Posted by Rick Dacri, June 13, 2013

In a recent post (Manager: Its Legal Definition), I recounted a response to an HR HelpLine client on how he could promote a union employee to a nonunion manager. My response elicited a comment from another client (listed below, with the client name redacted), which I wanted to share with you:

Client Comment: Many issues to consider here.  First of all, if the employer is promoting a person from the Union to exempt status, how can that person still have many of the same duties as that of the Union person?  In our organization, the duties of the “supervisor” need to be different than those of the Union position or we run the risk of grievances for a supervisor doing “Union-type” work.  Also, in munis (the client is a municipal public power), only the General Manager can “hire, transfer, lay off, promote, or discharge” employees.  We’ve promoted employees from the Union to management on occasion, but it usually depends on the person and the Union group.  In our organization, where there is a significant divide in philosophy between the Union and management, it is often difficult to get a Union employee to crossover into management and embrace a completely different ideology, especially if he/she will be supervising his/her former Union group.  The new supervisor often struggles with the new thinking, and with holding his/her former “buddies” accountable.

Dacri Response: Thanks for your comments. To begin, it is not uncommon in organizations, particularly small ones, to find a manager operating as a working manager/supervisor and often doing some work that the crew does. I understand doing this would result in a grievance with some unions, but not all. For example, in one of my municipal clients, the nonunion supervisor works side by side with the crew with no problems. The crew actually likes that he does that. They appreciate his willingness to help out, roll up his sleeves and get his hands dirty. The relationship between the crew and this supervisor and the crew and the town is very positive. Surprisingly, the Teamsters represent them. Come negotiation time they play hardball, but on a day-to-day basis, it is very amicable. It works in companies that have a strong, positive relationship. Look at Southwest Airlines. Several unions represent them, and it is not uncommon for the pilot to help clean the plane or load the baggage. While contracts often spell out a clear divide in management and member responsibilities, in these cases, the divide is blurred because of the positive relationship that has formed. Their focus is getting the job done, not on who does what.

As for the hiring and firing, the key phrase (noted by the NLRA and outlined in the previous blog) is “or effectively to recommend such action.” A manager may not have final authority to hire or fire, but if she can make a recommendation, that often suffices. That doesn’t mean you must do what she recommends, but it does mean you seriously consider her recommendations.

As for the difficulty promoting from within the ranks and the differences in ideology, this happens a lot. In many cases it is hard for the worker to one day become the boss, but I have seen many successful transitions. When everyone is clear about their respective roles, they buy into a common philosophy (you referred to it as an ideology) and the new supervisor has been fully trained to manage, the transition to boss is much smoother and there is no reason why one cannot be successful. Friendships sometimes are sacrificed, but they do not have to be. This is a work setting, not a battlefield.

In organizations where there is a negative relationship between the management and the union, cultural change is needed to smooth that adversarial relationship. It takes time. Understanding the mission, the company’s core purpose, is critical—and everyone must embrace it. Secondly, internal systems must promote merit and excellence; the company must eliminate procedures that foster discontent and reinforce a divide; and training and education of supervisors to manage and employees to perform within expectations must be in place. All of these will help create the culture and climate that you want.

Unions and managers can work together. I see it all the time. It is not easy, but it can be done.

If you want to know more about the Dacri HR HelpLine, click here: HR HelpLine

What are your experiences? Let us know in the Comment section below.

 Other posts you might want to read:

•  5 Strategies to Prevent Unions
• Mission Statements Define Who You Are
• Strategy: Any Road Won’t Get You There

Posted By Rick Dacri, June 12, 2013

Many of the pundits are warning that companies will be laying off workers or reducing work hours to skirt the regulations that require them to provide health insurance under the Affordable Care Act. One company has said “nonsense” and is actually allowing part-time employees to increase their hours so that they can become eligible for the insurance, thus increasing the number of employees who will be receiving health insurance at their company. The Cumberland Gulf Group (Cumberland Farms Convenience Stores) believes that by taking care of their employees, they will see improvements in employee engagement, retention and customer service, all resulting in increased sales and profits. Rather than focusing on short-term savings by eliminating health insurance, they’re betting on their employees and the long-term health of their company by adding employees to the insurance rolls.

The Cumberland Gulf Group has made employee satisfaction a corporate priority and knows that expanding benefit coverage to more of their employees is one way to achieve this. They realize that customer satisfaction requires happy, engaged employees.

