Onboarding Starts Before a New Hire’s First Day

new hire

Pre-Employment Communication

New hires are often overwhelmed on their first day – especially when the orientation program includes long lists of procedures, tasks, company policies, introductions to co-workers, compliance requirements, and all the technical aspects of employment. It’s difficult for new hires to absorb and retain much of the information conveyed during orientation, this is why follow up is critical.

So first-day orientation, while important, isn’t the end of onboarding. Onboarding is a larger process that begins before the start date and continues through most of the first year, done properly it will provide a seamless, efficient and effective new hire experience.

It All Begins Here

Remember when you started. When did you receive and sign your offer letter? How soon did you start? Did you have communication between your hire and start dates? If there was communication, what form was it in? What did it say? What materials were provided? Hopefully you received a reminder to bring valid identification as well as signed copies of employment documentation (offer letter, employee handbook acknowledgment, I9, and a W4).

Onboarding documents, such as a Welcome Packet, are sent as part of the series of communication before your employee’s start date. These documents provide an overview to help set expectations. They also give your new hire time to review information and arrive for their first day prepared and ready!

Standardized new hire onboarding communication decreases the work and relieves much of the effort creating this experience for each new hire. This will also help you build a consistently reinforced employer brand with each new employee.

While some items in the onboarding process can be conveyed via bullet points in an email (direct deposit setup, background check, dress code, etc.) others need to be more thoroughly and clearly communicated. The Welcome Packet you create does just that.

A Good Heads-up Will Lower Anxiety

We like the Golden Rule when it comes to a new employee orientation checklist: When starting a new job, would you want your new company to send you a generic welcome email before your first day, or more personalized and detailed information to get you ready for your new position.

Provide new employees with a sense of transparency with the materials your company provides in their Welcome Packet. Include information to give them a heads-up (maybe refrigerator lunchroom rules or the temperature in the office). When appropriate an email introduction to team members or a request for a short personal bio for a welcome announcement to the company.

Providing a snapshot of coworkers (just the basics) first name, face, and function. These basic three can prove to be helpful when your new hire first meets their coworkers. This information can also help lower anxiety.

Day 1

New hire expects an HR orientation on their first day. How long will orientation take 60 minutes, a full workday? What needs to be covered? What questions should be asked? These are the types of things new hires are thinking about. Introductions, new hire paperwork, lines of communication, different team members, understanding the new role and expectations of performance are all unanswered question new hires want and need to know.

Start by sending Welcome Packets a week before the new hire start date. This provides basic information and answers questions and concerns before that often stressful first day.

As we all know, first impressions matter! The first day is a major part of the onboarding process. This is where your company makes its first impression. This is why it’s essential to get things off to a proper start. Providing a detailed look at the agenda will keep you and your new hire on the same page and help ease the stresses of day one.

Six Months

Onboarding is about employee perception and experience, providing a platform for successful employment. It doesn’t stop after the first day. It’s not unusual for new hires to take as much as 6 months to a year to fully get up and running in all aspects of their new employment. The all important 90 day review should include a review with not just the employees manager but with the HR department. This provides the perfect opportunity to ask about their experience and opinion of the onboarding process.

This is why it’s important to have a plan that extends out 90 days to as long as 6 months.

Conclusion

Once the onboarding is complete, check for understanding, track your results, examine any gaps, incorporate feedback to improve your future Welcome Packets.

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HR Compliance: What It Is and Why It’s So Complicated

HR Compliance

Running a business comes with no shortage of perks. You get the freedom to be your own boss, invest in an idea, steer its trajectory, and create wealth. It has its challenges, too. Competition may be fierce. Demand for what you offer may be low. Costs may not be sustainable. But even if everything else is going your way, there’s one challenge that’s ever-present. We’re talking, of course, about HR compliance.

The Definition of HR Compliance

HR compliance is the work of ensuring that your employment practices conform to federal, state, and local laws. This work requires learning which laws apply to your organization and understanding what they require you to do. That’s easier said than done.

HR compliance is truly an art. It requires knowledge, skill, and cooperation. You have to be able to decipher legalese, know where to go to ask and get the right answers and create policies and procedures that minimize business risk. You have to ensure that everyone from the executive team to newly minted managers know what they can and cannot do. You have to conduct investigations and enforce your rules consistently. And all this is just the bare minimum—necessary, but not enough to create a truly successful culture.

The work of compliance is never entirely done. Not only do new legal requirements appear frequently, but, as you’ll read below, compliance obligations are often unclear. While some compliance obligations are definitive, others are unresolved, and a good number require you to make a judgment call. Let’s look at each of these in turn.

