IN THIS ISSUE:

 

 

 

 

 

 

PLUS:

 

 

 

Welcome to our fourth 2009 edition of our e-newsletter, RESOURCES. We are excited to produce this exciting forum for the communication of issues pertinent and relevant to HR Professionals.

 

We hope you enjoy the newsletter. It can only get better with your input and comments. If you have any articles for inclusion, comments or requests, please email them to Barry Lippold with the subject: "Resources Article" to: blippold@marcison.com.

 

 

 

 

This year's HR101 Bootcamp was better than ever! 

 

SNHRA hosted its yearly HR101 Bootcamp on April 14, 2009 at the Gold Coast Hotel & Casino, directly following the breakfast meeting. This is a special event directly followed the breakfast meeting.

 

HR101 featured some of today's top HR professionals including:

Cynthia Adams, SPHR, Jennifer Martinez of Konami Gaming Inc, and Mary Beth Hartleb of PRISM HR Consulting. These speakers created a very educational environment not only for those new to HR, but those who wanted to learn a few new things. 

 

The Bootcamp featured some of the following topics:

 

HR Management Roles & Responsibilities

The Solo Practitioner

Ethics for the HR Professional

HR Technology/Outsourcing options for HR departments

Your Legal Responsibilities

 

Thanks to all of our speakers and attendees, we hope to see you next year!

 

 

 

From: SHRM's Newswire with additions by Mary Beth Hartleb, J.D., SPHR-CA PRISM HR Consulting & Insurance Services, LLC

 

Unless there is a last-minute change by the Obama administration, employers will be required to use a revised version of the employment eligibility form known as the Form I-9 effective April 3, 2009. Employers must complete a Form I-9 for all newly hired employees to verify their identity and authorization to work in the United States. The interim final rule as published revises the types of acceptable identity and employment authorization documents employers can accept from new hires effective April 3, 2009.

 

Going In Depth...

 

According to an interim rule published in December 2008 by the U.S. Citizenship and Immigration Services (USCIS), employers were supposed to begin using the revised verification form on Feb. 2, 2009. However, when President Obama took office, the White House issued a directive to all federal agencies asking them to review regulations introduced by the Bush administration that had not taken effect before Jan. 20, 2009. Federal Register.

 

USCIS officials stated that the 60-day delay should provide adequate time to complete a full review of the new form and employment verification requirements. A notice announcing the delay appeared in the Federal Register.

 

Employers must complete a Form I-9 for all newly hired employees to verify their identity and authorization to work in the United States. The interim final rule as published revises the types of acceptable identity and employment authorization documents employers can accept from new hires effective April 3, 2009.

 

In addition, the rule stipulates that employees cannot use expired identification documents to verify their work eligibility beginning April 3, 2009, unless the government changes its plans.

 

Changes to the form include:

  • Expired documents are no longer acceptable, including U.S. Passports
  • Clarification that Social Security cards with restrictions on employment are not acceptable List C documents.
  • The Passport Card has been added as an acceptable List A document; and
  • Form I-688, "Temporary Resident Card," and Forms I-688A and I-688B, "Employment Authorization Cards," are no longer issued and the agencies have determined that any such documents that were previously issued have expired. As such, these documents are removed from List A as acceptable documents.

 

The new form can be downloaded here, and the spanish version here. Note that the Spanish version may only be used in Puerto Rico. However, you may use the Spanish translation to assist workers in understanding the form, as long as the English version is completed.

 

Additional information may be found at http://www.uscis.gov/i-9

 

 

Additional Resources:

USCIS Handbook for Employers for Completing Form I-9.

 

EXPRESS REQUEST: SHRM members can receive additional resources on this topic. Visit SHRM's Express Request Service and select key term REVISED FORM I-9.

 

This information provided from SHRM.org.

 

 

 

By: Patrick H. Hicks and Jeanine Navarro. Patrick H. Hicks is the Founding Shareholder of Littler Mendelson’s Las Vegas and Reno offices. He can be reached at phicks@littler.com. Jeanine Navarro is an Associate in Littler Mendelson’s Las Vegas office. She can be reached at jnavarro@littler.com.

