Category Archives: HR profession

Lowe’s Nailed for $9.5M over HR Managers’ Suit

Lowe’s Home Centers Inc. agreed to pay $9.5 million to end human resources managers’ class action allegations that they were not actually managers and that Lowe’s misclassified them as exempt from overtime pay requirements, according to documents filed in Florida federal court, according to multiple sources.

Lead plaintiff Lizeth Lytle’s suit, initially lodged in August 2012, asserted that the company classified its human resources managers as exempt from the Fair Labor Standards Act’s overtime requirements, but that their duties were not as sophisticated as their title suggested and they should not be classified as exempt.

Although given the title of manager, Lowe’s human resources managers, who number as many as 1,745, lack discretion to make meaningful decisions and do not supervise employees, the plaintiffs alleged.

In their motion seeking preliminary approval of the settlement, the plaintiffs said they expected Lowe’s to argue they were properly classified because the HR managers interviewed potential hires, along with 20 other job roles.

“The jury would have been presented with a very complex case where some employees apparently worked contrary to standard procedures, and will claim to have spent substantial amount of their work hours involved with many routine and repetitive, typical nonexempt job duties, while spending unknown percentages of time engaged in the alleged primary job duties,” the motion said.

The settlement fund includes up to $3.2 million in legal fees, with class members dividing the remaining fund amount between them. The method for the proportional allocation has not yet been determined, according to the settlement.

A trial had been scheduled for June 2015, but the settlement now renders that date moot.

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Paving Co. to Pay for Steamrolling Whistleblowers

A Michigan paving company has been found in violation of the Surface Transportation Assistance Act by the U.S. Department of Labor’s Occupational Safety and Health Administration for wrongfully terminating a foreman and two truck drivers after they had raised safety concerns after being directed to violate U.S. Department of Transportation mandated hours of service for commercial truck drivers.

According to a release from OSHA, the Pontiac, Mich.-based asphalt paving company was ordered to reinstate the three employees to their former positions with all pay, benefits and rights. The company was ordered to pay a total of $953,916 in damages: $243,916 in back wages to the drivers, $110,000 in compensatory damages and $600,000 in punitive damages.

“It is illegal for an employer to retaliate against employees who report work-related safety concerns or violations of federal transportation regulations, which require drivers to have a minimum 10-hour rest period between shifts,” said Assistant Secretary of Labor for OSHA Dr. David Michaels. “OSHA is committed to protecting workers from retaliation for exercising basic worker rights.”

The Surface Transportation Assistance Act covers private-sector drivers and other employees of commercial motor carriers. Companies covered by the STAA may not discharge their employees or retaliate against them for refusing to operate a vehicle because doing so would either violate a federal commercial motor vehicle rule related to safety, health or security, or because the employee had a reasonable apprehension of serious injury to themselves or the public because of a vehicle’s safety or security condition.

Any of the parties in this case can file an appeal with the department’s Office of Administrative Law Judges.

OSHA enforces the whistleblower provisions of the STAA and 21 other statutes protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health care reform, nuclear, pipeline, worker safety, public transportation agency, railroad, maritime and securities laws.

Employers are prohibited from retaliating against employees who raise various protected concerns or provide protected information to the employer or to the government. Employees who believe that they have been retaliated against for engaging in protected conduct may file a complaint with the secretary of labor to request an investigation by OSHA’s Whistleblower Protection Program. Detailed information on employee whistleblower rights, including fact sheets, is available at http://www.whistleblowers.gov.

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Destroying the Barriers to Vet Hiring

Despite the impressive images earlier this week of Special Op forces landing on a mountain top in Iraq to scout out a possible rescue option for refugees stranded there (and, in turn, help prevent an even more nightmarish situation from occurring), the reality is the U.S. military has been in the process of drawing down personnel from the Middle 477606281East, with the last U.S. troops currently due to leave Afghanistan by the end of 2016. A natural outgrowth of this drawdown, of course, is the need for these individuals to find jobs in the private sector. You’d think that might not be an insurmountable challenge, considering many of these vets bring with them amazing skill sets that make them ideal candidates for a long list of positions, including many at the leadership level.

Yet while there certainly have been plenty of stories about the commitment forward-thinking organizations are making to the recruiting and hiring of vets — including some published in HRE and on its website — there still remains a significant number of stumbling blocks that stand in the way of making this happen. True, many companies are taking significant steps in that direction. Earlier this month, 100,000 Jobs Mission, an organization with the goal of bringing together companies committed to the hiring of U.S. military veterans and military spouses, reported that member firms have hired, since its founding in 2011, a total of 161,752 U.S. military veterans through the second quarter of 2014. (The 165 companies now involved in the group pledged to hire 200,000 veterans by 2020.) But there’s little question plenty of barriers remain for these returning vets, including many put in place by employers themselves.

