Sunday July 22, 2018

Manager’s one dumb comment triggers race discrimination lawsuit

eeoc discrimination guidance

When an employee wants to transfer to a new department, but isn’t qualified for the job, it seems like a fairly straightforward situation. But one offhand comment can quickly turn an open and shut case into a lengthy legal battle. 

Not qualified

Jerberee Jefferson was a clerk in the finance department at Sewon America. She’d been taking technology classes and expressed interest in transferring to the IT department after discovering an open position. The department manager encouraged her interest and had Jefferson take the skills test required for the job.

But Jefferson didn’t pass the IT skills test. And after undergoing a bad performance evaluation as well, she was officially out of the running for the job.

The manager explained Jefferson didn’t have the required five years of experience. But instead of ending there, he added that he “really wanted a Korean in the position.”

Race discrimination, retaliation

Jefferson reported this interaction, claiming she didn’t get the job because she was African American, but HR told her to “brush it off.” Shortly after that, Jefferson was fired for her poor performance review. She quickly filed a lawsuit, claiming she faced race discrimination and retaliation for reporting the incident.

The company argued Jefferson wasn’t qualified — she failed the skills test and performance evaluation, and didn’t have the necessary IT experience. Sewon went on to say that Jefferson was fired for her poor performance review, not her HR complaint.

But a circuit court agreed with Jefferson. Though there were legitimate reasons for denying the transfer, the manager’s comment along with Jefferson’s termination shortly after reporting it was enough for the court to send the case to trial.

What should’ve been a basic transfer denial turned into an expensive lesson for this employer. It’s important to remind managers to never bring up a protected class as a reason for denying a promotion or transfer, and to take all discrimination complaints seriously.


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Why HRs pros want to kill I-9 and what they want instead

If you’re in favor of ditching the current employment verification process – the paper-based I-9 form – for a mandatory electronic system, you’re not alone.
According to the SHRM Employment Verification Survey, 83% of employers either strongly or somewhat support a mandatory electronic verification system. Plus, employers’ support of such a system would be even higher if it:

  • avoids allegations of employment-based discrimination (cited by 95% of employers)
  • includes a strong safe harbor to protect employers (95%)
  • authenticates identity (94%), and
  • eliminates the Form I-9 (89%).

Review documents, discard excess

But while firms may want to do away with the hassle of I-9 compliance, the reality is they still have to deal with it. And now is the perfect time for a review of your I-9 compliance efforts for a number of reasons.

For starters, the most recently revised form became mandatory in the fall.

Plus, the Dept. of Homeland Security’s Immigration & Customs Enforcement agency (also known as ICE) can investigate your company’s I-9 records on an at-will basis – and has already been increasing these investigations with higher fines.

And because I-9 administration is one of the most routine tasks HR, benefits and payroll pros handle, it’s easy for minor issues to fall through the cracks.

But even the most minor issues can prove costly in the event of a federal visit. That’s why regular self-audits are so important.

Key: Before conducting the self-audit, make sure your roster of employees is up to date.

As employers know, all employees hired on or after Nov. 6, 1986, must have a completed I-9 on file. If you discover an employee doesn’t have an I-9 for whatever reason, make every effort to resolve the issue ASAP.

Review documents, discard excess

During your audit, you’ll want to make sure all documentation is accounted for. Chances are, you may have been hanging on to some unnecessary paperwork.

Employers are only required to keep documentation for former employees for one year after separation or three years, whichever is later.

Keeping documents you don’t need only gets in the way of your documentation process and could slow down your procedures.

4 common problems

During the audit, you’ll want to watch for these common errors:

1. Missing signatures. This error is made by both employees and employers. Recently, a staffing firm didn’t have the correct person signing for its remote workers and wound up getting hit with a $227,000 fine.

Another example: An event planning company failed to notice that Section 2 of the I-9s lacked all workers’ signatures. It wound up with more than 800 violations and a $605,250 fine.

2. Blank fields. Several fields in the I-9 are optional for employees (e-mail, telephone, etc.), but they can’t be left blank. These optional fields must include “N/A” in them. Employers can’t correct even the most obvious omissions, so if you notice a blank field, it’s critical to return the form to the employee to add “N/A.”

