Do you know how to properly account for holidays when calculating FMLA leave?

As we approach the end of the year, employers will be confronted with this question as they recognize Hanukkah, Christmas, New Year's Day or even a temporary shutdown during the last week of the year.

Accounting for holidays or temporary shutdowns when calculating FMLA leave can be tricky business. With all of the other year-end tasks you've been assigned, it may seem like one more compliance issue for you to struggle with when you're already swamped with other things.

The good news is that calculating FMLA leave around holiday time doesn't have to be a struggle. There are some simple tips that can help you calculate FMLA leave correctly and confidently.

In this installment, we speak with Jeffrey Nowak, co-chair of Franczek Radelet's Labor and Employment Practice. Jeff has extensive experience with the Family and Medical Leave Act, and has counseled clients on compliance with FMLA regulations, conducting FMLA audits and training, and successfully litigating FMLA lawsuits. Jeff will talk about the basics of FMLA leave, and give us some suggestions to take the guesswork out of accounting for holidays when calculating FMLA leave.

 

The Age Discrimination in Employment Act (ADEA) permits individuals to bring claims of disparate impact. An employer may be found liable for discrimination based on its use of policies and practices that appear to be neutral but have a disproportionate adverse effect on a protected class. These kinds of claims are often triggered by reductions in force.

One of the defenses to a disparate impact claim filed under the ADEA is the “reasonable factor other than age” defense (RFOA). If a selection process has a disparate impact based on age, the employer must show that the process chosen and the business decisions made were reasonable.

In February of 2010, the EEOC proposed a redefinition of the RFOA defense to include a set of criteria for establishing the “reasonable factor other than age”. In May of 2010, EEOC Chair Jacqueline A. Berrien testified before a U.S. Senate Committee that the proposed amendments were needed to counteract “a recent spate of case law restricting the rights of age discrimination plaintiffs.”

Two weeks ago, the EEOC voted 3-2 in favor of a draft final rule defining the parameters of the RFOA defense. The rule will now be sent to the Office of Management and Budget for review, and upon approval, published in the Federal Register as a final rule. The general consensus is that the new rule may make it more difficult for an employer to assert an affirmative defense in response to a disparate impact claim filed under ADEA.

In this installment, we talk about the “reasonable factors other than age” defense, the EEOC’s draft rule defining the parameters of that defense, and what this new rule could mean for employers.

In recent months, the EEOC has been focusing on barriers to employment. The latest commission meeting focused on how to effectively eliminate barriers to employment for veterans with disabilities.

Representatives from the Department of Veterans Affairs, Department of Labor, Office of Personnel Management, Department of Defense and private sector stakeholders testified that veterans with disabilities have unique needs in transitioning to civilian employment, and retaining that employment. Several panelists noted the important role employment plays in easing a veteran’s return to civilian life and recovery from injuries. Ruth Fanning, Director of Vocational Rehabilitation and Employment Services for the VA, stressed the need for early intervention in the transition from active duty to civilian life.  Encouraging injured veterans to plan and work toward civilian career goals “reduces the risk of homelessness, underemployment, or unsuitable employment after discharge from the military.” As George M. Parker, Director of Compliance and Investigations of the Veterans Employment and Training Service (VETS) of the DOL put it, “for wounded and injured veterans, employment can play a significant role in the road to recovery.”

In this installment, we talk about the issues raised during the meeting and highlight some of the ways that barriers to employment for veterans with disabilities can be removed.

For those of us working in EEO compliance, human resources and employment law, we may not feel like there's much to be thankful for lately. Pending changes in the laws, aggressive enforcement strategies by the regulatory agencies, and continued exposure to employment related litigation are going to make our jobs more difficult in the coming months. But there are some good things that have happened, and a lot of positive things on the horizon.

In this installment, we talk about some things to be thankful for when it comes to human resources and employment law. We talk about social media, workplace flexibility and the advancements we've made in civil rights for all members of the labor force. We discuss the importance of acknowledging the small accomplishments that happen every day, and give thanks for some resources that make it easier to stay in compliance with EEO regulations and employment law.

Earlier this week, the United States District Court, District of Columbia ruled that a federal contractor will be required to produce additional compensation data as requested by OFCCP, even though the threshold tests commonly employed by the agency indicated no discrimination.

There’s a war on wage theft. The Wage and Hour Division currently has more than 1,000 investigators, an increase of 40% since 2008. According to Nancy Leppink, Deputy Wage and Hour Administrator, WHD will never have enough resources to address every complaint it receives or to investigate every employer who may not be complying with the law. Because of this, WHD is focusing its resources on industries with a prevalence of low wage and vulnerable workers, and targeting industries that have significant levels of non-compliance. Ms. Leppink believes that using directed enforcement initiatives, instead of relying heavily on the individual complaints the agency receives, is a more efficient use of resources that has a greater impact on compliance – both in the targeted industries and overall.

But is the enforcement path WHD has chosen optimal? Some think that this path restricts flexible employment opportunities, fails to provide for the most positive outcome for employers and employees, and focuses primarily on punishing employers. Others think that WHD’s shift in regulatory and enforcement tactics have made complying with the Fair Labor Standards Act increasingly difficult for employers. They argue that by focusing resources on extensive and often unnecessary enforcement actions, WHD is failing to help good faith employers comply with the law.

In this installment of The Proactive Employer Podcast, we talk about the war on wage theft and WHD. We recap the recent changes to the Agency’s enforcement strategy and talk about the increasing focus on employee misclassification and targeting of specific industries. We also discuss what good – and harm – the new enforcement strategy may be creating.

According to an article appearing in CNN this week, some experts say yes, they are.

Sexual harassment in the workplace is in the spotlight once again thanks to Republican Presidential Contender Herman Cain. Mr. Cain has recently been addressing allegations of inappropriate conduct. The allegations come from two women who are former employees of the National Restaurant Association. Mr Cain led the National Restaurant Association in the 1990s.
Mr. Cain claims he was falsely accused, and that a thorough investigation found that the allegations were baseless; he did acknowledge that a confidential settlement was reached.

Confidential settlements in sexual harassment claims is a common practice. According to attorney Gloria Allred, confidential settlements are extremely common and many of them are done prior to any lawsuit being filed. According to Ms. Allred, the purpose is to avoid litigation and "keep it confidential, because once it's filed it becomes public record."

In this installment, we talk about what constitutes sexual harassment, and provide some suggestions on sexual harassment prevention. We conclude with a discussion of sexual harassment settlements, and whether they truly are part of the cost of doing business.

You're a proactive employer, and are in the process of examining your compensation structure for internal pay equity. You've assembled and cleaned your data, the statistical models have been carefully constructed and the regressions have been performed. You're now presented with a summary of the regression results. Some of those results indicate statistically significant differences and some don't.

What do you do now?

This is THE question - not just for compensation regression, but for any statistical analysis of any kind of employment decision.

If you know what to do next, you'll be able to evaluate potential problem areas, take appropriate action, and do what's in the best interest of your organization and your employees.

If you don't know what to do next, you may overreach and make wide-sweeping changes that can make things worse. You may choose to do nothing, lulled into thinking there are no issues because you've overestimated what statistics can tell you.

In this installment, we talk about what to do when your results are statistically (in)significant. I provide five questions to ask that will help you decide what to do next.

Baby Boomers, Gen Xers, Millennials... does it really make a difference in the workplace?

It seems like we've been talking about this question for ages, and everyone has an opinion. While there are some common themes that transcend generation (e.g., everyone wants leaders who are credible, trust in the workplace is important, etc.), there are substantial differences between generations when it comes to core values, the perception of work, and what each group values most.

These differences in the perception of work and rewards, in turn, has implications for your total rewards strategy.

In this installment, we'll be talking about these differences in the perception of work and rewards, and what those differences mean for base salaries, pay increases, incentives and benefits.

Back in May, the OFCCP proposed some pretty significant changes to its scheduling letter and itemized listing. The comment period on these changes was open until July 11, and numerous commenters expressed serious concern over the proposed changes. Many of the comments submitted were related to the broadened scope of information sought and the increased burden on employers that the changes would create.

