The HR Cafe

Who’s disabled under ADA guidelines? EEOC takes a broad view

Dear HR Executive:

The newly beefed-up ADA guidelines have already made it easier for more workers to file disability discrimination claims. Now it looks like the floodgates will open even wider.

The EEOC has issued a series of proposed regulations to implement the recently passed ADA Amendments Act (ADAAA). If implemented, they could dramatically expand the pool of potential claimants.

Here are the main pain points employers will need to consider if these draft regulations are eventually adopted:

More “automatic” disabilities. A very specific laundry list of mental and physical conditions would be presumed to amount to disabilities in almost every case under the new ADA guidelines. These would include autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, major depression, bipolar disorder, post traumatic stress disorder (PTSD) and schizophrenia.

Previously, the idea of “individual analysis” of a particular employee’s health would allow an employer to show that an employee with one of these conditions wasn’t necessarily disabled, if the condition wasn’t particularly serious. Now, though, the EEOC says these conditions should be found to be substantially limiting almost every time.

More conditions. Certain other conditions – including high blood pressure, anxiety disorder, learning disabilities and carpal tunnel syndrome – might amount to disabilities under the new ADA guidelines, depending on their severity.

A lower burden of proof for workers under the new ADA guidelines. Under the law, a disability must create a “substantial limitation on a major life activity.” But in the past, courts have given employees a second hurdle to clear, making them show their condition actually makes it difficult for them to perform “activities of central importance to daily life.” Under the new ADA guidelines, that second test goes away. That would further relax the ADAAA’s already broadened view of what qualifies as a disability.

An example cited by the EEOC: An employee has a long-term lifting restriction of 20 pounds. That, in and of itself, is “a substantial limitation on a major life activity” – i.e., work. So he wouldn’t also have to demonstrate substantial limitations in picking up heavy items at home or while shopping.

The draft ADA guidelines still have to go through the Office of Management and Budget and other federal agencies, of course. But  it’s a good idea to take steps now to prepare:

1. Educate managers to recognize disability accommodation requests, even when they’re not phrased as such, and even when they involve conditions that may not have been considered “disabilities” in the past.
2.  Remind managers to explicitly acknowledge accommodation requests – starting the “interactive process” of discussion required by law – and to bring the request to HR’s attention immediately.
3. Encourage managers to provide an interim accommodation at the time one is requested, pending a higher-level decision on what if any long-term accommodation is possible. If a lawsuit is later filed, this kind of initial reaction can show that your firm acted in good faith.

Dave Clemens
Editor
HR Café Newsletter

UPCOMING AUDIO CONFERENCE: Don't miss B21’s upcoming audio conference , "Self-funded vs. Fully Insured Health Plans: What's Right For You?."  Are you fully insured and thinking about going self funded? Are you concerned about the risks? Or are you currently self-funded and wondering whether you should become fully-insured? Or perhaps partially funded? The bad news is that there’s no simple answer. The “right” choice depends entirely upon the specifics of your business. The good news is that you’re more likely to get it right if you really understand your choices. On Thursday, July 16, our speaker, Yvonne Waterman,  will explain,  with so much at stake – big savings if you make the right choice, big losses if you make the wrong one – it pays to arm yourself with the right decision-making tools.

The effects of sleep deprivation on job performance

Dear HR Executive:

You don’t want people sleeping on the job, naturally. But you do want people to sleep well off the job.

That’s because the effects of sleep deprivation can hurt your bottom line. Lack of sleep causes a clear decline in attention, resulting in increased safety risks and lower productivity.

These points emerge from a new study on the effects of sleep deprivation from Michigan State University. Using DOL data, researchers looked at the sleep-deprivation effects on workers of the “spring forward” change from standard time to daylight time. They found that workers lost an average of 40 minutes of sleep, with the result that workplace injuries rose 6%. 

The research will be reported in the September issue of the Journal of Applied Psychology.

The researchers also generalized their conclusions to any kind of sleep deprivation, whether caused by time changes or something else. “Lost sleep causes attention levels to drop off,” they said.

Are your people suffering from the effects of sleep deprivation? Is their rest being damaged by increased job pressure, economic stress and family responsibilities? If you think this is a problem, you might consider adding sleep therapy to your wellness program.

Dave Clemens
Editor
HR Café Newsletter

UPCOMING AUDIO CONFERENCE: Don't miss B21’s upcoming audio conference , "Goal-Setting for Supervisors: Why It's the Key to Getting Results, and How to Do It Right."  On Wednesday, July 15, our speaker, Gary Ryan Blair will challenge you to rethink the way you go about setting, measuring, obtaining buy in, and achieving your organizational goals. Blair will focus on specific strategies to maximize your results with a fast-moving series of methods, ideas and techniques each participant can apply in every area of life and work. Learn the keys to personal effectiveness, maximum achievement and unlimited success in your field.

HR Cafe survey: An outbreak of “cautious optimism”

Dear HR Executive:

Everybody says things are looking up. Consumer confidence is climbing. Unemployment seems to be bottoming out. But how does it look from the inside? Are employees really feeling that the worst is behind us? Are they embittered or energized by the challenges they’ve had to face?

We asked HR managers to tell us how their employees are bearing up under the strain of the worst economy since the Great Depression. Surprisingly well, it turns out.

About half said employees are “hanging in there.” That’s to be expected.

But nearly as many – 40% -- said employees are “cautiously optimistic.” (Another 3% said employees are “Wildly enthusiastic.” Will those companies please report to the front office?)

On the downside, only 7% said employees were doing “not so good” or “downright disgruntled.”

Wow.

Those numbers make me “cautiously optimistic” as well. They suggest most workers remain motivated and committed despite the considerable challenges they’ve faced.  And the results speak well of management in general. They tell me that companies have done a remarkable job of communicating in tough times and keeping employees motivated.

You can respond to the poll below and see the results here.

But before you do, tell us more: How are your employees faring? What has your organization done to promote optimism? Share your best strategies with your colleagues in the Comments section below.

Michael Boyette
Editor
HR Café Training Center

UPCOMING AUDIO CONFERENCE: Don't miss B21’s upcoming audio conference , "Coaching, Paying and Retaining Star Performers: Why they're different. What they need."  On Tuesday, July 7, our speaker, Katherine Handin, MCC, will provide both a conceptual framework and specific tools managers can use to keep star performers motivated and excited about helping your organization achieve its goals.

