VANNOY:

Don’t get caught unprepared. 12 new HR updates for 2023. Okay, this is part two to our, our, our series here. Last week, we covered the first six. Today we’re gonna cover six more topics, too big of a topic to cover all in one show. Most of you know my guest real quick. Mary Simmons, she’s the Vice President of HR Consulting at Asure. She’s a SHRM certified professional. Also, for the past eight years, Mary has been an adjunct professor at the New York Institute of Technology. Prior to Asure Mary is the director of HR Consulting for a 55 year old HR consulting firm in New York. Welcome back, Mary.

SIMMONS:

Thanks, Mike.

VANNOY:

All right, let’s jump into it. So last week we covered six HR laws. Anybody who missed that, please, it’s on demand. Just hop on the website, YouTube, wherever you wanna pick up your podcasts. It’s out there. Go ahead and listen to the first half. We’re gonna pick up where we left off with topic number seven which is laws prohibiting restrictions on speaking out about sexual harassment enforced arbitration. That’s a mouthful. What, what does it mean for employers, Mary?

SIMMONS:

Oh, it sure is, I think really important for everybody to realize this is a federal law. So, you know, one of the seminars we gave, and I, and I’m not sure which one one of the listeners reached out to me and said, Mary, is it mandatory that I have a handbook? Right? So we always say, and, and I probably said it on that webinar, no, it’s not mandatory that you have a handbook, but when you look at all these laws, we’re on number seven, right? You realize, and that’s not including, you know, the laws from the past. Right? Now, you realize why a handbook is so important, right? Because if you’re under obligation as an employer to inform your employees about these federal, state, and local laws, it makes it easier if it’s in one document. Right? So this is the Federal Speak Out Act, and it voids non-disclosure agreements, non-disparagement agreements, or contractual provision that restricts an in an employee from disclosing or discussing sexual harassment or assault.

What does that mean? In <laugh>? Yeah. In English. Yeah. What that means in English is that employers cannot say to an employee who has, you know, believes that they were sexually harassed or assaulted at work or in fact have after an investigation proves that they have the employer can tell that employee, you can’t talk about this. Okay? So, you know, the reason for the employer saying don’t talk about it, right? Is because, you know, they don’t want, you know, possible other people stepping forward. But from a federal standpoint, they do. If people haven’t been treated properly, they want Yeah. Employees to feel like they can come forward. And there used to be a clause that employers could say when an employee had a claim of sexual harassment or assault, they could force arbitration. And they are ending that at as well. So you can’t force arbitration, meaning it can go to court, right? So if the employee wants arbitration, they can have it. If they don’t, it, it it, you know, it goes into a court of law, right? They can’t enfor force them to arbitration.

VANNOY:

So, so look, paint a picture of an example, what, what this might look like. So an employee comes to me, their boss with a, a concern. How, how does this, how might this have played out prior to the law change? And how must it play out now?

SIMMONS:

Right. So we, you know, there was handbooks out there, or a, you know, form that employees filled out that said, if I have a claim of sexual harassment, I must go to arbitration. So let’s just say that Jane comes forward, she says to her manager, Mike, I feel like Joe is sexually harassing me, right? So we’re gonna do an investigation on the HR side to see what happened in the past. The employer could say, Jane, don’t tell anybody about what’s happening, you know, and they could also force Jane to go to arbitration versus going to court. That is, that is no longer allowed. You can have arbitration, but you can’t mandate that the employee goes to arbitration. So it’s, it’s a little bit of a big deal. You know, I wouldn’t, it’s that big of a, of a deal for a smaller employer who’s going, what’s arbitration?

 We’ll leave that to the, to the attorneys just to explain in details what the important takeaway for everybody here to understand on a bigger scale. We’ve talked about before, the National Labor Relations Act, right? Which really governs unions, but in effect, it governs all employers. And one of the, you know, edicts in that statute says, in employees have the right to talk about conditions of work. Well, the federal law is the federal government saying this is a condition of work. You can’t prohibit these employees from talking about if they got sexually harassed, right? Yeah. So, you know, normally you’re gonna say to the person who comes forward, look, Jane, I’m gonna try my best to, you know, make sure that this isn’t that this doesn’t, you know, get around and I’ll try to keep it confidential to the extent I can, but I’m gonna do an investigation that’s okay. But to say to Jane, Jane, don’t tell anybody now that Speak Out act will not allow that. Right? So, so the, so it’s significant, right?

