Payroll & Compliance: Ringing in the New Year: 10 Things HR Should Do Now

Ringing in the New Year:
10 Things HR Should Do Now
Kirsten Goulde Shelley Trout
With: Moderated by:
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https://www.recruitingbrief.com/webinar-series/payroll--and--compliance/
https://www.humanresourcestoday.com/webinar-series/payroll--and--compliance/

About Kirsten Goulde
Kirsten Goulde, Principal of K. Goulde & Associates, has led human capital initiatives at a variety of companies,
primarily those in the senior services sector, for over twenty-five years. Bringing a depth of knowledge, integrity and
transparency to her work, she readily establishes herself as a capable business partner whose focus is on maximizing
the power of people.
Kirsten Goulde is a Certified Professional Coach, a Society of Human Resources Management Certified Professional
(SHRM-SCP), a Senior Professional in Human Resources (SPHR®) and has received the Certified Employee Benefit
Specialist (CEBS) designation through the International Foundation of Employee Benefits Plans. She holds a
Bachelor’s Degree in Psychology from Loyola Marymount University and a Master’s Degree in Human Resources
Design from Claremont Graduate University.
About Shelley Trout
Shelley went to UC Berkeley and majored in Anthropology & Archaeology. After working at the Center of Digital
Archaeology, she became fascinated with digital representations of personality and culture, and now leads Webinar
Production at Aggregage, providing some of the most interesting thought-leaders across a wide variety of industries with
a space to celebrate the diversity, depth, and experience of their professional cultures, personalities, and passions.

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Today’s Discussion
• Anti-harassment efforts in the wake of #MeToo
and #TimesUp movements
• Gender equality and pay equity issues
• The state of states and what HR can expect after
the 2018 mid-term elections
• Social media in an ever-connected world
• Immigration control heats up, impacting
employers

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Workplace Harassment
• The spotlight is and will continue to be on this
issue
• The #MeToo rallying cry has its roots in 2006 when
activist Tarana Burke first used the phrase to
support survivors of sexual violence
• Harassment in the workplace is a long-standing,
pervasive problem

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• 1981 landmark survey indicating 40% of females
reported experiencing harassment in federal
government
• 1991 Professor Anita Hill’s testimony at the hearings
for Clarence Thomas’s nomination to Supreme
Court raised issue to a wider audience
• Today, we see much remains unchanged despite
heightened compliance efforts at the employer level

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• EEOC publications provide a glimpse into the
climate of harassment and discrimination charges
nationally, but data are insufficient and
inconsistent
• Women file the majority of sexual harassment
claims – over 82% of claims filed since 1997
• Retaliation is the most frequently filed charge since
2016
Source: Equal Employment Opportunity Commission, 2017

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• The highest number of charges come from the same
five industries consistently:
• Manufacturing
• Health care and social assistance
• Retail
• Public Administration
• Accommodation and food services
• Overall, harassment claims are underreported due
to fears of retaliation

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• Workplace risk factors:
• The industry
• The diversity of the workplace
• The extent to which power differentials exist in the
workplace

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• Workplace risk factors (continued):
• The degree of environmental isolation in the
workplace
• The quality and consistency of implementation of
workplace harassment policies and training
• The experience and expertise of internal
investigators and frontline supervisors in handling
issues
Source: “…So I Tolerated It”: How Workplaces are Responding to Harassment and the Clear Need for Federal Action (December 2018)

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- Policies
- Training
- Diversity
- Inclusion
- Workplace Civility
- Ongoing Evaluation &
Evolution of Efforts
Getty Images/iStockphoto

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• What should HR do now?
• Perform a harassment “vulnerability
assessment’ and advise senior management
of results and suggested remediation efforts
• Consider the factors described earlier as well as
those unique to your workplace
• Create a business case outlining the importance
of this assessment, include top management

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Gender Equality and Pay Issues
• Pay issues, including fair pay standards,
minimum wages and tipping practices continue to
be areas of focus for EEOC, DOL and others
• With respect to fair pay, research shows that
US women are paid, on average, 20% less
than men
Source: The Gender Wage Gap: 2016: Earnings Differences by Gender, Race, and Ethnicity (IWPR, September 2017)

