During a recent meeting with a client, we were asked if we were aware of the EEO’s opinion letter on high school diploma job requirements and discrimination under the Americans with Disability Act. We found the conversation to be very relevant given the fact that many employers have a standard hiring practice that generally requires a high school diploma.

Recently the EEOC issued an informal opinion letter stating that a high school diploma job requirement could be considered discrimination under the Americans with Disability Act. In their informal opinion letter, the EEOC stated the qualification standard that screens out individuals on the basis of a disability must be job-related and consistent with business necessity, or it may violate the ADA. Under the ADA, a qualification standard, test, or other selection criterion, such as a high school diploma requirement, that screens out an individual or a class of individuals on the basis of a disability must be job related for the position in question and consistent with business necessity. A qualification standard is job related and consistent with business necessity if it accurately measures the ability to perform the job’s essential functions (i.e. its fundamental duties). Even where a challenged qualification standard, test, or other selection criterion is job related and consistent with business necessity, if it screens out an individual on the basis of disability, an employer must also demonstrate that the standard or criterion cannot be met, and the job cannot be performed, with a reasonable accommodation. See 42 U.S.C. § 12112(b)(6); 29 C.F.R. §§ 1630.10, 1630.15(b) and (c); 29 C.F.R. pt. 1630, app §§ 1630.10, 1630.15(b) and (c).

This means that for each position, the employer must take multiple steps to ensure they are not discriminating under the ADA. First, the employer must determine if the qualification standard of a high school diploma is job-related and consistent with business necessity. If the employer determines a high school diploma is job related, the employer must then determine whether the individual applicant whose learning disability kept him or her from obtaining a diploma can perform the essential functions of the job, with or without a reasonable accommodation.

Employers should keep in mind, that, if they are going to use this kind of qualification standard, they need to have a specific job related reason based in the qualifications for the position itself. Employers need to look at individuals on a case-by-case basis to determine if there is some type of reasonable accommodation that might allow the person to successfully perform the job.

Midwest Staffing is always glad to be a resource to our clients regarding the latest employment related legislation. If you have any questions regarding this issue or any others, please feel free to contact your local branch office.

Have you been considering giving your employees a gift card or other small gift item during this Holiday season? If so, you may need to consider the tax issues associated with these fringe benefits. Currently, the Internal Revenue Service (IRS) advises employers that all fringe benefits, like gift cards are considered taxable wages unless they are excluded by a section of the Internal Revenue Code (IRC).

You may be wondering if there are any non-taxable gifts that you can safely give during this Holiday season. According to the IRS, employers can provide items that are considered de minimis. Examples of these gifts include tickets to a sporting event/concert/theater event, a Holiday group meal, flowers and other low priced traditional gifts that don’t have a cash value.

For example, the employer can provide a small gift on during the Holidays such as a mug with hot chocolate without any taxable issues to the employee. However, if the employer gives the employee a gift certificate to a coffee shop to purchase the items, it could create a situation where the employee could receive cash back. In this situation, the gift card/certificate would not be considered a non-taxable gift.

If you have any questions regarding the IRS Code, please contact your branch office or legal counsel. As an additional resource, you can reference the following guides published by the IRS: Taxable Fringe Benefit Guide and the Employer's Tax Guide to Fringe Benefits, Publication 15-B.

The National Labor Relations Board (NLRB) has postponed the effective date of its new rule that mandates private employers post a notice of employee rights under the National Labor Relations Act. The rule was originally scheduled to go into effect on November 14, 2011 has been postponed to January 31, 2012. The NLRB felt the additional eleven weeks will help employers prepare to comply.

According to the NLRB, the postponement will allow for, “enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.” The board determined that some employers were confused over which businesses were required to comply with the statute. The posting requirements of the NLRB depend on the extent in which a company engages in interstate commerce. Because the posting requirements are rather complex, almost all private-sector employers are subject to the act and should prepare to be in compliance on or before January 31, 2011. A printer friendly version of the government issued publication can be found here.

If your organization has any compliance questions, your local Staffing office is always a resource. Please feel free to contact any of our offices with questions or concerns!

A few weeks ago I found myself back in the classroom for my daughter, Madeline’s pre-school orientation. As I sat through the handbook orientation, I began to notice a plethora of overly excited parents, nervous children clinging to their parents’ legs, and enthusiastic teachers ready for the year to begin.

I looked over at Madeline confidently playing in the dress-up area as she sported overly large plastic high heels, a gaudy fake jeweled necklace and a fluffy pink “princess” dress. Madeline was at-ease and ready to begin pre-school. It was in this moment that I realized that preparing a child for their first day of preschool is much like managing change in an organization. (Yes, this was the Human Resource Manager coming out in me)!

Preparing a child for their first day of preschool
is much like managing change in an organization.

