Viewpoint: How to Minimize the Risk of Retirement Plan Litigation
Many employers have paid millions to settle lawsuits brought to them based on their excessive fees in their retirement plans. It's the employer's responsibility to ensure that retirement plans are created for the most benefit for those who partake in it. Read this blog post to learn more.
What do Estee Lauder and Costco have in common? Both are defending themselves against lawsuits alleging mismanagement of 401(k) accounts, as retirement plan litigation under the Employee Retirement Income Security Act (ERISA) proliferates.
LinkedIn was added to the list in August, when a class-action lawsuit was filed alleging the firm mismanaged its 401(k) plan. And, on Sept. 18, a federal judge rejected a petition by AutoZone Inc. to dismiss allegations of ERISA violations filed by 401(k) plan participants.
In recent years, employers as different as Princeton University and WalMart have paid millions of dollars to settle lawsuits brought by employees alleging excessive fees in their retirement plans.
At the heart of many of these cases are allegations that employers' retirement plan oversight committees tolerated high fees and poor investment performance. Retirement plan committee members are fiduciaries who, under ERISA, are responsible for ensuring that the plan operates in the best interest of its participants.
Attracting Lawsuits
Companies settling ERISA lawsuits are typically accused of failing to pay adequate attention to the retirement plan, such as by failing to remove or replace poor or overly expensive investment choices and allowing vendors to charge above-market fees. The old adage that an ounce of prevention is worth a pound of cure is relevant here.
Law firms are combing through ERISA plan annual filings to identify worthwhile 401(k) targets, looking for expensive or poorly performing investments and high recordkeeping costs. ERISA complaints now include tables and charts comparing a targeted plan's investment performance and expenses with average or best-available practices, to persuade courts that a trial is in order.
Law firms comb through ERISA plan filings to identify worthwhile targets.
Adopting Best Practices
Plan sponsors can't completely eliminate the risk that they will be sued by current or former plan participants, but companies can minimize the risk by adopting best practices—such as those listed below—for making plan investment and management decisions.
FORM AN ACTIVE RETIREMENT PLAN OVERSIGHT COMMITTEE.
The committee should include interested employees, including representatives of HR, finance, legal and rank-and-file employees. A well-functioning committee has a range of talents and perspectives to help it make effective decisions.
The committee should operate under a written charter, setting out the responsibilities of the committee and its procedural rules for appointing members, holding meetings, voting, and hiring advisors and experts as needed, for example. The charter need not be overly rigid or specific but should be drafted to reflect how the committee will operate.
PROVIDE PERIODIC FIDUCIARY TRAINING FOR COMMITTEE MEMBERS.
ERISA is complicated, and committee decisions have direct impacts on employees' retirement income. Committee members must act solely in the interest of plan participants and make decisions as a "prudent expert." Ask vendors to have their top technical experts conduct training, and ensure that the training is tailored to plans of your size.
WRITE AND ADOPT AN INVESTMENT POLICY STATEMENT.
While having an investment policy statement (IPS) is not generally a requirement for 401(k) plans, it is an important document as it may help show that the committee acted prudently and in the plan's best interests in evaluating investments. The IPS should include specific language describing the process by which investments are selected, monitored and replaced when necessary.
It is not advisable to list the plan's current investments within the IPS, as this list may change over time and the IPS may not always be consistent with the website your participants visit to manage their accounts.
MINIMIZE INVESTMENT FUND EXPENSES.
Sponsors of 401(k) plans have spent millions of dollars settling allegations that they had overly expensive funds, in many cases retail-share classes rather than institutionally priced investments.
The expense ratios that 401(k) plan participants incur for investing in mutual funds have declined substantially since 2000, reports the Investment Company Institute, a trade association for financial services firms. In 2000, 401(k) plan participants incurred an average expense ratio of 77 basis points (0.77 percent) for investing in equity mutual funds. By 2019, that figure had fallen to 39 basis points (0.39 percent), which is a 49 percent decline.
For plan sponsors of all sizes, it is imperative to document efforts to maintain the lowest possible investment expenses.
COMPARE INVESTMENT PERFORMANCE.
How do your plan's funds compare to similar offerings? There is no shortage of high-performing, low-expense funds to choose from in each investment category. While the retirement committee can't forecast future investment performance, it can determine prudent funds based on their track record.
If investment evaluation isn't your forte, get expert help from an investment adviser that accepts fiduciary responsibility for investment recommendations.
DROP UNDERPERFORMING FUNDS.
If the menu needs to be revamped, just do it. The small inconvenience of explaining to employees why changes are being made is better than responding to document requests arising from litigation for failing to let go of underperforming funds.
MONITOR REVENUE-SHARING.
Many mutual funds share a small portion of their expense ratio fees with plan administrative firms, which may reduce the costs that plan sponsors pay administrative firms for services such as recordkeeping of participants' investments, providing statements and distributing literature. Fund share classes with no revenue-sharing, however, have lower expense ratios and slightly better investment performance.
If revenue-sharing is in place for any fund being offered through the plan, audit it periodically—at least annually—and ensure that it is reducing plan expenses that might otherwise be paid by participants.
PAY VENDORS WITH FLAT-DOLLAR FEES.
All plans should grill their recordkeepers and other vendors on whether they charge the very lowest administrative fees available. When plan sponsors don't pay administrative fees themselves, a best practice is to charge participants a flat recordkeeping fee (perhaps subsidizing small balances) rather than using revenue-sharing funds to pay the recordkeeper a fee based on the percentage of assets in plan accounts.
If plan sponsors engage an investment adviser, it's also preferable to pay them a flat-dollar fee rather than a fee that fluctuates based on plan assets. Advisers should not be thinking about how recommended changes in a fund lineup will affect their pay.
In all circumstances, evaluating fees on a flat-dollar amount or dollars per participant will provide useful comparisons to fees based on a percentage of assets under management in the plan.
MAINTAIN CONSTANT VIGILANCE ON ADMINISTRATIVE FEES.
Recordkeepers and other vendors negotiate best when they perceive that they may lose you as a customer. As a fiduciary, you and your team need to play hardball at times. Don't worry about hurting the feelings of the vendor's personnel—you're the fiduciary with potential liability, they're not. Benchmark your administrative fees and consider issuing a request for proposal (RFP) for administrative services every few years.
Even though plans may not have changed much, vendors have, and they should be able to lower costs or provide additional services.