Despite the comments, OFCCP has submitted its proposed changes to the scheduling letter and itemized listing virtually unchanged. Most of the issues raised during the comment period were dismissed by the Agency. Interestingly, OFCCP dismissed concerns regarding the amount of time and effort employers would be required to spend responding to the new requests; the Agency contents that the time required for response will actually decrease as a result of the proposed changes.

The most significant changes to the scheduling letter and itemized listing involve the policy and procedure documentation employers would be required to produce, the way in which employers group employees when reporting employment activity, and the compensation data that would be requested.

In this installment of The Proactive Employer Podcast, we talk about these proposed changes and what they mean for employers with Carla Irwin. Ms. Irwin is the President of Carla Irwin & Associates; her firm specializes in developing and implementing Affirmative Action Programs for federal contractors.

Whenever we make a comparison among employees - for Affirmative Action Plans, in the context of litigation, for internal analysis, or just making selection decisions - it's important that to get the groupings right.

Typically, similarly situated employee groupings (aka SSEGs) are constructed for comparing employees. But what does "similarly situated" really mean? What characteristics should be considered when building these groupings? How do we know if one employee really is a comparator for another employee?

Getting the right groupings of employees is essential. Not only do our groupings memorialize our view of our workforce, how we group employees can have a dramatic effect on the outcomes of our comparisons. Improperly grouped employees can render a comparison among those employees meaningless.

There is no magic bullet for defining comparators and constructing SSEGs - a rigid formula simply does not exist. In some respects, it's an art form. But there are a few rules of thumb, and several factors that should be considered.

In this installment, we talk about what makes a good comparator and discuss the rules of thumb for constructing similarly situated employee groupings.

Taking a proactive stance on equal employment opportunity compliance is critical for businesses to succeed in the 21st Century. Too often we only think about EEO compliance after the fact - when a complaint is filed with the EEOC, when we receive a scheduling letter from the OFCCP, when litigation is commenced. Proactive compliance efforts not only lead to a reduction in legal expenses, regulatory fines, and the damage of negative publicity, they lead to improved business outcomes. In this installment, we'll discuss the five elements of the business case for proactive compliance efforts.

What's on the minds of HR practitioners these days? What are the key issues keeping them up at night?

In this installment, we'll be talking about some of the hot topics in HR right now. We'll be recapping the Pennsylvania SHRM state conference and giving you a preview of the Ohio SHRM state conference. We're going to give you the inside scoop on what's hot right now. We’re also going to tell you where to look for detailed information on these issues you can't afford to ignore!

We've gotten used to seeing some big numbers in EEOC litigation. But the latest big number - $2.6 million in attorneys' fees, costs and expenses - comes with a twist. This time, it will be coming out of the EEOC's pocket.

A Michigan federal judge took the EEOC to task for its "reckless sue first, ask questions later strategy." The Court's opinion made reference to the EEOC's failure to investigate before filing suit, failure to engage in conciliation efforts before filing suit, and generally making things difficult for Cintas Corporation for more than 11 years.

In this installment, we talk about this landmark decision, what it means for employers, and how it might affect future EEOC investigations.

In last week’s installment of The Proactive Employer, we discussed planning for a reduction in force and the importance of examining your initial selections for adverse impact. As a follow-up to our termination theme, this week we’ll be discussing economic damages in wrongful termination litigation.

When evaluating the economic damages in wrongful termination litigation, the central question being addressed consists of two components: (1) what is the likely compensation that the individual would have earned but for the alleged wrongful termination, and (2) what is the likely compensation that the individual can be expected to earn from alternate employment given the alleged wrongful termination.

In this installment, we’ll discuss wrongful termination and the factors that go into a calculation of damages resulting from wrongful termination. We’ll talk about the importance of mitigation and the kinds of information about job search and alternate employment that go into the damages calculations.

The economic forecasters are telling us that the recovery is underway, but many businesses are still struggling. Unfortunately some organizations may need to adjust the size of their workforces to not only remain profitable but to remain sustainable.

Examining your initial selections for disparate impact is an important part of planning for a reduction in force. In this installment of The Proactive Employer Podcast, we discuss how to plan for a reduction in force and use statistics to examine your selections for disparate impact.

The wait is over… OFCCP has publised the Advanced Notice of Proposed Rulemaking on the compensation data collection tool.

According to the ANPRM, the purpose of the new tool is to provide insight into potential problems of pay discrimination by contractors that warrant further review or evaluation by OFCCP. The tool is envisioned primarily as a screening tool, although it may also have research value.

Possible uses for the collected data include generating insight into potential problems of compensation discrimination at the establishment level that warrant further review or evaluation by OFCCP and to identify and analyze industry trends, Federal contractors' compensation practices and potential equal employment-related issues.

Even though it's only an advanced notice, it gives significant insight into where the Agency is heading and what employers can expect.

In this installment, we'll be talking about the data collection tool, what kinds of information may be collected and implications for employers.

Compliance took over New Orleans last week as the 201 Industry Liaison Conference marched into town.

On July 27, OFCCP Director Patricia Shiu delivered a keynote address. She discussed the Agency's renewed commitment to the core values of equality, fairness and opportunity for all. She also shared how the OFCCP is doing things differently, and discussed recent developments in enforcement with respect to individuals with disabilities, protected veterans and pay discrimination. Director Shiu highlighted more collaboration with other civil rights and worker protection agencies and the development of a unified civil rights agenda.

In this installment, we discuss the implications of these regulatory changes, increased collaboration and a unified civil rights agenda. We highlight some key areas for employers to pay attention to and provide some practical suggestions on what businesses should start doing now to prepare.

In part two of our roundtable discussion on HR and social media, we're joined once again by the authors of Think Before you Click: Strategies for Managing Social Media in the Workplace. Jonathan Hyman (Ohio Employer's Law Blog; @jonhyman), Seth Borden (Labor Relations Today; @SHBorden), Molly DiBianca (Delaware Employment Law Blog; Going Paperless; @MollyDiBi), Eric Meyer (The Employer Handbook Blog; @Eric_B_Meyer), Philip Miles (Lawffice Space; @PhilipMiles), Rob Radcliff (Smooth Transitions; @robradcliff), and Daniel Schwartz (Connecticut Employment Law Blog; @danielschwartz) are back to share more expertise!

In Part 2, we discuss confidentiality issues, the National Labor Relations Board and their position on social media, discovery and litigation issues, using social media in recruiting and hiring, and how social media can increase employee engagement. Our experts also share their bottom-line advice on HR and social media.

Social media has evolved into a mainstream way of communication. From blogging and Tweeting, to Flickr and Facebook, to Yelp and YouTube, social media has exploded. This explosion has created some horror stories causing careers to implode: the secret blogging of Whole Foods CEO John Mackey, a woman’s Facebook rant on why she wanted to be fired, and the recent Twitter scandal involving former Representative Anthony Weiner.

The social media explosion has also created a few firestorms for companies. Remember the YouTube video of the rats running through a fast food restaurant in New York City? Or how about the Chrysler employee who dropped an F bomb in the corporate Twitter stream?

Like it or not, social media is something employers have to deal with. But it raises a lot of questions – should we have a formal policy? What should it say? Are there privacy concerns? How to we ensure that our trade secrets stay secret? What if we’re involved in litigation – what’s discoverable and what’s not? It seems like the questions are never-ending.

The good news is that there's a new resource available to help answer these questions. Jon Hyman's new book, Think Before You Click: Strategies for Managing Social Media in the Worlplace, assembles an all-star lineup of labor and employment lawyers, bloggers and social media adopters discussing nearly every aspect of social media - from hiring and recruiting, privacy, confidentiality and non-competition agreements to social media policies, discovery and litigation.

