I was talking with our accountant this week when he told me that they had just hired a new staff member in their office and how much time and energy went into finding the right person. In the middle of our discussion he told me that he didn’t know about Availability’s Permanent Placement (Direct Hire) Service. That made me think that this would be a good time to lay out the benefits of using a service like Availability for filling your permanent job openings.

When a company is hiring on their own it can be a costly and time consuming process to find the right person to fill a position. Often the process can overwhelm the resources of the office. The decision to manage this process internally or to partner with a firm such as Availability often comes down to one issue – cost.

When calculating the cost to hire it is important to include several factors:

Sourcing – The cost to source a candidate will likely include the cost of print or online job board advertising, job fairs, referral programs, etc.

Screening – These are costs in dollars and time that your internal staff expends to source and screen oftentimes hundreds of resumes.

Interviewing – The cost of your staff conducting phone interviews as well as the time they spend away from their core responsibilities preparing for and conducting face-to-face interviews with candidates who may or may not be a good fit.

Testing – the cost to assess a candidates skills, abilities, aptitude, attitude, etc.

Hiring – the cost of negotiations, background checks, reference checks and drug screens, etc.

In addition to the above there are other variable costs such as the time it takes to fill the position and the risk of hiring the “wrong” person and having to start the process all over again.

Utilizing a partner such as Availability allows you and your staff to focus your time and resources on the aspects of the business that make the business money - the core aspects – while Availability manages the search for your qualified candidates.

We present for your review only those candidates that are qualified for your position based on your specific requirements – including salary level.

Availability already has one of the best pricing plans in the industry and NOW through the month of March we are offering a 5% invoice discount on permanent placements.

There are no fees to you unless you hire one of our candidates – and all placements are backed by our satisfaction guarantee.  You have nothing to lose.

Place your direct hire needs in our hands – you will be glad you did.

Payroll & Tax Record Retention Guidelines

ERISA:  Employee Retirement Income Security Act
FLSA, EPA:  Fair Labor Standards Act, Equal Pay Act
FMLA:  Family & Medical Leave Act
ADEA:  Age Discrimination in Employment Act
IRCA:  Immigration Reform & Control Act
Title VII, ADA:  Civil Rights Act, Americans with Disabilities Act
Source:  Bradley University, Foster College for Business Administration

Availability, Inc. is a leader in professional office staffing in the Greater St. Louis Area. Our staff stays current on state and federal employment laws and issues through continuing education, employment law courses and membership in the American Staffing Association. Our clients rely on us to help them stay up-to-date on changing federal and state employment laws.  This list offers guidance on how long to retain records by law.  Other requirements may apply to your business – be sure to check all applicable federal, state and local laws, and consult with legal counsel and your accountant for tax and other regulations.

Reporting is required to begin with the first payroll of 2012.

According to the IRS, there are certain provisions providing transition relief for certain employers and with respect to certain types of employer-sponsored coverage. Those employers to which additional transition relief applies (which includes smaller employers that file fewer than 250 2011 Forms W2) will not be required to report the cost of health coverage on any required forms furnished to employees prior to 2014.

This reporting requirement is only applicable to group health insurance, the term “applicable employer-sponsored coverage” does not include any coverage under separate policy which provides benefits for treatment of the mouth or for the eye (dental and vision).

For more information on regarding the Affordable Care Act, you can consult these sites:

http://www.irs.gov/pub/irs-drop/n-11-28.pdf

http://www.irsvideos.gov/Webinars

http://www.irs.gov/newsroom/article/0..id+237894.00.html

Availability, Inc. is a leader in professional office staffing in the St. Louis region. Our staff stays current on state and federal employment laws and issues through continuing education, employment law courses and membership in the American Staffing Association. Our clients rely on us to help them stay up-to-date on changing federal and state employment laws. This information is not intended nor should it be used as a substitute for legal advice or opinion.

 

With the seemingly endless reports of workplace sexual misconduct and discrimination in the news today, a company must do better than the “Hope” system to avoid workplace lawsuits. Here are six tips that you can implement now.

. A swift, accurate and appropriate resolution of harassment complaints can limit your damages when harassment is alleged. 

 If you act quickly to resolve harassment complaints you may be able to avoid liability for claims, particularly those involving hostile work environment.

1. Be Responsive to Complaints

When employees complain, they want the situation fixed, so be responsive and act quickly – preferably within 24 hours if possible.

