IN THIS ISSUE:
ON CREATING ORGANIZATIONAL CHANGE
Interview with Dr. John Kotter
ESGR Career Fair
Thank you to
SNHRA's Volunteers
PLUS:
From HR Bartender
One of the most challenging questions I receive is about changing an organization. Individuals who want to change the company for the better and just don't know how to do it. It's not easy – both creating change or answering questions about creating change. I do know one thing, change gets easier when you create buy-in.
Several years ago, I had the pleasure of hearing Dr. John Kotter speak about organizational change at the SHRM Annual Conference. Dr. Kotter is chief innovation officer at Kotter International, which works with organizations looking to undertake major change at a rapid pace. He's also Konosuke Matsushita Professor of Leadership, Emeritus at Harvard Business School.
Little did I know Dr. Kotter has written a whole book on the subject of getting buy-in to create change. Needless to say, I was thrilled when Dr. Kotter agreed to share his thoughts…
Read the rest of this article here.
To help ring in the New Year on the right "tone", our January Monthly meeting will be focused on Wellness, which we'll probably all need after partaking in the holiday festivities, food and drinks! Our meeting will take place on January 10th at the Gold Coast Hotel and Casino
"Organizing and Refreshing your Wellness Program for Success," will be presented by Nancy Hakes, RN, MSN, Vice President, Health Care Benefits Consultant with Sibson Consulting. The meeting will be preceded and followed by our Wellness Fair.
SNHRA Business Partners that offer wellness-related products and services are welcomed to exhibit at no additional charge. New Members who join as Business Partners also receive a table at the wellness fair at no additional cost. As an incentive to join, lunch will also be included for new Wellness-related Business Partner Members.
For more information about exhibiting as a Business Partner Member, click here.
If you are interested in exhibiting and are not a Business Partner Member, click here.
Register or RSVP for the event here.
March 13th 2012 will be our Diversity Breakfast to be held at UNLV…We will have a special award at the event. Look for more information in your email and online at SNHRA.org in the coming weeks.
Our next "Best Places to Work in Southern Nevada" awards luncheon will be held October 12th. Awards Nominations and Entries will open in May.
From HR Executive Online
According to a recent survey, two-thirds of respondents do not have any formal, non-occupational return-to-work program, but some companies are finding they can reduce costs and employee turnover by linking RTW programs with short-term disability programs.
Last year, Jason Denis' employer placed him at the corporate office of a telecommunications company. As a disability absence manager at Excel Managed Care & Disability Services Inc. in Sacramento, Calif., his job was to develop and manage a new return-to-work program for employees on short-term disability at the company's headquarters.
This approach was something new. Traditionally, companies focused on helping employees who were injured at work get back to work early. But nothing like this had ever been done for employees with non-occupational injuries.
Some employers are now developing RTW programs for all of their disabled workers, not just those who were injured between 9 and 5. By making various accommodations to employees' schedules or work areas, or temporarily changing their job tasks, employers are realizing numerous benefits.
Read the rest of this article at www.hreonline.com/HRE/story.jsp?storyId=533342768.
By: Patrick H. Hicks and Cory G. Walker. Patrick H. Hicks is the Founding Shareholder of Littler Mendelson's Las Vegas and Reno offices. He can be reached at phicks@littler.com. Cory G. Walker is an Associate in Littler Mendelson's Las Vegas Office. He can be reached at cgwalker@littler.com.
In an attempt to clarify and improve its procedures for handling whistleblower complaints under the Sarbanes-Oxley Act of 2002 (SOX) and to create uniformity with other whistleblower claims that it administers, the Occupational Safety and Health Administration (OSHA) has issued interim final regulations governing its procedures for receiving and investigating complaints under SOX, as amended by sections 922 and 929A of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. While the regulations are not radically different from those issued after SOX, they are clearly focused on defining and reinforcing three critical aspects of OSHA's handling of whistleblower complaints: (1) filing a retaliation claim; (2) the investigation process, including the burden of proof; and (3) remedies.
