House Passes Bill to Help Small Contractors Win More Sole Source Contracts

The Small Business Administration (SBA) has for many years created various categories of 8(a) or otherwise disadvantaged small business categories to try and create opportunities for small and emerging federal contractors. The SBA’s goal has been to serve as a “conduit” between those government agencies who have contracts containing small business set asides, and those small businesses that can fill those needs. While the SBA’s efforts have gone a long way, many pundits have long wanted Congress to step in to up update the regulations to better utilize small, disadvantaged federal contractors and to better reflect the current federal contracting landscape.

Earlier this year, the U.S. House of Representatives passed House Resolution 190 (H.R. 190)1 , titled the Expanding Contracting Opportunities for Small Businesses Act of 2019, which proposes some dramatic changes to sole-source contracting for small businesses. Most significantly, the bill seeks to increase the size of sole source contracts for SDVOSBs, WOSBs, and HUBZone contractors.

A. Background

FAR Part 19 currently allows contracting officers (CO) to award sole source contracts, albeit under tight restrictions, to 8(a) small businesses, Service-Disabled Veteran-Owned Small Businesses (SDVOSB), Historically Under-utilized Business Zones (HUBZones) and Women Owned Small Businesses (WOSB). Except in the 8(a) Program and VA SDVOSB/VOSB program, a CO may not award a sole source contract under FAR Part 19 if there are likely two or more qualified concerns likely to submit competitive offers. If there are qualified concerns able to perform the contract at fair and reasonable pricing, then sole sourcing is available. In addition, sole source contracts may not exceed certain dollar thresholds under FAR Part 19. Current regulations provide that the CO cannot issue a sole source award if “the anticipated award price of the contract, including options” exceeds $7 million maximum for manufacturing NAICS code contracts or the $4 million maximum in the case of all other contract opportunities. When calculating the award price of a sole source contract under FAR Part 19, the CO must include the anticipated price of all option contracts that might be added to the base year contract.

Speaking on the floor of the House in support of HR 190, Representative Steve Chabot (R-OH) explained the problem with the current regulations this way: “The Small Business Act currently allows Federal agencies to award sole-source contracts to [WOSBs; SDVOBs,] HUBZones; and socially and economically disadvantaged small businesses. However, these awards can only be made in the narrowest of circumstances, rightly protecting the ability of small businesses to compete against each other. Even though Federal contracting officers have this procurement tool in their toolbox, the reality is that small business sole-source contracting is rare and may be underutilized. This can, in part, be attributed to the fact that the maximum dollar threshold for Federal sole-source contracts designated in statute has fallen far behind the typical size of contract awards made today. As contracts increase in size and scope, the usefulness of small business sole-source contracts diminishes, to the detriment of small contractors eligible to receive such awards….”

B. The Potential Impact of HR 190

If eventually signed into law, H.R. 190 would eliminate the words “including options” from the spending limit portions for HUBZone, SDVOBs, and WOSBs. This would allow CO’s to consider the cost of only the base contract when awarding sole source contracts, and would eliminate the need to consider the price of possible option years. HR 190 would also raise the threshold amount that federal contracting officers may award in sole-source contracts to certain types of small business from $4 million for the life of the contract to up to $7 million per year, bringing sole source contracts more in line with the average size of government contracts awarded in today’s market.

Notably, 8(a) small businesses are not included in the companies listed whose sole source limits would be increased under H.R. 190. However, as this bill advances through the Senate, this could change as lobbying efforts for the Bill begin to take shape.

In addition to increasing the contract dollar threshold, HR 190 requires the SBA to individually certify small business’ eligibility to receive such contracts upon request from a federal CO. Eventually, the SBA would be responsible for developing a program to determine small business’ eligibility to receive sole-source contracts. Additionally, this bill would require the Government Accountability Office (GAO) to evaluate federal policies and practices regarding classifying and awarding sole source contracts and to report to Congress on its findings.

Speaking on the House floor shortly before the vote on HR 190, Representative Nydia Velazquez (D-NY District 7) stated “[HR 190] promotes and preserves a strong, competitive marketplace for our Federal agencies while also strengthening the ability of women, service-disabled veterans, and socioeconomic businesses to participate with the single largest purchaser of goods and services in the world.”

