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NOVEMBER 2014

 

In This Issue:

Big Employment Issues Being Considered at the Supreme Court

By Ryan Orr, JD, HR and Compliance Consultant
Cascade Employers Association
[email protected]

This term, the US Supreme Court has taken on some cases that will have major implications in employment law. Below, you will find a brief summary of each case.

Integrity Staffing Solutions v. Busk – Wage/Hour Law –

The employees in this case worked in a large warehouse filling orders for Amazon.com. At the end of their shifts, they were required to wait in line before passing through a security check to ensure they had not stolen any goods. The time spent waiting and passing through security could take as much as 30 minutes per shift, and the time was unpaid. Prior Supreme Court cases have required employers to pay employees for “integral and indispensable” activities occurring just before or after the work shift. This case will clarify whether waiting in the security lines meets the “integral and indispensable” test, and will likely have broad implications for whether other pre/post shift activities are compensable.

Elauf v. Abercrombie and Fitch Stores – Religious Discrimination –

The applicant in this case wore a hijab when she interviewed with an assistant manager for a sales associate position at Abercrombie and Fitch. The assistant manager sought approval from the manager to hire her, and the manager, who was aware that the employee wore a hijab, denied the hire citing the company’s no-hat policy. The manager claimed that he was not aware that the hijab was worn for religious reasons, and the applicant had not asked for an accommodation. This case will clarify whether an employer must have actual knowledge that an accommodation is being sought for religious purposes.

Young v. United Parcel Service – Pregnancy Discrimination –

The employee in this case received a 10-pound lifting restriction near the end of her pregnancy. UPS has a policy that light duty is provided only for disability accommodations, on-the-job injuries, or if a driver temporarily loses his/her DOT certification. This case will clarify when accommodations that are offered to other employees must be offered to pregnant employees.

We will be discussing these cases and other key employment cases and compliance issues at our annual Compliance Update this December. We hope to see you there!

Of course, we will also continue to monitor these cases and provide updates when decisions are made.

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Affirmative Action: New Audit Scheduling Letter. Do Not Delay. Prepare Now.

By Lynn Morris, PHR, Senior HR and Compensation Consultant
Cascade Employers Association
[email protected]

Effective October 1, 2014 the OFCCP has a new Scheduling Letter. This is the letter that is sent to a federal contractor’s facility at a specific location to let that location know they’ve been selected for an audit. At that point, the federal contractor has 30 calendar days to pull together everything requested in the Scheduling Letter, which includes an “Itemized Listing” of specific information.

Up until now a federal contractor who had an up-to-date affirmative action plan and good tracking systems in place could submit all required data within the 30-day period without too much stress. (OK, except for the fact that they’ve been selected for an audit.)

But now… Wow! The new Scheduling Letter and Itemized Listing change many of the items requested in the previous letter and itemized list, and they include a number of new items that contractors have not been required to submit in the past.

The OFCCP issued a moratorium saying that no new scheduling letters would be sent to contractors between October 1 and October 15, 2014. Now that the moratorium period has ended, we expect the OFCCP to start sending the new scheduling letter and probably a lot of them. Human Resources staff should make sure to keep an eye on their mail and notify each facility’s Top Executive/Manager to immediately open any mail from the Department of Labor. Human Resources staff responsible for the AAP will need every minute of the 30 days if their current AAP and compliance with all of the new 503 and VEVRAA regulations are not currently in place.

Here are some of the most significant changes/additions:

  • Specific information required to prove compliance with 503 and VEVRAA:

    • Results of the evaluation of the effectiveness of outreach and recruitment efforts;

    • Documentation of the audit and reporting system;

    • Documentation of the computations or comparisons required in the new regulations:

      1. The number of applicants who self-identified as individuals with disabilities pursuant and/or protected veterans;
      2. The total number of job openings and total number of jobs filled;
      3. The total number of applicants for all jobs;
      4. The number of applicants with disabilities and/or veterans hired; and
      5. The total number of applicants hired.
    • Documented disability utilization analysis, and the progress the company has made to meet utilization goals if the company is more than six months into the plan year;

    • Documentation of the veteran hiring benchmark adopted by the company (National Percentage or company developed Individualized Hiring Benchmark) and an analysis of how well the company has met this benchmark.