VANNOY:

Yeah. That, that, that’s a really big deal. Cause, cause you know, I’ll always come to the, I’ll defend the intent of entrepreneurs. Nobody, for the most part, people aren’t out there trying to do evil and, and tamp down bad acts. Right? but you can, you can see how an employer might say, Hey, you know, let, let, let’s, let’s keep this quiet. We don’t, we don’t want to ruffle feathers. Let’s let this play itself out. I’m gonna hear I got your back employee, I, you know, and be, and be sincere about that, right? And right. I, I have you back. We’re gonna do a full investigation, but justice will be served here. Let’s just, let’s just not talk about that until the the end comes up. I can totally see an employer relatively innocently thinking that that’s a reasonable thing to do. But you can’t, it’s illegal. Now. I, I’m not understanding that. Correct.

SIMMONS:

Yes. No, you’re correct. I, I think, you know, there’s, there’s a couple little nuances here, and I’ll give you a good example. Had an employer, I walked in day one said, you know, you know, this woman has a claim of sexual harassment against, and let’s just use these names, right? So Jane says she has a sexual harassment against Joe. I go in to do the investigation, and I have to tell you that at the end of the investigation you know, she did have grounds, you know, it, it did appear to be sexual harassment, but in addition, somebody else in the department, the same department as, as this young woman was talking about, oh, I heard Jane made a case about sexual harassment against Joe. You know, I think she’s sleeping with, and, and went on and on. Now, that’s different. That’s not allowed. Because now that third individual right? Wasn’t Jane, and it wasn’t Joe, that third employee, let’s call him Mike Mike is now actually causing, you know, a, you know, situation where, you know, she has almost another claim because now he’s talking about her in a sexual nature. So I’m,

VANNOY:

I mean, this definitely

SIMMONS:

Future

VANNOY:

In, in that scenario, yes, Mike is stirring up crap and stirring up crap.

SIMMONS:

That’s right. About

VANNOY:

Secondhand information is not the same as firsthand information. I believe I was sexually assaulted. Right? Very, very

SIMMONS:

Different.

VANNOY:

Different, the topic of discussion may be same, but those are very different things.

SIMMONS:

Yeah. And, and as I was gonna say, we’re definitely doing a future, you know, webinar on sexual harassment. But, you know, one other thing that I wanna say, cuz it’s kind of in this vein, I was also doing a handbook for another employer the other day, and they’re like, Mary, I want a no gossip policy. And I’m like, really? Right? So I’ve seen them in handbooks and not a fan, because that is going to chill concerted activity, right? Which is talking about conditions of work by saying, no gossiping, right? Our lunchrooms disgusting, or I hate my boss. Those are conditions of work. And you may consider that, you know, gossiping. So don’t think employers or, or you know, anybody listening that, that by us saying that Mike stirring the pod would make sense then to have a no gossiping policy. The, the real answer here is you must educate your employees and your managers on anti-sexual harassment. And while we’re talking about it, anti-discrimination, whether you are one of those six mandated states or not, cuz it’s a against the law federally <laugh>. Yeah. Yeah. And then I’ll get off my soapbox <laugh>.

VANNOY:

I, I think the way you put it that hit, that hit me, right? That it’s a condition of work. So if I’m talking about somebody’s personal life outside of work, clearly that’s gossip. But if I’m talking of about I was sexually assaulted, I believe I’m the victim of discrimination. That’s, that’s, that’s, that’s condition of work. Same as like workplace safety. I don’t have, they don’t gimme goggles. They don’t gimme helmets. There’s machines without protective, right? It is a condition Yes. Of your work. And so you can’t, you couldn’t restrict your employees to, Hey, don’t talk about the fact that our our, we don’t wanna have proper maintenance on our machines, and we don’t have covers over those flying gears and belts. That’s right. OSHA would’ve a fit, right? I mean, you, so you can’t discourage that. You can’t discourage any condition of employment conversation. That’s a good way to look at it, right?

SIMMONS:

Absolutely. And just one other thing that I’ll add about forced arbitration. There are some states, California, Washington New York, of course Illinois, Hawaii, Maine, that also have stopped allowing employers to mandate forced arbitration for wage and hour disputes. So I guess the other message that I wanna say is if you have an, a forced arbitration mandate for employees for certain lawsuits, I would consult with a professional before moving forward, even if you’re not in the states that I named, because it seems to be a trend going forward. So your state might be next.

VANNOY:

Yeah. Right. Okay. let’s go, let’s, I, I do have questions on arbitration. I think I’ll save it for, maybe it’s a Brian Shinker topic, or, or maybe it’s another day. All right, number eight, some states expanding definitions of family members in-laws related by blood or persons of standing in the place of family, family relationship. This is the, a lot of nuance here in the language, but I think the laws are becoming much more specific. Can you unpack that for us?

