Human Resources - Related Articles

REFERENCES/NEGLIGENT HIRING

Resumes, applications, interviews and now you are ready to make a hire decision. Do you contact previous employers, colleges, professors? Do you need or want a credit or criminal background check? At the very least a reference check is advisable. The only problem may be in obtaining one.

You should at least try to verify employment history, job title, and reasons for leaving previous employers. The information may be difficult, if not impossible, to obtain on your own as most employers will only confirm dates of employment and job title. Iowa, Wisconsin and North Dakota do have job reference immunity laws. You are protected as long as you do not "knowingly give out false information or provide information with reckless disregard for its truth or falsity." Minnesota law gives employers limited immunity in providing references. (Contact Alan Holz or your legal counsel for full interpretation of the law that went into effect in August of 2004).

Remember you can be sued for negligent hiring, negligent references, or even failure to provide a truthful reference and retaliation if you provide a negative reference. If you terminate an employee for bringing a gun to work, do you disclose that to a potential employer in a reference? What happens if the employer hires the individual and he/she subsequently causes physical injury or even death to one of your employees? There was a similar case in Florida. The families of the victims who were shot and killed by the employee at the second employer were permitted to sue for improper reference. If you are the first employer, don't withhold this information. Remember, the truth is always a solid defense against defamation claims.

For employers attempting to obtain reference information, get a written consent and release of liability permitting you to contact former employers, schools and references. Document each reference call even if no information is obtained. If you use a third party consumer reporting agency make sure they follow the Federal Fair Credit Reporting Act requirements. For more information contact Alan Holz, Olsen Thielen Human Resources Manager at (651) 483-4521 or your attorney.

EMPLOYER LIABILITY FOR HARASSMENT
--Faragher v. City of Boca Raton
--Burlington Industries, Inc. v. Ellerth

The two 1998 U.S. Supreme Court decisions cited above represent significant decisions for employers in harassment/sexual harassment cases. These decisions created new standards for employer liability when a supervisor sexually harasses an employee and also established an "affirmative defense" for employers when there is no "tangible employment action".

The bottom line is that employers will always be held liable for harassment claims which involve supervisors when there is a tangible loss, e.g., firing, demotion, reassignment. Employment actions by a supervisor are acts by the employer. The employer may also be liable when there is no tangible loss if it does not have an established and effective sexual harassment policy."

An effective anti-harassment policy, communicated to all employees that resolves harassment complaints promptly is your best defense. Employers need to be able to demonstrate that the company "exercised reasonable care to prevent and correct promptly any sexually harassing behavior" and the employee "unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer."

In order to prevent harassment, defend your company in harassment issues and avoid costly litigation, it is critical that you: (1) issue a policy statement against harassment; (2) train supervisors, managers and all employees on the policy; (3) identify what constitutes harassment; (4) establish complaint alternatives within the organization; (5) investigate complaints in a timely manner; (6) apply disciplinary actions to employees who engage in harassing behavior and (7) periodically train, inform and educate all employees about offensive/harassing behavior.

Contact Alan Holz, Olsen Thielen Human Resources Manager at (651) 486-4536, or your attorney if you would like assistance in developing and implementing a policy and training your employees about your policy and the importance of reporting harassment.

MOTIVATING AND REWARDING EMPLOYEES

The 1999 Workforce Commitment Index published by AON Consulting indicated that "the average length of service with a company is now less than four years….and those entering the workforce in the late 1990's will change employers an average of nine times before they reach the age of 32." Reminiscent of the Oldsmobile commercial, this is not your father's workforce! Gone are the days of company loyalty and the gold watch after 30 years. As corporate America has downsized, restructured, re-engineered and flattened their organization charts there are fewer promotional opportunities, fewer organizational layers, and upward career growth is no longer a guarantee. Is it no wonder that today's workers are committed to something other than their company? The low unemployment figures of the last few years have demonstrated that workers are no longer expendable and easily replaced.

The AMA (American Management Association) several years ago outlined what workers want: a sense of accomplishment; an opportunity to grow; a chance to use their skills; and recognition for their efforts. Pay was sixth and benefits tenth on that list. We've seen the development of job sharing, telecommuting, flexible work schedules, cabins for employee use, massage therapy at work, concierge services, stock options, relaxed dress codes, subsidized child care and elder care services as programs to help recruit and retain employees. Certainly all of these will help drive company loyalty and commitment; however there is a lower cost alternative and it is number 4 on the list-RECOGNITION.

Recognize people for performance, ideas, suggestions, safety, attendance, reducing costs, boosting sales or cross-selling services, and be sure to recognize those individuals who may not be superstars but are an integral part of your team. If you don't have a formal recognition program (gifts, plaques, days off, employee of the month) just be sure to MBWA (Manage By Walking Around) and tell your employees "thanks…. I appreciate your work on….. Your extra efforts in completing that project were really appreciated….I realize the effort you have made." At your next staff meeting, instead of focusing on problems, identify and celebrate your successes and the people who made them possible!

Wayne Bonekemper writes in Great Managers Are From Earth, the 6 rules of being a manager: 1) Know that you can be a great manager; 2) New managers over-manage; 3) Be accessible, I mean really accessible; 4) Hitting a moving target is tough-hitting an invisible target is even tougher; 5) Firing someone is almost never the solution; and 6) Grow, share, tell stories, have fun. You can access selected portions at www.worktracks.com/work2.htm.

Olsen Thielen provides human resources consulting services in a number of areas. Contact Alan Holz at (651) 486-4536 for more information on how we might help meet your human resources needs.

INDEPENDENT CONTRACTOR OR EMPLOYEE?

Hiring contractors presents many advantages, including flexibility in managing your workforce, obtaining specialized skills for a limited time and perhaps saving money, as contractors are not eligible for company benefits nor do you deduct social security, medicare or unemployment taxes.

However, not everyone meets the requirements for being an independent contractor and employers cannot just arbitrarily designate someone as an independent contractor. The IRS has a detailed test for determining employee-contractor status.

Under the law the most important factor or test in determining status is whether the employer has the right to control the means and manner of performance of the work. An independent contractor relationship exists where the contractor is subject only to results but not to the means of manner of performance. Also, work performed on the employer's premises is indicative of an employment relationship. Providing work space, tools and equipment and reimbursing for expenses also provide evidence of an employee, not a contractor, relationship. Paying someone hourly or for the time taken to complete the work or setting work hours tends to indicate a regular employment relationship. Retaining the right to terminate a contract or discharge a person at any time is also more indicative of an employment relationship. These are only a sample of the more than 20 factors you should consider in determining whether or not an employment relationship exists.

More information to help you manage your business is contained in our Payroll Tax Guide For Minnesota Businesses. If you have questions, need assistance in drafting an independent contractor agreement or would like a copy of our Payroll Guide please contact Alan Holz, Olsen Thielen's Human Resource Manager, at (651) 486-4536.