Define the End Goal

Much like managing change in an organization, the first step in preparing a preschooler for their first day is to clearly explain what the goal is and what will happen. I helped Madeline to understand I wanted her to have fun, to meet new friends and learn new things. When beginning a change effort in an organization, it’s essential to understand and define the business intent. Employees need to know exactly what the goal or business intent of the change effort is. When creating the change, you should be looking at how to foster an environment where employees can embrace they change rather than telling them the new policy.

Identify Stakeholders

In every change, there are going to be numerous parties that will be impacted. Some employees will be deeply impacted while other employees will hardly notice the change has taken place. As a change leader, you must have a plan developed to address the various needs of each group to gain their support for the change. Prior to preschool beginning, my husband and I discussed how the “stakeholders” in our family would be impacted. Jack, our 6 month old son would have to take a slightly later morning nap to accommodate dropping Madeline off at school. On occasion my husband will have to take time off of work to attend a school function. The largest stakeholder would be Madeline who was transitioning from a summer with little structure to a classroom. All of the issues were addressed and a plan was communicated to each “stakeholder”. Okay, so we didn’t technically communicate it to the infant, but you get the point! Address all of the stakeholders needs to make them feel important and a part of the change.

Gauge Organizational Readiness

It’s important for a change leader to be able to assess the organization’s readiness for the change. To create an analysis you should gather information in the following areas:

• Employees understanding the reason for the change and/or understanding of the business goal.
• If the key employees are in agreement about the importance of the specific change effort.
• Leadership’s ability to communicate the vision/purpose of the change.
• Availability to communicate with employees to gather feedback, suggestions and concerns.

Develop a Plan

After the research has been completed and data gathered, it’s time to create a strategic implementation plan. The plan should include:

Business goal/intent, the stakeholder and organizational readiness analysis, implementation steps, a means for evaluating the effectiveness of the change effort and a communication plan

This list is not by any means all inclusive, but it does provide the basics of managing an effective change process. Perhaps one of the more important parts of managing change is to celebrate the milestones and small victories along the way. First day of preschool was a huge milestone… deserving of a celebratory ice cream cone. Yes, I think so!

These days, finding a job is hard, and just submitting resumes to different companies isn't enough anymore. The face of job hunting has changed, and nowadays, having a professional social media life is what will make or break your chances at landing a job. Companies now use social media to recruit new personnel. Almost 80% of all companies are recruiting using social media, or will start recruiting later this year. They are also using it to check on employees. If you want to get a good jump start on getting a great social media campaign that will increase your chances of getting hired, you should follow these guidelines.

Clean up your online photos.

• Clean up your online photos. If you are a recent college grad, this means that you need to take those photos of your frat parties off Facebook, ASAP. Sexually suggestive photos, as well as photos that display your drinking abilities, need to be out of your profile while you job hunt.
• Know what media to use. LinkedIn, Facebook, and Twitter are used by most recruiters. If you are hoping to land a job on YouTube or Myspace, you are going to be sadly disappointed.
• Don't rant on your social media, especially about your job. Whining, ranting, and outright insulting others isn't professional, nor is it becoming. One of the most famous cases of Facebook firing happened when an employer discovered that his new hire was openly insulting him on social media. Don't let this happen to you!
• Prove that you are knowledgeable about your field. Writing a couple of blurbs which offer tips and tricks about your field every week or so can make a huge difference in whether or not you are recruited.
• Be professional online, and off. Keeping your grammar correct, your spelling perfect, and your tone light is a good way to show your professionalism online.
• Offering advice to others online is a very good way to network while making yourself an authority on the subject. As an authority in your field of work, you will get a higher chance of getting hired, and it's also quite likely that you will get a higher salary offer.
• Use your common sense. If you dress unprofessionally in photos, you will be taken as a person who isn't professional. Some things are still the same, both in life and on the net. Appearances are always going to count.

Your social media accounts might be a first introduction from you to a company. Having a professional, friendly, and intelligent online persona lets you make a great impression on employers. By giving them a great first impression, you are letting them have confidence in you. More and more people are being recruited by social media. Isn't it time that you start investing your time in it?

The national emphasis program (NEP) is a recently issued strategy released by The federal Occupational Safety and Health Administration (OSHA). Last year, OSHA launched the NEP after studies found that many companies were underreporting or incorrectly reporting workplace-related injuries and illnesses.

The goal of the NEP is to crack down on the underreporting of occupational injuries and illnesses. Specifically, OSHA plans to target manufacturing companies, companies whose rates are significantly lower than the industry standard, and/or companies that have large worksites. Currently, the NEP pilot program is scheduled to run through February, 2012.