• Remind the person being interviewed that retaliation for participation in the investigation is prohibited and that any retaliatory behavior should be reported immediately;
• Be and appear as nonjudgmental and objective as possible;
• Ask open-ended questions and do not suggest answers to questions;
• Get as much detail as possible, focusing on the specific facts of what happened when, where, and how often;
• Do not show outrage or dismay at any answer (this may cause interviewees to change their stories);
• Do not promise complete confidentiality or anonymity, or that punishment will be less severe if the employee admits inappropriate behavior;
• Document as much as possible about the interview, including the person’s answers, demeanor, gestures, accuracy of memory, and overall credibility, and where possible, obtain written statements signed by the witnesses.

In cases where physical violence or sexual assault are alleged, the employer should inform both parties that reports will be made to the appropriate legal authorities.

2. Discipline Any Supervisor or Manager Who Dropped the Ball

In these situations there is usually someone who observed the inappropriate conduct/language/jokes but did not intervene, or someone who sat on a complaint without reporting or taking action, or someone who made a decision without using correct procedures.  If this is found to be the case, the individual(s) should be identified and disciplined.

3. Proper Discipline for the Harasser

Most employers follow their normal progressive disciplinary system and utilize the following actions, either alone or in combination:

• Corrective counseling.  Counseling is most appropriate for first incidents of harassment involving relatively minor violations of policy, such as an inappropriate comment or offensive joke.  In addition, when the evidence is inconclusive, the employer can use counseling as a proactive way to call attention to the organization’s harassment policy.
• Harassment training.  Training often is used in combination with other disciplinary measures to reinforce the organization’s harassment policy.
• Oral reprimand.  A reprimand is a more formal step than counseling and reinforces that the harassing behavior is a policy violation and must not recur.
• Written warning.  Written warnings usually are issued for more serious forms of harassment and are the last step before a suspension or termination.
• Transfer or reassignment.  This action is appropriate when the instances of harassment are severe and the harasser and complaining employee work in close proximity.  Some employers will transfer or reassign the complaining employee, but this action can be viewed as retaliatory if the complaining employee appears to suffer a demotion, pay decrease, or other adverse employment action (see note 22, below).
• Suspension.  A suspension is used as a final warning before termination and is reserved for severe harassment or repeated policy infractions.
• Termination.  Termination should be reserved for severe examples of harassing behavior, such as quid pro quo harassment (where a supervisor asks for sexual favors in exchange for some action, such as a promotion, see note 15, below) or when the employee has already been disciplined for harassment and the behavior has continued.

Of course, for any discipline short of termination, the harasser also should be warned that further incidents will not be tolerated and will result in additional disciplinary action.

4. Maintain Great Documentation

Plaintiff attorneys don’t like to see any of the following so it’s a good bet you should have them:

• Notes of complaints and meetings
• Written documentation of all allegations including dates reported and corrective action taken

5. Disown the Bad Conduct

Formally disown the conduct, preferably in writing.

“X conduct is against the policy and values of our company.
Thank you for reporting this.”

Never permit retaliation against the person making the allegations.

6. Show Candor and Empathy

Be clear: “We do not condone this conduct.  We feel terrible about it. This is how we fixed it.”

Additionally, your harassment policy and procedures should also contain the following three elements:

1.      A strongly worded policy prohibiting harassment, encouraging complaints and prohibiting retaliation.

2.      Training for all employees and supervisors about the policy.

3.      A complaint procedure to investigate and resolve complaints in a timely fashion.

By taking these actions, you can both help prevent liability for harassment and just as importantly, create a productive work environment.

Availability, Inc. is a leader in professional office staffing in the St. Louis region. Our staff stays current on state and federal employment laws and issues through continuing education, employment law courses and membership in the American Staffing Association. Our clients rely on us to help them stay up-to-date on changing federal and state employment laws.  This information is not intended nor should it be used as a substitute for legal advice or opinion.

That puppy was Gus – a 50 pound fuzz ball.  On the ride home from the card game he flattened himself out on the floorboard of the truck with his head wedged under the seat – we quickly learned he did not like car rides.  We got him home and introduced him to the other four legged members of our family – our bird dogs – Duke & Jake, our Labrador Grace and our cat Zeke.  They were not impressed – their looks seem to say “oh great – a baby”.  Gus tried his best to keep up with the others but he was all feet and legs and was often left behind.  It didn’t take long however for him to grow into his feet and then he was keeping side by side with the other dogs running around patrolling the farm.  He and Zeke became unlikely friends; we’d often find Zeke curled up on top of Gus on cold mornings.  Gus would patiently wait while Zeke ate his cat food – smacking his lips waiting to get whatever was left over but never nudging Zeke out of the way.