C. What’s Next for HR 190?

HR 190 passed the House on January 16, 2019, and on January 19th was sent to the Senate for consideration. The Bill is now in the hands of the Senate Committee on Small Business and Entrepreneurship.

On March 6, 2019, Senator Joni Ernst (R-IA) introduced a companion Bill in the Senate (S. 673 – Expanding Contracting Opportunities for Small Businesses Act of 2019) addressing the same issues. That Senate Bill has also been referred to the Senate Committee on Small Business and Entrepreneurship.

The Senate committee will likely marry the two pieces of proposed legislation into a single Bill and send it out to the full Senate and then to the House to vote on. If it passes both houses of Congress, the Bill would then go to the President to sign into law. Although the process sounds simple, neither the House nor the Senate is obligated to take any further action, and the legislation could very well “die in committee”. Less than 3% of all Bills introduced by the House and Senate actually get passed into law. Nevertheless, this Bill merits following closely, as it could dramatically expand the sole source contracting opportunities for many SDVOSBs, WOSBs, and HUBZone contractors who struggle in today’s landscape to compete and win contracts.

C2 provides strategic HR outsourcing to clients who want to develop optimal workforce strategies and solutions to allow them to be more competitive and profitable. C2 blog posts are intended for educational and informational purposes only.


1 The bipartisan legislation was introduced January 3, 2019 by U.S. Representative Roger Marshall (R-Kan.) and co-sponsored by Representatives Josh Harder (D-CA) and Brad Schneider (D-IL). It passed the House of Representatives on January 16, 2019 by a vote of 415-6.

The Government Shutdowns are Over (For Now): Are You Prepared for the Next One?

Friday, January 25, 2019, marked the end of the longest government shutdown (35 days) in U.S. history, affecting approximately 800,000 federal government employees and many other federal contracting employees. The previous shutdown record was twenty-one (21) days, from December 16, 1995 to January 6, 1996, during President Clinton’s administration. During the preceding six (6) years, there have been four (4) different government shutdowns of varying duration. Prior to that, the next four (4) shutdowns occurred over a span of ten (10) years. Like it or not, government shutdowns are becoming more frequent, as both political parties use the shutdown to extract political or legislative concessions from the other side.
It was against this backdrop that one of C2’s longstanding government contracting clients phoned asking for some HR “best practices” guidance. Our client had no contracts that were affected by the most recent shutdown, but wanted to be ready for the next time it happens. As we explained to our client, although every company and workforce is different, there are some key issues that they should be prepared to tackle if some of their workers are affected by the next government shutdown.

     A. Government Shutdowns and the “Furlough” Designation

What does a shutdown “furlough” mean to federal contractors and their employees? According to the Office of Personnel Management (OPM), a furlough is “the placing of an employee in a temporary nonduty, nonpaid status because of lack of work or funds, or other nondisciplinary reasons” with some exceptions. OPM provides a reference document to help further explain the use of the furlough: “Excepted” employees (mostly emergency responders involved in the safety of human lives) are usually notified that the (https://www.opm.gov/policy-data-oversight/pay-leave/furlough-guidance/guidance-for-shutdown-furloughs.pdf).y need to continue to work, while the other non-essential employees or contractors will receive a Stop Work Order (SWO).

If your company does not receive a SWO, then you have options beyond the typical furlough. First, if your contract has already been fully funded, you could continue to allow your employees to go to work. However, depending on the contract and your employees’ need to interface regularly with their government counterparts (who will not be working during the shutdown), it may be impractical to have your employees report to their assigned workplace. The second option would be to reduce employees’ work hours on the contract or, where feasible, shift them temporarily to another contract within your company that is unaffected by the government shutdown.

