Best human resources practices for writing and enforcing policies in the workplace.

Employee gender-identity matters must be considered in company policy and procedures

The topic of gender identity can be a new, and sometimes uncomfortable, area for employers.

It is widely considered sex discrimination when someone is treated differently for failing to conform to sex stereotypes or for changing their sex. Consider these matters as you look at your business policies:

  • How do you handle coworkers that feel uncomfortable around a transgender employee?
  • What about your dress code as it relates to gender identity?
  • What about use of public restrooms?

Be aware that there are no federal laws protecting gender identity, but more and more states are adopting them.

Don’t put restrictions on transgender employees

Take care not to address coworker concerns by putting restrictions on the transgender employee.  All employees must be treated with dignity and respect, so reasoning that you were trying to appease all employees won’t protect from an unlawful discrimination claim.

Transgender or gender-transitioning employees live and work full-time in the clothes of their target gender. A dress code should be applied to gender-transitioning employees in the same way they are applied to other employees of that gender. Dress codes should never prevent transgender employees from living full-time in their gender identity.

Consider how you handle public restrooms

Multiple-occupant, gender-segregated restroom facilities are most commonly seen in the workplace. But employers may want to consider a single-occupant, gender-neutral restroom, much like the “family restrooms” that are becoming common in public places.  But be cautious: You cannot require a transgender employee to use a unisex bathroom if gender-specific bathrooms are available.

As always, the BCN Human Resources team is available to discuss specific situations in your workplace and help guide you with any and all employee matters. Contact us here.

 

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Sue Kester, HR Manager

Investigating troublesome behaviors and considering the options

When managers call the BCN Human Resources Customer Service Center asking for help with an employee exhibiting troublesome behavior, most want the same thing: To be rid of the problem.

Each situation is different. Our representatives must ask many questions in order to assess and make a plan to either terminate the employee, or rehabilitate the employee. If an employee is exhibiting behavior that is truly troubling, termination may be the only responsible course of action.

When seeking helps as to whether termination is appropriate or not, be prepared to share the following information:

  • Has the employee been placed on suspension pending an investigation?
  • What is the most recent incident that led you to seek assistance in handling the problem?
  • What previous disciplinary action has this employee received?
  • When was the onset of the troubling behavior?
  • Were any other employees involved?
  • Did any employees witness specific behavior(s)? Can you provide us with their contact information?
  • Is there any surveillance footage or other documentation that will help us assess the situation?

When appropriate, our Human Resources Department will begin an investigation to determine what action is appropriate for a positive outcome. Our Human Resources Department will work with you to ensure that the appropriate response to troublesome behavior is handled in a timely, efficiently and legally appropriate manner.

To reach BCN’s Human Resources Customer Service Center, call (800) 891-9911 ext. 4, or email us at hr@www.bcnservices.com.

 

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Kate Douglass, Senior HR Generalist

Document employee performance issues to avoid problems down the road

Employee performance issue can create multiple problems if managers don’t document the problem.

A recent court case in Northern Iowa shows, once more, the importance of addressing and documenting performance issues with employees. In this case the defendant was Eric Holder Jr., the Attorney General of the United States.

The case revolved around an Assistant U.S. Attorney in the U.S. Attorney’s office in the Northern District of Iowa. This Assistant U.S. Attorney sent a memo suggesting that her supervisor, the U.S. Attorney in the office, made statements that might be discriminatory relating to age discrimination and that were hostile to workers in the office over the age of 40.

The 53-year-old employee complained that after sending the memo she was subjected to surveillance, her work was scrutinized, she was reprimanded, threated with suspensions and was subject to a proposed involuntary transfer to an office 250 miles away. Her employment was eventually terminated and filed an age discrimination lawsuit as a result.

The U.S District Court reviewed the employee’s complaint and found that her performance issues might have been sufficient to support termination, but because of lack of action by the supervisor, there was a question as to whether the reasons for discipline or termination were a pretext to these actions. The court allowed the case to go to trial.