About a year after Gus came to live with us he disappeared.  We went in to dinner around 6 p.m. one summer evening and when we finished eating and went back outside Gus was gone – he had simply disappeared.  We couldn’t accept that he was gone.  We combed the “neighborhood” (we live in farm country and the nearest neighbor is ½ mile away). We made copies of Gus’s picture and took flyers around to all the neighbors within a 10 mile radius and to all of the veterinarian clinics from Carrollton to Alton to Jacksonville IL.  Every night we would walk around the farm calling his name hoping he would come bounding up.

One evening after work we took the flyer to a house where we saw a young boy mowing the lawn.  We pulled up in our SUV with the dark tinted windows, rolled down the window, held out the flyer and asked the boy,  “Have you seen my dog?  He’s missing.”  The look on that little guys face!!  We instantly realized how it must look and that the boys’ parents had taught him well – do not approach strangers asking you for help finding their dog!  Since he was a smart young guy and wouldn’t approach our car we told him we were dropping the picture on the driveway and asked him to please pick it up after we left.  We went away thinking we would probably hear from the boys parents later.

Well, we didn’t hear from his parents but that stop was to be important in getting our Gus back home.

One night some neighbors were having a hayride at their farm down the road from our house.  There was an old abandoned house on the property and the owner went inside just to check on things – make sure everything was ok, and what he found surprised him.

The next morning we got a phone call asking if we had lost a dog!  YES!!  The farmer then told us his story of going into the old house and shining the flashlight up the stairs and seeing…..GUS!  He said he didn’t know who was more surprised – him or Gus.  He said he had a hard time getting Gus to come down the stairs (he didn’t like stairs anymore than riding in cars).  When he got Gus out of the house, the little boy of lawn mowing fame told him, “Someone was at my house looking for that dog, we have his picture!”

He told us he got our phone number off of the flyer the boy gave him, that Gus was at his house and we could pick him up.  It was a good day.  Gus was as happy to see us as we were to see him.  When we picked him up it was evident that he had been bathed and well fed during his adventure.

He had been missing for 38 days.

It is still a mystery how he came to be in the old house but we have a theory.  The neighbor living closest to our farm had a party the weekend he went missing – and another party the weekend he was found in the old house.  We think someone from the party ‘kidnapped’ Gus the weekend of the first party and brought him with them to the second party, and to keep him from coming home they stored him upstairs in the old house knowing he wouldn’t go up or down the stairs on his own and thinking no-one ever went in the old place.   We imagine they were surprised to find out he had been rescued and returned home.

Gus made us smile every day.  When we would get home from work he would meet us at the car all excited to see us.  He would take off running as fast as he could all around the yard, up onto the porch around the house and back to us where he would promptly drop in front of our feet and roll over on his back wanting his belly rubbed!  To see a 150 pound full grown St. Bernard running around at full speed is quite a site.  It never failed to make us laugh.

Many times we would see him just sitting in the yard staring out over the fields with (seriously) a smile on his face or he would be standing neck deep in the lake keeping cool on a hot day.  At those times we imagined him to be thinking how happy he was to have such a great home.

Gus passed away early this morning.  We have many good memories and will miss him.

 Sir Gus Van Linder “Gus”

December 1, 2001 – October 29, 2011

When providing an employment reference you can’t get in trouble if you only confirm an employee’s position, salary, and dates of employment, right?  Maybe.  But, you could be hurting your former employee’s chance at a new job and doing a disservice to other employers. 

With the current unemployment rate, the employers that are hiring have more candidates than ever to choose from, many that have stellar work histories and resumes.  As a result, a positive, honest assessment of a worker’s abilities from a previous employer may be a deciding factor in who gets the job offer.

Yet, when asked to provide a reference for a former employee, many employers limit their response to position, salary, and dates of employment. While this approach may limit your liability for defamation claims, these policies can punish good employees by limiting their managers’ ability to provide an honest appraisal to prospective employers, and may make it easier for individuals with poor performance or other problem behaviors to be passed on to an unsuspecting organization.  It could even result in claims of providing negligent references if you conceal documented information about an employee.

Yes, there are legal risks to giving references but you have several defenses against these claims, including truth, privilege, and waiver.  Many states have laws that protect employers when they provide truthful, good faith job references.  Therefore the advantages of a more liberal, but legally sound, policy may outweigh the liability risks.  And with more employees laid off for economic reasons versus performance problems, a shift in policy is important.

Defamation, Negligent Reference Claims Raise Concerns

There are many legitimate reasons to be concerned about lawsuits that can result from providing inaccurate references and fear of them causes many employers to set reference policies that are impractical and unhelpful to both employees and their prospective employers.

