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Archive for October, 2018

HUMAN RESOURCES ROLE IN MERGERS AND ACQUISITIONS

Mergers and acquisitions are extremely challenging and even chaotic events.  Therefore, it is critical that everyone involved has a clear understanding of their role in the process.  Mergers and acquisitions have become the norm in the business world and are often necessary for survival.  Almost every major company in the US today has or will experience a major acquisition.  There is a subtle yet distinct difference between a merger and an acquisition.  A merger is when two separate companies merge into one new entity.  An acquisition is when one company buys the assets of another company.  A merger or acquisition can be desired due to many different strategic reasons including positioning in the market, acquiring another company’s areas of strength or expertise, acquiring capital, diversification and short-term growth.  There are several phases or steps in the acquisition process and human resources will typically be involved in at least 2 to 3 of these phases, including the due diligence and investigation process and the post-merger integration process.

The human resource role in the due diligence and investigation process is to perform a thorough review of all human resource contracts, benefit plans, plan documents, systems, personnel, employment records, all forms of compensation, policies and procedures, especially related to human resource regulations that relate to all human resource disciplines including compensation, benefits, recruiting, employee relations, training and development, and payroll and HRIS.  Human Resources will help to determine the organizational structure and staffing models for the new organization.  Some other important items that fall under the Human Resources umbrella are wage and hour or other compliance claims, employment litigations, collective bargaining agreements, any FMLA, OSHA, Workers Compensation, EEOC and OFCCP compliance issues.

Transition issues need to be discovered and addressed, for example, pay levels between the two organizations may be very different and a cost analysis may be needed to determine the cost of bringing pay levels more in line between the two merging entities.  Other transition issues that often need to be addressed are transitioning pay increase and performance review cycles, differences between benefit levels in health care and retirement plans.  Most items will need to be addressed immediately, and some items can be completed during the first or second year following the merger or acquisition.  For example, if the acquisition occurs in the first quarter and your merit increases are done in January, you may be able to wait until the following January for this transition.  Conversely, it will be highly desirable to transition the acquired entity employees immediately to your health and welfare plans rather than take on the administrative burden and ownership risk of additional plans.

Human Resources is also responsible for layoffs, stay bonuses, culture differences, and synergies and will play a key role in the orientation and welcoming of the new employees.  These are just a few key items on the Human Resources Acquisition Checklist.  And each item has its own list of key points and issues that must be addressed.  While most of the transition work will happen prior to the closing date, the job of transitioning employees into your policies, pay models, practices, procedures, and culture does not end at transition date and typically continues for 2 to 3 years following the transition date and requires continued review at the management level.

Change can be challenging and demanding.  With over 5,000 properties in our lodging compensation database, 150 casinos, and 125 hospitals and clinics, we regularly see properties being acquired, divested, and rebranded. Consolidations are occurring at a rapid pace in the healthcare industry as well with hospitals buying physician groups and primary care practices. There are numerous human resources concerns to address every time a property changes hands. WageWatch consultants can guide you through the process of integrating two or more compensation models, rebalancing grades and ranges, examining internal equities between plan documents, developing a market-based approach to resolving inconsistencies, and helping you along the way with all your transition needs.  For more information on our services, including consulting, salary survey data, benefit survey data and market compensation reports, please call WageWatch at 888-330-9243 or contact us online.

WHAT’S NEXT…JOINT EMPLOYMENT REDEFINED?

Joint EmploymentHave you noticed the flip-flop on Joint Employer Standards from the National Labor Relations Board (NLRB)?  Currently, the standards are in flux.  In 2015, the definition of a joint employer was modified and expanded based on the Browning-Ferris Industries case.  This case changed over 30 years of precedent that had required “direct” and “immediate” control over an employee’s working conditions to “indirect” and “potential” control as the new definition of joint employment.

Under the Browning-Ferris standard, even if two entities never exercised joint control over the essential terms and conditions of employment, and any joint control was not direct and immediate, there could still be joint employers based on: (1) the existence of reserved joint control, (2) indirect control, or (3) control that was limited and routine.  Browning-Ferris was considered controversial and criticized by many employers and business groups.