  • Support data:

    • Contractors with Collective Bargaining Agreements must submit policy statements, employee notices, or handbooks, that implement, explain, or elaborate on the provisions of the collective bargaining agreement.

  • Employment activity:

    • Applicants/Hires

      • The Applicant/Hires analysis must now include applicants and hires broken down by gender and specific race category – African American/Black, Asian/Pacific Islander, Hispanic, American Indian/Alaskan Native, White.
      • The Applicant/Hires analysis must include data on all “unknowns” and those who “chose not to disclose.” Previously this data was completely left out of the analysis.
    • Promotions:

      • The company must submit their specific definition of promotion.
  • Compensation:

    • Data must be submitted by individual employee; not summarized by job title, job group, pay group, etc.

    • Data submitted must include each employee’s base pay and any other adjustments to salary such as bonuses, incentives, commissions, merit increases, locality pay, and overtime.

    • “Employees” for compensation reporting purposes must include (FT, PT, contract (exact definition unclear), per diem, day labor, temporary).

    • For each employee in the analysis the company must provide the job title, EEO-1 group, Job Group (which may be the same as the EEO-1 group), and date of hire.

    • The company may provide any additional data they use to differentiate pay such as education level, past experience, duty location, performance ratings, department or function, and salary level/band/range/grade.

    • The company must submit documentation and policies related to compensation practices. If the employer says that education, past experience, performance, pay grade, etc. are factors in determining pay, then the documented compensation policy must support this assertion.

  • More new items:

    • Copies of the company’s disability/accommodation policies, documentation of any requests for accommodation, and specific information on the resolution of the request (request implemented, alternate accommodation implemented, request denied, employee terminated, etc.).

    • The company must provide a description of their review of their personnel processes regarding all categories of veterans. The documentation must show the company carefully and thoroughly reviews all qualifications of applicants and employees who are known protected veterans for hire, promotion or training opportunities. The company must also be able to show that only the portion of the individual's military record (including discharge papers) that is relevant to the requirements of the particular opportunity is considered.

    • Documentation of the company’s assessment of physical and mental job requirements to ensure that they are job-related and are consistent with business necessity, especially those that may screen out individuals with disabilities.

This is a lot of information and it is going to take a lot of time to pull together if your company is selected for audit. Much of the information will be included in the contractor’s affirmative action plan documents, but there is a lot of information the contractor is expected to develop and maintain outside of the actual plan documents. Do not delay. Prepare now. Thirty calendar days is not much time.

If you do not have your current affirmative action plan in place or if you need assistance with complying with any of the new (or old) regulations, please contact Cascade.

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Hot Compliance Question

By Ryan Orr, JD, HR and Compliance Consultant
Cascade Employers Association
[email protected]

Question: Is it acceptable to email OFLA/FMLA paperwork to employees?

Answer: OFLA and FMLA do not specify the method of providing various required notices and paperwork to employees, so long as the required information is provided in a timely manner. Therefore, emailing OFLA/FMLA paperwork is acceptable.

However, regardless of the method of communication you choose, it is important to be able to prove that the notice was delivered to the employee. If you’re sending paperwork via email, send it with a return receipt request. If you’re hand delivering paperwork, have the employee sign an acknowledgement of its receipt. If you’re mailing paperwork, send it certified or via some other method that requires a signature upon delivery. This way you’ll be able to prove your compliance with OFLA and FMLA’s notice requirements if you are ever challenged on that basis.

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Affirmative Action Compliance: Better Outreach Required for Attracting Veterans and Individuals with Disabilities

By Lynn Morris, PHR, Senior HR and Compensation Consultant
Cascade Employers Association
[email protected]

Until the new regulations were implemented in March of this year, most contractors had “boilerplate” language in their Veteran/Individuals with Disabilities AAP that said something like:

The Company undertakes appropriate outreach and positive recruitment activities that are reasonably designed to effectively recruit protected veterans and individuals with disabilities, such as …

Then the plan documents listed things like including the EEO Clause in covered subcontracts/purchase orders, contacting local Veterans groups and State Vocational Rehabilitation agencies, listing employment openings with the state employment service, making good-faith efforts to consider veterans and individuals with disabilities for all available positions, etc.

