Inside HR InsightsExpert perspectives on today’s HR landscape

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The day-to-day grind can be difficult to navigate for everyone—and HR teams are no exception. Departments are tasked with ensuring that the organization’s most valuable assets—its employees—are taken care of, which can be outright overwhelming, arduous, and time consuming. In many cases, this results in overclocked HR teams who might not have the bandwidth to see the big picture issues affecting the HR world and impacting the organizations they work for.

This white paper, Inside HR Insights, features perspectives from our experts that focus on a few key, rapidly evolving areas of today’s HR landscape that might get overlooked amid the daily bustle. Broken into three Q&A chapters, this report will explain some of the rapid changes within and driving mechanisms of employee benefits, using technology for recruiting and hiring, and labor relations, helping readers understand how to approach breaking issues that happen within these sectors.

Our experts are:

• Tracy Morley, legal editor, employee benefits of XpertHR US

• David Weisenfeld, legal editor, for pre-employment background checks, job advertising, and interviewing, recruiting and hiring, XpertHR US

• Melissa Silver, legal editor, employment offer, terms of employment, new hire paperwork, negligent hiring, onboarding and orientation, recordkeeping and minimizing liability content, recruiting and hiring, XpertHR US

• Melissa Boyce, legal editor, labor relations, XpertHR

Introduction

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Although it officially became law six years ago, the continuing implementation complexities of the Patient Protection and Affordable Care Act (ACA) presents fresh challenges to HR departments and organizations across the United States.

Perhaps the area most directly affected by ACA is employee healthcare benefits. Drastically overhauled by new mandates and regulations, HR departments are responsible for integrating the rules and managing the associated costs relative to their organization’s unique situation, while trying to keep management and employees happy—a classic balancing act.

The ability to look at these challenges and understand them well enough to extract the opportunities requires key insights. Tracy Morley, legal editor for employee benefits of XpertHR US, shares her perspective on what’s important in the realm of employee benefits and the ACA.

What is the biggest challenge HR departments face in administering employee benefits today and how are they tackling it?

TM: Compliance with ACA is still at the forefront of employers’ minds, and they continue to struggle in their search for ways to be compliant. Increases in compliance obligations and administrative burdens, particularly related to new reporting obligations, can be stressful for employers who are already overclocked with regular management duties.

Naturally, employers keep searching for ways to keep up with the regulation’s mandates while keeping costs at bay. And, as employers look for ways to combat increased healthcare costs, we see them increasingly turning to consumer-driven high deductible health plan offerings. Health savings accounts (HSAs) and health reimbursement accounts (HRAs), for example, are great ways to help employees pay a portion of their healthcare costs. We expect that more employers will move towards these plans to reduce benefit costs.

In addition to lower costs, what are the benefits of HSAs and HRAs?

TM: Since the responsibilities of HSAs and HRAs are distributed between both the HR department and the employees, they can serve as a touchpoint for establishing better avenues of communication between the organization and employees. Not only will this help resolve any healthcare management issues that employees might come across, but it could also generate trust and social capital between the two groups.

Some of that communication can come in the form of education. Healthcare is complex—not just for employers and employees, but for people. And with HSAs and HRAs putting some of

Chapter One: Navigating Employee Benefits

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the understanding and management responsibility on employees, employees might turn to their HR departments for guidance. HR can play a role in educating employees on benefit plans, including educating employees about the complex realities of healthcare costs.

How does educating your workforce about their benefit options help the organization overall?

TM: A successful benefit program is one that supports the overall business strategy—if it is understood and valued by employees in order to give the organization a significant competitive advantage. It is more than just a benefits package in a cold handshake deal: it reflects the culture and values of the company, which are very important parts of any organization.

HR professionals play an important role in helping to demonstrate how employee benefits support the overall corporate strategy. Being able to measure and provide data on the effect an organization’s benefit plan has on retention, recruitment and employee satisfaction shows that HR understands the business and can effectively contribute to the bottom line.

All of this, in turn, will contribute to the overall success of the company. An effective benefits program, one that is understood and valued by employees, can give an organization a significant competitive advantage.

What are some ways employers are using technology to address employee benefits?

TM: Web-based, employee self-service technologies continue to be a wonderful value add for organizations. One of the many advantages of this technology is that it is available to employees and family members 24/7, offering exceptional support. Moreover, it is often a great way to cut costs; employees will turn to these technology platforms and resolve issues on their own, leading to fewer inquiries and questions for HR to deal with directly.

Employee benefits are an important factor in attracting and retaining employees. This is increasingly important in a competitive hiring market—and for positions that are hard to recruit for. Ensuring a benefit package that provides value to employees, and communicating that value to ensure that employees recognize the importance of the benefits package they receive, is critical in terms of employee engagement and retention. In addition, HR can strengthen its strategic role by demonstrating to senior leadership that the benefit packages provided are demonstrating a positive impact both from an employee satisfaction and budgetary standpoint.

