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2020 has publicly taught employers and employees a number of lessons on pivoting and remote work.  But from behind the curtain, our HR team has been carefully observing how client use of systems, standard operating procedures, communication skills, and performance feedback (or lack thereof), has helped or hurt them during this challenging time of change.

With this in mind, we introduce the first of several blogs on things employers should be improving to prepare for 2021, starting with: Job Descriptions.

Though it may seem like a simple administrative task, job descriptions serve many purposes. And while many changes that organizations put in place due to COVID-19 were meant to be temporary, employers now have to confess that some aspects of their jobs, or how they deal with challenges, have changed irrevocably.

What are these “purposes” you speak of?

1. Recruiting: Developing a job description is step one in finding the right candidates. Ideally, your interview questions, hiring criteria, and screening process are based off the essential duties, required skill sets, and qualifications outlined in the job description. This helps to keep your hiring process equitable and non-discriminate. Now that you have made adjustments for remote work, flex scheduling, possible changes in product services & delivery, or safety protocols among other things, does your job description accurately reflect your hiring needs? Also, effective in 2021, states like Colorado will require that compensation be listed in job postings to promote pay equity, which means that you will need job descriptions to substantiate pay rates.
2. Onboarding: Job descriptions are an effective communication tool in spelling out the details of the job requirements to new hires; saving the company time, money, and confusion during the hiring process. This clarity upfront sets the tone for the employee experience.  And let’s be honest, who can afford to lose a new employee who didn’t have a good onboarding experience these days?  Starting over is too expensive and time consuming not to onboard properly. 
3. On-The-Job: Written properly, job descriptions can be an intricate part of performance reviews and in determining compensation being given for a specific position. If your roles have changed in 2020, have you kept up written expectations for your staff? With and because of change, training may be needed, and again, job descriptions can be used as guidelines for training needs. Also, as mentioned earlier, pay transparency in some states must be tied to job descriptions which extends past the hiring process and into on-the-job compensation management.
4. Compliance:
   1. Trying to stay legally compliant with the Americans with Disabilities Act (ADA)? Job descriptions, that include physical requirements based on the essential duties, come to the rescue when candidates or employees request reasonable accommodation in order to successfully perform their job by giving you physical guidelines by which to evaluate someone’s restrictions.
   2. Trying to classify positions correctly under the Fair Labor Standards Act (FLSA)?  Whether someone is entitled to overtime or not STARTS with evaluating their job duties against Fact Sheets. Salary is the 2^nd component. Without a job description, it may be next to impossible to self-audit if you are paying employees correctly; leaving you vulnerable to losing a wage & hour charge from the Department of Labor. Now that we have gone a year under a new salary threshold for exempt employees, DOL audits may be knocking at your door.
5. Post-Employment: Lastly, job descriptions and employee handbooks together may be the difference between winning or losing an unemployment claim. Have you ever terminated an employee for unacceptable performance and then they turn around and win their unemployment claim? Do you wonder why that happens? States that frequently award unemployment for poor performance require that you: prove that the termination decision was well within the employee’s control, and that they had clear expectations and opportunities to improve that they willingly failed to meet, in order for them to find for the employer. If you want to win the charge, or at least have a fighting chance, you need a detailed job description, documented corrective feedback, and clear policies in place for each position within your organization. With the high level of unemployment thanks to COVID-19, you need every tool you’ve got to keep your business expenses down.

So, time to roll up your sleeves and get down to basics so that you can put 2020 behind you and be ready for a new year.  We invite you to revisit our blog in September for more tips on preparing for 2021.

This article does not constitute legal advice and there are subtle variations in employment law as it pertains to this topic, depending on where your business operates. It is strongly suggested that you seek consultation or legal counsel before making decisions about policies.

Click the link to view the recent blog: Labor Law Updates for October 2020 or check back for more on human resources, payroll, insurance, and benefits.

