HR That Works

Strategies and Tools that Will Inspire Great HR Practices for Your Agency and Clients!

New York Passes Law Allowing Employers to Recapture Overpayments

Author DonPhin , 2/20/2013
A difficult challenge for employers is capturing overpayments of employee’s wages without violating any laws in the process. For example, in California without consent of the employee you cannot make such a deduction. New York passed a law which just took effect allowing employers to deduct from employees’ wages not only overpayments of wages but also repayments for loans or advances the employer made to the employee. HR That Works members should take a look at the BNA state law summaries on the site. Bottom line: Before you start offsetting anything from an employee’s paycheck, make sure your state law allows you to do so.

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The Bermuda Triangle of the Workplace

Author DonPhin , 2/12/2013
In this video, I give a brief overview of The Bermuda Triangle of employment law; the intersection of the FMLA, ADA, and Work Comp laws.

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Staying Motivated

Author DonPhin , 1/30/2013
An Outside Magazine article about Olympic decathlete, Trey Hardee, winner of the silver medal in London, was asked the question “How do you stay motivated?” His answer should be considered by anyone interested in success, in any field: “Set goals. But don’t make them unreasonable. I set long-range goals that will be hard to achieve, but I keep it interesting by setting small, attainable goals too. I get to accomplish these on a daily basis. In essence, I rehearse being successful.” In the book Victims, Villains and Heroes we talk about the coax, encourage, and inspire formula. Looks like Hardee has certainly tapped into it.

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Grab n’ Go Information

Author DonPhin , 1/23/2013
A Corporate Counsel Magazine an article entitled “Need to Know Basis” discusses how employees can cause all sorts of headaches by swiping documents and information. Things like copying their laptop hard drive, accessing the company network which contains information about customers and marketing plans and downloading it to a cloud-based tool, access to critical information an employee wants for their case from an existing employee, and the downloading of confidential and proprietary information, including everything from executive salaries to trade secrets. In general, the courts are not big fans of employees’ self-help and will allow companies to terminate these employees without facing a retaliation claim. As one court stated, “Every whistleblower statues do not allow employees to ‘pilfer’ a wheelbarrow-full of employer’s proprietary documents in violation of their contract” in pursuits of their claims. Some of the checks and balances being created by the courts include the recognition of the need to terminate an employee, precluding employees from filing claims, limiting evidence or damages from cases, criminal prosecution, and more.

Savvy employers will be aware of the type of information that is vulnerable and then will have protocols to manage access to that information. If dealing with employee termination situations, the company will be well prepared to cut off that information flow before providing them the termination notice. They will also have policies and procedures requiring these employees to immediately return computers, phones, and any other proprietary property of the employer. Click here to read the excellent article.

Along the same lines, a recent HR Magazine article indicated that almost 60% of terminated employees retained sensitive company information after they left their employers and 25% continued to have access to their former employer’s computer systems following their termination. Scary numbers indeed!

P.S. Make sure you have your Cyber Liability insurance and watch the HR That Works webinar Cyber Risk – The Internet is Stealing Your Company.

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Corporate Bankruptcy and Wage Payment Obligations

Author DonPhin , 1/16/2013
In an excellent Corporate Counsel article, Going Broke? Not Until You Pay Me, the article points out the potential bankruptcy exposures to companies for wages depending on how they manage obligations owed to employees. For example, one case included the term “wages” to include severance payments and earned or accrued bonuses. Wages receive priority in bankruptcy proceedings. In many states, where the companies cannot make those payments, officers can be held personally liable. To read this excellent article, click here.

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The Importance of I-9 Compliance

Author DonPhin , 1/8/2013
A recent Corporate Counsel article entitled Silent but Costly talks about some of the emerging compliance risks stemming from form I-9. These risks include:
  • Audits and fines for non-compliance with I-9 forms and processes
  • Security and Exchange Commission investigations
  • Whistleblower complaints
  • Forward stock values
  • Shareholder lawsuits

HR That Works member should watch the I-9 webinar conducted by immigration expert and attorney, Sanford Posner as well as the FAQ document created.

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No Return-to-Work Credit Allowed

Author DonPhin , 1/2/2013
In the California case of Sebastopol v. Workers Comp Appeal Board (WCAB) (2012), the court ruled that the return-to-work discount offered to employers when they offer an injured employee a light duty position does not apply in a circumstance where there was in fact no loss of employment. In this case, a fire captain obtained a declaration that his hearing loss was permanent and stationary. Immediately after that the city provided him with a notice of offer of regular work, which they claimed entitled them to a decrease in his disability payment by 15%. The court stated that because he in fact missed no work, they were not entitled to that deduction. 

