All posts by stu

EEOC, Harassment, Investigations

Who’s telling the Truth in “He said, She said” Harassment Complaints

In many harassment complaint cases, there are no witnesses and an investigator is left with the statements of harassment from the complainant and the denial from the alleged harasser. When there are conflicting versions of events, an investigator must review relevant factors to help determine who may be telling the truth. It is important for an investigator to make a conclusion about the allegations and decide whether there was a violation of the company’s harassment policy occurred and recommend corrective action to address the violation and/or prevent violations in the future. Fortunately, the Equal Employment Opportunity Commission (EEOC) provides several factors that can be used by investigators to assess the credibility of employees (or others) involved in a complaint or grievance.  It is important to remember that the investigation is trying to determine the facts by a preponderance of the evidence (more likely than not), and not beyond a reasonable doubt.  If the primary evidence is the testimony of the victim (no witnesses), and the alleged harasser denies the allegations – the investigator can ensure that he/she fairly and independently reviews the complaint and respects the right of the harasser to be confronted with the allegations.  Examine the following factors, while at the same time look for signs that a witness may be lying, exaggerating or being deceptive.

Evaluating Credibility

  • Inherent plausibility: Is the testimony believable on its face? Does it make sense?
  • Demeanor: Does the person seem to be telling the truth or lying?
  • Motive to falsify: Does the person have a reason to lie?
  • Corroboration: Is there witness testimony (such as testimony by eye-witnesses, people who saw the person soon after the alleged incidents, or people who discussed the incidents with him or her at around the time that they occurred) or physical evidence (such as written documentation) that corroborates the party’s testimony?
  • Past record: Does the alleged harasser have a history of similar behavior in the past?

None of the above factors are determinative as to credibility. For example, the fact that there are no eye-witnesses to the alleged harassment by no means necessarily defeats the complainant’s credibility, since harassment often occurs behind closed doors. Furthermore, the fact that the alleged harasser engaged in similar behavior in the past does not necessarily mean that he or she did so again. EEOC Guidance.

Interview, not Interrogation

Your investigation should involve interviews, not interrogations.  Interviews are taken with willing witnesses, who are prepared to tell you what they know.  For reluctant witnesses, build rapport by (1) asking general open-ended questions; (2) explaining the advantages of cooperation; (3) outlining necessity to cooperate; (4) empathizing and be non-judgmental; and (5) let them explain their side of the story.

How to Spot Deception (American Psychological Association)

  • Encourage interviewees to talk while an interviewer slowly reveals evidence.
  • Consider initially withholding some evidence until later in the interview, to give the person a chance to either not answer, or blatantly lie about something.
  • Encourage a witness to say more during their interviews.
  • Ask a witness to tell their story in reverse order.
  • Ask unexpected questions in the interview – surprise questions can leave them floundering for a response or contradicting themselves.
  • A liar may use more single-syllable words, repeat particular words or use words that convey uncertainty, such as “might” instead of “will.” (Read more)

Misconceptions about Lying (Not necessarily signs of Lying)

  • Crossing arms
  • Lack eye contact, looking away, shifting eyes
  • Movement (fidgeting, scratching, picking hands, tapping foot)
  • Sweating or nervousness
  • Ums, ahhs – filling pauses

Clues to Spot Liars: an ABA article offered ways to spot liars (from Cynthia R. Cohen, Ph.D)

  • Affect (change in demeanor) differs than normal baseline
  • Smiles inconsistent with emotion; micro expressions revealing inappropriate emotions
  • Outward signs of fear or guilt – such as higher pitch, faster/louder speech, speech errors, indirect
    speech
  • Gesture slips (e.g., shoulder shrugs)
  • Shifting eyes if linked to other signs
  • Length of answers, details
  • Can’t tell the story backward
Child labor, Construction, Department of Labor, Employment Poster, Posters

Can a 17 year old work at a construction site?

With the shortage of construction labor (skilled and unskilled) in Florida and the beginning of the summer, construction employers are looking at any and all available labor sources. Is your company looking to hire a high schooler this summer?  Before your construction company hires a 16 or 17-year-old to work, make sure your company reviews the Florida child labor rules and federal restrictions because there are several hazardous occupations that cannot be performed by a minor. Here is a quick review of what construction companies need to know about child labor for the summer (school is out).

