Tag Archives: employment laws

Medical Marijuana, Picking Bad Managers & Turnover Signs

Three workforce issues I wanted you to be aware of:
images1. Medical Marijuana Laws: There is some confusion and uncertainty with the legalization of medical marijuana in Maine and Massachusetts, while federal law stills treats it as an illegal drug. Though I am not going to cover the regulations here (call me with questions), you should know that neither state requires employers to permit drug use in the workplace or tolerate employees who report to work under the influence. Again, call me regarding compliance, policies, drug testing rules and handling the conflicting requirements under state and federal laws.

2. Companies Picking Bad Managers: According to a Gallop study just released, companies fail to choose the right talent for manager positions 82% of the time. And, managers account for 70% of the variance in employee engagement scores. Gallop notes that bad managers can generally be blamed for most low morale of workers. As you know, low morale and engagement are the determining factors in productivity, quality and retention levels. Call me if you need help assessing candidates for supervisory positions as well as training and coaching your existing supervisors and managers.

3. Warning Signs that An Employee Is Likely to Quit: According to a Utah State University Study, there are clear warning signs that an employee is likely to quit within months. Some of the warning signs include:

  • Showing less interest in advancing in the organization
  • Seeming less interest in pleasing their boss than before
  • Acting more reluctant to commit to long-term projects
  • Exhibiting less interest in training and development
  • Offering fewer constructive contributions in meetings
  • Suggesting fewer new ideas
  • Doing the minimum amount of work needed

If you begin seeing this with one of your employees, you may have an employee who is preparing to quit. Give me a call and we can discuss how best to handle this.

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Federal Labor Laws By Number of Employees

lawsEmployers must comply with the various federal labor laws. Which law generally depends on the organization’s employee population. I have listed below the most common federal labor laws. Employers are also required to comply with their respective state labor laws (not listed here).

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.

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Criminal Record Law Requirements in Massachusetts Become Effective May 4

(Guest blog written by Attorney, Rachel Reingold Mandel of Ogletree Deakins)

 Significant changes to Massachusetts criminal record laws implemented by the Massachusetts Criminal Offender Record Information Reform Act will become effective on May 4, 2012. The law, which was passed in August 2010, has become well known for its “ban the box” provision that prohibits most employers from asking about an applicant’s criminal history on an initial written application. Other significant portions of the law will go into effect on May 4, further affecting the process through which employers obtain criminal background information about job applicants. Some of the changes specifically affect criminal offender record information obtained from the state (known as “CORI”), and other changes affect any criminal record information obtained by employers in the process of making decisions regarding employment.

Employment-Related Changes Effective May 4, 2012

  • In connection with a decision regarding employment, prior to questioning an individual about his or her criminal history, an employer in possession of the individual’s criminal record information must provide the individual with the criminal history record in the employer’s possession, regardless of the source from which it was obtained.
  • If the employer makes an adverse decision on the basis of an individual’s criminal history, the employer must provide the individual with a copy of the criminal record information in the employer’s possession, regardless of the source from which it was obtained (however, if the employer already gave the individual a copy of the record prior to questioning, the employer does not need to provide an additional copy in connection with an adverse decision).
  • An employer that annually conducts five or more criminal background checks, regardless of the source from which it obtains the criminal record information, must maintain a written CORI policy. The law requires that the policy include certain provisions, including that the employer will: (i) notify the applicant of the potential adverse decision based on criminal record information; (ii) provide a copy of the individual’s criminal history information and the employer’s policy to the applicant; and (iii) provide information concerning the process for correcting a criminal record.
  • CORI may only be shared with individuals within the employer’s business with a need to know the information. In addition, employers must maintain a dissemination log for a period of one year following the dissemination of an individual’s CORI, including: (i) the name of subject; (ii) his or her date of birth; (iii) the date of the dissemination; (iv) the name of person to whom it was disseminated; and (v) the purpose for the dissemination.
  • Employers that make decisions within 90 days of obtaining CORI directly from the state may not be held liable for negligent/discriminatory hiring practices by reason of reliance on CORI (there is currently no such statutory protection for employers using information from private background check companies).

New System for Accessing Criminal Information

In addition to the changes regarding employment-related decisions, effective May 4, 2012, the process for obtaining CORI through the Commonwealth of Massachusetts also will change. Previously, only certain employers that regularly have contact with vulnerable populations were able to access the Massachusetts database containing CORI. As of March 12, 2012, the Department of Criminal Justice Information Services (DCJIS) stopped accepting applications for CORI access, because DCJIS anticipates that beginning on May 4, 2012, a new system, iCORI, will become available to all employers. Once they have registered, employers will be able to access iCORI records for any individual who has signed an acknowledgement form. Employers should be aware, however, that they must retain the acknowledgement forms for at least one year from the date of the iCORI request. In addition, employers may not retain iCORI records for more than seven years after an employee’s last date of employment or the date of the decision not to hire an applicant.

