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Friday, February 17, 2017

Employer Response to Feb 17 General Strike

If you are an employer and have employees participating in today's called General Strike here are a few tips.  The demands of the General Strike are not employment related: they are political and are not about to your workplace's specific terms and conditions of employment.  As such this is not subject to the "no strike" clause of your collective bargaining agreement (if you have one), and is not a non-union "wildcat strike".  As such it is not NLRB protected concerted activity in my opinion. You can take corrective action in accordance with your policies.

But be careful: this "is" protected First Amendment speech so terminating for absences related to this event could prove problematic.  Still you probably don't want people walking off the job without consequences and/or disrupting your workplace.

Here is what you can do.  Insist that the strikers leave your premises, not block your entrances and exits, and not disrupt your business. You can call in people to cover open shifts.  You can follow your existing policies regarding unexcused absences including disciplinary actions and whether or not you allow paid time off for this absence. You should consider if someone called-in that they were going to participate, or if they were a no-call, no-show in deciding how to classify the absence.

Your best strategy is treat this event like any other absence, move on, and don't end up as a headline.

Wednesday, August 17, 2016

I Feel LIke I Owe It To Someone: A Blog Reboot

A dear friend of mine used to keep a cartoon taped to his office window. One dog was talking to another saying, "I used to blog, but then I just went back to howling at the moon." 

In May of 2015 I posted on this site that I was taking a break from blogging.  You can find that easily so I won't repeat it.  At that time I had not posted in almost a year, so now two years have gone by without original content. I felt, and feel, that the risks of a social media misstep must be outweighed by some greater purpose.  Without that, like the dog in the cartoon, all you do is risk your job and reputation howling at the moon. 

In the last few weeks I believe I have found that purpose.  A former colleague contacted me asking for my help in his job search. I counseled with him and casually mentioned afterward on LinkedIn that I would do the same for any former Nelson colleague still in transition and would never charge.  Then I had a family member decide to change careers, then refer me to a colleague of hers who wanted to do the same.  One day I looked up and I was working with, in some form or another, five different people in career transition.

And then it hit me.  If you don't work for a company that provides career transition services when you lose your job, if you resign, or if you are just unhappy at work where do you learn how to transition?  Some of my past colleagues got skinny outplacement packages from a so-so outplacement provider. Some people want to voluntarily change jobs and don't have transition services available to them. There have always been companies out there that would charge for this but it was a pretty smarmy industry, and people in transition are watching their pennies. There really isn't a business here, but there is a ministry.

And that's the big idea of rebooting this blog.  I used it as a forum to communicate to a workforce when I was HR VP, but not longer have that need. However there are people out there who need practical advice like I used to give if you walked into my office, and the kind that I give to my current clients.  Best thing of all is that giving career transition advise is totally separate from my current consulting and thus not in conflict or competition with my day job.  It feels relatively safe and has a greater purpose than howling at the moon. The Business of People will not be a corporate communications tool.  This time around it is for the reader who doesn't have or can't go to their own HR department.

So over the next few posts we will discuss how to find your next job.  It is not a proprietary program; just things I've developed over the years and that I am working through with the people who have asked for my help.  In life and in business I am blessed and doing well: I feel like I owe this to someone out there. Whatever content I post is not copywrited, non-monetized and free for your use.

Thursday, May 21, 2015

Taking a Break from Blogging

One day I looked up and I had only posted twice since April of 2014.  The reason is simple: it no longer feels safe.  The number of Trolls looking to make a huge deal of social media missteps has grown exponentially since I first began blogging.  The number of companies with policies against social media missteps has grown, and those policies carry real consequences.  Finally, I used this blog for communications with the Thomas Nelson workforce of which I am no longer a leader or member.  The combination of these factors makes blogging all risk and no benefit.

The dilemma for me personally is that my old content, my "backlist" as we would say in publishing, still gets several hundred to a couple of thousand hits per month.  One day last month I had 700+ hits on an old article in one day.  There seems to be "an" audience, but not one I have been able to successfully define.  But again, unless I were to try and monetize that audience and make a living blogging, the risk to my other pursuits outweighs any benefit of just getting my opinion off my chest.

So, for the time being, I am off the air.  There will be a time in the future when I can say what I wish without concern.  When that happens, if there is an identifiable audience and enough demand, I'll go back to adding regular content.  Until that time I will leave the old content up for whomever wishes to see it.