  1. No work permit is required n Florida.
  2. School is not in session so there is no limit on the number of hours a 17-year-old can work per day.  However, no more than 6 consecutive days in any one week.
  3. Minors must be given a 30-minute uninterrupted break every 4 hours.
  4. If under 18 years old, a minor may not do the following hazardous activities:
    • operating a motor vehicle;
    • working on scaffolding, roofs or ladders above 6 feet
    • demolition or excavation work
    • operating a circular saw or band saw
    • working with compressed gasses exceeding 40 p.s.i.
    • working around toxic substances, corrosives or pesticides
    • working with electrical apparatus or wiring
    • Operating earthmoving equipment, forklifts or any moving machinery

What if the child labor regulations are violated? Under the Fair Labor Standards Act (FLSA) the penalties for violating a child labor restriction is subject to a penalty of $11,000 per violation.  Under Florida law, a violation is subject to a fine of $2,500 per offense and/or be guilty of a second-degree misdemeanor.  In addition, if an injured minor is employed in violation of any provision of the child labor laws, an employer is subject to up to double the compensation otherwise payable under Florida’s workers’ compensation law.  If minors are employed, an employer must also post the federal and Florida child labor poster in a conspicuous place on the property, or place of employment, where it may be easily read.

Bonuses, Compensation, FMLA, Leave of Absence, Payroll

Equivalent Job Restoration and Bonuses for Employees taking FMLA

When an employee returns from FMLA leave, he or she must be restored to the same job that the employee held when the leave began or to an “equivalent job.” The employee is not guaranteed the actual job he or she held prior to the leave. An “equivalent job” means a job that is virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions (including shift and location).

Equivalent pay includes the same or equivalent pay premiums, and the same opportunity for overtime premium pay as the job held prior to FMLA leave. An employee is entitled to any unconditional pay increases that occurred while he or she was on FMLA leave, such as cost of living increases. In addition, an employer must give pay increases conditioned upon seniority or length of service if employees taking the same type of leave (i.e., paid or unpaid leave) for non-FMLA reasons receive the increases.

Equivalent pay also includes any unconditional bonuses or payments. If a bonus is conditioned on achieving a specified goal, such as hours worked or products sold, and the employee does not meet the goal due to FMLA leave, payment of the bonus is not required unless the employer pays it to employees taking the same type of leave for a non-FMLA reason. If the employer pays the bonus to such employees taking leave for a non-FMLA reason, it must also pay the bonus to an employee taking FMLA leave. So, when an employee is substituting PTO or sick leave during FMLA, the employee would likely be eligible for bonuses, but when the employee is in an unpaid status, he/she is usually not eligible.  Review company policies and practices to determine your specific situation.

Download the Employer’s Guide to FMLA for more answers from the DOL to common situations.

Hiring, I9 Form, Immigration, IRS, Social Security card

Can employers accept an ITIN card?

What is an ITIN Number?

An ITIN is a nine-digit number issued by the U.S. Internal Revenue Service (IRS) to individuals who are required for U.S. federal tax purposes to have a U.S. taxpayer identification number but who do not have and are not eligible to get a social security number (SSN).  The ITIN is a tax processing number issued by the Internal Revenue Service (IRS) to ensure that people – including unauthorized immigrants – pay taxes even if they do not have a Social Security number and regardless of their immigration status. Fact Sheet about ITINs.

Can a Person Get Hired with an ITIN card?

ITIN is for federal tax reporting only and is not intended to serve any other purpose.  An ITIN does not authorize work in the U.S. or provide eligibility for Social Security benefits or the Earned Income Tax Credit.  ITINs are not valid identification outside the tax system.  The ITIN card is not a valid document listed on either List A or List B of the Form I9.

What is the IRS Guidance on ITINs?

Do not accept an ITIN in place of an SSN for employee identification or for work. An ITIN is only available to resident and nonresident aliens who are not eligible for U.S. employment and need identification for other tax purposes. You can identify an ITIN because it is a 9-digit number, beginning with the number “9” and is formatted like an SSN (NNN-NN-NNN). Note: An individual with an ITIN who later becomes eligible to work in the United States must obtain an SSN.  Click here for more IRS info.

 

Company Culture, Job Description, Job Post, Recruiting

3 Steps to Write Irresistible Job Postings

You have 2-3 seconds to attract an eyeball to your open position.  Your first chance to make a big impression and begin the engagement process is with your job posting. It’s your initial contact with a job seeker, so don’t waste it. Here are some tips and recommendations for taking your regular effort up a notch.

Nail the Title
Take some time to pick a title that can catch the eye of the best candidates. A title is what everyone sees first – so use parts of the exact job title but consider adding some additional descriptive words. For instance – “Equipment Operator with Fast Growing Contractor.” The average job seeker is spending seconds scanning jobs titles to determine if they will click your job link. Hook them with the extras. Here are some recent examples: “Picasso of Plumbers Adding to Our Team” or “Construction Superintendent for Industry Leader”. Sounds better than “Data Entry” or “Experienced HVAC Technician.” Be creative, emphasizing the positives and use it to brand your company’s experience. Stop the boring and stand out from the crowd.

