South Carolina's Higher Ed "con game" shortchanges students & workforce

Writing in The State newspaper, former Abbeville County State Representative Harry Stille, himself a former college professor, sounded a call for reforming higher ed in South Carolina, warning that:

For years the Legislature and universities have conned us about the value of a baccalaureate degree, when these students would have been better off in the two-year system. Our technical colleges are where the major job growth potential is.

We need to limit university admissions to students who are in the top 50 percent of each high school class, who don’t need remedial classes and who score at least 910 on the SAT or 19 on the ACT. And we should send the rest of the students to the two-year system, where they, and we, will get their money’s worth.

I couldn't agree more. I've dealt with the issues of education and workforce, both as a career human resources professional and as a six-year member of the Charleston-area Workforce Investment Board, and have found that some of the most critical workforce shortages that we're faced with in South Carolina - as well as much of the rest of the South - is among those trades which require one to two years of technical education to enter.

Inventing racism: Obama Labor nominee's love of "disparate impact" theory

As American society attempts to move beyond racial politics and racism in society, Thomas Perez the Obama administration's nominee to head the Department of Labor is hell-bent on turning back the clock by advocating a controversial legal doctrine which imagines racism and assumes guilt on the part of businesses with no evidence of wrongful actions or malicious intent necessary.

The doctrine of "disparate impact" is a legal doctrine which assumes that discrimination can be proven simply by looking at outcomes. If no discriminatory practices or malicious intent can be identified, the finding that a policy or practice resulted in outcomes in which "protected groups", such as women and minorities, were disqualified more or qualified less is all that is needed to assume some form of "unintentional discrimination" took place - no actual evidence of discriminatory intent is necessary.

A recent Wall Street Journal story discussed Perez' ambitious efforts to aggressively pursue actions by applying disparate impact theory while an Assistant U.S. Attorney General, even to the point where he may have undermined civil cases to seek a deal which protected his efforts from going to the Supreme Court:

Obama nominates career gov't lawyer to lead Labor Department

If you've ever heard of Thomas Perez, you might've been involved in the court battle over South Carolina's Voter ID law. But if you haven't heard of him and work in the private sector, you might get to learn more about him soon.

And we're betting you won't like what you see.

Perez, who will be nominated by the Obama administration to lead the Department of Labor, is currently an Assistant Attorney General in the Justice Department's Civil Rights Division, where he led failed efforts to try to block South Carolina's Voter ID law. He also worked to expand the scope of the Americans with Disabilities Act, one of the most anti-employer laws on the books.

Imagine what Perez, who has never worked a day in the private sector, would do as Labor Secretary if confirmed.

While you're thinking about it, call your Senators and ask them what they're going to do about the Perez confirmation. We will.

Understanding Obamacare Employer Mandates

It’s clear that Obamacare isn’t something many like, but unless someone finds a way to repeal it, it’s mandates are reality on employers – and so are the potential penalties which can be imposed upon employers. Some of the provisions that are soon to kick in are not going to be easy for employers to navigate.

To help explain some of what’s coming up for employers, the IRS recently published a proposed Rule, Shared Responsibility for Employers Regarding Health Coverage, which provides some guidance for HR on how to comply with requirements which the law will place upon “large” employers – those with fifty or more full-time (or the equivalent of) employees, which is defined as those working an average of thirty hours a week or more. The legislation would require these employers to provide health care cover with a specified “minimum value” beginning in 2014, or pay penalties.

This proposed Rule has a comment period that ends on March 18. As part of this, the IRS posted a Q&A digest to help answer questions. Read on for more of what there is to learn about these proposed expectations:

Department of Labor publishes updated Rule list

Several agencies under the U.S. Department of Labor are making steady progress towards implementing a wide range of rules and guidelines that could put major burdens upon employers, including affirmative action programs, wages, hiring practices, drug testing and safety regulations. The agency's updated Rule List for 2012 gives human resources and safety professionals a look at what the Department is working on, giving them fair warning of things to come in the next two years.

Many of the rules which are in final rule-making phase come from three agencies - MSHA, OFCCP and OSHA. On this list is the DOL's proposed hiring mandate, which would compel employers to hire a mandated quota of handicapped applicants on federally-funded projects, which has been discussed on this blog before. 

