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ARE YOU ATTRACTING TOP TALENT?

Attracting Talent

Many business owners find it to be a huge challenge to attract and retain a group of talented and hardworking employees that are loyal to the company and its mission.  Finding high caliber employees with advanced skills to complete important jobs within a company is a challenge that not only exists in today’s marketplace but one that business owners have had to navigate for years.  Everyone is looking for top talent, and those companies that excel in attracting and retaining this talent are the ones that will reap the rewards.  In addition to a number of other factors, businesses that best retain employees offer great compensation and benefits packages.

To retain talent, it is essential that loyalty is established.  In order to do this, the employee must feel that their job is instrumental in achieving the goals of the company, making them excited to come into work each day.  It is also important that the work the employee puts in is acknowledged, affirming their place within the company, and offering them opportunities for growth.

While compensation and benefits packages are one of the largest factors considered by employees, it isn’t enough to make top talent to stay. The following are a few ways that you can attract and retain the best employees at your company:

  • Promote open communication.  When a company is completely open with employees, everyone will feel respected.  Instead of allowing rumors to spread, let your employees know as soon as possible about anything that is going on in regards to the company.   When possible, let your employees be a part of the decision making process.  A culture of open communication is very attractive to employees.
  • Provide opportunities for team building.  Most employees enjoy interacting with their coworkers. By encouraging teamwork, employees are able to build great working relationships and establish a trusting, open environment for the company.  When working together toward a common goal, employees are more motivated and excited about their jobs, often producing excellent results.
  • Cater to individual work style.  Each employee has a different way that they prefer to work, learn and be managed.  When you as an employer take the time and effort to make adjustments for each employee’s needs, they will respect the company more and loyalty will, once again, be built.  This will also help you to establish teams that will work best together based on their work styles.
  • Acknowledge your talent.  When an employee does a good job, it is important that you recognize them for their efforts, so they feel that they are a valued member of the team.  A majority of employees leaving a company do so because they feel unappreciated.  Employees want to feel that the work they are doing is making a difference, so acknowledging their work often is essential.  Also, review surveys for 2013 healthcare compensation, 2013 casino compensation and other market compensation data surveys for your industry to determine what benefits and bonuses you should be rewarding your employees with.

Implementing the above suggestions will help your company to build a culture that encourages the retention of employees, which in turn will attract top talent.  In addition to providing a great work environment that respects employees and provides opportunities for learning and growth, it is also important that they receive a solid benefits package.  At WageWatch, we provide accurate data for hospitality compensation, healthcare compensation, casino compensation, and compensation information for a wide variety of other industries.  To learn more about our up-to-date market compensation surveys, call 888-330-9243 or contact us online.

HOW ABOUT A SIX HOUR WORKDAY?

Six-hour

Can a move to a six-hour workday increase productivity and the happiness quotient of employees and their families and at the same time increase productivity and company profits?   In the U.S., more than 60 years after workers, through their unions, began organizing for an eight-hour day in the 1860s, President Franklin D. Roosevelt signed the Fair Labor Standards Act in 1938 for all workers to see limits on working hours – initially, it was set at 44 hours a week, then reduced to 42 hours, and by 1940 the workweek was reduced to 40 hours.

Some businesses in Sweden have experimented with a six-hour workday with the hope of getting more accomplished in a shorter amount of time and ensure that employees have the energy to enjoy their private lives.   This change is purely experimental—one that has not been mandated by law nor implemented nationwide.

A Toyota vehicle service center in Sweden’s second-largest city, Gothenburg, moved to shorter days fifteen years ago.  The service center reported a happier staff, a lower turnover rate, and an increase in profits during that time.  The new system keeps the garages open longer and generates new business.  Employees are doing the same amount in the six-hour workday, often more than they did in the eight- hour day.  The service center reports that employees have more stamina to do this heavy work, and they have seen greater profits and customers because cars are getting fixed faster.

A high-profile case is the publicly funded Svartedalens nursing home in west Sweden.  They began a trial a six-hour day to determine if the cost of hiring additional staff members to cover the hours lost, was worth the improvements to patient care and the boosting of employees’ morale.   The nursing home had 80 nurses working six-hour shifts (maintaining their eight-hour salaries) while 80 staffers at another nursing home worked their standard hours.  Halfway through the test period, the nursing home with the six-hour workday had half the average sick leave, the nurses were happier, and the care was better.   The study, however, equates productivity with a quality of care, which doesn’t necessarily translate to white-collar work.