 

On April 1, 2009, a divided U.S. Supreme Court upheld the ability of an employer and a labor organization, as the employees' exclusive representative for purposes of collective bargaining, to agree that employees can be required to arbitrate their statutory employment discrimination or retaliation claims in accordance with an express requirement to do so under the terms of a bargained-for collective agreement. While, the decision in 14 Penn Plaza L.L.C. v. Pyett1, specifically addressed age discrimination claims arising under a federal statute, the Court's decision is significant in that it now provides an opportunity for employers with unionized workforces to require that union members' discrimination and other statutory employment claims be privately arbitrated, rather than litigated in federal court. To get to that result, however, the relevant provision in the collective bargaining agreement must constitute a clear waiver of the right to pursue such  claims in court.

 

Justice Thomas, writing for the majority, held that where the union and the employer have clearly and unmistakably agreed that statutory employment discrimination claims must be processed through the grievance and arbitration procedure set forth in the parties' collective bargaining agreement, an employee will be required to file a grievance and ultimately submit the claim to a private arbitrator. Further, that employee will in most instances be barred from filing the same claims as a lawsuit in federal or state court. While there remain a number of unanswered questions about the 14 Penn Plaza decision, the Supreme Court clearly continues to consider arbitration a legitimate, if not preferred, method of dispute resolution.

 

Generally speaking, few existing collective bargaining agreements will meet the standard required for a court to hold that employees have waived their rights to a judicial forum. In 14 Penn Plaza, the collective bargaining agreement: (1) contained an express prohibition against discrimination based on protected characteristics under federal, state, and local laws; (2) specifically named the statutes at issue; and (3) explicitly stated, "[a]ll such claims shall be subject to the grievance and arbitration procedures...as the sole and exclusive remedy for violations." Such a provision is relatively unusual in today's labor agreements. While most labor agreements contain antidiscrimination provisions, those provisions are not typically worded as a waiver clause. Given the specific language in the labor agreement in 14 Penn Plaza, however, the Supreme Court concluded that the Service Employees International Union (SEIU) and the employees it represented had met the high "clear and unmistakable" standard originally set forth in the Supreme Court's 1974 decision in Alexander v. Gardner-Denver Co2.

 

Technically, the Court's decision in 14 Penn Plaza is limited to claims arising under the Age Discrimination in Employment Act (ADEA), but ultimately it may be applied to a broad range of federal, state, and local employment statutes, provided that the text and legislative history of the applicable statutes do not expressly exclude the claims covered by the statute from compulsory arbitration. As a result, during bargaining, employers may want to consider whether they can benefit from requiring bargaining unit employees to submit their discrimination claims to arbitration and, if so, the nature and types of claims that should be covered. This is especially true for employers in jurisdictions that have been confronted with the onslaught of wage and hour class action litigation. Depending upon other laws and how they have been interpreted, restricting these types of claims to arbitration could provide protection to employers who are concerned about possible class actions.

 

Of course, it goes without saying that a union may not be willing to consider expanding the areas that a collective bargaining agreement's grievance and arbitration procedure covers, and hard bargaining and/or concessions may be needed to obtain this expansion. In fact, while unions have traditionally sought "antidiscrimination" language in labor agreements as part of their duty to push for employee rights, if a waiver of a jury trial is now part of the process, unions may quickly back off such a strategy.

 

A further, serious concern was raised by the dissent in 14 Penn Plaza - where the union acts as a gatekeeper to its members' statutory employment claims, it may fail to pursue valid claims, to the detriment of the employees. While those employees may file a subsequent claim against their union for unlawful discrimination or breach of the duty of fair representation, the success of such claims is limited by law as unions have a meaningful amount of discretion as to which cases they choose to arbitrate.

