Monday, March 23, 2020

3 C's for COVID-19 Survival: Compliance, Cleanliness, & Compassion


What hasn't been said about the Coronavirus over the past several weeks in the HR community? I can't think of a thing? Over the past two weeks at least, I've been doing nothing but talking, listening, watching, researching and responding to questions from clients, students, family, and friends about this topic much like the rest of the world. The following is a list of what I think is the most important things I have learned and suggest employers consider if they have not already done so. I call it the three C’s of Coronavirus for HR and Employers.

1.      Compliance with new local, state, and federal employment regulations covering employees.  This covers quarantine rules, time off, protected time off, unemployment, and even paid time off in some cases depending on the size of the organization.
2.      Cleanliness with the CDC and WHO.  Sure most organizations have cleaning companies that might come into the workplace once a week.  How many of you have them daily and now multiple times a day?  How many of you now have to lock up your cleaning supplies and toilet paper so your employees don’t take them home and leave you without which won’t’ make it easy to keep your doors open.
3.      Compassion with your employees.  Remember, when we get out of this pandemic and we will get out of it eventually, the labor-market will still be tight! That means HR and Management needs to step up to walk the talk of compassion, kindness, understanding, and empathy.  It means you might have to bend the rules a bit in times of uncertainty.  It means what worked before may not work now.  However, never forget the basics of HR using the three D’s Document, Document, Document.  Whatever, precedence you do set now may come back to haunt you later.  However, you will need to have employees to keep the doors open then too.  So tread lightly!

Additional ideas I picked up from various webinars are as follows:

·         If you plan to take employees temperatures as they enter the building (drawing a line to get in) which the EEOC approved, do so in private.  Also, have a back way out so if they do have a temperature, they can leave in private to protect their HIPAA private health information rights.
·         Get comfortable using remote technology to conduct business.  There are many resources out there that are easy to use such as Google Hangout, Zoom and many more.  All your staff must have is a device (phone or computer), internet and audio.  They don’t even have turn of the video if they don’t want to.  If the internet is not dial up the quality should be good unless of course everyone in the world is on at the same time.
·         Put policies in place and stick to them.  Policies for cleaning workspaces, staying six feet away from each other at work always, travel restrictions both personal and for business, coronavirus contact reporting requirements, and whatever else comes up between now and the time we get through this.
·         SHRM.org has a Communicable Diseases page on their site which is a hub for all Coronavirus Issues at Work.  Currently it is open for non-members.  Feel free to use it!
·         Above all take care of yourself!

Wednesday, February 26, 2020

My Advice: IL Sexual Harassment Training Compliance


I just completed a training program today for county officials that applies to all business owners, managers, and HR in the state here in Springfield today (on February 26, 2020) covering the Workplace Transparency Act and Sexual Harassment Prevention Training, I'd like to summarize some of the main points.  As the program description described, the Illinois Workplace Transparency Act imposes a variety of restrictions and requirements on employers relating to workplace discrimination and harassment including annual sexual harassment prevention training for all employees (in all employers of all sizes throughout the state).  The training covered the standards to get into and stay in compliance.

The most recent 2/5/20 Public Service Announcement by the Illinois Department of Human Rights (IDHR) was introduced covering the need to provide training to all employees no later than 12/31/20 and annually thereafter with all new employees being trained within 90 days of that first annual training in 2020.  Of course, we already knew that but it also provided several links to documents as well as a frequently asked questions site.  It did not cover what was expected of them, at least not yet.  The problem is the state is supposed to develop a program for all employers to facilitate this training among their employees, but they have not yet done so and no one really knows what the end product will look like (online, face-to-face, etc.).  However, they have given guidance on what shall be included so that you can either hire someone to do it for you or you can develop your own training program.  The four elements that must be present in all employer related training consist of the following four item which was covered in detail in today's training:  
  • an explanation of sexual harassment consistent with the IHRA (IL Human Rights Act);
  • examples of conduct that constitutes unlawful sexual harassment;
  • a summary of relevant federal and State statutory provisions concerning sexual harassment, including remedies available to victims of sexual harassment; and
  • a summary of responsibilities of employers in the prevention, investigation, and corrective measures of sexual harassment.
  • NOTE: All Bars & Restaurants must provide SUPPLEMENTAL training beyond the four bullets above.  The supplemental standards include: 
    • specific conduct, activities, or videos related to the restaurant or bar industry;
    • an explanation of manager liability and responsibility under the law; and 
    • English and Spanish language options.
Additional topics in the new law that are of importance particularly doing away with the so called "shoosh documents" are the second bullet that follows.
  • Limits the use of contract provisions intended to prevent employees from reporting SH, such as non-disclosure agreements and arbitration clauses. Makes harassment against contract employees illegal.
  • Prohibits employers from disclosing the name of a victim of an act of alleged SH or unlawful discrimination in any disclosures.
  • Also, requires local governments to report and provide an independent review of allegations of sexual harassment made against local elected officials. Effective January 1, 2020 (certain provisions immediate).
I would recommend all training be documented on a roster with all attendees listed to include signatures.  Either have them print their names then sign or have them sign beside their typed name because sometimes you can’t read their signatures to verify attendance.  Then double check with your payroll roster to make sure all employees have attended, and schedule make ups if necessary.  Another option is to have individual attendees sign an acknowledgement of attendance and put in their personnel file.