DOCUMENT YOUR DECISIONS, BUT BE SMART ABOUT IT.
Maintaining good records is a must but understand that any and all plan-related documents can wind up in the hands of class-action attorneys. Meeting minutes and e-mails should be carefully written and demonstrate a prudent process, to avoid casting the plan or committee in a bad light.
GET IT IN WRITING.
Vendor contracts should be negotiated, not rubber-stamped. Keep track of promises made in RFP responses and finalist presentations. A vendor's oral promises should be documented within their service agreement. Insist on performance guarantees so your plan will be compensated for any service lapses.
DON'T ACCEPT FORCED ARBITRATION WITH ANY VENDORS.
Fiduciaries should not sign away their option to use federal courts to resolve conflicts with vendors. Plan sponsors can always choose to arbitrate a dispute, as vendors prefer this. Just don't sign any contracts agreeing to compulsory arbitration of any and all disputes.
PROTECT AGAINST IDENTITY THEFT.
Ensure that hackers don't steal your employees' account balances. Ask recordkeepers about their security practices, experiences in defeating hackers, and resources committed to maintaining strong cybersecurity.
Obtain a written commitment in the service agreement that the vendor will reimburse participants who followed account security guidelines and, through no fault of their own, had their accounts depleted.
Summing Up
There are several things a company can do to protect against 401(k) litigation. Have the retirement plan run by a committee of dedicated, knowledgeable employees. Hire independent expert advisers to help with investments, vendor oversight and training. Make sure that all fees are competitive, using benchmarking and RFPs as needed. Use an objective fund scoring methodology and replace underperforming investments. Document decisions and pay attention to process.
SOURCE: Scott, P. (22 September 2020) "Viewpoint: How to Minimize the Risk of Retirement Plan Litigation" (Web Blog Post). Retrieved from https://www.shrm.org/resourcesandtools/hr-topics/benefits/pages/minimize-risk-of-retirement-plan-litigation.aspx
Labor Department Is Now Enforcing Coronavirus Paid-Leave Rules
As the U.S. Department of Labor gave employers sufficient time to comply with paid-leave through the Families First Coronavirus Response Act, many businesses can provide paid-sick-leave for employees if it is needed. Read this blog post to learn more.
The U.S. Department of Labor (DOL) initially gave employers time to comply with coronavirus-related paid-sick-leave and paid-family-leave mandates and correct mistakes without facing scrutiny, but the department has officially ramped up its enforcement efforts.
Under the Families First Coronavirus Response Act (FFCRA), many businesses with fewer than 500 employees must provide up to 80 hours of paid-sick-leave benefits if employees need leave to comply with a self-quarantine order or care for their own or someone else's coronavirus-related issues. The act also provides emergency paid family leave for parents who can't work because their children's schools or child care services are closed due to the pandemic.
The FFCRA's paid-leave provisions took effect April 1 and expire on Dec. 31. The DOL announced on April 20 that the nonenforcement period had officially ended, and the department issued its first enforcement order shortly thereafter. An electrical company based in Tucson, Ariz., was ordered to compensate an employee who was denied paid sick leave after he showed coronavirus symptoms and was told by a doctor to self-quarantine. The employer was ordered to pay the worker $1,600, which covered his full wages ($20 an hour) for 80 hours of leave.
"This case should serve as a signal to others that the U.S. Department of Labor is working to protect employee rights during the coronavirus pandemic," said Wage and Hour District Director Eric Murray in Phoenix. "We encourage employers and employees to call us for assistance to improve their understanding of new labor standards under the [FFCRA] and use our educational online tools to avoid violations like those found in this investigation."
We've rounded up articles and resources from SHRM Online on the FFCRA.
Paid-Sick-Leave Details
Under the FFCRA, covered employers will have to provide up to 80 hours of paid-sick-leave benefits if an employee:
- Has been ordered by the government to quarantine or isolate because of COVID-19.
- Has been advised by a health care provider to self-quarantine because of COVID-19.
- Has symptoms of COVID-19 and is seeking a medical diagnosis.
- Is caring for someone who is subject to a government quarantine or isolation order or has been advised by a health care provider to quarantine or self-isolate.
- Needs to care for a son or daughter whose school or child care service is closed due to COVID-19 precautions. (This leave can be combined with emergency paid family leave.)
- Is experiencing substantially similar conditions as specified by the secretary of health and human services, in consultation with the secretaries of labor and treasury.
Paid sick leave must be paid at the employee's regular rate of pay, or minimum wage, whichever is greater, for leave taken for reasons 1-3 above. Employees taking leave for reasons 4-6 may be compensated at two-thirds their regular rate of pay, or minimum wage, whichever is greater. Part-time employees are eligible to take the number of hours they would normally work during a two-week period. Under the legislation, paid sick leave is limited to $511 a day (and $5,110 total) for a worker's own care and $200 a day (and $2,000 total) when the employee is caring for someone else.
Family Leave and Sick Leave Work Together
The Emergency Family and Medical Leave Expansion Act (EFMLEA), which is part of the FFCRA, provides paid leave to parents who can't work because their children's schools or child care services are closed due to the pandemic. An employee may take paid sick leave for the first 10 days of leave or substitute any accrued vacation, personal leave or sick leave under an employer's policy. For the following 10 weeks, the individual will be paid at an amount no less than two-thirds of the regular rate of pay for normally scheduled hours. The individual will not receive more than $200 per day or $12,000 for 12 weeks that include paid sick leave and EFMLEA leave, the DOL stated. As of April 1, workers who have been on the payroll for at least 30 calendar days are eligible for paid family leave benefits.
More Guidance
Many employers and workers have been confused about how to apply the law or access its benefits, so the DOL has been regularly releasing compliance information and updating its Q&A document. In addition to temporary regulations, the DOL released a fact sheet for employees and a fact sheet for employers. The department also provided model workplace posters for nonfederal employers and federal employers that are covered by the mandate. The DOL will continue to add resources to its website, so employers should keep checking for updates. "Please continue to use our website as a primary source of information," said DOL Wage and Hour Division Administrator Cheryl Stanton.
Answers to the Most Common Coronavirus Questions
Would an employee who is afraid of coming to work and contracting COVID-19 be eligible for paid sick leave? Are nonprofit organizations required to comply with the FFCRA? How do the new requirements interact with collective bargaining agreements? Here are some answers to FFCRA and other common coronavirus questions.