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Recruiting is an important part of every organization, from global corporations to small- and medium-sized businesses (SMBs). Technology has helped minimize the burden of sorting through dozens—even hundreds—of applications to identify top candidates, freeing up HR time to focus on more strategic priorities.

Today, millions of people use digital platforms, professionally and personally, to establish an online presence. These networks and tools help people do everything from keep in touch with old friends to find new business leads—to, increasingly, looking for jobs.

Our experts David Weisenfeld and Melissa Silver share their answers to questions about how technology can be used efficiently and effectively in the recruitment and hiring process.

Can you talk about the role of technology in recruiting and hiring? How is it changing how HR departments have approached it in the past?

DW: There’s a lot to talk about here, from the obvious to the not-so-apparent.

The obvious things are mostly about the displacement of the channels we have traditionally relied upon. No longer are organizations turning to help wanted ads in the local newspaper to fill positions—instead, there are a wide range of online options, and social networks they can leverage to find the right person for the job.

That is pretty apparent, but there is an interesting nuance here that often gets overlooked—a shift in power of sorts. In the newspaper ad days, a company would place an ad, then vet the responses received. They would have to sift through tons and tons of physical documents, narrowing down the candidates based on the criteria submitted to them by hiring managers. It was often a very qualitative process, subject to personal biases and preferences.

The use of these digital networks can certainly help streamline the process, but there are many sensitivities that must be taken into account. Employers can readily find information on Facebook and elsewhere about job candidates that would have been unavailable a decade or so ago. But in doing so, they can open themselves up to a potential discrimination lawsuit if they learn of protected characteristics (such as a candidate’s age or sexual orientation). Even if the employer does not use that information against the candidate, if the candidate is not hired, he or she could nonetheless decide to sue. In short, this is an area to tread cautiously when vetting prospective employees.

Chapter Two: How Technology Can Help (or Hurt) Recruiting and Hiring

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Companies also actively maintain an online presence outside of their websites. It’s another way to connect with potential jobseekers and to give these candidates information about the company in addition to what can be found on their websites. The social channels, in fact, allow for a more “personal” sense of the company brand or culture.

This “digital capital” is important for recruiting and hiring because there are platforms exclusively dedicated to reviewing the internal workings of companies. With websites like Glassdoor, a jilted applicant or employee can post a negative review of a company much in the way that disappointed vacationers weigh in on TripAdvisor.

MS: The internet also creates another massive opportunity, particularly for employers seeking high-skilled workers. With more people working remotely than ever before, certain employers need not limit themselves to geography to find the best candidates.

These geographical differences, however, create a unique set of challenges. Hiring multinational employers need to determine the logistics of how to conduct an interview of a candidate where interviewer and candidate live in different countries, and how to ensure that interviewers comply with relevant laws and are sensitive to different cultures. In addition, the candidate may not speak the same language as the interviewer. Employers must also ensure that their advertising methods comply with local laws and are not discriminatory—there are many things to consider.

How can we ensure that, amid all these changes, HR departments are not losing the human touch in hiring?

DW: Technology is fantastic, but employers should avoid onboarding procedures that are completely technology based. Onboarding is about much more than just orienting a new hire to the role. Companies look for talent to work a job they are right for, but that cannot be the only thing that candidates are tested against—they also need to be able to appreciate and understand the company’s culture to ensure a good fit.

Do not lose sight of the big picture. Treat technology like a tool, not a crutch.

And how can that personal touch be executed during the onboarding process? How can HR departments leverage their relationships with hiring departments to ensure that new hires fit seamlessly?

MS: HR departments should work with managers and supervisors to ensure an active role in developing an onboarding process that educates new hires about the business, their positions and their roles in the overall structure of an organization. In addition, the HR department should also coordinate with the new hire’s supervisor or manager prior to the new hire’s first day to determine the responsibilities the individual will be expected to perform. The onboarding process is a perfect opportunity for a supervisor or manager

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to communicate the company’s mission and values to a new hire. This way, the new hire understands the business and its culture from the very first day, leaving less room for interpretation.

The onboarding process should incorporate assigning a new hire a mentor, or “buddy,” who will help the new hire transition into the new role by providing guidance on the company’s culture. The HR Department should take great care in finding a suitable match, considering the mentor’s personality, work ethic and accessibility. In addition, the mentor must have sufficient knowledge and experience to educate the new hire about the company.

Another way to get a new hire acclimated quickly to a company’s culture is to implement an internal discussion group site so that the new hire can engage with his or her colleagues. This way the new hire will feel connected to his or her coworkers and involved in the company culture from the very first day.