Employment testing: Supreme Court puts a premium on getting it right, first time

Dear HR Executive,

If you test applicants for knowledge, aptitude, skills, personality and the like as part of your hiring process, the Supreme Court just sent you a message:

Make sure your testing is appropriate, fair and nondiscriminatory from the get-go, because you risk a reverse discrimination charge if you adjust the process on the fly.

The message emerges from the court’s decision in the Ricci v. DeStefano case, handed down this week. The court said that the city of New Haven, CT, discriminated against a group of white firefighters who were candidates for promotion while trying to bend over backwards to be fair to black candidates.

Disparate impact vs. disparate treatment
What New Haven did was this: The city noticed that very few black firefighters had passed its promotion test, and was concerned that the test had a “disparate impact” – i.e., that although nondiscriminatory in intent, the test in practice screened out minorities at an unacceptable rate.

So the city threw the test out, foiling the promotions of 18 white firefighters who then took their case to court.

The lower courts said the city acted properly, but the Supreme Court said no: Actually, the city discriminated against the white firefighters by singling them out for “disparate treatment” – i.e., intentional bias.

The city would have been in the right only if it had a very strong reason to believe its test was unfair to minorities, the court said – and it didn’t.

Don’t change horses in midstream
Parts of the court’s decision in Ricci apply only to public employers. But there’s one key point that’s relevant to all HR pros: If you alter a testing process in midstream because of concerns it might be unfair to some protected class – a racial or religious minority, women, those over 40 – you risk committing discrimination against other applicants outside that class.

What’s the solution to this problem? Make sure your tests are fair in the first place.

Here’s how an attorney with the Proskauer Rose law firm, quoted by the New York Times, put it: “The ruling gives employers less flexibility to change the selection process once it’s been established. As a result, employers will want to try to establish bulletproof selection criteria.”

What a test should do
Here are three suggestions for bulletproofing your employment test(s):

• Make sure the test is testing what you need measured, and not something else. And be certain the test, whether written or physical, doesn’t demand more skill or effort than the job.
• Doublecheck the test’s validity – i.e., its real ability to predict job performance. In many testing discrimination lawsuits, frustrated applicants or employees have successfully challenged a test’s validity. Commercial testing vendors will be able to provide the validity coefficient of their tests – a number ranging from 0 to 1.0. Anything over .20-.30 is useful, while anything under .10 is next to useless, and anything over .70 is suspiciously efficient.
• Use job simulations along with written tests. In the Ricci case, one of the city’s testing consultants suggested that instead of a written exam, the city should have presented the promotion candidates with a series of real-world scenarios to see how they responded. Online testing featuring video simulations of various situations is available. Or, depending on the job, you could actually have applicants perform specific job-related tasks.

It’s not easy being perfectly fair in hiring, and this new Supreme Court decision doesn’t make it any easier. In fact, you may now feel as if you’re on a knife-edge between minorities’ and nonminorities’ legitimate demands for fairness.

But if you’re sure your employment testing measures only the qualities necessary for the job, and does so in a way that accurately reflects real life, you’re much more likely to avoid messy court battles and costly legal fees.

Dave Clemens
Editor-in-Chief
The HR Café Newsletter

UPCOMING AUDIO CONFERENCE: Don't miss B21’s upcoming audio conference , "Coaching, Paying and Retaining Star Performers: Why they're different. What they need."  On Tuesday, July 7, our speaker, Katherine Handin, MCC, will provide both a conceptual framework and specific tools managers can use to keep star performers motivated and excited about helping your organization achieve its goals.

Employee terminations: Five ways to make your severance agreement bulletproof

Dear HR Executive:

A severance agreement usually contains a release committing the departing employee not to sue you. But employee termination releases aren’t 100% bulletproof unless you handle them just right.

Here, from a recent case involving a Ford Motor Co. employee in Illinois, are five factors a court will consider if an employee tries to sue despite having signed a release of claims:

1. The employee’s education and work experience. A person who lacks a high school education, is new to the work force, or reads poorly may not understand the release. 
2. The amount of time prior to employee termination that the employee had to decide whether to sign or not. While there’s no set amount of time, it’s wise to give at least a week. 
3. Whether the employee actually read the release before signing. Include a separate signature line where the employee certifies having read and considered it. 
4. Whether the employee consulted an attorney. You can’t oblige people to do so, but the release can recommend it. 
5. Whether the language is clear. Here’s an example of clear language:  The employee “agrees to release any and all rights and claims” against the company and not “institute any proceedings of any kind” related to his or her employment.

By the way, the federal appeals court ruled in favor of Ford, which had dotted all the i’s and crossed all the t’s. The case is Hampton v. Ford Motor Co.

Dave Clemens
Editor
HR Café Newsletter

Discrimination in the workplace: “Ick. You look gross. You can’t work here.”

Dear HR Executive:

“You’re too ugly for this job.”

According to the EEOC, that’s more or less what a manager at Extra Space Management, a storage facility in Gaithersburg, MD, said.

The EEOC, which sued the company for disability discrimination in the workplace, said an area manager met with the employee – who'd been scarred by a house fire – and noticed he was “handicapped, deformed, or something.” It was clear, the manager sagely opined, that the employee, a maintenance worker, “can’t get the job done.”

Obviously this ended badly for the company. It paid $95,000 to settle the suit, and agreed to institute comprehensive ADA training for employees and managers.

You might want to pass along this case to your managers, as a reminder that disability discrimination doesn’t just involve job candidates who are in a wheelchair, or blind, or deaf, or other obvious disabilities. And it doesn’t even turn on the question of whether something like facial scarring is even a “real” disability.

The key issue in these discrimination in the workplace cases, of course, is “perceived disability.” This area manager perceived that the candidate was disabled, and concluded (without any real evidence) that the disability would prevent the worker from doing the job.

Michael Boyette
Editor
HR Café Training Center

UPCOMING AUDIO CONFERENCE: Don't miss B21’s upcoming audio conference , "Exempt or Nonexempt? Prepare for More Aggressive Wage & Hour Enforcement Under Obama."  On Thursday, July 2, our speaker, Edward Bergmann will lay out for HR executives a detailed overview of the white-collar exemptions, providing specific, practical examples showing how they’re applied. The course will also highlight the “hot spots” -- those areas where employers are prone to make classification mistakes, and offer advice for conducting audits.

