November 23, 2008
Some of our clients have elected to conduct their own internal investigations. This process is not as easy as it may appear. Communication is a major piece of the process. Managers fail to communicate not because they do not know how to talk, but because they don’t know how to listen. Here are some reasons why internal investigators fail and some practical advice.
1. Ten percent of the population will not confess or be persuaded to tell the truth.
2. Managers fail to perform a full background investigation on all concerned before the interview.
3. Managers fail to pick up the employee’s passive messages. You must LISTEN to everything being said.
4. Managers fail to control the structure of the interview. Too many questions can cause distortion of the emerging picture. Remember: The innocent virtually never change their story!!
5. Managers have to learn to control their own verbal and non-verbal behavior. The person being interviewed is watching for honesty and deceptiveness and the role of the interviewer.
6. Managers talk too much! They fail to become active listeners and forget to ask the same questions multiple times. Note: Asking a question repetitiously and intermittently often elicits multiple responses.
7. Managers often ignore the feelings of the person being interviewed and simply focus on the process. This is a rapport killer, so listen.
8. Managers give up! Don’t! Stick with the process even if the person refuses to talk. They are not entitled to counsel or the advice of counsel in these settings.
9. Managers some times take gender differences into consideration. Everyone has to tell the truth. To listen with intent and understand what someone is really saying does not require you to agree or disagree.
10. Managers are sometimes not open-minded if the individual is someone that they either like or dislike. Remain neutral and do not bring your own views of the world into the scenario.
In my own self-serving opinion I do believe investigations should be conducted by someone outside of the company. They can be complicated but more importantly they can later be scrutinized in a court of law.
November 17, 2008
E-Verify is a free Internet-based system that allows employers to confirm the legal status of new hires. Although this system has been around for awhile, The U.S. Department of Homeland Security has updated the program. To use it, you have to register, sign a memorandum of understanding and train employees who will use the system. It’s actually very simple. To run a query, you merely have to enter information found in sections 1 and 2 of a new employee’s I-9 form, such as name, date of birth, sociala security number, and immigraton ”A” section information (if applicable ). The system should return the information within seconds.
We still get a number of calls regarding the “no-match” letters being sent by the social security administration. Signing up for this system would reduce those issues and verify legal status at the beginning of employment. Michael Chertoff, Homeland Security Secretary, has estimated that almost 70,000 employers currently use E-Verify and 1,000 new employers sign up each week. I should point out that the system cannot detect cases of identity theft where an illegal immigrant appropriates the identity of a legal worker already in the database, but at least you have done your due dilligence.
Check it out!
November 10, 2008
According to the Department of Labor, there are six changes that will impact the Family Medical Leave Act. They are not in effect yet but could be by the end of the year and are said to be favorable to human resources.
1. Right now the law is vague about when employers are put on notice that an employee needs FMLA. That’s why sometimes when an employee has been out for a period of time the employer has to consider making the leave (once they find out) retroactive to the original date that the employee went out. The new regulations requires that the employee give the employer notice that they’re unable to work and must go to a healthcare provider and provide an estimated duration of the leave.
2. Under current law, employers must tell employees within two days that the time off will be counted toward FMLA. The new regs gives the employer five days which is more reasonable.
3. The definition of a “serious health condition” indicates that to qualify for FMLA, an employee or family member, must be incapacitated for more than three consecutive days and make at least two visits to a healthcare provider or one visit plus continuing treatment. The proposed new regs require those two visits to occur within thirty 30 days of when the period of incapacity starts.
4. Employees are eligible for leave if they have worked for the company for at least twelve months even if the 12 months were not consecutive. The current law does not give a time frame for how far back the period of employment was. Now it has a cap of five years.
5. This one is HUGE!! Right now employers are forbidden from directly contacting the employee’s doctor. Under the proposed regs an employer can now contact the healthcare provider in order to clarify an “insufficient” certification after giving the employee the opportunity to do so. Just remember you are not calling to clarify the nature of the illness. You are calling to confirm that the nature of the illness is “serious” enough to qualify the employee for a leave under the FMLA.
6. Under the current laws employees can’t waive their right to sue for an FMLA violation such as those found in severance agreements. Under the new law the waiver will be permitted.
Ok, now remember these regs are not effective today, but will be shortly. I will post a confirmation as soon as we get the word.
November 3, 2008
Employers are still having problems with recognizing the importance of ensuring that an individual is truly an independent contractor. Written agreements are cast to the side if not properly written. In addition, it is important to understand that there are certain guidelines that need to be strictly followed. Here are 11 ways to help preserve independent contractor status.
1. Do not supervise or control the work of the independent contractor. It is acceptable to give detailed guidelines about expected results, but how those results are achieved is up to the worker.
2. Do not provide training or how to do the work.
3. Allow the worker to establish their working hours.
4. Do not tell the worker where the work has to be performed.
5. Do not invite the worker to meetings.
6. Do not provide the worker with handbooks, vacation, or any other rules.
7. Do not reimburse for expenses. They can build those into their compensation.
8. Do not provide the worker with work related benefits such as healthcare etc.
9. Pay by the project where feasible, instead of by the hour.
10. Do not provide tools, supplies or equipment.
11. Use written independent contractor agreements for all but the smallest projects.
Although there are no guarantees it is important to understand that the above guidelines are offered to provide a defense to a later claim that the individual was really an employee and not an independent contractor. If you have any doubts or need help writing the agreement please contact me.