HR’s Role in Dealing with Office Misconduct

Every night on the news, it seems like more stories of workplace harassment are coming to light. According to a Harris Poll released in November 2017, although 64% of American women say they felt more comfortable today speaking out and challenging abusers, only 20% of women said they believe their companies would listen and be supportive if they were to speak out against their abusers. What is Human Resources’ role in handling office misconduct in this changing landscape? In this issue of Astronology®, we take a look at the current challenge of harassment in the workforce.

Traditionally speaking, the Human Resources department serves six main functions:

• Recruitment: Advertise job postings, source candidates, screen applicants, conduct preliminary interviews, and coordinate hiring efforts.
• Safety: Provide workplace safety training and maintain federally mandated logs for workplace injury / fatality reporting. HR safety and risk specialists also work closely with HR benefits specialists to manage worker compensation issues.
• Employee Relations: Ensure proper labor relations and strengthen the employer-employee relationship. Strengthening is done via measuring job satisfaction, building employee engagement, and resolving workplace conflict.
• Compensation and Benefits: Set compensation structures, evaluate competitive pay practices, negotiate group health coverage rates with insurers, and coordinate activities with retirement savings fund administrators. Payroll also can be a component.
• Compliance: Ensure that organization is in compliance with labor and employment laws.
• Training and Development: Give employees access to leadership training and professional development tools / programs.

A lot of HR’s responsibilities are for the benefit of the organization. Because of this, employees may feel that their concerns will not be properly addressed. This is a key problem as noted by Tana Session, a Forbes Council member, in a Forbes online post. “Most organizations have a zero-tolerance policy for harassment of any kind in the workplace, but HR cannot properly manage complaints if they are never reported. Unfortunately, more times than not, these incidences go unreported due to fear — fear of being fired, retaliated against, considered a troublemaker, embarrassed or not taken seriously,” she shares. In the same Forbes post, she points out that the each employee’s life cycle begins and ends in the HR department. This means the HR department oversees the culture of an organization, and is a factor in whether harassment becomes a permissible factor in an organization’s culture.

In an NPR article, Lisa Brown Alexander, CEO of Non-Profit HR, points out that most HR professionals “see themselves as having dual loyalties…and they work hard to balance interests of the company and the employee.” No one in HR intentionally removes the human in Human Resources, yet it is sometimes viewed as such in deference to an organization.

So what can be done to change these perceptions? What tools could be used to help employees to see that they can come to Human Resources to report issues and to find relief when harassment occurs? Perhaps additional assistance could be of some help.

For instance, an NPR article speaks of an outside, “HR Urgent Care” service such as Bravely. The service provides an outside “coach” to discuss challenging issues, such as harassment, with an employee that may need to report an issue. CEO Toby Hervery explains, “We offer an alternative starting point that’s totally confidential, and totally safe, because it all lives outside the walls of the company…we try to be that objective truth and a neutral perspective on what the company policies are, and what they can expect if they go forward…”. Hervey explains that many companies pay for the service as an employee benefit, “hoping it helps with employee retention and helps nip problems in the bud.”

Another outsourcing HR element to consider is a Professional Employer Organization (PEO). Carolyn Stoll contributes to PEOcompare.com that “PEOs can offer core functions of the work place to office management, and can put into place HR policies that are able to address claims of harassment in the workplace. Larger companies have the option of hiring specialized HR employees to deal with harassment cases on the spot and/or implementing their own HR policy.” For a small employer, however, hiring specialized HR employees may not be in the budget. Access to a PEO can be the happy medium for a small business that would like the security of knowing challenges like harassment can be handled immediately. This also allows employees to feel safe that their reports are being taken seriously and are not being “swept under the rug.”

Has your organization made some recent adjustments to address or prevent harassment in the workplace? Has Human Resources shown an even greater presence recently? How does HR communicate that harassment will not be tolerated? Feel free to share your thoughts in our comments box below!

