March 30, 2017
Have you ever done something for someone who replied, “Oh, you didn’t have to do that”? That is the beauty of doing kind deeds; we don’t have to do them. Otherwise, much less pleasure might be derived from doing the deed. Now apply that to your employment practices. What do you do for or offer to your employees that you don’t have to? Do they know it?
Benefits communication is a great way to help employees not just hear, but see all that you provide. I call it a benefits pie. I’m sure that is not the proper name for it, but now you might visualize what I mean. A pie chart shows your employees the value of their total compensation. The pie is composed of not just the wages they earn, but also the costs of everything else: taxes related to FICA, FUTA, workers’ compensation; health care benefits; paid leave benefits, including but not limited to vacation, sick leave, holidays, personal days, jury or witness leave, military leave, and funeral or bereavement leave; all the in-kind and indirect benefits you might offer, such as education assistance, tuition reimbursement, free parking, health club subsidy … to name just a few. That’s right—it is time to brag. No one else will do it for you. Let your employees know all that you provide on their behalf.
Why? It’s a recruitment tool. Especially for smaller employers that may not quite match the market when it comes to base pay, this focuses on total compensation and gives you a chance to showcase all that you have to offer. Next, it’s a retention tool. Employees leave us for so many reasons unrelated to pay. But when pay is a factor, or when work-life balance or professional development is important to an employee, ensure they know the options they have with you as an employer that they might not find elsewhere.
Let your employees know all that you provide on their behalf.
Why else? Regulatory pressures squeeze businesses sometimes beyond their means. Legislative mandates drive some businesses in the direction of unintended consequences. When new laws are enacted that mandate benefits that employers must offer, the market is flattened. You lose your competitive edge when others are made to offer the same great benefits that you already offer. Your value-added propositions are lost. Here are just a few examples.
Read 10 articles, and you will have 10 different predictions of what the new presidential administration will bring. In retrospect, select another 10 articles on what the 10 were in 2016 that most impacted employment practices, and again you will have differing opinions.
I find none are right; none are wrong. They are just different perspectives trying to answer the same questions. Of what should a small business owner be aware to enhance compliance and avoid employment practice pitfalls? Here we go. This is just one more author’s perspective, borne from what I have seen and heard from small-business owners as they struggled and speculated about what they should and should not do to comply with myriad and complex mandates.
Beyond Workplace Harassment: Retaliation and Civility
On December 10, five federal agencies published a fact sheet, “Retaliation Based on Exercise of Workplace Rights Is Unlawful,” addressing employers’ obligations to prevent various forms of unlawful retaliation. The concept itself is not new, but make note of some less well-known facts:
An employee’s right to be free from retaliation includes not just for filing a formal complaint with a federal agency, but for expressing the complaint orally, including to the employer.
The right to be free from retaliation applies to all workers, regardless of any individual worker’s immigration status.
The agencies that jointly published the fact sheet include the (1) U.S. Equal Employment Opportunity Commission (EEOC), (2) National Labor Relations Board (NLRB), (3) Department of Justice, (4) Department of Labor’s Occupational Safety and Health Administration (OSHA), and (5) Office of Federal Contract Compliance Programs (OFCCP).
Then, on January 10, the EEOC published proposed enforcement guidance addressing unlawful harassment under federal employment discrimination laws. As of this writing, the public notice and comment period was scheduled to close February 9.
The trends do not stop there. To date, anti-bullying legislation has been introduced in at least 30 states—often under the name of “healthy workplace” legislation—that would hold employers liable for a broadened definition of unlawful harassment, including bullying.
You lose your competitive edge when others are made to offer the same great benefits that you already offer.
Fair Pay, Pay Transparency, and Predictive Scheduling
From the White House to local jurisdictions, laws are being proposed and enacted with the intent to structure the payment of wages that are fair based on myriad factors. Examples include:
Fair pay laws generally go to the old adage of equal pay for equal work, but provide a broader definition. For example, some states have passed laws requiring equal pay for equal work performed by employees at the same location. Maryland, for example, has defined same locations to be those of the same employer located anywhere in the same county. Such laws may fail to fully account for geographic market variations in pay; census data shows that qualified men or women are available for certain jobs at greater or lesser rates at various locations even within the same county. The result is that if an employer employs two employees with the same job title, performing the same duties, these geographic realities may require that employer to pay those employees differently simply to remain competitive with the local markets. That may set the employer up for having to defend a charge or claim of an equal pay violation.
Pay transparency—The National Labor Relations Act (NLRA) already gives all nonsupervisory employees, union or nonunion, the right to talk to one another about their wages, hours, and conditions of employment. Many states have recently enacted laws that broaden those rights and give employees the right to seek remedies and monetary damages in state courts. Some also go beyond federal law by expressly giving employees the right to discuss not only their own wages, but to disclose and discuss another employee’s wages with or without the other employee’s consent.
Predictive or fair scheduling—In 2016, at least 13 states and the District of Columbia considered related legislation. Most variations on the theme require that an employer provide to its nonexempt employees their work schedule a specified number of days in advance. Many include a provision that provides that in the event an employer cancels or reduces an employee’s scheduled shift without a specific amount of prior notice, the employer is then obliged to pay that employee for a portion of the scheduled work time that was canceled. This type of legislation can have a big fiscal impact if enacted upon businesses that are regularly affected by inclement weather, external events, and other factors beyond the employer’s control that influence staffing and scheduling needs and demands.
Partner with other business owners and leaders in your industry. Learn from one another—pitfalls to avoid and proactive practices to adopt to enhance compliance.
Paid (Sick) Leave Mandates
For many employers, and particularly private-sector small businesses that are covered government contractors, the clamor of paid sick leave mandates has been somewhat deafening. New laws, legislation, and executive orders have come from the federal, state, and local levels. For example, covered government contractors will have to provide paid sick leave to certain employees working on covered contracts in compliance with Executive Order 13706. That same employer may also have to comply with a recently enacted state sick leave law. Then, that same employer may also have to comply with yet another local paid sick leave law—all of which are likely somewhat or significantly different from one another. Just talk to a colleague who is facing this very issue, and listen to the myriad challenges, from redesigning payroll and timekeeping systems to tracking hours worked for paid leave accrual in the required increments for each locale, and then properly administering how that leave rolls over, is paid out at termination, and so much more.
Lessons learned? There are many other topics and not addressed in this article, including and not limited to background checks (criminal or credit); legal and legislative challenges to noncompete agreements; new guidance and warning on antitrust violations, as they may arise from participating in salary surveys; worker misclassification (the wage and hour kind related to properly classifying an employee as exempt or nonexempt, as well as properly classifying a worker as an employee versus an independent contractor) … to name just a few. So be aware, be informed, and be proactive.
Develop strategic advocacy partnerships. There are lots of organizations that are in the business of lending a hand to shape public policy, including AICC; the U.S., state, and local chambers of commerce; the Society for Human Resource Management (SHRM); and so many others. You do not have to go it alone. Partner with other business owners and leaders in your industry. Learn from one another—pitfalls to avoid and proactive practices to adopt to enhance compliance. And advocate early and often! Our elected (and appointed) officials need to hear from you. No one knows how a law or regulation will impact your business better than you. Share your stories with them. Pay it forward by shaping public policy, adding value for your business
and your employees.
Christine Walters is an independent consultant and author at the FiveL Company. She can be reached at 410-848-4721 or info@FiveL.net.