There can often be confusion among companies that utilize a temporary workforce on the reporting requirements: who should record the injuries, how they should be recorded, etc . To provide some general guidance, below are are few key points to keep in mind with regard to temporary employees:

The "Controlling Company"

Employers who supervise temporary employees at their work-site are required to maintain the OSHA 300 Logs for those employees. The controlling employer is often the company who uses the temporary workers because they direct the day-to-day work of the employee. Some companies prefer to sub-divide the OSHA 300 Log to provide separate listings of temporary workers and their own internal employees. However, the records must be maintained in one larger log for all recordkeeping purposes.

First Reports of Injury and OSHA 301 Forms

When the workers from a temporary service firm are under the day-to-day supervision of the controlling party (using firm), the entire OSHA injury and illness recordkeeping responsibility belongs to the using firm. This responsibility includes completion of an OSHA 301 Incident Report form, or an equivalent form, for each recordable injury or illness entered on the OSHA 300 Log. The agency that is supplying you workers should partner with your organization to ensure you receive the medical records and return to work updates necessary to complete your reports.

The record keeping requirements of OSHA are quite intricate. Please be sure to consult with your own human resources and legal team prior to implementing any new processes. This article is intended to provide a general framework for the reporting requirements of OSHA. To keep updated on reporting requirements, you can consult OSHA's website at www.osha.gov.

Midwest Staffing Group is dedicated to supporting our clients in complying with all federal, state and local laws. If you have any questions on the OSHA reporting guidelines, please be sure to contact your local branch office!

Employees generally don't become "problem employees" overnight and there are often red flags that the employee might be an issue from the beginning.

Old Habits Die Hard
In October, our Minnesota Vikings brought back Randy Moss who was a former player. At the time, the Vikings offense was struggling and many Vikings fans viewed bringing Randy back as the answer to their problems.

In the past, Randy Moss has been unpredictable and often behaved selfishly on and off the field. In a press conference, Moss criticized his Coach for failing to take his suggestions about how his former team, the Patriots would play the game. However, his rant did not end there as he also managed to explain that he would ask and answer his own questions in response to a $25,000 fine from the NFL. A day later, Coach Childress cut Moss from the team.

Take Quick Action
While many Vikings fans disagree with Coach Childress, there are a few things to learn from his quick decision to cut Moss.

When your company hires a new employee, it is reasonable to expect them to aim to perform above expectations, especially during their first few days on the job. It should be expected that they demonstrate how pleased they are to have joined your company and their commitment to their new role. A red flag should be raised if you do not see excitement, a desire to work hard or if the new employee criticizes management. In most cases, you can safely bet that the situation most likely will not improve with time and quick action should be considered.

What Can be Learned from the Vikings?
As we learned earlier, old habits die hard. It’s reasonable to anticipate a learning curve regarding new skills, but negative attitudes and critical comments are often an indicator that things will not work out well for the future.

It is recommended to have an introductory period as a part of your employee handbook to give you the added ability to take quick action and terminate your own Randy Moss. As with any termination decision, you should consult your organizations Human Resource department or if you are a client of Midwest Staffing Group, you can always review the situation with our HR business partners!

As State Primaries have taken place and the general elections are right around the corner, now is a great time to make sure your companies Voting Policies are up-to-date. Minnesota's Election Day Law covers all "regularly scheduled" state primary or general election was recently amended to give employees the "right to be absent from work for the time necessary to appear at the employee's polling place, cast a ballot, and return to work."

Expansion of the "Right to Be Absent from Work"

In 2010, the MN legislature expanded the definition. Every employee who is eligible to vote has the right to be absent without penalty or loss of salary or wages. Employees have the right to be absent from work “for the time necessary to appear at the employee’s polling place, cast a ballot, and return to work on the day of that election.”

Answers to Unanswered Questions

The Minnesota Election Day Law provides little guidance to employers beyond prohibiting "penalties" or "wage and salary deductions," Some questions you might have regarding the new law are listed below with some general guidance. Please consult your legal counsel before making any policy changes as this information is only guidance.

Can I require an employee to provide advanced notice?

The statute doesn’t fully address this issue, it would be challenging for an employee to prove that providing notice prior to the shift starting interferes with the right to be absent from work to vote.

Can I limit the amount of time the employee is absent from work?

Yes, although enforcing it might be a challenge. The statute provides that the employee must be given time off for the time necessary to (1) appear at the employee's polling place, (2) cast a ballot, and (3) return to work. It does not provide for time to make a pit stop along the way! However, it would be difficult to prove how long it actually took the employee to vote based on lines at the polling place, etc..

Can I require the employee to use accrued vacation or paid time off (PTO) to make up the difference?

The statute doesn’t address this question but keep in mind that deducting an employee's accrued leave or PTO could be viewed as a prohibited deduction or penalty.

Does your company currently file and store I-9’s electronically or have you thought about it as an option for the future? If so, read on to learn about the new final rule that was published on July 22, 2010. The U.S. Department of Homeland Security (DHS) published a final rule amending an interim final rule on the electronic signature and storage of the Form I-9.