Leaving 2017…Embracing 2018

We are here again, the end of another year! 2017 came and flew by! As in previous issues of Astronology®, we would like to take our last issue of 2017 to look at HR trends and topics that could possibly be impactful for the coming new year.

Workplace Culture and Human Resources Policy
With the recent increasing reports of sexual harassment in a variety of workplace sectors, 2017’s fourth quarter has been filled with talks about workplace culture and Human Resources policy. A pressing concern in this area is some organizations’ negligence in reinforcing HR policies surrounding this issue of workplace harassment. We expect continued talk into 2018, as well as actions to promote workplace environments where employees feel comfortable reporting alleged harassment incidents, with the confidence that the organizations they work for will support and follow through with proper procedure. Other areas for expected HR policy adjustment include equality in the workplace, in areas such as gender, race, and sexuality.


Talent Management and the Multigenerational Workforce
This past May, we released an article on alternatives means to measure performance. This was largely due to continued growth in organizations breaking away from traditional performance reviews. Why the movement? There are many factors, including the nature of work changing due to technology and the impact of new generations in the workplace. For the last few years, we’ve studied and prepared for the wave of Millennial (born 1981 to 1995) generation workers. This meant understanding what this age group values and structuring organizations to appeal to these values, in order to gain and retain talent. A noted value of this age group has been continuous feedback. As a result, many organizations have sought ways to meet this need, resulting in a new wave of measuring performance.

There are also early notes that a new wave of generational employees already is moving into the workforce. The earliest born iGen, or Generation Z (born in 1996 and later), have started to hit the workforce. This means now, more than ever, organizations have to learn to strike balance within a multigenerational workforce. This means designing retention tools and a work environment to fit the ever evolving employee collective. A recent Forbes online article even suggests that such a dynamic environment leads to a competitive advantage. We expect this to be a continuing trend well beyond 2018.

Federal Policy
As mentioned in a previous Astronology® there are some anticipated policy changes or adjustments expected in 2018. To recap:

• Fair Labor Standards Act (FLSA): In October 2017, the Department of Justice filed a notice of appeal on an August 31, 2017 summary judgement against the FLSA’s Overtime Final Rule. Although it isn’t completely clear on what the US Department of Labor’s practical arguments will be, it is suggested that the DOL will
• Not defend the Obama selected $913 a week figure, and
• Argue that a salary test is legally permissible under the white-collar exemptions.
• National Labor Relations Board (NLRB): By September 2017 the NLRB became a Republican majority five member Board. It is anticipated that this newly adjusted board may reverse some recent rulings such as a 2015 Joint-Employer ruling and even a few 2014 rulings. On December 17, Phillip Miscimarra’s term on the NLRB will expire. He already has vocalized that he will not seek a second term, vacating a seat and position in 2018. We look forward to seeing who eventually takes the vacated seat and what decisions will be made with this new board in 2018.
• Occupational Safety & Health Administration (OSHA): In July 2017 an updated agenda was released indicating that 469 proposed federal regulations were being removed, and another 391 regulations deemed “long-term” or “inactive” for further review. There are a few regulations in the “pre-rule” stage that we are anticipating to appear in 2018:
• Communication Tower Safety,
• Mechanical Power Presses Updated,
• Powered Industrial Trucks,
• Lock-Out / Tag-Out Update, and
• Blood Lead Level for Medical Removal.
• Affordable Care Act (ACA): 2017 found four different appeals (the American Health Care Act, Better Care Reconciliation Act, Skinny Repeal, and the Graham-Cassidy Plan) either being dismissed or vetoed from even being brought to a vote. This means for now, we should follow the currently mandated Affordable Care Act in order to avoid penalties. We do anticipate more talk on health care reform in 2018, however.