These outreach and positive recruitment activities are still required and all contractors should be reviewing their plans to ensure that they are doing everything they state they are doing in their plan documents. In addition to these efforts, the new regulations require that contractors complete an annual assessment of the effectiveness of their outreach efforts.

In an audit, compliance officers will be reviewing the contractor’s annual assessment to evaluate how well they are complying with outreach requirements for Veterans and Individuals with Disabilities.

In order to effectively assess its efforts and demonstrate compliance, contractors must:

  • List job openings with multiple sources associated with veterans and the disabled and conduct other outreach (job fairs, participation in community events, direct contact with organizations that support individuals with disabilities/veterans, etc.)
  • Track the specific referral source for each veteran or disabled applicant
  • Monitor the number and quality of applicants referred/received by these sources
  • Modify recruitment efforts and outreach programs as necessary to improve results

No longer will it be acceptable to rely only on a third-party service that lists the contractor’s job openings with multiple sources intended to attract different groups. Although contractors should continue to use these services to ensure jobs are posted in a variety of sources, it can’t be the only outreach effort contractors make to attract veterans and individuals with disabilities.

The new requirement to complete applicant/hires tracking will also be useful information to justify achievements from outreach efforts in the annual assessment. Here is a reminder of the required tracking for veterans and individuals with disabilities:

  • Number of total applicants who self-ID as disabled and/or protected veteran
  • Total number of job openings and number of jobs filled
  • Total number of applicants for all jobs
  • Total number of disabled and protected veterans hired
  • Total number of applicants hired

What else will an OFCCP compliance officer be likely to review as a result of the increase in focus on vets and individuals with disabilities? Job descriptions used to determine “minimum qualifications” and any “pre-screening” questions/processes that remove candidates from further consideration. Anything that is used to evaluate whether a candidate meets the minimum qualifications posted in order to be considered an applicant could be an area of evaluation in an audit. Review all education, experience and physical/mental demands in your job descriptions to ensure they accurately reflect what is truly required for the person to be able to do the essential functions of the job and to ensure they do not create any unintended barriers.

If you include any “pre-screening” questions or tests in your selection process, analyze the candidates that are being screened out at this step. Make sure pre-screening questions or tests do not screen out more disabled and/or veterans than other applicants. Contractors will be expected to understand the impact of their screening tests and questions on veteran and disabled applicants since they now have the pre-employment survey data to complete the evaluation.

Anything else? Accommodations. In an audit, contractors are typically asked to provide information on all accommodations made in the last year or more. The compliance officer may also request to review the company’s policies notifying employees how to request an accommodation and procedures on how the company will respond to requests for accommodation.

If you haven’t already, contractors should develop a tracking system for accommodation requests that includes information on what accommodations were considered, why an accommodation was denied, what happened next if the accommodation was denied, and any other relevant information. Contractors should be open to considering a variety of accommodations including leave time, reduced schedules, flex schedules, telecommuting, physical location changes, etc. The Job Accommodation Network has many resources and ideas for accommodations.

What else can the contractor do to help ensure compliance? Training. A critical piece to ensuring compliance will be to train managers and supervisors on the requirements of the new regulations and how they may impact their work areas. In an audit, managers and supervisors may be asked if they understand the company’s requirements as a federal contractor with regard to veterans and individuals with disabilities, if they are involved in the company’s outreach efforts, and if they are involved in determining appropriate accommodations for individuals with disabilities.

Managers and supervisors will need to understand how to respond to a request for an accommodation. They should also be trained on how to identify performance or attendance issues where the employee has not formally requested an accommodation but where the company may want to talk with the employee to determine if any disability is causing the issues.

Lastly, make sure all information and data systems can handle storing and reporting on the information that contractors are required to collect. The new regulations require collecting veteran and disability status data pre-employment and post-offer for applicants and on all current employees. Your HRIS system needs to be able to flag the current employees who self-identify as disabled and veterans in order for you to complete the required utilization analysis and vets reporting (annual VETS-100a). New hires also must be tracked for veteran status to evaluate if the contractor is meeting its hiring goals for veterans. And, as stated above, all applicant tracking systems must be able to identify the applicant’s veteran and disability status as well as specific referral source.

