Don’t be in a rush to hire someone.

When you’re short staffed, it can be counterintuitive to take your time with the hiring process. But slowing down and making deliberate choices is much better than the alternative: making a snap judgment in an interview, bringing someone on board, training them, then realizing you’re not happy with them and ending up back at square one. Take the time to schedule multiple interviews and dig into your candidates’ backgrounds before you make someone an offer.

Make sure you hire someone who knows what they want.

Too often, people are in search of a job. Any job. They haven’t put a lot of thought into what kind of company they’d like to work for, what kind of environment they would do best in, or even what skills they would enjoy using on a daily basis. If you hire someone like this, they will discover the answer to all of these questions as they go. Maybe their new job will be exactly what they wanted and everything will be fine. But if not, they’re likely to leave, and your investment of time and effort in training them was a waste.

Make a concrete assessment of your candidates.

Once you’ve narrowed the running down to people who are genuinely interested in your position, it’s time to put them to the test. If it’s a technical job–for example, one that involves computer programming–gauge their level of competency with a skills test. If it’s a more general position, consider having your candidates complete personality inventories. Interviewing is helpful, but it’s nice to have some kind of analysis to go along with your verbal assessment.

Do you need more help with your hiring process? At Burnett’s Staffing, we assess job candidates for you, and can even find a temp-to-hire candidate so you can see your new hire in action before you fully commit. Contact one of our staffing specialists today!

The post How to Spot a Bad Hire During the Interview appeared first on Burnett's Staffing, Inc..

Be humble.

Don’t flaunt your expertise; the last thing you want to do is seem arrogant. You shouldn’t hide your talents, either. Try to strike a balance somewhere in the middle. You want to seem competent, but you also want to seem like a person who would be happy to work in a position that some may consider beneath him. No one wants to work with a martyr, so make sure your attitude is professional and humble.

Calm their fears.

The scariest thing about an overqualified candidate is that they won’t be challenged working below their skill level, and they’ll subsequently get bored and move on to a bigger and better position. There are other reasons—not being able to pay you enough, for example—but losing you once you lose interest in them is the core of it. Address this fear by showing enthusiasm not only for the position you’re applying for, but also for the company in general.

Make it about them.

Try to shift the focus from your qualifications to their needs. What do they need from the person who will be hired to do the job? Find out what talents will help them succeed and show how you can deliver. Don’t waste time reminding them about your other skills. By narrowing your pitch to what they need, they will think less about your other qualifications.

Need more assistance with your Dallas-Fort Worth area job search? We can find you a position, whether it’s temporary, temp-to-hire, or direct hire.  Get in touch with an expert at Burnett’s Staffing today for help that’s tailored to you!

The post Overqualified? Don’t Let that Stop You From Applying for a Job! appeared first on Burnett's Staffing, Inc..

By Michael Kelsheimer

The post Trade Secrets and Confidentiality appeared first on Burnett's Staffing, Inc..

By Michael Kelsheimer

The post Are “Working Interviews” Legal? appeared first on Burnett's Staffing, Inc..

Who does it apply to: All employers who have employees or prospective employees that smoke.

What is the issue: According to recent statistics 18.5% of the adult population in Texas smokes. Smoking affects productivity of the smoker and can affect the health of all employees. A lot of publicity has come to ideas regarding charging higher healthcare premiums for smokers, requiring employees not smoke at all, and offering health programs to stop smoking. Employers want to know what options are legally available to them for regulation of smoking among employees.

What is the law: Smoking at work implicates a variety of laws, but most importantly the Americans with Disabilities Act (“ADA”) and the Health Insurance Portability and Accountability Act (“HIPAA”).

Smoking and nicotine addiction were not disabilities under the ADA before the amendments of 2009. After 2009, the question has been reopened and there have not yet been any determinative cases to provide a clear cut answer. Employers may still be required to accommodate employees who suffer consequences of smoking. That said, the act of smoking still should not be protected. Employees claiming difficulty breathing or emphysema will have their condition improved if an employer restricts their ability to smoke in the workplace. An employee who claims a nicotine addiction can be reasonably accommodated in a no-smoking workplace by using a nicotine patch or chewing nicotine gum. In fact, the ADA may be used to prohibit smoking. Employees with asthma or allergies to smoke may require a smoke-free environment.

HIPAA comes into play in two areas – charging different pricing for healthcare and the use of wellness programs. Under the law, an employer cannot discriminate against or charge certain employees more for health coverage due to “health factors” which include smoking and nicotine addiction. Employers and health plans cannot require an individual to pass a physical examination for eligibility for coverage or use a questionnaire to exclude coverage (a questionnaire can be used to determine overall, but not individual premiums). Nor can employers charge a higher premium to employees with a higher risk or incidence of claims.