The Proactive Employer Podcast has lined up all seven of these experts for a special two-part round table discussion on what you need to know about social media. Jonathan Hyman (Ohio Employer's Law Blog; @jonhyman) of Kohrman Jackson and Krantz will be providing suggestions on how to implement and enforce an effective and workable social media policy. Seth Borden (Labor Relations Today; @SHBorden) of McKenna Long & Aldridge will be discussing social media, labor law, and the flood of NLRB complaints we're seen recently. Molly DiBianca (Delaware Employment Law Blog; Going Paperless; @MollyDiBi) of Young Conaway Stargatt & Taylor will provide insight into social media and privacy concerns. Eric Meyer (The Employer Handbook Blog; @Eric_B_Meyer) of Dilworth Paxson will be discussing social media, discovery and litigation. Philip Miles (Lawffice Space; @PhilipMiles) of McQuaide Blasko will talk about the nuts and bolts of social media from an HR perspective. Rob Radcliff (Smooth Transitions; @robradcliff) of Langley Weinstein will provide guidance on social media, confidentiality, non-competition agreements, and trade secrets. Daniel Schwartz (Connecticut Employment Law Blog; @danielschwartz) of Pullman & Comley will be discussing social media, recruiting and hiring, and employee engagement.

Our experts have so much information to share, we had to divide the discussion into two parts! In Part 1, we discuss social media as a new way of communication, why employers should be concerned about social media, the continual evolution of social media and how employers can stay up-to-date, and some privacy concerns presented by social media.

The Department of Labor's Spring 2011 regulatory agenda is now available. This agenda outlines all of the regulations the Agency expects to have under active consideration for promulgation, proposal or review during the next six to twelve months.

The regulatory agenda focuses on supporting the "Plan / Prevent / Protect" strategy to increase compliance. You'll remember this strategy from the Spring 2010 Regulatory Narrative (here's what we had to say last year).  In short, this strategy places more emphasis on employers managing their own compliance:

“We are going to replace ‘catch me if you can’ with ‘Plan/Prevent/Protect’. In various ways, employers and other regulated entities will be asked to assemble plans, create processes, and designate people charged with compliance. They will be required to implement these plans and evaluate their effectiveness in achieving compliance. While the Labor Department can be flexible about which path is chosen to achieve compliance, compliance will be non-negotiable under the ‘Plan/Prevent/Protect’ system.”

In this installment of The Proactive Employer podcast, we'll be discussing the "Plan / Prevent / Protect" compliance strategy and what it means for employers, as well as highlights from the  Department of Labor's live Q&A webchats from the week.

Recently, the Department of Labor announced that AstraZeneca will pay $250,000 to settle allegations of gender discrimination. The dollar value of the assessment is hardly newsworthy. But the settlement decree has an interesting twist - it requires AstraZeneca to conduct a statistical analysis of base pay of sales specialists.

The required statistical analysis is the key takeaway here, and the upshot is that it's better to examine your data before problems occur, rather than after.

In this installment, we discuss the AstraZeneca settlement decree, why the company should have been examining its compensation data in the first place, and how to go about a statistical analysis of compensation. We'll also discuss five key points that can keep your proactive analyses confidential, protected, and privileged.

On Monday, June 20th, the Supreme Court reversed certification in the Wal-Mart class action claim. The decision means that the gender discrimination lawsuit - involving 1.5 million female employees - included too many women who had a range of experiences that were too broad. The Supreme Court decided that the women would be better served with multiple lawsuits involving smaller groups of women. Wal-Mart may be faced with smaller class actions based on specific geographic areas (stores / districts / regions), specific job titles, discrete periods of time, and so forth.

The decision has been taking the media by storm - and has left many employers wondering what the decision really means for them.

In this installment, we talk about the Supreme Court's decision and key arguments made by Wal-Mart and the plaintiffs that factored in to the decision. We discuss how these arguments affect your policies and procedures, and what you should be looking for when reviewing your data for equity.

 

There are big changes underway at the OFCCP. We’ve been talking about these changes and what they mean for you all month long. In this week’s podcast installment, we’re going to conclude OFCCP month at The Proactive Employer with a discussion about the proposed changes regarding veterans.

On April 26^th, the OFCCP published a Notice of Proposed Rulemaking entitled “Affirmative Action and Nondiscrimination Obligations of Contractors and Subcontractors Regarding Protected Veterans.” This proposed rule strengthens affirmative action obligations regarding veterans, increases data collection and production requirements for contractors, and establishes hiring benchmarks for veterans.

Joining us to talk about these changes is Ted Daywalt. Mr. Daywalt is President and CEO of VetJobs, the leading military job board on the Internet. Mr. Daywalt is a retired Navy Captain with 28 years of service. He is a published author and renowned speaker. He frequently speaks to businesses, government agencies and universities on topics ranging from recruiting and retention, international relations, general management, and economic trends. Mr. Daywalt is known nationwide as a veterans advocate. He regularly testifies and works with members of Congress on military, veteran, small business and employment issues. Mr. Daywalt is on the Small Business Council of the U.S. Chamber of Commerce and was one of the CEOs invited to the White House Jobs Summit.

The OFCCP wants more data. The agency's current proposal for all of this additional data has been described by some as both "burdensome" and "stealthy". In fact, McGuire Woods went so far as to say that the OFCCP "does not understand the private sector or have any apparent concern about the burdens and confidentiality issues these proposals place on contractors."

In fact, the OFCCP itself estimated that it would take 103.2 hours and cost $135,000 to collect and provide all the data that could be requested in the revised Scheduling Letter.
The third installment in The Proactive Employer's OFCCP Month line up will focus on this additional data. We'll talk about what additional data you may have to produce, common data collection pitfalls, and the importance of having clean and up-to-date information. We'll also provide some tips on how to clean up your data and some red flags that can signal "dirty" data.

 

June is OFCCP month at The Proactive Employer. This week's podcast installment picks up on two changes we touched on in last week's installment. We'll be focusing on the recent shift from Active Case Management to Active Case Enforcement, and the new scheduling letters.

Carla Irwin will be joining us to talk about the new scheduling letter, what it's used for, and changes to the data being requested by the OFCCP. We'll also discuss the implications of Active Case Enforcement, and what employers should be doing to prepare.

In recent months, the OFCCP has been very busy. The shift from Active Case Management to Active Case Enforcement, the new CSAL Scheduling Letters, the proposed rescission of the Compensation Standards and Guidelines, the publication of proposed revisions to VEVRRA regulations, the promise of more inter-agency cooperation, and the Plan-Prevent-Protect enforcement strategy all have major implications for the way in which federal contractors and subcontractors conduct their day to day operations.

To help keep you up to date on these regulatory changes and figure out what they mean for you, The Proactive Employer Podcast will focus on OFCCP issues during the month of June. We’ve got some great podcast installments lined up.

In this installment, Cathleen Hampton joins us to talk about how these changes affect your policies and procedures (you’ll remember Cathleen from her appearance last October on designing performance management systems that work). She’ll be giving an overview of recent developments at the OFCCP, and talking about how all of these changes tie back in to your policies and procedures in one way or another.

 

Each year, more than 700,000 people are released from federal and state prisons, and another 9 million cycle through local jails. Federal agencies are funding reentry efforts in communites all around the country, and the Obama administration is working across agencies to coordinate and advance efforts through the Federal Reentry Council.

Part of the reentry process is finding employment. In this installment of The Proactive Employer Podcast, we'll talk about what the Federal Reentry Council is doing to assist with these employment efforts. We'll also talk about three common myths regarding employment of individuals with criminal backgrounds. Finally, we'll give you some resources you can turn to for more information.

The Department of Labor has gone high tech - there's a new iPhone App that lets employees log their hours worked and calculate the wages they are due. The Agency stated that "this new technology is significant because, instead of relying on their employers' records, workers can now keep their own records. This information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records."

There's also a new high-tech enforcement database that contains information from EBSA, MSHA, OFCCP, OSHA and the Wage and Hour Division. The database is searchable by company name, violation, penalty amount, and year. Additionally, all enforcement data is available for download.

In this installment of The Proactive Employer, we talk about these two high-tech tools and how they fit into the Department of Labor's overall enforcement strategy.

Are you using statistics to examine your hiring, promotion and termination decisions? If not, your decisions may have a discriminatory effect and you wouldn't even know it.

The discrimination we're talkiong about, of course, is adverse impact. Adverse impact hides in an organization's policies and practices - it doesn't arise from personal interactions. With adverse impact, the intent of the decision-maker is irrelevant. It doesn't matter whether the decision-maker intended to discriminate or not. Adverse impact is a statistical question, and if you're not statistically examining your employment decisions, adverse impact could be hiding in your policies and practices right now.