Why HR Compliance Can’t Always Be Assured

Some employment laws take the form of “Do this” or “Don’t do that.” The requirements may be simple, like minimum wage, or complex, like FMLA, but either way there’s usually no real question about what you need to do or not do. Compliance with these laws is pretty straightforward. Don’t pay less than the minimum wage. Provide leave to eligible employees for the reasons that qualify, continue their health benefits (if applicable), and return them to their position when their leave ends. As long as you’re clear on the details, you’re not likely to lose sleep wondering if you’re compliant.

Sometimes, however, those details are unsettled. Lawmakers don’t always specify everything a law requires before it passes or takes effect. Even when laws seem clear, trying to put them into practice often raises a lot of questions. And the legislature isn’t the only source of law: regulatory agencies demand their say, and courts get involved, too. To complicate matters, these branches of government don’t always agree with each other, and what they say today may not be what they say tomorrow. Keeping up with the latest official guidance takes time and persistence. It can feel like a marathon, when what you want is a quick sprint to the answer. You have other demands on your time, after all. 

Finally, a lot of employment laws have standards you have to follow, but they don’t tell you how. Neither the IRS nor the DOL, for example, tells you whether your workers are employees or independent contractors—unless there’s an audit or complaint. Instead, these agencies publish tests with general criteria that you use to make case-by-case determinations.

The Americans with Disabilities Act (ADA) works this way, too. The ADA requires employers to provide reasonable accommodations to employees with disabilities, with a few exceptions. One of the exceptions is that the accommodation doesn’t create an undue hardship on the employer’s business. The basic definition of an undue hardship is an action that creates a significant difficulty or expense. Although the law provides factors to consider in making this determination, the onus is on you to decide whether an expense or difficulty from an accommodation is significant. And, ultimately, your conclusion could be challenged in court.

Why HR Compliance Looks Like This

If HR compliance seems overly-complicated, that’s because it is. Our current legal landscape is the result of three competing philosophies about how the workplace should be governed, who should govern it, and whose rights in the workplace should be prioritized in the law.

Owner Control

According to the first view, business owners should have control over their workplaces for one simple reason. They own the business. It’s their property, and as owners they should have the legal right to govern it. Employees have no right to control aspects of the workplace because the workplace isn’t theirs. They don’t own it. It’s not their property. If they don’t like the terms and conditions of their employment, they can and should go elsewhere.

While an owner might employ managers or an executive team to make decisions about who to hire and fire, what to pay, how to assign work, and other such matters, the owner remains in charge. Advocates of this view include the economist, Milton Friedman. In 1970, he famously argued that corporate executives should bow to the desires of the owners. The will of the owners reigns supreme. 

Worker Control

According to the second view, workers should have a say in the decisions that get made simply because those decisions affect them and their livelihoods. In this line of thinking, the governance of the workplace should adhere to the principles of democracy. However, proponents for this view differ on how democracy in the workplace should be practiced.

In the 1930s, Senator Robert F. Wagner introduced the National Labor Relations Act. He wanted to guarantee the “freedom of action of the worker” and ensure that workers were “free in the economic as well as the political field.” Today, talk of democratizing the workplace usually refers to bolstering unions. But there are other proposals to note. Some champions of workplace democracy, like Senator Elizabeth Warren, have pushed for employee representation on corporate boards. Others favor cooperative models in which the division between employers and employees doesn’t exist.   

Full-fledged workplace democracy is still a fringe view, though. The very definition of an employee remains a worker who does not have the right to control what the work is, how it’s done, or how it’s compensated. Employees may be given authority to make decisions. They may have influence over their superiors. But they are not legally in charge. 

Societal Control

Advocates of the third view argue that the government has an interest in exercising some measure of control over the work and the workplace. In the employer-employee relationship, employers typically have significantly more power than employees—especially an employee acting as an individual. Frances Perkins, who served as Secretary of Labor and was a key architect of the New Deal, believed that government “should aim to give all the people under its jurisdiction the best possible life.” She saw a role for legislatures in countering long hours, low wages, and other conditions unfavorable to employees. 

How These Philosophies Have Played Out

In the United States, HR compliance is the result of these three competing and arguably incompatible philosophies. Government action with respect to employment has tried to empower workers and afford them certain rights, protections, and freedoms in the workplace, all while preserving the employer’s control over their business.

