Post: Mar. 6, 2019
When Johnnieanne Hansen began her role as Director of Workforce Development and Apprentice Coordinator for the Council of Industry her first priority was to recruit companies to participate in the newly formed Intermediary Apprentice Program. Her first order of business was to visit with member CEO’s and HR professionals to pitch the idea. What she heard from them, while not completely surprising, did raise some alarm bells in her head and prompted her to rethink her priorities.
“They loved the apprentice idea, they really did. They recognized that it was one solution to finding the skilled workers they needed.” Ms. Hansen remembers. “But they also said that they did not have the time to think about apprentices or to take on a project like that because they ‘need people now!’ So unless I was walking in with people on my shoulders for them to hire, they had more pressing recruiting problems.”
She prodded them further about how they were recruiting and where they were finding candidates. As she did so an idea began take shape in her mind that these small and mid-sized manufacturers, all different, yet all a little alike, could pool their resources to market careers with Hudson Valley manufacturers and develop a system to organize and manage candidates.
Thus, in March of 2018 the Collaborative Recruiting Initiative was hatched.
“In my previous positions as a recruiter and corporate trainer I had done some research into Applicant Tracking Systems. It occurred to me that the Council could purchase a subscription and make the service available to participating members.” Hansen said. “Hiring managers get a system where they can post jobs, sort and track candidates and get other resources and support throughout the hiring process. Posted jobs are distributed to over 100 job boards like: Indeed, Hotjobs, Monster, Zip Recruiter, LinkedIn and Glassdoor.”
Additionally, all the jobs are listed in one place www.HVMfgJobs.com and a social media marketing campaign is in place to encourage people to visit the site. The campaign is designed to target individuals most likely to be interested in careers in manufacturing.
“We thought that this might be a valuable tool for our members. A way to give them some resources that are otherwise not accessible to them, or at least cost probative.” Hansen added.
The program launched in March 2018 with 10 companies posting about 25 jobs. Today 29 participating companies keep roughly 100 jobs posted at any point in time at www.HVMfgJobs.com. There have been more than 100 positions filled in that time from nearly 5,000 applicants.
“It’s working.” Says Hansen. “Of course it could be better.” She suggests that more could be done to take advantage of the applicant pool and that marketing the positions and Hudson Valley Manufacturing, in general, could be stronger. “Every additional company that participates, every additional job that gets posted makes the program stronger,” Hansen said. “We’re good, it’s solid and it will be even better in 12 more months.”
All Council members are welcome to participate in the Collaborative Recruiting Program and its new pricing model will make it easier for any firm to participate. If you want to learn more visit https://careers.councilofindustry.org/manufacturing or email Johnnieanne Hansen at jhansen@councilofindustry.org
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From Bond, Schoeneck & King PLLC, Council of Industry Associate Member
By Theresa E. Rusnak
Employers who provide sick leave and vacation leave time may also have a policy or practice of allowing employees to “sell back” accrued, unused time. Under these “buy-back” programs, the employer will, for a select time period, pay employees for their unused time, in addition to any actual work performed by the employee in that workweek. This then raises the question: do these payments for sick and vacation time have to be counted as part of the employee’s “regular rate” for purposes of computing overtime due during the workweeks in which that time is paid out to the employee?
The U.S. Department of Labor takes the position that under the Fair Labor Standards Act, paid out vacation time does not become part of the regular rate, but paid out sick time does. Under 29 C.F.R. 778.219(a), if an employee “is entitled to a certain sum as holiday or vacation pay, whether he works or not, and receives pay at his customary rate (or higher) in addition for each hour that he works on the holiday or vacation day, the certain sum allocable to holiday or vacation pay is still to be excluded from the regular rate.” Despite this regulation applying to vacation and holiday time buy-back pay, the USDOL takes an opposite view regarding sick leave buy-backs. In 2009, the USDOL released an opinion letter explaining that it viewed sick time buy-back pay as a non-discretionary bonus because of its link to attendance. According to the USDOL, sick leave buy-backs encourage employees “not to use or abuse sick leave, resulting in reduced absenteeism.” Therefore, like attendance bonuses, sick leave buy-back pay must be treated as a non-discretionary bonus and must be included in the regular rate.
Three federal appellate courts have ruled on this issue: the Sixth, Eighth, and Tenth Circuit Courts of Appeals. While the Courts have agreed with the USDOL regarding the exclusion of holiday and vacation leave buy-back pay from the regular rate calculation, they have split on the same issue when it comes to sick leave. The Sixth Circuit, in Featsent v. City of Youngstown, found that the payments for unused sick time could be excluded from the regular rate, solely because these are payments for periods of time during which no work is performed. The Eighth and Tenth Circuits, on the other hand, have agreed with the USDOL and held that sick leave buy-back pay must be calculated into the regular rate. The Tenth Circuit, in Chavez v. City of Albuquerque, found:
The key difference [between sick leave and vacation/holiday leave] lies in the way in which each type of day off operates. A sick day is usually unscheduled or unexpected, and is a burden because the employer must find last minute coverage for the sick employee. In contrast, vacation days are usually scheduled in advance, so their use does not burden the employer in the way that unscheduled absences do. An employee has a duty not to abuse sick days, whereas there is no corresponding duty not to use vacation days. Buying back sick days rewards an employee for consistent and scheduled attendance . . . thus sick leave buy-backs are compensation for additional service or value received by the employer, and are analogous to attendance bonuses.
