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07 Jun Clarification Regarding Use of Incorrect Form I-9

From our good friends at TALX…

With the current version of the Form I-9 set to expire August 31st of this year, it is worth noting that USCIS’s I-9 Central website recently issued clarification regarding the question of whether a new I-9 should be completed if an employer completes the wrong version of the form.  ICE has always taken the position that such an error is a technical violation and the employer may correct the form with a notation that the wrong form was used, and providing a date and initials in the notation.  I-9 Central had previously stated that employers must complete a new form, in essence taking a position in direct opposition to ICE policy.  I-9 Central and ICE have recently reconciled their guidance on this issue, so that the “official” stance is now in agreement.  Employers need not complete a new Form I-9 for this technical violation — acknowledgment of the error with a note at the top of the form will suffice.

05 Jun THEFT = MISCONDUCT

Theft equals misconduct because it illustrates a willful or deliberate act within the employee’s control that violates company rules and regulations. Theft is dishonest and may be considered criminal, and an action of theft may lead to an employee’s immediate discharge, pending any investigation.

When assessing the case of “alleged” theft, employers must tread carefully. A wronged employee – either one who is innocent or one whose theft cannot be proven – may file charges against the employer with a number of agencies, including the police. An allegation which prompts an employee’s termination where misconduct is not supported can result in the employee filing a discrimination charge with the state or federal agency. Employers should also be mindful that branding an employee a “thief” could result in a civil action such as defamation.

Often an employee suspected of theft can be discharged for violation of policies dealing with cash handling or safeguarding of company property. These cases are generally easier to make than actual theft and can also result in a finding of misconduct and denial of benefits. 

Steps to insuring a proper investigation of theft:

1. Begin the investigation immediately upon notification of the theft (waiting too long allows the “trail” to become cold). Report the theft to your local police or sheriff.

2. Immediately suspend the employee suspected of theft.

3. Work with your security department to ensure a joint effort (a same sex management person should be present during any interrogation by security of any employee).

4. Questioning of employee should either be taped or reduced to writing. Any written statement taken from the employee should be signed and dated.

5. Allow the employee in question to fully explain the circumstances, e.g., was given permission to take the item; has a receipt proving payment for the item.

6. Ascertain exact dollar amount of loss. If amount is insignificant (taking of a candy bar), or was a necessity at the time, (gloves for the cold), while you can certainly discharge the individual you may not prevail at the unemployment insurance hearing. 

Things to bring with you for an unemployment insurance hearing on theft:

• Company policies on theft, cash handling and safeguarding company property

• Signed acknowledgment by employee of company policy/handbook

• Any prior warnings of a similar nature

• Witnesses to the theft including security investigators

• All evidence obtained during the investigation (sales receipts, video surveillance, statements from witnesses, etc.)

If you have questions about how to proceed on a specific case, contact Prestige Employee Administrators, Inc.

25 May The Importance of Memorial Day

Before we all head out for the three-day weekend that signifies the unofficial start of summer, let us take a moment to remember those who made the ultimate sacrifice so that we could enjoy our freedom.

Take a break from the picnics and barbeques to celebrate what others so selflessly defended for our sake.

Recall the words Abraham Lincoln delivered inGettysburg, “that these dead shall not have died in vain – that this nation, under God, shall have a new birth of freedom – and that government of the people, by the people, for the people, shall not perish from the earth.”

Do not forget that freedom continues to come at the highest price, and that we are still involved in many conflicts around the world.

Never take our freedom for granted.

17 May UNEMPLOYMENT TIPS: POOR PERFORMANCE OR MISCONDUCT?

Discharges for poor (or unsatisfactory) performance will usually not disqualify a claimant from unemployment benefits.  Most states define poor performance as the inability to meet company standards. The employer must prove misconduct (deliberate or willful violations of the employer’s rules or standards) to disqualify a claimant from benefits.  Confusion occurs when poor performance is erroneously used to explain all or most separations. Intentional violations of company rules or standards should usually be reported as misconduct. 