Even though EEOC Claims are down overall in 2019 and at a 27-year low, I might add, sex related claims remain higher than they should be at 23,532 charges in 2019.  Just two years ago only 1% of workers in the US were requited to participate in sexual harassment training.  Now with the inclusion of the new Illinois law 20% are now required which includes every employee working for all employers in the entire state.  This increase should help the charges go down but is another burden on employers that they have to focus on other than the product or service that they provide.  This too is is a massive undertaking for the state as well and is why it is taking so long for IDHR to meet the new requirement as stated in the act:
“the Illinois Department of Human Rights ("IDHR") to develop a model sexual harassment prevention training program for use by employers.  Employers may develop their own sexual harassment prevention training program that equals or exceeds the minimum standards for sexual harassment prevention training outlined in Section 2-109(B) and/or Section 2-110(C) of IHRA”

Bottom line is either have some patience with IDHR or find a training resource if you want to check this requirement off your to do list earlier than the end of the year.  My recommendation is to find a time of year that is typically the slowest for you during a normal year and stick with it as a routine month to do the training since it’s an annual requirement you can follow year-to-year.

Just in case you didn't know...I have done this type of training my entire career and yes, I am available!  My program is EEOC and IDHR compliant!  Just give me a call or email anytime! I'd love to help any Illinois employer meet this requirement and other HR compliance standards!

Wednesday, December 18, 2019

Tic Toc Make Sure Salaried Employees are “Clocking” IN and OUT!


Merry Christmas! Thanks to a client who informed me of a new requirement she was made aware of at an Employment Law update training event last month, I recently research said notification and unbeknownst to me, it was true.  I was shocked because in my humble opinion it conflicts with the Federal Fair Labor Standards Act.  However, we do things a bit different here in the Land of Lincoln.  So keep reading this "Just in Time" notification that will give owners, executives, HR professionals, managers, and supervisors a holiday treat to add to your daily to do list at work!

Surprise, surprise, surprise there’s another new law to follow! Unfortunately, one that has been in affect for some time now but has not received much notice and was slid in right under our HR noses! Not once but TWICE!

The Illinois Department of Labor established new regulations, “Payment and Collection of Wages or Final Compensation – Records and Notice of Requirements” in August of 2014 that require employers to document time worked for each employee regardless of their status as either an exempt administrative employee, executive or professional. These regulations were reinforced in the 2019 amendment to the Illinois Minimum Wage Law (820 ILCS 105/8).

The specific requirements are: Employers must make and maintain records for three years which contain:
ü    the name, address and occupation of the employee
ü    hours worked each day in the work week
ü    the rate of pay
ü    copies of the notice given to the employee at the time of hiring reflecting their rate of pay
ü    the amount paid each pay period and all deductions made from wages or final pay
ü    Any employer that provides paid vacation to its employees must maintain records showing the number of days earned for the year and the dates on which the days were taken and paid.

Failure to maintain these records may impede an employer’s ability to defend wage and hour claims. If an employee files a wage claims with the Department of Labor, they may not be denied recovery of wages or final compensation on the basis that they are not able to prove the exact extent of uncompensated work or final compensation. The employee must only produce sufficient evidence to demonstrate the amount and extent of work or time earned as a just and reasonable inference.
In addition to losing a wage claim, any employer who fails to keep records as required under the Illinois Minimum Wage Act or to furnish them to the Illinois Department of Labor when requested is guilty of a Class B misdemeanor (820 ILCS 105/11). The penalty for a Class B misdemeanor is up to 180 days in jail and/or a fine of up to $1,500.

Because these new regulations were adopted without fanfare, many employers may be in non-compliance. Due to the repercussions of not following these regulations, employers should take immediate steps to ensure that they are tracking the hours worked by all of their employees, no matter what position they hold. This can be accomplished by any means the employer finds most convenient, whether electronic or paper.