While this case may ultimately end up in the favor of the employer, the problem here is that the poor performance of the employee was not previously addressed. If the court agreed that her performance was weak enough to support termination, the employer could, and should have, dealt with those issues long ago and either helped the employee to improve her performance or disciplined and terminated her.

Failure to promptly address and document performance issues ultimately allowed this age discrimination claim to be filed and moved forward through the courts. The defense costs, inconvenience to the management team and potential for damages should be a good wake-up call to all business owners.

The costs of poor performance, both operational and financial, along with potential issues as seen in this case, far outweigh the time and effort to address performance issues promptly and effectively.

If you have an employee that is not performing to your expectations, contact BCN Service’s HR department to discuss the best way(s) to address the issue. Actions could include coaching, performance improvement plans (PIP’s), discipline or other options specific to the situation.

 

 

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Jeff Walsh, Partnership Manager

Resolve to update your employee handbook this year

The start of the New Year is a good time to review your Employee Handbook to make sure it’s up- to- date and consistent with your current business practices.

Don’t have an Employee Handbook? BCN Services can help you create one.  Employee Handbooks communicate the rules and performance standards to employees, encourage employees to behave in a certain way, help ensure that employees are treated in a consistent fashion, make known the benefits you offer and help you to win unemployment claims and lawsuits.

A handbook is a good way to communicate to employees that the company intends to comply with all federal, state and local law. It also allows you to address a wide variety of policies without restricting your ability to respond on a case-by-case basis. A handbook provides a framework for dealing with various circumstances, but should not act as a step-by-step guide for how to deal with every situation that may arise.

Generally policies should be written and shared on a companywide basis to avoid any types of miscommunication or claims of discrimination.

Having different policies for different departments can get you into trouble if you don’t have a legitimate business reason for doing so. Title VII of the Civil Rights Act of 1964 prohibits not only intentional discrimination but also neutral job policies that affect people of a certain race or color and that are not related to the job and needs of the business.

BCN Services can help you examine your workforce as a whole and in specific departments to ensure that there is no unintended discrimination and develop policies and an Employee Handbook that will best serve your business and workplace.  Contact us for assistance anytime.

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Amanda Cline, HR Generalist

Employers must accommodate religious observance requests

During this holiday season, your company may get requests from employees for time off that are not traditionally designated as a holiday by most companies. How should those requests be handled, and how do you accommodate these requests due to a religious observance?

In most cases, you would need to seriously consider an employee’s time off request when it is for a religious holiday. Under Title VII’s protection of an employee’s religion, employers are obligated to provide religious accommodations similar to the American’s with Disabilities Act reasonable accommodation requests. Religious accommodations often present themselves in the form of a request for time off for religious observances which do not conform to the employer’s holiday schedule. Unless this would be an undue hardship, an employer should accommodate such requests in a consistent and non-discriminatory fashion.

Employees should be able to use relevant paid time off benefits consistent with company policies to observe holidays. If an employee has exhausted all paid time off benefits, they should be given unpaid time off to observe a religious holiday. If the employer allows flexible work schedules or make-up time, employees requesting time off to observe a religious holiday should be afforded these same options.

If the accommodation would cause an undue hardship for your company, the accommodation does not have to be made. According to the EEOC, “an employer can show undue hardship if accommodating an employee’s religious practices requires more than ordinary administrative costs, diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, impairs workplace safety, causes co-workers to carry the accommodated employee’s share of potentially hazardous or burdensome work, or if the proposed accommodation conflicts with another law or regulation.”

If you cannot accommodate the request, the employee should be notified as soon as possible and you should provide the hardship rationale supporting the denial.

Employers unsure of whether an accommodation creates undue hardship sould contact BCN’s Human Resources Customer Service Center to discuss the situation before denying this request.

As always, if you have a situation that needs immediate attention, contact BCN’s Human Resources Customer Service Center (hr@www.bcnservices.com or (800) 891-9911 ext. 4) and we will work diligently to help you with all your employee relations issues.

BCN wishes you a prosperous, happy and healthy holiday season!

