Changing Workforce, Changing HR

Jean Seawright has advised pest management companies of all sizes on human resources (HR) issues for nearly 30 years. But “in the past four years, especially, the volume and complexity of the regulations has just increased immensely,” she said.

Some of these rules reflect demographic changes; others, a shift in cultural (and political) values and practices. Regardless, many PMPs now are faced with a “patchwork” of new HR requirements that can make it challenging to operate in multiple locations, she said.

Seawright advised PMPs to consult with an HR professional or attorney who has expert knowledge of these new regulations to ensure compliance. Here are five areas to address:

Lesbian, gay, bisexual and transgender (LGBT) employees recently gained expanded workplace rights under Title VII of the Civil Rights Act. The law protects workers from discrimination based on race, national origin, religion and sex, which now includes sexual orientation and transgender status, explained Seawright. Enforced by the Equal Employment Opportunity Commission, the law applies to businesses with 15 or more employees and 20 or more work weeks in the current or preceding calendar year.

You can’t refuse to hire someone or choose to fire someone because they’ve announced they’re going to change their gender, or because they are transgender, or because of their sexual orientation, said Seawright.

What you need to do: Update your equal employment opportunity policy and handbooks to include sexual orientation and gender identity. Make dress codes gender neutral and applicable to all. Allow transgender employees to use their restroom of choice regardless of what’s happening in the public arena in your state. Include LGBT rights in your respectful workplace training. Eliminate same-sex domestic partner benefits from your handbook and apply benefits equally to all married couples (as it is now legal for all people to marry).

Cautionary note: Twenty-two states plus the District of Columbia have passed laws protecting sexual orientation; some have stricter requirements than the federal law and “very active” enforcement so “always abide by the higher standard,” she said.

Ten states and the District of Columbia plus 14 major cities and counties have passed statutes that prohibit private employers from asking job applicants if they’ve been convicted of a criminal offense on employment applications. This grassroots “ban the box” movement aims to prevent ex-offenders from being automatically dismissed when they check the “yes” box, as organizers say this overlooks a candidate’s qualifications and leads to recidivism and a permanent underclass of citizens.

The take-away: These statutes do not ban employers from running background checks. Rather, it “changes the timing” of when you can ask about criminal convictions, said Seawright.

What you need to do: Follow local ordinances. If you operate multiple locations that include a ban-the-box community, have two versions of your employment application: one with the conviction question and one without. In ban-the-box communities, treat all applicants equally; run a background check after the applicant accepts the offer. If the check turns up a conviction of concern, other regulations come into play. “Now you’re in the same position had you run the background check prior,” explained Seawright.

Cautionary note: Statutes are written differently for every locale. The movement has gained significant traction in the public sector, with more than 100 cities and counties and 24 states taking action to ban the box, according to the National Employment Law Project.

In May, the Department of Labor issued a final rule that updates the guaranteed salary level that an employer must pay in order to classify a position as exempt from overtime under white-collar exemptions. This salary level increased from $23,660 ($455 per week) to $47,476 ($913 per week). The rule affects businesses of every size with employees and takes affect Dec. 1.

The take-away: The duties tests for executive, administrative and professional exemptions have not changed but “because the rate increased over 100 percent” some employers are questioning whether the duties performed are worth that higher salary or if they should switch to a different pay plan and pay overtime, said Seawright.

What you need to do: “There’s an opportunity in all this for employers to correct misclassifications” of employees (the window closes Nov. 30) by evaluating positions by salary and duties tests, she said. (You cannot pay salary so you don’t have to track hours, or because that’s how you’ve always done it or that’s what the employee wants, reminds Seawright). Determine how you will compensate non-exempt employees; several options exist, from paying salary or hourly plus overtime to converting salary to hourly to limiting hours worked.

Cautionary note: The guaranteed salary threshold for overtime exemption will increase every three years going forward. Explore how this will affect performance reviews and rewards, especially if an employee does not meet performance goals, said Seawright.

About five years ago, the National Labor Relations Board (NLRB) ruled that when two or more employees discuss working terms or conditions online the conversation is protected under Section 7 of the National Labor Relations Act (NLRA). Employers who terminate such employees for bad-mouthing the boss/company can have claims filed against them, said Seawright.

The take-away: In investigating such claims, the NLRB turned to scrutinizing employee handbooks, attacking “broadly stated phrases and directives that could chill an employee’s right to engage in protected concerted activity,” said Seawright. Customary phrases that require workers to have positive attitudes and respectful online conversations or to not discuss pay with other employees are examples of common policies that now are in complete violation of the NLRA, she said.

What you need to do: This is “the current enforcement practice and (agencies) are absolutely enforcing it with vigor so we have had to revise policies,” advised Seawright. In addition, do not use boilerplate or copy friendly competitors’ handbooks. You might be copying policies that don’t even apply in your state or don’t meet current regulatory standards. Pest management professionals “need to have a very carefully designed handbook for their business that relates to the policies and regulations that they’re covered by,” she said.

Cautionary note: Your employee handbook can be your greatest asset or biggest liability.

Momentum is building for mandatory paid sick leave for all workers. Government contractors and subcontractors are required to provide this benefit effective January 2017; four states, 21 cities, one county and the District of Columbia currently require this of private sector businesses. Bills are pending in seven other states and Congress, where the Healthy Families Act would require up to 56 hours of paid sick leave per year, available for use on the 60th day of employment.

The take-away: Paid sick leave laws can cover businesses with only one employee and many of the laws require this benefit for part-time, temporary and seasonal workers, said Seawright. Coverage can be based on where the work is performed vs. where your business is located. The laws treat sick leave like paid time off (PTO) by allowing employees to use the time off at will, without having to justify an illness, she said.

What you need to do: Transitioning to PTO “is the best thing you can do” because “if a sick leave law comes to your area, as long as you’re providing equal to or greater than benefits under your PTO policy, you don’t have to add any new benefits,” even if you may have to make policy adjustments, said Seawright. Evaluate benefits, the costs, your payroll systems and the regulatory and competitive landscape to ensure compliance and market advantages.

Cautionary tale: PMPs operating multiple locations may not be able to extend this benefit to employees at all branches due to the cost; only to employees in jurisdictions that require it.