When it comes to wellness plans, HIPAA requires that programs with a reward component meet certain criteria. These requirements include: (1) limitations on reward size; (2) purpose of plan to promote overall health; (3) eligibility to qualify once a year; (4) rewards available to all employees; and (5) offer a reasonable alternative for employees who cannot qualify under the primary program. When it comes to smoking in particular, all efforts geared at stopping smoking must be voluntary. Employers cannot force smokers to participate in a program to stop smoking. (Wellness programs will be covered in a later EH piece).

Are smoke breaks required: Businesses are not required to offer employees breaks of any kind during the work-day. Employers who do allow employees to take short breaks during the day on company premises can regulate where\whether the employees smoke by regulating smoking on the company’s premises. Employees on a lunch break who are free to leave company premises are generally free to engage in whatever conduct they choose during that time.

What about union businesses: Smoking policies are generally a mandatory subject of bargaining under a collective bargaining arrangement. Be sure to consider this issue before implementing any smoking related policy.

Common Situations:

This is the 5th degree: Angie’s Ashtrays decides to become proactive about the smoking issues in all phases of her relationship with employees. Angie begins asking potential hires whether they smoke or are addicted to nicotine and starts a pre-hire health screening to find out if applicants are lying about smoking. Has the company stepped on any laws? Yes and maybe. The ADA prohibits employers from asking questions about disabilities in advance of an employment offer. It could be interpreted that the company wants to find out about smokers to avoid dealing with nicotine addicts and people who may have other health issues. So, Angie cannot ask the question before an offer of employment. Pre-hire screenings are also illegal under the ADA except under certain circumstances. If Angie can provide a legitimate business and position related reason for the screening, she may do so after a conditional offer of employment is made.

Residual what: Red, the owner of Red’s BBQ Pit, simply cannot stand the smell of smoke. Of course he has a rule that employees may not smoke during work hours, but Red wants to take it a step further and institute a regulation that employees may not come to work with “tobacco residuals” on their clothing, i.e. they cannot smell of smoke. Has Red gone too far? Nope. There is no law preventing an employer from requiring that employees present to work free of tobacco smells. In fact, in a workplace with a particularly sensitive asthmatic, it may be a reasonable accommodation for that person to implement such a rule.

Smoking away from work: Cancer Hospital decides that regulating smoking is not enough to promote its image as a cancer fighting organization. The Hospital decides to require employees not to smoke in their off-duty hours. Is this legal? If it is very clearly to promote an image, the restriction is probably legal in Texas. A number of states have adopted laws ranging from preventing discrimination based on lawful off duty activities to specific prohibition of discrimination based on smoking. Texas is not one of those states, having no laws at the state level regulating smoking. The risk will be that the restriction is a HIPPAA violation, so Cancer Hospital must be careful. As long as the hospital’s goal is to promote its image and not to drive down its insurance premiums, there is not anything preventing Hospital from creating such a rule.

What should I do:

Good: Not everyone has a problem with employees smoking in the workplace. If you don’t, you simply have to watch out for the complaint of a disability, like asthma aggravated by smoking, and reasonably accommodate the employee if a claim is made. If you want to stamp out smoking in your workplace, institute no-smoking policies on company premises to clear out the atmosphere. Don’t connect these policies to reducing healthcare costs or claims.

Better: If a clear atmosphere is not enough, consider stepping the policy up to prohibit tobacco residual so that smokers are not allowed to have the smell of smoke on their clothes, hair, or breath. Again, avoid connecting the policies to reducing healthcare costs or claims. Consider also, eliminating the availability of smoking breaks during the day.

Best: Institute a workplace wellness program where voluntary information is made available to all employees regarding smoking with the hope that some of the smokers will make their own decision to stop smoking.

http://www.texasemployerhandbook.com/2013/01/smoking-discrimination/

The post Smoking Discrimination appeared first on Burnett's Staffing, Inc..

Who does it apply to: Any employer who fears its employees might go out and start a competing business or work for a competitor and share the employer’s secrets.

What is a “covenant not to compete”: Non-competes, also known as non-competition agreements, are a specially designed type of contract creating an obligation with current and former employees not to go into competition with your business within a certain geographic area for a certain period of time.

Are non-compete agreements legal: Several years ago non-compete agreements were on the verge of extinction. The way the Texas Supreme Court interpreted the law made it almost impossible for an employer to successfully create a non-compete that a court would uphold. Then, in 2006, the Court did an about-face pushing covenants not to compete back into the limelight and making them enforceable again.

