Navigating the GRAY AREAS of Human Resources

Before the days of GPS or Siri, driving around lost was a not uncommon experience. The map usually was no help; even though it was veined with hundreds of roads and routes, it usually didn't include the most recent half dozen streets and intersections.

As daunting as this was for most of us, the human resources managers of the world likely took these situations in stride. In their line of work, th,ey must navigate the employment rules and regulations (and paperwork requirements) of a veritable alphabet soup of federal agencies. But perhaps more daunting than that is when they must deal with situations where there is no dear rule. For many, it's those gray areas-when there's nothing on the map-that are the most challenging.

Immigrablon Issues

Doug Hass, a labor and employment attorney with the law firm of Franczek Radelet, said a fairly common issue he's been seeing lately revolves around illegal immigration. "Maybe someone's been working for you for a couple of years; and then one day, this person says: 'I have a new Social Security number. The one I gave you before wasn't valid, but this one is,'" he said.

For most HR managers, this scenario is troubling, Hass said, pointing out that many in this position don't know what to do. "The HR person wonders: 'Should I pretend like nothing's happened? Should I fire this person? Should I discipline this person for falsifying documents? Do I need to contact federal authorities?"' he said.

Hass said this is a tricky situation because there is the risk of discrimination charges being brought against the company by the employee depending on how the HR manager handles this. In this case, Hass said the first thing to do is to confirm that the new Social Security number is valid and then update the records and issue new W2 tax forms with the correct number. "Maybe you put a note in this person's file and you move on," Hass said, adding that it's not necessary to make this a federal issue. "You're not the immigration police. Federal law doesn't require you to take action."

Ovenblme Pay

Another area of contention and controversy that Hass said he sees on a regular basis is the issue of overtime pay. "It comes down to who is exempt versus nonexempt for overtime pay," he explained, noting that this problem is fairly common in telcos because they typically have a mix of white collar and blue collar workers.

To sidestep this issue before it even begins, the written job description should precisely spell out work requirements and responsibilities and should clearly say "exempt" or "nonexempt" in terms of overtime pay, Hass said. "That's half the battle right there," he said, adding that these job descriptions should be reviewed on an annual basis. "Technical jobs change over time, and those descriptions can grow stale."

To further lessen the risk of running afoul of the overtime pay rules of the Fair Labor Standard Act (FLSA), Hass said it wouldn't hurt to have an employment lawyer or an HR consultant look over the job descriptions. "Under FLSA, a company can incur larger fines and extra damages for what are deemed 'willful violations,"' he explained. "But if you had a lawyer look over your descriptions and he says they're fine, a court may still disagree, but at least you won't be hit with the extra damages."

Medical Condlblons

Hass said medical issues also have been a hot-potato HR issue since 2008, when Congress changed the definition of "disability" within the Americans With Disability Act. "Anything short of the common cold or a sprained ankle is a disability now," he said. "Just assume everything is a disability and realize that HR will be forced to offer individual accommodation."

Hass said he's been surprised by the enlarged definition of "disability," adding that this makes more work for HR managers. "If someone had cancer but is now in remission, that's a disability," he said. "If someone has an alcohol abuse problem to the point that it's affecting performance, that's considered a medical problem."

Susan Case, human resources manager for Rural Telephone Co. (Glenns Ferry, Idaho), said medical issues are often delicate to handle. "Under HIPAA, health issues are really protected," she explained. "You have to be on the lookout if, in a staff meeting, someone says, 'So-and-so has a neurological disorder so we have to be understanding,"' she said. "Employees often don't mean any harm. They want to be thoughtful; they want to be kind, but they can't mention health issues in staff meetings."

Even supervisors sometimes have to be reminded about the privacy rules surrounding health issues, Case said. "Most HR people are up on HIPAA laws, but it comes down to us educating everyone else that it's unlawful to disclose this type of information," she said.

'Please Do Nobbing'

Throughout her 13 years in human resources. Case said it's been very, very common for an employee to come to her and say that he or she has something to tell in confidence but then ask that no action be taken. "I stop those folks then and there and point out that if their job or the company is involved, it may not be something that I can keep confidential," she said, pointing out that she may have to take action by law. "In the case of harassment, I can't hear about it and do nothing."