How big is big enough to matter? How rare does an event have to be before we conclude that pure chance didn't cause it?

These are the two fundamental questions you have to ask yourself when reviewing your policies and practices for discrimination. These two questions are answered by practical and statistical significance, respectively. Statistical significance has a generally accepted rule of thumb that makes it relatively easy to determine if an event is rare enough to conclude that pure chance didn't cause it. Practical significance, on the other hand, has no generaly accepted rule of thumb; practical significance is a questions of judgment. This judgment is critical to assessing and managing the risk of employment discrimination litigation.

In this installment of The Proactive Employer Podcast, we talk about practical and statistical significance. We discuss the differences between the two concepts, and talk about why it's important to consider both pratical and statistical significance when examining your policies and practices for discrimination.

Did you know that a few extra pounds may lead to a lighter paycheck?

Recent research suggests that there is a relationship between gender, earnings and obesity. Interestingly, there’s a gender double-standard: thinner women tend to earn more than heavier women, but thinner men tend to earn less than heavier men. The authors of this research state that ”employers have internalized the notion that employees’ weight matters.” Some studies have reported that 60% of overweight women and 40% of overweight men indicate that they have been victims of discrimination.

In this installment of The Proactive Employer Podcast, we’ll be talking about the relationship between gender, earnings and obesity, and why some think that the expanded definition of disability under the ADAAA may lead courts to accept obesity as a disability claim.

The Four Horsemen of the Compensation Apocalypse have arrived...

(I use the term apocalypse to mean "events of great importance", not "the complete and total destrction of the world")

 In the last two years, there have been four major events that have impacted the way we study compensation from an internal equity perspective:

1. The Ledbetter Fair Pay Act;

2. Creation of the National Equal Pay Enforcement Task Force;

3. The OFCCP's proposal to rescind the Compensation Standards and Guidelines;

4. The reintroduction of the Paycheck Fairness Act.

On their own, each of these events has implications for how employers make compensation decisions and how internal pay equity is examined. Together, they have the potential to revolutionize the way pay decisions are made, and may change the rules of internal pay equity forever.

In this installment, we discuss each of these four events, and what each means for employers.

This past Tuesday was Equal Pay Day, the day that represents how far into 2011 women have to work to earn what men earned in 2010. To mark Equal Pay Day, Representative Rosa DeLauro and Senator Barbara Mikulski reintroduced the Paycheck Fairness Act into the House and Senate, respectively. 

The Paycheck Fairness Act died in the Senate last November, but supporters promised that they would continue to work on getting this "commonsense" law passed. In this installment of The Proactive Employer Podcast, we'll be discussing the Paycheck Fairness Act and the gender pay gap. We'll talk about what the Act could mean for businesses, how it might affect employment, and whether the Act will have an impact on reducing the gender pay gap.

Last week, the Equal Employment Opportunity Commission has released its final regulations to implement the ADA Amendments Act (ADAAA). In this week’s installment of The Proactive Employer Podcast, we’ll be talking about the final regulations – and what they mean for employers – with Sheridan Walker. Ms. Walker is the President of HirePotential, a leading national consulting and staffing firm delivering end-to-end services to corporations, assisting them with OFCCP compliance, employment, accommodations, accessibility, recruitment and retention of the untapped workforce. She is an expert in the disability field with 25 years of broad-based experience. Ms. Walker has served on the National Disability Mentoring Day Committee for Colorado and the President’s Task Force on the Employment of People With Disabilities. We’ll be discussing how the new regulations will impact employers, emphasizing what employers need to know about accommodation and accessibility. We’ll also be talking about some societal shifts in the perception of individuals with disabilities, and talk about some practical ways employers can incorporate this largely untapped workforce into their organization.

 

Earlier this week, the Supreme Court of the United States heard oral arguments in Wal-Mart v. Dukes, the largest employment discrimination class action claim to date. One of the more interesting aspects of the oral arguments, for me, was the exchange between Justice Kennedy and plaintiffs' attorney, Joseph Sellers, regarding an apparent internal contradiction in the plaintiffs' theory:

Q: It’s not clear to me: What is the unlawful policy that Wal-Mart has adopted, under your theory of the case?

A: Justice Kennedy, our theory is that Wal-Mart provided to its managers unchecked discretion in the way that this Court’s Watson decision addressed that was used to pay women less than men who were doing the same work in the same – the same facilities at the same time, even though – though those women had more seniority and higher performance, and provided fewer opportunities for promotion than women because of sex.

Q: It’s – it’s hard for me to see that the – your complaint faces in two directions. Number one, you said this is a culture where Arkansas knows, the headquarters knows, everything that’s going on. Then in the next breath, you say, well, now these supervisors have too much discretion. It seems to me there’s an inconsistency there, and I’m just not sure what the unlawful policy is.

This exchange highlights the importance of internal consistency. Whether it's your claims in a lawsuit, your internal policies and practices, or the way in which those policies and practices are implemented, consistency is key.

In this week's installment of The Proactive Employer, we'll be providing a short re-cap of the oral arguments in Wal-Mart v. Dukes, highlighting the internal consistency issue. We'll also be discussing some practical ways in which employers can ensure that their policies and practices are applied in a consistent manner.

What are YOU doing to protect your organization from claims of retaliation? Are you even thinking about retaliation? You should be, because the Supreme Court of the United States is, and chances are your employees are more aware of their protections against retaliation. In the last two months, the Supreme Court of the United States has issued three decisions relating to retaliation claims.

On January 24th, the Supreme Court ruled in Thompson v. North American Stainless that anyone within the “zone of interests” may have a claim of retaliation, even if they did not participate in the original complaint of discrimination. This decision effectively permits third-party claims of retaliation.

About a month later, on March 1st, the Supreme Court of the United States issued a decision that allows employers to be liable for discrimination based on the bias of an employee’s supervisors. The decision in Staub v. Proctor Hospital, is being described by many as the most important employment law decision of the last decade.

And now, three weeks after the Staub v. Proctor Hospital decision, the Supreme Court has issued yet another decision relating to retaliation. The decision, in Kasten v. St. Gobain Performance Plastics Corporation, holds that the anti-retaliation provisions of the Fair Labor Standards Act protect an employee’s oral complaints about wage and hour violations.

In this installment, we'll be discussing the implications of these decisions for employers, and we'll provide some practical suggestions on how to keep your workplace free from retaliation claims.

If you’re like me, you’re starting to think about spring. The crisp mornings and afternoon sunshine – and of course the daffodils – mean that spring is right around the corner. Part of thinking about spring means thinking about spring cleaning – opening the windows to the fresh spring air, getting rid of accumulated things during the winter months, planning for home improvement projects and landscaping, and making sure everything is is order.

Spring cleaning your business is just as important, and if you follow a few simple steps, can be just as refreshing. In this installment of The Proactive Employer podcast, we’ll be talking about some ways you can refresh your workplace by revisiting your compliance policies and implementing proactive analyses to ensure that you’re on the right track.

On March 1st, the Supreme Court of the United States made a decision that allows employers to be liable for discrimination based on the bias of an employee’s supervisors, even though the supervisors did not make the actual decision to terminate the employee. The decision in Staub v. Proctor Hospital, is being described by many as the most important employment law decision of the last decade.

Joining us today to talk about this decision, and what it means for employers, is Timothy Eavenson. Mr. Eavenson is an attorney in the Labor and Employment Practice Group of SmithAmundsen. He regularly counsels employers on discrimination, wage and hour, and other HR-related issues, and he represents businesses in employment disputes throughout the country. Mr. Eavensen is also the author of the blog, Current Employment, where he writes about issues relating to the workplace and the law.