SOURCE: SHRM. (28 April 2020) "Labor Department Is Now Enforcing Coronavirus Paid-Leave Rules" (Web Blog Post). Retrieved from https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/Labor-Department-Is-Now-Enforcing-Coronavirus-Paid-Leave-Rules.aspx
How to Evaluate Hiring Assessments
HR professionals and managers need reliable ways to gather and evaluate various assessments. Read this blog post to learn more about how to evaluate assessments.
When faced with a hiring decision, HR professionals and managers have to consider everything they know about the applicants. But that might not be enough information to make a choice. To get more information and add objectivity to the decision-making process, many organizations use assessments.
"When these tools are used correctly, they're tremendously valuable," said Eric Sydell, Ph.D., an industrial-organizational psychologist and the chief innovation officer at Modern Hire, a hiring platform. "There's a level of objective assessment about a person that can be very predictive."
HR professionals and hiring managers don't have the ability to make accurate predictions in the same way assessments can. "Our brains don't work that way," he said.
But buyer beware, Sydell warned, "There are a lot of tools out there that sound great on the surface" but fail to deliver valid and reliable results.
Multiple Options Present Tough Choices
Ryne Sherman, chief science officer at Hogan Assessment Systems in Tulsa, Okla., said he suspects that most large corporations are probably using reliable and valid assessments, while smaller businesses may not be. Unfortunately, he said, "With this industry, there is no regulating body at all—literally anybody can make an assessment tool and start selling it with no background and no science put into it whatsoever."
Perhaps because of the open nature of the field, there are a lot of tools to choose from and many of them are complex, making the selection of one of them a potentially confusing—and even risky—decision to make.
Must-Haves for Effective Assessment Tools
Ryan Lahti, Ph.D., is an industrial-organizational psychologist and the founder and managing principal of OrgLeader, a management consultancy in Newport Beach, Calif. He uses a variety of assessment tools in his work. There are many factors to be considered when evaluating an assessment tool, he said, but the three key ones are validity, reliability and the population that was used to develop it.
Validity deals with how accurately the tool measures the concepts it claims to measure. Lahti pointed to three forms of validity:
- Content validity indicates how well the tool measures a representative sample of the subject of interest. At a minimum, he said, you want a tool that has content validity.
- Criterion validity indicates how well the tool correlates with an established measure or outcome—for example, correlation to strong performance ratings.
- Construct validity indicates how well the tool measures a concept or trait—for example, conscientiousness.
Reliability is a measure of how consistently the tool measures issues of interest. If you were to give the same assessment to the same candidate more than once, how similar would the results be?
Finally, the population used to develop the tool is an important consideration and should be the same as the population being assessed. "For example, you would not want a tool developed on an adolescent population to be used to assess working adults," Lahti said.
Sherman offered the Minnesota Multiphasic Personality Inventory (MMPI) test as an example. The popular assessment tool used by organizations to screen candidates was designed for diagnosis and treatment of mental health conditions, he said. That can be a risky tool to use for assessing the potential of job applicants.
What to Watch Out For
As HR leaders consider various assessment options, they need to thoroughly evaluate whether the assessments they're considering incorporate the must-haves. Look out for companies that don't publish information on validity, reliability and the population used to develop the assessment.
Some companies, Lahti said, will say that their tools are used by a lot of Fortune 500 companies.
"While this argument shows they have good sales and marketing departments, it does not prove the companies have sound assessment tools," he said.
Sy Islam, Ph.D., an associate professor at the State University of New York at Farmingdale and a vice president at Talent Metrics consulting firm in Melville, N.Y., said employers should ask test companies to show their worth. "Vendors should be able to provide you with a validity coefficient, which is a statistic—a correlation coefficient—that indicates how much predictive validity the assessment has," he said. He warned against accepting "black box" explanations like "the tool is proprietary and cannot be explained." The ability to support your assessment could become an issue if your company becomes involved in a lawsuit, he said.
"What you don't want to do is rely on high-level summary statements, marketing statements or hype that is generated by these companies," Sydell said. "There are a lot of different buzzwords and catchphrases that vendors will throw out there. It's really important to look beyond that and dig below the surface." And, while he says you don't need a Ph.D. to do that, it is a good idea to seek help from someone who is familiar with these types of assessments and can help evaluate their efficacy.
"I would strongly advise finding a local industrial and organizational psychologist who can evaluate different vendors and talk to you about best practices," Sherman said. The proper assessment and selection of candidates is just too important, and potentially risky, to cut corners.
SOURCE: Grensing-Pophal, L. (27 February 2020) "How to Evaluate Hiring Assessments" (Web Blog Post). Retrieved from https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/how-to-evaluate-hiring-assessments.aspx
What to Do When Scared Workers Don’t Report to Work Due to COVID-19
Throughout the globe, many are terrified of contracting the communicable disease, the coronavirus. With this being said, many essential workers are refusing to go to work with that fear in their minds. Read this blog post from SHRM to learn more.
Some essential workers are refusing to come to work out of fear of contracting the coronavirus. Their employers must weigh the employees' legal rights and understandable health concerns with the organizations' business needs. It can be a tough balancing act.
"A good first step for an employer to respond to an essential worker who's expressing fears of returning to work is to actively listen to the employee and have a conversation," said Brian McGinnis, an attorney with Fox Rothschild in Philadelphia. "What are their specific concerns? Are they reasonable?"
McGinnis said that employers should consider whether it already has addressed those concerns or if additional steps are needed. Often, having a conversation with the employee "will avoid an unneeded escalation," he said.
Employees' Legal Rights
What if that doesn't work? Tread cautiously, as employees have many legal protections.
An employer usually can discipline workers for violating its attendance policy. But there are exceptions to that rule, noted Robin Samuel, an attorney with Baker McKenzie in Los Angeles. Putting hesitant employees on leave may be a better choice than firing them.
Christine Snyder, an attorney with Tucker Ellis in Cleveland, cautioned, "If an employer permits employees to use vacation or PTO [paid time off] for leave, it may soon find itself without a workforce sufficient to maintain operations. Therefore, an employer may want to rely upon the terms of its existing time-off policy, which typically requires approval to use vacation or PTO, to require that leave for this reason be unpaid."