Note: Employees’ Social Security numbers aren’t required unless the employer uses E-verify.

3. Failing to help employees with Section 1. While not technically a mistake, not using a trained I-9 staffer to supervise staff filling out Section 1 often leads to mistakes and errors.

4. Failing to fix errors correctly. When mistakes are discovered on Section 2 and 3 of the form, the corrections must be initialed and dated by employers (Section 1 must be completed by the employee only).

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8 things your managers need to know about the FMLA

FMLA leave

Whether they realize it or not, managers have the power to make or break FMLA lawsuits. 

Experts say employer violations often occur when managers respond too quickly and emotionally to FMLA-triggering situations. The good news is, proper training is the key to preventing these costly manager mistakes.

Responding carefully

At the annual SHRM conference, Jeff Nowak, partner at Franczek Radlet and founder of FMLA Insights, and Matt Morris, VP of FMLASource, shared eight things you should tell your managers about handling FMLA requests:

  1. Be on the lookout for a serious health condition. It’s important for managers to know when an employee’s illness could potentially turn into something more. For example, if an employee took a sick day because of a sore back, find out if it was a temporary strain or a chronic condition.
  2. Remember FMLA leave can be intermittent. FMLA leave isn’t always long-term; a few absences here and there can still be protected. Managers need to be able to identify what’s intermittent FMLA leave and what’s just a regular sick day.
  3. Know when to involve HR. When a manager determines an employee might qualify for FMLA leave, they need to know when to bring HR into the conversation. Let them know at what point in the discussion this should happen.
  4. Enforce policies consistently. If your company has certain call-in procedures for employees on FMLA leave, it’s important those policies apply to everyone. An employee’s retaliation claim could be stronger if policies weren’t enforced fairly.
  5. Hold back emotions. Managers shouldn’t let an employee know they’re unhappy about their FMLA leave request, but it can be tricky to hold back a reaction of some kind. Train your managers to respond with, “Let me know how I can help you.”
  6. Keep things confidential. Managers can’t discuss an employee’s medical condition or FMLA leave with people who don’t need to know about it — this by itself can violate the FMLA. Help your managers come up with responses if co-workers ask about an employee on leave.
  7. Don’t bother workers on leave. Employees out on FMLA leave shouldn’t have much contact with the company. There could be situations where contact is necessary, but those should be handled carefully. Tell your managers to ask HR before reaching out to someone on leave.
  8. Document everything. When an employee who took FMLA leave is terminated, it can easily look suspicious. It’s crucial for managers to document everything, including performance issues or strange leave patterns that could indicate FMLA abuse.

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‘Bob, you smell’: What to say to employees about embarrassing personal issues

Everybody dreads having those “difficult conversations” with employees about personal issues. Here are some examples of how they can be handled gracefully — including the actual words to use.

Paul Falcone, VP of Employee Relations for Time Warner Cable in Los Angeles and a respected author on employee management, gave an in-depth presentation on the topic at a SHRM conference in San Diego. Here’s a brief rundown of what he had to say:

Going in

Managers’ mindset heading into one of these confrontations is key to a positive outcome. A few of what Falcone calls his “rules of engagement:”

  • Each to his own without judgment
  • What you want for yourself, give another
  • It’s not what you say but how you say it
  • Perception is reality until proven otherwise, and
  • Put others’ needs ahead of your own by treating them with dignity and respect, and expect them to respond in kind.

Falcone’s take on two of the toughest personnel issues to confront: attitude problems and “aroma” situations like bad breath and body odor.

Attitude problems

Falcone offers three rules concerning confronting employees with negative attitudes:

  • Tell the person in in private how you perceive his/her actions and how they make you feel
  • Avoid the term “attitude” — replace it with “behavior” or “conduct,” and
  • Be specific about the problematic behaviors.

Some sample dialogue:

Lisa, I need your help. You know how they say perception is reality until proven otherwise? Well, I feel like you’re angry with me or the rest of the group.