Are you ready for a desk audit? The OFCCP’s Active Case Management (ACM) was replaced by Active Case Enforcement on January 1. There are five main differences between ACM and ACE: (1) Compliance evaluation – under ACM, the compliance review method was used. Under ACE, all compliance evaluation methodologies – including the compliance check – will be used; (2) Size of protected group – ACM focused on cases of systemic discrimination where there were ten or more affected class members. ACE does not have a minimum number of affected class members; (3) Desk audits – under ACM, desk audits were performed only when there was an indication of discrimination, or alternatively, in every 25th review. Under ACE, all compliance evaluations will begin with a full desk audit; (4) Evidence of discrimination – anecdotal and statistical evidence were considered under ACM. ACE considers anecdotal and statistical evidence, but also looks at patterns of individual discrimination, technical violations (for example, recordkeeping and records retention) and failure to comply with other laws; (5) Onsite reviews – Under ACM, onsite reviews were limited to the indicators triggering the review. Under ACE, onsite reviews will be comprehensive and not limited in scope. In this week’s installment of The Proactive Employer podcast, we’ll be discussing the differences between Active Case Management and Active Case Enforcement in more detail, and talk about what this change means for employers.

Last week, the EEOC held a hearing to examine the impact of only considering employed applicants for job vacancies. EEOC Chair Jacqueline Berrien stated:

“Throughout its 45 year history, the EEOC has identified and remedied discrimination in hiring and remains committed to ensuring job applicants are treated fairly. [The] meeting gave the Commission an important opportunity to learn about the emerging practice of excluding unemployed persons from applicant pools.”

Several experts testified during the hearing, including:

Helen Norton, Associate Professor at the University of Colorado School of Law; Fatima Goss Graves, Vice President for Education and Employment of the National Women’s Law Center; Algernon Austin, Director of the Program on Race, Ethnicity, and the Economy of the Economic Policy Institute; Dr. William Spriggs, Assistant Secretary of Labor for Policy; Christine Owens, Executive Director of the National Employment Law Project; James Urban, partner at Jones Day; Fernan Cepero, representing the Society of Human Resource Professionals.

In this installment of The Proactive Employer Podcast, we provide some highlights of the testimony given at the meeting, and talk about how limiting the candidate pool to employed individuals may have a disparate impact on racial minorities and individuals with disabilities. We also discuss some of the key issues employers are attempting to address by using employment status, and provide some suggestions on alternative screening criteria to address those key issues.

On Monday, February 14th, Secretary of Labor Hilda Solis hosted a live webchat on the 2012 budget. She was joined by other leaders from the Department of Labor; together, they fielded questions on regulation updates, Veterans affairs, disability, OSHA studies, compliance issues, worker protection, and WIA reauthorization. On Wednesday, February 16th, Secretary Solis testified before the U.S. House Education and the Workforce Committee, chaired by Rep. John Kline (R-MN). In this installment of The Proactive Employer Podcast, we be discuss the highlights of both the webchat and the webcast. We also talk about the priorities and policies at the Department of Labor, and what they mean for employers in the coming months.

There are two main legal theories of discrimination: disparate treatment and disparate impact. Disparate treatment is what we typically think of when we think about discrimination. Disparate treatment occurs when a decision-maker intentionally treats members of one group differently than members of another group. Disparate impact, on the other hand, focuses not on the intent of the decision-makers, but the criteria they use. In a disparate impact claim, the intent of the decision-maker is irrelevant. Disparate impact exists when a facially-neutral policy or practice has different effects on different groups. It’s important to note that disparate impact is not in-and-of itself illegal. Under the Civil Rights Act, disparate impact is prohibited only if the employer cannot demonstrate that the employment practice creating the adverse impact is job related and consistent with business necessity.

In this week's installment of The Proactive Employer Podcast, we'll be discussing how to examine questions of disparate impact. We'll talk about how the questions are typically framed, the kinds of data and documentation needed for an analysis, and factors to consider when constructing the study population.

Retaliation claims are the leading type of claim filed with the EEOC. For the second year in a row, more employees complained about retaliation than any particular form of discrimination. The 36,258 retaliation complaints filed during 2010 represent an 8% increase from 2008, and a 61% increase from 2006. Some experts are predicting even more retaliation claims will be filed as a result of the Supreme Court’s decision last week in Thompson v. American Stainless. This decision could broaden the scope of individuals who may be able to raise a claim of retaliation. Anyone within what the Supreme Court referred to as the “zone of interests” may now have a claim of retaliation, even if they didn’t participate in the original complaint of discrimination.

In this installment, we talk about this Supreme Court decision and what it means for employers with Philip Miles. Mr. Miles is an attorney at McQuaide Blasko in State College, Pennsylvania. His practice areas include labor and employment law and general civil litigation. Mr. Miles is the author of the blog Lawffice Space, and has been quoted in Business Insurance and has had feature articles published in ABA Law Practice Today, and the Pennsylvania Bar Association Civil Litigation Update.

This Friday, January 28th, is The Proactive Employer's first anniversary! The podcast was launched on January 29, 2010. Since then, we’ve done our best to bring you the compliance and employment litigation risk management information you need in a format you can use. We’ve covered a wide array of topics, from Affirmative Action Plans to zoning issues for telecommuting employees.

To celebrate our anniversary, we have a great installment lined up that exemplifies the podcast. Jonathan Hyman will be joining us to talk about ten issues of importance to every employer:

1. Documentation and document retention;
2. Applications, background checks and new hires;
3. Confidentiality;
4. Technology;
5. EEO: discrimination, harassment, and retaliation;
6. Wage and hour issues;
7. FMLA and benefits;
8. Immigration;
9. Health, safety, and security;
10. Evaluation, discipline, and termination.

Mr. Hyman will be giving us some suggestions on best practices and on identifying potential problem areas.

These ten issues are drawn from Mr. Hyman's proprietary 200-point audit of human resources and employment policies and practices. For listeners who are interested in discovering which areas of their business are out of compliance and open to legal risk, Mr. Hyman is willing to conduct this preliminary audit without charge.

Amazon has anywhere from 24 to 26 dogs that come to work daily at the Seattle, Washington headquarters. Ben and Jerry's, based in South Burlington, Vermont, has 15 office dogs who are introduced by name to company guests right alongside the employees. Is having a pet-friendly workplace right for your organization? There are several upsides but also some downsides and some legal concerns. Today, we'll be talking about pet-friendly policies with our guest, Abigail Perdue. Ms. Perdue is a labor and employment attorney who has researched and written on this interesting and important issue.

At last summer's National Industry Liaison Conference, Patricia Shiu announced that the OFCCP would be rescinding the Compensation Standards and Guidelines. Since then, the OFCCP has been relatively silent on the pending rescission - that is, until last week.

On Monday, a Federal Register Notice provided some additional detail into the underlying reason for the rescission. The OFCCP stated that the Standards have limited their ability to effectively investigate, analyze and identify compensation discrimination. The OFCCP believes that the current Standards, which are based on multiple regression analysis, are too rigid. The Agency is planning to "re-institute flexibility in its use of investigative approaches and tools."

With respect to the Guidelines, the OFCCP proposes to disseminate guidance via webinars, the Frequently Asked Questions (FAQ) section of its website, etc., rather than through the issuance of a Federal Register notice.

In this week's installment of The Proactive Employer Podcast,we'll be discuss the reasons for the proposed rescission, possible replacement analysis methods, how the rescission might affect the contractor community with respect to the audit process and the findings of discrimination, and what employers should do now to prepare.

In the wake of the recent financial crisis, Congress has passed the Frank-Dodd Financial Reform Act. The Act focuses on oversight, and establishes some new committees and councils, such as the Consumer Financial Protection Bureau and the Financial Services Oversight Council has also been created to serve as an early warning detection system for storms brewing in the markets.

But there is an aspect of the Act that has largely been overlooked. It mandates that every federal finance agency must establish an Office of Minority and Women Inclusion. According to the Act, the goal is to “ensure equal employment opportunity and racial, ethnic and gender diversity.” At least twenty federal agencies are expected to be affected by this, including the Federal Reserve. Existing offices or diversity programs must be replaced by January 20, 2011. Many think that this measure will eventually extend to private financial institutions.

Given the increased scrutiny placed on the financial services sector lately, employers in this space cannot afford to ignore the risk of employment practices litigation. In this installment of The Proactive Employer podcast, we’ll be discussing the implications of the Frank-Dodd Financial Reform Act for private financial institutions, and provide some suggestions on managing the risk of employment discrimination claims.