If you need assistance in evaluating your procedures or ensuring compliance, please contact Cascade.

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Effectively Communicate Your Pay Strategy

By Carey Klosterman, PHR, Director, Compensation Services
Cascade Employers Association
cklosterman @cascadeemployers.com

There has never been a more important time to evaluate how you communicate your pay programs to employees. Recent studies show that pay is a top motivating factor for overall job satisfaction. Ensuring that your employees clearly understand your overall pay strategy and philosophy is critical. Ask yourself, “do my employees understand how and when their pay is determined”? If your answer is no, then it is time to take action and implement the three C’s. . . Clearly identify, Concisely write, and Consistently communicate your pay strategy.

Develop a compensation strategy and philosophy that will engage your employees and help them to understand the process. Here are some critical communication elements that you need to be aware of when designing an effective pay strategy:

  1. Make employees aware of the value they receive from their compensation plan by effectively communicating your company compensation plan/strategy.
  2. Clearly and concisely identify how and when pay decisions will be made. Verbally, in writing, social media, intranet, etc. Find out what works.
  3. Develop a sound policy that is consistently administered and understood by employees. When employees understand that their employer is making an effort to deliver pay that is equitable and fair, they are more likely to stick around.
  4. Express appreciation for the value employees bring to the organization by regularly delivering a clear and consistent message about their pay and how their performance can drive higher rewards.
  5. Decide ahead of time how transparent you want (or need) to be. Be specific about how pay decisions are made . . . in good times and in bad.

Once you have had the opportunity to evaluate how your compensation plan is communicated, revisit the three C’s to ensure you have successfully developed a sound policy:

Is our compensation strategy clearly identified?
Is our strategy concise and easy to understand?
Have we consistently communicated what we want to measure and how our employees can be rewarded?

When employees understand what they are working for and how their role fits into the success of the organization, they will be more engaged, more productive and more optimistic during the most challenging of times.

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The Harm of Micro-Aggression

By Ryan Orr, JD, HR and Compliance Consultant
Cascade Employers Association
[email protected]

“No, what do you really do?” says the businessperson to a young attorney at a luncheon.

“Oh, that’s really surprising that you listen to county music,” says the manager to the young African American employee.

“Why can’t your wife take care of that?” says the manager to a single father asking for time off to get his sick child out of school.

These (as well as these) are examples of micro-aggressions, which are defined as “brief and commonplace daily verbal, behavioral, or environmental indignities, whether intentional or unintentional, that communicate hostile, derogatory, or negative slights and insults towards individuals.” The examples from above are all particularly troubling because they each involve protected class issues (age, race, marital status).

Even when micro-aggressions do not involve a protected class, they can be particularly harmful because they are often unintentional and go unnoticed by everyone but the person who experiences the indignity. Because they are not as obvious, sometimes they can be harder to address, even though they can be just as harmful as more overt forms of harassment. It is important that your organization’s harassment or respect in the workplace training educates employees and supervisors on what micro-aggressions are, the harms they pose, and constructive ways of addressing micro-aggressions that may be occurring in your workplace.

For more information on trainings that address micro-aggressions, harassment, and respect in the workplace, contact Cascade today.

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Consumer Price Index (CPI)

Consumer Price Indexes listed were issued October 22, 2014 for September data.
1982-84 = 100, unless otherwise noted.

  CPI-W
United
States
2013

230.537
2014

234.170
Change

1.6%
Portland/
Salem

Avg. 1st
half/year
2013

228.033
2014

233.565
 

2.4%
  CPI-U
United
States
2013

234.149
2014

238.031
Change

1.7%
Portland/
Salem

Avg. 1st
half/year
2013

233.735
2014

239.751


2.6%

Note: CPI-W consists of urban households whose primary source of income is derived from the employment of wage earners and clerical workers. CPI-U includes wage earners and clerical workers, salaried workers, the self-employed, retirees, and the unemployed.

US Department of Labor Historical CPI Data

 


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