headquarters for additional information regarding this valuable resource (215) 564-3484.


CALCULATING BENEFITS COSTS

The cost of benefits has been escalating at a much higher rate than direct compensation for several years. It is important that organizations and employees know and control the amount paid to provide various benefits programs for its employees. The sample worksheet below is a simple way of assigning dollars spent on various benefit categories. Cost calculations can be determined either for individual employees or the entire company workforce. It should be noted that within the overall business sector, benefits costs typically range between 25% -35% of total payroll dollars.


EMPLOYEE BENEFITS STATEMENT

As mentioned throughout this section, companies pay a significant amount in benefits premiums and related costs. Unfortunately, many employees take their benefits coverage for granted. As a way however, of better educating its workforce, organizations are more aggressively communicating and educating employees on the coverage, value and costs to provide benefits programs.

One popular communications method is the annual employee benefits statement. Much of the cost information is available from insurance premium reports and payroll records. Most employees, when presented this document are surprised to see the additional investment made by the company to provide their benefits programs. This is also an excellent way to meet with employees, in small groups, to review their complete benefits package.


BENEFITS COST WORKSHEET

Benefits

Cost for Calendar Year% of Payroll
Legally Required

_____________

_____________
   FICA__________________________
   Workers' Compensation__________________________
   Unemployment Compensation__________________________
   TOTAL__________________________
Qualified__________________________
   Pension__________________________
   Profit Sharing__________________________
   E.S.O.P.__________________________
   Money Matching__________________________
   401(K)__________________________
   TOTAL__________________________
Nonqualified__________________________
   Medical__________________________
   Life__________________________
   STD (Disability)__________________________
   LTD__________________________
   Travel Accident__________________________
   TOTAL__________________________
Pay For Time Not Worker__________________________
   Vacations__________________________
   Holidays__________________________
   Funeral__________________________
   Coffee Breaks__________________________
   Sick Days__________________________
   Military__________________________
   Jury Pay__________________________
   Paid Personal Days__________________________
   TOTAL__________________________
Other__________________________
   Tuition Refund__________________________
   Cafeteria Expenses__________________________
   Recreation, Clubs, Etc.__________________________
   Company Product Discount__________________________
   TOTAL__________________________
TOTAL - ALL ITEMS__________________________


Employee Name:____________________________

Date Prepared:_____________



EMPLOYEE BENEFIT PLAN RECORDS

There exist numerous benefits record keeping requirements employers must meet in order to remain in government compliance. These include the following:

1. Age Discrimination in Employment Act (ADEA).

2. Family and Medical Leave Act (FMLA).

3. Summary Plan Descriptions.

4. Welfare and Pension Reports.

5. COBRA

6. Older Workers Benefit Protection Act (OWBPA).

TRENDS IN NEW BENEFITS PROGRAMS

In response to employee needs and in order to attract highly qualified job applicants, organizations are studying various innovative type benefit programs. Before considering any of the following for implementation, a careful study must be made of their cost, objectives for offering new benefits plans and the return for the company in providing them.

1. Tuition Aid Programs

The number of employers offering tuition assistance programs has been steadily growing. Most tuition aid plans are subject to certain employer imposed restrictions. One of the most common limits coverage to courses that are directly related to skills or knowledge required on the employee's current job or for courses that could qualify them for a more responsible position. Most tuition aid plans are open to all workers, although some employers set minimum service eligibility requirements (six months or a year) and others restrict tuition aid to certain employee groups such as managers, supervisors or professional employees.

2. Child Care Assistance

Employee interest in child care assistance has increased dramatically, fueled in part by the increasing numbers of women workers and single parents. Most frequently, employers provide assistance such as the following:

3. Legal Services

Some employers provide workers with basic legal services, such as notary public services and income tax assistance. Services may also include preparation of wills and other legal documents and representation in most civil and some criminal proceedings.

4. Employee Assistance Program (EAP)

More and more employers are establishing employee assistance programs to help workers cope with a wide range of personal problems that interfere with job performance and productivity Basically, an EAP provides troubled employees with counseling to help them deal with personal difficulties - alcoholism, drug abuse, emotional or mental problems or family or personal crises. EAP services frequently are provided at an outside location by a counseling or mental health organization operating under a contract with the employer. Most hospitals or physician groups can provide employers referrals to reputable EAP services providers.

5. Wellness Programs

Faced with ever - increasing medical costs, many employers are instituting wellness programs. These programs feature a wide range of activities and courses designed to encourage workers to adopt healthy lifestyles. Typical offerings include smoking cessation courses, hypertension screening and control programs, CPR techniques, aerobic or other exercise classes, nutrition information and stress reduction courses.

6. Discounts and Buying Services

Many employers find that providing workers with discounts on company products, supplies or services is a good way to boost morale and reduce pilfering. Some employers also help workers, particularly those who use computers on the job, to purchase personal computers for home use. This may include a cash allowance toward a computer purchase or negotiating a discount price with a computer vendor.

7. Flexible Work Hours and Telecommuting

The tremendous growth of dual-career families, single parents, and a greater urge to improve ones quality of life has resulted in many employers reconsidering how the work gets done. In many cases, employees are requesting and being allowed to work a more flexible time schedule due to child care, elder (parents) care or for other personal reasons. Likewise with improvements in technology, many individuals are opting to work at home. Careful consideration must be given before implementing any of these work options. Issues involving Wage - Hour compliance as well as potential workers compensation liability must be scrutinized before allowing someone to work off - site such as their home.

While further discussion could continue on ways to attract and keep good employees, the above mentioned areas gives the reader some idea on ways to stay ahead of the competition in providing benefits programs which satisfy employee needs.


MANAGING BENEFITS PROGRAMS

Employers that are looking to effectively manage its benefits program must periodically complete the following self-audit. Questions to ask include the following:

1. Does the company benefit package provide coverage that some employees do not need or want?

2. Are there benefit coverages that could be provided that some employees would rather have?

3. Do employees really understand the current benefit plans? How would they rank their benefits compared to those of other companies?

4. Is the current benefit package a plus in recruiting and maintaining good employees?

5. Is the company interested in containing and managing benefit costs? Does it know currently how much is spent in providing benefits programs? What percentage of total payroll dollars is devoted to benefits costs?

6. Does the company believe it is getting the most value for the dollars spent for benefits?

7. Would the company be willing to commit to a thorough communications effort to inform employees about current or new benefit programs?

8. Is the company willing to explore new ground in the benefits area and perhaps, be a leader amongst its competitors?

These and other questions should be examined by every organization making an effort to integrate management's objectives with employee needs and desires. The continued rapidly changing demographics of the work force will require a more flexible strategy and approach to employee benefits if this form of compensation is to be meaningful to both employer and employee.

 

HEALTH BENEFITS AND THE ADA

The Americans with Disabilities Act also prohibits employers from discriminating in the benefits area against employees or applicants with protected disabilities. An employer may provide insurance or benefit plans that comply with existing state insurance laws or ERISA, even if provisions of these plans have an adverse effect on persons with disabilities, provided that the provisions are not used as a subterfuge to evade the purposes of the ADA.



SAMPLE EMPLOYEE HANDBOOK


Linked to the heading is the GAWDA Human Resource Sample Employee Handbook.





SMALL BUSINESS COMPLIANCE HANDBOOK

Linked to the heading is the Department of Labor's Small Business Handbook. In an overview format, the guide covers pertinent employment regulations applicable to large and smaller organizations.

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