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In This Issue
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On July 22, 1997, the Occupational Safety and Health Administration (OSHA) declared working conditions on the famous Glomar Explorer to be unsafe. The agency levied penalties of $415,900 against Astoria Metal Corporation (AMC) for multiple violations of federal safety and health laws during work on the former spy ship. The Glomar Explorer was constructed by the U.S. Government as an underwater exploration and salvage ship. In 1973 it was the focus of international attention when it attempted to recover a sunken Russian submarine which lay three miles underwater approximately 750 miles Northwest of Hawaii. Since then, the ship has been in storage and could be seen by cars crossing the Benicia bridge on U.S. Highway 680 east of San Francisco. About a year ago it was moved to the Hunter's Point Naval Shipyard for refitting as a deep-water oil drilling platform. The citations issued to AMC include five willful violations with penalties of $301,500; three repeat violations with penalties of $75,200; and eleven serious violations with penalties of $38,400. The willful violations include allowing workers to cut and burn metal surfaces treated with toxic materials such as lead-based paint; failure to establish a lead monitoring program; exposing workers to fall hazards due to the lack of covers or railings at floor holes; and the lack of railings on raised floors and work platforms, and on raised portions of the dry dock. The serious violations included, among others: leaving powered industrial trucks unattended without first shutting the power off; failure to use valve protection caps when transporting cylinders of compressed gas; using welding hoses which could be disconnected with a simple straight pull, instead of those with the required rotary-type coupling; failure to notify an employee when their blood lead level exceeds the established criteria; lack of a written program to keep lead exposure levels within the permissible limits; and failure to keep working areas free of debris. The repeat violations include: failure to provide employees with information and training about the hazardous chemicals in their work area; using power cords and cables which were inadequately protected against damage; and using an industrial truck which was not in safe operating condition. In one instance, a forklift was kept in service in spite of broken lights, broken or missing windows, damaged tires, and exposed, dangling electrical wires in the cab. OSHA issues a willful citation only in cases in which the employer knew that a condition constituted a violation or was aware that a hazardous situation existed and made no reasonable effort to correct it. A serious citation is issued when there is substantial probability that death or serious physical harm could result, and the employer either knew, or should have known of the hazard. Repeat citations are issued when hazards previously identified by OSHA remain uncorrected and are cited again on subsequent visits or inspections. AMC, a maritime construction contractor, was given 15 days to contest the citations. Twenty-seven workers suffered from high concentrations of lead in their systems.
Most employers (74.2%) allowed workers to "carry over" any unused vacation time from one year to the next, although they don't encourage the practice. Carry over allowances range from two to ten weeks. Some companies offer similar policies for sick time. How much vacation time is given employees seems to continue to depend on the amount of service an employee has. 92.3% of employers indicated they vary the amount of vacation according to years of service. In a related inquiry, Romac asked employers about their casual dress policy. 82.8% responded that they have a casual dress policy. 53.7% allow casual dress all year long, while 13.4% only allow casual dress during the summer months. 57.3% of employers allow casual dress only on Fridays. Less than one in ten employers (7.1%) have compulsory vacation periods. The survey also discovered that about one quarter of employers change their business hours during the summer months. The practices here range from closing early on Fridays to offering every other Friday off to half of the workforce. For more information about the survey, please contact: Romac International, Human Resources Division, 20 William Street, Wellesley, MA 02181-4102 or call them at 617-237-0500.
Just released, this new publication has met with a very warm reception among human resource professionals. Entitled, Before Diversity: 103 Questions & Answers for Managers and Trainers, it offers a look at all that must be considered prior to implementing a successful diversity management program. In its 120 pages are legal issues, morale issues, recruiting issues, and policy issues. Every CEO and HR professional must have a copy of this book for reference. Here is a sample of the questions you will find (the answers are in the book as well):
What do you say to your white males about diversity management? How can you get everyone enrolled in your diversity program? What should you do BEFORE you begin to implement a diversity program? How are EEO, affirmative action and diversity the same or different? The questions seem to go on and on. When you want answers, Before Diversity is what you need. Locating specific information quickly is easy because of the detailed, cross-referenced index. It won't be long and your copy will be dog-eared from use. If you would like your copy of this new reference, all you have to do is call our toll-free order line at 1-888-671-0404 or order online.
