Sunday July 12, 2020
 

EEOC resolution mourns, decries recent black deaths

The Equal Employment Opportunity Commission issued an emotional and politically charged statement on racial discrimination on June 9, marking the deaths of three African Americans.

The Resolution of the U.S. Equal Employment Opportunity Commission In Mourning for the Deaths of George Floyd, Breonna Taylor, and Ahmaud Arbery notes that the Commission, which was created as part of the 1964 Civil Rights Act, “enforces federal laws that protect all employees in the United States against employment discrimination based on race, national origin, color, sex, religion, age, disability, and genetic identity and has worked to promote equality of opportunity in American workplaces.”

And, it says, the committee “by its very existence” embodies the nation’s commitment to civil rights and demonstrates “what is possible when people of good will require that those in power honor that bipartisan national commitment.”

History of workplace discrimination

The commission’s resolution also noted the long history of discrimination against African Americans in their places of work.

“Throughout its history, the EEOC has uncovered evidence of virulent racial discrimination in employment, including countless instances of African Americans accosted with nooses, racial epithets, threats of violence, harassment, and more subtle forms of discrimination in the workplace.”

‘We cannot be silent’

The resolution concludes

WHEREAS we cannot be silent about things that matter; and

WHEREAS Black lives matter:

THEREFORE, BE IT RESOLVED THAT — the EEOC condemns the violence that has claimed the lives of so many Black persons in America and joins in mourning the senseless deaths of George Floyd, Breonna Taylor, Ahmaud Arbery, and countless others; expresses our heartfelt sympathy to their families; and commits to redouble our efforts to address institutionalized racism, advance justice, and foster equality of opportunity in the workplace.”

The resolution was issued as protests sparked by these and other recent shooting deaths of unarmed black Americans continue for the 9th day and the president’s tweets about police violence towards protesters have been flagged by the social media company, “This Tweet violated the Twitter Rules about glorifying violence. However, Twitter has determined that it may be in the public’s interest for the Tweet to remain accessible.”

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Job offer reasonably retracted due to candidate’s religious conflicts

When it comes to accommodating religious needs, employers
often have to be lenient to avoid trouble.

But a recent case complicated the matter when a candidate’s request for an accommodation directly interfered with the job requirements.

Request posed hardships

Mitche Dalberiste, a Seventh Day Adventist, applied for a
technician position at GLE Associates, which entailed a seven-day workweek and
12-hour shifts.

When the company learned his faith would prohibit him from working on the Sabbath – from sundown on Friday to sundown on Saturday – it revoked his job offer.

Dalberiste sued for religious discrimination, retaliation
and failure to accommodate. He argued the employer could’ve altered other
employees’ work schedules and duties to work around Dalberiste’s religious
needs.

However, the court said that providing such accommodations
would place an undue burden on both the employer and other employees.

The employer would not only incur additional costs, but it
would have to restructure its scheduling procedures.

And, to compensate for Dalberiste’s schedule, the other
employees would have to bear an additional workload.

This case shows there are non-discriminatory justifications
for refusing religious accommodations when hardships would arise.

Cite: Dalberiste v. GLE Associates Inc., 5/19/20.

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Workplace investigations in a work-from-home world

Many of the old ways of completing basic human resources tasks have been changed by new remote workforces and the need for physical distancing. One of the areas most impacted is internal workplace investigations. 

Although gathering information and conducting interviews in person is preferable in almost every context, current conditions make face-to-face interactions impossible or, at the very least, ill-advised.

In a recent article, attorneys John Adams and Bruce Sarche of labor and employment law firm Littler lay out some practical suggestions for HR pros as they conduct investigations in the new remote work environment.

Virtual investigations require thorough planning on the front-end and can present additional obstacles.

Difficulties presented by a virtual investigation include:

  • Dealing with evidence, including obtaining and safeguarding physical items
  • Reduced access to hard copies of documents
  • Logistics of safely searching desks, lockers, etc., if necessary.

But, Adams and Sarcher note, there are some advantages over traditional investigations:

  • More flexible scheduling. Remote communications tech lets you schedule interviews and other conversations more quickly than might otherwise be possible and gather information while it is top-of-mind for interviewees.
  • Reductions in the amount of time, cost and travel required.