This Friday is December 31, the last day of 2010. We have a special installment of The Proactive Employer Podcast- we're re-capping highlights from this year's most listened-to installments. We'll be featuring ten clips:

1. OFCCP Compensation Guidance with Leigh Nason;

2. Timekeeping and FLSA issues with Jose Gaona;

3. Social Media Policies with Dena Calo and Eric Meyer;

4. Workplace Violence with Steve Foster;

5. Reductions in Force with Jonathan Hyman;

6. New Perspectives on Disability Employment with Cari Dominguez, Sheridan Walker and Jonathan Hyman;

7. Employee Handbooks with John Bagyi;

8. Affirmative Action Plans with Carla Irwin;

9. Workplace Investigations with Mary Schaefer;

10. Compliance with Steve Browne.

We hope you enjoyed our 2010 installments, and we look forward to bringing you great content and information you can use in 2011. From all of us at The Proactive Employer and Thomas Econometrics, we wish you a happy and healthy New Year.

According to the Government Accountability Office, the United States government is losing billions in tax revenues each year as a result of employees being incorrectly classified as independent contractors. Many think that this lost revenue is the driving force behind a wave of federal legislation that will discourage employers from classifying employees as independent contractors. It's important for employers to stay up-to-date on this pending legislation, and to start taking proactive steps to prepare.

In this installment of The Proactive Employer podcast, we'll be discussing the Employee Misclassification Act, the Fair Playing Field Act of 2010, and providing strategies employers can use to ensure that they are properly classifying their employees and independent contractors.

Telecommuting is becoming more commonplace. It's not unusual to see people working in coffee shops and cafes, parks, at the beach, and from their kitchen tables. Many employers are offering their employees the opportunity to work remotely. And the federal government is one of those employers.

Last week, President Obama signed the Telework Enhancement Act into law. The law requires all federal agencies to establish telework policies within six months. According to information from the Office of Personnel Management, approxmately 1.2 million federal employees could be eligible for telework by June 2011. Under the Telework Enhancement Act, federal agencies are required to determine telework eligibility for their staff and notify all workers who are eligible to telework under the new policies. Additionally, each agency must establish a telework managing officer who reports directly to the agency's head.

Many private sector employers have been offering teleworking opportunities for their employees for years. And now that the federal government is offering a telework option, some employers may be considering offering their own telecommuting program. Telecommuting can be a win-win situation for employers and employees alike. But before jumping head first into offering telecommuting, employers should be aware of some potential legal issues raised by remote working. Kristina Klein and Ashley Hager have identified ten areas to consider before taking your telecommuting program live.

Earlier this week it was announced that the Supreme Court has agreed to hear the appeal of the class certification of the largest employment discrimination lawsuit ever filed in this country, Dukes v. Wal-Mart. As noted by Jon Hyman, this appeal not only impacts the more than 1.5 million potential class members who seek billions of dollars in damages - it has the potential to shape the future of employment class action litigation for years to come.

In this week's installment of The Proactive Employer Podcast, we'll be discussing the Dukes v. Wal-Mart case and its implications for employment class action litigation. We'll also be talking about the importance of being a proactive employer when it comes to managing your risk of employment litigation.

As the end of the year approaches, we're beginning to think about what the 2011 employment discrimination litigation landscape will look like. Many are predicting an increase in disability claims, retaliation claims, and age discrimination claims. But we're also beginning to see more religious discrimination claims, and many think this trend will continue into the new year. In this week’s installment of The Proactive Employer Podcast, we’ll talk about the recent trends in employment discrimination litigation and what employers can expect during 2011.

The Equal Employment Opportunity Commission has issued its final regulations that interpret and implement the nondiscrimination requirements of the Genetic Information Nondiscrimination Act. In general, the final regulations don’t differ substantially from the ones proposed by the agency in 2008. But the final regulations do provide specific examples of what employers must do - and refrain from doing - in order to comply.

In this installment, we talk about the final regulations and what they mean for employers.

The U.S. Equal Employment Opportunity Commission (EEOC) recently held a public Commission meeting to hear testimony from representatives of various stakeholder groups as well as social scientists and the Federal Trade Commission on the growing use of credit histories as selection criteria in employment.

In this installment, we talk about the use of credit histories as selection criteria with Daniel Schwartz. Mr. Schwartz is a member of the law firm of Pullman & Comley, and has extensive trial and litigation experience in both federal and state courts. He represents employers in various employment law matters such as discrimination, human resources, retaliation and whistle blowing, and wage and hour issues. He is the author of The Connecticut Employment Law Blog, and is a frequent presenter on a wide range of employment law topics. 

Veterans Day is observed every year on November 11. Veterans Day is a celebration to honor America's veterans for their patriotism, love of country, adn willingness to serve and sacrifice for the common good. In honor of Veterans Day, today we'll be speaking with James Rodriguez, the Director of Warrior Integration for BAE Systems Inc. The Warrior Integration Program is designed to facilitate the employment of veterans of Operation Iraqi Freedom and Operation Endutring Freedom. Mr. Rodriguez is a retired United States Marine First Sergeant with 21 years of active service. He is a member of the caregiver's leadership team with Operation Home Front and is an active partner with the Wounded Warrior Project. We'll be discussing the employment situation of America's veterans, and how businesses can reach out to this important component of the labor force.

Social media is quickly evolving into a mainstream way of communication. As Sharlyn Lauby stated, "companies are realizing that people are talking about them whether they like it or not." Many are responding by cultivating their own social media presence. But having a social media presence leads to a host of questions - should we have a formal policy? Who should it cover? What should it say? It seems as though there are two schools of thought when it comes to social media policies. Some organizations feel more comfortable establishing a formal policy right from the beginning. Their social media presence essentially begins with the policy. Others argue for an evolutionary approach. They see a benefit in looking at the risks and opportunities by experimenting with social media before instituting a formal policy.

In this installment, we talk about social media and social media policies with Dena Calo. Ms. Calo is an attorney in the Newark, New Jersey office of Genova Burns & Giantomasi. She is the Director of the firm's Human Resource Practices Group, and provides employment law counseling and training to organizations.

Managers cite performance appraisals and annual reviews as one of their most disliked tasks. Employees aren't usually fond of them either. I'm sure that many of you have experienced being called in to your supervisor's office for your annual review, only to hear nebulous comments about your performance that don't really tell you anything about how you're doing. A lot of managers are really bad at performance evaluation. But these managers are set up to fail because of deficiencies in the performance management system. A poor performance management system provides little guidance to employees on how they're performing and fails to move the organization forward. A poor performance management system can also be a source of legal difficulties and discrimination claims.

In this installment, we'll be discussing performance evaluation with Cathleen Hampton. Ms. Hampton has more than 25 years of experience in planning, developing and executing comprehensive HR strategies. Ms. Hampton is a nationally known presenter on human resources topics including HR and organizational compliance strategies, organizational and management development, performance management, HRD strategy and human capital.

The Department of Labor recently released its Five Year Strategic Plan. The plan represents a major shift in the agency's approach. Coupled with the agency's regulatory agenda, there are some important implications for employers. Employers need to take a more proactive approach to compliance efforts. In this installment, we'll talk about some strategies employers can use to take charge of the EEO efforts and stay compliant.

The Paycheck Fairness Act is being heralded as the "commonsense" bill we need to finally achieve gender pay equity. President Obama said it, and others have echoed the sentiment. But is it really common sense? In this installment, we'll be taking a closer look at some of the recent reports on the gender pay gap. We'll also look at how the Paycheck Fairness Act - in its current form - will change the way businesses compensate their employees.

 

October is National Disability Employment Awareness Month, and The Proactive Employer is presenting a special one-hour round table installment on disability issues. We’ll be discussing the various programs and special events being held throughout the month, as well as providing employers with practical suggestions on topics such as:

• Diversity and inclusion of disabled individuals in your workforce;
• HR best practices;
• Compliance issues;
• Accessibility versus accommodation;
• Employers’ legal responsibilities under the ADAAA;
• Effectively recruiting within the disabled workforce;
• Myths about employing disabled individuals.