Cumberland is taking the big picture approach. It’s a smart move; it’s strategic; and it makes good business sense. Employees are not going to stick around a company that neither invests in them nor provides them affordable health insurance.

What do you think of Cumberland’s decision?  Comment below.

 Other posts you might want to read:

• Costly Turnover Can be Controlled
• Employees Providing Great Customer Service
• Affordable Care Act: What You Should Do

If you want to know more about Dacri & Associates and how we can help you, click here: Dacri & Associates

Eligible employees who get injured at work and lose time (lost time injury) should be placed on FMLA, thus avoiding “stacking.”

Let me explain. To begin, when an employee gets injured at work, they become eligible for workers’ compensation. Secondly, if the employee loses work time, as a rule of thumb three days or more, this would be considered a “serious health condition” and the employee should be placed on a Family and Medical Leave (remember, to be eligible for FMLA, the company must employ 50 or more employees and the employee must have one or more years of service and worked 1250 hours in the previous 12 months).

Now, what is stacking? Stacking refers to the piling on one type of leave on top of another. In this case, if the employee goes out on workers’ comp with a lost time injury, by designating that time as a FMLA leave, the employee, at some future time, could not refuse a return to work with a light duty job offer by declaring the FMLA leave, at that point.

When the employer declares the leave at the onset, you take better control of the workers’ comp case, begin to exhaust the 12 weeks of FMLA leave eligibility, and avoid stacking, which if not done could result in a longer period of lost time that could include a refusal of light duty by the employee.

Remember, the employer has the right to declare the FMLA leave. Exercise it.

Questions? Give me a call. Comments? I welcome them. Just put them in the section below.

If you want to know more about how I can help you, click Dacri & Associates.

Other articles you might want to read:

1. Control Your Workers’ Compensation Costs
2. Light Duty Work: Must I Provide for Non-Work Related Injuries
3. FMLA: DOL Issues New Rules Effective March 8

Posted by Rick Dacri, June 6, 2013

 This question came to me from one of my HR HelpLine clients:

Question: If I have a union employee, can I promote that employee to a management position, outside of the union? The management position would take on all the responsibilities of the union position plus additional responsibilities.

Answer: Yes, if the employee’s new responsibilities will have significant supervisory duties, such as hiring and firing. However, you may have a problem with the union and the National Labor Relations Board (NLRB) if the employee only has minor supervisory duties.

Remember, an employee’s job title does not determine whether the employee is a supervisor or manager. Rather, the term “supervisor” is defined to include any individual with the authority to perform any one of 12 specified functions, if the exercise of such authority requires the use of independent judgment and is not merely routine or clerical. Under the National Labor Relations Act (NLRA), the term “supervisor” means “any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”

Incorporate these components into the individual’s role, and he will likely be considered a manager.

 If you have questions, contact my HR HelpLine and receive expert advice on all your workforce issues.

 You may also like to read:

• Compliance: 6 Problem Areas for Employers
• EEOC Reports Nearly 100,000 Job Discrimination Claims
• 5 Strategies to Prevent Unions

I welcome your comments.

(This interview of me was written by Dulcie Dimech and published in the Malta Independent)

It has become common to hear people in management roles say that company loyalty is dead, and that the current workforce a company employs is not loyal to its company or its boss. All this might be true, pointed out Rick Dacri, a human resource consultant at Dacri & Associates. Dacri further questions if anyone has ever had the experience of having one of their key employees quitting without warning for a “better” job; leaving them wondering, why this employee had taken such a decision? When turnover is on the rise in an organisation, the employers are left thinking: what is wrong with my employees?

Various studies have confirmed that loyalty among employees is dead. Nowadays employees have, on average, nine different jobs in their career. This is a real change from the older generation of workers, who joined one company and stayed there till they retired. Hence the reason why so many individuals say that those were the “good old days”. But what is happening now? And who is the culprit that killed company loyalty?

Before we condemn this generation of workers, we have to consider an option as well. Could it be possible that employers killed company loyalty? Yes that is right, elaborates Dacri, employers managed to kill employee loyalty. How could this possibly happen? Or better, why on earth would they be doing something that could be described as suicidal for their own company.

Dacri puts some questions for our consideration: When sales slow down and profits are in jeopardy, why is it that head count reduction of sales staff is the first response? Why is it that when health insurance premiums go up, the best solution management thinks of is passing on the cost to the employees? When staffing levels shrink, why do we think that getting our workers to do more with less seems the best response?