Brand your Company
Start out with the reason(s) a candidate should be interested in your company. Develop a short, crisp company description and image that expresses who you are as a company and an employee experience. This brands your job posting and sets the expectations for new applicants. Here are some things you can mention about your company: specialties, growth-oriented or established, great benefits or wages, flexible, training, type of clients, location, recognition in the area, etc…  What type of information is going to get your industry professionals interested?

Inject Meaning into the Job

Once they click the job title and see a little about your fantastic company, you will need to describe a little about the job and its responsibilities.  Instead of giving a micro-detailed list of all tasks and needed skills, consider an overview of the key points and spend a few lines explaining the importance of the job to your clients and/or the meaning behind its existence.  Everybody wants to feel that they are contributing directly to the company’s success.  How will the position do that? For example, if you build assisted living facilities mention some feedback from a resident that is loving their new facility because it improves the quality of their life.  If you manufacture medical devices, connect employee efforts to the end users and extending their lives, or improving the quality of life.  No matter what the job, connect it to the meaning of your company’s mission.

Follow these three (3) simple steps and see improved results right away.  What are you waiting for?

Compensation, Form W-4, IRS, Payroll, Record Keeping, Taxes

2018 Tax Withholding Checkup for Employees

As you may know, major changes to federal tax law took place last year!   Based on the Tax Cuts and Jobs Act, updates were automatically applied to your payroll system’s wage withholding calculations.   To help taxpayers ensure that their 2018 withholding amounts are accurate, the Department of the Treasury has launched a new tax withholding calculator service available on the IRS website.

If you have a single income source and a standard (or relatively straightforward) deduction scenario, your new withholding amounts are probably okay, nevertheless, it will be to your advantage to take a few minutes and ensure the government is not withholding too little, or too much, of your 2018 wages.

The more complex your tax returns, the more likely that your new withholding amount needs to be verified.  If any of the following conditions apply to you or your household, then you are STRONGLY urged to visit the new IRS withholding calculator, and, if indicated, change your withholding amount by filling out a new (2018 revised) W-4 form:

  • You are a two-income family
  • You have two or more jobs at the same time or only work part of the year
  • You claim credits like the child tax credit
  • You have dependents age 17 or older
  • You itemized deductions in 2017
  • You have high income or a complex tax return
  • You have a large tax refund or tax bill for 2017

To use the IRS calculator, you will need your pay stub and 2017 tax return info.  Plan to spend about 5-10 minutes, and be assured that you will not be asked to submit any personally-identifiable information, nor is any data you enter into the calculator saved or recorded.

While it goes without saying that nobody wants the pain of having to write a big check next April, keep in mind that excess withholding is not a financially savvy move either.   The IRS will not pay you any interest for letting them hold your extra money all year, nor will it be available to you for emergency expenses or to pay down credit card balances.

Even in the absence of any legislative shake up, income withholding should be reviewed periodically to reflect changes in marital status, household size,  income level, deduction qualifications, and other circumstances.   Don’t forget, you are permitted to revise your W-4 at any time during the year, and as frequently as you need to, so take this opportunity to give your withholding a check-up!

 

Department of Labor, Fair Labor Standards Act, Restaurants, Tipped Employees

DOL Says Tip Pools Can Include Cooks and Dishwashers

The Trump Administration continues to review policies and guidelines issued under the Obama Administration.  Restaurant and hospitality employers will recall that the Obama DOL imposed new regulations that restricted tip pooling (the 2012 field bulletin guidance is rescinded).  In April, the U.S. Department of Labor (DOL) released updated guidance clarifying the federal law on tip pooling.  The updated guidance was issued in direct response to a federal law that amended the federal Fair Labor Standards Act’s (FLSA) tip pooling rules. The DOL new guidance states that:

  • Employers are prohibited from keeping tips received by their employees, regardless of whether the employer takes a tip credit against the minimum wage for its employees.
  • Federal regulations no longer prohibit tip pooling when employers pay tipped employees at least the full federal minimum wage and do not claim a tip credit.
  • Employers who pay at least the full federal minimum wage are no longer prohibited from allowing employees who are not customarily and regularly tipped—such as cooks and dishwashers—to participate in tip pools.