Getting tech right

Investigators should work closely with tech support and test any systems well in advance of an interview or other conversations, the attorneys caution.

Also, prepare the interviewee. Make sure that you can adequately see and hear them and that they are in a quiet, private space. If the interviewee will be at the client’s worksite, work with HR or a local manager to make sure the location and setup are done properly.

And, they add, think through any complications that may arise, for example, whether a language interpreter will be needed.

Additional items to consider:

  • Have alternatives available in case your first choice glitches and you can’t reschedule. This may include alternative video conferencing platforms or simply being ready to conduct the interview by phone.
  • Factor in time to work out any last-minute technical details.
  • Carefully watch and take note of physical and verbal reactions. Notice and document the context any time the interviewee looks away from the camera, mutes their microphone or leaves the room.

Amidst all the turmoil the COVID crisis has created for employers and employees, prompt investigation of employee complaints and claims is crucial.

Littler’s experts remind employers that failing to move quickly on an investigation not only risks not correcting unlawful behavior. It can leave you open to claims you haven’t exercised reasonable care.

And, they emphasize, proper preparation and planning will facilitate successful investigation no matter the context or format.

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Return to Work challenges after COVID

As states ease restrictions put in place by COVID-19
stay-at-home orders, employers are grappling with multi-faceted risk analysis
and questions regarding the best way to recall employees to work:

  • When should we reopen?
  • Should all employees come back at once, or
    should we recall employees in waves?
  • If we don’t call all employees back at the same
    time, who should we recall first?
  • What safety and social distancing protocols
    should be in place?

And, of course, the answers to
these questions will vary, depending on your business, facility, location, number
of workers, work available, and other factors.

To better understand the issues that employers are facing, Dykema conducted a COVID-19 Employer Flash Survey during the last week of April.

When the survey was conducted, half of the 125 responding employers said they’d reduced staff due to the pandemic, primarily by furloughing employees.

Resistance to Return to Work recalls

Adding to an already complicated situation, many of the employers responding to the survey reported that they are seeing resistance from furloughed employees who don’t want to return to company facilities when they are recalled.

In fact, only 32% of the 125 employers in “recall mode” who participated in the April survey reported that they were experiencing “considerable employee cooperation” in recalls.

Approximately 26% of employers who indicated they’ve met some level of employee resistance to returning cited resistance due to fear of being exposed to the coronavirus.

And even more, 28%, said they perceived
resistance coming from workers’ desire to continue receiving unemployment
compensation.

That’s understandable.

Based on the additional $600 per week in unemployment compensation available through the CARES Act, many employees are receiving similar, if not more, compensation while staying at home and collecting unemployment than they would make returning to work at their current wages.

And, while not a question asked as part of this survey, other reporting makes it clear that the cost and availability of childcare that employees will again need when they head back to work is a growing concern among workers.

So, many workers are not eager to
return until they are forced to or after the emergency federal unemployment funds
expire, currently scheduled for July 31, 2020.

State of Return to Work plans

With such a high level of
resistance and continued uncertainty about whether unemployment benefits will
be extended beyond July 31, employers and employees need to understand the
legal ramifications of their return-to-work decisions.

But only half of employers responding to Dykstra’s survey had yet established objective criteria to determine the order in which employees would be recalled to work.

This is an important consideration
for both employers and workers.

Non-discriminatory Return to Work decisions

Unless an employer has an agreement or policy in place requiring employees to be recalled in some specific manner, once closures are lifted in a given locale, employers can choose to recall employees based on any legitimate, non-discriminatory factor.

Those decision factors may include
seniority, job position, or documented performance history.

But, while you may ask for volunteers to decide who returns first, employers who recall (or don’t recall) workers based on age, child-care responsibilities, or perception of disability risk getting hit with a discrimination claim.

That makes it critical that you document the basis for recall decisions at the time they are made, and note any objective criteria considered.

Keep in mind, even in normal times it is often difficult to remember all of the reasons for recalling one employee over another when a Charge of Discrimination or lawsuit is filed months after the fact.

The current chaotic situation may make it even harder.