The key issue is willfulness.  If the employee has the skills, physical and mental abilities to do the job and has shown ability to perform in the past but now chooses not to, that is usually misconduct resulting in a denial of benefits.  On the other hand, if he never demonstrated full capability or if previously adequate capabilities have diminished through no fault of the employee, it will likely not be misconduct.

The Base Year basis of determining claim charging provides employers with a 90-day minimum introductory period whether or not your company has a introductory period.  Employees discharged for any reason during that period will generally not result in any unemployment claim charges to your account.   Poor performers should be weeded out during or at the end of their first 90-days of employment in order to limit your unemployment liability on a claim.

Keep in mind the following:

• Using the correct terminology is key when protesting an unemployment claim.
• Do not use the terms: poor performance, inability to meet standards, or inefficiency if discharged for a willful or deliberate violation of rules/standards.
• Look to the cause of the “poor performance” in determining whether or not a discharge is for misconduct. For example, poor productivity caused by documented failure to follow instructions; excessive personal phone calls (after warnings); or lateness/absenteeism (within the employee’s control) may be misconduct.
• Be descriptive when reporting a discharge to Prestige Employee Administrators, Inc.  Provide complete details with documentation.
• If a new employee does not meet company standards because of poor performance, termination should occur as quickly as possible. This will minimize company exposure in an unemployment claim.

 If you have questions concerning these unemployment issues, contact Prestige Employee Administrators, Inc.

04 May How to Keep New Hires on Board

First impressions are crucial – especially the first impression a new hire gets of your company.  Studies show that a negative perception of your company during the first 60-90 days of employment can lead new personnel to look for a new job within the year.  Here’s how to put your best foot forward: 

• Start before the new person does.  Stay in touch after he or she has accepted the position to answer questions or help in other ways.  And make sure that the new person’s work space is ready for the first day of work.
• Designate a mentor or partner to show the new person around, make introductions, and begin training. 
• Begin with the basics.  People become productive sooner if they are firmly grounded in the basic knowledge they need to understand their job.  Focus on the why, when, where, and how of the position before expecting them to handle assignments.  Don’t drown them with too much information. 
• Give the new person some responsibility for his or her own orientation.  Offer opportunities for self-directed learning, under appropriate supervision. 
• Keep the new person’s family in mind.  A new job means adjustments for the whole family, especially if they’ve relocated.  Do what you can to ease the transition and help them feel comfortable in the community.

 If you have questions concerning this, or any other Human Resource issues, contact Prestige Employee Administrators, Inc.

26 Apr WARNINGS ARE CONSTRUCTIVE TOOLS

Verbal Warnings       

• May prompt employees to modify or stop conduct that violates rules or policies.  
• Sufficient for minor or isolated violations of rules.

 Written Warnings         

• Can serve to remind employees of the consequences of continuing to violate your company’s rules or standards of conduct.
• Progressive warnings may ultimately place an employee on notice that further infractions may result in suspension or dismissal. 
• Using warnings reasonably and consistently is essential to providing the paper trail or documentation necessary for defending your company’s interest against unwarranted claims and frivolous litigation.

 CONSULTATION

• Prestige can provide advice on composing appropriate written warnings.
• Prestige can help you understand how a possible dismissal might be viewed under unemployment law.

If you have questions concerning these unemployment issues, contact Prestige Employee Administrators, Inc.

09 Apr HOW TO AVOID THE FIVE CLASSIC FIRING MISTAKES

Firings may cause employees to cry, become defensive or even turn violent.  Others may even distort what happens during your firing meeting to justify a lawsuit against you.  To protect yourself legally, have someone else with you during the firing so no one can question what you say.  Write a memo after the meeting summarizing what happened and have the witness sign it.  Here are five other ways to defuse fired employees’ justification for a lawsuit down the line: 

1.  KEEP YOUR COOL. 

Avoid heightening an already-emotional situation.  Don’t spring the news suddenly or berate the employee in front of others.

2.  AVOID SURPRISES. 

Employees should never be completely surprised by a termination.  Give them regular feedback on performance and suggest ways for them to improve.  At the very least, poor performance reviews prove to a court that you had valid reasons for firing someone.