So what factors are standing in the way of returning vets landing jobs? In an effort to answer that question, Christopher Stone, a University of Texas at San Antonio Ph.D. student, is in the process of leading a research study – announced yesterday in a press release issued by the UTSA – aimed at uncovering what might be at work here. Stone, who is about two years into his research and has, thus far, developed a model for understanding factors affecting the hiring decisions of vets, recently co-authored an article titled “Factors Affecting Hiring Decisions About Veterans” (requires purchase) that appeared in the July edition of Human Resource Management Review and proposes several hypotheses and potential solutions. (No surprise Stone — who also discussed the research earlier this month at the 2014 Academy of Management annual meeting in Philadelphia — selected this as a research project, considering he served in the Air Force for eight years, first in an aircraft-maintenance unit overseas and then as a military training instructor.)

As might be expected, two of the primary barriers identified by Stone and his colleagues include stereotyping and a lack of understanding as to how military skills transfer over to civilian roles. According to the UTSA press release, the researchers used a model based on the treatment of people with disabilities to suggest specific steps employers might want to consider as they reassess their veteran hiring strategies (or lack of them), including:

  • Using education programs to dispel stereotypes, publicize veterans’ job successes and change the organizational culture to emphasize the value of hiring veterans;
  • Employing decision makers who value hiring veterans, recognizing and rewarding those who hire veterans, expanding recruiting to find talented veterans and giving bonuses to employees who refer veterans to the company; and
  • Familiarizing decision makers with military jobs and the associated knowledge, skills and abilities that are similar to civilian positions.

I’m sure many of your organizations are already doing some, if not all, of the above. But, that said, considering the significant talent challenges companies are facing today and extraordinary skills many of these vets are bringing to the table, I would think the timing couldn’t be better for employers to take inventory of what they’re doing and ask themselves, “Are we doing enough to ensure we’re not standing in the way of our progress?”

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Liar Liar, You’re Still Hired

liarWe all know lying is wrong. But we’ve all done it. And those who say they’ve never told a lie—not even a tiny little white one—well, they’re probably not being truthful.

That goes for job seekers too. It’s not uncommon for hungry applicants to embellish their skills and experience a bit, in order to pump up their resumes and increase their odds of getting a foot in the door.

But what happens when a candidate gets caught trying to put one over on a hiring manager? That may depend on the severity of the lie, and the potential an employer sees in the person who told it, according to a recent CareerBuilder survey.

In a poll of 2,188 hiring managers and HR professionals, 51 percent of respondents said they would automatically dismiss a job candidate if they uncovered a lie on his or her resume. Interestingly though, 40 percent said their decision to move forward with an applicant who lied on a resume would depend on what the candidate lied about. Another 7 percent said they would be willing to overlook a lie if they liked the candidate.

Dave Ulrich, professor of business at the Ross School of Business at the University of Michigan, was “surprised” at the number of hiring managers willing to look past an applicant’s stretching of the truth, however small the fabrication may be.

“I tend to be quite strongly in the 51 percent who believe that, if someone lies [about] little things, he or she might lie [about] bigger things.”

Some may contend that not all information on a resume—titles or job duties, for instance—is of equal importance, says Ulrich.

“But I would argue that even these less significant facts signify an attitude of integrity,” he says. “The messages on the resume signify the candidate’s style. Applicants would be better served demonstrating candor and transparency to build relationships of trust.”

Indeed, many hiring managers (more than half, according to the aforementioned survey) wouldn’t exactly rush to put their faith in would-be employees they saw as being dishonest right off the bat. And there are some fibs—or flat-out, obvious lies—they may not be so inclined to forgive. Enjoy this sampling of some of the most unusual lies employers reported catching on resumes:

• A candidate’s job history included a stint as the assistant to the prime minister of a foreign country. (Just one problem—the country in question does not have a prime minister.)

• One hopeful boasted on his resume that he was a high-school basketball free throw champion. (Not sure how Kevin Durant-like consistency from the charity stripe would even apply to the workplace, but he fessed up to his lie in the interview nonetheless.)

• A 32-year-old applicant indicated having 25 years of professional experience. (He or she must have been one smart, hard-working baby.)

• And, speaking of babies, one job seeker claimed to have worked for 20 years as a babysitter for celebrities such as Madonna and Tom Cruise.