Jake had been working from home using a company laptop. He quit without notice, and when his employer reached out to make arrangements to retrieve the company equipment, Jake ignored their emails and voicemails. Upon investigation, there was no documentation that Jake had a company laptop in his possession or that he agreed to return equipment when he left the company.

 A printer that Kari’s company provided to her to use while working from home was heavily damaged when the unsecured shelf it was placed on came apart, and it fell to the hardwood floor.  Can they deduct the cost of repair or replacement from her paycheck without her permission? 

REMOTE WORK & EQUIPMENT 101

While many companies have managed a remote workforce for years, COVID-19 tossed others into extending remote options to their employees suddenly, without the opportunity for considerable planning or troubleshooting.

When employees moved offsite, some of the equipment they used moved with them. Unless employees are using their own equipment (more on that a bit later), they now had company property in their possession, introducing a myriad of potential issues:

• What happens if it gets damaged?
• What are the steps an employee must take if it gets stolen?
• How can it be legally reclaimed if an employee quits or is fired?
• Can we make an employee pay for a lost or damaged item out of their paychecks?

Even if an employee primarily uses equipment on company sites, and may only occasionally take it with them while traveling, it is a perfectly acceptable – and advisable – practice to ask them to acknowledge receipt in writing and lay out parameters of its use, care and safe return.  This is commonly referred to as a Company Property and Equipment Agreement or an Acknowledgement of Receipt of Company Equipment Form.

These documents generally provide the following details:

• Type of equipment, along with year of make, year, serial and model numbers
• Expectations and guidance if personal use is or is not permitted
  • Beware of potential tax implications to the employee for personal use
• Agreement on the employee’s part to properly maintain the item and to report any functional issues or damage to the employer
• Acknowledgment that they understand what will occur if:
  • good condition is not maintained
  • the item is lost, stolen or damaged
  • if the item is not returned upon separation from employment

Signing these documents can – and probably should – be made a condition of their ability use the equipment and/or ability to remote work, or be a condition of employment or continued employment, regardless of their tenure.

What about recouping damages or loss from paychecks? Is it legal?

It depends.

Really broad is not generally the best approach to policy development. While having an all-encompassing payroll deduction authorization form signed upon hire sounds like an efficient way to handle any future employee paycheck deductions, it probably will not be enforceable, nor may it cover an employer if challenged in court or by a state labor department for unlawfully withholding wages.

A separate, signed payroll deduction authorization is necessary, and it should specifically relate to damage or loss due to negligence. Deductions for normal wear and tear or value depreciation should not be included as many states consider those situations to be a cost of doing business. Deductions should also, per most state laws, not take an employee below minimum wage in any weeks that they are taken from a check. Many states also exclude specific equipment or damage from allowable deductions.

So… what about terminations? Final checks can be tricky.

Employees still must be paid, and be paid on time, for their work in their final days of employment. Final checks should therefore not be held hostage in exchange for company equipment return or reduced by a certain amount pending return of a laptop or phone. While this may seem like a surefire way to get your equipment back, it is not a legal one.

Check state laws to see what, if any, deductions are allowable for a final check. If none are allowed, or they are held to strict limits that won’t cover the costs, employers may attempt to recoup any financial losses for damaged or unreturned equipment outside of the employment relationship, such as a personal repayment agreement with an exiting employee or, in worst-case scenarios, through the civil court system or reporting the employee for keeping equipment that contains trade secrets to local authorities.

This seems complicated. Can’t we just ask employees to use their own laptops and phones?

You can, but with caution and clear expectations.

While this solution may appear to circumvent potential problems of damage or loss to the company, personal equipment that is used for business purposes (commonly referred to Bring Your Own Device), opens the door to other issues, including but not limited to:

• general security and cybersecurity concerns
• data integrity and loss
• lack of uniformity in operating systems, equipment memory, function, and ability to access databases
• reimbursement requirements in some states

Having clear expectations for BYOD environments is essential to securing company data and confidentiality.