Beyond the first day, managers and supervisors must nurture the employment relationship by regularly connecting with new hires to ask about how they are transitioning to their new jobs. If an employer fails to nurture the employment relationship, new hires are less likely to be engaged and productive. As a result, this could increase the chance that a new hire will not feel the job is a good fit and may begin seeking other opportunities. Managing turnover during those important early days, weeks and months on the job can help avoid the need for a company to reinvest its time, money and resources in recruiting and hiring another employee.

Equally important, when effectively engaged, your employees can be your best recruiters by spreading positive word-of-mouth when openings occur. That is another reason why having an effective onboarding process is crucial to an organization’s continued success. Employees who are pleased with how they have been treated will be more likely to recommend the organization to others.

It can be easy to get lost in the technology conversation. What are some other changes that have occurred outside of the technological realm that employers should be aware of?

MS: Recently, several states have passed laws banning private employers from asking criminal history questions on job applications or requiring applicants to check off a box if they have been convicted of a crime. Some cities go even further and prohibit such inquiries, including criminal background checks, until a conditional job offer has been made. Multistate employers can still do their diligence later in the process, but should be aware of these “ban the box” laws that have been passed.

At the federal level, there has also been increased immigration enforcement. The Obama administration strengthened its immigration enforcement by increasing the monitoring and accountability of employers that hire undocumented workers. In fact, the Congressional

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Research Service issued a report in 2015 that since FY 2006, there has been an increase in the administrative fines imposed for immigration-related worksite enforcement, ranging from $0 (FY 2006) to over $16 million (FY 2014).

DW: All employers need to be sensitive to this because every employer is required to fill out Form I-9, regardless of size, industry or location. As a result, it is imperative that employers comply with the Form I-9 requirements and verify an employee’s identity and eligibility to work in the United States.

Related to immigration, the cap on the number of H-1B visas allowed presents another challenge. H-1B visas are used for individuals with a specialty occupation position, which is defined as a job that requires at least a bachelor’s degree (or its equivalent) in the specialty. In the last couple of years, the cap on H-1B visas has been reached long before the end of the government’s fiscal year. In fact, last year, employers flooded United States Citizenship and Immigration Services (USCIS) with enough petitions to meet the cap of 65,000 H-1B visas for fiscal 2016 in a less than a week after the USCIS began accepting petitions.

Technology has certainly provided many benefits to employers and their HR staff members when it comes to recruiting, hiring and onboarding new staff members. But, there are potential drawbacks as well and it’s important to ensure that technology is being used as an enabler for the process and not as a replacement for human interaction. In addition, HR professionals need to be continually up-to-date on the laws and regulations that impact their hiring processes, particularly when operating in multiple locations.

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The relationship between labor organizations and employers can be difficult to navigate for everyone, especially given rapidly evolving economic and social dynamics. Labor organizations, over the past few decades, are finding ways to redefine their roles in the reality of the modern workforce, and employers are remaining vigilant to the rules, regulations, and expectations placed upon them.

Our expert, Melissa Boyce, shares her insights on labor relations in the modern landscape, focusing on where this evolution leaves labor, employers, and the HR teams that are often caught in-between.

What have been some of the major changes in labor relations over the past few years, and what has been driving them?

MB: The biggest issue in labor relations today is the National Labor Relations Board’s (NLRB) attempt to expand its scope to control previously untouched areas, as a result of a sharp decline in union membership and dwindling labor activity. In an attempt to respond to the realities of fewer union members, the NLRB seems to be redefining itself in an apparent bid to remain relevant outside the world of organized labor.

Unfortunately, for nonunion employers, it is doing this by taking more aggressive steps to remind them that the National Labor Relations Act (NLRA) protects not only an employee’s right to engage in union organization and collective bargaining, but also an employee’s right—both union and nonunion alike—to engage in certain activity, including the right to discuss terms and conditions of employment.

One strategy the NLRB is taking is targeting the employee handbook as a vehicle to ensure that everyday policies and practices in no way restrict an employee’s right to engage in protected activity under the NLRA. To that end, the NLRB has been scrutinizing standard policies, including social-media and confidentiality policies, to determine whether they are so vague and overbroad that an employee may reasonably believe that abiding by the policy will “chill” or restrict the employee’s right to discuss working conditions with coworkers.

Most significantly, the NLRB will find a policy unlawful under the NLRA not only if it interfered with an employee’s ability to engage in protected activity, but also if the policy merely had the potential to interfere with an employee’s ability to do so.

As further proof of its aggressive campaign on employment policies and handbooks, the NLRB released a 30-page report on March 2015 providing guidance to employers on what policies would be reasonably construed to prohibit or otherwise restrict an employee’s

Chapter Three: The New NLRB and Managing Labor Relations

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right to engage in protected activities. The report also provides examples of lawful and unlawful policies to assist employers in ensuring compliance with the NLRB’s recent rules and interpretations.

What are some other areas the NLRB has affected over the past few years?