I actually feel for the prospective employer in this last case. It’s too bad this candidate was lying, because I’d think an employee with that kind of experience could be a big help in dealing with divas and difficult bosses in the workplace.

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Mood Readers in the Workplace

The BBC is reporting that technology maker Dell is working on “a mood-reading application” for both home and office use as soon as 2017.

Dell Research’s Jai Menon told the BBC that its researchers were currently working with specialized headsets to see if they could be used to give a reliable indication of whether the wearer was happy, sad, bored or frustrated.

“If I can sense the user is working hard on a task, an intuitive computer system might then reduce distractions, such as allowing incoming phone calls to go directly to voicemail and not letting the user be disturbed,” he suggested.

“Similarly, if they’ve been concentrating [for] a long time, maybe it could suggest a break.”

The BBC also reports that Dell isn’t the only big tech firm vying to enter the mood-reading market:

Microsoft has announced a series of mood-reading research projects, including Moodscope – software to infer a user’s mental state from their smartphone use – and a “smart bra” that monitors heart and skin activity to detect stress and emotions.

IBM has tested uses for brain-monitoring gear at its research base in Hursley, England.

While the idea of mood-recognition technology may tease the mind with its various possible uses both at home and in the workplace, the BBC managed to find an expert willing to express his mood (impatient) in a way that requires no specialized technology to decipher.

“I think the potential for these things is astronomical, but we’ve been told this technology has been five years away for decades,” said Dr. Bernie Hogan, a human-computer interaction expert from the University of Oxford.

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Early Birds vs. Night Owls: Which is More Ethical?

77741160 -- worker and clockDespite what you may have heard, the likelihood that an employee will make an ethical decision in the morning more than the evening has as much to do with his or her “chronotype” as it does the actual time of day.

In a forthcoming article in the journal Psychological Science titled, “The morality of larks and owls: Unethical behavior depends on chronotype as well as time of day” (downloadable), co-authors Brian Gunia of Johns Hopkins University, Christopher Barnes of the University of Washington and Sunita Sah of Georgetown University’s McDonough School of Business quash the existing theory that individuals are more likely to be unethical as the day wears on due to a loss of energy and effort to exert self-control and behave ethically.

Instead, they say, their research proves ethical behavior has more to do with the fit between an individual’s chronotype, or best/preferred time of day, and the actual time of day. The study shows morning people working in a night shift were more likely to be unethical than morning people in a morning shift, and night people in the morning were more likely to be unethical than night people at night. This suggests people may be more likely to act unethically during the “mismatched” time of day.

“Ethics is not a stable trait in people,” says Sah. “Instead, people exhibit dynamic patterns of unethical behavior across the day based on their circadian [cyclical fluctuations in sleep propensity] rhythms. By understanding their chronotypes, people can help predict when ‘the better angels of their nature’ will appear.”

The study, according to this release, challenges the existing “morning morality effect” that claims ethical decisions are mentally taxing and normal daytime activities deplete our limited cognitive resources as the day goes on.

In addition, the researchers found sleep “can have a significant impact on ethical decisions,” Sah says.

“Our research suggests that early-rising owls or late-working larks will be more likely to make seemingly small, unethical decisions that could have larger consequences.”

So what are managers and HR professionals supposed to do with this information? How can they mitigate this risk? Sah suggests learning the chronotypes of employees and creating work structures, schedules and hours that match individuals.

Requiring morning folks to make challenging, ethical decisions at night or vice versa could “run the risk of encouraging unethical behavior,” the release states. “Employers should also carefully consider overtime, shift work, flextime and requirements during Daylight Savings Time clock changes.

“By understanding chronotypes and the significance of the time of day,” says Sah, “individuals can become more ethical in the way they work, the quality of their work and the decisions they make at any moment.”

And employers, the researchers claim, can help make that happen.

Who knew?

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Sharing the Wealth

sharing moneyWith the debate over minimum wage still swirling, one university president is taking it upon himself to see that his lowest-paid workers’ salaries get a boost.

The Lexington Herald-Leader reports that Raymond Burse, interim president at Kentucky State University, is giving up more than $90,000 of his annual salary in order to increase the salaries of 24 KSU employees—some of whom were earning as little as $7.25 hourly—to $10.25 an hour.

Burse—who served as KSU president from 1982 to 1989 and was an executive at GE for 17 years—told the Herald-Leader that he and the KSU Board of Regents discussed his potential pay cut before the board met to approve his contract in late July.

Burse’s annual salary had been set at $349,869. That number now sits at $259,745, which seems to sit just fine with Burse.