The one big concern I find with this is that neither law outlines what they mean by “three years”.  Do they mean for the last three years and you can shred previous years?  Similar to the One- or Two-year hiring document retention requirement depending on federal contract compliance status? Does it mean forever and three years post termination like the I-9s? Whichever way you interpret it, my recommendation would be at least the last three years since the current time frame for employees to file complaints against a company in Illinois is 300 days unless there are other circumstances that expand the statute of limitations such as incidents that fall under Equal Pay Act or Lilly Ledbetter Pay Act, etc.

Thursday, October 24, 2019

What's New for HR in Illinois - 2019

Yesterday I did a report for one of my clients.  Today, I have been asked to talk to a networking group about What's New in HR.  In three weeks I have been asked to talk at a local Chamber of Commerce luncheon about What's Hot in HR.  So whether it new, hot or trending, I though I'd just jot down some thoughts I and several #HR friends had from a crowdsourcing post.

Let's start out with what is top of mind for me and my clients:

  1. SALARY HISTORY BAN: Don’t Ask for the Salary History of ANY applicant for employment of any position in Illinois effective last month.  This affects all employers regardless of size and if you decide not to follow the law then an applicant can come after you for up to 10k for damages.  Why? Asking perpetuates an already unequal pay issue for women who currently make 78 cents to every man's dollar or the same job with the same qualifications.
  2. SEXUAL HARASSMENT TRAINING FOR ALL EMPLOYEES IN ILLINOIS. Every employer in the state of Illinois will have to train all their employees annually  on sexual harassment prevention starting 1/1/20.  Specifically, the training must cover the following and if they do not there could be civil penalties up to $5k per offense.
    • Define sexual harassment;
    • Provide examples of prohibited conduct;
    • State that it is the employer’s responsibility to prevent, investigate and address sexual harassment; and
    • Summarize federal and state laws addressing sexual harassment, and available remedies for violation thereof.
  3. MINIMUM WAGE x3 IN ONE YEAR.  Next years double increase of minimum wage is going to hit employers not once but twice.  January 1 the minimum wage increases from 8.25 to 9.25 ($1) and in July it goes up another 75cents to $10 per hour.  Not to mention in six more months one year from the first increase it goes up another dollar to $11.  This puts Illinois among the 10 highest minimum wage states in the country.  That is an increase of $2.75 all in one years time.  Have you thought about how this is going to affect the rest of your staff and what type of compression pay issues it will cause? 
  4. POSITIVE FOR MARIJUANA DOES NOT = RESCINDED OFFER OF EMPLOYMENT: Don’t Test for Marijuana for hire effective 1/1/20 because your wasting your money if you do and you can't use it as a reason not to hire or affect any other condition of employment once hired.  However, you can maintain a drug free workplace which means that after someone is hired and are suspected of being under the influence at work they can be tested.  Of course, all this is up for debate at the upcoming IL Veto Session to be held soon in Springfield.  There are many conflicts with federal DOT and protective services testing requirements.  So while it may on the surface seem to apply to all there are some issues to be resolved.I'd wait till after that session to know for sure what is going to STICK.  
  5. DOL INCREASES EXEMPTION THRESHOLD FOR LOW AND HIGH PAID OVERTIME EXEMPT EMPLOYEES. No position paid less than $35, 568 (plus duties test) can be exempt from making overtime.  This is equivalent to $684 a week (previously $455 a week or $23,660 a year). Conversely, you can exempt any position paid over $107,432 a year (previously $100k a year) and they do not have to pass a duties test.  These totals are without regard to nondiscretionary bonuses or incentive payments.
  6. EXEMPTION DUTIES AUDIT. Just because the salary basis may have been or will be corrected based on #4 above doesn't mean the people you have as exempt (aka salaried) should actually be categories that way.  There is a lot more to salary basis to make a position exempt (see  https://www.dol.gov/whd/overtime/fs17a_overview.pdf). Typically, I find positions in the administrative and professional exemption category incorrect.  It's often based on the perception of what a professional or administrative job is and not based on the facts related to the duties.  The problem with this that an incorrect classification can lead to up to three years back pay for overtime not paid to someone who should have originally been classified as hourly or non-exempt.
  7. W2 EMPLOYEE VS 1099 INDEPENDENT CONTRACTOR MISCLASSIFICATIONS: Both IRS & IL Unemployment have a vested financial interest in whether or not employer classify positions correctly.  Most importantly the employee themselves has the most to loose aside paying their own taxes they could be earning benefits.  Like exemption misclassifications above an employer could be required to go back three years to pay salary and benefits.  I have some clients who are paying employees a stipend that does not even cover minimum wage for employees using their offices, computers, vehicles, etc. and have required hours.  That alone would not pass the 20 question IRS employee vs contractor test: https://www.irs.gov/newsroom/employee-or-independent-contractor-know-the-rules
Others within my network suggested the following which I plan to expand on soon.
  • Artificial Intelligence hot in recruiting -Chatbots
  • Cybersecurity in HR
  • Employee Engagement: Tenure & Peer2Peer Based Recognition
  • Employee Retention
  • Workplace Flexibility
  • Retaliation & Age Discrimination High on EEOC