The above solutions could all make good business sense, but do you really think the employees will make a commitment to you and the company? Has anyone ever thought of what are employees supposed to think when they see fellow long service, higher paid workers being laid off in the name of cost cutting? Do you really believe they feel they have job security? What do you think employees feel when their contribution to their company is converted to a merit increase of around three per cent and then they read or hear about top executives of various companies making millions in salary, bonuses and stock options?

In an annual survey, it was reported that employees’ job satisfaction was rather low, and this was mainly due to the way things were going. Satisfaction with work, pay, job training, promotional opportunities and supervision are all in a free-fall position. Employees are not identifying themselves anymore with their organisation, its goals and mission. In fact, a quarter of the workers who took part in this survey, explains Dacri, admit that they are just showing up to collect their pay cheque!

What can we do? Can we help loyalty rise from the dead?

Well let’s face it; there are some employers who do enjoy employee loyalty. That’s right – and they also enjoy all the benefits that loyalty brings with it, including productivity, quality of service, retention and healthy bottom-lines. How? The answer is rather quick and simple; these employers are the ones who take care of their employees. Although this is not the answer that most managers were looking for, this is a pragmatic, bottom-line approach to a business. Simply put, without motivated, focused employees, organisations cannot operate well. With unacceptably high turnover your organisation cannot flourish. Employers who take care of their employees find that their employees take care of them and their company in return. Employers who do not care for their employees have to face the consequences.

Employees simply want to be treated fairly; they want a manager/supervisor to be empathetic to their needs – to care; and they want to be respected. Employers don’t have to pay hefty salaries to keep employees, but as employers they have to ensure that they are paying competitively. Employers can demand that employees work hard, but they have to treat them fairly, without beating around the bush when it comes to giving them something in return. In doing so, employers can expect their employees to remain loyal, although employers must also keep their loyalty towards their employees.

Dacri concludes by reminding us that we are currently living in tough economic times, where costs are continuously rising, labour is scarce, foreign competition is growing, and employees are being squeezed. All this emphasise the fact that the success of any organisation is dependent on its loyal workforce. Employers, partner with your employees, take care of them, and wait to reap the profits of this successful coalition.

Ms Brincat Dimech is a researcher at the Foundation for Human Resources Development

Posted by Rick Dacri on June 1, 2013

18 years ago today, I founded Dacri & Associates. It is really hard to believe how the time has passed since I started the firm in a small cubicle in a shared office suite.

During my 30 years in management–including the last 18 as the founder of the firm, I have seen radical changes in the workplace. The post recession business is leaner. Employers have greater expectations of their workers and demand increased accountability, while needing workers who are better trained, more versatile, and able to thrive and grow in an environment that is constantly changing.

The workforce has changed too. It is older, more diverse, tech savvy, and more demanding of flexibility, balance and freedom. Fortunately, there has been enormous growth in the sophistication of management and human resource techniques available to employers looking to get the most out of their talent.

With the emergence of a new workforce, employers must be more aware and prepared to deal with the changes they face. I will continue to provide all my clients the expert advice, ideas and tools they need to be successful.

It has been a great run and I look forward to continuing the journey with you. Finally, I want to thank each of you for the faith you have put in me and for the friendships we have formed. I am excited about the future.

Please let me know if there are things I can do to assist you. But for now, let’s enjoy the moment.

Rick Dacri

The last thing an employer needs is a lawsuit. Yet, when it comes to employment law, it is easy to find yourself in a difficult situation, which has trouble written all over it. Here are 6 areas where mistakes are often made by unprepared managers resulting in a messy and costly suit:

1. Hiring Process: it all begins here. Asking inappropriate interview questions, making a badly chosen, but seemingly “harmless” comment that discriminates, giving an insensitive reason for rejecting a candidate, or simply making bad hire will land you in big trouble. Train all interviewers in proper interviewing techniques and hiring procedures.
2. Negligent hiring and retention: when you know things about a candidate or employee, such as their having violent behavior or a dangerous driving record and you still hire or retain them and then they commit a similar infraction (ex. strike an employee or get into an accident driving a company car), you may be facing a lawsuit. Check references before making a hire decision. Address performance problems immediately.
3. Discrimination in employment: Intentional or even unintentional acts of discrimination will get you into trouble. Audit your polices, procedures, pay policies, hiring, promotion and training practices to make sure all your management systems compliant. Train you managers.
4. Discipline process: There’s nothing that will motivate an employee to call an attorney faster than a supervisor botching a disciplinary meeting. Be consistent in applying your policies, train your managers in having difficult conversations, and review all situations with upper management before meeting with the employee.
5. Evaluation process: Giving a positive evaluation to a poor performer may help you avoid an uncomfortable appraisal interview, but rest assured, it is a recipe for disaster if you ever have to terminate that employee for performance. Give honest appraisals and train your manager on how to give appraisals.
6. Firing process: There is no easy way to fire someone. When not done respectfully, employees nearly always want to strike back and a lawsuit is a great way to get even.  Again, review all cases before approving a termination. Make sure the manager understands what needs to be done and how to do it. Include a second manager in the process to serve as a witness and to lend support.

Minimize the risks of employee lawsuits by implementing the recommendations outlined about. Managing is hard enough without adding a lawsuit. If you need assistance, give me a call for help.

You may also like to read:

EEOC Reports Nearly 100,000 job Discrimination Charges

Reference Checking: 5 Tips to Get Great References

2012 Checklist for People Management

Are there other areas to avoid beyond these 6? Let us know in the comment section.

Posted by Rick Dacri on May 29, 2013

Summer is upon us and that means college students are out of school looking for relevant work experience and companies are hiring student interns. The perennial question is whether interns must be paid or not. How you address the issue will determine whether you’re in compliance with complicated state and federal laws or whether you end up getting an unpleasant visit from the U.S. Department Of Labor

Employers often feel that if they provide students a valuable work experience that should be sufficient. Students bolster their knowledge and resume while employers get some badly needed work done—and that’s the problem. Labor and many states believe these students are employees and must be paid.

In order to avoid violating the Fair Labor Standards Act, the internship must meet Labor’s test for “trainees.” An individual who passes this test is not considered an employee and is therefore not covered by the minimum wage or overtime provisions of the FLSA.

The Department of Labor has identified six criteria to determine whether an unpaid internship meets this test:

1. The internship is similar to training which would be given in an educational environment;
2. The experience is primarily for the benefit of the intern;
3. The intern does not displace regular employees, and works under close supervision of existing staff;
4. The employer that provides the training derives no immediate advantage from the activities of the intern;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship. The test is more likely to be satisfied where the internship has a classroom component and participants learn skills applicable to multiple employment settings.

Unless your internships meet this test, they should be paid.

Look at your plans for hiring interns. If the internship is primarily educational, there is likely no need to pay. If the interns are merely extra workers, they must be paid.

If you’re not sure how to handle the situation, give me a call.

You may also like:

Internships: Labor’s 6 Criteria to Meet Before Not Paying

“Give me your tired, your poor, 
your huddled masses yearning to breathe free….”

 (This article, written by Rick Dacri, was initially published in the York County Coast Star on May 23, 2013)

Tear down those walls and open the borders. That’s right, open the borders and put out the welcome mat to all who want to come to America to work. We need the talent. I realize this may be politically wrong to say and blasphemous to suggest, particularly with an unemployment rate at 7.5%, but our country’s long-term economic viability is dependent upon a steady stream of able individuals. And talented people outside our borders are dying to come in—unfortunately in some cases, literally.

While we continuously hear that we are being overrun by illegal workers, who are streaming across our borders, taking jobs away from able bodied Americans, the evidence does not support the rhetoric. In fact, as walls are being built along our southern borders, the flow from Mexico to the U.S. has trickled to a 40 year low. But some in Washington want to make it harder for all foreigners to get in, and for those 11 million undocumented immigrants already here, they want to send them back or at least make it so difficult that they’ll leave on their own.

Now before I’m accused of taking a political side, the fact is America needs these foreign workers. Few steal our jobs or drain our resources. Most work hard, contribute to our communities, and pay taxes. Many create jobs—lots of them. Immigrants or their children founded 40% of the Fortune 500 companies. Ninety Fortune 500 companies were founded by an immigrant. Steve Jobs and Walt Disney were children of immigrants. The founders of IBM, Clorox, Boeing, Google, McDonald’s, EBay and IBM were too. How many jobs have they created? Millions.

