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<b style="color: blue">Human Resource Associates</b>
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<p class="section">HR - On The Job</p>
<p class="heading">90-Day Probation Policies</p>
<p><b>Are We Using Them Properly?</b></p>
<p>At a meeting with a group of managers and executives, our associate, Loretta, was present to review the company's employee handbook policies. She had just read the company's 90-day probation policy and asked the group what the purpose of the policy was. One executive said, �For me it's basically a way to head off any potential long term problems by addressing them now.� Another attendee said, �It keeps employees directed and focused during that critical first three months�. Yet another said, �It's a great communication tool, it forces us to talk about progress and problems, expectations and disappointments and if necessary to correct the direction the employee is going.� �All excellent answers,� she thought.</p>
<p>Then the company President stated that to him, �This was my opportunity to get rid of deadwood before I find myself married to it and a long list of employment protection laws.� �Ouch,� she thought.� �Boy, I sure don't like it when it's the President that I have to use as a bad example.� What did she feel was wrong with his view?</p>
<p>Many companies use the �90 Day Probation� policy (aka the 90-day review or the 90-day performance appraisal) to get rid of those employees who they feel just aren't going to make it. Most employers feel that this is an opportunity to do something that you can only do during this 90-day opportunity. Some believe the �freedom to act� is only available during this temporary period, but that is not the case.</p>
<p>Although back throughout the 1930s and 1940s this was the common acceptable policy for most companies, it was actually the growth and influence of the union movement that embedded this concept in our minds. In most unionized companies, the union contract stated that the employee had to join the union and pay dues after 90 days of employment. This was to allow the employee (and secondarily the company) the time to decide if this relationship was going to work and if the union wanted this person in before he or she joined the union. At that point the union became the representative of the employees' interests in all employment related things and the company and the employee would no longer be allowed to enter into agreements. The company would no longer be allowed to work with the employee independent of the union. Later on this 90-day concept would overlap into common practice.</p>
<p>Let's correct the main mistake and then get to the heart and purpose of the �90 day probation.�</p>
<p>First, an employee has no more, no fewer, nor any different rights after 90 days than before. Nothing changes. Even though the employee may have signed an understanding or agreement to the 90-day probation, he or she has no legal authority to sign away any constitutional or legal employment rights. If your termination is illegal on the 91st day, it is also illegal on the 89th day. There is no gaining of legal rights to the employee on the 91st day that he/she did not have on the 89th day. Nor does the company have any lesser legal obligation during this period than they do after. The employment laws are not waived during this first 90-day period; however, the company may withhold or forbid anything that they provide that is not required by law. They may deny holidays, vacations or any benefits voluntarily provided by the company. The company may also deny the use of the company's grievance procedure or the application of a multi-step termination process and so forth, during this period.</p>
<p>So what is the true value of the 90-day probation? Start by looking at all the answers by the managers and executives in Loretta's meeting. And consider that the 90-day probation is more like a formal opportunity-an appointment, to do what companies should do regularly anyway. It's like a second orientation session - a chance to do a course correction on the path the employee is heading. This is a chance to address concerns, commend positives, answer questions, ask questions, talk about company plans and head off any potential problems.</p>
<p>An interesting internal study by General Electric showed why they were losing so many employees in their first 90 days of employment. Include in your 90-day review a search for these problems.</p>
<ul>
<li>Feelings of isolation from the work groups and social groups</li>
<li>Discouragement resulting from not learning new tasks</li>
<li>Not adjusting to physical surroundings</li>
</ul>
<p>The President's stated purpose, however, still has merit. If an employee is not making it, if there are problems, you can use the three-step we know as the �Performance Improvement Program (PIP)� to proceed. The PIP is not a precursor to termination. It is an earnest attempt to gain the performance you want from this employee. A verbal, a written, and when necessary, a probation process can lead to a productive successful employee or a termination whether before or after the 90 days.</p>