Employer health care costs: Eligibility audits save money ... but beware the backlash

Dear HR Executive,

What do you – and your employees – hear when somebody says “health plan eligibility audit”?

It’s the latest hot trend being pushed at employers – largely by those who do the audits – as a way of restraining employee health care costs.

Essentially, in an audit you go over your plan rolls with a microscope, looking for employee dependents who shouldn’t be on there. Or if you’re a bigger company, you pay somebody to come in and do it.

Health care costs reduced as promised
Advocates, such as Mercer Consulting, claim that employer health care costs are reduced by $1,900 each time they find one dependent who’s covered but shouldn’t be. Other audit consultants claim that companies find between 5% and 12% of those enrolled fall into this category.

Experts say it’s relatively rare to find outright fraud.

Most times, either the employee didn’t understand the terms of coverage, or the situation of the dependent has changed so that he or she is now ineligible.

That’s often the case with 20-somethings who were covered while in their teens, but now either aren’t in school or have recently graduated. (Note: Some states now require health plans to continue covering these young folks through their late 20s.) Or with ex-spouses who are no longer entitled to coverage but are still on the plan.

Sometimes it’ll be a case of dependents whose ties to the insured employee aren’t close enough to qualify for coverage – like that sickly uncle who lives with the family, or even stepchildren, who may not be eligible under some plans.

Rules are rules
Well and good. Rules are rules, and if you can save meaningful bucks by making sure they’re adhered to, why shouldn’t you?

The problem is simply this: Is the money you’re going to save worth the potential alarm, discontent and resentment that employees may feel, knowing they’re being “audited” – something they will likely interpret as a reduction in their benefits?

After all, you’re probably already concerned about employee motivation and engagement at a tough time like this. Do you want to do something that will loosen the strings of commitment that tie people to the organization?

Clearly not.

What’s in it for them?
That’s why if you’re going to do a full-fledged health plan eligibility audit – or just go poking around yourself for ineligible dependents – it’s a good idea to link it with this powerful idea: Any health care costs you save will either help you avoid premium hikes to employees in the future, or reduce their severity.

This isn’t just blarney: According to consultants Watson Wyatt, companies that have done eligibility audits over the past three years say they’re less likely to raise employee co-pays or premium contributions, or place further restrictions on eligibility.

So sure, make certain you’re not insuring people you shouldn’t be – but let employees know what’s in it for them.

Dave Clemens
Editor-in-Chief
The HR Café Newsletter

Sexual harassment: "You probably did it. That’s what men do.”

Dear HR Executive:

When you field a sexual harassment complaint, it can feel like you're walking a tightrope. Often, you’re dealing with an emotional complainant and an indignant accused – both of whom swear their version of events is the true one and the other is a big liar. It’s easy to get sucked into the story of one party or the other – especially that of the unhappy victim. But only trouble is ahead if you do.

Boys will be boys?
Case in point: In Sassaman v. Gamache, a female employee accused a male colleague of sexually harassing and stalking her. The man’s boss told him that if he didn’t resign, he’d be fired. 

The employee resigned, but later sued for sex discrimination. He recounted a climactic conversation in which the supervisor told him: “I’m afraid she’ll sue me. And besides, you probably did what she said you did because you’re male and nobody would believe you anyway.”

In court, the employer claimed the supervisor was only giving his opinion as to what other people thought, not justifying the forced resignation. But a federal appeals court thought otherwise, and allowed the male employee’s case to go to trial. The court said the supervisor defended his decision to side with the female employee “by pointing to the propensity of men, as a group, to sexually harass women.” This made it look like the man was forced out because of  “invidious sex stereotypes,” the court said.

“Guilty until proven innocent”
The court wasn’t sympathetic to the employer’s argument that it feared a lawsuit from the female employee if it didn’t get rid of the man. “Title VII requires employers to take claims of sexual harassment seriously,” the court said. But “it also requires that, in the course of investigating such claims, employers do not presume male employees to be ‘guilty until proven innocent.’ ”

That puts HR right back on that tightrope. Assuming a harassment allegation is male-on-female (still by far the majority of cases), you’re delinquent in your duty if you lean toward “he said.”  But if you lean toward the “she said,” you risk discriminating against the man as a man.

What’s the solution? A thorough and impartial investigation. In this case, the court was clearly swayed by the fact that the employer didn’t do such an investigation. The employer made “minimal, if any” efforts to verify the female employee’s allegations, the court said.

Although the supervisor did refer the matter to the local sheriff’s office – which found no indication of criminal activity – he didn’t investigate. Nor did he have his assistant look into the allegations. And he didn’t refer the case to the employer’s Equal Opportunity Officer. 

So although there were plenty of people around who could have investigated the female employee’s allegations – as well as the man’s counterclaims – nobody did.  And the employer ended up holding the bag. 

Dave Clemens
Editor-in-Chief
The HR Café Newsletter

UPCOMING AUDIO CONFERENCE: Don't miss B21’s upcoming audio conference , "Measuring Employee Attitudes: Find Out What Employees Really Think and Manage by Fact."  On Thursday, June 25, our speaker, Hay Group Insight senior consultant Mark Royal, will discuss best practices for designing successful survey systems and using survey results to drive organizational improvements. He will share examples of companies that have used employee surveys strategically to attract and retain talent, improve operating efficiency, manage change more effectively, enhance customer satisfaction, and boost bottom-line performance.

Leadership Credibility -- free e-learning module

Click here to view a  9-minute rapid learning module for free:Leadership Credibility: The Confidence Base.  Act now. The link will expire in 10 days.

Dear HR Executive:

One of the toughest things we do in our lives is figure out what we're really good at.

Sounds simple, doesn't it? But it's not. In fact, if you look at your employees, or perhaps at your own family members, you'll find examples of 30, 40 or even 50 year olds who still don't really know what they're good at. And there's something a little tragic about these people, who often seem unfocused and adrift in their lives and careers.

Contrast them with people who discovered early in life exactly what they're good at. It's usually something they loved to do and were happy to devote the 10,000 hours of practice that experts say are required to master any skill or activity. No surprise, these people are far more likely to be successful and land in leadership roles. One of my favorite examples is New York Times columnist Tom Friedman, who at age 14 traveled to Israel and discovered what he'd do for the rest of his life -- write about the Arab/Israeli conflict. Today, few people can talk about the Middle East with greater insight and authority than he does.

