The SESCO Report – September 2015
Employee Handbooks: 2016 Required Changes
If your employee handbook hasn’t been updated in the past 12 months, it’s out of date. For example:
• Is your at-will statement an invitation to a massive NLRA lawsuit (based on the surprising NLRB ruling)?
• Do you realize that you can’t prohibit discussions on pay and benefits?
• Have you provided clear rules on overtime and off-the-clock work?
• Have you updated your FMLA policy to reflect same-sex marriage couples’ rights to FMLA leave? Do you know which same-sex marriages are considered valid?
• Have you changed your handbook to reflect the latest DOL rules on nursing mothers?
• Have you updated your leave policies to include time off for employees with relatives in the military … or to prohibit moonlighting while on FMLA leave?
• Have you changed your ADA reasonable accommodations policy to include accommodating pregnant employees?
• Do you have a loyalty, no-gossip or civility statement that could land you in court?
Your employee handbook can be an invaluable organizational tool … or an employment lawsuit waiting to happen. And in recent years, Congress and state legislatures have been busy enacting laws that directly affect your employee handbook. Contact SESCO to request a review and update to this critical document.
Top 5 HR Mistakes Employers Make and How to Avoid Them
Failing to effectively communicate with your employees isn’t just bad for business. It also can create a work environment that’s ripe for legal trouble. If you take time to communicate, explain your actions, stay involved, and make the workplace seem rational to employees, you will increase your chances of staying out of the courtroom.
Below are five of the most common errors that land employers in court—along with tips on how to avoid making them in the first place. As you’ll see, communication lies at the heart of all of them.
1. Failing to document performance issues. Remember this: Arbitrators,judges and juries will believe one document over 10 witnesses. Your documentation doesn’t have to be formal or perfectly written, but it does have to be understandable, contemporaneous—and dated! Many employment cases—especially those involving retaliation claims—hinge on timing issues alone.
If the offense is not egregious, follow a progressive disciplinary process. Judges and juries appreciate when the employer can show it bent over backward to try to save an employee. And while not critical, obtaining an employee’s signature on documents involving progressive discipline can be very helpful.
2. Failing to have effective policies and preventive measures. In today’s environment, the best way to limit your exposure to employment claims is to have policies on workplace harassment, FMLA leaves, workplace violence, and standards of conduct. They’re critical.
Before putting such policies in place, it’s always a good idea to seek legal counsel from SESCO to ensure they are drafted correctly and that you have covered all the bases.
For example, standards of conduct must preserve an employer’s ability to be flexible. Harassment policies need to include information about the proper method to report violations if employees experience or witness harassment in the workplace.
Job applications and employee handbooks also can be great tools to help avoid employment claims. They are the employer’s two best friends. On job applications, courts have upheld provisions addressing at-will employment and the right to check with prior employers for references. Your handbook can include a mini-statute of limitations, restricting the period of time that employees can file employment claims against the company.
3. Failing to provide accurate, honest performance reviews. At many wrongful discharge trials, the plaintiff’s first exhibits are recent performance evaluations—almost always showing good, if not excellent, performance.If evaluations inaccurately reflect good performance,employees will often argue that their termination from a company was illegal or discriminatory.
Hold supervisors accountable for the accuracy and timeliness of their performance evaluations. Make sure the forms themselves encourage frank and constructive criticism.
For example, some forms have a checkbox format that allows managers to select general performance descriptions such as “meets expectations” or “exceeds expectations.” With those options available, managers rarely check “does not meet expectations.” If they do, it raises questions about whether the employee should be working at the company in the first place and whether the supervisor is doing his job. Avoid generic forms that tend to result only in positive reviews. Where possible, tailor evaluation tools to the specific job and use objective criteria and metrics to measure performance.
4. Failing to explain a termination decision. Employers that are afraid to tell employees why they’re being terminated are opening themselves up to legal action.
Tell the truth when you’re letting someone go. Don’t try to soften the blow by waffling about the reason for the termination, implying that it’s not his fault, or that he’s simply being “laid off.” Failing to be up front with an employee you’re terminating is a cardinal sin of management.
Worse is refusing to give any reason at all. Chances are good the employee will seek answers at an attorney’s office.
5. Creating a perception of favoritism. Employees get disillusioned and angry when their work environment becomes stressful because favoritism is the rule of the day. When workers believe that favoritism is driving a manager’s decision-making, turning to legal counsel or a labor organization for protection is often the next step.
To avoid this, it’s critical to train frontline supervisors to maintain consistency and clarity in personnel actions. They must know how important it is to be clear about why they are doing things the way they are. Monitor supervisors’ performance to make sure they’re not creating the perception of favoritism—or worse, discrimination.
1. Conduct an annual audit of systems, practices, and documentation.
2. Train managers on basic HR do’s and don’ts.
Special Thanks to New SESCO Clients!