In the meantime, if you have HR questions in general, or questions about any of my backlist, feel free to drop me an email at my public address,

All the best,


Friday, February 27, 2015

DOL Issues Final Rule on FMLA and Same Sex/Common Law Couples

Since July of 2014 the Department of Labor has been soliciting public comments on proposed rule changes to the Family and Medical Leave Act (FMLA) regarding same-sex and common-law marriages.  It recently announced that the Final Rules have been written and will become effective March 27th, 2015. Those rules replace interim guidance that had been in place for some time since the Supreme Court's striking down the Defense of Marriage Act (DOMA).

First you might ask why this was necessary.  Some will of course say that this is part of the federal government's push under a liberal administration to redefine marriage.  That is hardly the rationale.  Currently 37 states and 18 foreign countries recognize same-sex marriages, but the FMLA is a federal law that applies in all US states and governed territories.  The potential for confusion was significant. More and more young couples are cohabitating and raising families outside of a traditional marriage. The FMLA, were it not to consider the needs of these couples, would not equally extend the protections that Congress has envisioned to all workers.

For example, if a same-sex couple is married in a state that recognizes their marriage, then the FMLA would logically apply to their employment relationship lest employers in that state treat two similarly-situated married employees differently.  Similarly should that couple then move to a state which does not recognize their marriage, then the question of whether or not they lose that protection becomes a question. Common law couples, many together longer than some marriages last, have the same personal and family medical situations and needs for time off as those of us in traditional marriages. 

Throw into these situations any children that these couples may have, and who has federal protection during times of their care, and you can see the potential for conflict.  Clarity on the rights and expectations of both employers and employees was needed.

Here are the highlights.  To have FMLA protection the couple would need to have been married or obtain common law status in a state or foreign country where their marriage was recognized.  The Rule changes the definition of spouse to any person entered into a legally valid marriage including common law arrangements.  "Place of Residence" has been amended to "Place of Celebration" to be inclusive of various types of marriages.  Also the definition of covered children encompasses those parented in loco parentis; in other words, in situations where the day-to-day parenting and financial support takes place regardless of biological relationship. 

For HR professionals and employers the way forward is clear.  If you have an employee living in a family situation where they have a partner, same sex or opposite, raising children in a family setting then FMLA most likely applies to them.  You can split hairs as to what type of marriage and where it was celebrated, but the risks far outweigh the benefits.  Those risks include not only litigation but adverse publicity and brand damage, both within and outside your workplace, from being seen as a discriminatory employer.  Best to give them the Physician's Certification if they have been with you long enough to be eligible, then administer the leave according to the medical facts.

As always, comments are welcome.

Tuesday, April 22, 2014

Don't Elect COBRA! Buy Exchange Coverage

One of the little-talked-about benefits of the Affordable Care Act's Insurance Marketplace is that people who lose their health coverage during the year become eligible to sign-up.  The same COBRA qualifying events that make you eligible to elect COBRA also make you eligible for mid-year sign ups on state or federal Exchanges.  Employers can charge you 102% of the full premium for your existing coverage, and generally employees pay about 1/3 to 1/2 of the full premium.  COBRA premiums, then, are sure to be anywhere from double to triple what you normally pay.

Exchange coverage will be 100% of the full premium.  The coverage pool is also larger than most employers.  Chances are your premiums will be the same or less than COBRA coverage.  However depending upon your income you could be eligible for a subsidy which could make the coverage less expensive.  Another advantage is that if you did not elect a certain coverage as an employee you cannot elect it under COBRA.  Exchange coverage, as I understand it, has no such restrictions.

Before electing COBRA check out your state or federal exchange.  It will almost certainly cost you the same or less and provide you more flexibility in what you choose to elect.

Saturday, April 12, 2014

How to Construct Great Interview Questions

Interviews are possibly the most important thing a manager will do.  Hiring the right people, and keeping the wrong fit out, is one cornerstone of good performance for the whole team.  A poor contributor, or poor attitude, or both will drag down a whole team.  All-stars properly motivated left the whole group. Bad interview technique can also lead to legal exposure if questions drift into non-job-related subjects. I have found that this happens far more out of ignorance and lack of planning than prejudice.