Filing a Complaint
Among other amendments Dodd-Frank made to SOX, the law extended the statutory filing period for retaliation complaints to 180 days, doubling the 90-day filing period during which potential whistleblowers previously could seek relief. OSHA's interim final regulations have been updated to reflect this change in the statute of limitations, giving potential complainants 180 days after the alleged violation occurs (or the date on which the employee became aware of the violation) to file a complaint with OSHA. While prior regulations required complaints to be in writing, in an effort to further encourage individuals to report retaliatory actions, the new regulations provide that complaints may also be made orally.
The Investigation Process
Once a complaint is filed, OSHA has a duty to investigate according to the procedures outlined in the new regulations. Accordingly, the revisions are of note because, while many of them are simply changes in terminology and organization for the sake of consistency with other whistleblower statutes, the new regulations also include updated investigative procedures that add predictability, and certain rights and protections for both complainants and respondents.
OSHA's investigation begins promptly upon receipt of the oral or written complaint. If the complaint is submitted orally, OSHA will "reduce the complaint to writing" – a change that has received some criticism because it appears to call for OSHA to act as a complainant, rather than as a neutral agency. Regardless of how the complaint is filed, the Assistant Secretary for OSHA will notify the respondent-employer and the Securities and Exchange Commission (SEC) by providing each with a copy of the complaint. The respondent's copy will be redacted, if necessary, in accordance with the Privacy Act of 1974, 5 U.S.C. § 552a ("Privacy Act"), and other applicable confidentiality laws. The respondent then has 20 days to respond by written statement.
Throughout the investigation, OSHA will provide the complainant a copy of the respondent's submissions, and the complainant will have an opportunity to respond. OSHA will likewise redact, as necessary, any materials sent to the complainant in accordance with the Privacy Act and other applicable confidentiality laws. This sharing of information is expected to enhance OSHA's ability to conduct full and fair investigations and permit the Assistant Secretary to more thoroughly assess defenses raised by respondents.
During the investigation, the initial burden of proof lies with the complainant: he or she must demonstrate that the protected activity (whistleblowing) was a contributing factor in the adverse action alleged in the complaint. To meet this burden, the complaint, supplemented by interviews of the complainant, must allege the existence of facts that demonstrate: (1) the complainant engaged in protected activity; (2) the respondent knew or suspected that the complainant engaged in protected activity; (3) the complainant suffered an adverse action; and (4) the circumstances sufficiently raise the inference that the protected activity was a contributing factor in the adverse action. If the complainant fails to make this showing, the new regulations demand that the investigation be discontinued and the complaint dismissed.
If the complainant can demonstrate the required elements, the burden of proof shifts to the respondent-employer. To avoid liability, the employer must prove by "clear and convincing evidence" that it would have taken the same adverse action absent the protected activity. OSHA must dismiss a retaliation claim under SOX if either: (1) the complainant fails to demonstrate that the protected activity was a contributing factor in the adverse action; or (2) the employer rebuts the complainant's showing by providing clear and convincing evidence that it would have taken the same adverse action absent the protected activity.
While SOX is silent as to the degree of proof needed for a complainant to support his or her claim, OSHA has taken the position that a complainant must prove by a "preponderance of the evidence" that the protected activity contributed to the adverse action. If the complainant cannot make this showing, the burden never shifts to the employer to establish its defense by "clear and convincing evidence." Thus, the complainant bears the initial burden which is precursor to a heavier "clear and convincing evidence" burden which is the employer's.
Remedies
"Make-Whole" Relief
Within 60 days after the filing of the complaint, OSHA will issue written findings. If there is reasonable cause to believe that the complaint has merit, OSHA will order "all relief necessary to make the plaintiff whole" – meaning remedies that restore the complainant to the same position he or she would have had but for the retaliatory action. Such remedies include preliminary reinstatement, back pay with interest, and compensation for any special damages sustained as a result of the retaliation, including litigation costs, expert witness fees and reasonable attorney's fees. The respondent may file objections to the findings of the Assistant Secretary and request a hearing, but doing so will not suspend an order of preliminary reinstatement, which is effective upon the employer's receipt of findings and the preliminary order.
Economic Reinstatement as an Alternative to Preliminary Reinstatement
The former SOX regulations provided that reinstatement would not be ordered where the respondent establishes that the complainant is a security risk. The statement has been removed from the revised regulations based on OSHA's belief that the determination of whether reinstatement is appropriate should be made upon review of the circumstances of each case. Where appropriate, however, OSHA may order that the complainant receive the same pay and benefits as before termination, without actually returning to work. This "economic reinstatement" is akin to an order of front pay and may be ordered in lieu of preliminary reinstatement.