Ted Russell Ford-Isuzu
Johnson City Kubota and Equipment
Johnson City, TN
The American Association for Laboratory Accreditation (A2LA)
West Point, VA
John Roberts Nissan
John Roberts Toyota
Lighthouse Independent Living
MedNorth Health Center
Draper Mercantile, LLC
SESCO Client Feedback
“Joel gave our group leaders tools to better manage their employees.” ~ Amanda Lowe — OTICS USA
“Joel helped to empower our managers to make better hiring decisions and how that is important to their store and company. Very eye opening experience for them. SESCO is relatable and uses real world examples on issues. They listen to questions and don’t make clients feel silly for asking. Very professional and knowledgeable.” ~ Vanessa Perry, HR Manager — Meade Tractor
“Joel is very responsive and thorough.He does a great job for us. SESCO is excellent.” ~ Birmingham Green
“Jamie was exceptional. Our members were extremely happy.” ~ National Pawnbrokers Association
“Very helpful with all of our questions. SESCO provides excellent service.” ~ Brandi Kinzer — Blue Ridge Automotive Group
Preventing Inappropriate Workplace Behavior
No matter how large or small, all organizations must develop clear and effective policies and practices to not only ensure excellent employee performance but also to prevent inappropriate and even unethical or illegal workplace behavior. Most performance and behavioral issues can be addressed by:
1. Developing and implementing best practices/systems.
2. Articulating best practices/systems and performance expectations.
3. Holding employees accountable through day-to-day coaching as well as annual performance management reviews.
4. Effectively rewarding (compensation increase and appreciation) or addressing poor behavior (progressive discipline).
SESCO Management Consultants has established the following best practice recommendations to prevent unwanted workplace behaviors:
1. Employee Handbook – The employee handbook is the cornerstone of the employer-employee relationship. It serves two (2) primary purposes including:
• What the employee and their family can expect from the organization.
• What the organization, in return, expects from the employee.
A well-drafted, compliant handbook is much more than a list of rules and policies. It includes a number of sections/policies that are important to both the employee and their family as well as a number of policies that properly inform and educate the employee of the organization’s expectations and practices. No organization is too small to implement such a system.
2. Job Descriptions – The job description undergirds the employee’s performance on a day-to-day basis. A welldrafted and compliant job description will articulate very carefully not only the essential job duties, but also the standards by which those job duties must be performed. Job descriptions and subsequent articulated expectations must be measureable where possible. SESCO’s recommended job description contains a comprehensive performance management template built in.
3. Effective Leadership – Effective leadership is required for the first two (2) systems to be effective. Effective leadership includes day-to-day coaching, communication, support, training, and assistance. A leader’s primary role is to ensure the success of their staff on a day-to-day basis. If staff are successful in performing their responsibilities and duties, then the organization will be successful and profitable.
To prevent unwanted workplace behavior, systems must also include expectations in terms of ethical and compliant behavior. SESCO employee handbooks and job descriptions contain a number of policies and statements as relate to business ethics, confidentiality, code of conduct, and other workplace behaviors that are not only expected, but also prohibited.
Finally, ensure that all systems, practices and expectations are thoroughly reviewed with all new employees as well as current employees on a regular and ongoing basis. This communication and accountability process will establish a workplace culture that supports systems and leadership practices. Without this ongoing communication effort, management will be constantly correcting inappropriate behavior and unwarranted practices.
SESCO’S Checklist for Effective Workplace Behavior
• “The 10 Commandments of Good Business Practices”
• “Equal Employment Opportunity and Harassment”
• “Employee Performance Evaluations”
• “Employee’s Responsibility to the Company”
• “Conflict of Interest”
• “Statement on Confidential Information”
• “Statement on Proprietary Information”
• “Statement on Email/Internet Use/Social Media”
• “Code of Conduct”
• “Code of Ethics”
• List of job qualifications (experience, education, skills required to be qualified for the position)
• List of essential job responsibilities
• Job responsibilities defined to include standards, performance and conduct
• Job description with built-in performance management tool
• Five (5) formal communication programs (daily or weekly staff meetings, quarterly business updates, employee survey, round table or lunch meetings with owners, suggestions system, appreciation and reward program)
• Leadership skills/training and development (ongoing)
• Pro-employer/employee culture
• Psychic compensation – express appreciation and interest in employees
on a daily basis
As you challenge your current systems and practices, SESCO would welcome the opportunity to provide assistance as
SESCO Client Inquiry — Staff Response
Question: How much income can I make without affecting my Social Security payments?
Answer: If you work, and are full retirement age or older, you may keep all of your benefits, no matter how much you earn. If you’re younger than full retirement age, there is a limit to how much you can earn and still receive full Social Security benefits.
If you’re younger than full retirement age during all of 2015, we must deduct $1 from your benefits for each $2 you earn above $15,720.
If you reach full retirement age during 2015, we must deduct $1 from your benefits for each $3 you earn above $41,880 until the month you reach full retirement age.