I may be off in my assumption, but that’s an honest assessment of the perception you’re giving off …

Let me ask you: How would you feel if you were the supervisor and one of your staff members responded that way in front of your team? Likewise, how would it make you feel if I responded to your questions with that kind of voice or body language?

The odor issues

These are the discussions that make managers’ knees shake. A few well-chosen words from Falcone:

Dominic, I called you into my office because I want to speak with you privately … The feedback back is difficult to share, and I’m pretty uncomfortable right now, so I want to make this as simple and straightforward as possible: I believe you may have a problem with (bad breath or body odor).


Roger,  I wanted to meet with you one-on-one because I need to share something with you privately, discreetly, and with as much sensitivity as possible …

You may not realize it, but it appears you have a body odor problem, and it isn’t merely a personal matter — it’s a workplace disruption issue I’ll need your help to repair …

I’ve had conversations like this with other employees before, and usually they’re not even aware that the problem exists. I don’t mean to make you uncomfortable, but are you aware of the issue, and if so, is it something you could take care of?

I’m here to help in any way I can. If you’d like to set up a fan in your office, or arrange your schedule so you could take breaks during the day to freshen up, I’d be very supportive of that. Just let me know whatever I can do to help, OK?

If you wouldn’t mind, though, I’d prefer not to have to address this again — it’s a bit uncomfortable for me. So is this something you feel you can fix from here on in?

Final tip from Falcone: Always focus on shifting the responsibility for fixing the problem to the employee — emphasizing that not fixing the problem will carry consequences.


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Make sure your male and female employees are paid equally: 4 steps to close the gap

Of course, most employers don’t set out to intentionally pay female employees less than male employees. Nevertheless, it ends up happening a lot more than you’d expect. 

Recent studies reveal that, on average, women still earn 82 cents for every dollar earned by men. And a lot of companies could be paying women less without even realizing it.

Adjusting the scales

The good news is, discovering and correcting pay disparities isn’t too difficult. On, Finance Writer Helaine Olen shared four things employers should do to ensure equal pay between their male and female employees.

  1. Conduct a pay audit. The first step is examining every employee’s salary to see if there is a pay gap, and how big it is. When looking at pay, it’s crucial to make sure you’re really comparing apples to apples; you might think two people are doing the same job, but after a closer look realize one has more responsibilities than the other. You’ll want to make sure you’re not only looking at current salaries, but past ones as well. This includes examining and raises — do men tend to earn raises more than women?
  2. Be transparent about salary. Often, pay gaps can happen when a bunch of employees are hired around the same time. Studies show that men are more likely to negotiate a higher salary when offered the job. So if you aren’t upfront about what you’re willing to shell out for the position, women might unknowingly settle for less money.
  3. Check your promotions. Examine the pattern of who is typically put up for promotions. Is it mostly men? This is referred to as the “position gap.” A company may start out paying men and women equally, but if women are rarely groomed for leadership positions, men will generally still earn more. Keeping qualified men and women in mind for all promotions will help restore the pay and position balance.
  4. Repeat this process routinely. Maintaining equal pay takes more than a one-time fix. To make sure you don’t slip back into old pay habits, it’s important to routinely monitor salaries, especially when new people come on board or yearly raises are given out. As your company grows, you’ll want to make sure men and women continue to have equal earning opportunities.

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Reaching out to a stranger via email? Avoid these 6 phrases if you want a response

Everyone gets unexpected emails from time to time, and more often than not, they get ignored.

From a quick glance, it’s clear whether one of these emails will be worth your time. Overly wordy messages or false friendliness reduce the chances you’ll respond.

But when you’re the one who has to reach out to a stranger, there are certain phrases you want to avoid to increase your chances of a reply.

Straight to the point contributor Jeff Haden compiled a list of 11 phrases to cut out of your vocabulary when you’re emailing someone out of the blue.

Some of our favorites to avoid:

1. “I hope this finds you well.” This overly formal greeting is a big reminder this person doesn’t know you. The same goes for “I hope you had a good weekend.” The recipient knows you don’t really care – false friendliness won’t help get you a reply.