     B. Using Other Types of Leave During a Shutdown

Contractors are not required to furlough their employees and, in fact, may utilize other leave options for their employees who cannot go to work due a government shutdown. Many contractors allow (or even require) employees to use accrued paid leave during a shutdown. For employees who lack sufficient accrued leave to carry them through the shutdown, companies can allow those employees to go into a negative leave balance so that the employees continue to receive a paycheck. Another, often overlooked option is allowing employees to file for unemployment benefits during the shutdown. Companies with contracts in states that provide unemployment benefits for this type of event may choose to provide employees with the contact information for their applicable state unemployment agency and even provide assistance with filing claims. Under normal circumstances, this is not an approach most employers would take. However, given the choice of either having to continue to provide paid leave or letting them leave for other positions at other companies (some of whom could be key employees), unemployment benefits can often provide a compromise solution.

A third option that some companies utilize is allowing affected employees to take leave without pay (LWOP). Although the employee receives no paycheck, this option allows the individuals to continue to be employees of the company, and may at least remain eligible for benefits under the company’s benefits policies. However, benefits eligibility can vary according to the terms of each policy’s master plan document, so companies should consult their benefits administrator and the carrier before conveying benefit options to employees who are in a LWOP status.

     C. Compliance with the FLSA and State Wage Laws

Contractors who have both exempt, salaried and hourly-paid, non-exempt employees working on a contract that is shutdown need to pay attention to the Fair Labor Standards Act (FLSA) and state wage law compliance – particularly during the first week and last week of the shutdown. Non-exempt, hourly paid employees provide little cause for concern – if they do not work, they do not get paid. Exempt, salaried employees, on the other hand, are typically entitled under the FLSA and most state wage laws to be paid for a full week’s salary, regardless of the number of days or hours worked during that workweek (subject to a few exceptions). So, if the government shutdown takes effect on a Wednesday, for example, and then concludes and employees go back to work three weeks later on a Tuesday, employers need to understand whether and under what circumstances they might have to pay their exempt, salaried employees for those partial workweeks that “bookend” the shutdown.

While exempt employees need not be paid their salary for weeks in which they perform no work, employers cannot deduct for partial week absences that are forced upon the employee due to the operational needs of the business. Thus, forced furloughs of salaried employees that last less than a full workweek can result in losing the exemption under the FLSA and state wage laws. An easy way to avoid this result, though, is to require the exempt employee to use accrued paid leave (or go in arrears) for the partial week absences, so that their salary for those partial workweeks at the beginning and end of a shutdown remains unchanged. Another option is to allow the exempt employee to voluntarily take unpaid leave (in whole day increments) for those partial weeks. But be careful: the use of this option must truly be at the employee’s option. A “forced furlough” of a salaried, exempt employee for a partial week is not allowed under the FLSA.

     D. Managing a Shutdown Means Helping Your Employees

In today’s society, living paycheck to paycheck is not uncommon, so any decrease in pay can be a huge problem for your company’s employees. However, as the most recent shutdown demonstrated, many organizations in our local communities not affected by the shutdown (e.g., churches, food banks, lending institutions, and various private businesses) were willing to provide assistance, suspend affected employees’ debt obligations, or provide food while the shutdown continued.

The largest expense most employees face is their mortgage, or rent. During the most recent shutdown, USAA, Navy Federal, PenFed, FedChoice, Wells Fargo, and BBVA Compass, just to list a few, offered various types of assistance to its mortgage customers affected by the shutdown. And Fannie Mae, and Freddie Mac offered streamlined refinancing options or allowed homeowners to exchange some of their home equity for cash to help cover short-term expenses during the shutdown.

In short, businesses and community organizations have shown a willingness to help employees affected by a government shutdown. While the resources available to each community will certainly differ, contractors with affected employees would do well to research some of these resources and provide its employees with a list of options to help get them through until a shutdown concludes. Treating your employees in a compliant manner from an HR perspective is important, but it can be just as important to provide your employees with the necessary tools to manage a shutdown on a personal and family level.