Note: The court made a note that the fire captain had continued his regular work without any accommodation by the city before his hearing loss being declared 18% permanent and stationary.

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The Silent Sales Conversation

Author DonPhin , 12/27/2012

Anytime we’re trying to sell professional services to a client, there is a hidden and silent conversation often going on. From the prospect’s advantage these are some of the questions being asked:

1.  Does this person have the skills necessary to be a true expert?
2.  Do they really care about me or my business?
3.  What type of results have they produced for previous clients?
4.  How will I find out about any dissatisfied former clients?
5.  Will they try to somehow manipulate me somehow into buying something I don’t want or need?
6.  How long are they going to be around with this company? Is my relationship going to be with the individual, the company, or both?
7.  Can I trust this person with my information? Will they keep it confidential? Will they use it against me?
8.  Will they try to sell me what they want to sell me or will they sell me what I need?
9.  Will they actually listen to my concerns or cut me off in the process?
10. Are they going to spend more of my time than necessary to make a decision?
11. Will they be pleasant to work with?

As you can imagine, more concerns are going on than this but you can just think of your own buying experiences. Of course, as somebody doing the selling we have our silent concerns about the prospect as well such as:

1.  Are they shopping vendors?
2.  Are they simply using me to get a cheaper price than their existing professional?
3.  Are they truly interested in the value-added services that I offer or do they want the cheapest price and to get this over with?
4.  Are they really a qualified prospect or am I wasting my time?
5.  Will they give me the sufficient amount of time I need to fully explain our service offerings?
6.  Are they going to be paying attention or will they be multitasking?
7.  Can they make a decision? If not, will they bring a decision maker to the meeting?
8.  How have they treated their previous vendors?
9.  Do they want long-term relationships or do they continually shop services?
10. If I do a good job for them will they be willing to let their partners and clients know?

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Preventing Post-Termination Work Comp Claims

Author DonPhin , 12/19/2012

I recently had the wonderful opportunity of speaking to Zenith Insurance’s clients and brokers on the subject preventing post-termination work comp claims. Zenith Insurance is a very proactive work comp underwriter concerned about a significant increase in those claims. While I’m not an expert on the traditional claims management side, I am an expert on the preventive side and here are some of the insights I shared:


1.      There are basically two different types of post-termination claims:

a.       “Single injury” claim – In this circumstance the employee argues that they suffered an injury at some time during their employment, but didn’t bring it to management’s attention either because it wasn’t bothering them all that much or they felt that their job was at risk should they report it.

b.      “Cumulative injury” claim – The employee claims that the straw that broke the camel’s back happened post-employment but was the result of an injury accumulated over time during employment.


2.      Depending on the state you are in, the work comp system will require the employee to show some medical proof of the previous injury. They often times will require proof of pre-termination medical records related to repetitive stress injuries, or unreported injuries.


3.      Most many post-termination claims are legit. We’re all familiar with cumulative stress injuries that can cause anything from carpal tunnel to lower back to eyesight problems. Again, to what degree is there proof that these injuries began pre-termination? Did they ever remark to a physician that these body parts were causing them difficulty?


4.      Why would ex-employees file illegitimate claims? It is possible they could do so out of ignorance as they are not physicians. That’s at least a remote possibility. Most likely they are doing so because they have a fear of losing the income they need to survive. Most blue collar workers tend to find themselves working from paycheck to paycheck. There’s not a great deal of margin for error. Missing even a few paychecks could put them in a financial spin. When one’s very survival is at stake, we can do pretty much anything. In light of today’s unemployment rates, this concern is at an all-time high. Other reasons include a desire for revenge, pressure from friends or family members to “play the game,” and misinformation about what they can or should do.


5.      The best way to address these fears and concerns is on the front-end. For example, do everything you can to educate terminated or laid off employees about what it takes to get another job. Consider paying for them to use a job search preparation program such as If they are a good employee let go during a layoff, contact your local staffing agency, they may be excited to get them a job right away. I would encourage you to create some sort of FAQ to help terminated or laid off employees.