 

 

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Kate Douglass, Senior, HR Generalist

Managers: Be prepared when handling employee demotions

Demotions may be proposed for a number of different reasons, including poor employee performance, disciplinary actions, position elimination or organizational restructuring, and even, at times, an employee-desired reduction in responsibility.

Demotions for simple performance-related issues may be both the easiest and most challenging to deal with. If the employee is a long-term employee who was successful in his or her previous role and simply lacked the skill set to be successful in the new position, returning the employee to the previous role may seem logical. However, this choice may face challenges such as:

  • The previous position may have been filled, or the position may have been eliminated,
  • A demotion in most circumstances will result in a pay reduction, which may be difficult depending on the length of time in the previous role,
  • If the position had supervisory responsibilities, complications may arise when the employee is back among those he or she previously managed.

Demotions that occur due to misconduct, issues of ethics or other disciplinary matters can be risky to the company. A demotion is not likely to correct the problem, and it could send the wrong message to other employees that the employer does not take misconduct seriously. If you are having difficulties determining the best course of action to take in a particular situation, please call BCN’s Human Resources Department for expert advice.

When a demotion is appropriate, following these steps can help make the discussion and the transition smoother and less disruptive:

1. Be respectful of the employee, keeping in mind that the organization is taking this step because of the desire to retain the employee and the expectation that he or she will be successful.

2. Clearly and honestly communicate the performance-related reasons for the demotion or the reasons why the organization is taking this action as opposed to termination. This second point could be instrumental in helping the employee respond positively to the transition.

3. Clearly outline the new position and the transition plan (e.g., last date in the old role, first day in the new role, to whom the employee will report). If a pay reduction will occur, do not avoid this point. Address it in a straightforward manner.

4. Be ready to respond to questions and requests such as:

  • “Can I have a little more time in the position to improve?”
  • “Can I move to a different position/department/location?”
  • “Can I have a few days to think about it?”
  • “What if I don’t want to take the position?”

5. Be prepared should the employee have a very emotional and perhaps negative response.

6. If the employee is accepting of the demotion, you may want to use this meeting to work out a communication plan answering who will be told, when the demotion will be communicated and what information will be shared. Ensuring that the employee retains his or her dignity through the process will increase the likelihood of a smooth and successful transition.

In the end, demotions that occur within the right circumstances can provide an employer with the opportunity to retain a valuable employee while allowing the person to be successful in a new role that better fits the knowledge, skills or abilities he or she has.

Effectively managing the risks and preparing for all contingencies can result in a win for both employee and employer.

BCN Services has the professional team to help you make the tough decisions about restructuring or changing roles in your organization.  Call us to discuss your individual situation.

 

 

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Kate Douglass, Senior Human Resource Generalist

What’s in a background check and why is it important?

Surveys suggest that more than 80 percent of companies conduct some type of background search as part of the hiring process.

A review of professional employment background often contains criminal records, driving records, and education verification. Additional searches such as the Sex Offender Registry, education verification, reference checks, credit reports and Patriot Act searches are becoming increasingly common.

List of commonly searched data

Here is what employers often look for in doing background checks:

  1. Criminal court litigation
  2. Incarceration records
  3. Civil court litigation records
  4. Driving and vehicle records: Employers in the transportation sector seek drivers with clean driving records-(i.e., those without a history of accidents or traffic tickets).
  5. Drug tests: Used for a variety of reasons – corporate ethics, measuring potential employee performance, and keeping workers’ compensation premiums down.
  6. Education records: Used primarily to see if the potential employee had, in fact, received a college degree. There are incidences of test scores being requested by employers as well.
  7. Employment records: These can range from simple verbal confirmations of past employment and time frame to deeper investigations, such as discussions about performance, activities and accomplishments, and relations with others.
  8. Financial information: Individuals with poor credit scores, liens, civil judgments, or those who have filed for bankruptcy are of interest because they may be at an additional risk of stealing from the company.
  9. Military records:  Although not as common today as it was in the past 50 years, employers frequently requested the specifics of a person’s military discharge.
  10. Social Security Number (or equivalent outside of the United States): A fraudulent SSN may be indicative of identity theft, questionable right-to-work status, or concealment of a “past life.”