“My whole thing is I don’t need to work,” he told the paper. “This is not a hobby, but in terms of the people who do the hard work and heavy lifting, they are at the lower pay scale.”

He was also quick to point out that the move isn’t simply a publicity stunt.

“You don’t give up $90,000 for publicity. I did this for the people. This is something I’ve been thinking about from the very beginning,” he said, noting the raise in pay for the affected employees will remain in place after a new president is selected.

Burse is also under no illusion that his counterparts in academia will begin sharing their salaries with employees on the lower rungs of the pay scale, and says his largesse “is not a poke” at other university presidents to follow his example.

“I was in a position where I could do that,” he told the Herald-Leader. “That is not always the case.”

Fair enough. And it’s safe to say Burse probably hasn’t started a trend here. But, whatever his reasons, give Burse credit for taking steps to beef up the paychecks of some of his lowest-earning employees, and doing so at his own expense.

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LinkedIn Pays Out $6M in DOL Case

LinkedIn Corp. agreed yesterday to pay $3,346,195 in overtime back wages and $2,509,646 in liquidated damages to 359 former and current employees working at company branches in California, Illinois, Nebraska and New York.

An investigation by the U.S. Department of Labor’s Wage and Hour Division found that LinkedIn was in violation of the overtime and record-keeping provisions of the Fair Labor Standards Act.

After announcing the amount of back wages and fines, a Department official quickly pivoted to praise for the company’s reaction.

When notified of the violations, LinkedIn agreed to pay all the overtime back wages due and take proactive steps to prevent repeat violations.

“This company has shown a great deal of integrity by fully cooperating with investigators and stepping up to the plate without hesitation to help make workers whole,” said Dr. David Weil, administrator of the Wage and Hour Division. “We are particularly pleased that LinkedIn also has committed to take positive and practical steps towards securing future compliance.”

LinkedIn failed to record, account and pay for all hours worked in a workweek, investigators found. In addition to paying back wages and liquidated damages, LinkedIn entered into an enhanced compliance agreement with the department that includes agreeing to: provide compliance training and distribute its policy prohibiting off-the-clock work to all nonexempt employees and their managers; meet with managers of current affected employees to remind them that overtime work must be recorded and paid for; and remind employees of LinkedIn’s policy prohibiting retaliation against any employee who raises concerns about workplace issues.

“ ‘Off the clock’ hours are all too common for the American worker. This practice harms workers, denies them the wages they have rightfully earned and takes away time with families,” said Susana Blanco, district director for the division in San Francisco. “We urge all employers, large and small, to review their pay practices to ensure employees know their basic workplace rights and that the commitment to compliance works through all levels of the organization. The department is committed to protecting the rights of workers and leveling the playing field for all law-abiding employers.”

“This was a function of not having the right tools in place for a small subset of our sales force to track hours properly,” Shannon Stubo, LinkedIn’s vice president of corporate communications, told Reuters.

The FLSA requires that covered, nonexempt employees be paid at least the federal minimum wage of $7.25 per hour for all hours worked, plus time and one-half their regular hourly rates for hours worked beyond 40 per week. The FLSA provides that employers who violate the law are, as a general rule, liable to employees for their back wages and an equal amount in liquidated damages. Liquidated damages are paid directly to the affected employees. Additionally, the law requires employers to maintain accurate time and payroll records, and it prohibits retaliation against employees who exercise their rights under the law.

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Breaking Down the Latest EO

Just a few days ago, my colleague, Michael O’Brien, posted an item on a letter written by the HR Policy Association, and sent to U.S. Department of Labor 490613709Secretary Thomas Perez, that expressed HRPA’s concern over President Obama’s use of executive orders. Well, it didn’t take long for the administration to respond yesterday with one more EO, this one requiring federal contractors to disclose their labor-law violations during the past three years.

The president’s latest such order, named Fair Pay and Safe Workplaces, states …

For procurement contracts for goods and services, including construction, where the estimated value of the supplies acquired and services required exceeds $500,000, each agency shall ensure that provisions in solicitations require that the offeror represent, to the best of the offeror’s knowledge and belief, whether there has been any administrative merits determination, arbitral award or decision, or civil judgment, as defined in guidance issued by the Department of Labor, rendered against the offeror within the preceding 3-year period for violations of any of the following labor laws and Executive Orders … .”

According a White House Fact Sheet, the EO will “ensure that the worst actors, who repeatedly violate the rights of their workers and put them in danger, don’t get contracts and thus can’t delay important projects and waste taxpayer money.”