When employees refuse to Return to Work

Turning back to the immediate
future, if an employee refuses to return to work because he or she prefers to
receive unemployment compensation benefits, the employee may be deemed to have
resigned.

This is a big deal because all
states have some version of a rule requiring employees to be willing and able
to work in order to continue to receive unemployment benefits.

As a result, if an employee resigns by refusing a recall, he or she may be disqualified from receiving further unemployment compensation.

So what about workers who are
just plain scared? Do they have legal protections?

An employee who refuses to
return to work out of a generalized fear of exposure to COVID-19 is not
currently entitled to job-protected leave, and may also be deemed to have
resigned.

But, as with all things COVID,
the details are not simple.

ADA Return to Work considerations

Fortunately, the EEOC has recently provided helpful guidance for employers facing these kinds of concerns.

If an employee cites an
underlying medical condition as the basis for a request to return to work later
or to work from home, employers should consider these requests on a
case-by-case basis.

Like similar scenarios not involving COVID, under the Americans with Disabilities Act (ADA), employers must determine whether the employee asking to continue working from home has a disability and whether there is a reasonable accommodation that can be provided.

‘Why can’t I return to work?’

And what if an at-risk employee wants to get back to your facility once it is reopened?

In short, employers should leave that choice to each
employee.

Under the ADA, employers cannot decide to keep employees
home simply because they are considered vulnerable under CDC guidance.

Unless an employee’s disability poses a “direct threat” to his health that cannot be eliminated or reduced by reasonable accommodation (increased distancing, barriers, staggered shifts, etc.), they must be treated exactly the same as all other employees.

And the EEOC has explained that the “direct threat” standard
is a high bar based on an individualized medical assessment of employee’s disability.

This bar cannot be met by simply showing that the employee
has a condition that the CDC has identified as putting him or her at higher
risk if they contract COVID-19.

Return to Work communication

As you prepare to recall workers, make sure you are communicating with employees about your plans. In these communications, inform employees of the potential repercussions for unemployment benefits if an employee refuses to return to work when recalled.

Employers should also provide information about any added safety measures that will be in place to protect employees and visitors (e.g., health screening, face masks and PPE, social distancing, increased HVAC ventilation, and enhanced cleaning). 

This additional information may help ease employee fears, curb resistance to recalls, and make the return-to-work process smoother for employers.

OSHA has provided Guidance on Preparing Workplaces for COVID-19 that employers should consult as they prepare and communicate their reopening game plan.

This additional information may help ease employee fears,
curb resistance to recalls, and make the return-to-work process smoother for
employers.

In addition, employers are advised to regularly consult and
share materials distributed by the CDC, OSHA, EEOC, Department of Labor, and
state and local authorities, as the regulatory guidance for employers and employees
is changing rapidly. 

A constantly updated list of links to those and other
resources is available at HRMorning’s webpage, Coronavirus (COVID-19)
Resources for HR Professionals.

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Business post-pandemic: 3 strategies to thrive

With companies slowly starting to reopen their doors, many business owners aren’t sure what to expect.

How long will it take for sales to return to normal? Will remote work become a permanent measure?

The fact of the matter is, most businesses won’t be able to return to work as normal, and leaders will have to rethink the old ways of doing things.

Out with the old

But instead of stressing out about all the necessary changes, Bill Higgs, founder and CEO of Mustang Engineering, says companies should embrace this opportunity and improve on things that were never really working in the first place.

According to Higgs, many companies — even before the pandemic — had culture or communication issues that have been preventing them from prospering.

Now’s a great time to improve on these processes and come out of the pandemic strong.

  1. Leaders need to be a visible presence. Don’t hide behind closed office doors as you struggle to right the ship. Managers should be communicating face-to-face with their employees as much as possible. This will not only engage your team, but reassure them you have a plan.
  2. Use this opportunity to hire. With so many unemployed people desperately needing jobs, you’ll have a larger candidate pool than usual to choose from. Now’s your chance to be picky and build a team of top talent.
  3. Don’t stop moving forward. Once your business begins to recover from the pandemic, don’t relax. Keep pushing to become even more productive and efficient. Don’t revert back into old habits once times are good again.