OSH Act
Employees can refuse to work if they reasonably believe they are in imminent danger, according to the Occupational Safety and Health (OSH) Act. They must have a reasonable belief that there is a threat of death or serious physical harm likely to occur immediately or within a short period for this protection to apply.
Samuel explained that an employee can refuse to come to work if:
- The employee has a specific fear of infection that is based on fact—not just a generalized fear of contracting COVID-19 infection in the workplace.
- The employer cannot address the employee's specific fear in a manner designed to ensure a safe working environment.
NLRA
The National Labor Relations Act (NLRA) grants employees at unionized and nonunionized employers the right to join together to engage in protected concerted activity. Employees who assert such rights, including by joining together to refuse to work in unsafe conditions, are generally protected from discipline, Samuel noted.
"That said, the refusal must be reasonable and based on a good-faith belief that working conditions are unsafe," said Bret Cohen, an attorney with Nelson Mullins in Boston.
ADA
Employers should accommodate employees who request altered worksite arrangements, remote work or time off from work due to underlying medical conditions that may put them at greater risk from COVID-19, Samuel said.
The EEOC's guidance on COVID-19 and the Americans with Disabilities Act (ADA) notes that accommodations may include changes to the work environment to reduce contact with others, such as using Plexiglas separators or other barriers between workstations.
The Age Discrimination in Employment Act, unlike the ADA, does not have a reasonable-accommodation requirement, pointed out Isaac Mamaysky, an attorney with Potomac Law Group in New York City. Nonetheless, he "would encourage employers to be flexible in response to leave requests from vulnerable employees," such as older essential workers, as the right thing to do and to bolster employee relations.
FFCRA
If a health care provider advises an employee to self-quarantine because the employee is particularly vulnerable to COVID-19, the employee may be eligible for paid sick leave under the Families First Coronavirus Response Act (FFCRA), Cohen noted. The FFCRA applies to employers with fewer than 500 employees, and the quarantine must prevent the employee from working or teleworking.
FFCRA regulations permit employers to require documentation for paid sick leave, noted John Hargrove, an attorney with Bradley in Birmingham, Ala.
Employers may relax documentation requirements due to the difficulty some employees could have obtaining access to medical providers during the pandemic and to encourage ill employees to stay away from work, said Pankit Doshi, an attorney with McDermott Will & Emery in San Francisco.
Hazard Pay
Although not currently mandated by federal law, hazard pay—extra pay for doing dangerous work—might be appropriate for an employer to offer to essential workers, McGinnis said.
If hazard pay is offered, similarly situated employees should be treated the same, he said. Otherwise, the employer risks facing a discrimination claim.
Andrew Turnbull, an attorney with Morrison & Foerster in McLean, Va., noted that companies with multistate operations may have legitimate reasons for offering hazard pay to employees working at locations with a high risk of exposure and not where the risk is minimal.
Hazard pay might be a good choice for public-facing jobs, where employees may not be able to observe social distancing, said Román Hernández, an attorney with Troutman Sanders in Portland, Ore.
Some localities require hazard pay in some circumstances, Doshi noted. These localities include Augusta, Ga., Birmingham, Ala., and Kanawha County, W.Va.
Inform and Protect Workers
Lindsay Ryan, an attorney with Polsinelli in Los Angeles, said that employers should keep employees apprised of all measures the employer is taking to maintain a safe workplace, consistent with guidance from the U.S. Centers for Disease Control and Prevention (CDC), the Occupational Safety and Health Administration, and local health authorities.
If employers have the means to do so, they should screen employees each day by taking their temperatures and send workers who have fevers home, Snyder said. Alternatively, employers can require employees to take their own temperatures before reporting to work, she added.
"Finally, in light of recent CDC guidance regarding the use of cloth masks to prevent infection, employers should allow employees to wear masks in the workplace and consider providing employees with cloth masks if they are able to acquire them," she said.
‘It’s a fool’s choice’ when employers ignore investments in mental health benefits
Many employers have realized that the coronavirus pandemic has effected their employee's mental health tremendously. Many are now looking into opportunities to innovate change in the way mental health is viewed. Read this blog post to learn more.
As more states reopen and the return to work process gets underway, employers are grappling with how to address the rising mental health issues that have resulted from the COVID-19 pandemic.
The Society for Human Resource Management Foundation, One Mind at Work, and Psych Hub have partnered together to launch Mental Health and Wellness in the Workplace, an initiative to engage HR professionals in education and training opportunities to lead changes in the way mental health and wellness are viewed in the workplace.
“Our focus is on helping HR professionals and managers lead positive social change in the workforce,” says Wendi Safstrom, executive director of the SHRM Foundation. “We think it's critical to help employers and employees manage significant mental health tools related to COVID-19, and even beyond as companies begin to reopen.”
Mental health has been a growing concern among workers as the pandemic has worn on. About 41% of employees feel burnt out, drained, or exhausted from their work, according to data from SHRM. Additionally, nearly one in four employees report frequently feeling down, depressed, or hopeless — yet more than one in three employees reported having done nothing to cope with these feelings.
The SHRM Foundation, One Mind and Psych Hub initiative provides employers and HR professionals with a workplace wellness resource center, as well as training resources to help them address and improve mental health issues among employees.
The training covers topics like promoting workplace wellness, managing mental health during a crisis, and becoming an “agent of change” for workplace mental health.
Providing wide-spread education on mental health ensures that the diverse needs of employees have the opportunity to be met.
“What we're saying to everyone is that you cannot be autocratic here — this is about empathy,” says Garen Staglin, chairman of OneMind and co-founder of OneMind at Work. “You can't mandate that people are going to feel okay just because you tell them it's okay.”
Each member of the alliance brings a particular expertise in their respective practice areas. The SHRM Foundation focuses on workplace social change, One Mind at Work focuses on best practices and tools for brain health in the workplace, and Psych Hub focuses on multimedia learning solutions to mental health and addiction.
The materials are available to all companies and HR professionals via the Psychhub website. Employers, HR, and staff will have access to articles and other content on a variety of mental health subjects.
Investing in this program will not only help employees as they’re struggling now, but ensure investment into their future.
“We did a study that said for every dollar you invest in accelerating workplace best practices for mental health, you'll get a $3 to $5 return in the form of lower absenteeism, improved productivity, better customer service, and lower workers comp claims,” Staglin says. “It's a fool's choice to ignore brain health and workplace mental health, because the costs are extremely high.”