SIMMONS:

Yes. And of, and of course, in layman’s terms, all they’re doing is expanding the amount or the definition of who’s considered a family member, right? Because a lot of these leave laws that we talked about last time that are getting expanded, right? More states have leave laws, and those states that have leave laws are adding more leave laws all good stuff. They’re also expanding, right? Who is a family member, right? I have a friend who, you know, just lost her mom. She lost her father, she lost her, her brother, but she has an aunt that if that aunt got sick, right? She, she may be included in some of these definitions now where she wouldn’t have been included before. So, you know, usual suspects, California expanded the C F R A paid leave to include designated person. Oh, that’s, that’s a big one, right?

Because that’s, well, it sounds like almost anybody that you designate that, you know, for paid leave and New York is including siblings in their paid leave, right? So if I needed to take care of my brother or my sister it would be covered under New York, paid leave. And then, you know, some of the other states are jumping into it and adding domestic partners. New York always had domestic partners. So did California. Some of the other states are including domestic partners, siblings, and in-laws, which I think is, is a big deal, right? Because I took care of my mother-in-law, and I think a lot of the employees do. So this is definitely a handbook update.

VANNOY:

I, I don’t want to trap you, so if you don’t want to, don’t know it or don’t want to, that’s fine. California, when you have to designate, have a designated person, any more specifics you can share for our California audience there, like does it have to be named ahead of time? It could be after the fact. No, that was a dedicated person. How, how, how does that work?

SIMMONS:

Those are all really good questions, and I wish California had thought of those questions beforehand. Okay. But all they did, they had very little guidance to go along with that. Okay? And sometimes Mike, that’s on purpose, right? Because if you start giving all kinds of definitions to what that designated person can be, now, it’s really not as open-ended as I believe, right? They want it to be. Right. So that makes sense. There isn’t a lot of guidance on that.

VANNOY:

So the message we could

SIMMONS:

Do a

VANNOY:

Whole employer is California, update your handbook and then explain it. That including that’s an unknown. Therefore, better take a liberal, and I don’t mean political liberal, but you better take a liberal policy on this because it’s not black and white defined. And if your employee does, has a designated person then there, and unless there’s more clarity that the law brings, then that’s who you should treat as their de designated person. Am I thinking about that? Right?

SIMMONS:

You are. And you know, I also think this, some of these additions need some education. So a lot of times when we do an employee handbook update for the client, we’ll send an addendum. Here’s the new policy, you know, give it to all your employees, have them sign off that they read it, right? And we make a note in the handbook that this has been updated. Sometimes you, you also should be adding this to a manager’s meeting. It might sound like a very small change, but you don’t want, you know, an employee to go to a manager in California and say, I need to take paid leave to take care of my cousin and the manager go, no cousins aren’t covered. Well that, you know, it’s a designated person. Yeah. So I believe what we try to do is minimally educate the managers who are talking to the employees, and maybe if there’s enough changes and updates to the handbook, unpack the handbook, you know, mo the policies for the employees so that they can ask questions.

VANNOY:

Okay. Next one. Topic nine has to do with FLSA salary. I think we’re still waiting on final federal guidance, but I, I think the, the signal has been lit here that there is change coming that employers need to understand. And this is really basic exempt, non-exempt F L S A kind of stuff that will impact everybody cuz it’s federal, right?

SIMMONS:

Yes. And I think this is one of the things that a lot of my clients miss. And u and understandably it’s a little bit confusing. We all know that under the Fair Labor Standards Act, there’s a minimum wage. Everybody pretty much, or most employers understand that, right? Yeah. There’s a federal minimum wage, and then your state may have a minimum wage that’s higher, they can’t have a lower one, and your employees get the best of whichever that minimum wage is. In this instance, it’s always gonna be the state minimum wage, right? For example, New York is 15, federal is 7 25 in the same law, in the same statute. Salaried, that’s for hourly employees. Salaried employees also have a minimum salary that you must give that employee so that they can, can have the exemption of exempt status. Okay? Yep. And we’ve talked about this before and we could talk, not I, you know, we don’t have the time to dive into this, but for this to go up to, in many states, any exempt employee the expected raise to this will be 50,000.

Right? And this hasn’t been raised, oh, Mike, I wanna say at least in 10 years, right? You could have a manager at McDonald’s making $40,000 a year. That is an exempt employee. And now you, you need to raise them to 50. When, when, and if this passes, and I believe it will, cuz it’s, you know, long in the coming Right? And many states like New York and California and, and, you know, wash state of Washington already raised this minimum salary. Yeah. But a lot of employers don’t even realize there’s a minimum salary you have to give somebody Yeah. To say that they’re exempt and, and it causes compression. So knowing this is coming down the line, you need to prep for this. Just like when there’s an increase in minimum wage.