Several startup companies announced that they are testing the concept.  The companies include Background AB, a creative communication agency in Falun, Dalarna and Filimundus, an app developer based in Stockholm.  Linus Feldt, Filimundus CEO believes that staying focused on a specific work task for eight hours is a huge challenge.  During an eight or more hour workday, employees take frequent breaks and look for distractions and diversions such as social media to make the workday more endurable.  With the six-hour workday, staff members at Filimundus are not allowed on social media, meetings are kept to a minimum, and the company does it’s best to eliminate other unproductive distractions.

Most of the companies who have made the shift to the six-hour workday have reported a positive impact, from increased efficiency to better communication and fewer staff sick days.  A 2014 Stanford University research paper found a “non-linear” relationship between hours worked and productivity, as well as too much work, can impinge productivity.  According to a study by the Families and Work Institute, overworked employees make more mistakes.  Research has shown that condensing work into more efficient hours is very unlikely to hurt productivity.  There is no need to lower pay and in fact, companies are likely to save money through less sick and personal leave, less stress leading to better health, and lower turnover costs.

The six-hour workday would be less acceptable in the U.S. because the eight-plus hour workday ethic is so deeply embedded in our culture.  According to Gallup’s 2014 poll, full-time employees in the U.S. work an average of 47 hours per week.  However, even with encouraging results, it’s unlikely that the U.S. will shift to shorter days any time soon.  The rest of the world (outside of Europe) a 40-hour workweek would be a very nice improvement as well.

At WageWatch our compensation consultants are focused on your organization’s compensation needs and ready to help you ensure that your compensation programs are supporting your company’s business strategy and objectives. WageWatch also offers accurate, up-to-date benefit surveys, salary surveys and pay practices data 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. 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.

EFFECTIVE NEW HIRE ORIENTATION

New Hires

An employee’s experience during their first few days will affect the rest of their tenure.  It is critical, to begin with an effective, positive, and fun new hire orientation for the future success of your new employees.  Even before the employee’s hire date, you can make a positive impact with a call to the employee two or three days before their start date, welcoming them, letting them know what time to arrive, and what they can expect during their first day and first week on the job.  Studies show that a well-planned orientation can contribute to the length of employment, better work attitudes, more effective communication, and fewer mistakes.  Your new hire orientation is your chance to set a positive tone for a long-lasting and mutually beneficial relationship.

A new hire’s early experience is highly influenced by his peers, managers, subordinates, HR team members, and the organization’s top management.  Ensure that new hires are welcomed by their team members.  Plan a welcome breakfast meet and greet for their first morning on the job.  The new hire’s immediate supervisor should schedule daily meetings with the new employee at least for the first week, then at least weekly for the first month or two.  Schedule informational meetings with key people in the department and in other departments to provide the new hire with the general knowledge that they will need to perform their job.  Include an office tour in the orientation process that includes introductions.  Be sure to include introductions to top Executives, Human Resource personnel as well as receptionists, administrative assistants, and copy/mail room attendants.

An effective orientation program will put emphasis on the new employee, their individuality and what they have to offer rather than focusing solely on the company’s culture and how the new employee can fit in.  You are probably hiring in part to get new ideas into the organization.  Make sure to capitalize on that.  Make your orientation meetings fun and be sure to provide a meal or at least snacks.  Keep it interesting and not too long.  Too much information will be boring and will not be retained.  Orientation should reflect culture through interactive activities.  One way to make it memorable is to present the company’s goals, mission, and values in an activity form rather than simply providing the information.  Allow the new hires to get to know each other on a personal basis, not just professional – go around the room and have them tell one professional and one personal thing about themselves.  You can also turn this into a game by writing one thing about each person on a piece of paper.  In the end, state items one at a time, out of order, and have people guess who said what.

Promote communication with a team-building activity such as learning the employee handbook through a scavenger hunt.  For example, divide the orientation group into teams and see which team can answer the most handbook questions in a set amount of time.  Cover company ethics to let them know what is expected, and also include ‘unwritten rules’.  Don’t end there!  After orientation, schedule follow-up meetings with each new hire to elicit their feedback and answer any follow-up questions they may have.