In December 2017, in an attempt to rein in what was perceived as a broad and vague standard, the NLRB re-established the pre-Browning-Ferris standard in the Hy-Brand Industrial Contractors case which returned the former joint employer test requiring “direct” and “immediate” control.

To the dismay of many in the business community, in February 2018, due to an alleged conflict of interest, the NLRB vacated the Hy-Brand case, leaving Browning-Ferris as the law of the land once again.  Prior to Browning-Ferris, the NLRB relied on decades of legal precedent to set the joint employment standard.

In May 2018, the NLRB announced its intention to clarify the joint employer standard by issuing a new rule to reinstate the pre-Browning-Ferris joint employer standard.  On September 14, 2018, the NLRB published a Notice of Proposed Rulemaking (NPRM) in the Federal Register regarding its joint-employment standard (allowing 60 days for public comments).  The proposed rule reflects a return to the previously longstanding standard that an employer may be found to be a joint-employer when the following condition exists:

    • A joint-employer of another employer’s employees exists only if it possesses AND exercises substantial, direct and immediate control over the essential terms and conditions of employment and has done so in a manner that is not limited and routine. 

 The 60-day period for public comments continues through November 13.  After the NLRB reviews the public comments and replies, it will issue a final rule regarding the joint employer standard.  If issued without substantial changes, this rule will provide employers with a more clear and consistent standard and reduce the likelihood of an employer inadvertently becoming a joint employer.

WageWatch offers accurate, up-to-date HR metrics, benefit survey data, market compensation data and salary reports that will allow you to stay current with the times.  This information is highly beneficial in creating the best salary and benefits packages that meet or rival the industry standards.  The PeerMark™ Wage Survey is the only Web-based custom survey tool that allows individual survey participants to select their competitive set for comparison purposes.  Our experienced compensation consultants can assist with your organization’s compensation needs.  We can help you ensure internal equity and compliance with regulations as well as help you structure your compensation programs to support your company’s business strategy and objectives.   For more information on our services, including consulting, salary survey data, benefit survey data and market compensation reports, please call WageWatch at 888-330-9243 or contact us online.

EMPLOYERS MUST START USING NEW “FEDERAL CONSUMER RIGHTS ACT” NOTICE

Effective September 21, 2018, the Fair Credit Reporting Act (FCRA) requires that employers that use a third-party consumer reporting agency, to conduct background checks on employee applicants, use the updated Summary of Your Rights Under the Fair Credit Reporting Act.  The new Summary of Rights Act was issued on September 12, 2018; employers were given very little time to comply with the act.

The FCRA requires that employers follow certain procedures before obtaining a background check by a third party reporting agency.  The employer must follow certain procedures if it decides not to hire the applicant (or take an adverse action against an employee) based upon a third party background check.  One of the procedures is to provide employees with their “Summary of Consumer Rights” under the FCRA along with the name, address, and phone number of the third-party agency that provided the information.  Failure to provide the correct notification can expose employers to legal risk, including class action litigation.

Employers will have to provide the new “Summary of Consumer Rights” form in any pre-adverse action notification that comes as a result of the background check.  They must also provide this notification before obtaining a background check if the report includes information stemming from personal interviews conducted by a consumer reporting agency.

The new rule requires that employers use the new “Summary of Consumer Rights.” This new model “Summary of Consumer Rights” requires that the rejected applicant be advised of their right to request that the third-party reporting agency provide the rejected applicant with a free “national security freeze.”  This freeze would restrict prospective lenders from obtaining the consumer’s credit report, thereby thwarting identify thieves.  The new model form can be found here.

Change can be challenging and demanding.  At WageWatch our compensation consultants can assist with your organization’s compensation needs and help ensure your wages and salaries are supporting your company’s business strategy and objectives.  In addition to our PeerMark Salary Survey for over 100 local lodging markets in the U.S. and Canada, we offer a National Benchmark Salary Survey. With over 9,000 hotels and 200 casinos in our database, WageWatch’s hotel and gaming salary surveys are the most comprehensive surveys available to Human Resource professionals.  For more information on our services, including consulting, salary surveys, benefit surveys, and custom compensation reports, please call WageWatch at 888-330-9243 or contact us online.

Guest Editor:  Pautsch, Spognardi & Baiocchi Legal Group LLP
www.psb-attorneys.com