How long can I prevent a former employee from competing: Generally, Texas courts will uphold non-compete agreements up to two years, but the court will examine the time to determine whether it is reasonable in the particular situation. It is best to get it right the first time, but the court can adjust it and leave the non-compete in place if the time you choose is determined unreasonable.

How wide of an area can I prevent competition in: The appropriate geographic scope depends largely on the area in which it is reasonably necessary to prevent competition. If you have an employee who works nationally, you will have a hard time getting a Texas court to send him to Canada to make a living. In that case, you should look at only restricting the former employee from soliciting existing customers of your business wherever he lands a new job. If your business draws customers from a 10 mile area, that is what the geographic area should be. Like the timeframe, the geographic area can be adjusted by a court and the agreement may still be enforced.

What do I have to give my employee in exchange for the non-compete: You have to give the employee something that is worthy of preventing them from competing with you. Examples that are acceptable include sharing trade secrets (see last month’s EH piece), confidential information, and/or specialized training. As much as some employers might like to do so, you cannot buy an employee’s agreement not to compete.

Can I have a non-compete with an “at-will” employee: At-will employees are those you can fire anytime you like and that can quit anytime they want. While it is somewhat more difficult to make a non-compete agreement with an at-will employee as opposed to a term contract employee, it can be done.

What does the agreement look like: Unless the non-compete is part of a term contract with an employee, it will usually be the subject of a specialized stand alone contract. In the agreement, the employer promises to provide the employee with secrets and training, etc., and the employee promises in turn not to compete after leaving the company for a period of time. You and the employee can negotiate the geographic area and length of prohibition in the agreement. Non-compete agreements are usually drafted by an attorney because courts are so picky about enforcing them (even after the Supreme Court’s change of position).

Common Situations:

Fired employee: After 15 years of loyal service, Joe Sixpack is fired from his job. He begins looking for a new position, but is asked by many prospective employers whether he has a non-compete with his former employer. Joe explains that he does not, thinking that the non-compete that he signed is unenforceable because he was fired. Is he right? No. Covenants not to compete are enforceable even if the employee is fired. Think about it. If firing an employee would invalidate the non-compete, anyone who wanted to get out of their non-compete could just steal money to get out of it.

New hire: Sara’s Soda Company is hiring a new sales representative for its Texas region. After interviewing several candidates, Sara decides on hiring Genie, who formerly worked for another regional bottler who knows the businesses in the area and can start making sales to new customers right away. Shortly after Genie begins making calls, Sara is served with a lawsuit from Genie’s former employer in which Genie has been sued for violating a non-compete and Sara has been sued for “tortious interference with a contract”. Sara is incensed. What has she done wrong? Sara should ultimately be able to extricate herself from the lawsuit – if she can prove she didn’t know about Genie’s non-compete. That said, Sara will incur legal fees to get out and will probably have to fire Genie, thus incurring a loss for the time she has invested. Employers need to be careful to ask if prospective employees have a non-compete with their former employers to avoid these hassles.

New non-compete – Existing employees: So you’ve now read my non-compete piece and you have decided to have a non-compete written for your employees. As part of creating a valid non-compete, you are supposed to provide the employee with secrets or training, but your existing employees already have all of your customer lists and access to your other trade secrets. Will the non-competition agreement be enforceable? It depends. If the employee receives new secrets or training, the non-compete will become enforceable when the employees receive the information. I often advise employers to try to roll out a non-compete near the time they are providing some new training to try to reinforce that the non-compete will be enforceable.

No more secrets: Tommy Tactical runs a private investigative firm. He was already suspicious of every employee that works for him and keeps everything about his business on a “need to know” basis. After reading last month’s EH piece on Trade Secrets and Confidentiality, Tommy has withdrawn even more, keeping every possible piece of information about his company locked up like the formula to a certain soft drink. Seeking even additional protection after reading this piece, Tommy has all of his employees – down to the copy boy – sign a non-competition agreement. As an employee leaves, he is quick to jump on them with a lawsuit after they start with a competitive company. Tommy has just one problem. He has worked so hard not to share the secrets of his business with his employees, that he has invalidated the non-compete. For a non-compete to be justified and to prevent someone from working in a competitive business, courts have to see that the person poses a risk to your business. If you keep all the secrets there will be no justification. Another situation where this particular example comes up is with new hires that quickly are let go or quit. Courts are reluctant to enforce the non-compete because the new hire didn’t learn anything or so little that the prohibition is not justified.

What should I do:

Good: I’m not sure this qualifies as “good” but you can try to draft your own non-compete agreement. Make sure to cover the length of time, the geographic area, the type of secrets you are promising to provide, and the scope of the employee’s promise not to engage in competition.