Don’t forget the basics.  Provide them with all the office supplies they will need to start their job, include contact information they will need.  And let them know how to get additional office supplies.  Teach them how to use the phone, how to forward calls, set up and change voice mail, and how to do a conference call.

Today, many companies are adding programs such as flex-time, telecommuting as well as accommodating and encouraging alternative work styles in an effort to provide a work environment where employees are happier and thriving.  Therefore don’t neglect or underestimate how impactful beginnings are, and provide your new hires with an orientation program that is effective and unique to your company and its culture.

Implementing the above suggestions will help your company to build a culture that encourages the retention of employees, which in turn will attract top talent.  In addition to providing a great work environment that respects employees and provides opportunities for learning and growth, it is also important that they receive a solid compensation and benefits package.  At WageWatch we offer accurate, up-to-date 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.  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.

ASKING ABOUT SALARY HISTORY COULD SOON BE ILLEGAL

Banned-Sal Hist-B

Employers have asked salary-based questions as one method of gaining an accurate picture of an applicant’s qualifications for a position.  Federal laws do not prohibit requesting the information, however, there is a growing trend for some states or cities and counties to outlaw employers from requesting salary history.  Last February 2018, we published a blog focused on the states that have banned salary-based questions from job applicants; the trend to ban these questions has greatly increased and Congress continues to explore the ban on salary questions.  This post updates action taken over the past year.

With the objective of pushing to fight wage discrimination and the gender pay gap, a bill was recently introduced (February 2019) in Congress that would ban salary questions across ALL states.  The proposed Paycheck Fairness Act would prohibit employers nationwide from asking job applicants about their salary history and require employers to prove that pay disparities between men and women are job-related. The bill forces employers to develop salary offers based on job requirements and market pay levels rather than an applicant’s current salary or salary history, which may be lower than current market rates for some individuals’ skill and experience.  The proposed legislation would strengthen the Equal Pay Act.

The following states and cities or counties have banned salary questions by public and/or private employers:

STATE

CITY  COUNTY EFFECTIVE DATE

DETAILS

California State-Wide JAN 2018 All employers, including state and local government
Connecticut State-Wide JAN 2019 All employers
Delaware State-Wide DEC 2017 All employers, or an employer’s agent
Georgia Atlanta FEB 2019 City agencies
Hawaii State-Wide JAN 2019 All employers, employment agencies
Illinois State-Wide JAN 2019 State Agencies
Chicago APR 2018 City departments
Kentucky Louisville MAY 2018 Louisville/Jefferson County Metro Gov; City Agencies
Louisiana New Orleans JAN 2017 City agencies
Massachusetts State-Wide JUL 2018 All employers, state & municipal employers
Michigan State-Wide JAN 2019 State department & certain autonomous agencies
Missouri Kansas City JUL 2018 City may not ask applicants for pay history until they reach an agreed-upon salary
New Jersey State-Wide FEB 2018 State entities
New York State-Wide JAN 2017 State agencies and departments

New York City OCT 2017 All employers, agencies or employees or agents

Albany County DEC 2017 All employers and employment agencies

Suffolk County JUN 2019 Employers and employment agencies

Westchester County JUL 2018 Employers, labor organizations, employment agencies, or licensing agencies
Oregon State-Wide OCT 2017 All employers
Pennsylvania State-Wide SEP 2018 State agencies

Philadelphia TBD All employers

Pittsburgh JAN 2017 City’s agencies and offices
Puerto Rico Commonwealth MAR 2018 All employers

When an employer ceases to rely on salary history of an applicant, it requires making a clear, market-based case for pay, the challenge falls on the employer.  It will be important to create a salary range for each position and ensure that the variations within those ranges are based on things like merit, education, and experience.  Some companies welcome a strictly market-based approach to making salary offers as it has the ability to foster greater transparency.  Whether or not your jurisdiction is covered by the new laws, the trend is increasing and may soon impact your organization.

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.