SOURCE: Schiavo, A. (23 July 2020) "‘It’s a fool’s choice’ when employers ignore investments in mental health benefits" (Web Blog Post). Retrieved from employeebenefitadviser.com/news/its-a-fools-choice-when-employers-ignore-invest-in-mental-health-benefits
How Managers Are Handling Performance Reviews During COVID-19
With many employees working from home during this coronavirus pandemic, many HR managers are facing unknown challenges in supervising employees and implementing performance reviews from afar. Read this blog post from SHRM to learn more.
As millions of Americans work remotely during the coronavirus pandemic, managers unaccustomed to supervising employees from afar face challenges in evaluating performance and providing good feedback.
"Most of the components of our performance reviews have been discarded during the coronavirus crisis," said Mike Falahee, chief executive officer at Marygrove Awning Co. in Livonia, Mich. "After all, how can we review someone who can't do their job the way they're accustomed to doing it?"
Shifting Tactics
No doubt, many company leaders share that sentiment as the world of work has changed swiftly in the past eight weeks. In that time, many companies have shifted to remote-only operations.
According to a Gallup survey, the percentage of workers who say their employer offered them flextime or remote-work options grew from 39 percent in mid-March to 57 percent by early April.
Additionally, 62 percent of employed Americans say they've "worked from home during the crisis, a number that has doubled since mid-March," according to Gallup.
Company leaders and managers say several strategies—some that were in place before the virus, some that are new—have helped them measure workforce production in the age of COVID-19.
Kerry Norman is vice president of talent solutions at CHG Software in Salt Lake City. Several years ago, CHG decided to ditch its traditional annual performance reviews for front-line employees.
"We found that it was ineffective for several reasons," Norman said. "First, it was a look backward, so it didn't help improve future performance. Second, it wasn't an effective measurement tool because assessments varied so greatly from one leader to the next. Third, it was disengaging for employees. It felt more like a judgment than a motivational tool."
Now the company focuses on providing "in-the-moment" feedback, and that has proved helpful during the virus.
"We want people to know what they're doing right and where they can improve, rather than waiting until the end of the year when it's too late to do anything about it," Norman said.
Shifting Roles
The pandemic is also forcing everyone at CHG, managers as well as their staff, to be more flexible. That means employees are taking on new roles, some for which they've never been trained. And managers must show flexibility when evaluating these workers, allowing time for a learning curve and understanding that there will be hiccups.
"Our people are now learning their skills can be used in ways they never knew existed, and they're helping in areas of the company that may have been foreign to them just weeks ago," Norman said.
Andres Lares is a managing partner at Shapiro Negotiations Institute in Baltimore. Before the virus hit, the company conducted formal reviews once a year. Now, Lares said, his firm's managers check in with workers weekly.
Moreover, his firm's managers have, for now, stopped evaluating employees based on the revenue they generate. Instead, he said, "we want to see our marketing team reach out to more people than ever via phone or e-mail during this time. In doing so, we're not emphasizing sales and revenue in the short term, but we are tracking demonstrated thought leadership from our employees that leads to more sales" in the future.
Adem Selita is chief executive officer at the Debt Relief Co. in New York City, which already had an automated performance system that tracked employees' metrics by the day, week, month and year.
With COVID-19 shaking up the company's office culture, that system has changed. These days, each performance review is scheduled more than a week in advance and employees are sent a template to fill out with instructions. Employees send back their responses for the manager to look over and use as a guide during the review.
"While time is still spent on going over output, the emphasis now is on what the employee needs help with, what they'd like to work on, ultimately with three takeaways the employee will focus on and discuss in the next review with their manager," Selita said.
Communication Challenges
Following this new performance review blueprint hasn't been easy during the pandemic.
"The biggest setback at first was communications," he said. "We're moving from a management culture where leaders are steps away from an employee's desk to a scenario where leadership isn't physically present. That leads to many questions not being asked [by the manager or employee] until it comes time for performance reviews."
On the upside, managers have noted new opportunities to discuss performance more broadly.
"With traditional performance reviews, employees were using much of their allotted time discussing small-ticket items, leaving them with little time to focus on development and what they can do better," Selita said. "By establishing more regular check-ins, we've found that employees are leaving sessions feeling more capable and motivated than ever."
Ken Eulo is a founding partner at Smith & Eulo Law Firm in Orlando, Fla. His firm has decided to push back performance reviews entirely during the coronavirus crisis.
"We believe it's unfair to hold employees to the same standards during this outbreak," he said. "The economy is suffering, and we are offering limited services as a firm. Consequently, we have completely halted performance reviews for the time being, as we can't find reasonable parameters to measure each employee's performance due to the circumstances."
Eulo said his firm will resume performance reviews when its services return to normal.
"For the time being, we are trusting employees to hold themselves accountable," he said.
SOURCE: O'Connell, B. (28 April 2020) "How Managers Are Handling Performance Reviews During COVID-19" (Web Blog Post). Retrieved from https://www.shrm.org/resourcesandtools/hr-topics/people-managers/pages/performance-reviews-during-coronavirus-.aspx
COVID-19 Changes Internships, Apprenticeships
As the coronavirus pandemic has put a restriction on many plans, it's also raised concerns for organizations with internship and apprenticeship programs for early career development opportunities. Read this blog post from SHRM to learn more.
Travel restrictions and social-distancing mandates prompted by COVID-19 are causing organizations to rethink their approach to apprenticeships and internships, which typically involve hands-on, in-person participation.
The National Association of Colleges and Employers (NACE) is seeing a steady push toward moving internships online or limiting them in size and duration. A quick unscientific poll it conducted April 3 with 130 of its employer members provided insight on how members are adapting their programs:
- 35 percent are making no changes to their program.
- 35 percent are reducing the length of internships by delaying the start date.
- 29 percent are moving to a virtual program.
- 20 percent are moving events such as end-of-program presentations online.
- 15 percent are reducing the number of interns.
Some organizations are considering micro-internships that condense a 10-to-12-week internship into a one-to-two-week experience later in the summer, said Bruce Soltys, head of talent acquisition sourcing strategy at The Travelers Companies based in Hartford, Conn. It has a 450-person internship program at 25 locations throughout the U.S.
He was among speakers at a panel discussion on internships that NACE hosted April 2.
"Companies might put a little bit more of an emphasis on training and development where [interns] are really focused on the learning and development piece and not so much on a personal project," Soltys said.