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Conducting virtual interviews? 6 easy body language tips

In the age of telecommuting and virtual interviews, it can be difficult to effectively get your message across or get to know someone through a computer screen.

And thanks to the pandemic, many companies are being forced
to woo talent they can’t meet in person. This can be a tricky task to
accomplish over a Zoom meeting.

Communicating nonverbally

However, there are some easy ways to impress candidates just through your body language alone.

Here are six tips from Marcel Schwantes, chief human officer
of Leadership From The Core.

1. Look at the camera. When video chatting, a lot of people tend to stare at themselves or the image of the person they’re talking to. Don’t do either – look at the camera in order to maintain eye contact.

2. Use good posture. Sit up straight in a chair instead of slouching on the couch. Good posture shows the candidate you’re alert and engaged.

3. Lean forward slightly. Don’t get too close to the camera, but leaning forward slightly while the candidate is speaking can show your interest in what they’re saying. Stay about an arm’s length away from the camera.

4. Cut back on gesturing. On the small computer screen, gesturing can be particularly distracting. Try to keep your hand movements to a minimum.

5. Don’t cross your arms. Keep your arms relaxed at your sides – folding your arms can come across as grumpy or hostile.

6. Nod and smile genuinely. It’s important to silently acknowledge what the candidate is saying, but be careful not to overdo it. Too much nodding or smiling can come across as disingenuous.

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Keys to taking advantage of remote interviewing

The COVID-19 pandemic has forced businesses to reevaluate all aspects of how they conduct their daily activities. This is especially true with the hiring process which, since the invention of the office, has mostly depended on the old-fashioned handshake and in-person interviews.

In our collective streak of bad luck with the crisis, we can at least acknowledge that many in the workforce can be thankful that we live in a software-powered age that has afforded the transition to remote work without too much friction.

For talent acquisition professionals in particular, the availability of remote hiring tools has allowed employers – especially those in essential industries – to continue hiring activities and meet important staffing demands.

While technologies like remote interviewing have surfaced in a big way due to the crisis, employers are also seeing the evergreen benefits of adopting these tools for the long term.

By design, software improves processes and simplifies tasks. Often these improvements translate into material advantages to productivity and time savings. Once organizations experience these benefits firsthand, they will be hesitant to reverse course.

One emerging type of remote interviewing solution of note is on-demand interviewing, which allows candidates to record their interview questions at their own convenience – including nights and weekends – which greatly simplifies the interviewing process for both recruiters and job candidates.

So instead of scheduling interviews during limited windows of time during business hours, recruiters can effectively interview larger volumes of candidates in a shorter period of time, effectively eliminating the bottle neck that often challenges that part of the hiring process.

Implementing remote interviewing

To take full advantage of the benefits of remote interviewing it is important to think beyond video conferencing. For most organizations, the hiring process is a well-established machine that is often intertwined with other processes and systems.

For that reason, companies should leverage tools that are flexible enough to not only fit into that well-oiled process but also capable of improving pieces within that workflow through either automation or other efficiencies.

  • Does the software solution integrate into your
    existing ATS or HCM system so that your recruiters can leverage the tools
    without having to log into a separate software system?
  • Does the service allow you to rate or rank
    candidates? Does the software securely store sensitive candidate data?
  • Are recruiters able to easily collaborate with
    hiring managers or other stakeholders?
  • Are you able to get a live person on the phone
    if help is needed and will that person understand the unique challenges of
    talent acquisition professionals?
  • Does the vendor provide training to ensure
    success of using the product or is the service completely self-service with
    little human support?

Another consideration is the flexibility of the remote hiring tool to fit a number of hiring scenarios and situations. For example, while video-based interviews sound appealing to organizations because it more closely matches the experience of an in-person interview, we must be sensitive to that fact that not all candidates are comfortable communicating through a web camera.

An on-demand audio interview will consistently produce higher candidate engagement rates versus an on-demand video interview due to comfort levels between the mediums.

As such, it may be advisable to select a solution that offers multiple methods so your organization can select the most appropriate method based on the job type.