EMPLOYER USE OF BIOMETRIC DATA

 

The value of biometric data is that it is impervious to abuse and falsification; it enables HR Professionals to accurately monitor employee attendance and ensure buildings are accessed only by authorized personnel.  It is easy to operate and reduces administrative time.
Biometric Data

Biometric data includes measurable human biological or behavioral characteristics that can be used for identification.  It includes fingerprints, voiceprint, retina or iris scans, and scans of hands or face geometry.  In the work environment, a common example includes the use of employee fingerprints to access facilities or clock in and out through timekeeping systems.  Buddy punching is a common wage theft problem when coworkers clock in for an employee who is not at work.  The American Payroll Association estimates that 75% of all businesses lose money due to buddy punching.
Healthcare has incorporated the use of biometric data.  In some hospitals, physicians access electronic health data via a finger or iris scanning biometrics security system.  Biometrics technology can be used for patient registration and identification to ensure that medical records are properly associated with each patient.  This technology can be especially helpful to identify a child and link to the appropriate medical record, especially when a child is not able to communicate.
The use of biometric data is becoming more common and laws are continuing to develop to provide more guidance to employers about proper ways to collect, store, and use the data.  Illinois was the first state to develop legislation by passing the Biometrics Information Privacy Act (BIPA).  The Act seeks to protect individual privacy and requires employers to adopt policies regarding biometric data collection and retention, obtain consent before collecting biometric data, and take steps to securely store and protect from disclosure any biometric information that is collected.  It is only in limited circumstances that an employer is able to disclose biometric information; an employer may not sell, lease, trade, or profit from any individual’s biometric information.  Recently (1/25/19), the Supreme Court of Illinois decided that private entities can be held liable for monetary damages for technical violations of BIPA.  Numerous entities (including hotels and hospitals) have been sued for technical violations with damages awarded to each technical violation.  The penalties of BIPA can range from $1,000 to $5,000 per violation and include attorney fees.
Since 2008 when Illinois passed BIPA, both Washington and Texas passed similar laws, however, BIPA remains the only law that allows private individuals to file a lawsuit for damages stemming from a violation.  Other states considering laws on biometric data include New York, Montana, Idaho, California, Alaska, Connecticut, New Hampshire, and Massachusetts.
In order to ensure that your company is compliant, it is important to review any applicable state and federal laws related to handling employee biometric information.  Obligations extend beyond employee information and include the handling of client or third-party biometric information.  These steps are important even if your state has not passed laws that affect the organization’s use of biometric data.
WageWatch offers accurate, up-to-date benefit surveys, salary surveys and pay practices data 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.  For more information on our services, please call WageWatch at 888-330-9243 or contact us online.

 

DRAMATIC CHANGES FOR PERFORMANCE MANAGEMENT

Organizations are exploring some new and innovative performance management systems in an effort to truly inspire and motivate their teams with some encouraging results.  Traditional performance management systems typically set goals related to the business plan, utilize performance appraisals that are too lengthy, redundant, hastily completed to meet deadlines, and often don’t allow employees any real input.  Many HR leaders believe that performance reviews yield inaccurate results due to biased approaches and misleading inputs.  Performance Appraisals are essentially a forced ranking system that can actually be very demotivating.

The traditional systems are beginning to shift to a more effective coaching system that focuses on employee achievement of measurable goals and objectives rather than formalized annual appraisal systems that primarily communicate one-way.  There are many examples of progressive companies that have replaced their traditional performance management systems with a culture of coaching, feedback, development, and high performance. Critical to success is that everyone in a leadership role is trained on how to coach and provide constant performance feedback, which in turn, engages employees and creates a desire to continuously improve.

The goal of managing performance is being replaced with a goal of obtaining the best possible sustainable performance under the current circumstances.   Key elements of this new paradigm include:

  • Simplify the Process:  Train managers on how to coach, give feedback and regularly check in with employees.  Focus on developing employees rather than evaluating and giving them a ‘rating’.  Ask questions that help target what the employee needs, such as, “What skills would you most like to improve on?” or “What can I do to help you?”  Review employee progress more frequently making the process less intimidating and more sensitive.
  • Streamline, shorten or completely replace Performance Review forms: Replace the forms with on-going coaching and feedback.  Feedback must be timely to be meaningful.
  • More agile, relevant, frequent and transparent goal management:  Include employees in the discussion of key performance objectives, ensuring they understand the reasons for the goals and can see how they are linked to organizational goals.  Utilize more short-term goals that are easier for employees to derive meaning from what they do every day.  Create achievable goals and regularly monitor employee progress.
  • Address career goals and future training needs:  Include a system that supports follow-up and delivery of the training and career opportunities.  Create a culture where managers can delegate without feeling threatened, knowing they also have opportunity and training for the next career advancement.
  • Eliminate direct correlation between performance rating and compensation:  Make pay adjustments based on a combination of elements such as performance, customer and business impact, skill scarcity and the competitive nature of employees’ positions.