VANNOY:

Mayor, you, so we, we talked a lot about this in the webinar before I, I let, let’s spend two more minutes on it because this is, this is huge. So a lot of times I think employers rather innocently think, okay, they got a threshold. So let’s say, you know, just easy math, you know 10, you know, 7 85 or whatever federal, maybe locally, they’re a $10 minimum wage. So that’s 400 bucks a week, right? For, for 40 hour a week. And sometimes there’s overtime and that’s fine, but generally it’s 40 hours. Maybe I got a manager who maybe, maybe the hours are a little bit lumpy, right? So they need to work a few extra hours, sometimes a little under 40 sometimes. So there’s this mentality that’s not legal, but a a an innocent mentality of I’m just gonna make them salary to even out their, their, their pay, right?

And so you have exempt employees who are paid salary and it’s really not that much more than say their hourly employees. And then you’ve got salary people up on the, the tiers here. And now all of a sudden your floor of salary is gonna all of a sudden shoot up to 50,000. You could have your most entry level salary, your lowest compensated, exempt workers making more. I mean, you couldn’t make less, but you’re gonna compress all that. And they’re, they’re compensation may be the same as some of your more senior people. It’s gonna be a nightmare. Right? Right.

SIMMONS:

Right. And so, well, I don’t like to exaggerate, let’s not scare people, Mike, but <laugh>, this webinar is all about prep, right? Yes. This, you have to look at your exempt salaries right. And see where they are. Right? Is everybody above 50,000? You’re fine. Do you have a lot below 50,000? Now you have to think about if this passes you have to make them 50,000 or make them non-exempt, right? Yeah. and again, you need to discuss this with a professional, right. Because the way that you explain it to the employee is important. And don’t forget, if they’re non-exempt, they get time and a half. So they get overtime over 40 hours. So that might change your decision not to give them the raise to 50,000. You gotta do the math.

VANNOY:

Yeah, that’s right. That’s right. And,

SIMMONS:

And do what’s right.

VANNOY:

I’m not trying to scare people. I think cuz the average employer <laugh>, this won’t be a big deal the way there is. Yeah. You know, if I employ Yeah. You know, fairly highly compensated people. And I, there’s really not many people below 50, 60,000 on salary. This is kind of a non-issue, but there’s a lot of, I’ll say business to consumer oriented companies. Retail as, as an example,

SIMMONS:

Food service. Yes, definitely.

VANNOY:

You’re gonna have a lot of salaries in this range. And just don’t wait. Start examining your salaries, how you compensate people and your compensation strategy now so that it’s not just some all at once reaction, the law passes now you gotta implement these changes overnight. You have some time to really think about this. You, you may or may not have some tough choices to make. Yeah. But at least you’re playing from your toes, not your heels.

SIMMONS:

Right. Right. Good analogy.

VANNOY:

Okay. Anything else on what we think is an inevitability to salaries, salary raise to f LSA before we move on, Mary?

SIMMONS:

No, no. They’ve been talking about this for years, so I really think this is the year, but no promises.

VANNOY:

Yeah, right. Okay. topic 10 more covid laws, states of emergency are expiring. Now this is state by state, county by county, city by city. Right. there’s a yes, a bunch of people saying Covid laws. I thought this was, this is long gone. There’s

SIMMONS:

Know lots of,

VANNOY:

I know there’s lots of places that are absolutely under Covid laws right now, still. Right? So you know, California Ocean just approved replacement. Ets help, help everybody to understand how to think about covid laws restrictions and these, what, what most of these states refer to as state of emergency regulations.

SIMMONS:

Right? So, you know, listen, I feel the same, same way. You know, that a lot of people do. Oh, oh, I kind of thought this was over. Like, isn’t it gonna be over yet? But so the reason that I included this, Mike, is because it’s not in every state. So I wanted to make sure that everybody was still thinking about this. You know, we just had the holidays. You, you have up, you know, a surge after holidays very often. So most states, the orders for covid have expired. But California supplemental paid leave for covid you know, did expire. But then it still is in effect for Oakland, long Beach, Los Angeles, San Francisco. Right? and then the state of emergency will end at the end of February. Right? So we’re not that far off, but it, they’re still lingering.

So what I don’t want employers to do is to not look at this, not ask a professional about this. If they have an employee come forward and say that they have c d is there a leave that they should be taking? Right? and some of the states are very silent on it. So some don’t have expiration dates. So you really, really, really need to dig into it. Colorado, Georgia, Illinois Delaware, Kansas, Rhode Island, Texas, you know, rather than reading all this, you know, they expire at the, in like a week, but there’s a lot of other states out there, right? So what I really, really, really want everybody to do, before you tell somebody who has covid right now, just take p t o, please research it. Please reach out to my team and ask us so that we can research it for you. Because as in everything, the states are different and the municipalities are different, right? And, and, you know, there’s definitely a lot of lawsuits always have been on this topic. So I want you to be careful.