On the other hand, requiring use of company equipment, and putting in parameters around its use, care and return, will give companies the ability to control the type of equipment used, perform periodic security and employee use checks, and help to provide uniformity in service to clients and customers.

Which method do we recommend?

Either CAN work. Review both options, pick a course of action that is best for your company culture and resources, and have your policies and documentation in place in either case. Your HR team or consultant can guide you through the right processes and policies, including training your managers on how to properly enforce equipment policies and communicate with their team members.

Click the link to view the recent blog: Do I Need BYOD and Remote Work Policies? or check back for more on human resources, payroll, insurance, and benefits.

This article does not constitute legal advice and there are subtle variations in employment law as it pertains to this topic, depending on where your business operates. It is strongly suggested that you seek consultation or legal counsel before making decisions about policies.

These briefs provide a general description and are not meant to be all inclusive of compliance requirements.  This list is not inclusive of all legislative changes for employers across the U.S. Changes may have been addressed in previous updates, which can be accessed from our blog.

Employers are encouraged to work with their Inspiring HR Consultant before making policy changes to capture the full requirements of these laws.

Some of the notable newly active and upcoming State Changes in this issue are as follows:

OREGON

Workplace Fairness – Effective October 2020

 The state of Oregon has made it mandatory for employers to establish a robust anti-harassment and non-discrimination policy that not only outlines the process of reporting complaints of harassment, but addresses requirements of non-disparagement and non-disclosure agreements as well as the five-year statute of limitations on bring forward a harassment or discrimination complaint.  Once established, policies should be included in employee handbooks.  Polices should also be presented separately for acknowledgement to current employees, to new employees upon hire, and when an employee brings forward a harassment complaint. https://olis.leg.state.or.us/liz/2019R1/Measures/Overview/SB726

SOUTH CAROLINA

SC Lactation Support Act – Effective July 25, 2020

The South Carolina Lactation Support Act requires employers to provide employees reasonable unpaid break time, or paid break time or mealtime, each day to express breast milk.

All employers must provide reasonable unpaid break time, or permit employees to use paid break or meal time each day to express breast milk. If possible, the break time must run concurrently with any break time already provided to the employee. Employers are not required to provide lactation breaks if doing so would create an undue hardship on their operations.

In addition, employers must make reasonable efforts to provide a room or other location, other than a toilet stall, in close proximity to the work area, where an employee may express milk in privacy. However, federal law mandates that employers provide a lactation space, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, so unless it would create an undue hardship, the lactation space should not be a bathroom. The law makes clear that employers are not required to build a room for the primary purpose of expressing breast milk. Under the law, employers will be held harmless if they make reasonable efforts to comply.

The Lactation Support Act makes it unlawful to discriminate or take any adverse action against an employee for requesting or using reasonable unpaid break time, or paid break time or mealtime to express breast milk in the workplace.

Training is being provided for free by the South Carolina Human Affairs Commission for a limited time. Contact training@schac.sc.gov or (803) 673-9284 to request training.

Finally, please post the required notice with your other employment law posters. If you have Spanish speaking employees, a Spanish version should also be posted.

Need HR help? For more information new and upcoming federal & state legislation regarding employment practices,  contact our partners at Inspiring HR.

This article does not constitute legal advice and there are subtle variations in employment law as it pertains to this topic, depending on where your business operates. It is strongly suggested that you seek consultation or legal counsel before making decisions about policies.

When warmer weather hits, dress code standards seem to be at the forefront of employers’ minds. They also seem to pop up and be revisited whenever an employee makes particular clothing or style decision –

“I can’t believe he wore that to work!”

“Her hair is rainbow-colored. RAINBOW! She has client meetings tomorrow!”

Ideally, dress codes should be simple. The hope is that something like “Employees are asked to dress appropriately for their role/position at our company” would suffice; however, because “appropriately” is subjective and open to broad interpretation, sometimes a bit more is needed.

How much, or little, can an employer dictate attire and appearance?