Employment lawyer Hass said HR managers should tell employees that they have a duty to act on what they are told. "At the very least, they have a legal obligation to look into this and investigate the claim," he said, noting that employees sometimes request that no action be taken because they fear retaliation. "Use this meeting to review your policy and point out that employees are protected from retaliation. The law protects people who report problems. HR must be an advocate for this person."

As the HR manager, Case said her job is to protect both the employee and the company. "It's a fine line to walk between those two," she said. "Sometimes I ask people to think about it a little longer before they talk to me."

Philip Hayes, vice president of HR services and operations for the Arnold Group, a consulting firm, said that if an HR manager knows about a problem and chooses not to act and not to tell management, this can be a risky move for the company. "The court will say that ignorance is no defense because the managers and owners of a business should know what is going on in their own company," he said. "If it's a case of sexual harassment or a hostile work environment, you can't sit on your hands in those cases. If an employee is being sensitive about a onetime incident, HR can take a different direction."

Sometimes employees merely want to vent about a pet peeve, Case said. "If you're working month after month in close quarters with people, eventually people get on your nerves," she said, adding that she takes these complaints on a case-by-case basis but usually advises the employee to go to his or her co-worker and talk it out. "This almost always works because I don't hear about it again. It's also good because it cuts out office gossip."

Compassion, nob Counseling

Glenn Lovelace, chief executive officer of Peñasco Valley Telephone Cooperative (Artesia, N.M.), said he has urged his HR managers over the years to be compassionate to employees who are going through personal troubles. "At some point for all of us, life gets in the way and affects your job," he said. "Companies should be caring and sensitive and give you a break and accommodate you if there's sickness or death in the family or you're having some sort of issues in your relationship."

But compassion doesn't equal counseling or a confessional, Lovelace said, noting that sometimes employees will divulge immoral or illegal behavior to the HR manager. "Some employees would like nothing more than a daily chat with the HR manager because they know her and feel comfortable with her; but the job of the HR manager is not to provide therapy, and her time can't be taken up discussing these sorts of things," he said. "The HR manager represents the company. She is not your best friend; she is not your priest."

Instead of taking up company time and resources, Lovelace said a good HR manager can steer a troubled employee to professional counseling. "If the HR manager has the nitty-gritty on the home situation in something like a divorce or a battle with alcohol or drugs, she can confidentially point that employee in the right direction," he said.

While even the best employees can suffer in their work from troubles in their personal lives, Lovelace made it clear he has less patience for those who have self-induced problems. "We try to be considerate and kind, but some people are a constant soap opera and will come up with a serial list of why they can't do their jobs," he said. "If this is a permanent lifestyle choice, our message becomes: 'You need to make a change, including your job.' Some things are beyond the realm of HR to navigate."

Rll in bhe Family

While many small telcos and co-ops are family owned and operated, most HR experts noted that being a family member should not impact how an HR problem is handled. "When a company is family owned, there's got to be fortitude on the part of the HR staff," Hass said. "Regardless of who's doing what, treat it like anyone else. Courts aren't going to care if the harassment or discrimi-nation was done by a family member. Everyone's got to follow the same laws and the same rules."

Consultant Hayes pointed out that it's not uncommon for nonfamily employees to believe family members play by different rules. "The perception of favoritism gets magnified," he said, adding that this also comes into play with long-term employees. "Be fair, be consistent, and document everything. These are the three guiding principles to HR."

Rural Telephone is family-owned, but Case said that the family members all behave professionally and do their jobs well. "It would be hard to know who to turn to if they didn't," she said.

Still, Case agreed with the need for documentation, particularly if the HR manager's advice on how to handle an issue was not taken. "Put a note in the file that states that this was the recommendation; this is what was done," she advised. "HR officers themselves-not just the company-can be sued, so your accountability becomes very important." Q

Too Small fon HR

It's not uncommon for telcos and co-ops with very small staffs not to have an in-house human resources manager, but there are still ways to bring in HR expertise. Most HR experts agree that this is a smart move.

"Any time you have employees, you have employee problems and HR issues," Hayes said, adding that even with 10 to 15 employees, companies start running into federal government compliance issues. "OSHA [Occupational Safety and Health Administration] rules start going into effect at 11 employees; at 15 employees. Civil Rights Act rules go into effect. The Patient Protection and Affordable Care Act goes into effect at 50 employees."