"From a change management perspective, we've presented the case to our senior leaders to say, 'If we have to go down this path from a virtual-work standpoint, the main question is, can this work be done virtually?' I think a lot of managers are not comfortable with the notion of interns doing the work virtually because [interns] are so new to the organization."
SAS, a computer software company outside of Raleigh, N.C., has a seven-figure investment in its internship program, said Kayla Woitkowski, a university recruiter leader for SAS who spoke on the NACE panel. Her employer is "making sure that any internship that does go virtual … the students have valuable work" to perform.
She has found, based on phone conversations with other employers, that organizations are taking one of three stances toward internships in light of COVID-19:
- Turning their internship program into a virtual one, ensuring that any work interns have been hired to perform can be done remotely.
- Canceling internships.
- Pushing back start dates.
As organizations wrestle with what to do with their internship programs, it's important that they keep in contact with the students they selected, said David Ong, panel moderator and senior director of corporate recruiting at Maximus. The Washington, D.C.-based company is a health and human services provider for state, federal and local governments.
The organization met with all interns and program associates as a group to assure them that they would keep them up-to-date on the program's status.
"It is also just a chance to keep them engaged," Ong said. "A lot of these students have [other] options."
Online tools can be an internship program's friend, according to Renato Profico, CEO of Doodle, a Zurich-based online scheduling tool.
"They can translate culture into a digital setting to make interns and new hires feel included," said Profico, who has personally invited every employee to a 15-minute virtual coffee meeting over the next few weeks. "These little things are important at a time when employee engagement and retention could dip significantly."
Apprenticeships
Changes prompted by COVID-19 will likely cause companies to be more pragmatic in how they view the role of apprenticeships, said Jennifer Carlson. She is the co-founder and executive director of Apprenti, which operates in 12 states as a fully paid technology apprenticeship program for minorities, veterans and women.
"COVID-19 is going to force companies to be more deliberate and probably see apprenticeships as an equitable pipeline, equivalent with all their talent acquisition pipelines," Carlson said. "Not all jobs in the science, technology, engineering and math fields, for example, require a college degree.
"You can take people from nontraditional [areas] and train them and create a second pipeline [for talent] using apprenticeships."
One such example is the Youth Technology Apprenticeship Camp (YTAC) in Charlotte, N.C., a major technology workforce site in the U.S. Last year, for example, home-improvement company Lowe's announced the creation of a 2,000-employee global tech hub in Charlotte.
The demand for employees with tech skills "is off the charts for these companies," said Tariq Scott Bokhari, Charlotte city councilman and founder of the Carolina Fintech Hub. The Fintech Hub created YTAC and partnered with the city of Charlotte, the Charlotte Executive Leadership Council, the Bank of America Foundation and Charlotte-Mecklenburg Schools.
Apprentices are high-school seniors who earn a credential after completing the four-week program. Those performing above a certain threshold are guaranteed acceptance into the local Workforce Investment Network training program. After successfully completing six months of training, participants are guaranteed a job as a full stack developer with a starting salary of $55,000.
The pandemic prompted a format change to the apprenticeship: It will be entirely virtual. Participants meet in small virtual breakout groups to work on their project, participate in labs, hackathons and livestream competitions and attend virtual training.
Bokhari thinks the altered format will continue in some way after the pandemic is over. With the virtual setup, overhead costs are lower, so more students can be accommodated. It also mirrors what he thinks will be the new reality for work.
"I think things will change forever after this, but it will probably be some mixture of physical and virtual [format]. We want this experience … to mimic the real-life workforce environment. I think the real-life workforce environment is going to change."
SOURCE: Gurchiek, K. (13 April 2020) "COVID-19 Changes Internships, Apprenticeships" (Web Blog Post). Retrieved from https://www.shrm.org/ResourcesAndTools/hr-topics/organizational-and-employee-development/Pages/COVID19-Causes-Changes-to-Internships-Apprenticeships.aspx
Remote Work Policies Should Now Stress Flexibility
While employers are in the midst of distributing guidelines for employees working remotely, it's important for management to also outline policies and procedures for working remotely. Read this blog post to learn more.
Organizations are implementing remote-work arrangements for their employees due to the COVID-19 coronavirus outbreak—many for the first time—and need to be able to outline expectations and guidelines for working outside the office.
Generally, remote-work policies cover eligibility, working expectations, legal considerations and technology issues, but, during these extraordinary circumstances, flexibility is paramount.
We're undergoing one of the biggest changes in history in how people work, said Brian Kropp, chief of research in the HR practice at Gartner, a research and advisory firm in Arlington, Va. "We have a set of people who have never worked from home who are now doing it full time. We also have a set of managers who have never managed people working from home. Under these circumstances, the policies shouldn't be thought of as managing productivity, but more a set of guidelines and norms for people managing and working in a brand-new way."
Kropp said that employers should design their remote-work policies around outcomes, not workflows and processes. "The idea is that employees are expected to accomplish their goals, but how they do it and when they do it is flexible."
Just applying a traditional telecommuting policy to all workers during this unprecedented situation will lead to problems, Kropp said. "Look at your current policy and see what makes sense in this situation, and, if you're not sure, lean toward flexibility and trust as opposed to measuring and monitoring your employees. If employees are not given flexibility, it will be harder for them in their personal lives and they will feel that they are not trusted, which will come back to bite the organization when we come out of this."
Gregory Abrams, an attorney in the Chicago office of Faegre Drinker, said that being flexible with remote workers right now is not only good management practice but necessary, considering the quickly changing legal landscape.
"Clear policies are always advisable, but employers must be ready to adjust quickly as circumstances change," he said, noting that new Department of Labor guidelines could affect remote work. "Policies should clarify that expectations are subject to change quickly and unexpectedly given the current climate."
With flexibility as a guide, there are certain core elements of working from home that should be addressed in a written policy.
Define Eligibility and Duration
First, companies should define whom the policy covers and when it applies, as some workers may still be required to be at the worksite and others may not be able to work remotely. Employers may want to clarify whether the policy is only in effect during the coronavirus-related shutdown.
Kropp advised employers not to promise a definitive date to return to the office or termination of the telework policy due to general uncertainty about the duration of COVID-19.
A remote-work policy should include a clause that it may be discontinued at will and at any time.