How long does it take to complete a background check?

The industry uses the term “Turn Around Time” to describe how long it takes to complete a background check. The times vary significantly based on what searches are conducted in the check, the particular courthouse where records are being searched, and various other factors. The truth is that many searches take minutes or hours and some take many days or even up to a week. The average criminal records search at a county courthouse takes approximately 2-3 business days, with it taking longer for verification of employment and education.

Of course all professional checks are subject to a unique set of laws and regulations, so only fully compliant screening with a trusted background check provider is recommended.

Let BCN Services handle all your background check needs and keep you in compliance.

 

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Lisandra Quinones, Human Resources Administrator

Employers may send an employee home for minor illness or other reason

In all 50 states in the U.S., an employer has the right to ask a sick employee to go home.

Employers are under no obligation to allow a sick employee to stay on the job and infect their co-workers. In fact, an employer can send an employee home at any time for any reason, or without reason.  However, the employer must be careful that they do not engage in illegal discrimination against an employee based on race, color, sex, pregnancy, religion, national ancestry, or violate any written contracts.

A few examples or reasons an employer may send a worker home include:

  • There is little work for him or her to do.
  • The employee seems too ill to be productive.
  • The employer fears that the employee is contagious.
  • The employer has reason to believe that the employee is not physically fit for duty. In this case the employer may require a doctor’s release for the employee to return to work.

When an employer sends an hourly employee home, the employee must be paid for any time worked. There is no federal or state law requiring that the employee be paid for time not worked. An exempt employee who works a portion of the day must be paid his or her usual salary for the entire day, regardless of whether they have, or do not have sick leave or paid-time-off benefits.

Finally, employers must be aware that different rules apply if the employee has a permanent disability under the Americans With Disabilities Act (ADA) or a serious health condition under the Family and Medical Leave Act (FMLA), rather than a minor illness.

The experts at BCN Services can offer guidance in specific employment situations.  Contact us at 734-994-4100 or toll free at 800-891-9911 or visit our website at www.www.bcnservices.com.

Lisandra Garrow, Partnership Manager

 

Determining Independent Contractor status must include a review of the whole

Independent Contractors (employees who receive 1099s) are a topic that much is written about, but still there is a great deal of confusion in the workplace.

Part of the problem is that everyone would like a simple question or checklist that clearly states “this is an employee” or “this is an independent contractor.”  In fact, the Internal Revenue Service had such a test, commonly known as the “20-Factor Test” and most Human Resource departments and companies referred to this test to help make their decision of choosing employee or 1099 independent.

After years of arguments about use of the test, the Supreme Court has ruled that there is no definition that solves all problems relating to the employer-employee relationship under the Fair Labor Standards Act (FLSA).  The Court also said that determination of the relationship cannot be based upon isolated factors or a single characteristic, but depends upon the circumstances of the whole situation.

This didn’t make things any clearer, so under pressure from Congress and representatives of labor and business, the IRS has attempted to clarify and simplify the test.  The result is guidance based upon 11 main tests that are organized into three groups:  Behavioral Control, Financial Control, and the Type of Relationship between the parties.

Along with these guidelines, we have seen an increase in both investigation and enforcement of companies using Independent Contractors.

Below are brief summaries of the three groups and questions you should ask;

  • Behavioral Control –This includes instructions the business gives the worker.  Do you provide instructions about when, where or how to do the work?
  • Financial Control – How do you pay the worker?  Who sets the pay?  Are they reimbursed for expenses?  What is the extent of the worker’s investment?
  • Type of Relationship – What is the permanency of the relationship?  What is the extent to which services performed by the worker are a key aspect of the regular business of the company?  Are there contracts created by both parties?

A word of warning:  while researching this topic I have seen the following mentioned several times in IRS publications: “Do not underestimate the difficulty of applying these standards to specific individuals performing services.”

For more detail, including the complete tests with all questions, or if you have concerns about your use of Independent Contractors, contact BCN Services for an in-depth review and discussion.  Please contact us at 1-800-891-9911 or contact us by clicking here.

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