 

With the above analysis in mind, there are numerous points for employers to consider:

  • Don't jump to the conclusion that the best strategy is to require that claims of discrimination be processed through the contractual grievance and arbitration process. Sometimes that will be the best answer; but other employers may decide that choosing to fight discrimination claims in court is a better strategy.
  • In favor of binding arbitration are factors such as cost (arbitration is almost always cheaper than litigation), less delay and less risk of punitive damages. Particularly in states where damages are not capped and where juries are considered more pro-employee, labor arbitration may indeed be the better option.
  • Binding arbitration, however, is not necessarily the best method for resolving these types of statutory claims. Arbitrators can be as unpredictable as juries, and the favored arbitration remedy of reinstatement can be more costly in a real sense than damages. Further, unfavorable arbitration decisions are extremely difficult to overturn. Even an arbitrator's "manifest disregard for the law" may not be a valid ground for appealing an arbitrator's ruling. By comparison, federal and state courts provide for a significantly more robust system of appeal.
  • Another factor to consider is the potential for obtaining summary judgment in discrimination cases. Some federal courts are amenable to granting summary judgment motions in such cases absent relatively clear evidence of direct or Firmwide:89283527.1 999999.2661 indirect discrimination. In other jurisdictions, by comparison, summary judgment is difficult to obtain.
  • Following the advent of punitive damages and jury trial rights created by the Civil Rights Act of 1991, compulsory arbitration systems became more common. Some of the employers that went in that direction, however, subsequently moved away from binding arbitration. Others continue to find that compulsory arbitration is better for them than litigation. In short, employers should not necessarily view 14 Penn Plaza as a bandwagon upon which to jump. They should instead confer with experienced labor counsel and make a determination as to which road to go down. That determination will include such diverse factors as the relationship between the employer and the union, the field of available arbitrators and their willingness to uphold reasonable employer decisions, the ability of the same arbitrators to understand the difference between a claim of discrimination and "just cause" in a discharge case, the general impact of judges and juries in the jurisdiction in question, and, of course, cost and employee morale. Capable labor counsel can provide an analysis of all these factors and more.
  • Finally, if an employer does decide to negotiate with a union to require compulsory arbitration of employment statutory rights, it should confer with labor counsel to create language that will likely be upheld under 14 Penn Plaza. Some courts will undoubtedly seek to restrict the Supreme Court's decision; so crafting language will be an important task. As noted above, congressional action could also lead to future restrictions that would have to be considered.

 

1 498 F. 3d 88 (2009)

2 415 U.S. 36 (1974)

 

 

 

By: Denise Wilcox, CERTIFIED FINANCIAL PLANNER™

Accredited Investment Fiduciary® designee

 

Offering a retirement plan is one of the most significant and rewarding decisions an employer can make. Employers as well as employees and their beneficiaries may reap the rewards of a successful retirement plan. But what makes a retirement plan successful?

 

It can be can be defined in two ways:

  1. The plan sponsor (employer) is managing the plan with procedural prudence as defined by the Employment Retirement Income Security Act of 1974 (ERISA) and,

  2. Plan participants are provided the opportunity to adequately prepare for retirement.

Unfortunately many business owners upon deciding they want a retirement plan rely on the advice of their broker or insurance agent. It’s doubtful that they were informed that as a decision-maker they are personally liable for the assets in the plan, that the “corporate veil” provides no protection and that they are held to a very high standard of performance by law – the “Prudent Expert” Standard.

 

Administering a plan and managing its assets require certain actions and specific responsibilities including:

  • Plan Design and Administration
  • Fiduciary and Legal Issues

  • ERISA-Specific Investing

  • Plan and Participant Level Service

  • Education and Advice

Additionally, many plans fail to adequately prepare their participants for retirement. The reasons for failure are simple: people don’t save enough and what they do save is often invested poorly. The best chance that an employee has of accumulating adequate retirement savings is through on-going education coupled with quality investment options. Assuring quality investment options comes from a prudent process of selection, monitoring, replacement and documentation.

 

To begin evaluating your current retirement plan consider these questions:

  • As an owner/trustee of the plan are you aware of your fiduciary and legal obligations?

  • Do you understand your personal liability?

  • Do you have an Investment Policy Statement? Are you documenting the process of investment selection?

  • Do you use a source independent of the plan provider to corroborate investment selection?

  • Are you conducting on-going scrutiny of the investments?

  • Is that scrutiny conducted through a source independent of the plan provider?

  • Are the employees getting specific investment advice on the allocation of their assets?

  • Have all revenue sharing payments been identified and disclosed?

