Staffing Issues
Is it more than you knew or bargained for?
By Christine V. Walters, JD, MAS, SHRM-SCP, SPHR
August 2017
You would think it’s easy, right? You have a job available so you run an ad, find a qualified candidate, and hire them. Not so fast! States and local jurisdictions are acting quickly to make your path from creation of a job to staffing it complex, fraught with perils and pitfalls. Here is just a smattering of steps you need to consider along the way.
We have all seen a checklist, read an article, or attended a seminar in which we have reviewed questions that should not be asked in an interview or on a job application. You know them.
1. In what year did you graduate from high school?
2. Do you have any disability that would interfere with your ability to perform the essential functions of this job?
3. Do you have any religious, family, or military obligations that would interfere with your ability to meet our work schedule, including nights and weekends?
4. Is English your primary language?
5. Have you ever been addicted to drugs or alcohol?
Job Ads and Pay Transparency
Some states have proposed legislation requiring employers to publish their pay rate when advertising for a job and prohibiting the payment of a wage lower than the advertised wage. So the employer must be transparent and accurate regarding wages in a job announcement. That may be tricky since the wage paid to any particular employee is often determined within a range and based on a variety of factors. And what are the unintended consequences? If the employer must pay a rate that is no lower than that which was advertised, the employer will likely advertise the lowest wage in its pay range for that job. The lowest possible wage may not attract the most qualified candidates.
Pre-Employment Inquiries and Ban-the-Box
Some clinic owners may want to determine whether a candidate, particularly those who would have direct client care duties or access to client property, valuables, or company assets, has a criminal record. The key here may be in timing. Many states and local jurisdictions have already enacted state or local laws limiting when private sector employers may obtain criminal history information. Some prohibit the inquiry until after conclusion of the first interview, some until after a bona offer of employment has been made; that is, the offer is conditional.
Sign Here: Non-Competes
According to a recent count, 20 percent of US workers are bound by non-compete agreements, including 14 percent of those earning less than $40,000 per year. State laws defining permissible terms of enforceable non-competes are not new. What is new is a trend for states to enact laws and consider pending legislation prohibiting non-competes for certain workers, such as any employee earning below a certain wage or salary. The trend may have started with a food delivery company that required its drivers to sign a non-compete. Headlines decried the inequity of such agreements that barred or restricted low-wage workers from working for local competitors in entry-level jobs that required no particular knowledge, skills, or abilities.
Welcome Aboard; Now Read These
Some state laws require one or more written notices to employees at the time of hire regarding pay day, pay rate, right to reasonable accommodation for pregnancy, right to discuss wages with coworkers, and more.
Fair and Predictive Scheduling
Some states have enacted laws and others have legislation pending that requires covered employers to post work schedules (usually for non-exempt employees) a specified number of days in advance, to give advance notice of a change in the schedule, and in some instances to pay an employee for a portion of a cancelled or modified shift.
Speaking of Pay
In addition to the issue of Pay Transparency, some states have addressed or are trying to address Pay Equity and Secrecy.Pay Equity: The Equal Pay Act was passed in 1963. The law prohibits a covered employer from discriminating on the basis of sex in the payment of wages to employees working within the same “establishment.” But establishment is not defined. The Equal Employment Opportunity Commission’s website reads, “The Equal Pay Act requires that men and women in the same workplace be given equal pay for equal work.” So here we are 54 years later still trying to figure this out and get it right. Current headlines still report alleged violations of the law.
Now states and local jurisdictions are taking action passing laws that might sound duplicative but often expand the law. For example, Maryland enacted a related law last year. In short, it requires equal pay for equal work performed by employees at the same “location.” Location includes any locations of the employer that are in the same county. But US census data and wage surveys show that the number of qualified men and women for the same job varies within the same county as does market-based wage data. So when an employer runs an ad for the same job at each of its two locations in that county, hires a well-qualified candidate, and pays a market-competitive rate—BAM!—it is going to look as if the employer has engaged in pay discrimination.
Pay Secrecy: The National Labor Relations Act (NLRA) gives all non-supervisory employees, union or non-union, the right to discuss their pay with one another. An employer cannot properly tell those employees or imply in a policy that pay is private, secret, or otherwise discourage employees from discussing their pay with one another. Some states are taking this a step further and barring employers from asking an applicant about how much money he or she currently makes. So current compensation is a secret for the employee and about which the employer may not ask. But once hired, pay is not a secret for the employer who is paying it. That employer cannot ask employees to not discuss with one another what the employer pays them.
What’s the Point?
1. Understand the power of why. When considering implementing a new or changing an existing policy, understand the business goal or objective you are trying to achieve. Let business needs drive your business decisions. When I chat with a business owner who wants to start using non-competes, we often find that what they really want is a no-solicitation or non-disclosure agreement. The business does not really care where or for whom any employee works after they leave his or her employ. They just don’t want the employee to solicit or steal any of their existing employees, clients, or prospective clients. Nor do they want the employee to disclose any intellectual property or trade secrets or other confidential information.
2. Know your state’s employment laws and regulations. And don’t forget your local jurisdictions either. Know which apply to your practice and ensure you are in compliance. Work with your company’s legal counsel, the Private Practice Section (PPS) of the American Physical Therapy Association (APTA), state and local chambers of commerce and more to partner and network to stay current and compliant.
3. The devil is in the details. Be sure you read and understand pending legislation before it becomes a law. Consider each bill’s fiscal note and crunch your own numbers; understand the fiscal impact a bill will have on your organization.
4. Advocate. If a proposed law will adversely impact you, advocate! Let your business or HR voice be heard. Visit APTA’s PPS Legislative & Advocacy section on the website for more resources and information.
References
Christine V. Walters, JD, MAS, SHRM-SCP, SPHR, is an independent human resources and employment law consultant for DBA FiveL Company out of Westminster, Maryland. She can be reached at info@FiveL.net.