6.      How do we prevent the non-reported claims if not legit? You can begin by removing any disincentives to reporting claims. As I’ve written before, incentive programs such as injury free workdays can cause a cultural pressure to not complain about or report an injury. The unfortunate reality is there are many employers who don’t want to know that an employee is injured. They would rather let “sleeping dogs lie.” Big mistake! In my experience, injuries tend to get worse over time, not better. Especially the ones that end up getting reported. The best time to deal with an injury with an employee is also the best time to deal with your own injury—and that’s right now.


7.      I encourage my clients to have their employees use a Declaration of No Injury form on a regular basis. While it cannot prohibit the filing of a false claim, it can certainly disincentivise the filing of one and give proof of fraudulent conduct. You simply ask people if they have been injured and if they have reported all injuries and do so on a regular basis. You can do it weekly or monthly depending on your risk tolerance.


8.      Be aware when employees are using sick days, requesting disability accommodations, or FMLA leave that the underlying reason may be work related.


9.   Lastly, you can encourage good behavior by sending a message to employees that you do care about their health and you do want them to timely report claims. You can let them know that claims reported post-termination are looked on with great suspicion. You can tell stories about employees who have properly used the work comp system to the benefit of themselves and the company.


If you’re interested in an extensive report on how to prevent injuries and manage claims, please send me an email at  

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A Great Salesperson

Author DonPhin , 12/11/2012

I recently spent time reading through hundreds of comments on a blog post about what makes for a good sales person. In my mind the factors mentioned are stepping stones to success in most any career. Here’s a summary of factors discussed in alphabetical order:

  1. 1. Ability to look you in the eye – Doing so means that you’re sincere, trustworthy, and have integrity. The inability to do so means just the opposite.
  2. 2. Belief in themselves – This is certainly part of being positive. Do they expect to succeed? Do they expect to get the sale? Do they expect to sell them something else?
  3. 3. Desire for follow up – It’s much harder getting a new customer than it is to keep a customer. Salespeople who engage in follow up produce a much higher lifetime value of those customers.
  4. 4. Dress for success – Remember the goal is to dress as good, if not better than, the prospect. Dress like you take your prospect or client seriously.
  5. 5. Excellent listening skills – This means they don’t cut people off mid-sentence. The best sales people ask questions at four times the rate of poor ones. Then they listen. And listen.
  6. 6. “Fit with the team” – Do they match your corporate culture? Does their sales approach use high pressure tactics when you’re interested in being more nurturing?
  7. 7. Highly motivated – Salespeople need a big “why” to be successful. Do they have the intrinsic motivation to get out there and sell? If so, make sure you don’t do anything that would diminish that motivation.
  8. 8. Interest in the customer – It’s very hard to sell to somebody you don’t believe in. That’s why it’s smart to see to your passion.
  9. 9. Interest in the product – It’s very hard to sell something you don’t believe in.
  10. 10. Positive – They are positive people. Life enhancing. As Norman Vincent Peale wrote about, the Power of Positive Thinking. As Monty Python would say, “Look on the bright side of life.” Who wants to be around a downer anyway?
  11. 11. Problem-solving ability – They know how to think outside of the box. They’re not stuck in some formula that does not fit the prospect’s needs. So, give job applicants a problem to solve.
  12. 12. Resiliency – Sales is not an easy game. Can they take the hit and keep on ticking?
  13. 13. Sense of humor – Along these lines, can they tell a good joke and take a joke? Do they understand the difference between telling jokes in business settings as opposed to telling jokes with their buddies? 
  14. 14. Too pushy – Nobody wants to feel like they’re working with an automobile salesman (apologies to all auto salesman). We want buying to be our decision; not somebody’s manipulation. The secret is to allow the prospect to be the hero in the sales process.
  15. 15. Understanding human emotions – People buy emotionally before they ever buy logically. Have they spent the time to understand the emotions associated with sales? Have they gone so far as to study neuro linguistic programming? Take a look at the book summary on HR That Works The Power of Persuasion by Robert Cialdini.
  16. 16. Willingness to follow the process – Most good sales are process driven. For example, are they willing to make 25 cold calls this week?
  17. 17. Willingness to gather leads – Are they willing to knock on doors, write blog posts, tweet about your product, speak to a group?
  18. 18. Willingness to learn – Do they listen to their mentors? Do they read books on sales? Do they take sales training on their own? Remember, to earn more, we must learn more.

Interestingly, in a recent book I read Emotionomics, author Dan Hill said that the three most important characteristics of salespeople are that they be upbeat, caring, and resilient.


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