For Danny Busche, general manager of Minnesota Valley Telephone Co. (Franklin, Minn.), the threshold number is 25. "Once you hit more than 25 employees, it makes sense to have an HR manager," he said, explaining that his telco operates two offices with four employees at each site.

"The same group of people has been working together for 30 years," Busche said. "We've been to weddings and funerals and births and graduations. Our telco family is like part of our own family. If we had employee issues, it's doubtful that our people would've stayed around as long as they have."

Despite the harmonious work environment, there's still HR work to be done, such as the paperwork necessary for insurance, disability and 401k plans, Busche said, adding that these HR duties fall to him because there is no inhouse HR manager. "It's tedious and it takes up time," he said.

To help with other HR concerns, Busche said he relies on the Education and Safety Department through the Minnesota Telecom Alliance (St. Paul Minn.). "They come in eight to 10 times a year and talk to the staff about * everything from OSHA laws and employment and hiring rules to ergonomics," he said. "In the case of topics like bullying or sexual harassment, it helps to have a trusted third party who everyone feels comfortable talking to come in and give these talks. It would be uncomfortable and awkward for us to discuss these topics on our own."

Employment lawyer Hass pointed out that even if a telco doesn't have an HR manager on staff, it should still spell out in the employee handbook who employees should go to if they are having a problem. "Say two techs have a fight out at a tower site, and the first time the telco even finds out about it is when there's an EEOC [Equal Employment Opportunity Commission] charge or a lawsuit," he said, adding that this scenario is made worse if there's nothing in writing about whom employees should turn to. "That's a real strike against you. But if you've documented that first you go to your supervisor; or if you're having a problem with the supervisor, you go to the board or to the president or general manager-that's a good defense. How can you react to a problem if you weren't even told about it?"

HR Consultant Hayes pointed out that, too often, companies don't seek out HR help until there's a crisis. "Small companies often don't see the need for this until there's a squeaky wheel or until they find themselves waist deep into a problem," he said, noting that HR consultants can still come in and help resolve the situation on an ad hoc basis. "But we also like to be proactive and go in and conduct an HR assessment to show companies what they're doing right and where they need to improve."

HR consultants can act as a virtual HR department, Hayes said. "We can be just a phone call or an email away to act as a sounding board or to offer advice and guidance," he said, adding that this is helpful because HR issues can sometimes be time sensitive.

But if a telco finds itself embroiled in an HR problem that is likely headed to court, an employment lawyer, not a consultant, may be the better fit. For those cases, legal firm LexisNexis Martindale-Hubbell states that the hourly rate for an experienced lawyer in rural areas and small towns typically runs between $100 and $200.

If a small telco doesn't feel it has enough HR work to merit either an HR manager, a consulting firm or a lawyer, Rural Telephone's Case noted that it still wouldn't hurt to have a little HR expertise in-house. "Look around your office for a key person who works with both employees and managers-someone who is professional and confidential," she advised, noting that this could be the person who handles payroll or the executive assistant to the general manager. "Send that person to HR classes. It's risky not to have some HR help."

"The HR person wonders: 'Should I prebend like nothing's happened? Should I fire this person? Should I discipline this person for falsifging documents? Do I need to contact federal authorities?'"

DOUG HASS

FRANCZEK RADELET

The High Pirce of HR

The "2014 Compensation and Benefits Survey" from NTCAThe Rural Broadband Association shows the average annual salaries of human resources workers at small telcos, but those salaries are just a drop in the bucket compared with the high price of a mishandled HR problem.

The latest data from Jury Verdict Research found that the median award for employment-related claims is more than $325,000. Consulting firm Bennett Thrasher estimated that employment liability claims have increased fourfold in the past 20 years. A survey by the Society for Human Resource Management found that more than 60% of all U.S. companies are sued by employees or former employees every year. Of these lawsuits, more than 40% are filed against small companies (defined as 15 to 100 employees).

Any time you have employees, you have employee problems and HR issues. OSHR roles shard yoiny indo effecd ad II employees; ad 15 employees, Civil Riyhds fled rules yo indo effecd. The Pabiend Prodecdion and Affordable Care fled yoes indu effecd ad 5D employees."

PHILIP HAYES

THE ARNOLD GROUP

Rachel Brown is a freelance writer. Contact her at [email protected].