Another example is Gary Hoover, CEO of the wildly successful Hoover's database that salespeople use to research companies. He tells a story about how at age 11 he asked his dad for a subscription to a magazine. It wasn't Sports Illustrated or Boys Life. It was Fortune. Why? Because as a pre-teen he'd already discovered the love of his life ... researching companies.

Friedman and Hoover have what we call a Confidence Base, and it's an important concept for HR executives and managers who recruit and make promotion decisions at their companies. If you're filling any kind of leadership role, you want people who have a strong Confidence Base in the activity they're leading. That doesn't mean they talk a good game and use all the right buzzwords. It doesn't mean they spent their careers doing something "close" to what they'd be doing in the job you're filling. It means they've done exactly what you need done and mastered it. People who have a Confidence Base exude credibility. Others are eager to follow them. And they succeed.

It's obvious why this is important, but it's surprising how many recruiters and executives don't "get" the concept of the Confidence Base, and hire and promote people who will inevitably fail.

We'd like you to view a Quick Take rapid learning module on this topic for free. You'll find it's a valuable addition to your recruiting and leadership toolbox. Just click on this link and the program will launch instantly on your computer: Leadership Credibility: The Confidence Base.

Here's what just a few HR executives have said about our Quick Take rapid learning programs:

• "The Quick Take format is excellent. I enjoy that snack-sized training. Thanks." Laurence Diamond, Sprint
  
• "The Quick Take format is perfect for busy managers as myself ~ good tips in a few minutes. As a manager of many employees in my center, I need to do just what the program said...follow up with each one occasionally, not just at their "annual review" to make sure they are effectively using their teacher training." Melissa Raney, Sylvan Learning Center"
  
• I've never seen any product that's as meaty and real-world as Quick Takes. I see all kinds of  training materials that are academic and theoretical. The Quick Take learning modules in the HR Cafe are really practical. They talk about problems you're having right now, and tell you how to handle them." - Diane L. Parker. International Recruiter, Samaritan's Purse.
• “This learning module was better than I expected. I will use it with senior managers at our work site. The Quick Take format is great – I like that it’s short and probing.”  - Debra Koch, The Boeing Company.

Click here to view  Leadership Credibility: The Confidence Base. The link will expire in 10 days, so act now.

Stephen Meyer
B21 Publisher

UPCOMING AUDIO CONFERENCE: Don't miss B21’s upcoming audio conference , "No More Performance Reviews! A Revolutionary Approach to Performance Feedback" Most employees hate performance evaluations. Most managers dread giving them. Yet more than 70 million U.S. workers receive them each year. Why? Advocates of performance reviews say they raise productivity, differentiate salaries and protect against lawsuits. But it’s not true. No wonder just 5% of HR professionals are “very satisfied” with their performance management systems. On Wednesday, June 24, our speaker, Gary Markle, one of the nation’s most outspoken experts on performance management systems, will explain how you cope with this challenge.

Does your telecommuting policy keep offsite workers engaged?

Dear HR Executive,

We’ve talked a lot about ways to keep employees motivated and productive through the tough economic times we’re living. One solution you’ll often hear is telecommuting. Letting employees work from home at least part of the time reduces their stress and gives them more work-life flexibility.

But if you’re thinking about starting or adding to a telecommuting option, you should consider these three potential problems when you establish your telecommuting policy.

One: Will your telecommuting policy make life harder for non-telecommuting workers? On-site workers may feel they have to pick up slack for telecommuters who can’t do certain tasks off-site.

Two: What will you do to keep employees fully engaged with the company? Telecommuters sometimes report less commitment to the organization as their relationships with supervisors and co-workers grow more attenuated.

Three: Who gets the option? Some employees just aren’t organized or independent enough for telecommuting. They need the structure of the traditional office day to function.

Averting problems with telecommuting policies
Here are some steps you can take to head off these problems.

• To deal with problems of commitment and teamwork in your telecommuting policy, build some “face time” into telecommuters’ schedules. Even if off-site workers come into the office once or twice a week, they can reduce the need for on-siters to pick up the slack on office-specific tasks. Also, face time allows off-siters and on-siters to build work relationships and helps telecommuters maintain their engagement with the organization and its goals. 
• You might want to include “test runs” as part of your company’s telecommuting policy. Have managers review the telecommuter’s completed work after, say, a week.  The management team can then decide whether the test should be extended, whether it’s time to let the telecommuter fly on her own, or whether telecommuting just isn’t right for him.

One more thing to consider in your telecommuting policy: If you’re the kind of business where customers and other visitors frequently show up, you don’t want to let your telecommuting program create the impression that the lights are on but nobody’s home.

You might have to reorganize seating so that visitors with a view of your public areas see a reassuring number of people at their desks.

Dave Clemens
Editor-in-Chief
The HR Café Newsletter

UPCOMING AUDIO CONFERENCE: Don't miss B21’s upcoming audio conference , "Measuring Employee Attitudes: Find Out What Employees Really Think and Manage by Fact."  On Thursday, June 25, our speaker, Hay Group Insight senior consultant Mark Royal, will discuss best practices for designing successful survey systems and using survey results to drive organizational improvements. He will share examples of companies that have used employee surveys strategically to attract and retain talent, improve operating efficiency, manage change more effectively, enhance customer satisfaction, and boost bottom-line performance.

Surviving a layoff: How to stay lean but not mean

Dear HR Executive,

After surviving a layoff, do your remaining employees have the skills to work effectively in a leaner organization?

It’s a reasonable question, given the number of workplaces that have experienced layoffs in recent months. And the answer, for many organizations, appears to be “not really.”

That’s what emerges from a new CareerBuilder survey of 4,435 workers across the country. Fully 47% of them said new duties had been laid on them because of a layoff, and 37% said their workload had doubled as they tried to cope with tasks previously done by two people.

Not surprisingly, employees are feeling they have work more hours to get their tasks done. Some 34% of workers who survived a layoff said they’re spending more time at the office. And some are taking it to extremes – 17% are working 10 hours a day and more, while 22% are working more weekends.

As a result of all this, almost one-third of those employees surviving a layoff feel burnt out.