C2 provides strategic HR outsourcing to clients who want to develop optimal workforce strategies and solutions to allow them to be more competitive and profitable. C2 blog posts are intended for educational and informational purposes only

Addressing Absenteeism in Your Workforce

A client recently contacted us and wanted to discuss employee absenteeism. The client, a government contractor, had experienced a recent surge in employee absenteeism (for various reasons such as PTO, sick leave, call off’s, LWOP, etc.). Although the client did not want to broadly discourage employees from taking time off, such absenteeism directly affected their bottom line because when the employees missed work, they were not billable to the contract. The client wanted guidance on how to best address this conundrum and how to handle employees who had a pattern of unscheduled, excessive absences. A)   All “Absenteeism” is Not Created Equal Managing employees’ time away from work is a fact of life for any business; it is to some extent an unavoidable overhead cost that can vary from year to year.  However, not all absenteeism is avoidable.  By learning more about the causes of absenteeism and by better understanding employees’ motivations for missing work, employers can gain an understanding of how to reduce absenteeism among their workforce. What is Absenteeism? Absenteeism is regularly used to describe employees’ absence from the workplace – sometimes planned, but often unplanned and unannounced. Most employees miss work on occasion, but it’s important to be able to identify a pattern of unscheduled absenteeism in the early stages. There are two basic types of absenteeism; scheduled absences and unscheduled absences.

  • Scheduled absences include things such as vacation, holidays, and foreseeable absences like maternity leave or surgical recovery. These absences are usually allowed by company policy (or state or federal law). They are scheduled in advance, and easier to prepare for so the effect on the company’s productivity is minimal. Even extended employee absences can be less impactful if managers and affected employees have an opportunity to properly prepare for the employee’s absence.
  • Unscheduled absences, also a form of absenteeism, is defined as chronic or habitual absences that are not protected by Federal and/or State regulations. These absences often do not comply with company policy and are not pre-approved. Unscheduled absences also include habitual tardiness or employees leaving work early on a regular basis without authorization.

Both scheduled and unscheduled absences can have a negative impact on your organization’s productivity. While some absenteeism is unavoidable among your workforce, minimizing its effect on your organization’s operations requires some preparation. B)  Strategies to Mitigate the Effect of Employee Absenteeism One of the most effective strategies to manage absenteeism is to clearly set attendance and leave of absence expectations among your employees by implementing a clearly defined attendance and leave of absence policy and communicating that policy to all new hires – and even periodically thereafter to current employees, as a friendly reminder. Your attendance policy should provide concrete attendance expectations, including a definition of the workday and hours; the amount of sick, personal, and vacation time allotted to employees; procedures for using the leave; whether employees are allowed to “go into the negative” on their paid leave; and whether the company allows employees to use leave without pay (“LWOP”).  The procedures should outline how far in advance employees must notify their supervisors of their intention to take time off, and that those requests will be approved (or not) based on the business and operational needs of the company. For example, the need for work coverage during the summer or over holidays means that not everybody’s leave request may be granted. The policy should also explain the procedures for calling in sick, including whom to contact, by what means (i.e., phone, e-mail, text) and by what time on a given day. Finally, note which absences will be paid and which ones will be unpaid. In larger organizations, immediate supervisors are often the first to become aware of employee absences – particularly if they start to become excessive. Supervisors are in the right position to understand the reasons regarding an individual’s absence and to catch any problems at an early stage. Therefore, their active involvement in the company’s absenteeism procedures is pivotal to the overall effectiveness of an absenteeism policy or program. To ensure that supervisors are comfortable and well versed in their role of managing absenteeism, they need to have the full support of senior management. Therefore, they should be fully trained on the company attendance and leave policies. Another option supervisors can employ to combat Absenteeism is to conduct a return to work interview. Recent national surveys indicate that these interviews are regarded as one of the most effective tools for managing Absenteeism. Return to work interviews are designed to welcome the employee back to work, get a general idea of the employee’s well-being, and to have the employee or supervisor fill out any required paper work that may be required to restore the employee to active status. Some companies have found that an established procedure through which it can directly discuss absences with an employee can, on its own, act as a deterrent to absenteeism. Some companies choose the “carrot” approach, and reward good attendance. For example, a company might give employees a bonus for having no unplanned absences for a defined amount of time. Good attendance can also be incorporated into the annual performance appraisal  process and be one of the metrics used to evaluate whether a merit increase is warranted. Lastly, let’s not forget that absenteeism is sometimes legitimately due to a hardship in an employee’s personal life.  Offering the employee support, through an EAP program for example, may help the employee deal more expeditiously with personal issues that are affecting their attendance. While EAP’s or other types of company programs are traditionally viewed as a benefit for the employee, they also have the added benefit to the company of returning absent employees to the workplace sooner than they might have otherwise without the assistance program. C)  Be Proactive, Not Reactive In order for an organization to address absenteeism, it needs a committed and engaged workforce.  One way to foster commitment and engagement is by setting clear expectations and providing a support system. With regards to our government contracting client, C2 was able help the client improve its existing attendance policy so that all employees and managers were “on the same page” about attendance expectations and the types and amounts of leave available to employees.  Another great proactive approach is to provide your supervisors training on how to handle employee absenteeism, including making sure that all supervisors are familiar with the types of leave available to company employees, and that they are educated on some best practices to help them navigate absenteeism issues with more confidence and in a manner that promotes employee attendance.  Although there is no magic bullet to eliminating unwanted employee absenteeism, there are certainly steps that companies can take to help mitigate its frequency and affect on their overall operations.   C2 provides strategic HR outsourcing to clients who want to develop optimal workforce strategies and solutions to allow them to be more competitive and profitable. C2 blog posts are intended for educational and informational purposes only.