Employers have the right to set standards in attire and appearance to reflect their business and brand – to a certain extent.  When crafting a dress code and personal appearance standards you can live with, consider your company as a whole. What is the product and/or service it provides? Are the majority of employees in call centers or out in the field visiting clients? Will clients regularly be stopping into the office? If uniforms are required, will specific items be provided by you, the employer (required in many states) or are the uniforms general (black pants/white shirt) that employees can provide themselves?

In other words, what makes sense for your business and the positions that make up your company?

Here are a few things to consider when thinking about policies around dress codes and personal appearance:

• Gender neutral dress codes are encouraged. Avoid outdated gender stereotype requirements, such as requiring men to wear pants and women to wear skirts or dresses.  In some states, separate standards for men and women may be on shaky legal ground.
• What’s the employee’s role? No, you don’t HAVE to allow wildly colored hair or large tattoos, but again, consider the type of business you are in and the individual’s role before issuing a ban on these items of self-expression. A potentially great employee could be hiding under that purple mohawk.
• The shorter the better. A long laundry list of specifically banned items may not be necessary if the items you list as examples of acceptable work attire (with a few no-no’s thrown in for clarity) are clearly stated.
• Safety first. Job-related safety measures may require certain attire or appearance guidelines – closed toe/non-skid shoes, short nails, or lack of excessive jewelry, are examples of these.  Be sure to list those to avoid misunderstandings.
• Consider the climate. Dress codes may differ in some climates during summer and winter; be sure to factor in both weather and workplace when specifying attire. Intermittent updates may be necessary as temperatures climb.
• Be consistent. If jeans are not allowed at work, ensure that no one, not even managers, gets by with sporting a pair.  If logo shirts must be worn, allowing Joe to pop in without it every other day should not be permitted. Differing standards can exist for level of position, role, etc. but everyone within that job category should then be held to them.
  • Accommodations for disability or religious belief are exceptions to the consistency clause.

Caution:  There IS difference between a job-related safety requirement and just “preference” when it comes to personal appearance standards. Recently, laws were passed in New York City and the state of California that prohibit employer discrimination of natural hair, hair texture, and/or and protected hairstyles as a sub-characteristic of race.  That means even if an employer would prefer all employees “look a certain way” it may not be a lawful practice to require a haircut or prohibit certain hairstyles.

Dress code/appearance policies in the workplace continuously evolve. It may be a good idea to dust off your employee handbook every so often, check for necessary legal updates, and — at the same time — see if your policies around attire and appearance could use a refresh.

This article does not constitute legal advice and there are subtle variations in employment law as it pertains to this topic, depending on where your business operates. It is strongly suggested that you seek consultation or legal counsel before making decisions about policies.

Click the link to view the recent blog: When Critical Thinking Skills are a Must to Hire For or check back for more on human resources, payroll, insurance, and benefits.

What is Critical Thinking?

In order to understand the importance of hiring a critical thinker for your business, let’s start by defining “critical thinking.”  Critical thinking can be defined as the ability to objectively identify, analyze, and solve a problem and/or situation through thorough research and understanding.

Critical thinkers follow the “Who, What, When, Why, and How” approach when addressing problems and/or situations.

When Are Critical Thinkers Important in the Workplace?

Most every position within a business requires a certain degree of critical thinking.  For example, an accountant must be able to thoroughly analyze and interpret financial data of the business and successfully communicate the outcome of the analysis, while a marketing manager must be able to collect and evaluate information about the business’ target market and communicate the offerings to potential clients.

Critical thinkers ask all of the hard questions, they identify the strengths and weaknesses of the business, identify problems, and provide creative ideas and solutions to fix them. They think outside the box and look for important details. Many businesses find that hiring employees who have strong critical thinking skills is important and beneficial to their business; therefore, they are identified as assets to any business when aligned with the right roles.

Although many people are very good at thinking critically, not everyone has the ability to think in this manner. Experts state that critical thinking skills are developed over time and not all individuals are designed to be critical thinkers. Therefore, the challenge is to identify which specific critical thinking skills are required for a position.