Have your credit card ready and we will ship your book to you directly. Ask for product number 925. The cost is only $49.95 per copy. Multiple copy discounts are available, and we can discuss that when you call. Of course, $4.12 California sales tax will be added to all orders shipped to a California address. Shipping and handling charges of $4.00 per copy will be added to each order. Don't forget ... we give you a 30-day, money-back, satisfaction guarantee. If you are not convinced that this, or any of our other products are the best available for the cost, just return your purchase for a complete refund. No questions will be asked. We accept VISA, MasterCard, American Express and Discover cards.
Now hospitals, medical clinics, physician practices and medical transcription services can accurately test job applicants for critical job skills. How? With the newly released TapDance Medical Transcription Skills Testing software from PRI Associates. This new employment screening software is designed for assessing the medical transcription skill levels. No longer will employers in this industry have to wonder about the abilities of job candidates. TapDance Medical Transcription Skills Testing comes in two versions. There is a general version that tests entry level and intermediate level transcriptionists for speed, accuracy, and knowledge of medical terminology. This version includes actual hospital "discharge summaries," and "patient histories." A second version is available to test medical transcriptionists for advanced skill levels by using a hospital "operative report" for the basis of the test. Each version sells for $199. Compare that to the cost of one or more hiring mistakes because there was no skill verification prior to the job offer. These new packages were developed in conjunction with medical practitioners, transcription agencies and hospitals. They focus on real life requirements of such jobs. The programs will run on most PCs with Windows 3.1 or Windows 95 and require a minimum of 8MB of memory. 
TapDance for Law Firms will provide you with an accurate and cost-effective method of testing and screening new job applicants using the following skill tests:
TapDance for Law Firms makes use of your own word processing program. It will work with Word 6.0 or 7. It also works with WordPerfect 6.1 or 7. You must specify which word processing program you intend to use in your testing. These outstanding programs for law firms are priced at only $399 for each version. Think about the money you will save because you won't make hiring mistakes from now on. You will no longer have to take an applicant's word for their keyboard skills. You can be sure before you hire. You can test an unlimited number of job applicants with each version of the software. To order your copy, have your credit card handy and call our toll-free order line: 1-888-671-0404 or order online.
In a recently published employee survey, nearly half (48 percent) of the respondents admitted to committing unethical or illegal actions in the past year. Those include offenses such as lying on an expense account, discriminating against co-workers, paying or accepting kickbacks, forging signatures, trading sex for sales and looking the other way when environmental laws are violated. The survey of 1,324 randomly selected workers, managers and executives in multiple industries was sponsored by the Ethics Officer Association and the American Society of Chartered Life Underwriters & Chartered Financial Consultants. According to the survey, motivational issues such as pressure to meet goals and lack of recognition were among the top causes of unethical or illegal behavior in the workplace. The story was reported by Vincent Alonzo in "Incentive" magazine's July 1997 issue. Top 10 Factors That Could Trigger Workers to Act Unethically or Illegally
In 1959, the Federal Aviation Administration (FAA) established a requirement that commercial airline pilots must retire at the age of 60. Ever since then, the courts have been busy hearing a series of challenges to that rule. The latest news comes from the U.S. Court of Appeals for the District of Columbia Circuit. The court refused to order the FAA to relax the requirement for retirement at age 60. The court found that individualized performance tests and medical evaluations would not be able to predict with any accuracy those pilots who would be subject to incapacitation due to heart attack, stroke or other serious condition. In the majority opinion, Judge Douglas H. Ginsburg said that the Age Discrimination in Employment Act "places no limitation upon the rule making authority of the FAA....Nothing in the Act can plausibly be read to restrict the FAA from making age a criterion for employment when it acts in its capacity as the guarantor of public safety in the air." In a dissenting opinion, Judge Patricia Wald challenged the FAA for not obtaining medical or performance data on older pilots. She pointed out that the FAA grants exemptions to younger pilots with known cardiovascular or neurological conditions who are at risk of sudden incapacitation. Wald also questioned why the FAA fails to draw a line distinguishing between passenger carriers and freight carriers. Joining in the challenge were the Professional Pilots Federation, the Allied Pilots Association and the Southwest Airlines Pilots' Association. Professional Pilots Federation v. Federal Aviation Administration, CA DC, No. 95-1604, 7/15/97.