Better: Use your attorney to draft a bare-bones non-compete for the employees you feel are most risky to you and have the employees execute the agreements. Be careful, you might have the employee quit instead of signing it.

Best: Prepare a solid non-compete agreement with your attorney and include: (1) a non-solicitation of customers provision; (2) non-disclosure provision; (3) non-solicitation of employees away from the company after leaving; and (5) corporate opportunity provision.

http://www.texasemployerhandbook.com/2011/12/covenants-not-to-compete/

The post Covenants Not to Compete appeared first on Burnett's Staffing, Inc..

Yesterday the Huffington Post reported an interesting story about how Maneesh Sethi used Craig’s List to employ a “slapper” to keep him from wasting time on Facebook when he should be working.  Digging deeper, I found Sethi’s own blog post on his website Hackthesystem.com where he described how he first came upon the idea.  Using an app called RescueTime for a week Sethi discovered that he managed just 38% efficiency.  Sethi complained that he easily got off task to check Facebook or get on other social networking sites instead of working.

So, he got an idea to hire someone to sit with him and slap him in the face every time he got off task.  He posted an ad on Craig’s List and immediately received a rash of responses.  After working through the weirdos, he settled on the young lady pictured.  The next day, they met for several hours at a cafe.  Sethi gave her basic ground rules and set about getting things done.

It worked.  While the Slapper was with him, his productivity skyrocketed to 98%.

So, why post this on an employment law blog?  It raises a very important issue – Does employee Facebook and social networking usage negatively affect productivity?  

Sort of.  In April of this year many news articles were posted following an informal study by corporate wellness company Keas which found that employees were 16% more productive if they can take 10 minute Facebook breaks.

But, in the same breath, Marketwire reports that 26% of employees of employees quizzed in a separate study admitted wasting over an hour a day on Facebook or other social media sites.

What is an employer to do?  Leave it alone?  Attempt to manage it?  Cut Facebook and similar sites off completely?

If the information above is to be believed, employers should not cut Facebook off, but somehow find a way to keep employees to short breaks.  And, back to Mr. Sethi’s problem, how exactly does an employer do that?  Hire Slappers?  Not unless they want to be sued for committing assault and battery of their employees.

The best idea that occurs to me is for employers to use any one of many readily available internet monitoring programs that can tell how much employees use social media during the day.  Monitor one employee each week and discipline them for overusage – more than a predetermined acceptable amount per day.

Of course, employees are resourceful and many will just turn to their cell phones which offer streaming Facebook.

The chase continues . . .

http://www.texasemployerhandbook.com/2012/10/is-facebook-affecting-employee-productivity-programmer-hires-slapper-to-keep-focused-programmer-hires-person-to-keep-tabs/

The post Is Facebook Affecting Employee Productivity? (Programmer hire’s “Slapper” to Keep Focused) appeared first on Burnett's Staffing, Inc..

By Michael Kelsheimer on March 17th, 2011Posted in Employee Benefits, Quick QuestionsI get a call at least once a month from a panicked client who just heard a rumor that they have to give breaks to employees every day. Unfortunately, there is no snopes.com for employment myths, so this almost total fallacy gets perpetuated over and over. In the vast majority of circumstances the answer is: NO.

Of course, no legal answer would be complete without exceptions. As of May 2010, nursing mothers are now guaranteed a break under Obamacare. Employers have to provide a private space (other than a bathroom) and give mothers time to express milk. On a separate note, the City of Austin, Texas recently passed a city ordinance requiring a 10 minute break every 3.5 hours for construction workers after three men died in 2009.

 http://www.texasemployerhandbook.com/2011/03/employee-breaks-required/

The post Employee Breaks Required? appeared first on Burnett's Staffing, Inc..

I hear you loud and clear:  “This flies in the face of everything I’ve ever heard!”  Well, only sort of.  While it is not illegal, it can still get you in trouble.  See, like most things in life, it is really about managing risk and not so much about legality.  It may be a subtle distinction, but I think it is important for employers to understand.  If you ask an inteviewee if they are pregnant and you don’t give them the job (or even if you do give them the job) they might equate that with the reason you don’t hire them or a reason you deny them a promotion later.  If they do, the person might use that to boot strap a claim for discrimination based on pregnancy status. 

In the end, you treat an inteviewee just like an employee.  You should avoid topics that might offend with a person who might bring a claim against you.  Of course, you hardly know interviewees, so understanding what questions are taboo with that person will be more difficult.  Manage the risk based on the circumstances and understand what is and is not really protected. 