Federal agencies, the Fact Sheet states, will require prospective contractors to disclose labor-law violations involving 14 covered federal statutes and equivalent state laws, including those addressing wage and hour, safety and health, collective bargaining, family and medical leave, and civil-rights protections.  Agencies will also require contractors to collect similar information from many of their subcontractors.

“Contracting officers will take into account only the most egregious violations, and each agency will designate a senior official as a Labor Compliance Advisor to provide consistent guidance on whether contractors’ actions rise to the level of a lack of integrity or business ethics,” the Fact Sheet explains.

The White House reports that the “vast majority of federal contractors have clean records.” But it also references a 2010 Government Accountability Office report that found almost two-thirds of the 50 largest wage-and-hour violations and almost 40 percent of the 50 largest workplace health-and-safety penalties issued between FY 2005 and FY 2009 were at companies that went on to receive new government contracts.

In case you’re wondering, the Department of Labor estimates that there are roughly 24,000 businesses with federal contracts, employing about 28 million workers.

Other provisions in the EO include requiring contractors to “give their employees information concerning their hours worked, overtime hours, pay and any additions to or deductions made from their pay, so workers can be sure they’re getting paid what they’re owed” as well as directing the General Services Administration to develop a single website for contractors to meet their reporting requirements—for this order and for other contractor reporting.”

Mickey Silberman, a managing shareholder in Jackson Lewis’ Denver office, wrote in a blog post yesterday that the EO’s provisions don’t come as a huge surprise, with one exception—a section prohibiting contractors and subcontractors from requiring that new employees enter into pre-dispute mandatory arbitration agreements. “Many employers require employees to sign arbitration agreements at the outset of employment,” he writes. “This provision of the EO is a ‘game changer’ that government contractors and subcontractors must review and determine how to respond.”

It is possible, Silberman continues, that employers “will bring litigation challenging this provision of the EO.”

Littler Shareholder Michael J. Lotito, co-chair of Littler’s Workplace Policy Institute, shared with me similar sentiments. Government contractors are easy targets for more and more regulation, Lotito said. “The EO process engaging in these types of rules and regulations has been challenged on different grounds and will most certainly be again over the next several months. Even assuming the intent is sincere behind the proposals, they are subject to such abuse.”

Lotito added that “one always has to wonder how much of this is about politics and generating interest in the base between now and November.”

Guess we’ll have to wait to see if Silberman and Lotito’s predictions eventually come to pass. But there’s at least one thing we do know for sure—the Obama administration is showing no signs of letting up on its efforts to issue EOs targeted at the workplace.

 

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A Setback for Anti-Bullying Efforts?

bullyEarlier this month, HRE Editor David Shadovitz reported on Tennessee Gov. Bill Haslam’s signing of the Healthy Workplace Act, which made the Volunteer State the first in the Union to pass legislation aimed at putting an end to on-the-job bullying.

In that piece, Shadovitz pointed out that 28 states have introduced anti-bullying legislation this year. Experts, he said, predict other states will soon take similar measures, adding that New York and Massachusetts appear the most likely to pass anti-bullying laws applying to private-sector employers. (The Tennessee law only affects the practices of state and local government agencies.)

While some states may soon follow in Tennessee’s footsteps, it seems that New Hampshire took a step in the opposite direction this week.

On Monday, Gov. Maggie Hassan vetoed a bill geared toward protecting New Hampshire state employees from abusive work environments, saying the bill was “well-intentioned but unworkable,” according to the Concord Monitor.

The measure—which state lawmakers passed after current and former state workers said they had experienced bullying behavior at work—would have required state departments and agencies to develop policies to address harassment, the Monitor reports.

Hassan, however, found the legislation’s definition of abusive conduct to be overly broad, which she says could make even routine employee interactions potential causes of action. The bill “also attempts to legislate politeness, manners and the interpersonal relationships of co-workers,” she said, contending the law would lead to a significant spike in lawsuits and subsequently hamper productivity.

Conversely, bill sponsor Rep. Diane Schuett feels a failure to put anti-bullying laws in place yields roughly the same end result, with respect to employee output.

“[Bullying] undermines the efficiency within state government if you end up with one or two employees being harassed on the job, either by another employee or a supervisor, and you end up with the entire agency being aware of it and feeling like they have to pick sides.”

There might well be some truth in both of those statements. Maybe the silver lining in the New Hampshire scenario is that the bill—which state lawmakers could revive by overriding the Governor’s veto—is at least on the table, with each side acknowledging that workplace bullying is a real and pervasive problem that must be addressed in some way, even if the legislation’s workability may be at issue.

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