If everyone is NOT a critical thinker, how do you know if you are hiring the right person?

There are several different categories of critical thinking skills. However, let’s focus on the top six types to look for in a potential candidate:

1. Analytical: All critical thinkers have the ability to thoroughly analyze, dissect, and interpret information using logical reasoning. They are looking for “why” as they review specific information.
2. Interpreter: Another trait of a critical thinker is the ability to interpret and understand the information that was analyzed. They are looking for the “what.”  What is the meaning of the information?
3. Evaluator: Critical thinkers have the ability to evaluate information to determine the accuracy and credibility of the information. They are looking for “how” the information was obtained and what facts are being considered.
4. Problem Solver: A critical thinker is also known as a problem solver. A problem solver has the ability to synthesize information to form a reasonable solution. They are looking for “how” do you find the solution to the problem and/or what is the best resolution? They also determine if there are other solutions available.
5. Communicator: A critical thinker has the ability to effectively communicate the results and final conclusion of the information reviewed, both through oral and written communication.

Now that we have identified which skill types to look for, how do we determine if a potential applicant has them?

Start by putting together a complete list of interview questions prior to the interview.

• The questions you choose must be designed to address specific requirements of the position and the type of critical thinking skill(s) needed.
• To uncover actual skill sets, behavioral questions are ideal. Behavioral questions present a sample situation/problem that most candidates can relate to, and asks how the interviewee has addressed them in past experiences while providing specific memories and examples from those experiences. The goal is not to imply a right or wrong answer, but rather the question is to be open-ended, forcing the interviewee to share their story honestly, rather than provide a designed answer they think you want to hear.
• Drilling for details keeps the interviewee from bluffing out with a generic answer, and reveals if they in fact had these experiences. It tells you a lot about their work styles and skills in how they dealt with the situation. More importantly, if the situation did not go well, behavioral questions ask what they learned or what they would do differently.  The ability take past lessons and adapt because of them can be an important aspect of critical thinking and potential.
• Allow the interviewee the opportunity to ask clarifying questions if needed. This will help you assess not just their answer, but how resourceful they are in getting information when they need it.

Here are a few sample critical thinking / behavioral interview questions and how to drill for details if you don’t hear them right away:  

Tell me about a time when you were the first to identify an error or problem in data, a process or a system you were working with. 

• How did you address the situation?
• In follow up: What struck you as wrong when you came across it? Should others have noticed? Who did you tell? What was the result of your actions?

Tell me about a time when you had to make a critical decision with little information.

• How did you approach the decision making process? How long did it take to make the decision? What steps did you take and why? Who did you involve, if anyone? What was the result?
• If it did not go well, looking back, what did you learn and would have done differently?

Tell me about a time when you were the one presented with a problem that you had to solve in order to complete a project, launch an initiative, or to meet a deadline / objective.

• Describe the problem, your approach, and the outcome.
• Did you succeed? If not, what would you do differently if presented with the situation again?

As you can anticipate, the responses to the interview questions will be different for every applicant; however, the use of the same questions in search of specific behaviors allows you to evaluate and score their answers equitably.

That moves us to the second step: Analyzing the interview question responses.

It is important to look for responses that demonstrate strong critical thinking skills… analytical, interpretation, evaluation, problem solving, and communication. Did the interviewee successfully demonstrate strong critical thinking skills? Was their thought process methodical or haphazard? Did they maximize resources or work within a bubble? Did they present a solution or just ask for help?

There’s a benefit to tailoring interviewing to uncover critical thinking skills for those roles that need them to save time, money, and resources through more efficient, on-going problem solving. If you haven’t already assessed where you need these assets, it’s time to dust off the job descriptions, update them accordingly, and start purposefully hiring critical thinkers where they make the most sense.

Written by Julie Morgan, SHRM-CP and Valerie Juarez SPHR, SHRM-SCP

Click the link to view the recent blog: Opioids in the Workplace or check back for more on human resources, payroll, insurance, and benefits.