Regulatory Guidance Not Yet Available

Although the new law requires that DCJIS issue regulations to assist in the implementation of these sweeping changes, DCJIS has not yet issued such regulations. Ogletree Deakins will issue another update outlining any new requirements contained in those anticipated regulations.

Practical Steps for Employers

Employers that conduct background checks on employees or applicants in Massachusetts should review and update their policies and practices to ensure they are in compliance with the new changes to the law. Practical steps to take include:

  • Employers should confirm that they have not included any questions regarding criminal history on any initial employment application completed prior to an interview.
  • If employers conduct five or more background checks per year, they must implement a written CORI policy that complies with the new law.
  • If applicants and employees’ CORI is obtained, employers must maintain the necessary dissemination log.
  • Although the statute is not clear on this point, we recommend that employers provide any applicant whose criminal history will be checked with a copy of the employer’s CORI policy, notification that the employer may make an adverse decision based on criminal background information, and a copy of the DCJIS document containing information concerning the process for correcting a criminal record.
  • Prior to questioning an applicant about his or her criminal background, the employer must provide the applicant with a copy of the criminal record information in the employer’s possession.
  • If making an adverse decision based on an applicant’s criminal background, the employer must provide the applicant with a copy of the criminal record information in the employer’s possession, along with notification that the employer is making an adverse decision and, if the employer has not already done so, provide the applicant with its CORI policy and the DCJIS document containing information concerning the process for correcting a criminal record. In addition, employers are advised to give applicants a reasonable opportunity to respond to the criminal record information before finalizing the adverse decision.
  • Staffing personnel and hiring managers should be trained so that they understand what can and cannot be asked of applicants regarding their criminal records and background, and when the questions may be asked. Specifically, staffing personnel and hiring managers should be aware that they are prohibited from requiring an applicant or employee to disclose: (i) arrests that did not result in conviction; (ii) first misdemeanor convictions for drunkenness, simple assault, speeding, minor traffic violations, affray or disturbing the peace; and (iii) convictions for misdemeanors where the date of conviction or the completion of incarceration (whichever is later) occurred five or more years from the date of the application (unless there was an intervening conviction). Staffing personnel and hiring managers also should understand that they are never permitted to require an individual to provide a copy of his or her own CORI.
  • Employers should ensure that all practices and policies comply with DCJIS regulations, when issued.

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Human Resource Department: 10 Tips to Operate Without One

How do you effectively operate your business without a formal Human Resource Department?  After all, aren’t those folks in HR the “people people” who handle all those employee issues while the rest of us do the real work?  Aren’t they the experts on pay, benefits, compliance, and forms—something the rest of us would never dare to touch?

A well run Human Resource Department can provide an organization tremendous value with their expertise.  Having someone to lean on to handle the difficult employee and legal issues can provide any manager peace of mind.  However, some companies are just too small to afford a dedicated department while others believe they can operate just fine without HR.

So how do firms successfully manage without a formal HR group?  Here are 10 tips:

  1. Give managers the authority to make HR decisions: when situations occur, managers must be able to act, without the need to have to kick a decision upstairs.
  2. Encourage innovation: productivity improvements can only occur with a steady stream of new ideas come from the people closest to the operation.
  3. Train managers in their new responsibilities: before you can hold managers accountable for hiring,  retaining, and motivating their staff, you have to train them on how to do it.  These are complicated concepts, so education is key to a successful transition.  You need to prepare your managers first.  If you just dive in, you’ll probably  make mistakes.
  4. Hold managers accountable for workforce decisions: without accountability, nothing good happens.  Hold the managers accountable for hiring      quality staff, retaining good employees, increasing productivity, etc.  And when good things happen, reward them.
  5. Develop systems that promote consistency: without consistency, productivity, morale and profitability will dip.  Develop good systems and standards, encourage lots of communications between the      managers, and follow your procedures.  When deviations from procedures do occur (and they will), make sure everyone knows why.
  6. Know the law: state and federal laws change frequently.  Have an outside expert regularly monitoring regulations that can impact your workplace.
  7. Use an outside expert to handle thorny  workforce issues: no matter how skilled your staff may be, there are  going to be times when you need specific expertise.  You don’t want a manager guessing about      how to handle a sexual harassment investigation.
  8. Utilize experts to help with problems  and to train and coach your managers: to ensure that your managers  have the skills to do handle their new responsibilities, get them the needed expertise.
  9. Address workforce issues immediately: when behavior issues are handled right away, there is far less stress for the managers and fewer concerns for error and lawsuits.
  10. Involve your employees: employees are a vast resource that when tapped can offer an abundance of ideas.

Operating without a HR department is not easy.  For smaller organizations there is little choice.  Regardless, preparing your organization and managers to directly oversee their workforce can be positive for all.  Training, systems, accountability standards, outside expertise and the commitment to make it work is the formula to bringing your workforce closer and focusing your managers on your most important asset—your people.

(This article was part of my regular column in the York County Coast Star, November 17 2011 edition)

 

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