VANNOY:

Yeah. And, and just, and think of an example. Your employee gets covid. You’re thinking, okay, you know what, I’m, I’m, I’m not a, you know, I, I, I, I I believe in being safe in protection here. You know, and they check out the CDC d website and they they follow tho the, to, to, to the letter here. You might be thinking you’re doing the right thing because you’re quarantining you’re doing, and I think today on the CBC side, it says five days still. I know it’s practiced, you know, it’s all over the board. We, we should say right? State by state, local by local. But depending where you live, there may be laws, not c c guidance laws that require, whether it’s paid leave, unpaid leave, leave types. There are still laws on the books in, in some places that, that dictate how you must behave here. So don’t just think, oh, it’s over. I don’t have to deal with this. Everyone’s over it. Or go the other way and say, Hey, I’m just gonna file a C guy and I’m gonna follow the science. Those are all good things, but follow the darn law. That’s, that’s what you have to do as an employer here,

SIMMONS:

Right? Right. Absolutely.

VANNOY:

Okay. let’s spend some time on this next one. I, I, I think this, this is a, there’s a real trend and, and I’ll say a couple, I think it’s gonna be our next two topics. Number 11 pregnant Workers’ Fairness Act. But then there’s also a follow on around all kinds of potential laws that we gotta watch around lactation in nursing mothers. But, but let, let, let’s stick with pregnant worker. The, what is the Pregnant Workers’ Fairness Act?

SIMMONS:

So, you know, this, this one kind of is a little perplexing to me because they slid it in at the end of the year to the appropriations bill. It did get passed. It’s a federal law. But it, it mirrors the E E O C pregnancy discrimination policies and many state policies. The, the, I really didn’t see anything all that different from what we already have under the Equal Employment Opportunity Commission. Pregnancy discrimination. And remember that when we talk about discrimination in any respect, and in, and here we’re talking about pregnancy. This is in from when you place an ad all through employment. So what we forget about a lot of times is the woman who comes for an interview and they’re pregnant and on the face, you cannot say, no, I can’t hire you because be just because you’re pregnant.

Right? And that would take another hour to go into detail there. But on the face, I’m sure everybody understands what I’m saying. So this is, you know, giving additional protections for pregnant woman women, and also for lactation accommodations. So that is definitely something that it, it’s been around, it’s very similar to the E E O C, the current policy. But I think what everybody should get out of this is they’re sitting up and looking, which means that their ears are very open to listening to Yeah. Litigation on pregnancy and lactation claims. So employers need to educate themselves very quickly. You need to update your handbook and you really have to train your managers. Super important for your managers. You know, if, if, if you’re utilizing our services, we’re gonna do the heavy lifting. But if the manager’s talking to a woman who’s pregnant, they need to understand what can they say? Well, can’t they say, when should they say, go talk to Mary <laugh>? Yeah. Et cetera. It, you know, the training is just su very important.

VANNOY:

So, so basically the law, the Pregnant Workers Fairness Act, that’s new, but incrementally, you, you believe it provides essentially the same protections. We already had employees had imprint women had under E O C, right? So, so Correct. Audience should not misunderstand, Hey, this isn’t a big deal cuz this isn’t anything new. This is still a huge deal because you always had to follow the E O C. So maybe just a, a a a 32nd primer on E E O C. This is just carving out the same protections under a very specific name.

SIMMONS:

Right. You know what, let me give you an example. Yeah. So we had an employer happen to be a bank, and I’m sure everybody can picture when you go to the bank I don’t think anybody does anymore, cuz you just go to the atm, but you go to a bank, right? And you, the tellers are behind the windows usually, right? So one of the tellers was pregnant and she said, gee, could I have a stool? I just wanna sit. And they’re like, no, we don’t sit, we don’t, no, we don’t think that shows good customer service if you’re just sitting behind the teller line. No. Now when I tell this, I know you, you know, people listening are like, that’s appalling, that’s horrible. But the employer just didn’t understand the law. Right? We always need to make a reasonable accommodation you for disabilities. But not everybody realizes, you know, the pregnancy is a disability and, you know, something small like that.

Or another instance that we had was, you know, the woman who was pregnant said, gee, I, you know, I know I get my half hour lunch, but can I just go in the back and grab like a little snack, like have another like 10 minute break because, you know, I get a little dizzy. And that was denied. Right? the big one of course is the woman comes and they’re like, yeah, I’m pregnant. I’m doing a month. And they’re like, well, I’m not hiring you. You’re pregnant. Come back after you have the baby. So, you know, education, understanding the law you know, not discriminating based on the protected classes and pregnancy as a protected class.

VANNOY:

Yeah. Yeah. So it’s always been protected, but I, but I, I, I think you’re right. The fact that they created the new law, that he essentially just says the same thing, the Pregnant Workers Fairness Act, that, that that should be a red flag to everyone. That this is gonna be something that the, the federal agencies are gonna be on the lookout for. And by the way, is this Department of Justice, is this the d OJ who’s the enforcement parties here?