3.  WATCH WHAT YOU SAY. 

On the day you fire someone, he or she will remember whatever you say in the worst possible light.  While you should always avoid making discriminatory statements, be especially cautious during a termination meeting.

4.  DON’T BE TOO KIND. 

You may feel compassion for the person you must fire, but don’t express your feelings in the wrong way.  If the employee’s performance is substandard, don’t offer compliments on any aspect oh his performance.  Doing so might make you feel better, but it will only give the employee cause to question and challenge your reasons for terminating him.  And your off-handed compliments could turn up against you in a wrongful termination suit.

5. KEEP QUIET. 

Don’t discuss your reasons for the termination with other employees.  It’s enough to say, “Jamie will not be working with us anymore.”  Some managers have spoken too freely about the reasons for a departed employee’s termination, only to find themselves in court defending a defamation-of-character suit.

If you have questions concerning this, or any other Human Resource issues, contact Prestige Employee Administrators, Inc.

28 Mar Nine Things Never to Say to Your Boss

“Think before you speak” is always a good policy — and at work it’s even more important. Saying the wrong thing to your boss can do serious damage to your career — and some of the things bosses don’t like to hear may surprise you. We checked in with some managers and came up with this list of nine phrases they strongly dislike — and we’ll tell you what you should say instead: 

1. “I need a raise.”

Never enter salary negotiations talking about what you need — because of rising costs or a new expense, for instance. Your employer doesn’t care about your financial problems. However, management probably does want to reward success and keep high-performing employees satisfied. A raise request should always be supported by evidence of what you’ve achieved for the company — along with information about what people with your responsibilities typically earn.

2. “That just isn’t possible.”

Always speak to your boss in terms of what can be done. For instance, rather than saying “We can’t get this done by Friday,” say “We could definitely get this done by Monday, or if we brought in some freelance help, we could meet the Friday deadline.” When you talk to your boss, think in terms of solving problems for her, not in terms of putting problems on her plate.

3. “I can’t stand working with ____.”

Complaining about a coworker’s personality usually reflects more poorly on you than on the coworker. Don’t make these kinds of conflicts your boss’s problem. Of course, management is interested in problems that jeopardize the company’s ability to function. If you have to speak to HR about a problem such as a colleague’s threatening, illegal or unethical behavior, keep your tone professional and the focus on work — not personal issues.

4. “I partied too hard last night — I’m so hung over!”

Buck up and get through the day with some ibuprofen, extra undereye concealer and coffee. But don’t share the sordid details of your night on the town with your boss. Even if you have a friendly relationship, he’s just as likely to react with (unspoken) disdain as sympathy. Maintaining a solid veneer of professionalism will pay off when it’s time to discuss promotions.

5. “But I emailed you about that last week.”

Alerting your boss to a problem via email doesn’t absolve you of all responsibility for it. Bosses hate the “out of my outbox, out of my mind” attitude. Keep tabs on all critical issues you know about — and keep checking in until you hear a firm “You don’t need to worry about that anymore.”

6. “It’s not my fault.”

Are you a whiny 8-year-old or a take-charge professional?  Assume responsibility and take steps to fix a problem that you did, in fact, create. And if you are being wrongly blamed for a problem, saying “Let’s get to the bottom of this” or “What can we do to make it right?” is much more effective than saying “It’s not my fault.”

7. “I don’t know.”

If your boss asks you a question you can’t answer, the correct response is not “I don’t know.” It’s “I’ll find out right away.”

8. “But we’ve always done it this way.”

You may find yourself with a new boss who wants to try new things — and the best way to present yourself as a workplace relic is to meet change with a “we do it this way because this is the way we do it” attitude. When a brainstorming session takes place, be part of it and stay open to new ideas. If you have concerns about a new idea’s feasibility, say “I think for this to work, we will have to…” Don’t kill new ideas with negativity.

9. “Let me set you up with…”

Avoid the urge to play matchmaker for your single boss. The potential risk far outweighs any potential benefit. In modern workplaces, hierarchical structures are often less rigid, and bosses will often end up in semisocial situations with their direct reports. Smart workers will draw the line at “oversharing” — definitely something to keep in mind if you’re connecting to your company’s managers on social networks like Facebook.