Plaintiff's lawyers in the now famous Texaco race discrimination law suit talked about their experience recently at the National Employment Lawyers Association convention and disclosed how the infamous secret tapes managed to surface. It's a bazzare story. And, one in which the lawyers were hard pressed to believe what was real. It happened so quickly and in such a strange way, the legal experts had to go back to the rule books to determine how to handle it. In very general terms, here's what happened. The case had been going on for two years already. Texaco denied all charges of discrimination and were prepared to wage a sustained battle. The company had been accused of having a secret promotion list, which excluded any black employee names, that was actually used instead of the "public" list. The company denied the existence of such a secret list. Then a company manager told one of the plaintiff's lawyers that he had tape recordings which would prove the company was lying about the secret promotion lists. Daniel L. Berger and Cyrus Mehri, represented plaintiffs, and had this advice for others faced with the same unexpected, and unsolicited, disclosure of evidence. "First, look at or listen to it to see what it is. Second, check the relevant state code of professional responsibility to see if there is a problem receiving such unsolicited evidence. Third, it depends." They did, however, suggest that the disclosing manager get himself an attorney. Over the next six to eight weeks, they received copies of the tapes (they didn't want originals so there would be no accusation about tampering), had them transcribed, and had the manager verify the content and identify the voices on the tape. On the first workday following their authentication of the tapes, the plaintiff's lawyers filed a motion for a default judgment on the grounds of destruction of evidence. At the hearing which followed, the story became public. Immediately, Texaco asked to talk about settlement. Apparently, it was the first time either Mehri or Berger had actually talked directly with a Texaco executive. Up to that moment, Texaco attorneys had been their contact points. While Texaco told the press that they were attempting to settle the case, Mehri and Berger let it be known that they were ready and willing to go to trial. Mehri indicated that it was not their objective to just get damages in the settlement. They wanted to overturn the "good old boys" culture at Texaco. They got what they wanted. Berger suggested that other employers might be interested in some additional facts which could be relevant in other class action suits:
[SOURCE: BNA Employment Discrimination, Vol 9 No 2, 7/9/97]
VLSI, a San Jose, California high technology company, uses a program for recognizing contributions that are above or beyond what is expected. And, the program is working very well. Called the "Applause Program," VLSI employees are offered the opportunity to present thank you cards to any employee at any time for having made a special contribution. The cards are called, appropriately enough, "Applause: You Make a Difference." No approval is required from any company official. Anyone wishing to recognize another employee can get an Applause card from the Human Resources department or from their own department's administrative assistant. In a moment or two the presenter hand writes a specific thank you for what was done. There are no limits to the number of cards an employee can give or receive. Although cards can only be presented for work-related contributions, they may be given to company suppliers or customers as well as other employees. The company added a second element to the program by providing employees with tokens that can be presented with the Applause cards if that is appropriate. Each token is worth up to $5, and can be redeemed for Recreation Council Activities, used at the VLSI company cafeteria, or to purchase items from the company store or catalog. While tokens may only be given in conjunction with Applause cards, cards may be presented with or without a token included. How do employees like the program? The answer comes from seeing all the Applause cards posted at various work stations around the building. They are seen as rewards and peer recognition. Telling someone you appreciate what they have done is a very nice way to increase the chances they will be willing to help again the next time you need it.