SIMMONS:

You know what, Mike? I don’t have the answer to that. Well, it’s the E E O C.

VANNOY:

It’s, yeah. Yeah. It’s, there you go. It’s the E O C and, and privately in court. So, right. Yeah. So, so E O C still enforces, but the fact that a new law exists with that very specific name should, should be a signal to everybody that, hey, this is an area that they’re gonna be looking out specifically for. So,

SIMMONS:

Right,

VANNOY:

Right. Right. So that is a law that did pass. What are you seeing as potential changes in 2023 around lactation in nursing mothers?

SIMMONS:

So there’s been a lot of laws passed, right? So break time for nursing Mothers law was passed in 2010. And that was a federal law. And then Pump for Nursing Mothers Act was also signed into law in 2022. Basically the short of those laws is that you have to give a nursing mother time off to nurse in addition to their lunch break. Right? So you can’t make them do it on their lunch break. And depending, and some basic guidance on how long that, that break is, it should be a paid break where that break can be. And then the states have dug in and some of the states will carve out their own nursing mother-in-law like New York, which is very specific. Like there should be a separate room that’s private, right? So, you know, blinds on the windows able to lock the door, not the restroom, a stool and a refrigerator.

So it becomes very, very specific. Now, I deal with employers all the time. We had a restaurant and they were like Mary, there’s no office. I’m like, the manager doesn’t have an office. And they’re like, well, yeah, but I said, then that’s the room they use. They’re not using the ladies’ room, which happens to be the restroom that all the customers use too. How’s that gonna work, <laugh>? Yeah. Right. You know, so I believe, and, and you know, the states have in the works that there will be even more lactation laws being passed in 2023 that are, you know, as strict as New York. And you know, what I’m just prepping employers for is that, you know, this is something serious that you need to think about. And you know, Mike, a lot of times I’ll do a handbook, let’s say for a construction company.

And they’re like, Mary, I have 1, 2, 3 females here. They’re in the office and they’re, you know, over 50. I don’t think they’re having children. You still have to have a policy in your handbook, I’m gonna tell you. Right. So if it’s a policy that has to be given to employees, put it in your handbook. It, it doesn’t cost you any more for me to put it in your handbook. Yeah. just put it in your handbook. Cuz tomorrow, you know, you could hire somebody that this applies to. Are you gonna remember to update the handbook? I doubt. Right? Right. So, and

VANNOY:

Remember the purpose of the handbook, the handbook is not your orientation. It’s not the PowerPoint you take people through to give ’em the warms and warm fuzzies of employment. It’s, it’s a, it, it, it is an expectation setting document. So I don’t wanna say it’s all legalistic, but it is very, very much there to protect both the employee and you, the employer to make sure you’ve communicated the laws as they exist. And it is updated as they, as the laws get updated. Right. You so just cause that’s not the warm fuzzys and you think, oh, this doesn’t apply to me right now, don’t, don’t be foolish. And, and, and leave it out, include it. Cause you never know what, what, what person’s gonna quit tomorrow and the person’s gonna hire to replace them the next day. Right?

SIMMONS:

That’s right. That’s right. Absolutely. And then just one last thing before we talk about, you know, how you can prepare yourself for, for all these laws coming down, there’s a lot of scrutiny on non-competes. So there’s a lot of states that that’s already you know, don’t look favorably on non-competes, right? So a non-compete, a lot of times it’s for a salesperson an employer will have them sign a non-compete that says for 60 days or six months or a year, you know, you can’t go after, you know, clients in this radius, you know, the clients that you used to work with. And what the DOJ is saying is, listen excuse me. The d o l the Department of Labor is saying is you gotta give people the opportunity to make a living, right? So if you, whether you terminated them or they resigned, they have to be able to make a living and non-compete, stop that individual right? From making a living. They’re a salesperson. If they can’t sell in a certain region, how they gonna make a living without short of, of moving or commuting four or five hours a day. So,

VANNOY:

And, and the more you, there hasn’t been, whether it’s a salesperson or anything, you develop a skill, you develop a Rolodex of customers, maybe based on the industry or geography, you develop a certain skill and a vocabulary and an experience set around products and services. It’s like the more, the further along you go in your career, the more restrictive any non-compete would be. Like if you’re, if first year out, first year outta school, first job, I can switch from this industry to that geography and there’s no pain. But if you’ve been in the same industry for the working for the same two or three companies for the last 15, 20 years, I mean, I, you’re, you’re, you’re, you’re messing with my family at this point. If you say, I can’t go to work for anybody else in the industry, right?