We can see this balancing act in the differences among state laws. Some states prioritize the right of owners to control their workforces and are loath to restrict that right through legislation. Other states act out of what they see as a duty to secure the rights of workers. Imposing obligations on employers doesn’t bother them.

We also see this balancing act in the way that employment laws tend to set parameters rather than dictate exactly what employers must do. You can pay employees whatever you want, so long as you pay at least the minimum, offer an overtime premium when applicable, and meet equal pay requirements. You can theoretically terminate employment for any reason or no reason at all (though we don’t recommend it); but you can’t fire someone for an illegal reason. Even laws that require a new practice, such as paid leave, allow flexibility provided you meet minimum conditions.

Takeaways

First, when you’re assessing your compliance obligations, understand that not all compliance obligations are clearly delineated or settled law. Unsettling as that may be, it’s how our system has been set up. In those cases, you’ll have to weigh your options and the risks involved, and then make a decision. Sometimes you may need legal advice in addition to HR guidance. Remember, however, that despite all the many employment laws on the books and in the imaginations of legislators, the system is designed to keep employers in charge. You can’t eliminate all risk, but by understanding the nuances and open questions, you can significantly minimize it.

Second, document your actions and decisions. It only takes an employee filing a complaint for enforcement agencies to get involved, but you are better protected if you can quickly and clearly explain to them the reason for your actions.

Third, evaluate whether your policies, procedures, and practices are satisfactory to employees. No employment law gets written in a vacuum, and no law is truly inevitable. Lawmakers passed the Fair Labor Standards Act because workers and the general public felt that labor standards were unfair. Today we wouldn’t have people pushing for predictive scheduling laws if they felt that work schedules were already sufficiently predictable. Harassment prevention training wouldn’t be mandatory (where it is) if sexual harassment weren’t widespread.

Fourth, lead by example. Make good employee relations a key part of your brand and competitive advantage. Employees have higher expectations today than they used to. Meet those expectations and motivate other employers to do the same, and you may find that the compliance landscape of the future is less winding and boggy than it could have been.

Finally, spend some time each day learning about your compliance obligations. Use resources that break down federal and state employment laws in a way that laypeople can understand. Keep up to speed on the latest compliance obligations and contingencies you should consider. HR compliance is an art. The first step to mastering it is learning what it entails and how it works.

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Vaccination, Masking Policies, and Returning to Work— FAQ

Are you reopening your office and wondering what your vaccination and masking polices can be? Our FAQ provides you with answers you need.

Can we bring all employees back to the office, but make the unvaccinated keep their masks on?

In most states, yes.* Currently the CDC suggests that fully vaccinated people do not need to wear masks in most places (some workplaces will be an exception, such as healthcare settings), but that non-fully vaccinated people should continue to wear masks and maintain social distance. OSHA has issued guidance that is in agreement with the CDC, as well as an Emergency Temporary Standard for healthcare. Additionally, some states or localities may have stricter mask requirements that should be followed. However, absent such requirements, having different rules for vaccinated vs. unvaccinated is acceptable since it is not based on a protected class.*


Treating these groups differently is generally not illegal employment discrimination* and employers should not think of it as treating employees more or less favorably, but simply as following current public health guidelines. This should also be emphasized when talking to employees about the different rules for those who are vaccinated or unvaccinated.


Keep in mind that some employees will be unvaccinated due to disability, pregnancy, or religious beliefs. Employers should be careful to ensure that these employees are not harassed because of their vaccination status (which will be obvious if they are required to wear a mask when fully vaccinated employees are not). While preventing harassment of any employee who is unvaccinated is a best practice to maintain morale and productivity in the workplace, employees who are unvaccinated for these particular reasons have protections under Title VII of the Civil Rights Act and the Americans with Disabilities Act (ADA).


*Numerous bills have been introduced at the state level to make vaccination status a protected characteristic and it appears that some Governors may create protections via Executive Order (EO). So far only Montana’s law has passed, but it appears to prevent employers not only from excluding unvaccinated workers but also from asking them to wear masks if vaccinated employees don’t have to. The current EOs (as of June 28) do not appear to impact private employers. Employers should check for state law before making policies that treat vaccinated and unvaccinated workers differently.

Can we bring back only vaccinated employees?

It depends. Unless state or local law says otherwise*, you could exclude employees from the workplace who are not vaccinated for reasons other than disability, pregnancy, or religious belief, since choosing to forgo vaccination for other reasons is not generally a protected class or characteristic.