HR’s role
What can HR do about all this? After all, you can’t unilaterally reduce the workload or tell top management to back off goals that may entail the organization’s very survival.

What you can do, though, is help both employees and line managers build the flexibility and negotiating skills of those employees who survive a layoff.  Those skills are necessary to get through this rough patch with mental and physical health intact – and still complete the work that needs to get done.

Remember, employees and managers may have all the good will in the world about meeting increased job demands, but it won’t help if they don’t know how to organize their response to these demands.

Coping techniques
Here are three techniques to help employees and managers cope:

• Managers mustn’t expect employees to do everything at once, and employees mustn’t try. Employees shouldn’t overpromise and managers should be aware of when they may be doing so. If an employee’s task list is growing out of control, she needs to feel comfortable asking the manager to help identify the most important tasks and establish reasonable timelines.
• Employees and managers need to reserve time to “sharpen the saw.” Working without respite is a false economy – the person’s efficiency will eventually suffer.  Managers should be encouraging, not discouraging, employees from taking full meal breaks, tension-defusing walks and even personal days when the job appears just too daunting.
• Employees and managers shouldn’t be in touch all the time. With the proliferation of electronic devices like laptop computers, Blackberries, I-pods, and the like, employees too easily overdose on contact with the base. Managers who send midnight e-mails contribute to a feeling of paranoia, leading employees to conclude that if they’re not in touch 24/7, they’re not doing their duty. Instead, managers can explicitly state that communication ends with the work day except for emergencies.

To sum up: You can’t make the demands of this challenging period go away. But you can help your people meet them in a way that won’t promote burnout and its accompanying bitterness and alienation.

We’d love to hear what some of you are already doing along these lines, and we hope that if you’ve done something that works, you’ll post a comment explaining what it is.

Dave Clemens
Editor-in-chief
The HR Café Newsletter

UPCOMING AUDIO CONFERENCE: Don't miss B21’s upcoming audio conference , "Measuring Employee Attitudes: Find Out What Employees Really Think and Manage by Fact."  On Thursday, June 25, our speaker, Hay Group Insight senior consultant Mark Royal, will discuss best practices for designing successful survey systems and using survey results to drive organizational improvements. He will share examples of companies that have used employee surveys strategically to attract and retain talent, improve operating efficiency, manage change more effectively, enhance customer satisfaction, and boost bottom-line performance.

Employment testing on trial

Dear HR Executive,

If you pay attention to the news, you know one of the big stories of the day is President Obama’s nomination of Sonia Sotomayor to the Supreme Court.

And you probably also know that a lot of attention is being paid to a decision regarding employment testing made by the federal appeals court that she sits on – Ricci v. DeStefano. That decision has been bumped up to the current Supreme Court, where a group of white firefighters argued they weren’t promoted by the city of New Haven, CT, but should have been.

The headlines in the general press are about reverse racial discrimination. But for HR folks, the focus should perhaps be elsewhere – on the employment testing that caused the trouble in the first place. The white firefighters passed the test, but when no black candidates did, the city threw it out.

What to watch out for with employment testing
The city was properly concerned about employment testing that appeared to have an adverse impact on minorities. That’s one caution that the EEOC and employment lawyers have frequently issued to employers about employment tests.

Pending the Ricci decision, though, the way that point is going to apply in the future isn’t yet clear.

Even so, there are four important points about employment testing and aptitude assessment that will help you stay on the right side of the law if you bear them in mind.

1. Match the employment testing to meet your needs. The test should measure the quality you want measured, and not something else. Too many organizations use blunt instruments when a scalpel is needed.  For example, a knowledge test probably won’t tell you a thing about a candidate’s ability to learn, lead or solve problems. An integrity test will speak to an applicant’s attendance and avoidance of drugs, but it won’t give you much of an idea how well she’ll work in a team. Also, make sure the test doesn’t demand more skill or effort than the job. The courts have labeled as discriminatory tests that call for applicants to show more physical strength than a job requires, for example.
2. Make sure the test is valid. Whether you buy a test from a commercial vendor or create one yourself, you must ensure that it’s valid. That’s to say, it must actually predict job performance. In many recent testing-discrimination lawsuits, a test’s validity has been successfully challenged. A test’s validity coefficient, which your vendor should be able to provide, can theoretically range from 0 to 1.0. Specialists caution against placing confidence in a coefficient of over .70. And if the coefficient is below .10, the test is next to useless. Generally speaking, anything above .20 is useful, and above .30 is very useful. 
3. Use a variety of assessments. It’s a mistake to rely too much on a test in isolation. A good rule of thumb is that pre-employment testing should make up no more than one third of your selection process. Structured interviews, job simulations, and careful reference checks will help you balance the results of a candidate’s test(s). And it’s a good idea to do your testing early in the evaluation process, so you have ample opportunity to follow up if the applicant’s score raises questions.
4. Consider job simulations as part of employment testing. Of all the employment assessment tools available, job simulations may be the most versatile. They can assess learning abilities, customer service skills, teamwork potential, leadership ability, motivation and other qualities. The simulation can either be an actual performance of specific job-related tasks, or a multiple-choice online test featuring video simulations of various situations.

We’ll keep you posted about the Ricci decision and its implications for employment testing and adverse impact as soon as the Supreme Court announces its ruling.

Dave Clemens
Editor-in-Chief
The HR Café Newsletter

UPCOMING AUDIO CONFERENCE: Don't miss B21’s upcoming audio conference , "No More Performance Reviews! A Revolutionary Approach to Performance Feedback" Most employees hate performance evaluations. Most managers dread giving them. Yet more than 70 million U.S. workers receive them each year. Why? Advocates of performance reviews say they raise productivity, differentiate salaries and protect against lawsuits. But it’s not true. No wonder just 5% of HR professionals are “very satisfied” with their performance management systems. On Wednesday, June 24, our speaker, Gary Markle, one of the nation’s most outspoken experts on performance management systems, will explain how you cope with this challenge.

Free training module: How to handle complaints

Click here to view a  9-minute rapid learning module for free: Handling Employee Complaints: What Every Manager Must Know  Act now. The link will expire in 10 days.

Dear HR Executive:

Business 21 has been developing a series of rapid learning modules. We call them Quick Takes. They're short (between 6 and 10 minutes). They're meaty. And, based on the hundreds of product evaluations we've been getting, you'll love them.