2. “You might be surprised to learn …” Trying to gain someone’s interest with this line feels forced, and wordiness could stop them from reading on. Just jump right in.

3. “My name is …“ The recipient will see your name in the sender field. Don’t waste words introducing yourself.

4. “I know you’re really busy …“ Saying they don’t have time to spare but taking up their time anyway is off-putting. Respect their busy schedule by getting to the point.

5. “I thought I’d follow up …” Mentioning the person didn’t reply to your first message won’t make them want to reply this time. It’s just reminding them that they weren’t interested. Most likely, they ignored you intentionally. Resurfacing the original email can just be an annoyance.

6. “I want to ask a quick favor.” Typically, when someone says this, the favor is never quick — and the way they go about asking takes even longer. If you need something from someone, just go ahead and ask. The more direct you are, the quicker the recipient can figure out if they want to and are able to help.

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Generation Z’s plan for a comfy retirement? Inherit the cash

retirement plans

Just how grim are the retirement prospects for the generation that’s now entering the workplace for the first time? So grim, that many believe the only way to secure a stable retirement is by inheriting it.

Well, the affluent members of Generation Z, anyway.

Specifically, 63% of affluent children ages 18-22 say financial stability in retirement will depend on an inheritance, according to a recent study of 1,000 “mass affluent” Americans by Merrill Edge.

How did Merrill Edge determine who fit the mass-affluent criteria? The study defined this group as individuals ages 18-40 with investable assets from $50,000 to $250,000, or those with investable assets between $20,000 and $50,000 and an annual income of at least $50,000. Americans older than 41 also qualified if they had investable assets between $50,000 and $250,000.

Banking on friends, grandparents and extended family

Another interesting finding from the study: Wealthy members of Gen Z aren’t solely banking on their moms and dads to contribute to their inheritance-based retirement fund.

The group is expecting to get cash from a variety of sources. The study found:

  • 17% of Generation Z think their inheritance could come from friends (versus 4% of people of all ages)
  • 17% think grandparents will leave something to them (versus 6% of everyone surveyed), and
  • 14% are banking on cash from extended family (versus 5% of people overall).

Expecting an inheritance from friends is certainly a curious finding, but Aron Levine, the head of Merrill Edge, believes it’s a natural reaction to growing up during the rise of the sharing economy (Crowdfunding, etc.). As Levine put it, if you grew up only knowing about life with elaborate online giving platforms, “why wouldn’t you have some sort of shared way with friends to finance your future?”

Inheritance isn’t a terrible retirement strategy for Generation Z. In fact, in North America, there’s an estimated $30 trillion that could be passed along to beneficiaries over the next 30 years.

The only problem: It could take a long, long time for inheritance-hopeful individuals to actually get their hands on their windfall.

A new study from UBS Financial Services found that 53% of individuals with more than $1 million in investable assets expected to live to 100 years of age.

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5 simple ways to make your new hire feel welcome

When it comes to an employer making a good impression on a new employee, the first few days are crucial. But many onboarding programs can still come across as an afterthought. 

The good news is, you don’t have to revamp your entire onboarding process to make a new hire feel welcome.

Chris Ronzio, creator of onboarding simplification tool Trainual, shared five simple ways employers can get off on the right foot with their new employees.

1. Announce their arrival

Even before their first day, you can get the new hire and your other employees excited about it. Send an email to your staff about the new person, and encourage everyone to reply and say hello. A few messages from staff members will make the new hire feel like a welcome member of the team instead of the new kid at school.

2. Come bearing gifts

Nothing will make a new person feel like they fit in like some branded merchandise. Simple things like t-shirts or water bottles bearing the company logo can make a new hire feel like they belong. Plus, any kind of gift is a fun surprise on an anxious employee’s first day.

3. Brush up on your history

Hearing about how the company got its start and what its values are is crucial for a new hire. Not only will this help them get the gist of the culture and work environment, but it will make their work more meaningful if they fully understand the purpose behind it.

4. Explain how everything works

Enhance a new hire’s understanding even more by explaining the company’s processes and what everyone does. This will help them see the big picture and understand how each department works together.