According to OSHA, "economic reinstatement is designed to accommodate situations in which evidence establishes to OSHA's satisfaction that reinstatement is inadvisable for some reason, notwithstanding the employer's retaliatory discharge of the employee." OSHA clarifies, however, that the norm is for OSHA to order immediate preliminary reinstatement when a violation is found. An employer does not have a statutory right to choose economic reinstatement. This approach is in line with the way many courts treat the issue of court mandated reinstatement in the context of discrimination claims.
Implications for Employers
Although these interim final regulations are not significantly different from the regulations issued after SOX, the streamlined process and revised terminology will provide some predictability and consistency for employers in defending against SOX, Dodd-Frank, and other whistleblower claims. The new regulations are also significant for what they represent: OSHA's renewed focus on enforcement of whistleblower protections and efficient investigation and adjudication of retaliation claims.
To help prevent claims of retaliation, employers should continue to create an environment where fraudulent activity is not tolerated and internal reporting of such activity is required. Employee and manager "speak up" and anti-retaliation trainings, notices posted in the workplace, and clear anti-fraud and updated anti-retaliation policies in the employee handbook help accomplish these tasks. It is also critical for employers to re-examine and update their incident management system and investigation process in order to keep up with the new legislation and establish state of the art practices in these areas.
Guided efforts for proper preparation and training are key to limiting liability and potential investigation. If you have any questions as to how you can further prevent retaliatory activity in the workplace, please contact experienced employment counsel.
Several SNHRA members volunteered time and HR expertise on Sunday, October 23, 2011 to assist fifteen Marines from the 2nd Battalion, 23rd Marines with mock interviews as part of SNHRA's 2011 Workforce Readiness initiative. These Marines primarily served as riflemen and had recently returned from deployment. The majority of the interviewees were either unemployed or underemployed and were eager to improve their job hunting skills. Both the volunteers and the Marines found the time spent together to be very valuable.
One volunteer, Susan Gentry, told of a humorous part of her experience: "I don't think anyone took pictures (of the event) but I can tell you what I said to a room full of all-male Marines: "Speaking to all of you is a first for me in two ways. First, I didn't have to wait in line for the Ladies Room and, second, I've never faced an armed audience!" They all had their assault rifles with them!!!!"
Thank you to the volunteers on this project: Susan Gentry, Tammie Grenier, Dina Noricks and Ben Wills!
SNHRA would like to extend our congratulations to our incoming President Cynthia Dobek! She has been selected to receive a $1,500 Barbara Sanchez scholarship from the SHRM Foundation underwritten by the J.J. Keller Foundation. It was certainly a monumental task for our judging committee to choose the winners.
In 2000, a scholarship fund was created to honor the late Barbara Sanchez, an HR director at Newsday and a dedicated member of the Media Human Resources Association (MHRA) board of directors. MHRA was disbanded in 2003, and it was agreed that the remaining scholarship funds would be awarded through the SHRM Foundation.
Eligibility for this award required Cynthia to be:
- A national SHRM member (professional, general or associate)
- Working full-time in human resources in the media field (print, publishing, cable & satellite, broadcasting, motion picture, internet or communications)
- Pursuing a college degree in human resources or a related field through an accredited institution of higher learning. Full-time, part-time, online and distance learning programs are acceptable.
Unusual Interviews – Part Two
Hiring managers from 100 random corporations were asked to submit some of the most unusual questions asked by an interviewee.
- "What are the zodiac signs of all the board members?"
- "Why do you want references?"
- "What is it that you people do at this company?"
- "What is the company mascot?"
- "Why aren't you in a more interesting business?"
- "Do I have to dress up for the next interview?"
- "Are there a lot of single women here?"
- "Will the company pay to relocate my horse?"
- "Would it be a problem if I'm angry most of the time at work?"
- "Does your company have a policy regarding concealed weapons?"
List obtained from www.jokesbyprofession.com
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 barry@nthdegreegroup.net.
Contact Barry Lippold at 702-281-6528 for pricing and availability
to sponsor future R E S O U R C E S editions
Newsletter: 2011 Edition 6