<hr />
<p align="center"><b><i>Have an employment question?</i></b></p>
<p align="center">Send it to <a href="mailto:[email protected]?subject=From HR On The Job">[email protected]</a>.</p>
<p align="center">Please include Company Name and Association in your e-mail. Company identification will be kept confidential.</p>
<hr />
<p class="heading">Hitchhiking on the Information Highway</p>
<p><b>Dateline:</b> August 2009</p>
<p><i>(Note: Although we attempt to provide the HRU update on the first of each month, we are normally delayed awaiting the release of several monthly government statistical reports. We will hereafter update the information as each report becomes available without waiting for all of them to be released.)</i></p>
<p class="section">New Regulations - The Hits Keep-a-Comin'!</p>
<p>It seems that every month new laws affecting employers are coming down from Washington or the state capitols. Some affect only a small percentage of employers but there are many that will bring sweeping changes. Do these folks in Washington really know more about our businesses than we do are we just easy targets for political vote seekers?</p>
<p>Let's take a look at a few items on the political landscape.</p>
<p><b>Mental health coverage must be equal to physical health coverage</b></p>
<p>Effective January 1, 2010, the new Mental Health Parity and Addiction Act will require an employer who provides a health insurance plan that includes any form of mental health benefits, to assure that those health benefits be provided at the same level as physical health benefits. This includes deductibles, co-payments, out-of-pocket expenses, in-patient stays and outpatient visits. The law ends limits on mental health coverage such as 30-day hospital stays and 35 visits per year to a mental health care professional unless the company�s health care benefits have the same limits for physical ailments.</p>
<p>However, the company still has the right to decide which mental disorders they will cover. For example; an employer may decide to cover substance abuse treatment but not cover attention deficit disorder (ADD).</p>
<p><b>Sexual harassment adds a new offense-sexual avoidance</b></p>
<p>At the recent annual convention of SHRM (Society for Human Resource Management), lawyers told SHRM members of a new twist in sexual harassment law. They pointed out that attempts to avoid sexual harassment can lead to sexual discrimination. They described a case wherein four men and a woman are at an out-of-office meeting and afterward the men decide to go to a strip club. They do not invite the women because of fear issues of sexual harassment. But the regulations consider sexual harassment to be in the �eyes of the beholder�. So if the woman feels that she is being deprived of an opportunity to develop rapport and discuss business she has a case of sexual discrimination. However if she feels that there will be little business discussion going on and therefore is not offended, there is no case.</p>
<p>In the same vein, if the boss has a habit of taking the top performer each month out to lunch or dinner, but fearing potential problems or misunderstanding he does not take the woman out, he is in trouble regardless of what he does. If he takes her out, he does face potential problems or misunderstanding if �in the eyes of the beholder� the woman or any other employee feels discrimination or that they are being adversely impacted, the boss has a problem. If, on the other hand, he stops the practice altogether, he may be guilty of avoidance sexual discrimination for canceling it when the women becomes eligible.</p>
<p>The lawyers also pointed to another situation. A male employee leaves a note on a woman�s chair about a business issue. She misunderstands and files a charge of sexual harassment, a charge that is rejected by EEOC. From that point on the male employee avoids her. �That may be human� the lawyers say, �but it's not wise�. The fact that she filed a false claim is not a defense to a charge of discrimination. She now has a case of retaliation.</p>
<p>The lawyers recommended the following:</p>
<ul>
<li>You have to figure out options and scenarios that work but do not expose you to such charges. For example, they say, get some tickets to a ballgame and tell the female employee to bring a friend.</li>
<li>Train managers to understand the law and discuss options</li>
<li>Think of the women in your life and ask what you would want the answer to be for them.</li>
</ul>
<p><b>Uncle Sam intends to be your tree planter</b></p>