We'd like to let our HR Cafe readers view a few of them for free. Here's the first one: Handling Employee Complaints: What Every Manager Must Know. Just click on the link and it launches automatically on your computer.

What's it about?
It's a compliance module specially designed for managers and supervisors. When employees complain about harassment, unfair pay, discrimination or whatever, it's almost always to their direct boss. But do your managers know exactly what to say and do? Are you concerned they might not recognize the seriousness of a complaint? That they might say something that could be used against your company later in court?

You should be, because supervisors mishandle complaints all the time. Show this nine-minute program to every manager in your company and you'll have sleep-at-night insurance that they won't mess up and trigger a lawsuit.

Here's what just a few HR executives have said about our Quick Take programs:

• " I've never seen any product that's as meaty and real-world as Quick Takes. I see all kinds of  training materials that are academic and theoretical. The Quick Take learning modules in the HR Cafe are really practical. They talk about problems you're having right now, and tell you how to handle them." - Diane L. Parker. International Recruiter, Samaritan's Purse.
• “This learning module was better than I expected. I will use it with senior managers at our work site. The Quick Take format is great – I like that it’s short and probing.”  - Debra Koch, The Boeing Company.
• "The Quick Take format is great for those of us with really busy schedules and limited free time. I can learn something new in only a few minutes." - Karen Morton, Town of Ledyard, CT.

Click here to view Handling Employee Complaints: What Every Manager Must Know. The link will expire in 10 days, so act now.

Stephen Meyer
B21 Publisher

UPCOMING AUDIO CONFERENCE: Don't miss B21’s upcoming audio conference , "Benefits Communication: The Make-or-Break Factors That Determine How Employees Perceive Your Plan" Do you often feel that your employees don’t understand and appreciate the benefits you provide? If so, there’s a good chance you don’t have a benefits problem. You have a COMMUNICATIONS problem. Many employers spend big dollars on benefits but get little return on that investment. They’re missing a HUGE opportunity to use their benefits package to engage, educate and motivate existing employees, as well as attract new talent.  During this audio conference, Hay Group consultant Larry Hicks will show you how to develop effective, strategic employee benefit communications that will help employees understand your program, enhance awareness and help build greater appreciation.

Office romance: An employer’s minefield

Dear HR Executive,

Well, maybe there’s something to be said for the recession after all: Chances are less than usual that you’ll have to deal with the messy fallout from a failed office romance involving your employees.

That’s because employees are less likely to take the risk of office romance these days, according to a survey by Vault.com

The career website asked several hundred employees whether the economic downturn made people more or less ready to run romantic risks at the office. Some 80% said they were less likely to court co-workers. “If being in a romance with a co-worker means your job could be at risk, why would you even consider it in this economy?” one respondent commented.

Policy gaps
So maybe you’ll have a little respite from office romances, which too often lead to hard feelings, colleagues taking sides and, in the worst cases, sexual harassment charges.

But when the economy gets better and people start feeling more secure in their jobs, are you ready for a romantic resurgence? The survey suggests that most employers aren’t.

Fully 65% of those who responded say their employers have no policy on dating and romance among employees. Not a good idea. Even if you don’t have a draconian policy – like outlawing intraoffice dating entirely – you need to address the issue, at least  supervisor-subordinate dating, which can cause REALLY big problems.

And by the way, the Vault.com survey showed that 21% of employees had either dated somebody they supervised or somebody who supervised them. Best-practice policies usually ban supervisor-subordinate dating.

Not so rare
If you think that office romance is relatively uncommon, think again. Some 58% of respondents said they’d had an office romance, and another 12% said they would if the opportunity presented itself.

And many folks are repeat romancers. Almost half of those who dated co-workers – 49%  – said they’d do it again if they got a chance.

If you don’t have an office romance policy and decide you need one, make sure it covers this critically important point: Tell employees how to report any retaliation, hostility or stalking once the romance ends. That’ll help you steer clear of sexual harassment troubles.

Dave Clemens
Editor-in-Chief
The HR Café Newsletter

Health insurance costs skyrocket: Do we detect a credibility gap?

Dear HR Executive:

The ink is barely dry on the insurance industry’s highly public pledge to trim health insurance costs – or, to be accurate, their nonbinding pledge to work really hard to trim the rate at which health insurance costs will go up.

But maybe insurance companies didn’t get the memo.

As we reported, the industry says it wants to help the Obama Administration reduce the growth rate of health spending from 6.2% to under 5%.

Looks like they’re gonna miss that target:

• Rhode Island's top two health insurance companies, for example, just filed rate requests for next year.  Blue Cross & Blue Shield of Rhode Island is proposing a 16.3% hike. United HealthCare of New England wants to raise its large-group rate by 11.6%.
• Hawaii’s Medical Service Association is asking for a small group rate increase of 12.7%.
• Oregon's largest health insurer just won a 14.7% rate increase on individual and small group plans, after raising its rates 26 percent a year ago.
• In Pennsylvania, Independence Blue Cross wants a 52% boost in nongroup rates.
• Blue Cross Blue Shield of Michigan is asking for a staggering rate hike of 56% on some individual plans.

And here’s the curious thing. Utilization of medical services is flat.

In a new study, researchers at the actuarial firm Milliman found that consumption of medical services is expected to be flat this year for the first time ever.  Even so, total medical costs for a typical family of four in 2009 are expected to go up 7.4% this year, to $16,771. Employers will pay $9,947 of that, and employees will contribute $4,004 through health plan premiums and another $2,820 through out-of-pocket costs such as co-payments and deductibles.

Kate Fitch, a consultant at Milliman, attributed the consumption slowdown to better disease management and wellness programs. However, per-unit medical costs are up.

Still, that’s "only" a 7.4% increase in underlying costs. So why the big jump in premiums?

Health insurance administrative costs have been rising faster than inflation. So that’s part of it. But mostly it’s about the stock market.

When the market is strong, insurers earn a considerable portion of their income from investments. That helps keep health insurance costs in check. But when the markets tank, insurers have to make up the difference somehow.

That somehow is you.

So the rate requests we’re seeing today reflect a combination of higher medical costs, higher administrative costs, and the loss of investment income. That’s a triple whammy that leaves policyholders holding the bag.

If the stock market continues to improve, the climate could change. Insurers will be looking for more cash to invest, so they’ll get more aggressive to win your business. That could finally bring some relief.