One concern is fear of charges of defamation.  Defamation is the act of harming another’s reputation by libel (in writing) or slander (verbally). An employer could be liable for defamatory post-employment references if a company official provided statements that they do not have documentation to support.  Additionally, individuals making the comments can be held personally liable for defamatory remarks.

There are ways to defend against these claims however.  First, truth is the best defense against any defamation claim and, you can rely on “qualified privilege”.  “Qualified privilege” means that post-employment references are not defamatory unless the employer knowingly discloses false information or makes the disclosure regardless of the employee’s rights.  “Good faith reference” laws in many states (including Illinois) protect employers who give truthful references.  These laws vary, but generally, the employer is not liable if the reference was given in good faith and without malice.  The laws typically impose certain restrictions on the references in order for the protections to apply, such as requiring that the reference request and response be in writing.  You should be aware that “good faith reference” laws are only a defense and cannot prevent a lawsuit.  These laws are not a substitute for following your policy and procedural safeguards, such as requiring a signed consent form prior to providing references.

If you give too little information or “gloss over” problem areas, you may trigger a different risk – a negligent reference.  For example, an anesthesia group terminated a physician for on-the-job drug use that, as stated in its termination letter, “put patients at significant risk.”  They later provided a glowing reference for the physician.  The group’s statements that the terminated physician was an “excellent anesthesiologist” when it recommended him highly were “false” and “materially misleading” according to the court.  As a result, the group was liable to the hospital that hired him after a patient was permanently injured by mistakes the anesthesiologist made when he was under the influence of drugs.

You may be able to prevent claims of negligent references by providing truthful, factual responses to questions from prospective employers where the facts have been accurately documented in the employee’s personnel file.  Additionally, the information should be disclosed if the employee would be in a position to repeat the harmful behavior.  However, if the employer is not sure about a former employee’s involvement in an injurious act, it should only confirm that it would not rehire the employee.

Three Reasons to Give References

There are benefits to providing useful and balanced references, including:

1.     Cutting your unemployment compensation costs.  Restrictive reference policies make it difficult for unemployed former employees to find new jobs if they cannot prove their past performance and qualifications.

2.     Building goodwill with former employees.  If your former employees know you are going to be fair and evenhanded in your references, they will be appreciative and may help build up your reputation both with other employees and with business partners.

3.     Other employers may take notice of your policies, and if you give better references, you might get more helpful ones in return.

Eight Practical Tips for Providing References

If you are willing to accept the challenge of giving accurate references, there are several steps you can take to limit potential legal risks and ensure consistency when you give references.  Here are eight tips that will help you provide fair and accurate references:

1.     Establish and follow a policy on giving references.  Share your organization’s policy on past-employment references with all employees.

2.     Obtain the employee’s written consent to give references to all prospective employers.  If the employee does not provide the written consent, you should not provide a reference.

3.     Explain your reference policy during the exit interview.  You should explain that any information disclosed is supported by the employee’s personnel records.  You should also be honest with employees about the real reason for an involuntary termination so that later references will not be a surprise.

4.     Use standard form letters of recommendation for employees terminated by layoffs or reductions-in-force.  For each employee, state the business-related reason for the layoff or reduction-in-force and note that this does not reflect the employee’s job performance.  The letter should indicate that affected employees were given the form letter and that the employer will release further information with the employee’s express, written consent.  Once the employee has given consent, any specific job performance information should be communicated directly to the prospective employer.

5.     Verify the reference checker.  When contacted for a reference, take the requester’s name, company, and phone number and call back to verify the legitimacy of the request.  If you do not think a request is valid, you should refuse to respond and then document your reasons.

6.     Review the employee’s personnel file before answering the reference request. All remarks made should be supported by the records in the employee’s file.

7.     Answer only the questions the prospective employer asks.  Do not volunteer information and limit remarks to truthful, objective, and well-documented information from the employee’s personnel file – such as dates of employment, positions held, earnings, eligibility for rehire, job performance, qualifications and skills, work habits, and behaviors, reason for leaving, and documented performance problems, misconduct, or policy violations.

Topics to avoid include protected class membership (age, race, religion, national origin, and disabilities), medical/health issues, personal or confidential matters that are not job-related, and any subjects prohibited by your reference policy.  In addition, you should consult legal counsel before providing references for employees who have violent tendencies, have been terminated for gross misconduct (such as theft, drug use, or sexual harassment), or have made legal complaints against the organization.

8.     Document, document, document.  After giving verbal references, document the questions and your responses.  Make sure that you have adequate records of the reference conversation in case you have to recreate it at a later date.  If you respond in writing, retain a copy for your files.