Working Expectations
Experts agreed that evaluation of remote workers' performance should focus on work output and completion of objectives rather than on time-based performance.
"There are managers that think their employees are sitting at home watching TV all day instead of in front of their laptop working," Kropp said. "The mistake that these managers make is that they are confusing a remote-work policy with a performance management problem. The same employee who sits in front of the TV all day instead of working was probably already not working to his full potential in the office. That employee is not engaged, or the manager is not effectively providing direction."
An appropriate level of communication between employees and their managers should be spelled out in the policy, including expectations of availability, responsiveness and what modes of communication are to be used.
"When you're not meeting with team members in person, creating processes for collaboration and communication are key," said Rebecca Corliss, vice president of marketing for Owl Labs, a Boston-based telecommunications company. "Consider what types of communication tools work best in situations like manager one-on-ones, team all-hands meetings or employee learning and development activities."
Kropp said that, traditionally, there has been an expectation that video calls and meetings from home would be professional and "office-like." Companies are realizing that can be difficult with what's going on now, he added. "A lot of workers are parents with kids at home or taking care of an older parent. A kid will show up crying during one of your WebEx calls. It's going to happen, so companies are relaxing the constraints around what 'professional' and 'office-like' means. Obviously, you can't walk around in your underwear during a video call, but 'appropriate' rather than 'office-like' is a better way to show understanding of the struggles everyone is experiencing."
Legal Issues to Grant
Remote workers are entitled to the same legal protections that in-office workers have, Corliss said. "Working remotely can present some added challenges that need to be addressed to ensure your company is legally compliant," she noted.
One of the most obvious compliance areas to address with remote employees is recording the hours of workers not exempt from the overtime requirements of the Fair Labor Standards Act (FLSA).
Employers must ensure that hourly employees know "the number of hours they are expected to work, what they should do if they need to work outside of scheduled work hours, how to report time, and how to communicate about unanticipated overtime," Abrams said. "There are legions of cases where nonexempt employees allege that they worked off the clock while at home, and you can see a similar scenario playing out during this crisis."
The policy should be clear that all nonexempt telecommuting employees are required to accurately record all hours worked using the employer's time-keeping system. Hours worked in excess of those scheduled per day and per workweek should require the advance approval of a supervisor. But even if employees are instructed not to work more than 40 hours a week, they still must be paid overtime if they do.
"Set up a process to report hours for hourly remote workers," Corliss said. "To avoid high overtime costs, select times that employees should and shouldn't be working. With clear guidelines, they won't be able to work outside of these hours unless they have permission from their manager. This makes it easier to avoid employees accidentally working more hours than intended."
Abrams added that states have various laws about meal breaks, rest breaks, and how many consecutive hours one can work, and remote work policies need to be mindful of those as well. There could also be Americans with Disabilities Act issues, he said, if accommodations need to be made for remote workers.
Employers are also responsible for remote workers' health and safety. Some companies prefer or require an employee's remote work environment to be approved prior to working remotely.
Injuries sustained by an employee in a home office location and in conjunction with his or her regular work duties are normally covered by a company's workers' compensation policy. Remote employees are responsible for notifying the employer of such injuries as soon as possible.
Technology and Supplies
Remote workers need the right tools to complete their work. Employers need to be clear about what equipment and resources they will provide, whether laptops and videoconferencing tools or payments for office supplies, phone calls, shipping and home-office modifications.
Who pays for home technology is up to the company, but a policy should set expectations to make sure everyone is on the same page, Kropp said. "Both employees and employers must agree on what each is expected to deliver. For example, some companies will pay for high-quality home Wi-Fi, and others are expecting that the worker already have it at home."
For many employees, a laptop and a Wi-Fi connection might not be enough, Corliss said. "You'll also need policies and tools in place for remote team collaboration and communication, like live chat, synchronous screencast recording, live video conferencing and more to ensure technology doesn't get in the way of an effective and meaningful work relationship. Slack and Google Hangouts can act as a virtual water cooler, where employees can discuss the status of a project but also debrief on TV shows, share GIFs and bond over their favorite music."
Companies also should specify the level of tech support they will offer to remote workers and outline what remote employees should do when having technical difficulties.
Employers need to pay extra attention to securing the technology their remote workforce is using. The COVID-19 pandemic is providing plenty of new opportunities for cybercriminals to exploit unsecured technology systems, overworked information technology (IT) staff and panicked employees who are new to working from home.
"In the course of developing communications to employees, examine existing policies closely, such as confidentiality, information security, business continuity, BYOD," said Joseph Lazzarotti, an attorney in the Morristown, N.J., office of Jackson Lewis. "If companies have specific requests, for example if they don't want employees working on public Wi-Fi, then that should be stated in the policy."
SOURCE: Maurer, R. (02 April 2020) "Remote Work Policies Should Now Stress Flexibility" (Web Blog Post). Retrieved from https://www.shrm.org/hr-today/news/hr-news/Pages/Remote-Work-Policies-Should-Now-Stress-Flexibility.aspx
Trump Signs Coronavirus Relief Bill with Paid-Leave Mandate
As the COVID-19 pandemic cases increase, employees are stuck choosing between staying home to avoid spreading the illness and working for a paycheck to pay their household bills. Due to the effect that the spread of coronavirus has created, the U.S. Senate has approved the Families First Coronavirus Response Act. Continue reading this blog post from SHRM to learn more.
The U.S. Senate approved the Families First Coronavirus Response Act in a 90-8 vote on March 18, and President Donald Trump signed it into law a few hours later. The bill will provide free screening, paid leave and enhanced unemployment insurance benefits for people affected by COVID-19, the respiratory disease caused by the coronavirus.
The U.S. House of Representatives passed the bill late on March 13. After several days of negotiation, House Speaker Rep. Nancy Pelosi, D-Calif., announced that negotiators had reached a deal with the White House to pass the bill. "We cannot slow the coronavirus outbreak when workers are stuck with the terrible choice between staying home to avoid spreading illness and the paycheck their family can't afford to lose," Pelosi said.
Republican senators were concerned that the bill might hurt small businesses, and Sen. Mitch McConnell, R-Ky., said lawmakers are working on another bill that would include relief for small businesses. McConnell said he would not adjourn the Senate until the third COVID-19 economic stimulus package is passed, CNN reported.
Trump declared a national emergency March 13, which frees up billions of dollars to fund public health and removes restrictions on hospitals to treat more patients. The Families First Coronavirus Response Act (H.R. 6201) will provide:
- Free coronavirus testing.