Employees want to perform at their best.  They want to understand the goals and to be motivated.  They want to contribute, be supported, to learn and to have fun.  Management and leaders need to create the conditions needed for a great performance to take place and for business to flourish.  The ideal process for managing performance is one that successfully motivates and supports staff to contribute to the achievement of the goals and objectives of the organization.  A culture that encourages on-going communication and coaching between managers and their employees has many benefits and advantages over traditional Performance Management.

Change can be challenging and demanding.  At WageWatch our compensation consultants can assist with your organization’s compensation needs and help you ensure that your compensation programs are supporting your company’s business strategy and objectives.  WageWatch also offers accurate, up-to-date benefit survey data, market compensation data and salary surveys 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.  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.

BUDGET SEASON: ARE YOU PREPARED?

It’s that time of year again when companies are preparing their budgets for the upcoming year.   For HR professionals, it is probably not one of your favorite tasks, but by embracing the process, it can be an opportunity to reinforce the HR function as a strategic partner.

Budgets are used to monitor progress toward goals, help control spending, and predict cash flow and profit.  The challenge is predicting the future 100% accurately and in turn developing effective budgets.

It is valuable for HR to gain a strong understanding and appreciation for the value of good annual budgeting.  In most companies, employee costs constitute the majority of fixed costs and therefore the HR budget contains key and critical elements of the overall company budget.

Here are a few things you can do to make the budget process a smoother one:

  1. Throughout the year, ensure to include the CFO when reviewing such things as pay increases with the CEO.  This can go a long way to developing a partnership with the CFO.
  2. The credibility of the HR function is significantly improved when you can demonstrate real savings and value for HR projects and processes.
  3. Empower your HR team.  Every HR team member should own their line items in the budget.  For example, recruiting is responsible for their search firm fees, recruiting tools, and relocation.
  4. Link the development of your budget to corporate strategy.  This gives a clearer understanding of strategic goals.  And, in turn, should create greater support for the goals, and, a stronger company-wide performance. The key to linking the two is communication.  In order to communicate strategic goals, top management needs information about customers, competitors, technology, etc., and this information must come from support units such as Human Resources.
Budgeting requires the collection of many forms of data. From a human resource   perspective, listed below are some items that would be included in the budget:

Recruiting

  • Advertising & agency fees
  • Employee referral program
  • Background checks / drug testing
  • Recruitment expenses
  • Applicant tracking system costs

Training

  • Training programs
  • Travel expenses
  • Consulting fees

Compensation and Benefits

  • Payroll costs
  • Salaries  & overtime
  • Compensation surveys / benefit surveys
  • Incentive compensation
  • Health and welfare benefits
  • Retirement plan
  • Employee assistance program

Employee and Labor Relations

  • Recognition program  / Service Awards
  • Employee Opinion Survey
  • Performance appraisal software
  • Employment and Labor relations expenses (attorneys, consultants)

Other

  • Strategic planning (data/consultants)
  • HR databases such as HRIS/subscriptions/memberships/books

At WageWatch our compensation consultants can assist with your organization’s compensation needs and help you ensure that your compensation programs are supporting your company’s business strategy and objectives.  WageWatch also offers accurate, up-to-date benefit survey data, market compensation data and salary surveys 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. 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 .

ANSWERS TO ADA ISSUES QUIZ!

Day in and day out, we at Pautsch Spognardi & Baiochhi Legal Group get more questions about disability discrimination and accommodation than any other law.  Listed below are the questions AND answers!

  1. The Americans with Disabilities Act and state laws providing protections against disability discrimination cover employers with 15 or more employees, and not those with less.

    False: Many states have laws protecting individuals with disabilities working or applying for jobs at companies that employ as few as one (1) employee. Illinois and Wisconsin are among these states.

  2. So long as you treat an employee who is an individual with a disability the same as all other employees you will comply with the requirements of ADA.