Unfortunately, it won’t be any time soon. The rates they’re looking to lock in now will be around for a while.

Michael Boyette
Editor, HR Café Training Center

UPCOMING AUDIO CONFERENCE: Don't miss B21’s upcoming audio conference , "Benefits Communication: The Make-or-Break Factors That Determine How Employees Perceive Your Plan" Do you often feel that your employees don’t understand and appreciate the benefits you provide? If so, there’s a good chance you don’t have a benefits problem. You have a COMMUNICATIONS problem. Many employers spend big dollars on benefits but get little return on that investment. They’re missing a HUGE opportunity to use their benefits package to engage, educate and motivate existing employees, as well as attract new talent.  During this audio conference, Hay Group consultant Larry Hicks will show you how to develop effective, strategic employee benefit communications that will help employees understand your program, enhance awareness and help build greater appreciation.

Religious discrimination: a pilgrimage to Mecca

Dear HR Executive,

My, how the world has changed.

A Tennessee employer just had to pay $70,000 for refusing to let an employee depart on a pilgrimage to Mecca.

Not too many years ago, a case like this would have been so exotic as to be almost unimaginable in an American workplace. But in today’s multi-diverse workplace, any HR person worth his or her salt has to know what to do in situations like this before they spin out of control.

Request denied
The employee, who was named Wali Telwar, was a practicing Muslim who took seriously his religious obligation to make the hajj, or pilgrimage to Mecca, at least once in his lifetime.

According to the EEOC, he had earned some vacation days and asked to use them for an extended leave. (The pilgrimage itself takes four days, but if you were taking vacation to do it, you’d have to factor in travel time, too.) He asked for approximately 20 days' leave altogether.

But his employer, a hospital, wouldn’t agree. The hospital told Telwar he either had to work as scheduled or quit, and apply for rehire when he returned. He chose the latter option, but when he came back, the hospital wouldn’t take him on again.

An impossible choice?
The EEOC sued on Telwar’s behalf, and the hospital decided to make the best of a bad situation and settle for $70,000.

The EEOC framed the issue very concisely, putting it this way: “Demanding that an employee choose between his job and a mandatory tenet of his faith is a violation of federal law.”

Most of us would easily recognize this principle if an employee requested Sundays off, or asked to be excused on Yom Kippur.

But it also holds if the tenet of faith involves something more complicated, like a pilgrimage to a desert city in Saudi Arabia – or to a mountaintop in the Himalayas or a shrine in rural Portugal, for that matter.

Accommodations
Of course, it’s not always an easy matter to find a religious accommodation, and it’s possible that certain religious demands – no matter how sincere – may pose undue hardship on your business. When they do, you can say “no.”

But in most cases, an accommodation is possible. The EEOC says this might involve:

• flexible scheduling  
• voluntary substitutions or swaps 
• job reassignments and lateral transfers, or 
• modification of policies and/or procedures such as vacation or leave policies

We’re willing to bet that one or more of the above would have cost the Tennessee hospital less than what it eventually paid to make good on its lack of respect for an employee’s deeply held beliefs.

Dave Clemens
Editor-in-Chief
The HR Café Newsletter (www.hrcafe.net)

UPCOMING AUDIO CONFERENCE: Don't miss B21’s upcoming audio conference , "Terminating Employees – How to Reduce Your Lawsuit Risk by Documenting Effectively." Terminating employees is dangerous. Fired workers who feel angry and mistreated often contact the EEOC or a lawyer – which means you’re in for a long, costly, distracting legal battle. But NOT terminating disruptive, underperforming employees is dangerous, too. You can’t survive in the competitive marketplace with bad-apple employees who sap morale and decrease productivity. On Wednesday May 27,  our presenter, Alyssa Senzel, Esq., will explain how to manage and document the termination process so that you’ll have the confidence to take the actions that are in your company’s best interests.

Employee Health Insurance Costs: Providers, insurers pledge $2 trillion in cost savings … sort of

Dear HR Executive:

Back in January, we suggested that health insurers and providers, feeling threatened by the prospect of a public health plan, might start to moderate employee health insurance costs.

Sure enough, industry leaders are now pledging $2 trillion in cost reductions over 10 years. So what will that mean for your benefits costs?

It means they’ll be going up.

Because the industry isn’t really pledging to cut employee health insurance costs – only to reduce the rate at which those costs will go up. Currently, health spending is projected to rise by 6.2% a year for the next decade. The “voluntary effort” aims to reduce that growth rate by 1.5%.

Even that modest goal has left many experts dubious -- including the President’s own budget director, Peter Orzsag. He welcomed the health care industry’s participation in the reform effort. But he pointed out that while they may have signed the pledge card, they’re a long way from sending a check.

So far, the pledge is short on specifics. Industry groups say they’ll offer more details by June on how they will cut employee health insurance costs. They will almost certainly be promoting electronic medical records – which can help reduce duplication of care and unnecessary testing. And they will embrace comparative effectiveness research, which will help identify the most effective (and cost-effective) treatments. But these are long-range efforts, and you won’t see any impact on your benefits costs anytime soon.

Still, with the threat of a government-sponsored health plan still lurking in the wings, insurers and providers are worried about their public image. It might be a good time for to reach out to your health plans and see what they’re prepared to do right now to help you rein in costs.

Michael Boyette
Editor, HR Café Training Center

UPCOMING AUDIO CONFERENCE: Don't miss B21’s upcoming audio conference , "Controlling Health Benefits Costs in the New Economy – Why it's Now About Managing Risk." On Tuesday May 19, our speaker Nancy Blough, will explain how you offer attractive health benefits without draining company profits and forcing employees to pay exorbitant premiums? There’s no silver bullet, but many employers are staying ahead of the curve by implementing a combination of cost-saving tools including health risk assessments, analyzing utilization rates, chronic disease management programs, risk management, physician profiling, savvy benefit design, wellness programs, and a strong communications strategy. The key is to be able to identify and effectively manage the health risk.

HR's strategic management role: Getting a seat at the table (part II)

Dear HR Executive:

Last week, we posted a scenario involving Marie, an HR director who was trying to change how her CEO thinks about HR. Marie saw an opportunity when the CEO announced plans for a new e-commerce division. To show HR’s strategic value, she cranked up the recruitment machinery to identify great candidates to head up the new division.