The final rule allows employers to complete, sign, scan and store the Form I-9 electronically as long as certain performance standards in the final rule for the electronic filing system are met.

The final rule makes minor modifications to the interim final rule to clarify that employers:

1. Must complete a Form I-9 within three business days (not calendar days).
2. Can use paper, electronic systems or a combination of paper and electronic systems.
3. Can change electronic storage systems as long as the systems meet the performance requirements of the regulations.
4. Need not retain audit trails for each time a Form I-9 is viewed electronically. Instead, only when the Form I-9 is created, completed, updated, modified, altered or corrected.
5. Can provide or transmit a confirmation of a Form I-9 transaction but are not required to do so unless the employee requests a copy.

Employers have also requested guidance on the storage of documents used to verify an employee’s identity and eligibility to work in the United States. DHS clarified that employers may, but are not required to, copy or make an electronic image of a document used to comply. Employers should develop a consistent policy regarding the storage of document copies to avoid discrimination.

Additionally, the form I-9 and verification documentation may be stored in a separate Form I-9 file or as part of an employee’s other employment records. The pages of the Form I-9 containing employer- and employee-entered data need be retained; the other pages do not need to be retained.

The DHS amended the interim final rule to require an employer to provide or transmit a confirmation of the transaction only if an employee requests it. If requested, a receipt when completing an electronic record should be provided within a reasonable period of time, but it need not be provided at the time of the transaction.

Keep in mind that providing the option of electronic preparation and storage does not alter the requirement that the employer physically examine any documentation provided by the employee in the presence of the employee prior to completing the Form I-9. The final rule takes effect August 23, 2010.

As a mother of a three year old, I rarely get out to the theaters to see an adult movie. In fact, if one were to review my ticket stubs they would find The Princess and the Frog and How to Train a Dragon (in 3D of course)! On occasion, my husband and I get a movie date night at home. Given that part of my job at Midwest Staffing Group Inc. is consulting with clients about avoiding legal risks in terminating employees, Up in the Air was a natural choice for a rare movie night.

In case you haven't seen it, the movie's about Ryan Bingham, a character played by George Clooney. Bingham is a professional outside terminator who travels around the US letting employees go. He spends the majority of his time in airports and remote US cities while earning frequent traveler perks. All of this changes when Natalie a recent college grad, played by played by Anna Kendrick joins the company. She has an idea to decrease extensive travel costs by doing terminations by video. She's assigned to go on an in-person tour with Bingham to see how terminating is done live, to improve her video product.

Throughout the movie, we see numerous firing scenes where some employees cry, others are angry and others are shocked. In my experience in HR, this is quite true to life. Overall, the movies about more than the painful duty of ending someone's job, it focuses on the “human aspect” of the termination. For nearly all companies, termination is still very much a part of their business. Up in the Air highlights not only the legal but the human risks associated with terminating employees. The movie reminds us of some key aspects to keep in mind when terminating an employee:

1. Pre-termination Planning- ensure you are aware of the risks before hiring and throughout the course of employment.
2. Begin before Hiring- Employment applications should provide an opportunity for applicants to fully disclose their past work history and reserve the right to terminate an employee for falsifying information. Secondly, the standards for working at your company should be made clear during the interviewing process and upon hire to avoid any surprises. Lastly, your employee handbook should have language that clearly states your companies at will employment policy. If the position requires a written employment contract, ensure that it is appropriate for the position.
3. Decision to terminate- If a manager decides that an employee should be terminated, this decision should be reviewed by at least one person before the final decision is made. The review should look at all of the facts leading up to the decision along with a review of the employees file.
4. Letting the employee know- Telling an employee they are terminated is never an easy job as the movie demonstrated. Usually the employee’s manager and a HR representative will attend the meeting. The meeting should be prepared for in advance and focus on the facts including the decision to terminate, reasons supporting the decision, the date the decision is in effect, review COBRA and any other relevant separation information, a review of any non-competes, policies on references, and informing the employee who they can contact with any issues.
5. After the termination- the employer should prepare a brief explanation about why the employee is no longer with the organization to avoid rumors. Any reference requests should be dealt with in accordance to your organizations policies and procedures.
6. Be aware of the legal challenges- An employer should be aware of several legal challenges with terminations including but not limited to contractual claims, tort claims, claims of constructive discharge, and claims based on federal state and local legislation. Prior to the termination, the employer should have reviewed the termination case for any red flags that might arise with the termination.

As in the movie, terminating an employee is never a simple task and it’s something that every manager and HR professional should take seriously. While it’s important to follow the steps in the process, I have also learned that it’s just as important to not remove the “human” out of human resources and be aware you are dealing with a person, not just a number.