    False: It is true that individuals with a disability are entitled to treatment equal to that which you give non-disabled employees.  But, you are also required by ADA to afford these individuals with disabilities reasonable accommodations that allow them to perform essential functions of their job.

  3. ADA and state discrimination laws against disability discrimination require equal treatment between employees with disabilities and those employees that do not have disabilities.

    True:  It is true that this is required.  But as noted in the answer to question #2, more is required—reasonable accommodation.

  4. Depressive disorder is a covered disability under ADA.

    True and False: It all depends on whether the condition of the employee or applicant is such that it meets the definition of a “qualified individual with a disability” under ADAAA or applicable.  In other words, does the physical or mental condition substantially limit the employee or applicant in a major life activity such as walking, seeing, talking, working, etc., or does the employee or applicant have a record of such impairment, or is the employee perceived as having such a condition?  This is often a difficult analysis that must be made based on the individualized circumstances of that individual’s condition.  So, some cases of cancer will be determined to be a disability, and some will not.

  5. An employee who suffers a compound fracture of their tibia and fully recovers from this injury and receives a full release for work in four months’ time is likely covered by ADA due to this condition.

    False: Under the Americans with Disabilities Amendments Act of 2008, Congress set six months as the minimum time for coverage as a disability protected by the law.  Beware, however, of terminating an employee based on this premise and law.  It is particularly risky to terminate an employee based on the assumption that the disability won’t last more than six months, when it may.

  6. An employee who suffers an Achilles tear in her left foot and is fully released for a return to work after exactly one year is covered under ADA.

    Probably True: Given the length of time involved, see the answer to question 5 above; it is likely that this condition is covered.

  7. An employee whose only physical limitation on her medical release for work is a 15-pound lifting restriction is not covered by ADA.

    Probably False: If this release is permanent, then almost certainly the employee is covered because this has been held by many courts and agency’s to be a substantial limitation on the major life activity of lifting.

  8. An employee whose only physical limitation on his medical release for work is a 50-pound lifting restriction is not covered by ADA.

    True: Many cases have decided that this sort of condition is not a covered disability because it does not “substantially limit” a major life activity.  In other words, the employee is still a pretty good lifter.

  9. Migraine headaches are not a covered disability under ADA.

    True and False: For all of the same reasons noted above with respect to “cancer”, some cases of migraine headaches are covered, while others are not.

  10. The definition that sets forth the requirements for qualifying as an “individual with a disability under ADA” is essentially the same as that defining a “serious health condition” under the FMLA.

    False:  The two definitions are vastly different.  FMLA’s definition focuses on the need for continuing medical treatment and in-patient hospitalization while ADA’s definition is, as noted above, far more focused on the length and the long-term severity of the condition.

As you can see from these answers, ADA, and the state disability, discrimination laws are difficult laws to interpret and apply to the facts and conditions that occur and are present in your workplace.  The definition of who is a qualified individual with a disability is a particularly knotty one.  The Supreme Court has tackled this definition many times and Congress reversed a number of these decisions in passing the Americans with Disabilities Amendments Act of 2008.
Pautsch Spognardi & Baiocchi Legal Group, LLP; http://www.psb-attorneys.com/ Office: 414-223-5743

 

RED FLAGS FOR ANTITRUST EMPLOYMENT PRACTICES

The Antitrust Division of the Department of Justice (DOJ) has announced a new initiative to criminally investigate and prosecute employers who enter agreements with their competitors to limit or fix the terms of employment for potential hires.

The DOJ and the Federal Trade Commission (FTC) issued guidance for Human Resources (HR) professionals that provides a deeper explanation of the relevant laws, potential violations, and best practices for avoiding liability.  Here is a link to the guidance that was issued October 2016: https://www.justice.gov/atr/file/903511/download

The following Red Flags” for HR professionals have been identified by the FTC and DOJ as examples of “Antitrust”.  These nine red flags are indicative of what types of agreements or information exchanges may violate the regulations.  This is not an all-inclusive list nor does the presence of a red flag automatically indicate an antitrust violation.