We have an all-star panel lined up for the discussion:

Cari Dominguez is the Former Chair of the U.S. Equal Employment Opportunity Commission (EEOC). She is the co-author of Leading With Your Heart, and the owner of Dominguez & Associates, a management consulting firm providing selective services in the areas of workforce assessments and diversity evaluations. Her public service includes being the former Chair of the EEOC, Director of the OFCCP, and Department of Labor’s Assistant Secretary for the Employment Standards Administration.

Sheridan Walker is the President of Hire Potential, a national consulting and staffing firm specializing in the Untapped Workforce. She is an expert in the disability field with more than 25 years of broad-based experience, and has lectured across the country on disability issues such as compliance, employment, retention and risk management.

Jonathan Hyman is a partner in the Labor & Employment and Litigation Divisions of Kohrman Jackson & Krantz. He counsels and represents employers on a variety of issues ranging from employment discrimination to disability to wage and hour issues to corporate document retention.

Kevin Bradley is the Director of Diversity for McDonald’s. He has been a speaker on Inclusion and Diversity at a number of venues, including the Department of Labor Office of Disability Employment Policy Employer Meeting and the Society for Human Resource Management’s Diversity Conference and HR Conference. He served as the Chair of the Employer Subcommittee of the President’c Committee on Employment of People with Disabilities and serves on several Boards of Directors.

James Rodriguez is the Strategic Military Talent Manager for BAE Systems, Inc. Mr. Rodriguez is a retired United States Marine First Sergeant with 21 years of active service. He began his career with BAE Systems in March 2009. He is a member of the caregiver’s leadership team with Operation Home Front and is an active partner with The Wounded Warrior Project. He also serves as a veteran and corporate mentor for the Veterans Coalition and The Wounded Warrior Mentor Program.

Federal affirmative action regulations require that federal contractors prepare and implement an affirmative action program. In this installment, we'll be discussing affirmative action strategy, program design, and development. We'll also be discussing a recent decision in a case entitled OFCCP v. Frito-Lay that centered around desk audits, what employers should do to prepare for a desk audit, and what they can expect during a desk audit. Our guest for this installment is Carla Irwin. Ms. Irwin is the president of Carla Irwin & Associates, and is a Partner with the HRLink Group. Prior to her consulting career, Ms. Irwin served as the Affirmative Action Compliance Manager at Zurich North America and as the Director of EEO and Diversity at OfficeMax. She has extensive experience with EEO and affirmative action, and brings both an HR perspective as well as a legal perspective, in that she holds a Juris Doctorate degree from DePaul University College of Law.

Measuring EEO compliance is hard. It's important to have a "bottom line" solution that's easy to calculate, easy to understand, and easy to communicate. In this installment, we discuss why measuring EEO performance is so hard, talk about some practical solutions, and provide some ideas on how to effectively present the metrics to supervisors, managers, and the C Suite.

An employee handbook is the most important communication tool between an employer and its workforce. It’s a statement of the policies of the business and how the business is to be conducted. A well-written handbook sets forth the expectations for employees and describes what they can expect from the employer. An employee handbook should describe the company’s legal obligations as an employer, and the employees’ rights. It’s important that the handbook is clear and as unambiguous as possible. Misunderstandings or misstatements can create legal liabilities for the employer. In legal disputes, courts have considered an employee handbook to be a contractual obligation, so it’s important to word it carefully. Today, we’ll be talking about employee handbooks with John Bagyi. Mr. Bagyi is an attorney in the Albany, New York office of Bond, Schoeneck and King. He counsels and represents employers of all types and sizes in a variety of labor and employment related context, including workplace investigations, policy development and review, wage and hour and EEO compliance, union issues, proceedings before the National Labor Relations Board, the Division of Human Rights and the EEOC, and employment litigation in federal and state courts. He also provides a broad range of employment law and human resource training to executives, managers, supervisors and employees. Mr. Bagyi has written extensively on labor and employment law and is a frequent speaker at national, state and local conferences, including the 2008 National SHRM Conference. Since 2005, he has served as General Counsel to the New York State Society for Human Resource Management.

Workplace violence is a growing concern for employers and employees nationwide. It can occur at the workplace or outside of the workplace. It can range from threats and verbal abuse to physical assaults and homicide, one of the leading causes of job-related deaths. Approximately 2 million American workers are victims of workplace violence each year. Workplace violence can strike anywhere, and no one is immune. But there are some steps that employers can take to protect their employees. Our guest for today’s installment is Steve Foster. Mr. Foster’s 25 years of unique and diversified executive and operational leadership experience combines enterprise Governance, Risk & Compliance expertise, and expert knowledge regarding convergence of security and technology, as well as top level consulting and training in EEO/Internal Controls matters. Mr. Foster’s expertise is rooted in developing integrated SaaS technology solutions in the Governance, Risk and Compliance space. Mr. Foster frequently lectures across the country on the topics related to risk management, ethics and corporate compliance, conducting ethical workplace investigations, fraud, workplace violence, and the convergence of technology and security. He is a recognized Federal Court Expert Witness in the areas of Security Assessment, Analysis and Implementation.

At the National Industry Liaison Group conference earlier this month, Patricia Shiu, Director of the OFCCP, announced that the compensation standards and guidelines are going to be rescinded. It’s not clear what will replace these guidelines, or when the replacement will occur. And some employers are feeling what some have called an informational void. Today, we’ll be talking about those guidelines and possible replacements with our guest Leigh Nason. Ms. Nason is a shareholder in the Columbia, South Carolina office of Ogletree Deakins, and she chairs the firm’s Affirmative Action and OFCCP Compliance Practice Group.

As I’ve mentioned many times before, the Department of Labor is taking a far more aggressive stance, increasing enforcement efforts, prosecuting more aggressively, and seeking larger recoveries from employers. Experts are predicting a surge in wage and hour enforcement efforts. I’ve spoken with several employment attorneys about this, and all of them have indicated that wage and hour issues are the nation’s fastest growing type of litigation. One attorney said that “multi-plaintiff wage and hour lawsuits pose the greatest employment litigation threat to American businesses today."

Now more than ever, it’s essential that employers have accurate and precise records of hours worked. Today we’ll be speaking with an expert in time and attendance. Our guest is Jose Gaona, the Executive Vice President of Operations for Qqest. Mr. Gaona has extensive experience in the time and attendance space. He served 16 years with Ceridian Employer Services where he managed their time and attendance product line.

Our guest for this installment is Philip Miles, an attorney with McQuaide Blasko. We discuss religious discrimination and the various forms it takes, including employment decisions, harassment, accommodation of beliefs and practices, and grooming and dress code policies. We also discuss a recent court decision involving religious discrimination-EEOC v. GeoGroup. Mr. Miles will also offer some practical suggestions for employers on how to keep their workplaces free from religious discrimination.

Our guest for this installment is Mark Dawson, President of JobsFreeForAll. We discuss the recruiting and hiring situation in Hawaii and challenges unique to the islands. We talk about the demographics of Hawaii and how this leads to different types of employment discrimination. We also discuss "English-Only" policies and how they are - and aren't - being used. Finally, we find out if Hawaii really is a recruiter's paradise.

In this installment, we discuss the OFCCP's recent directives on accessibility issues and what it means for recruiters and employers with our guest Sheridan Walker. Ms. Walker is the President of HirePotential, a leading national consulting and staffing firm delivering end-to-end services to corporations, assisting them with OFCCP compliance, employment, accommodations, recruitment and retention of the untapped workforce. She is an expert in the disability field with 25 years of broad-based experience. Sheridan will provide some tips for employers on OFCCP compliance, give some concrete suggestions on ATS (applicant tracking) and website accessibility, and tell us how to tap into a very talented pool of workers that you may be overlooking.

In this installment, we discuss diversity and inclusion with Joe Gerstandt. Joe is a keynote speaker, workshop facilitator and blogger. He specializes in helping people and organizations implement "reality-bassed" interactions and decision-making. We discuss diversity with respect to gender, race and ethnicity, and cognitive styles, highlighting why it's important to be proactive and break out of our old ways of thinking.