Give References That You Would Want to Get

As with many decisions, you have to weigh the risks of providing meaningful references against the possibility of legal liability.  You can be risk-averse and give only limited references that simply verify employment.  Or, you can be more proactive and provide information in a legally sound manner by incorporating the eight steps listed above.

Availability, Inc. is a leader in professional office staffing in the St. Louis region. Our staff stays current on state and federal employment laws and issues through continuing education, employment law courses and membership in the American Staffing Association. Our clients rely on us to help them stay up-to-date on changing federal and state employment laws.  This information is not intended nor should it be used as a substitute for legal advice or opinion.

The content of the notice states that employees have the right to act together to improve wages and working conditions, to form, join and assist a union and to bargain collectively with their employer.  The notice also provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.  Very little of the notice is dedicated to informing employees of their rights to refrain from or not participate in the union-related activities described in the poster; the burden falls on the employers to inform their employees of their right to say “no” to unions or unionization and explain the advantages of remaining union free.

According to the NLRB website “The posting requirement applies to all private-sector employers (including labor unions) subject to the National Labor Relations Act, which excludes agricultural, railroad and airline employers.  In response to comments received after the proposed rule was announced, the Board has agreed to exempt the U.S. Postal Service for the time being because of that organization’s unique rules under the Act.  The rule applies to all employers subject to the Board’s jurisdiction, other than the U.S. Postal Service.  The Board has chosen not to assert its jurisdiction over very small employers whose annual volume of business is not large enough to have a more than slight effect on interstate commerce.  The jurisdictional standards are summarized in the rule.”

The NLRB is requiring employers to post the 11×17 inch notice where other workplace notices are typically posted and if personnel rules and policies are usually posted on an intranet or internet site employers must post the notice there as well.

On request the NLRB will provide copies of the notice at no cost to employers, or employers can download  the notice from the NLRB website or purchase from an outside supplier.  

The NLRB admits to lacking the authority to levy fines against employers who fail to comply with the new posting rule; however they have asserted that failure to post the notice could be treated as unfair labor practice under NLRA and they could also treat an employer’s failure to post the notice as evidence of an employer’s unlawful anti-union motive in the event of an unfair labor practice lawsuit.

Employers should consider available options for communicating with employees about their rights under the NLRA before the rule takes effect – such as the right to refrain from union organizing activity – and should seek legal counsel to ensure that any such communications comply with the law.

We would like to know what you think.   Are the new rules, regulations and changes coming from the NLRB helping or hurting business and/or job growth?   Please leave your reply below.

Availability, Inc. is a leader in professional office staffing in the St. Louis region. Our staff stays current on state and federal employment laws and issues through continuing education, employment law courses and membership in the American Staffing Association. Our clients rely on us to help them up-to-date on changing federal and state employment laws.  This information is not intended nor should it be used as a substitute for legal advice or opinion.

The smartest investment you can make is in hiring top performing employees. Here’s how we can help ensure your success:

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The biggest mistake most employers make is rushing the hiring process. By using temporaries to fill-in until you find the right job candidate, you can avoid making costly mistakes.

For the finest clerical, financial and medical office personnel, call us today at 618-465-6449.

Three recent cases suggest that the NLRB is recognizing that employee social networking activity is not “protected concerted activity” and such activity is not without reasonable limits. This can be reassuring to employers that the NLRB now appears to be saying that simple online personal attacks posted outside the workplace are not guaranteed protection under federal labor law.

The NELP report claims that a number of heavily trafficked job posting websites included ads stipulating that applicants “must be currently employed”, although they did not disclose any actual examples of ads that were posted.

The Fair Employment Opportunity Act would make it unlawful to refuse to consider hiring an individual based on their status as unemployed; to limit, segregate or classify individuals in any manner that may limit their access or consideration of jobs because of their status as unemployed; or to publish, in print or on the internet or in any other medium, an advertisement or announcement for any job that includes any provision stating or indicating that an individual’s status as unemployed disqualifies the individual for a job, or any provision indicating the employer will not consider individuals for employment based on unemployed status.

The U.S. EEOC held a hearing earlier this year to determine whether employers are refusing to hire unemployed job seekers. According to the EEOC, such practices could violate EEO laws by having a discriminatory disparate impact on protected classes of unemployed individuals.

Employers are advised to review all job postings and practices, keeping in mind that considering an applicant’s employment status could be considered discrimination.

Please post in our comments section below if you have knowledge of any ads that specifically exclude the unemployed.  If passed, what impact do you think it will have on employers?