This article was not intended to address all of the issues involved in retirement plan implementation and management. But it is important for an employer to know that they may have a fiduciary dilemma and resulting liability. There is a “right” way to manage a plan and it is clearly defined by ERISA, the Department of Labor and the IRS. Business owners are well advised to educate themselves on their responsibilities as a plan provider. It’s best to be prepared to by having policies and procedures in place in the event the Department of Labor drops by.

 

For more information or further inquiries contact Joe Luby or Denise Wilcox at Financial Solutions, Inc.

Phone: 702-451-1158

Website: www.denisewilcox.com.

 

 

References: Swisher, Pete. “Solving an Employer’s Fiduciary Dilemma” Journal of Financial Planning, February 2004.

 

 

 

 

Our affiliate, The Society for Human Resource Management (SHRM), is hosting its Annual Conference and Exposition in New Orleans, LA on June 28 – July 1, 2009.

 

Take part in the world’s largest HR conference and network in person with participants from over 140 countries, including prominent business, policy and HR thought leaders. This year's conference is going to feature some amazing keynote speakers including Jack Welch a globally respected business leader and Forbes' CEO of the Century, John Kotter Harvard Business School Professor, Earl G. Graves, Sr.the founder and publisher of Black Enterprise magazine and a nationally recognized authority on black business development, and Lee Woodruff co-author of the best-seller "In an Instant". To read full bio's on the keynote speakers click here!

 

Reason to Attend:

  • Find sustainable HR solutions that address your individual issues as well as today’s significant business and economic challenges.

  • Stay on top of the latest legislative efforts. Hot topics to be covered include FMLA, labor, immigration, employment law, new HR developments and policy updates.
  • Gain access to the best minds in HR to discuss today’s top issues and get your questions answered around downsizing, rising healthcare costs, compliance, talent management and more.
  • Learn the latest strategies and cost-cutting measures for your organization that will better equip you to be a strategic counselor to your company.
  • Acquire tools and data-driven resources able to be implemented immediately in response to today’s most pressing HR challenges.
  • Earn recertification credits for every program you attend – up to 26 – that’s nearly half the 3-year, 60-credit requirement. All at one time in one place.
  • Get insights from more than 150 sessions on topics relevant to every stage of your career.
  • Explore innovative solutions from over 700 vendors at the SHRM Exposition.
  • Elevate the strategic abilities of your HR team and arm them with the tools and resources essential for dealing with today’s complex challenges.

 

On a local note: Marc Ison Design Plus, the company that handles SNHRA's website design, administration, sponsorship and this newsletter, is managing the volunteer administration for the SHRM 2009 Annual Conference and Exposition, and wishes to thank SNHRA and its Board of Directors for their recommendations and support in this endeavor. 

 

 

 

 

For more information about the conference, head over to

SHRM's official conference page.

 

We hope to see many of you there!

 

 

 

Evaluating Employees

Quotes Taken from actual performance evaluations:

 

"Since my last report, this employee has reached rock bottom and

has started to dig."

 

"His men would follow him anywhere, but only out of morbid curiosity."

 

"This associate is really not so much of a has-been, but more of a
definitely won't be."

 

"Works well when under constant supervision and cornered like a rat in a trap."

 

"When she opens her mouth, it seems that this is only to change whichever
foot was previously in there."

 

"He would be out of his depth in a parking lot puddle."

 

"This young lady has delusions of adequacy."

 

"He sets low personal standards and then consistently fails to achieve them."

 

"This employee should go far - and the sooner he starts, the better."

 

"This employee is depriving a village somewhere of an idiot."

 

 

 

Courtesy of http://www.hr.com

 

 

 

 

Our Newsletter Sponsor

 

 

We hope that all of our Members and Friends find the articles contained within R E S O U R C E S  useful in your HR environment.
Many thanks to all of you who responded to our requests
for articles and research for this newsletter.

If you have anything you wish to contribute to the next issue, please do not hesitate to email Barry Lippold at blippold@marcison.com.

 

 

 

Contact Barry Lippold at 702-281-6528 for pricing and availability
to sponsor future R E S O U R C E S editions

 

 

 

 

 

 

 

 

 


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