<p>In the proposed Waxman-Markey Cap and Trade bill is section 205 that creates a program wherein Uncle Sam will take charge of a new, federally subsidized tree-planting program. The program is provided to non-profit, volunteer organizations in local communities who will consent to �sign agreements committing to voluntary stewardship and care of (government) provided trees� and �monitor and report on the survival, growth, overall health, and estimated energy savings of provided trees�.</p>
<p>Provisions are written into Waxman-Markey for the creation of �tree-sitting guidelines to plant trees in relation to building location, sunlight and prevailing wind direction�. The program also provides �free or discounted shade-providing or wind reducing trees to residential and small business consumers�. The bill will regulate the required distance between each tree as well as the where, when, how and who of this tree planting.</p>
<p>If there are no local non-profits that wish to subcontract, the tree planting responsibilities may fall on the �local municipal governments with jurisdiction over the suburban forest�. The bill even creates a technical advisory committee to �ensure tree recipients are educated to care for and maintain their trees over the long term�.</p>
<p>Well I guess if Uncle Sam can save the auto industry by taking it over, maybe he can save the tree planting industry the same way.</p>
<p class="quote">�I didn�t say it was your fault.<br />
I said I was going to blame you�<br />
- Anon</p>
<p class="section">More Federal Hiring and Enforcement Coming</p>
<p>Beyond the new laws coming our way, Attorney General Eric Holder announced in early September that after years of neglect for the American worker by the previous administration, he and Secretary of Labor Hilda Solis are starting a renewed and vigorous enforcement of the existing labor laws. Targeting issues such as:</p>
<ul>
<li>Improper classification of exempt vs. non-exempt employees</li>
<li>Improper classification of independent contractor vs. employee</li>
<li>Improper payment of overtime</li>
</ul>
<p>To carry out this crusade, a new hiring program for field agents and investigators is underway and employers nationwide should expect to see expanded enforcement in 2010.</p>
<p>Beyond the issues mentioned above, OSHA announced on September 4, 2009 that it will begin a new comprehensive safety inspection program targeting nearly 4,000 work sites considered to be high-hazard workplaces. The inspections are based on a 2008 survey of 80,000 employers. The targeted employers have 40 or more employees and were in industries with historically high injury and illness rates. Those employers that did not complete the survey have been put on the inspection list. These inspections will start immediately.</p>
<p class="quote">What if the Hokey Pokey really is what it's all about?�<br />
- Anon</p>
<p class="section">Cash for Clunker Kitchens</p>
<p>Just in time for the holidays, Uncle Sam, basking in the glory of the recent �Cash for Clunkers� program, is back in town with his new Cash for Clunker Kitchens program. Funded with an initial $300 million from the American Recovery and Reinvestment Act, the new rebate program (actually called �cash for appliances�) is designed to help Americans convert to more energy efficient household appliances.</p>
<p>The federal rebates will be from $50 to $200 per appliance and will concentrate on such appliance as:</p>
<ul>
<li>Appliances</li>
<li>Water heaters</li>
<li>Central air conditioners</li>
<li>Heat pumps (air and geothermal)</li>
<li>Boilers</li>
<li>Furnaces (oil and gas)</li>
<li>Room air conditioners</li>
<li>Clothes washers</li>
<li>Dishwashers</li>
<li>Freezers</li>
<li>Refrigerators</li>
</ul>
<p>The program, although federally funded, will be administered by the states. Each state may, of its own accord, add whatever amounts they wish to the rebates if they choose to do so. Consumers will not be required to bring in their old appliances. States must submit their applications for funding by October 15, 2009. The federal funds will be distributed by November 30, 2009.</p>
<p class="quote">�I am proud to be paying taxes in the United States.<br />
The only thing is, I could be just as proud for half the money�<br />
- Arthur Godfrey</p>
<hr />
<p style="text-align: center"><sub>� William J. Cook</sub></p>
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<div id="sidebar">
<span class="section">Labor Stats</span>
<hr />
<b>Federal Minimum Wage</b>
<hr />
<p align="center">
<b>$7.25</b>/hour<br />
</p>
<hr />
<b>Average Income</b>
<hr />
<p align="center">
<u>Hourly</u><br />
<span style="float: left"><i>August 2009</i></span>
<span style="float: right"><b>$18.65</b></span><br />
<span style="float: left"><i>August 2008</i></span>
<span style="float: right"><b>$18.18</b></span><br />
</p>
<p align="center">
<u>Weekly</u><br />
<span style="float: left"><i>August 2009</i></span>
<span style="float: right"><b>$624.09</b></span><br />
<span style="float: left"><i>August 2008</i></span>
<span style="float: right"><b>$613.59</b></span><br />
</p>
<hr />
<b>Federal Povery Level</b>
<hr />
<p>
<span style="float: left"><i>one person</i></span>