Employers who want to exclude unvaccinated employees will need to make reasonable accommodations for employees who are unvaccinated due to disability, pregnancy, or religious belief. If there is no reasonable accommodation that would allow them to be in the workplace without posing a “direct threat,” they too could be excluded. Whether a direct threat exists, and if it can be mitigated, is extremely fact specific. The EEOC provides guidance here, in Q&A K.5.  Even when you could exclude an unvaccinated employee, we generally wouldn’t recommend it.


Litigation around mandatory vaccination (which is, in effect, what an exclusion rule creates) is ramping up, and even pre-litigation expenses can add up fast. In many cases, an alternative approach of requiring unvaccinated employees to continue wearing masks and maintaining social distance will achieve similar results in term of workplace safety. That said, any approach to bringing employees back will require a workplace-specific risk assessment.


*Numerous bills have been introduced at the state level to make vaccination status a protected characteristic and it appears that some Governors may create protections via Executive Order (EO). So far only Montana’s law has passed, but it appears to prevent employers not only from excluding unvaccinated workers but also from asking them to wear masks if vaccinated employees don’t have to. The current EOs (as of June 28) do not appear to impact private employers. Employers should check for state law before making policies that exclude unvaccinated workers from the workplace.

Is it illegal discrimination to treat vaccinated and unvaccinated employees differently?

It depends. Different treatment that is reasonably related to workplace safety – such as having non-vaccinated employees continue to wear masks – is generally okay.* Employers should make a concerted effort to only treat vaccinated and unvaccinated employees differently to the extent necessary to ensure the safety of all those in the workplace. Additionally, employers must make reasonable accommodations for employees who are unvaccinated due to disability, pregnancy, or religious belief; treating these employees differently without trying to work with them would be illegal discrimination.


Treatment that does not increase safety directly but rewards those who are vaccinated also needs to allow for accommodations for employees who can’t get vaccinated due to disability, pregnancy, or religion. For example, if you offer $100 for getting vaccinated, or throw a pizza party for vaccinated employees, an employee with a disability that prevented vaccination would need to be able to earn the $100 or attend the pizza party by doing something else that similarly advances safety in the workplace, like wearing a mask, undergoing regular COVID testing, or taking a course on preventing the spread of viruses.


While employees who are unvaccinated for reasons other than disability, pregnancy, or religion are not entitled to these kinds of accommodations, it may make sense to provide them anyway, both to encourage the alternative safety-enhancing behaviors, and to reduce the likelihood that they will complain about how they are being treated.


There is also the possibility that treating unvaccinated employees differently will have a “disparate impact” on those of a certain race or ethnicity. Disparate impact claims generally arise when an employer is trying to do something in the best interest of the company, but the methods they use ultimately harm a certain protected class. In the case of excluding unvaccinated employees, or offering cash incentives to those who are vaccinated, there could be a disparate impact on employees of color, whose vaccination rates are lagging behind those of white employees.


Employers should also ensure that unvaccinated employees are not harassed by co-workers, managers, or customers, since disability, pregnancy, and religious beliefs are protected characteristics. Although employers do not have a legal obligation to prevent harassment of employees who are unvaccinated for other reasons, it is in the best interest of the employer to prevent this, as any kind of workplace harassment is going to lead to loss of productivity, morale issues, and quite possibly bad PR.


*Numerous bills have been introduced at the state level to make vaccination status a protected characteristic and it appears that some Governors may create protections via Executive Order (EO). So far only Montana’s law has passed, but it appears to prevent employers not only from excluding unvaccinated workers but also from asking them to wear masks if vaccinated employees don’t have to. The current EOs (as of June 28) do not appear to impact private employers. Employers should check for state law before making policies that exclude unvaccinated workers from the workplace.

What do we do about employees who complain about wearing masks?

We recommend providing them with the CDC’s current guidance as well as any applicable state or local requirements. You can explain that the company is just doing what public health authorities recommend to keep people safe.

Should we have unvaccinated employees sign a waiver?

A waiver may or may not be useful or legally enforceable. We recommend you speak with an attorney if this is something you are interested in. A waiver will not eliminate your general duty under OSHA to provide a workplace that is free from hazards. Also, most states’ workers’ compensation laws do not allow employers to contractually limit their liability for on-the-job injuries or illnesses.

There are no mask mandates that affect our business. Should we require employees to wear masks anyway?

Providing advice on disease mitigation is outside of our scope of services, so we defer to guidance from the CDC and OSHA. Currently, the CDC recommends that those who are not fully vaccinated continue to wear masks in public (including the workplace) and maintain social distance, while those who are fully vaccinated may go unmasked without social distancing. OSHA has issued guidance that is in line with the CDC’s recommendations (though different rules apply in healthcare settings).