As several of you predicted, Marie’s efforts didn’t change the CEO’s perception of her department. Sure, he appreciated her efforts. But he saw them as operational, not strategic. He walked away still thinking of her as good old Marie – hard-working, efficient, solid – but not a strategic player on his team.

So it looks like Marie missed her chance.

She failed to connect with the world her CEO lives in. Their day is full of demands and interruptions. And through it all they’re trying as hard as they can to stay focused on their key task – how to deploy scarce resources to maximize future returns. If they think you can help them do that job, you’re invaluable. If not, well … you’re just wasting time they don’t have.

We think Marie could have a highly strategic conversation with her boss around the new hire – if she looks at the world through his eyes. So we’re going to give her a do-over. She’ll have another conversation with her CEO about the new initiative. Will she succeed this time?

To find out, we invite you to view our Quick Take e-learning module on how to talk to CEOs. It’s a new online format we’re developing as part of the HR Café Training Center. The sample is free and takes just a few minutes to watch. After you’ve viewed it, let us know what you think about how Marie handled her challenge – and the new Quick Take format.

Click here to view the Quick Take.

Michael Boyette
Editor, HR Café Training Center

P.S.: If you’d like to consider a no-risk trial subscription to the HR Café Training Center – which includes a full library of Quick Takes and much more -- click here.

UPCOMING AUDIO CONFERENCE: Don't miss B21’s upcoming audio conference , "The Five Attributes of Great Leaders: A Manager's Roadmap for Career Advancement." On Wednesday May 13, our speaker Hal Adler,  who has studied highly successful leaders for many years, has identified five “not-so-obvious” attributes that distinguish great leaders from merely good ones. Mastering these attributes can propel your managers and supervisors to top management roles and set your company on a course to greatness.

Disabled workers: Boomers and their creaky joints

Dear HR Executive,

I’m going to be writing today about Baby Boomers, so in a spirit of full disclosure I should say right away that I’m one of them.

Anyway, I just saw the latest report on disabilities from the Centers for Disease Control, and was struck by the relative decrepitude of members of my generation: According to the CDC, 24% of adults between the ages of 45 and 64 report suffering from at least one disability. That compares with just 11% of those aged 18-44.

You may not personally be a Boomer. But even if you’re not, this report offers much food for thought if your organization employs people my age.

The implications
What are the main implications for HR practitioners?

1. With the big Baby Boom age cohort now moving through its middle years – the first Boomers were born in 1946; the last in 1964 – you’re more likely than ever to have to deal with disabled workers. 
2. Because the most common reported disabilities are arthritis/rheumatism, back problems and heart trouble, you might want to take a look at the way you now accommodate disabled workers with these issues – and see if you need to make any changes.
3. Because some Boomers plan to work on after normal retirement age, (the first of us will hit 65 in 2011), you may have more workers than in the past who are very vulnerable to disability. The CDC says 52% of U.S. adults 65 and older report having a disability.
4. In light of all the above, you may want to look again at your short- and long-term disability insurance and leave policies.

Let’s add that in addition to the age issue, there’s a gender issue: Some 24% of women of all ages report disabilities, compared with 19% of men. With more women than ever in the workforce, this means more disability issues in the workplace.

You can see the CDC report here. 

Where are all these disabled workers?
Now wait a minute, you may be saying. Isn’t the self-reported definition of disability looser than the fairly rigorous one an employee must meet to prove an ADA-protected disability? Yes. So not all the disabled workers who say they’re disabled would be considered so by a court.

But still, the trend is clear – your older (and female) workers are more likely to need accommodation, whether in the form of adaptive equipment, changes in workstation layout, or revisions in the way a job is done.

What’s your take on an aging workforce its disabled workers? Are you changing your policies and practices to deal with them more effectively? We’d like to hear your comments.

Dave Clemens (born 1950)
Editor-in-Chief
The HR Café Newsletter

UPCOMING AUDIO CONFERENCE: Don't miss B21’s upcoming audio conference , "Controlling Health Benefits Costs in the New Economy – Why it's Now About Managing Risk." On Tuesday May 19, our speaker Nancy Blough, will explain how you offer attractive health benefits without draining company profits and forcing employees to pay exorbitant premiums? There’s no silver bullet, but many employers are staying ahead of the curve by implementing a combination of cost-saving tools including health risk assessments, analyzing utilization rates, chronic disease management programs, risk management, physician profiling, savvy benefit design, wellness programs, and a strong communications strategy. The key is to be able to identify and effectively manage the health risk.

HR's strategic management role: Getting a seat at the table

Dear HR Executive:

We constantly hear from HR professionals about the challenges they face getting top management to focus on HR issues. Is there something about HR itself that that makes CEOs tune out? Or should HR directors be doing differently to show human resources is a strategic management component?

I’d like you consider the following scenario – and then share your thoughts with your colleagues in the Comments section:

Marie’s the HR director at a mid-sized company. Andy, her new CEO, came on board last year, and Marie’s been trying hard to educate him about the role of Human Resources in strategic management and planning. But Andy doesn’t get it. When he faces tough decisions, he usually turns to others on his management team.

Marie’s been looking for an opportunity to break through and change how Andy thinks about HR – and now she’s found one. Andy announces that he wants to launch a new e-commerce initiative. “We’re behind the competition,” he says. “We need to move quickly.”

Marie sees a great opportunity to show how human resources contributes to strategic management. If she can help find the right person to head up the new division, she’ll be a hero.

Marie knows what needs to be done. She needs to find out what kind of person Andy wants. She’ll need to write a job description, run some ads, talk to recruiters. But that’s all process stuff. Sure it’s important – but is any of that going to get her a seat at the big table?

What do you think? What would you do? Leave your comments below.

We’ll revisit Marie soon – and you’ll have a chance to view a new learning module that looks at how she solved this thorny problem. Stay tuned….

Michael Boyette
Editor, HR Café Learning Center

UPCOMING AUDIO CONFERENCE: Don't miss B21’s upcoming audio conference , "The Five Attributes of Great Leaders: A Manager's Roadmap for Career Advancement." On Wednesday May 13, our speaker Hal Adler,  who has studied highly successful leaders for many years, has identified five “not-so-obvious” attributes that distinguish great leaders from merely good ones. Mastering these attributes can propel your managers and supervisors to top management roles and set your company on a course to greatness.