When sick leave and vacation leave are combined into one “bank” from which days can be bought back, at least one federal court has held that this time is discretionary, and does not need to be counted towards the regular rate. This decision, however, is by no means universally applicable, and it remains an open question as to how other courts would treat this issue.
Read the full article here
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From Jackson Lewis PC, Council of Industry Associate Member
By Michelle E. Phillips, Richard I. Greenberg and Christopher M. Repole
GENDA Enacted in New York State
The new NYCHRL rules follow New York State’s enactment of GENDA, which adds “gender identity or expression” as protected categories in the New York State Human Rights Law (NYSHRL). The NYSHRL now defines “gender identity or expression” as “a person’s actual or perceived gender-related identity, appearance, behavior, expression, or other gender-based characteristic regardless of the sex assigned to that person at birth, including but not limited to the status of being transgender.” Under existing protections in the NYSHRL, employers found liable for discrimination may be responsible for back pay and compensatory damages.
Next Steps for Employers
Taken together, these changes in City and State law provide robust protections against discrimination based on gender identity or gender expression. Employers should consider the following to avoid liability under the new rules:
Read the full article here
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From Bond, Schoeneck & King PLLC, Council of Industry Associate Member
By: Nicholas P. Jacobson
On January 25, 2019, the National Labor Relations Board issued a decision clarifying the test for determining whether workers are independent contractors or employees. In SuperShuttle DFW, Inc., the Board reversed its 2014 decision in FedEx Home Delivery where it revised the traditional common-law test for determining whether workers are employees or independent contractors. Prior to 2014, the test analyzed whether common-law factors set forth by the Supreme Court showed that the workers had significant entrepreneurial opportunity for gain or loss.
The Board in FedEx held that entrepreneurial opportunity was part of a broader factor in weighing all of the traditional common-law factors pertinent to whether the worker was “rendering services as part of an independent business.” In addition to considering whether a worker has significant entrepreneurial opportunity, the Board held that it would also consider whether the worker “(a) has a realistic ability to work for other companies; (b) has proprietary or ownership interest in her work; and (c) has control over important business decisions such as the scheduling of performance; the hiring, selection and assignment of employees; the purchase and use of equipment; and the commitment of capital.” The Board ultimately found that the workers at issue were employees and not independent contractors.
On appeal, the D.C. Circuit Court of Appeals vacated the Board’s order and denied its application for enforcement. In doing so, the D.C. Circuit held that the Board did not have the “breathing room” to formulate a new legal test. The D.C. Circuit re-emphasized that the common-law test developed by the Supreme Court should be applied to determine whether the workers had significant entrepreneurial opportunity.
Through its decision in SuperShuttle, the NLRB rejected its “independent business” test and agreed with the D.C. Circuit that the common-law factors articulated by the Supreme Court should be applied to determine whether workers have sufficient entrepreneurial opportunity for gain or loss so as to be independent contractors, or whether employer control renders them employees. The factors to be examined include: (a) the extent of control the employer may exercise over the work; (b) whether or not the worker is engaged in a distinct occupation or business; (c) whether the kind of occupation is usually done under the direction of an employer or by a specialist without supervision; (d) the skill required in the particular occupation; (e) whether the instrumentalities, tools, and place of work are supplied by the employer or the worker; (f) the length of time the worker is employed; (g) the method of payment, whether by time or by the job; (h) whether or not the work is part of the regular business of the employer; (i) whether or not the parties believe they are creating an employer-employee relationship; and (j) whether the principal is or is not in business.
Read the full article here
Post: Mar. 5, 2019
From Jackson Lewis PC, Council of Industry Associate Members
By Jonathan L. Bing, Lisa M. Marrello, Jeffrey W. Brecher, Richard I. Greenberg and Thomas Buchan
The New York State Department of Labor (NYSDOL) is no longer pursuing regulations on “call-in pay,” or predictive scheduling, that would affect most New York employers.
The regulations would have required employers, among other things, to provide call-in pay (ranging from two to four hours at the minimum wage) if:
- Employers do not provide non-exempt employees 14 days’ advance notice of their work shift;
- Employers cancel employee shifts without at least 14 days’ advance notice;
- Employers require employees to work “on-call”; or
- Employers require non-exempt employees to report to work but then send them home.
(For more on the proposal, see our article, New York State Department of Labor Issues Revised Proposed ‘Predictive Scheduling’ Regulations.)