- Paid emergency leave.
- Enhanced unemployment insurance.
- Additional funding for nutritional programs.
- Protections for health care workers and employees responsible for cleaning at-risk places.
- Additional federal funds for Medicaid.
We've rounded up articles and resources from SHRM Online and other trusted media outlets on the news.
Paid Family Leave
As originally drafted, H.R. 6201 would have temporarily provided workers with two-thirds of their wages for up to 12 weeks of qualifying family and medical leave for a broad range of COVID-19-related reasons. The revised version of the bill will only provide such leave when employees can't work because their minor child's school or child care service is closed due to a public health emergency. Workers who have been on the payroll for at least 30 calendar days will be eligible for paid family leave benefits, which will be capped at $200 a day (or $10,000 total) and expire at the end of the year.
(Littler)
Paid Sick Leave
Under the bill, many employers will have to provide 80 hours of paid-sick-leave benefits for several reasons, including if the employee has been ordered by the government to quarantine or isolate or has been advised by a health care provider to self-quarantine because of COVID-19. Employees could also use paid sick leave when they have symptoms of COVID-19 and are seeking a medical diagnosis, if they are caring for someone who is in quarantine or isolation, or their child's school or child care service is closed because of the public health emergency. Paid-sick-leave benefits will be immediately available when the law takes effect and capped at $511 a day for a worker's own care and $200 a day when the employee is caring for someone else. This benefit will also expire at the end of 2020.
(CNN)
Large and Small Business Exceptions
Private businesses with at least 500 employees are not covered by the bill. "I don't support U.S. taxpayer money subsidizing corporations to provide benefits to workers that they should already be providing," Pelosi said on Twitter. Treasury Secretary Steven Mnuchin also said that "big companies can afford these things."
Covered employers that are required to offer emergency FMLA or paid sick leave will be eligible for refundable tax credits. Employers with fewer than 50 workers can apply for an exemption from providing paid family and medical leave and paid sick leave if it "would jeopardize the viability of the business." Gig-workers and other self-employed workers will be eligible for a tax credit to cover the benefits.
Lawmakers Previously Approved $8.3 Billion Emergency Bill
Another emergency spending package to fight coronavirus rapidly worked its way through Congress, and President Donald Trump signed it into law March 6. The measure will provide funds to develop a vaccine, provide protective and laboratory equipment to workers who need it, and aid locations hit with the virus.
Coronavirus Prompts Employers to Review Sick Leave Policies
Do employees have the right to take time off if they are concerned about contracting coronavirus? Can employers send sick workers home? Should employees be paid for missed work time? HR and other business leaders are likely considering these questions and more as COVID-19 makes its way through the United States. "We believe employers would be wise to review their paid-time-off practices immediately," said Francis Alvarez, an attorney with Jackson Lewis in White Plains, N.Y. "Employers are likely to face unique circumstances that were not anticipated when they prepared their attendance and leave policies."
Visit SHRM's resource page on coronavirus and COVID-19.
SOURCE: Nagele-Piazza, L. (18 March 2020) "Trump Signs Coronavirus Relief Bill with Paid-Leave Mandate" (Web Blog Post). Retrieved from https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/Senate-to-Vote-Soon-on-Coronavirus-Paid-Leave-Mandate.aspx
Early-Career Employees Face the Pandemic
Although working remotely can sound enticing, it can also create an over-abundance of stress for those who are not prepared. Many employees have had to deal with events that affect the workplace, but many of the younger generation employees have not had to deal with a situation like what the coronavirus has brought into businesses across the nation. Read this blog post to learn more about helping employees face the coronavirus pandemic.
Last week, before we understood the impact of the coronavirus pandemic, I spoke with several Millennials. During our discussions, we very quickly transitioned from plans for classes and graduation to what-if questions about the coronavirus pandemic.
More than the questions, though, the body language of the Millennials struck me. It screamed, "Help me get through this—all of it!"
Most of the conversations ended with "I feel so much better now that I talked to you."
Truthfully, I didn't say a lot because I didn't know many of the answers. However, I offered a listening ear, and it made the young adults feel heard and enabled them to share their thoughts, fears and concerns.
I realized at this moment that the power of listening is real, especially during times of uncertainty and crisis. Upon reflection, I wondered what made the Millennials feel safe enough to be vulnerable in front of me, and I realized they saw me as a trusted source.
We have to remember that although we're focused on delivering results, working remotely, managing our family responsibilities and practicing social distancing, as more-experienced workers, we've been doing this (i.e., dealing with uncertainty) a lot longer than early-career employees.
A lot of us have lived and, more importantly, worked during difficult, uncertain times, such as the terrorist attacks of Sept. 11, an economic recession, corporate layoffs, and the list goes on.
Each time we faced uncertainty, our tolerance for ambiguity improved, and we were reminded that we can get through this, albeit sometimes with scars.
The coronavirus outbreak may be the most significant uncertainty early-career employees have yet faced at work.
As a result, it is essential that organizations, and especially managers of early-career employees, do the following:
- Give employees a chance to vent. Listen more than you talk.
- Encourage them to ask questions.
- But when you don't know the answer to a question, admit that you don't know.
- Share concrete yet simple suggestions to encourage employees (e.g., practice self-care, turn off the news occasionally, go outside for fresh air).
- Ask for their input if you feel like that's the natural course of the conversation, but remember that sometimes, asking for ideas creates stress.
- Set clear expectations about work deadlines. If you can reduce uncertainty at work, it will help employees navigate other responsibilities.
- Communicate the amount of time you expect them to be online, and let them know when it's OK to get offline.
- Create fun, daily challenges (e.g., ask your team to share pictures from their favorite vacation spots).
- Continue meeting with employees one-on-one virtually, if possible. While it's helpful to have team meetings to ensure that projects and tasks are moving forward, during times of uncertainty, spending time with each of your employees is crucial.
- Encourage your employees to follow a routine.
Lastly, although it may sound cliché, remind employees that we will get through this—and remind them more than once.
SOURCE: Sutton, K. (23 March 2020) "Early-Career Employees Face the Pandemic" (Web Blog Post). Retrieved from https://www.shrm.org/ResourcesAndTools/hr-topics/employee-relations/Pages/Early-Career-Employees-Face-the-Pandemic.aspx