However, managers and supervisors are still prohibited from participating in tip pools. However, employers should remember that some states have different rules concerning tip pools and tip credits. When there are differences between state and federal laws in this area, the law more favorable to the employee generally applies.  Florida follows the federal tip pooling rules.

Read the new Fact Sheet #15: Tipped Employees Under the Fair Labor Standards Act (FLSA).

Construction, Florida rules, Insurance, Workers Compensation

Need to track subcontractor Work Comp coverage in Florida?

For Contractors working in Florida, the Division of Workers’ Compensation offers several databases that show the workers’ compensation insurance coverage by Florida companies, including construction contractors.  Best of all, these tracking and information sources are free to use.  As a back up to the physical collection of insurance coverage certificates at the time you contract with a subcontractor, consider using these databases to limit your risk from uninsured companies.

First, the Proof of Coverage Database (Compliance) – The Compliance Database provides information regarding workers’ compensation coverage and exemptions from workers’ compensation.  Beginning in May 2002, this information is kept up to date and is available to the public.  By entering the employer name and city, you will see if the company has a workers’ compensation policy in place.  Results will appear by FEIN/employer name.  Exemption data is also maintained and is available.  Remember, there is always some lag time between the database status and insurance carrier activity (renewal/cancelation etc..) and direct contact with the insurance carrier may be needed to obtain real-time status. The Bureau of Compliance takes referrals for investigation of civil non-compliance through the Internet, in person, by phone (toll-free referral hotline is 1-800-742-2214), or by e-mail.

Second, the Construction Policy Tracking Database – The Construction Policy Tracking Database provides information to contractors regarding the coverage status of the contractors they use.  After registering as a User, the easy-to-use system will send contractors automatic electronic notification of any changes to their contractor’s coverage status. The only action required of the contractor is to register and list the contractors for whom they would like to receive coverage notification.  According to the site, policy and exemption data is updated in the system Monday – Friday evenings.  Employer names reported to the FL Division of WC can vary slightly from those specifically typed on a policy. Older data may reflect multiple employer names under the same FEIN; therefore, it is recommended that employer information be reviewed carefully prior to selecting employers to track. Notification of changes to an employer’s policy information or exemption status will be sent via e-mail on the next business day after receipt of the change, for any employer that a requestor has on their tracking list. Florida Statutes allow insurance companies 21 days after the effective date of a policy or change, to report that policy or change to the Division, so there will likely be a delay in finding an employer’s policy in the database.

Construction, Injury Statistics, OSHA, Record Keeping, Safety

When is the Next OSHA ITA Reporting Deadline?

2017 OSHA 300A summary data must be reported to the ITA website by July 1, 2018. But don’t bother setting an annual recurring event in your tasking software … starting in 2019 and every subsequent year, the reporting deadline will be March 2nd.

Remember that not every business needs to report OSHA log summaries to ITA.  Here is the criteria for evaluating your business (or for evaluating each business establishment, if your company is comprised of multiple OSHA injury-logging establishments).

No reporting is necessary for establishments meeting EITHER of the following conditions:

If your NAICS code was not on that partially-exempt list and you had 20 or more employees, your next step is to check whether your business is on the list of industries considered hazardous. If so, then you must report.  Otherwise, you must report only if you had 250 or more employees in 2017.

The summary data uploaded to your ITA account can be edited and corrected up to the reporting deadline, so there is no reason not to get it submitted now.  If you already registered last year to report for 2016, just log in and follow the instructions for reporting your 2017 data, which can be done by uploading the data fields on a CSV file (click here for a sample), or,  you can choose to be walked through individual data entry prompts.

HR Resources

Florida Contractors HR Set Up Package

Attention Florida Contractors and Construction companies!  We have worked with Florida contractors and construction firms for almost twenty (20) years and have been a presenter at contractor continuing education seminars since 2016.   Designed for Florida Contractors, we put together a package of the most critically important HR documents and forms.  This package is ideal for General Contractors, Roofing Contractors, HVAC Contractors, Sheet Metal Contractors, Plumbing Contractors, Electrical Contractors, Mechanical Contractors, Site Development Firms, Utility Contractors and other Specialty Contractors.

  • All Forms are updated for 2018
  • Complete hiring package
  • Drug and Criminal Screening consent forms
  • Florida Contractor Safety Manual (use to qualify for 2% WC premium discount)
  • Drug Free Workplace Policy
  • Safety Equipment form and Safe Driving
  • OSHA 300 log template
  • Injury Documentation
  • Employee Accountability forms
  • Mandatory workplace posters (federal and Florida)
  • Includes Spanish versions of most posters

Click here for the one page Florida Contractors HR Set Up package flyer and download the Order Form for the materials.

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