HR Technology
We also expect to see continual advancement of HR Technology in a variety of ways. Cloud-based HR software has been becoming the norm for many organizations, small to large. It allows for mobility, “on the go” around the clock access, and has become increasingly affordable. As remote work continues to be a possible work option, such access has becoming increasingly appealing. Gamification also has shown growth in HR, as it can be used to encourage performance, employee engagement, and training. Also expecting to make an appearance in 2018 is the use of big data to make HR decisions on hiring staff and increasing retention rates. It also is suggested that organizations can use data analysis to predict performance.

Closing Out 2017
As 2017 comes to a close, we eagerly look forward to 2018 for some answers to questions in regards to HR policy, and undoubtedly some surprises in Human Resources overall. Are there other topics that you think may make some impact in 2018? Why not share your thoughts with Astronology®! We’d love to hear your opinions!

Can You Legally Terminate An Employee Who Does Not Return To Work After FMLA Leave Ends?

By guest author: pmphrblog for Portnoy, Messinger, Pearl & Associates, Inc. Tri-State area human resources and labor relations consulting firm.

If you are a private employer with 50 employees or more, you must be aware of both the

Federal and your state’s version (if any) of the Family and Medical Leave Act (FMLA), and the paperwork that goes with its administration. FMLA guarantees certain employees up to 12 workweeks of unpaid leave each year with no threat of job loss. Some states are more generous and offer higher amounts of unpaid leave. FMLA also requires that employers covered by the law maintain the health benefits for eligible workers just as if they were working.

Like any workplace regulation, there are always unusual circumstances that need to be reviewed carefully by the employer. Employers must also have a sense of how courts have interpreted the rights of the employee under these circumstances.

When assisting organizations with FMLA administration, employers often ask PMP how to handle an employee who cannot return to work after the FMLA ends. At this point, the employer is left in a quandary — does it terminate employment because the employee cannot immediately return to work, or does it consider approving more leave than the 12 weeks provided for under the Family and Medical Leave Act? Before an employer does either of the above, it should analyze whether the Americans with Disabilities Act (ADA) or other workforce regulations could affect the decision. How an employer handles these requests could mean the difference between a grateful employee or an expensive lawsuit.

In order to be able to determine if you must grant additional leave as an ADA accommodation, you must first determine whether the employee’s condition qualifies as a disability under the ADA. The employer should review the request keeping these five points in mind:

• Engage the employee in an interactive process to determine how much additional time is being requested.
  

• Review the employee’s revised medical certification to see how much additional time is actually necessary.  Unlimited leave is not considered a “reasonable accommodation.”

• Review and document how the employee’s request for leave impacts your business and operations.

• Determine whether continued leave poses an undue hardship.

• Review past practices.

Employers should be very reluctant to terminate an employee solely because the employee has exhausted his or her FMLA or some other employer-provided leave. Employers should evaluate each request on a case-by-case basis, and be able to defend any decision that denies the extension of leave.

According to a recent article, FMLA lawsuits have been steadily increasing. In 2012, there were 406 new federal FMLA cases filed nationally. In 2013 that number more than doubled to 992. In 2014, there were 1,115 FMLA lawsuits filed. If you are unsure of how to interpret the FMLA, ADA, or other workplace regulations, it is prudent that you contact an HR Professional who is well versed in these laws. For a small consulting fee, you may be able to avoid a very large lawsuit. Which makes more sense – consulting or litigation? That’s a no-brainer.

This article is intended for general information only and should not be constructed as legal advice. Contact PMP with any questions regarding FMLA matters by emailing Mark@pmphr.com or calling (516) 921.3400.

About Portnoy, Messinger, Pearl and Associates:

Portnoy, Messinger, Pearl and Associates, Inc. (PMP),  the oldest labor relations consulting firm representing management on Long Island, was founded in 1964 by former union organizer and worker’s rights advocate, Murray W. Portnoy.  Initially, Murray offered human resource consulting and union contract negotiating services to a handful of clients. Today PMP has a full staff of experienced and talented human resources and labor relations consultants, labor and employment attorneys, and administrative personnel. Murray Portnoy's values and vision remain at the core of PMP's mission and principles.