With this in mind here is how to construct interview questions that will keep you legal and focused on the search for great people. Plan your interview questions into two groups:

1. Task-based
2. Probing for Past Performance and Attitudes

Task-Based Questions

You want to know if the candidate can perform the essential functions of the job.  To do that you want to marry the duties of the job with the prepositional phrases from Behavioral Interviewing.  Here's how:

1.  Start with the job description.  If you don't have one, or the one you have is poorly-written and 5 pages long (hey, it happens), write down the 4-6 most important aspects of the job.
2. Apply these Behavior Interviewing phrases in front of each of the most important aspects:
     * Give me an example of a time when you... (insert task)
     * When in your career have you...(same thing)
     * At what former job have you ever...
     * Can you think of a time when you have.....

These leading questions do two things: they avoid the "yes" or "no" answer from the candidate and they give a good indication of whether or not the person has the experience you seek.

Probing Questions

Here you want to know how people think or lead; what they prefer in the type of jobs or supervisors, and where they want their career to go.  These are all legal and will give you an indication of how well the candidate fits the job you have for them.

1. What accomplishments in your career are you most proud of?
2. Without naming names, tell me about the best supervisor you ever worked for? What made them a great supervisor?
3. Without naming names, lets reverse the question.  Tell me about the worst supervisor you ever worked for and why you feel that way about them.
4. Describe a time when you had a really bad problem at work and how did you resolve it?
5. If we called your last employer what would they say about you? (you'll be surprised how much the prospect that you might call will cause a very candid answer)
6. Other than a paycheck, why do you do what you do for a living?  (you are looking for passion)
7. Of course we have other candidates, so tell us why we should hire you?
8. What questions do you have for me? (this will measure preparation which indicates interest)

Together this gives you 12 - 14 great, job-related and legal questions that provide insight into the candidate.  It is easier, always, to know what you can say than to remember all the HR warnings about questions you should not ask.  This list can also be used by a single interviewer or divided into two or three interviews for structured panel interviews.

Please use these with my compliments.  Also, if you are scheduled for an interview with me and are doing research, don't get too comfortable.  I have plenty more.  :-)

Thursday, January 16, 2014

My Opinion: Plan Now to Discontinue Executive Benefits Next Renewal

Part of my first-year's learning in Senior Living has been discovering that some communities, even with small workforces, have special benefits for their management teams.  This will become problematic and potentially cause employers to pay penalties once the Affordable Care Act is fully implemented.  Since most plans are based upon the calendar year and have renewed for 2014 now is the time to plan and communicate a discontinuation of those plan options. The regulations have not yet been written and so implementation is delayed: this gives employers time to eliminate those plans for 2015.

Section 2716 of the Affordable Care Act prohibits discrimination based upon salary in the provision of benefits under a pre-tax benefits plan. In layman's terms, your highly compensated management cannot receive better benefits than the rest of your employees and your plan still enjoy pre-tax status.  For the definition of "highly compensated employee" the government could have used a simple definition ($115,000 for 2014) but of course, why do something simple regarding the ACA? 

Instead of the simple definition the Act uses the test included in Section 105(h)(5) of the Internal Revenue Code.  Under this test an employee is "highly compensated" if any of the three criteria below are met:
  1. The employee is one of the five highest paid officers in the company.
  2. The employee is a shareholder who owns more than 10% of the employer's stock.
  3. The employee is among the highest paid 25% of employees.
In small workforces virtually all the management team will be included in #3 above.  In privately held "mom and pop" communities where the Executive Director has equity, it is possible to meet #2.  In privately held communities where the owner or spouse are employed they may meet all three criteria.

While this test applies primarily to self-insured plans, the news for fully insured plans is worse.  Those tests have not ye tbeen issued but will include a formula to account for part-time employees.  Remember, the Employer Mandate penalties under ACA were delayed for this year because the definition of an eligible part-time employee has not yet been settled.  Employers with fully-insured plans who want to keep an executive tier of coverage therefore have no way of knowing if their plan will pass or be determined as discriminatory.

If you already have a separate Executive Plan that is grandfathered in you may keep it.  However if you simply have one plan and give your executive team better pricing or benefits your plan will probably not pass testing under Section 2716.  Your best course of action is to communicate this now and give your management team time to adjust to the loss of benefits.  Since this change will save the employer money, you may also want to consider repurposing those savings into increased salary or paid time off (both still unregulated) as compensation for lost benefits.