After a round of revisions that included several exemptions to the regulations, the NYSDOL has decided to allow the proposed regulations to expire. This development is a relief for employers who would have lost flexibility in scheduling employees and responding to customers’ needs. The proposal also could have had the effect of restricting employers’ willingness to grant employees’ requests for modifications to their schedules or shifts, as doing so might also trigger penalties to employees asked to cover such shifts. The NYSDOL will leave employee scheduling to be determined by employees and employers, at least for now.
Read the full article
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By Skip Weisman, Workplace Communication Expert, Professional Speaker, Coach
In the 2013 book, “The Enthusiastic Employee,” Sirota Survey Intelligence reported that after extensive research with “8.6 million employees in 412 private, public, and not-for-profit organizations in 160 countries…we find declines in [employee] morale in 9 out of 10 companies after the ‘honeymoon’ period.”
The next line in the book is even more important “It is not just that the novelty wears off; the decline – and its deleterious impact on performance – is a consequence of management practice.”
If employees are not showing up on the job with the right attitude, right motivation, or the right work ethic, it’s not their fault. It is management’s.
Either you hired the wrong person or you hired the right person that has been influenced by an already tarnished work environment.
“For the first 15 years of my tenure if someone had the right technical skills and the right work ethic but they were a curmudgeon, we would look the other way,” said Steve Pomeroy, President of Schatz Bearing in Poughkeepsie.
With unemployment at record lows and with younger generations less inclined toward manufacturing jobs, finding qualified team members is more challenging than ever. For that reason it may be tempting to do what Pomeroy did.
But, Pomeroy recommends against it, “If I could turn back the clock I would have invested more in the people side of things and in creating the right culture. When you get the right people they bring ideas to the table so you don’t have to feel like you have to bring people along.”
The question you may be asking is “how do you create that engaged workforce that contributes ideas to the company and is motivated beyond the job they’re being paid for?”
Surprisingly, the answer is simple.
You ask.
By asking you give your people the one thing that they, and most human beings crave more than anything, even more than more money in their paycheck.
Autonomy!
There are various levels of autonomy in a manufacturing environment and you should look to provide it in as many ways as possible, such as how, when, where and with whom people do their job. Plus, the more input you allow them to provide into the operation the more your people will feel they have autonomy over how things are done.
As soon as you ask the right question you will begin transforming your culture from one that is stagnant to one that is standout.
What is that right question?
Very simply this, “what is getting in your way of doing an even better job?”
The skeptics reading this are going to say the answer will always be “more money.”
That won’t happen as much as you think. Overwhelming research shows that if you are paying a fair, competitive wage with reasonable benefits, money is not the problem.
Research continues to show that employees don’t leave companies they leave their managers. They also leave the work environments those managers create.
The first step in changing your culture is to ask that question. It will instantly show your people that something is different and you want their input.
This will do three things:
- For the ones with the right attitude they will embrace it and immediately look for ways to improve the company;
- For the ones that don’t yet have the right attitude, it will provide an outlet to express their need and frustrations allowing you to begin working with them to develop the right attitude, or
- You will learn quickly who is unable to make the transition to a team player with the right attitudes and you can look to make changes.
The key is setting expectations for how people will show up and engage in the work environment.
“Over the last 15 years,” Pomeroy added, “if you don’t have the right attitude to be on our team we’re going to ask you to turn it around, and we’ll work with you, but at the end of the day we’ve walked away from situations where it wasn’t working.
“It was painful in the short term but long-term it shows our people that we’re trying to create the right environment.”
Here’s the 3A Process that will begin to transform your environment into a highly motivated, engaged place to work:
Step 1: Ask the question “what is getting in your way of doing an even better job?” (you can do this privately one-on-one, or in small group sessions)
Step 2: Absorb the answers and evaluate your response to each.
Step 3: Act.
This means responding to each and every suggestion you hear. Do not allow any of the questions to fall into a black hole.
Answer each with one of four responses:
- Yes, we can do this, and we will by (insert date).
- This is a good idea, but the timing isn’t right and here’s why. I give you permission to remind me to look at this again in (insert date/number of months).
- Give me more information and details and lets look at this deeper.
- No, this is not something we’ll ever be able to do and that is because (provide a business case answer with as much transparency as possible).
If you’ve never asked for input, or if you have but people saw their ideas go into a black hole, it will take time for people to open up. Give them that time by continuing to ask and answer whatever comes up.
By working this process you will be giving your team members an opportunity to contribute in ways they never imagined possible, and you’ll get ideas that will truly move your company forward faster than ever.
Skip Weisman is a speaker, author, and business coach working with business owners and their teams to create championship company work environments where employees take ownership of their jobs and help company leaders creating winning workplaces that are more positive, more productive, and even more profitable. Learn more about Skip and his work at www.YourChampionshipCompany.com