Interviewing onsite & remote

It is important to make clear that the benefits of remote interviewing extend beyond the discussion around remote work and remote workers. The advantages clearly apply to onsite jobs types as well.

As an organization, remote interviews provide an opportunity to compress the hiring timeline through efficiencies; it delivers a faster and better candidate experience; and perhaps most importantly, it gives employers an edge getting to their top candidates faster, increasing the likelihood of making the hire.

Now that organizations have made their immediate pivots to adjust to the new normal, the next course of action is to take a step back and understand if they are using the best tools for their long-term needs.

For remote interviewing, this could be an opportunity to transform your hiring process for the better moving forward.

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U.S. women’s soccer team’s equal pay suit dismissed by federal district court

The U.S. Women’s National Soccer Team made headlines in 2019 with a class-action lawsuit alleging they were paid less than the U.S. men’s team.

However, a district court has dismissed the women’s unequal pay claims.

Less pay, worse conditions

The female soccer players claimed that despite performing
better, they were paid less than the male U.S. soccer players.

The women believed if they were under the same pay structure
as the men, they’d be earning much more.

They also alleged they faced less favorable work conditions,
like being booked on worse flights than the men’s team.

However, the court ended up siding with the U.S. Soccer Federation. It said the employer was able to prove the women ended up making more than the men in both cumulative and per-game pay.

The women’s suit is dead for now, but the team plans on
filing an appeal.

This case serves as a good reminder for employers to examine
potential gender pay gaps that may be lurking within your company. Some go as
far as complete pay transparency to ensure equity.

Cite: Morgan et al v. U.S. Soccer Federation, 5/1/20.

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U.S. women’s soccer team’s equal pay suit dismissed by federal district court

The U.S. Women’s National Soccer Team made headlines in 2019 with a class-action lawsuit alleging they were paid less than the U.S. men’s team.

However, a district court has dismissed the women’s unequal pay claims.

Less pay, worse conditions

The female soccer players claimed that despite performing
better, they were paid less than the male U.S. soccer players.

The women believed if they were under the same pay structure
as the men, they’d be earning much more.

They also alleged they faced less favorable work conditions,
like being booked on worse flights than the men’s team.

However, the court ended up siding with the U.S. Soccer Federation. It said the employer was able to prove the women ended up making more than the men in both cumulative and per-game pay.

The women’s suit is dead for now, but the team plans on
filing an appeal.

This case serves as a good reminder for employers to examine
potential gender pay gaps that may be lurking within your company. Some go as
far as complete pay transparency to ensure equity.

Cite: Morgan et al v. U.S. Soccer Federation, 5/1/20.

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DOL’s new ‘regular rate of pay’ rule: How it impacts benefits in 2020

Do you know how to correctly calculate your employees’ regular rate of pay (RROP)? There’s been some confusion among employers, which is why the feds switched up the way firms calculate RROP.

Employers might want to pump up their wellness programs now that the DOL has finalized its RROP rule, which became effective Jan. 15, 2020.

Finally, employers have clarification about which benefits may be excluded when calculating an employee’s RROP. The final rule, which is the DOL’s first adjustment to the “regular rate” rule in 50 years, updated the FLSA definition of RROP to reflect present-day perks and benefits.

To determine a nonexempt worker’s RROP, which is used to calculate their overtime rate, an employer must take into account a worker’s total compensation for each workweek, including bonuses or incentives.

Under the FLSA, courts have struggled to interpret the meaning of the “regular rate” and the correct amount of overtime owed to employees. That’s why some employers have chosen not to offer competitive benefits, or risk a lawsuit.

But the new rule spells out for employers which benefits they can now exclude when determining an employee’s RROP.

Excluded benefits

The complete list of excluded benefits includes:

  • cost of certain parking benefits, wellness programs, gym access, certain tuition benefits (including student loan programs) and adoption assistance
  • payments for unused paid leave, including paid sick leave or PTO
  • reimbursed expenses, including cellphone plans, credentialing exam fees and organization membership dues, and
  • certain sign-on bonuses and longevity bonuses, as well as discretionary bonuses.

The new RROP rule should “encourage employers to provide additional and more creative benefits without fear of costly litigation,” according to the DOL.

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