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• With respect to fair pay, women of color come
out even more poorly
• Black women are paid 38% less
• Latinas are paid 47% less
• The average woman will miss out on about
$400,000 of pay in her lifetime
Source: The Gender Wage Gap: 2016: Earnings Differences by Gender, Race, and Ethnicity (IWPR, September 2017)

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• As pay equity efforts at the federal level have
stalled in recent years, many states have taken
up the slack
• Recent trends:
• Broadening the definition of comparable work –
moving from “equal work” to “similar work”
• Defining legitimate reasons for pay disparities
• Improving pay transparency

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• Recent trends (continued):
• Banning salary history inquiries to break cycle of
historic pay inequality
• Currently 12 state-wide bans and 10 local
bans
• Establish/communicate pay ranges or
request salary expectations rather than salary
history

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• How transparent is your company with respect to
pay?
a. Completely transparent: We publish our pay ranges
in recruitment advertising
b. Somewhat transparent: We discuss pay ranges
when we begin the screening/interview process
c. Less transparent: We do not discuss salary until we
have identified final candidate(s)

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• Tipping issues continue to be debated
• Who owns the tips and how are tips shared
• Tipping cultures and third party harassment of
employees
• Tipping practices and the perpetuation of pay
disparity between the sexes (approximately 67% of
tipped workers are female)
Source: “Twenty-Three Years and Still Waiting for Change: Why it’s Time to Give Tipped Workers the Regular Minimum Wage” (EPI, July 2014)

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• Knowledge is power: conduct pay audits,
carving data by sex and race/ethnicity
• Review hire-in rates and data on
promotions at least annually; consider
adjustments
• Create a culture that supports rather than
punishes females for negotiating salary

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2018 Mid-terms: What’s Next?
• The November mid-term elections resulted in
some interesting power shifts at the state level
• Six politically divided states are now decidedly
Democratic: Colorado, Illinois, Maine, Nevada, New
Mexico, and New York
• Four previously Republican states are now divided:
Kansas, Michigan, New Hampshire, and Wisconsin
Source: Littler Workplace Institute (December 2018)

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• Employment law implications of state power shifts
• States with complete one-party control should be in
a better position to pass legislation supported by the
controlling party
• Politically divided states may find legislation at an
impasse unless the measures have bipartisan
support

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• Issues in play at the state (and local) level
• Minimum wage increases
• Legalization of marijuana on a recreational or
medicinal basis
• Paid time off policies, esp. paid sick time
• Protection against discrimination on the basis of
gender and sexual orientation

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• Issues in play at the state level (continued)
• Additional measures to protect employees from
sexual harassment
• Limitations to pre-employment inquiries regarding
criminal convictions and salary history
• Impact to multi-state employers is the need to
navigate a patchwork climate of employment
regulations across their organization

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• Multi-state employers should partner with
counsel informed about national trends; HR
should consider cost and feasibility of adopting
the most stringent standards to improve
compliance and reduce administrative burden

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Social Media in the Workplace
• Many employers have adopted policies about the
use of social media in the workplace
• Companies have a legitimate business interest in
ensuring
• Employees are productive and engaged in company
business during working hours
• Employees do not divulge confidential information
about the company or its customers

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• Employees do not harass, bully, discriminate
against, or retaliate against one another
• In 2018, the National Labor Relations Board
(NLRB) issued guidance regarding employee
handbook rules in response to their decision in
The Boeing Company
Source: Guidance on Handbook Rules Post-Boeing (June 2018)

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• These rules are presumed to apply to social
media policies but are not specific to social media
policies
• The NLRB is concerned about over-broad
policies that may interfere with employee rights to
engage in protected, concerted activity, a
violation of the NLRA

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• The NLRB has identified three categories of
employer rules and their presumptive lawfulness
• Category 1 rules: presumptively lawful
• Category 2 rules: individual scrutiny is needed
• Category 3 rules: presumptively unlawful

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• Category 1 rule examples: presumptively lawful
• Prohibiting employees from speaking on behalf of
the company without prior approval
• Prohibiting employees from making negative or
disparaging remarks about other employees
• Prohibiting employees from disclosing information
about the company’s clients or customers