Every day we hear employers and even politicians lament over the skills shortage impacting our industries and economy. Schools are scrambling to fill the voids in science, technology, engineering and math. The shortage of skilled labor forces employers to outsource engineering and technology jobs overseas. Yet, many foreign workers who have these skills and education cannot either come to America to work or are forced to leave America after graduating from U.S. universities.

Our current immigration policies limit the number individuals who can work in the U.S. We restrict the number of foreign workers and students who can get the necessary H1B visa to come and work in the U.S. Why would we limit the very workers we need?  Then there are those foreign students who attend our institutions of higher learning, are educated in the very disciplines we demand, who are forced to return to their native land upon graduation, and then go to work or found companies that directly compete against U.S. firms. Why aren’t we making it easy for them to stay and become U.S. citizens? Why aren’t we helping them start job producing companies on U.S. soil?

We also limit the number of seasonal workers who come to work in the tourism and agricultural industries. Over the years, hotels and inns, including those in Maine, go begging for workers. Labor shortages due to those tough immigration laws in Alabama and Georgia have impacted the ability to harvest crops resulting in significant economic losses.

Sensible immigration reform is needed. Our talent pool across the spectrum is contracting, and it is only going to get worse. The baby boomers are quickly exiting the workforce. Who is going to fill their slots?

As Maine strives to expand its economic base, we must understand that without an educated and robust talent pool, employers will not come or stay here. The same applies across the nation. The U.S. birthrate is not sufficient to meet our economic demands. Our schools are lagging in graduating the needed talent.

We need to open our borders. We need sensible immigration reform to remedy this workforce shortage. The American brand is still the best in the world. People everywhere want to live and work in America. We need to welcome them. We need them. It just makes good business and economic sense.

What do you think? Add your comments below.

Employers must comply with the various federal labor laws.

1-14 Employees

• Title VII of the Civil Rights Act of 1964 (for employment agencies and labor organizations). See 15-19 for other employers.
• Consumer Credit Protection Act of 1968
• Employee Polygraph Protection Act of 1988
• Employee Retirement Income Security Act (ERISA) of 1974 (if company offers benefits)
• Equal Pay Act of 1963
• Fair and Accurate Credit Transactions Act of 2003 (FACT)
• Fair Credit Reporting Act of 1969
• Fair Labor Standards Act of 1938
• Federal Insurance Contributions Act of 1935 (FICA) (Social Security)
• Health Insurance Portability and Accountability Act (HIPAA) of 1996 (if company offers benefits)
• Hiring Incentives to Restore Employment Act of 2010 (HIRE)
• Immigration Reform and Control Act of 1986
• Lilly Ledbetter Fair Pay Act of 2007
• National Labor Relations Act of 1947
• Newborns’ and Mothers’ Health Protection Act of 1996
• Occupational Safety and Health Act of 1970
• Sarbanes-Oxley Act of 2002
• Uniform Guidelines on Employee Selection Procedures of 1978
• Uniformed Services Employment and Reemployment Rights Act of 1994

11-14, add

• OSHA Recordkeeping (maintain record of job related injuries and illnesses)

15-19, add

• Title VII of the Civil Rights Act of 1964
• Americans with Disabilities Act of 1990
• Genetic Information Nondiscrimination Act (GINA) of 2008

20-49, add

• Age Discrimination in Employment Act of 1967
• Consolidated Omnibus Benefits Reconciliation Act (COBRA) of 1986

50 or more, add

• Family and Medical Leave Act of 1993
• EEO-1 Report filed annually w/EEOC if organization is a federal contractor
• Mental Health Parity Act of 1996 (for employers who offer mental health benefits)
• Mental Health and Addiction Equity Act of 2008 (for employers who offer mental health benefits)
• Patient Protection and Affordable Care Act of 2010 (for employers who offer health care benefits)

100 or more, add

• Worker Adjustment and Retraining Notification Act of 1988
• EEO-1 Report filed annually w/EEOC if organization is not a federal contractor

Federal Contractors, add

• Executive Order 11246 of 1965
• Vocational Rehabilitation Act of 1973
• Drug Free Workplace Act of 1988
• Vietnam-Era Veterans Readjustment Act of 1974
• Davis Bacon Act of 1931
• Copeland Act of 1934
• Walsh-Healy Act of 1936
•  Service Contract Act (1965)
• Contract Work Hours and Safety Standards Act (CWHSSA)

If you have questions about the laws or how you must comply, feel free to contact me at Dacri & Associates for assistance.