SIMMONS:

That’s right. So look, what what I would say here is, you know, you don’t have to stop doing non-competes. You’re gonna do a little bit better if you make ’em a little less restrictive. Certain states, California and New York yeah, Colorado, Washington, you’re really under a lot of scrutiny, right? When it comes to the non-compete. But what I try to do with employers is say, okay, why do we want this non-compete? Obviously we don’t wanna lose clients, but what are the other things, right? So you can non-solicit are, are okay when you talk about, you know, don’t take our other, you know, salespeople or other, you know, staff, you know, from our organization, non-disparagement, I always encourage, right? So you don’t want them going to your competitor and saying, whoa, X y, z company that I used to work with was terrible. Right?

So, so those, you know, aren’t under quite as much scrutiny, right? Yeah. but, you know, think about why you want these agreements and can you get the same result in a different way, right? And, you know, there’s a lot that you wanna think about, right? You know, salespeople do they go, you know, they resign. You probably want them out and their, their computer shut down right away, so they’re not pulling, you know, confidential information, right? So there’s a lot that I want, you know, everybody listening to think about and be prepared. It’s under scrutiny, you know, they haven’t said there’s no such thing and they won’t hold up in courts. But I can tell you right now as it exists, they don’t hold up very often in a court. Yeah.

VANNOY:

Yeah. And, and the trend just continues to lean more and more over time to the employee, not the employer here. So, all right, Mary, let’s,

SIMMONS:

Let’s go absolutely.

VANNOY:

12 topics over, over two, two weeks here. Topic number 13, what should employers do about it?

SIMMONS:

So to prep, look, we’re looking at your handbook every single year. And if you’re not working with Asurere Consulting, you need to do that. Please have a professional help you, happy to, to move in there, right? But the handbook has to be updated. There is some federal changes that need to be done. So that handbook regardless, should be looked at every year. It might be something internal that you, that you wanna change. You also should conduct an HR assessment. So look, we can’t audit

VANNOY:

Ourselves. Can can I stop you for a second, Mary? I wanna stop on handbook. Google is not sufficient. And <laugh>, and, and, and Google may get you maybe just through your own business experience and your knowledge in Google, you can get the federal laws. But we talk about this almost every single week. What used to be a handful of big federal laws is exponentially growing into federal, state, and local versions of the same law, right? So one federal minimum wage 50 different state minimum wages, and there are a few hundred now local minimum wage laws. This is becoming exponentially more complex. Google doesn’t know how to search, there’s no, there’s no source of truth for Google to rely upon, and therefore you can’t rely upon Google as fantastic as it is. You need to have a source of truth, an authoritative to update your handbooks every single year. That’s o off my soapbox. Go ahead.

SIMMONS:

Right, right. And interpret it and make it, you know, culturally sound, et cetera. So as I was saying, the HR assessment, you can’t audit yourself, right? Does, doesn’t really work. Cuz you wouldn’t have done it wrong the first time, right? Yeah. so we like to do HR assessments for our clients and look at their documents, everything from their ads all the way through termination letters and everything in between. Helping with, you know, what, what do we need to change based on some of these legal updates? You know, what has changed in the organization that needs to be reflected in those documents, et cetera. Making sure that number one, they help streamline your HR function that they are compliant, right? And that they are a, a document that is helpful, right? It’s not just busy work. We’re not asking employees or managers to fill out, you know, two forms that, that give us the same information. Like, like my doctor’s office, I’m like, didn’t I just give you my name and address 20 times? Yeah. You really don’t want that, right? It’s, it’s inefficient to say the least.

VANNOY:

Yes.

SIMMONS:

So I, I love those audits. And then, you know, in addition, I would take a deeper dive. Listen, if you do nothing else, a pay equity or a pay audit should be done. Yes. And you’re gonna really look for two main things. Who’s it, who do you have classified as exempt? Are they meeting the salary minimum right now? And if that federal law change comes in and it goes up to 50,000 how close are they to that? Right? And even if they’re only making, if they’re making 52 mike, but they’ve been with you for 10 years, the next manager you hire has to come in at 50. So you may wanna think about using some of that e r TC money and giving some raises to some of those managers that are close to that 50 mark that’s in That’s right. In anticipation of, of, of that happening. Then because it’s

VANNOY:

Illegal to get to prevent employees from talking to each other about how much they make, they’re gonna find out

SIMMONS:

That’s right. That’s right. That’s a condition of employment. Yeah. So the other thing that I want employers to look at, of course, is pay equity, right? If Mike and I were in the same exact position with the same exact, you know, similar experience, never be exact, but similar experience in education, we should be paid the same. It should be equitable. And if it’s not, changes have to be made. And by the way, you are not decreasing pay of Mike. You’re increasing Mary’s pay. Okay? Very important that, that everybody, you know, realizes that I would also do an I nine audit. I can tell you that Homeland Security hired in additional 10 to 20,000 more auditors. So I believe that they will be out in force. I said that last year and I really thought I was gonna be right, but who thought the pandemic would drag its heels and not get the heck out of here? So it didn’t quite come to fruition. So I believe this year they need the money. They’re coming, they’re doing some audits. So do an I nine audit be prepared. I would also,