Tuesday, October 1, 2019

ISERRA Requires Public Employers to PAY for Military Leave

It is important for public employers to understand the Illinois Service Member Employment and Reemployment Rights Act (ISERRA) and how it impacts their obligation to employees who are on a military leave of absence.  ISERRA consolidated the state’s Military Leave of Absence Act, Public Employee Armed Services Rights Act, Municipal Employees Military Active Duty Act, and the Local Government Employee Benefits Continuation Act. 
Much of ISSERA is modeled after the federal Uniformed Serivces Employment and Reemployment Rights Act (USSERA).  However, there are important differences.
Who Is Protected?
  1. All members of the Armed Forces whether active duty, inactive duty or reserve, including the National Guard when performing state duty.
  2. All members of Military Auxiliary Radio System, United States Coast Guard Reserve, Civil Air Patrol and the Merchant Marines when performing official duties in support of an emergency.
  3. Members who are released from military duty with follow-on care by the Department of Defense.
What are Employers Obligations under ISSERA?
1.       During periods of military leave for annual training for employees who are members of a reserve component, public employers must continue to pay full compensation (concurrent compensation) for up to 30 days per calendar year.
2.       During periods of military leave for active service, a public employer must provide differential compensation, subject to the following:
  • Public employees can choose to use their accrued vacation leave with pay in lieu of differential compensation.
  • Differential compensation for voluntary active service is limited to 60 work days.
  • Public employees who have exhausted concurrent compensation in a calendar year must be given differential compensation.
The method for calculating differential compensation is covered in Section 5-10 of the Act.
3.       Employer provided health care must continue to be provided.
4.       A service member who is absent on military leave must be credited with the average of his or her evaluations received over the last three years preceding the leave.  This rating may not be less than the rating that the employee received for the last rating period preceding his or her leave.
Questions about this law and its impact on units of local government can be directed to the Attorney General’s ISERRA Advocate, Thomas Banning at 1-800-382-3000.

Monday, July 8, 2019

Grievances and the Hiring Process

Units of local government have the responsibility to conduct business in the most transparent manner possible.  This includes the hiring process. Applicants for public jobs should feel confident that the selection process was fair and designed so that the most qualified candidate was chosen.  In addition, in some cases internal applicants for vacancies may have appeal rights through the grievance process covered in the applicable collective bargaining agreement (CBA).   It is important to always follow the appropriate article in the CBA that details hiring, so make sure you double check before filling any union covered position. If followed, the chance of having a grievance filed will be diminished.

However, grievances can happen after the selection process has concluded. Both internal and external candidates for positions can file complaints.  External candidates are most likely to file a complaint with the Illinois Department of Human Rights or the Equal Employment Opportunity Commission.


As a result, it is vital to have a well-documented hiring process.  With thorough documentation, management should be able to demonstrate that the candidate who best met the requirements detailed in the position description was selected for the position.

What makes a well-documented hiring process?


·       Current and accurate position descriptions.  Ensuring the accuracy of your position descriptions is the basis for screening, interviewing questions and later, for evaluations.

·       Create interview questions based off the position description.  Questions should:

o   Assess whether the candidate has the required level of job knowledge that is both essential to job performance and constitutes the minimum that must be known prior to entering the position.

o   Determine the extent to which the candidate has, in fact, ever performed the major duties of the position for which she/he is applying.

o   For those jobs with few or only very basic minimum requirements, as well as for jobs with some unpleasant or monotonous working conditions, questions should be prepared regarding the candidate’s understanding of, and willingness to perform the major duties.

o   Be accurate, complete and easily understood.

o   Clearly and strictly job-related and directly linked to the position’s major duties

o   Not be leading in order to avoid biasing a candidate’s response

o   Should be stated in terms of sample position duties, and should be designed to elicit information on job-related behaviors

o   Should be geared to the appropriate complexity level of the position

o   Should be carefully reviewed to eliminate any possible reference to prohibited areas of inquiry.

·       Create a scoring method for the interview process.  A numeric rating enables the calculation of an overall score for ranking purposes. Carefully document the candidate’s response to each question. Write up a justification as to why the final candidate was selected.

Establishing a formal hiring process that is well documented will help ensure that all hiring decisions are based on merit and qualification and will help management demonstrate the reasoning behind hiring decisions should a grievance or litigation ever occur.