The aboveareer advice from Monster.com was posted online (http://career-services.monster.com/yahooarticle/things-not-to-say-to-your-boss#WT.mc_n=yta_fpt_article_9_things_not_to_say_to_boss) on March 28, 2012

12 Mar The Ins and Outs of Mandatory Automatic Enrollment in Health Plans

The following blog appeared in the March 12 , 2012 edition of The NY Report (http://www.nyreport.com/articles/82785/the_ins_and_outs_of_mandatory_automatic_enrollment_in_health_plans)…

Since the passage of the Patient Protection and Affordable Care Act (PPACA), U.S. employers—specifically companies with 200 or more full-time employees covered under the Fair Labor Standards Act (FLSA)—have felt its effects, with an average of two percent increase in enrollment.

One of the more significant issues at hand is that employers sponsoring one or more health plans and employing 200 or more full-time employees (defined as employees working, on average, 30 hours per week) are required to establish an automatic enrollment program for their group health plans. This automatic enrollment program is to be used to enroll new full-time employees and re-enroll current employees.

Of all the employer-related reform provisions included in the PPACA, auto-enrollment seems to be causing the most headaches. Implementation creates novel administrative challenges for employers. To start with, there is a disclosure notice requirement to be distributed to all employees at the time of hiring (or no later than March 1, 2013 for current employees), informing them of their automatic enrollment in the plan and their ability to opt out of any coverage in which the individual or employee was automatically enrolled.

Further, the notice should include, but is not limited to, information on who is covered, how it works, the consequences of not making an affirmative election, and any rights employees have to make changes once they have been automatically enrolled in a plan. The Department of Labor (DOL) is still expected to issue detailed guidance on these and other requirements.

The law does not yet contain an express effective date; we must wait until the DOL issues implementing regulations, which the DOL intends to complete by 2014.  Fortunately, automatic enrollment does not apply to all grandfathered health plans. 

With this being said, one key consequence of the automatic enrollment mandate for new full-time employees who do not affirmatively opt-out of coverage will likely lead to some employees being enrolled even though they do not want or need the coverage. However, it appears from the mandate that these employees will have the right to opt-out retroactively, although it is not clear whether employees will be permitted to drop coverage altogether, or switch from the employer’s default coverage to other plan options.

Employers are already considering how to manage the cost of the auto-enrollment requirement. Those that currently offer only one medical plan may simply use their current plan as the default plan for auto-enrolling new full-time employees. However, others may add a new, lower-cost plan to use as the default plan, while others may consider changing to a new, lower-cost plan for all employees.

With the amount of vagueness around the essential details of the automatic enrollment mandate, we advise employers to wait until the DOL issues more guidance before implementing a new automatic enrollment program or modifying an existing one.

05 Mar REGULATING OFF-DUTY CONDUCT: HOW FAR CAN YOU GO?

Employers often have legitimate reasons for punishing workers for illegal off-duty behavior, especially if it’s related to their jobs, such as theft conviction.  But disciplining staff for participating in lawful conduct outside work is a slippery slope.

Here’s the litmus test: If an employee’s off-duty activity puts your company in legal or financial jeopardy, courts will be more willing to let you regulate it.

While federal law is silent on the issue, states aren’t.  So far, 28 states and theDistrict of Columbiaprohibit employers from discriminating against workers because they smoke or participate in other “lawful activities.”

4 ways to stay out of trouble

1.  Focus on the off-duty behavior’s effects on job performance, rather than the circumstances of the conduct itself.  Be able to point to a legitimate business reason for disciplining the employee.

2.  Avoid blanket restrictions against socializing with competitors.  Such overly broad rules infringe on privacy.  Instead, protect company secrets by having employees sign nondisclosure agreements.

3.  Check your state’s rules and seek legal advice before firing or disciplining an employee for off-duty activity.

4.  Apply an even hand.  Don’t suspend one employee for off-work behavior and then ignore another similar circumstance.

If you have questions concerning this, or any other Human Resource issues, contact Prestige Employee Administrators, Inc.