Here are some of the rules in the final phase from the U.S. DOL agencies:

• Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors
• Application of the Fair Labor Standards Act to Domestic Service
• Confined Spaces in Construction
• Electrical Protective Equipment
• Handling of Retaliation Complaints
• Lowering Miners' Exposure to Coal Mine Dust 

 Read up and see how these rules might affect you.

2013 is coming - watch those employee handbooks!

While the employee handbook was once an afterthought of companies, seldom reviewed and updated even less often, it's one of the biggest liabilities for employers with regard to lawsuits and actions by federal regulatory agencies.

The truth that catches some employers off-guard, especially smaller ones who don't have dedicated HR staff or who don't have well-supported human resources operations, is that the employee handbook is one of the most widely-circulated company documents. Thus employers should take it seriously and make sure whatever goes into it should be reviewed with a fine-tooth comb.

A recent blog story discussed how the NLRB was using the language of employee handbooks to expand its jurisdictional reach into non-union workplaces. 

A recent email update from the Society of Human Resource Management's website cautions employers to take a close look at their employee handbooks, warning that "Legal and regulatory changes—more than new laws—are driving the need for company policy adjustments, revised plan documents and updated employee handbooks for 2013 by U.S. employers."

Among those items the article warns employers to pay close attention to are social media policies, employment at-will statements, handbook receipts, termination policies and state-specific issues.

Warning of continued close regulatory watches by agencies under the current Presidential administration, the article suggests that handbooks should be checked at least every six months and employers may want to include a disclaimer which cautions that state and local laws may also apply to terms of employment.

Online, after-time and overtime hours create potential problems

A while back, I'd written about the need for employers to be even more aware for the potential for a Wage & Hour compliance visit and how to be pro-active on these issues.

The other day, this story - Don't Get Sued by Your Number One Employee - from the Fox Business website gave additional food for thought about potential exposure for violations related to unpaid overtime hours:

Karen Harned, executive director of the National Federation of Independent Business (NFIB) Small Business Legal Center, said at the root of the overtime regulation debate is the Fair Labor Standards Act (FLSA). The law establishes minimum wage, overtime pay and recordkeeping and youth employment standards, but is also extremely outdated, having been written in 1938.

“The Department of Labor estimates 70% of businesses are out of compliance with the FLSA,” Harned said. “This just points out how confusing [the law] is.”

And oftentimes, small business owners don’t even realize they are essentially breaking the law. For example, just because an employee is "non-exempt" from working overtime, doesn't mean they are entitled to continue working past their 40 hours per week, if the employer imposes such a regulation.

With technology allowing the lines to blur between work and off-duty time, employers need to be aware of when their employees are really working and to ensure they are properly classified so they don't get hit with a lawsuit for back pay or get tripped up in a Wage and Hour audit. It's an issue that I've had to deal with more than once and it's one where lawyers can easily get involved, costing employers large sums of money, win or lose.

Of course, always, always document everything - and expect employees to do the same from their end.

You can visit the U.S. Department of Labor and their Wage and Hour Division online for more guidance.

How do you "sell" safety?

In addition to being an HR and Safety person, I've also spent several years as an adjunct professor, teaching public speaking and other communication courses. One of the most important things I teach my public speaking classes is that you're always selling something - your ideas, your products, your clients and yourself.

Then I get to job sites and see people who are supposed to provide safety leadership - foremen, project managers, safety leads, etc. - who couldn't see water to a dying man in a desert. These are the people who yell directives, demand to know why someone isn't following the rules and read weekly toolbox training talking points from the sheets without even looking up to see if anyone's awake or listening.

This is one of those cases where it's not just good enough to know your own trade or know the rules. Leaders have to lead, which means they have to share their ideas and bring their teams along with them. But in construction, too many in leadership roles don't have any clue how to truly lead, making the role of any safety person more challenging.

Speaking and communicating are key skills for leaders in an organization and in a field like construction, those skills are often sorely lacking.

Three good articles on presenting more effectively

Communication is a large part of my day job - and what I teach in my part-time adjunct professor teaching slots. While the aspects of my job which relate to media and community relations obviously involve communicating effectively with audiences, a lot of work related to human resources and safety also requires effective communication skills.

Good ideas, useful products and smart options get lost all the time because someone may be knowledgeable about something but can't get their points across effectively.

I got an email today from Speechworks, one of a number of email lists that I'm on, which features three good articles discussing how to communicate and present more effectively in professional settings that fit well with what I've learned from professional experience and what I teach in the classroom. I hope you find them useful.