<span style="float: right"><b>$10,830</b></span><br />
<span style="float: left"><i>family of four</i></span>
<span style="float: right"><b>$22,050</b></span><br />
</p>
<hr />
<b>IRS Mileage Allowance</b>
<hr />
<p align="center">
As of <b>January 1, 2009</b><br />
<span style="float: left"><i>business</i></span>
<span style="float: right"><b>55</b> cents/mile</span><br />
<span style="float: left"><i>medical or moving</i></span>
<span style="float: right"><b>24</b></span><br />
<span style="float: left"><i>charitable</i></span>
<span style="float: right"><b>14</b></span><br />
</p>
<hr />
<b>Postage</b>
<hr />
<p align="center">
<span style="float: left"><i>1 oz</i></span>
<span style="float: right"><b>44</b> cents</span><br />
<span style="float: left"><i>postcard</i></span>
<span style="float: right"><b>28</b></span><br />
</p>
<hr />
<b>Population</b>
<hr />
<p align="center">
<span style="float: left"><i>world</i></span>
<span style="float: right"><b>6.8 billion</b></span><br />
<span style="float: left"><i>U.S.</i></span>
<span style="float: right"><b>307.2 million</b></span><br />
<i>one birth every </i><b>7</b><i> seconds;</i><br />
<i>one death every </i><b>13</b><i> seconds;</i><br />
<i>one new immigrant every </i><b>35</b><i> seconds;</i><br />
net gain: <i>one person every </i><b>11</b><i> seconds.</i>
</p>
<hr />
<b>U.S. Civilian Workforce</b>
<hr />
<p align="center">
<u>August 2009</u><br />
<span style="float: left"><i>Total</i></span>
<span style="float: right"><b>154,577,000</b></span><br />
<span style="float: left"><i>Employed</i></span>
<span style="float: right"><b>139,649,000</b></span><br />
<span style="float: left"><i>Unemployed</i></span>
<span style="float: right"><b>14,928,000</b></span><br />
<span style="float: left"><i>Want A Job</i></span>
<span style="float: right"><b>5,609,000</b></span><br />
<span style="float: left"><i>Unemployment Rate</i></span>
<span style="float: right"><b>9.7%</b></span><br />
<br />
<span style="float: left"><i>Absentee Rate</i></span>
<span style="float: right"><b>3.1%</b></span><br />
<span style="float:left"><i>- Female</i></span>
<span style="float: right"><b>4.2%</b></span><br />
<span style="float: left"><i>- Male</i></span>
<span style="float: right"><b>2.3%</b></span><br />
</p>
<p align="center">
<u>August 2008</u><br />
<span style="float: left"><i>Total</i></span>
<span style="float: right"><b>155,387,000</b></span><br />
<span style="float: left"><i>Employed</i></span>
<span style="float: right"><b>145,909,000</b></span><br />
<span style="float: left"><i>Unemployed</i></span>
<span style="float: right"><b>9,479,000</b></span><br />
<span style="float: left"><i>Want A Job</i></span>
<span style="float: right"><b>5,024,000</b></span><br />
<span style="float: left"><i>Unemployment Rate</i></span>
<span style="float: right"><b>6.1%</b></span><br />
</p>
<br /><hr />
<b>U.S. Workforce Productivity</b><br />
<sub><i>(The amount of goods produced, divided by the number of work hours it took to produce it)</i></sub>
<hr />
<p align="center">
<span style="float: left"><i>1992</i></span>
<span style="float: right"><b>3.7%</b></span><br />
<span style="float: left"><i>1993</i></span>
<span style="float: right"><b>0.5%</b></span><br />
<span style="float: left"><i>1994</i></span>
<span style="float: right"><b>1.3%</b></span><br />
<span style="float: left"><i>1995</i></span>
<span style="float: right"><b>0.9%</b></span><br />
<span style="float: left"><i>1996</i></span>
<span style="float: right"><b>2.5%</b></span><br />
<span style="float: left"><i>1997</i></span>
<span style="float: right"><b>2.0%</b></span><br />
<span style="float: left"><i>1998</i></span>
<span style="float: right"><b>2.6%</b></span><br />
<span style="float: left"><i>1999</i></span>
<span style="float: right"><b>2.4%</b></span><br />
<span style="float: left"><i>2000</i></span>
<span style="float: right"><b>2.9%</b></span><br />
<span style="float: left"><i>2001</i></span>
<span style="float: right"><b>1.1%</b></span><br />
<span style="float: left"><i>2002</i></span>
<span style="float: right"><b>4.7%</b></span><br />
<span style="float: left"><i>2003</i></span>
<span style="float: right"><b>4.5%</b></span><br />
<span style="float: left"><i>2004</i></span>
<span style="float: right"><b>4.0%</b></span><br />
<span style="float: left"><i>2005</i></span>
<span style="float: right"><b>2.6%</b></span><br />
<span style="float: left"><i>2006</i></span>
<span style="float: right"><b>3.0%</b></span><br />
<span style="float: left"><i>2007</i></span>
<span style="float: right"><b>1.9%</b></span><br />
<span style="float: left"><i>2008</i></span>
<span style="float: right"><b>2.8%</b></span><br />
<span style="float: left"><i>2009 1st quarter</i></span>
<span style="float: right"><b>+1.6%</b></span><br />
<span style="float: left"><i>2009 2nd quarter</i></span>
<span style="float: right"><b>+6.4%</b></span><br />
</p>
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