MB: Another major change in the labor relations arena was the NLRB’s groundbreaking ruling in 2015 which overturned a 30-year-old standard, making it easier for an employer to be found a joint employer. As a result, the NLRB no longer requires direct and immediate control over terms and conditions of employment in order for an entity to be ruled a joint employer. Instead, the NLRB will find a joint employer relationship if the employer has indirect control over the terms or conditions or simply reserves the right to exercise such control.

This is quite significant because a party found to be a joint employer will be subject to the union election process, collective bargaining obligations and liability risks for unfair labor practices, affecting employers that use certain groups—staffing agencies, temp/contingent employees and franchisors. These employers should review their contracts to see how much control they exercise or merely reserve to exercise over employees.

The NLRB also enacted new union representation election rules, otherwise known as “quickie election” rules. Effective 2015, these rules significantly change and expedite the election process as well as impose new responsibilities on employers. Some of the changes include the ability to e-file a union representation petition and all other related documents.

Before the new rules, the standard time period for an election was between 38-42 days. Now, the time period is shortened considerably allowing for an election in under 20 days. This places a significant burden on the employer—if they want to run an anti-union campaign, it has to be done under an extremely tight timeline.

What response should employers consider given these new changes?

MB: I would say one of the newest challenges that has arisen is the burden imposed on employers to fully understand their responsibilities and obligations under the NLRA, as well as the manner in which they are targeted by the NLRB.

For example, the new rules make it more difficult for an employer to mount an effective campaign before the election. In fact, commentators have referred to these procedures as creating “quickie” or “ambush” elections because unions may take many months to collect union authorization cards and develop support, file its petition, and then leave the employer with little or no time to campaign. Given the expedited election procedure implemented by the NLRB, an employer must focus on year-round anti-union avoidance programs, rather than rely on anti-union campaigns that begin after the filing of a representation petition.

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What are some common missteps that HR departments are making, and how can they avoid them?

One common misstep is having a social media policy that either explicitly prohibits, or may reasonably read to restrict, an employee’s right to use social media to comment or otherwise communicate on matters relating to terms and conditions of employment.

For example, an employer has a legitimate interest in ensuring that employee communications are not construed as misrepresenting the employer’s official position. However, organizations may not prohibit an employee from commenting about the company’s business, policies or employees without authorization, particularly when it may reflect negatively on the employer.

Another misstep is to inconsistently and/or discriminatorily enforce a solicitation and distribution rule in the workplace (solicitation defined here as an oral call to action vs. distribution of literature). What employers may not realize is that a solicitation or distribution rule that is valid on its face may become unlawful if an employer inconsistently or discriminatorily applies it. Practical examples of inconsistent/ discriminatory enforcement include:

• Allowing anti-union employees to enter a work area when off duty to speak out against the union while not permitting the same opportunity to off duty employees supporting the union; and

• Allowing anti-union employees to hand out anti-union literature in a work area while not permitting the same opportunity to employees supporting the union.

An employer also needs to understand that it is not acceptable to institute or enforce a solicitation and distribution policy only when a union is organizing. Employers must maintain a nondiscriminatory policy at all times and in all settings in order to enforce the policy successfully when the union is organizing.

Another common misstep is prohibiting employees from using their work email system for non-business purposes, including union organizing and NLRA protection communications during non-working time. The NLRB has held that there is a presumption that employees who have been given access to the employer’s email system in their course of their work are entitled to use the system to engage in protected discussions about their terms and conditions while on nonworking time, e.g., breaks, meal and rest periods.

How can HR play more of an active role with managers and supervisors to ensure that a workplace environment is positive and supportive enough to sufficiently offset a desire for unionization? How does training play a role?

HR must work with managers and supervisors so that they are always aware of the effects their actions will have on employees. For good reason it has often been said that a manager or supervisor is the key to remaining union-free. All supervisors should receive training concerning good management and employee relations practices. HR should mandate retraining

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of supervisors (one by one or as a group). Refreshers or repetition of training in good management and employee relations practices and TIPS is necessary over periods of time.

Also, supervisors should be trained in how to avoid TIPS at all costs. TIPS is an acronym for threats, interrogation, promises, and surveillance. Committing TIPS can be a basis for overturning a pro-company victorious union election result. Supervisors must be aware of the consequences of committing TIPS as they are the employer’s representatives on the front line. What supervisors do and say will usually determine whether the union’s campaign is successful. A supervisor should be aware of what he or she can say as these statements can bind the employer and be held against the employer just as if a top company official had made the same statements. Therefore, it is critical that a supervisor know what not to say about unions or union activity.

Changes to the NLRA and increased vigilance by the NLRB mean that employers are increasingly at risk of running afoul of these regulations. Supervisors and managers represent the best defense against unintentional missteps, meaning that ongoing communication, education and training are a must. HR has a critical role to play here.

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