Surviving DOL Wage and Hour audits

Since we're talking about compliance audits which can result in fines and costly and time-consuming administrative policy changes, let's talk about another agency which can come a'knocking: U.S. Department of Labor (USDOL).

The agency has been stepping up inspections for years, looking for companies which under-pay their workers, going back to the agency's Strategic Plan for Fiscal Years 2006-2011.

I've been through these before and my company passed with flying colors. Like most regulatory and compliance visits you'll encounter, they would be the most fun you've had on the job, but if handled properly - and prepared for beforehand - they're survivable.

But learning what they are, how to handle them, understand the process, and handle paperwork defensively beforehand are the keys to getting on top.

Speak Without Fear: A great online resource for developing professional speakers

I've known Deb Sofield for years. A professional speaking coach, she's worn a lot of hats in the Upstate South Carolina, including as a business and community leader. She chairs the Water and Sewer board that serves much of Greenville County and has been a leader in the Southeastern Institute for Women in Politics.

She's also got a free monthly newsletter that focuses upon developing professional speaking skills: Speak Without Fear. As someone who has taught speech at the college level, I'll say it's a great resource that you should check out.

"Binders" and punishing equality in the workplace

In this week's Presidential debate, when Mitt Romney discussed his efforts to ensure gender diversity in hiring cabinet positions as Governor of Massachusetts, one might've thought feminists would have praised him for openly embracing the importance of ensuring gender equality in the workplace - but once again, they proved that no good deed goes unpunished.

When Romney was confronted with a pool of mostly-male candidates to help him run Massachusetts state government, he made an effort to cast a wider net by specifically seeking out female candidates - hence the "binders of women" remark, which was likely intended to mean "binders of resumes from women". The result of this effort was that ten of the twenty top positions in his administration where filled by women, including Beth Myers, his Chief of Staff, and Jane Edmonds, a self-admitted liberal Democrat who was appointed Secretary of Workforce but who spoke glowingly about him at this year's GOP convention (please see her convention speech below).

While one would think that Romney would be praised for creating more opportunities for women, the news media and Internet was full of attacks from those on the political Left who ignored the substance of his comments and used the phrase "binders of women" out of context to fuel their latest political attacks against him.

Again, here's where I step out of the political context and put on my human resources hat to discuss this issue in a more informed context.

Legislative success in the S.C. State Senate

While we've seen a lot of criticisms leveled at the State Senate, calling the institution a dead-end for legislation passed by the House. While some very useful bills have stalled in that chamber, not every good idea or vital piece of legislation dies there. As one of the lead negotiators for the construction industry and a primary instigator of efforts to reform the state's underground utility safety laws, I know firsthand what the Senate can accomplish.

Working with the Senate (and later House members), laws that were enacted in 1978 and were considered some of the most outdated in our nation's history one of the worst in the nation in regard to safety, were finally updated. These reforms helped to head off potential hazards that were putting both construction workers and the general public in harm’s way.

Watch for I-9 revisions next year - maybe

A recent story on the Society for Human Resource Management website reports that a new version of the I-9 form may be released next year - but that nobody could agree on exactly when that might be.

There are two versions of the I-9 form which employers should be using: the current version (Rev. 08/07/2009) or the previous version (Rev. 02/02/2009). 

Keep in mind that even if your company uses E-Verify, either voluntarily or in you're in a state which mandates it's use, you are still required to complete an I-9 form for every new hire and retain the information as you would have before your company began using E-Verify.

You can get info on the current I-9 form online - and presumably keep a watch for updates there as well - at the U.S. CIS website.

Growing opposition to proposed federal hiring quotas

Back in December of last year, the Obama Administration's Department of Labor's Office of Federal Contract Compliance Programs posted a notice that the agency was planning to impose hiring quotas for individuals with disabilities on federally-funded projects. This proposal has drawn fire from a wide range of business and professional organizations who have expressed concerns about the adverse impact of this policy upon the business sector.

The proposed OFCCP policy would mandate a seven percent hiring quota for disabled and an additional two percent hiring quota for those with undefined “severe disabilities.” Patricia Shiu, director of the Office of Federal Contract Compliance Programs, claimed this policy will help reduce a thirteen percent unemployment rate for those with disabilities. Shiu defended the proposed mandates, claiming that "specific goals" and "real accountability" were needed to ensure increased hiring of disabled individuals on federally-funded projects.