VANNOY:

Also, this is one that we, we had a previous webinar that was surprising to me how simple this could be. Because it’s, it’s, it’s, you’re not talking about the Department of Labor, I don’t think is coming. This is Homeland Security for I nines. And you don’t ha, it’s not like Pandora’s Box gets open to all your HR records. You’d literally have a, have a binder, a folder, some electronic or paper that here’s all my I nines, so that when an officer comes in to look thumb through, look, look through it. Oh, yes, you’re compliant. It really can be that easy. But if you don’t audit it and have that documentation at the ready, that’s how you get in trouble. Right?

SIMMONS:

Agreed. Agreed. And I, you know, there’s a lot of turmoil this year for sure. Inflation’s through the roof, do some stay interviews with your employees, and I would recommend you, you know, you start with your best performers, but do it across the board. What do you like about working here? What suggestions do you have for us to make it a better place to work? Do some employee surveys asking those questions, because sometimes employees are, feel a little more comfortable doing it. You know, co you know, confidentially and giving you that information, right? Look at your remote hybrid slash in office schedule. I will tell you, it is the hottest button for your millennials and your Jay-Z’s who are the biggest generations in the workforce. Look, it’s, it’s important for everybody. If, if somebody was home for two years doing a great job to bring them back into the office full-time, may be the trigger they need to go look for another job. So think about what’s the best schedule for your business, right? So that’s, you know, your number one goal is to grow your business, and we’re here to help with that. But also think about what’s going to attract the right candidates and retain the people that I have. How can I make this work to everybody’s advantage? Hybrid’s probably the answer there, but what, you know, enumeration of hybrid you do depends on a lot of factors that are, you know, specific to your organization.

VANNOY:

I might script number, but a lot to do, get Gallup polls. I wanna say the sample size is over a million workers every year. That’s around employee engagement. How, how engaged they’re with their, with their employer, and do they work in an office? Do they work from home? Do they have a, a hybrid between? And the data is crystal clear. It has been every year for a long time in this, in this annual survey from Gallup that people who are full-time in an office full-time virtual are equally disengaged. The most engaged employees have flexibility that just aligns to the modern life. So there’s a you know, have good policies, have ’em in a handbook component. There’s also the fact that if you want highly productive employees, you don’t, you don’t have much choice. Now, there’s some jobs that require you, if you’re running a lathe a CNC machine, you know, you gotta be in the workshop, right? If you’re, if you’re working retail, absolutely. And serving, if you’re a barista, you gotta be in, in the, in the cafe. But for any job that you can be flexible, you’re crazy not to at least give it a hard look, right? For productivity and just the talent pool that opens up to you. So

SIMMONS:

Topic, right? Don’t bring them back just to bring them back. That’s, that’s, that’s the bottom line. Don’t say you have to come into the office just because it, it, you know, that’s not an answer. <Laugh>, that’s not a positive. Look

VANNOY:

Here, here, here’s what I’ll say. Maybe, maybe in closing. So really do, do my very best in this show to just bring the very best information, whether it’s interviewing Mary or Brian Schenker from Jackson Lewis. Our, our, our, the law firm we partner with for HR compliance or any of the authors and podcasters and thought leaders that, that we bring in. It’s always just to bring the best information. And we don’t turn these into a big infomercial. A a, a plug make a plug for Mary here. Her and her team are pretty amazing. In, in, they work with small businesses just like our audience here. They know the laws inside and out, but they’re practical. They’re not gonna just put together some super legalistic HR process that doesn’t have to live in the real world where you manage real life employees and, and have to hire in the real world. They can be a serious partner. And because we do this in a fractional virtual kind of a way in leverage technology, we can do this pen for pennies on the dollars compared to what you could ever hire a SHRM certified HR professional in-house. So plug to you and your team, Mary, you, you, you really do. Thanks. You help people out every day. It’s appreciated.

SIMMONS:

We love what we do. We really do.

VANNOY:

Yeah. Amen. Thank you. Okay. With that, Mary, thanks so much. Always love talking to you. And thanks to everybody else for joining today. Thank you. Until next week, we’ll talk to you later. Thanks.

Speaker 1:

At Asure, we build human capital management software and services that help 90,000 companies like yours attract, develop, and retain great people. Our low upfront cost and affordable subscription model allow you to save cash to invest in things that drive growth not overhead. To learn more about how ashore can help you claim up to $26,000 per employee with the employee retention tax credit. Automate your payroll and build productive teams that are compliant with ever-changing HR laws. Visit Asuresoftware.com.