5. Set expectations

It’s important for the new hire to understand where they are in the onboarding or training process. Are they expected to be ready to get to work in a few days, or a few weeks? How long until their training is officially complete? Letting the new employee know where they stand throughout the process will help them get up to speed comfortably.

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Can you offer employees an option to work on FMLA leave? Court says …

If an employee is still able to work but requests FMLA leave (say, to care for a spouse), is it interference to offer them the option to continue working while taking leave?

That question was at the center of a recent FMLA lawsuit.

The answer, according to a federal appeals court, is “no.”

And employers everywhere will want to take note of why the court ruled that way.

Employee had two choices

The court tackled this issue after Vacations To Go sales rep Karen D’Onofrio sued the employer, claiming it interfered with her FMLA leave by asking her if she wanted to work while on leave.

D’Onofrio had requested FMLA leave to care for her sick husband. She sold ocean cruises and had ongoing contact with her customers.

After Vacations To Go approved her leave, it asked that D’Onofrio choose between two options:

  • She could go on unpaid leave, or
  • While taking leave, log in remotely a few times per week and continue to service her existing accounts.

D’Onofrio chose the second option. But when her employment came to an end at Vacations To Go, she filed the interference lawsuit.

Result: The court then threw out her claim.

It said the FMLA permits “voluntary and uncoerced acceptance of work by employees on medical leave, so long as acceptance is not a condition of employment.”

In other words, because her decision to work was completely voluntary, there was no interference.

Cite: D’Onofrio v. Vacation Publications Inc., U.S. Crt. of App. 5th Cir., No. 16-20628, 4/23/18.

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Get a Letter 227? IRS’ new online tool to navigate the wave of ACA penalties

Now that employers have been notified of their potential ACA shared-responsibility penalties by the IRS, the agency is offering guidance on how they should respond. And HR pros will definitely want to take note of their options.

The IRS just created a webpage titled Understanding Your Letter 227, a reference to the correspondence some employers may receive regarding an assessment of an employer-shared responsibility penalty under Code § 4980H.

The Letter 227 phase of the agency’s recent ACA penalty efforts is the stage that follows the initial Letter 226J notification. For reference, Letters 226J were sent out in late 2017 and applied to the 2015 calendar year or the reporting that was done in 2016.

The 226J Letters were based on info reported to the IRS on Forms 1094-C and 1095-C as well as the agency’s records of who received a premium tax credit.

After receiving a 226J letter, employers were required to respond with a Form 14764 on whether they agreed or disagreed with the IRS’ proposed penalty.

Not a bill

With its Letter 227 series, the IRS will acknowledge the employer’s response to the 226J, explain the outcome of its review and offer the next steps that will full resolve the situation for the company. In total, there are five different versions of Letter 227.

It’s worth noting that only two of the 227s require a direct response from the employer, which must be provided by the date stated on the letter. The IRS also reminds employers that the Letter 227 is not a bill. For the collection of penalties, the feds will be sending a separate document, Notice CP 220J.

What’s included

Here is what the five Letters 227 contain (samples of each are on the IRS site):

  • Letter 227-J states that the proposed penalty amount will be assessed because the employer agreed with the proposed penalty. No response is required to this version of the letter, and the case is deemed closed.
  • Letter 227-K shows that the penalty has been reduced to zero. No response is required to this version of the letter, and the case is deemed closed.
  • Letter 227-L shows that the proposed penalty amount has been revised. This version of the letter includes an updated Form 14765 (Premium Tax Credit (PTC) listing) and revised calculation table. Employers agree with the revised penalty, request a meeting with the IRS, or appeal the determination.
  • Letter 227-M shows that the penalty amount did not change. This version of the letter also includes an updated Form 14765 (PTC listing) and revised calculation table to the extent any data used in the computation of the proposed penalty amount changed based on information provided by the ALE. The ALE can agree with the revised penalty amount, request a meeting with the IRS, or appeal the determination.
  • Letter 227-N acknowledges the decision reached by the IRS appeals office and shows the resulting penalty amount. No response is required to this letter, and the case is deemed closed.

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