We find that many employers are still under the impression that any "salaried" employee can be classified as exempt from overtime requirements. As common as the belief is, it is often one which results in costly penalties. Overtime rules are governed by the Fair Labor Standards Act (FLSA) and by similar legislation in most states. The FLSA says everyone must be paid overtime worked in excess of 40 hours a week. There are other additional thresholds, but that is the basic trigger point. Hours over 40 in a week must be paid at a time-and-one-half rate. To be exempt from this requirement (to work unlimited unpaid overtime) an employee must meet the tests in one or more of the following classifications: Managerial, administrative, professional or outside sales. Each category has a specific set of conditions which must be met for a worker to be classified in that group. Many employers, we have discovered, assign the title "Manager" or "Assistant Manager" to someone and give them compensation on a salary basis rather than on an hourly rate. They think that will allow them to avoid paying for overtime. Unfortunately, it's not true, as more than one employer has found out. Anyone who is classified as "exempt" from FLSA must be on a salary, it's true. Being on a salary does not mean one is exempt though. Employers must also meet the additional tests for each category of exemption. For example, managerial exemption requires the job have hiring and firing authority over two or more subordinates. And, incumbents must perform managerial work more than half the time. If an employer were to give a clerk the title of "Assistant Manager" and have that person continue to perform clerical work more than half the time, it doesn't even matter how many people report to the new "Assistant Manager." The work being performed is clerical work for the most part. Therefore, the job can not be classified as exempt. It is the job itself which carries the FLSA classification, and that has nothing to do with the qualifications of any incumbent. At least one rental car company discovered this to its disappointment. Agency Rent-A-Car was sued by 395 of its managers and assistant managers who claimed they were due unpaid overtime and huge penalties. It turned out the California Labor Commissioner's office agreed with the workers. It seems about 80% of the company's managers worked in three-person offices. There usually were an assistant manager and another employee in those offices. Because the work group was so small, managers and assistant managers normally performed the same work as the non-exempt rental agent. That meant the company couldn't treat them as managers. The overtime claims were judged to be valid and the company agreed to pay $8 million in settlement. Why did the company agree to such a large settlement? Like many other employers, it had no records of hours worked by its "managers" and "assistant managers." Therefore, it could not refute the claims of employees about the number of hours they actually worked on any given day. One biotechnology company required PhD degrees of its laboratory personnel. It classified them as exempt-professional. We counseled the company to reclassify the workers as non-exempt and start paying overtime. You see, the laboratory manager established all protocols the other workers followed. Therefore, the PhD workers were not using professional judgment 80% or more of the time as required by FLSA. If you have questions, call us. It's cheaper than penalties later.
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Congress has amended the Fair Credit Reporting Act (FCRA) and the changes become effective October 1, 1997. Employers should be alert to specific changes which impact use of credit reports in employment decision making. That might include decisions to hire, promote, terminate, or suspend. When ordering credit reports for employment purposes, employers must:
Before taking any adverse action, the employer must provide a copy of the credit report to the individual subject along with a copy of the consumer's rights. Adverse action is defined very broadly by section 603 of the FCRA. It would include any action affecting the individual that can be considered to have a negative impact - such as denying employment or promotion. Under section 615 of the FCRA, employers are still required to provide the individual with an adverse action notice. This can be done in writing, orally or by electronic means. The notice must contain the following information:
If you use credit reports as a part of your employment decision-making process you may wish to discuss these new requirements with the credit reporting agency you regularly use.
If you are an employer with workers in California, January 1, 1998 may bring changes in the way you compute overtime pay. On that day, the State will abandon its requirement for overtime pay after 8 hours of work, and adopt the federal standard requirement for overtime after 40 work hours in a week. Since the old 8-hour rule has been used in California for longer than most people can remember, employee handbooks nearly always contain detailed descriptions about how overtime is computed according to that method. While you may not alter the way you pay for overtime before the January 1, 1998 effective date of the new Industrial Welfare Commission order, you should take the time before the new year to re-examine your employee handbook. Be sure to rewrite and redistribute the policy on overtime computation. If you don't, but actually change the way you pay for overtime after the first of the year, you could be setting yourself up for a law suit because you are not doing what your policies require. Make a note now to update your handbook or policy manual before January 1, 1998.
When you need help developing your affirmative action program, give us a call. We specialize in AAP development, implementation training and compliance review support for clients all over the country. You wouldn't go to an IRS audit alone. Why think about going into a Department of Labor compliance review without professional support? The stakes are just as high either way. We are ready to give you the support you need. And while you're at it, think about ordering a copy of our reference and training book on preparing affirmative action plans and managing compliance reviews. You will find it an invaluable resource at a price that just can't be beat. Secrets of Affirmative Action Compliance, new 2nd edition, over 450 pages of regulation requirements and practical suggestions for your organization. Includes new Federal Regulations. $99.95 plus $7.00 shipping/handling and CA sales tax for CA destinations. Credit Card Orders ... Call Toll Free: 1-888-671-0404 or order online. We can help with your other human resource management needs as well. Think of us the next time you need:
Thanks for taking the time to read our newsletter. We would enjoy receiving your thoughts about its value to you. You can e-mail your message to tmainc@management-advantage.com or simply give us a call and tell us in person. Our office number is 925-671-0404. We appreciate your feedback. The Advantage is published each quarter by: The Management Advantage, Inc. Please also take time to read the important articles in other issues. |
Romac International's Human Resources Division has released the results of its latest employer survey on vacation policies. Some of the results may be of interest to you.