Should we make everyone keep wearing masks so the unvaccinated don’t feel singled out?

You could; masks can essentially be treated like uniforms. That said, requiring masks for those who are fully vaccinated (when not required by state or local law) is likely to cause serious morale issues and increase turnover.

Since the vaccinated people won’t get sick, can we let the unvaccinated people take their masks off too?

Providing advice on disease mitigation is outside of our scope of services, so we defer to guidance from the CDC and OSHA. Currently, the CDC recommends that those who are not fully vaccinated continue to wear masks in public (including the workplace) and maintain social distance, while those who are fully vaccinated go unmasked without social distancing. OSHA has issued guidance that is in line with the CDC’s recommendations (though different rules apply in healthcare settings).


You may also want to consider that some vaccinated people will not be as protected as others. Those who are immunocompromised will have often get a much lower level of protection from the vaccine than the general population. Those people will therefore be at higher risk around unvaccinated people who are not wearing masks.

Can we ask for proof of vaccination? Isn’t this a HIPAA violation or an illegal inquiry under the ADA or somehow confidential information?

Employers can ask for proof of vaccination unless there is a state or local law or order to the contrary.*


When an employer is requesting or reviewing medical information in its capacity as an employer, as it would be when asking about an employee’s vaccination status, it is considered to be an employment record. In such cases, HIPAA would not apply to the employer. The ADA will govern the collection and storage of this information.


The Equal Employment Opportunity Commission (the EEOC), which enforces the ADA, has said that asking about vaccination is not a disability-related inquiry, though it could turn into one if you ask follow up questions about why the employee is not vaccinated. Asking a yes or no question, or requesting to see the employee’s vaccination card, does not violate any federal laws or require proof that the inquiry is job-related.


Finally, just because employees think that something is or should be private or confidential doesn’t mean that they can’t be required to share it with their employer. Social Security Numbers, birth dates, and home addresses are all pieces of information an employee may not want to advertise, but sharing is necessary and required. Vaccination status is similar. However, all of this information, once gathered, should not be shared by the employer with third parties, except on a need-to-know basis.


*It appears that some Governors may attempt to prevent certain entities from requiring “immunity passports” (e.g., proof of vaccination) through Executive Order, though as of June 28 none of the EOs already issued appear to apply to private businesses and their employees. Also note that if there is a law in place that prevents treating vaccinated and unvaccinated employees differently (like in Montana), you may be able to ask, but not take any action based on the response.

Should we keep a record of who is vaccinated or make copies of vaccination cards? If we do, how long do we have to keep it for?

If you’re asking about vaccination status, you’ll want to keep some kind of record (so you don’t have to ask multiple times), but how you do so is up to you, unless state or local law has imposed recordkeeping requirements. You may want to keep something simple like an excel spreadsheet with the employee’s name and a simple “yes” or “no” in the vaccination column. If you’d prefer to take a copy of their vaccination card, that should be kept with other employee medical information, separate from their personnel file.


If state or local law requires recordkeeping, then follow those requirements, including how long the records should be kept. If no law is in play, we recommend keeping the information for as long as you keep other information in employee medical files.

If we keep a record of who is vaccinated, can we share it with managers so they can enforce any policies based on that information, such as masking and social distancing?

Yes. We recommend not sharing this information any more widely than necessary. While anonymized information is okay to share (e.g., “80% of our employees are vaccinated!”), each employee’s vaccination status should be treated as confidential, even if the fact that they are wearing a mask to work seems to reveal their status publicly.


Obviously, managers will need this information if they are expected to enforce vaccination-dependent policies, and employers should train them on how they should be enforcing the policies and how and when to escalate issues to HR or a higher level of management.

If an employee has had COVID, is that as good as being vaccinated?

No. The CDC differentiates between those who are fully vaccinated and everyone else. Having had COVID does not appear to provide the same level or length of immunity as the vaccine, so is not a suitable substitute when determining which safety measures should be enforced.

Can we forbid employees from wearing masks, assuming no laws say otherwise?

Theoretically, yes. However, employers will need to provide reasonable accommodation to those who are not vaccinated due to disability, pregnancy, or religion, as well as to those who are vaccinated but who will not get the same level of immunity from the shot as the general population. Additionally, since a rule like this is in direct opposition to current federal guidance, it is likely to result in complaints to OSHA, bad publicity, and lawsuits. Even if masks are not required by any law, we recommend allowing employees to wear them for any reason or no reason at all.

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