Last week someone told me that you can’t ask if the person is independently wealthy.  Since when is that protected?  Uhhh, no.  When someone tells you it’s illegal to do something, be sure to understand why and how.  The topics you generally should avoid to minimize risk are the same things you have to watch out for with your existing employees –  characteristics that are protected against discrimination such as: age, sex, disability, military status, origin, color, etc.  

See, family money isn’t on the list.

http://www.texasemployerhandbook.com/2011/09/you-cant-ask-that-in-an-interview-or-can-you/

The post You Can’t Ask that in an Interview! Or, Can You? appeared first on Burnett's Staffing, Inc..

Who, What, Why . . .

Who does it apply to: Any employer who characterizes someone who works for them as an independent contractor and does not withhold taxes for payments made to that person.

Why does it matter: While you may not think it matters much whether the individual pays their taxes or you withhold them, the IRS, Texas Workforce Commission (TWC), and Texas Attorney General (for child support) care a lot. It could become an issue for your business in many different kinds of lawsuit.

How does it affect me: The consequences of mischaracterizing an independent contractor as an employee are minimal, but the consequences of mischaracterizing an employee as an independent contractor can be significant. Can you say TWC or IRS . . . Audit? Penalties? Interest?

What is the rule: The TWC and IRS will start with a presumption that the person is an employee so owners really start off with one strike against them. The tests used by the TWC, IRS, and in commercial litigation are all different, but the factors considered are similar. What follows is an amalgamation of the tests that should give you a good idea of what category the person falls into:

• Instruction and Control – This is the KEY factor! If you say where to go and leave it up to the individual to get the work done, they may be an independent contractor. If you tell the individual how to do it, they start to look more like an employee. Each additional instruction slides the scale closer to employee status.

• Training – If you are training them, they are probably employees

• Equipment and Expenses – If you provide equipment and pay expenses, they are probably an employee

• Benefits – If you provide benefits, like healthcare and 401(k), they are almost definitely an employee

• Other Work – If the person works solely for you, perhaps has set hours of work, and would not have time for another “customer” or employer, they are probably an employee. Independent contractors regularly work for numerous customers or clients.

• How Paid – If you pay a weekly salary or draw that is not dependent on performance, they are probably an employee. Independent contractors are usually paid by the job and don’t get paid if a job is done unsatisfactorily.

• Terminating the Relationship – If you can unilaterally let the person go in the middle of a project or they can walk away from work in progress, they are probably an employee. Independent contractors cannot usually be terminated in the middle of a project without someone having a right to damages.

Common Situations:

Outside Sales Rep: Often the most difficult to characterize, the outside sales representative is a bit of a chameleon. The factors that really matter here are: (1) whether you provide training or a particular sales pitch; (2) whether they act as a sales representative for other companies or whether you would allow the person to sell for another company; (3) how they are paid – straight commission or commission and salary; and (4) whether you reimburse expenses. NOTE: If there is ever a covenant not to compete – you best characterize them as an employee.

Terminated “Contractor”: In a down economy, you cut back your workforce, including several “contractor” construction workmen. One decides to file for unemployment. When the TWC investigates, it will determine whether you have properly characterized the workman. If you lose, the TWC will make you responsible for back taxes, and interest (which you will have a great time getting back from the workman). Then . . . the TWC will tell the IRS and Attorney General. After their audits you can find out how much back child support you should have withheld that you are now responsible for!

Contract Employee v. Independent Contractor: Don’t mistake a contract employee for an independent contractor. Contract employees are still “employees” who are paid like any other employee and for whom you must deduct appropriate state and federal taxes.

Accident: One of the few advantages to a business owner in characterizing people as independent contractors arises in the event of an accident. If you have a true independent contractor and they injure someone while working for you, there is less potential liability for you! Conversely, employees involved in accidents are the direct responsibility of the employer (unless they were working outside the “scope of employment”).

What should I do:

Good: Conduct a quick review of those who work for you. In most cases you will quickly be able to rule out concern except in a few cases. For the exceptions, examine the above factors and make sure to maintain appropriate separation. Too often, an independent contractor will grow into an employee over time as they become a more integral part of your business.

Better: Create written job classifications for each position in your company including restrictions on the position. Make a written contract with all independent contractors that clearly lays out their status (but do not include a covenant not to compete – which is a clear sign of an employee)

Best: In this case, best is really “safest.” If you characterize everyone who works for you in any capacity as an employee, except with the most obvious exceptions, there will rarely be any cause for concern. That said, it can result in an administrative headache.

http://www.texasemployerhandbook.com/2011/01/employee-vs-independent-contractor/

The post Employee vs. Independent Contractor appeared first on Burnett's Staffing, Inc..