Recently, the members of the HR Policy Association, a national association of chief Human Resources officers expressed their objections to this proposal:

E-verify mandate underway in North Carolina

Following the lead of South Carolina, which was one of the first states to pass workforce immigration compliance legislation following the Chamber of Commerce of the United States v. Whiting ruling, North Carolina is now mandating the use of E-Verify for screening all new applicants.

North Carolina will phase in compliance, based upon the size of a company's workforce, as follows:

• Effective Oct. 1, 2012—employers with 500 or more employees will be required to use E-Verify to check work authorization for all new hires.
• Effective Jan. 1, 2013—employers with 100 or more employees will be required to use E-Verify to check work authorization for all new hires.
• Effective July 1, 2013—employers with 25 or more employees will be required to use E-Verify to check work authorization for all new hires.

For companies with multi-state workforces, the agency will consider just in-state employees towards the determination of the first date of enforcement.

At this time, the North Carolina legislation exempts employers with less than 25 employees as well as seasonal workers (but keep reading because federal requirements may still apply).

Social Media increasingly being used as evidence

As if we haven't seen enough written about the need to exercise caution about what is being said in social media, another word of warning comes from Allen Smith, who recently interviewed David Osterman, a New Jersey attorney specializing in labor and human resources issues for a recent story in the Society for Human Resource Management website. 

While this news that social media is impacting what takes place in courtrooms probably isn't surprising to many, the details of the story bear attention in the article, Smith warns readers that:

"Social media has filtered into courtrooms, transforming jury selection; questioning of witnesses; interactions between jurors, lawyers and judges; and evidence. And employment litigation has been affected ..."

In the story, Osterman details how social media is being used to do advance research for jurors and witnesses, as well as how social media commentary is qualified as evidence in the courtroom. For those who want to protect their company from legal exposure or prepare a strong defense for cases that may go to trial, this story makes for good reading.

Immigration enforcement focusing on employers

Federal immigration officials in Kansas are applying severe measures to punish those who employ undocumented workers:

After an Overland Park couple were indicted, accused of knowingly hiring illegal immigrants and paying them less than other employees, federal authorities said Tuesday that they would seek to seize the couple’s two hotels.

This followed a raid earlier this year which found that roughly half the employees at the two hotels were undocumented workers. The feds allege the couple paid the workers with cash and paid them less than the minimum wage, including to an undercover agent who told the couple he was an illegal alien.

According to Kansas U.S. Attorney Barry Grissom, the agency would continue to go after employers for illegal hires, warning "We are going to enforce immigration laws, and we are going to enforce them equally ... we’re not going to enforce them merely on the backs of (undocumented workers).

This is part of a new approach to dealing with the illegal immigration issue by going after employers. Two years ago, the New York Times reported on the agency's new focus:

Questions about Unemployment Insurance reforms in South Carolina

Depending upon who you ask, efforts to crack down on eligibility for unemployment insurance may or may not be paying off. This year, the agency that issues these payments says they're on track to pay out significantly less for unemployment claims, with an expected $300 million paid out, a full third less than the $450 million paid out in 2011.

Why is this important? The state's unemployment insurance fund is supported by payroll taxes from employers. Fewer claims allow the agency to cut back taxes and pay back money borrowed from the federal government to help make payments in past years.

But there are differing opinions on the issue about the potential for rate reductions for employers between staff who oversee the program and State Senator Kevin Bryant, an Anderson County Republican who chairs the State Senate's Labor, Commerce and Industry Committee's subcommittee that oversees unemployment insurance issues.

New federal EEO expectations for criminal background checks

Criminal background checks can be an effective way to avoid problems in the workplace, but if not done properly, background check processes can create more headaches than they avoid, thus employers should use them with caution. 

A recent 4-to-1 vote by the U.S. Equal Employment Opportunity Commission (EEOC) to approve new guidance for employers conducting criminal background checks is certainly going to raise the bar even higher for employers.While the guidance from the EEOC is not a regulation, it is a warning of growing concern by the Commission and will help inform its field staff when conducting investigations and considering enforcement actions. 

One of the key motivators for this decision was driven by concerns about employers who inappropriately used criminal background checks. The most egregious example was employers who screened out applicants based upon arrest histories, not taking the time to determine if the arrests led to convictions. In too many cases, arrests resulted in dropped charges, meaning people who were found not guilty in the eyes of the law were found guilty in the eyes of an irresponsible employer.