  1. Agree with another company about employee salary or other terms of compensation, either at a specific level or within a range.
  2. Agree with another company to refuse to solicit or hire that other company’s employees.
  3. Agree with another company about employee benefits.
  4. Agree with another company on other terms of employment.
  5. Express to competitors that you should not compete too aggressively for employees.
  6. Exchange company-specific information about employee compensation or terms of employment with another company.
  7. Participate in a meeting, such as a trade association meeting, where the above topics are discussed.
  8. Discuss the above topics with colleagues at other companies, including during social events or in other non-professional settings.
  9. Receive documents that contain another company’s internal data about employee compensation.

In the Guidance, HR employees have been specifically identified as individuals in positions of authority with respect to hiring and compensation decisions and so will need to lead the charge to ensure that their company is not the target of an investigation.

The DOJ’s and FTC’s Guidance provides certain boundaries for common HR practices like benchmarking and participation in compensation surveys to determine whether companies are paying competitive compensation packages to their employees. HR professionals should follow this previously issued detailed guidance on how best to exchange compensation information for benchmarking purposes in an antitrust compliant way. See Statement 6, Provider Participation in Exchanges of Price and Cost Information, United States Dep’t of Justice and Federal Trade Commission, Statements of Antitrust Enforcement Policy in Health Care (Aug. 1996).

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.

NEW GUIDANCE ISSUED ON FEDERAL ANTITRUST REGULATIONS

The U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC) issued joint guidance on Oct. 20, 2016, https://www.ftc.gov/system/files/documents/public_statements/992623/ftc-doj_hr_guidance_final_10-20-16.pdf, on how Antitrust Law applies to employee hiring practices and compensation decisions.  The guidance focuses on managers and human resource (HR) professionals who are normally responsible for regulatory compliance and can, therefore, implement safeguards.  In addition, the guidance announces a significant shift in the DOJ’s enforcement policies stating that the DOJ intends to proceed criminally against “naked wage-fixing and no-poaching agreements”.  The agencies underscored the fact that violators could be pursued both civilly and criminally. The new guidance makes it clear that DOJ and FTC will look suspiciously at employers sharing information regarding terms and conditions of employment — such as industry wage surveys.

As part of their guidance, the DOJ and FTC issued what they called Antitrust Red Flags for Employment Practices. The link to these nine Red Flags is https://www.ftc.gov/system/files/documents/public_statements/992623/ftc-doj_hr_red_flags.pdf. The list is a starting point for what they will be looking for and is not exhaustive of possible indications of antitrust violations. They note that if you notice these red flags or other suspicious behavior and believe that there may have been an antitrust violation, they encourage you to report it to the DOJ and FTC.

The DOJ and FTC caution employers about sharing compensation information with competitors. While not per se illegal (like wage-fixing and no-poaching agreements), the agencies note that such information-sharing such as salary and benefits surveys conducted by industry associations and trade groups could be suspicious.  The guidance directs HR professionals to avoid sharing competitively sensitive information with competitors.  Evidence of exchanges of wage information such as discussion of compensation levels or policies at industry meetings or events could be sufficient to establish an antitrust violation.  Exchanges are permissible in certain circumstances (i.e., it may be appropriate for a company to obtain competitively sensitive information in the course of M&A due diligence), but only if suitable precautions are taken.

Statement of Department of Justice and Federal Trade Commission Enforcement Policy on Provider Participation in Exchange of Prices and Costs, an issue in August 1996, remains as the primary guidance in the exchange of compensation information for employees that will not result in a challenge of an antitrust violation by the DOJ and FTC. From an antitrust perspective, firms that compete to hire or retain employees are competitors in the employment marketplace.  Managers, HR professionals, and employees with access to compensation information should not communicate the company’s policies to other companies competing to hire the same types of employees.

Not all information exchanges are illegal.  It is possible to design and carry out information exchanges in ways that conform to the antitrust laws.  For example, an information exchange may be lawful if:

  • A neutral third party manages the exchange;
  • The exchange involves information that is relatively old;
  • The information is aggregated to protect the identity of the underlying sources; and
  • Enough sources are aggregated to prevent competitors from linking particular data to an individual source.

WageWatch surveys are fully compliant with all antitrust guidelines including aggregating the results to protect the identity of the participants, ensuring that the age of the data is at least 90 days old, and ensuring that data results contain at least 5 participants.  At WageWatch, we offer accurate, up-to-date 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. For more information on our services, including market compensation data, benefits survey data and salary reports, please call WageWatch at 888-330-9243 or contact us online.