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• Category 2 rule examples: individual scrutiny is
needed
• Blanket rules prohibiting employees from criticizing
the employer
• Blanket rules prohibiting employees from making
false or inaccurate statements
• Blanket rules prohibiting employees from speaking
to the media or third parties

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• Category 3 rule examples: presumptively
unlawful
• Blanket rules preventing employees from discussing
wages, benefits or working conditions
• Blanket rules preventing employees from joining
outside organizations or voting on matters
concerning the employer

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• Review all policies, including social media
policies, in light of the recent NLRB guidance,
ensuring lawful interests are represented and
potentially or presumptively unlawful interests
are removed

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Immigration Control & Enforcement
• Environment is changing rapidly under the Trump
administration
• Worksite enforcement is one way for the
government to fulfill Trump’s commitment to his
constituents around immigration oversight

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• Under the Trump administration, ICE worksite
enforcement has increased significantly
• Worksite investigations increased from 1,691 in 2017 to 6,848
in 2018
• Form I-9 audits increased from 1,360 in 2017 to 5,981 in 2018
• Homeland Security made 779 criminal arrests and 1,525
administrative worksite-related arrests in 2018, compared to
139 and 172, respectively in 2017

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• What should you do if ICE knocks on your door?
a. Shut the office door, lock it and turn out the lights
b. Hand them your I-9 binder and offer them coffee
c. Request identification and three days to produce I-9s
d. Send all employees home and shred I-9s

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• Fines can range from $110 to $19,242, with repeat offenses and
knowingly continuing to employ undocumented workers
on the higher end
• This 2 page form has a 74
page instruction manual –
the government wants us
to get it wrong
• There are 68 ways an employer
can mess up an I-9 Form!

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• Penalties include:
• Criminal prosecution: felony and misdemeanor
convictions, particularly for knowingly employing an
undocumented worker
• Administrative sanctions: fines for violations
• Debarment: prohibits offending employers from
seeking government contracts for 1-3 years

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• Perform an I-9 audit to ensure mistakes are
corrected in good faith; calendar annual or semi-
annual audits depending upon turnover
• Ensure training of person(s) responsible for
completion – lack of training perpetuates errors that
multiply potential fines with every I-9 they complete

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Recap – What Should HR Do Now?
1. Perform a harassment “vulnerability analysis”–
create a business case to gain C-suite buy in
2. Go below the tip of the iceberg (policy review
and training efforts) to analyze culture, norms,
and practices at each phase of employee
lifecycle to develop remediation efforts that
resonate

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1. Perform a harassment “vulnerability analysis” and
remediation efforts – gain C-suite buy in
2. Go deeper than just policy review and training efforts –
analyze culture, norms, and practices through the
employee lifecycle
3. Consider workplace civility and bystander intervention
training to supplement efforts and improve culture

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4. Conduct annual pay audits, carving data by sex and
race/ethnicity; consider adjustments and partner with
counsel
5. Review hire-in rates and promotional increases, and
foster a culture that supports rather than punishes
females for negotiating pay
6. Multi-state employers should partner with competent
national counsel to assist in navigating the patchwork
environment of employment laws

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7. Consider the cost and feasibility of adopting the most
stringent standards to improve compliance and reduce
administrative burden
8. Review handbook policies, including social media
policy, to ensure employer’s lawful interests are
protected and unlawful practices are removed
9. Perform a comprehensive I-9 audit to ensure good faith
correction of errors; calendar ongoing audits based
upon turnover

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10. Train/retrain HR team members and hiring managers
to ensure compliance

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Q&A
https://www.recruitingbrief.com/webinar-series/payroll--and--compliance/
https://www.humanresourcestoday.com/webinar-series/payroll--and--compliance/
Shelley Trout
With: Moderated by:
Principal, K. Goulde & Associates
Linkedin page: in/kirstengoulde/
Email: Kirsten@kgouldeassociates.com
Website: kgouldeassociates.com
Phone: (424) 327-4143
Kirsten Goulde
Editor, Human Resources Today & Recruiting Brief
Linkedin page: /in/shelleytrout
Twitter ID: @hrposts/ @recruitingbrief
Website: www.aggregage.com

Payroll & Compliance: Ringing in the New Year: 10 Things HR Should Do Now

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Payroll & Compliance: Ringing in the New Year: 10 Things HR Should Do Now