In this installment, we discuss compliance from an HR perspective with our guest, Steve Browne. Steve will be answering the tough questions on everyone's minds: Does compliance matter all the time? How can I better understand - and work within - the EEOC framework? What's the best way to have a conversation with the C-Suite about compliance? Why is consistency important, and how can I be more consistent in my hiring practices, promotion systems and other development efforts?

In this installment, we discuss family responsibility discrimination. We outline some examples of family responsibility discrimination, and I provide a five-point checklist that employers can use to minimize the potential of family responsibility discrimination in the workplace.

In this installment, we discuss three types of workplace complaints: legal violations, policy violations, and morale issues. Our guest for this installment is Mary Schaefer, President of Artemis Path; she specializes in "solving sticky employee situations". We talk about different types of workplace complaints using Mary's real-life examples. She gives some tips on how to avoid workplace complaints, and provides practical suggestions on investigation and follow-up.

In this installment, we discuss how employers can protect their proactive analyses. Our guest for this installment is Paul Secunda, Associate Professor of Law at Marquette University Law School. We talk about a recent privilege issue in the news involving a report prepared on behalf of Wal-Mart, what the attorney-client privilege is and how employers can invoke it, and Paul provides some practical suggestions on how to keep your analyses confidential.

In this installment, we discuss who is covered by the OFCCP, Affirmative Action Plan development and content, and compliance reviews. Our guest for this installment is Jacqueline Jackson-DeGarcia. Ms. Jackson-DeGarcia is a partner in the labor and employment group at Dilworth Paxson. She counsels clients on leave issues, revisions of practices and policies, lawful hiring, and termination of employees. She also advises public and private employers in all aspects of labor and employment law.

In this installment, we discuss internships,the potential risks of unpaid internships, and how employers can provide internship opportunities while minimizing litigation risk. We talk about recent campaigns by the Department of Labor and the Wage and Hour Division, walk through the six-factor test regulators use to determine whether an intern is really an employee, and highlight some of the differences between for-profit businesses and public sector and non-profit organizations. Our guest for this installment is Daniel Schwartz. Mr. Schwartz is a member of the law firm of Pullma & Comley. He has extensive trial and litigation experience in both federal and state courts. Mr. Schwartz represents employers in various employment law matters such as discrimination, human resources, retaliation and whistle blowing, and wage and hour issues. He is the author of the Connecticut Employment Law Blog, and is a frequent presenter on a wide range of employment law topics.

In this installment, we'll be discussing misclassification of employees as independent contractors. We'll talk about the employer - independent contractor relationship, the tests used by the IRS and the Department of Labor in assessing proper classification as an independent contractror, and current and proposed legislation. We'll discuss the Employee Misclassification Prevention Act (EMPA) and its implications for all employers, event those with properly classified independent contractors and those not using independent contractors.

In this installment, we'll be discussing the Americans With Disabilities Act (ADA) with Jonathan Hyman. We'll talk about the original 1990 ADA, the recent amendments (ADAAA), provide information on what employers need to know about accommodation, and talk about the "Battle of Accommodations" using a real-life example of a conflict between one employee's use of a service dog and another employee's dog allergies.

In this installment, host Stephanie R. Thomas provides a ten point inspection to assist in beginning the reduction in force conversation. Topics include alternatives to the reduction in force, the size of reduction necessary, which areas(s) of the organization will be affected, secondary effects, selection criteria, and disparate impact analysis.

In this installment, we will be discussing trends in Sex and LGBT Discrimination Law with Teresa Cheek, a partner in the Employment Law Division of Young Conaway Stargatt and Taylor. Among the topics to be discussed are gender discrimination, gender stereotyping, sexual harassment and same sex harassment and LGBT discrimination.

In this installment, we're discussing what employers need to know about social media with our guest, Eric Meyer. Mr. Meyer is a labor and employment attorney with Dilworth Paxson. Mr. Meyer has extensive experience in preparing social media policies and has been quoted on these policies in Business Insurance and ABCnews.com. He provides some tips on social media policy "rules" and "guidelines", and offers some suggestions on how to keep your social media policy evergreen.

In this installment, we will be discussing what recruiters need to know about the Uniform Guidelines of the Employment Selection Process and their liability for discrimination in selection. Ms. Mattonen is an experienced, successful recruiter who operates her own business and is actively involved in many industry organizations and activities. Her recruiting career began with Snelling Corporation. In 1998, after a successful tenure as a recruiter with Snelling, she struck out on her own, founding Advanced Career Solutions (ACS). ACS focuses on recruiting for the HVAC Industry. 

In this installment, host Stephanie R. Thomas highlights some of the top issues employers should be following to stay compliant in and out of the courtroom. We'll be discussing four Supreme Court bases that have implications for employers, the regulatory enviroment at the EEOC and the Department of Labor, and how to effectively use social media in the hiring process.

In this installment, we will be discussing FLSA and the fluctuating work week with Richard Tuschmann. We'll be discussing how to implement the fluctuating work week, how it can make a substantial difference in damages amounts in the event of misclassification litigation, and touch on proper classification of employees as exempt / non-exempt. Mr. Tuschmann is a labor and employment attorney with Duane Morris. He is a frequent lecturer on employment law issues and is a regular contributor to Thompson Publishing's "Employer's Guide to the Fair Labor Standards Act".

In this installment, our guest is Ari Rosenstein of CPEhr. Mr. Rosenstein and I will be discussing how outsourcing some of your organization's HR functions can lead to improved productivity, cost reduction, and better management of employment litigation risk. Mr. Rosenstein is the Director of Marketing at CPEhr. CPEhr is a leading human resources outsourcing provider based on Los Angeles, CA. CPEhr is one of the largest, independently owned Professional Employer Organizations in the United States. Mr. Rosenstein's contact information can be found on his firm's website, www.CPEhr.com.

In this installment, host Stephanie R. Thomas discusses proactive statistical analyses. These proactive statistical analyses span the entire employment lifecycle, from initial hiring, initial assignment and initial pay, to compensation, promotions, and reductions in force planning. These analyses will not only help you assess your risk of employment-related litigation, they can lead to operational efficiencies, more streamlined processes, and can help you transform your organization into a best-practices firm that can attract and retain top talent.

In this installment, we close out 'Compensation Month' with a discussion of the Ledbetter Fair Pay Act and compensation document creation and retention. Our guest for this installment is Philip Miles, an attorney with McQuaide Blasko. We discuss how the Ledbetter Fair Pay Act has affected recordkeeping and document creation and retention. In addition to the "standard" compensation documents, other documents that must be created and retained include performance evaluations, performance metrics, and industry statistics used to evaluate compensation increases.

In this installment, host Stephanie R. Thomas discusses types of compensation systems that use length of service, or seniority, and whether or not these kinds of systems introduce gender bias and can lead to discrimination claims. She provides an economic argument, as well as a summary of a recent legal decision on the issue. She also discusses suggestions for proactively evaluating your compensation system with respect to productivity increases and increases in length of service.

In this installment, host Stephanie R. Thomas provides a recap of her webinar on "Understanding the Compensation Self-Audit". Topics include reasons why an organization would perform a self-audit, the self-audit framework, construction of similarly situated employee groupings, edge factors, data measurability, availability and collection, multiple regression analysis, practical and statistical significance, and follow up investigations. This podcast is intended as a brief overview of the compensation self-audit in a non-technical, non-mathematical manner. You can find an accompanying PDF handout from the webinar on SlideShare.

In this installment, host Stephanie R. Thomas discuss the implications of the Ledbetter Fair Pay Act on compensation analysis. Specifically, I discuss the interpretation of "direct determinants" and "indirect determinants" on compensation, discussing potential "other factors" under the Fair Pay Act. The application of the Fair Pay Act to questions of disparate impact and disparate treatment are presented within the context of modeling the compensation decision-making process. The upshot of the Fair Pay Act is that compensation decisions can be challenged on "other factors", not just those factors directly related to compensation. Further, the Fair Pay Act expands the time horizon during which claims of compensation discrimination can be made. Together, this makes the modeling of compensation more difficult, requires better documentation and recordkeeping, and is likely to bring decisions not commonly thought of as compensation decisions into the fold when examining compensation discrimination.