Is Telecommuting The Key To An Improved Workforce?

Recently “Emily”, an HR Manager at one of C2’s government contracting clients implemented an anonymous “suggestion box” to obtain employees’ ideas on how to enhance the company’s benefit offerings.  She discovered that a majority of respondents wanted the option to telecommute at least part of the time.  But before going to her management team to present the idea, Emily came to C2 for guidance on some of the benefits and pitfalls of telecommuting.

A.     What Does it Mean to Telecommute?

 Telecommuting, working remotely, work-at-home, or being a “virtual” employee are all terms that companies use somewhat interchangeably across a broad spectrum of industries. As a general matter, all of these terms mean the act of working at a location other than the company’s office or worksite, often at home, rather than commuting everyday to and from an office.  A growing number of companies are allowing employees in certain positions to telecommute on a full-time basis.  However, on average, companies allow employees to telecommute one to three days per week and report to the office the remaining days.  Obviously, the nature of a company’s business plays a tremendous role in the feasibility and amount of telecommuting that makes sense.  For example, non-exempt employees at a manufacturing company will be far less able to telecommute than salaried, exempt office employees of a software company.

B.     What are the Potential Benefits to Telecommuting?

Companies across the board have experienced mixed results with telecommuting practices.  But there are some potential benefits that continue to peak employers’ curiosity about its viability at their organization, including the following:

  1. Employee productivity increases with flexibility in work hours and location;
  2. Flexible work options reduce absenteeism;
  3. Telecommuting is eco-friendly and cost-effective, because less office space is needed; and
  4. Flexible work options increase employee retention and is a positive recruiting tool.

Improved Productivity. Employees have reported that they are more effective at home than when they work out of the office.  The primary reason they cite is that the seemingly endless interruptions at the office create a work pattern that is subject to repeated restarts, which increases the time it takes to complete tasks.   The additional aspect of socializing with other employees is also frequently cited as having a negative effect on productivity.

Reduced Absenteeism.  Telecommuters may be more productive because they have increased flexibility to schedule their actual working time. They have some flexibility to work during their most effective periods or navigate around other demands in their lives that would normally require them to be out of the office.  For example, some individuals are morning people, others are more productive at night.  A telecommuter may be able to better balance their work with personal demands in their lives (e.g., children, school).  And while telecommuting should not be a substitute for child care, it can afford employees greater flexibility in scheduling this type of care.

Telecommuting is also useful in minimizing the impacts of other occurrences, such as extremely inclement weather, highway construction, or special events (e.g., the Olympics).  In the Snow Belt, “snow days” at local schools force many parents to stay at home, rather than go to work, in order to supervise children usually at school.  And even employees without children can find it difficult to even get to the office.  These interruptions play havoc with deadlines and deliverables.  Organizations with telecommuting programs in place often find that employee productivity remains high during these times.

Overhead Savings.  Organizations with well-planned telecommuting programs have found they are able to reduce the size of their office and furnishing requirements for employees.  In addition to utilizing less square feet (and paying less rent), some companies have adopted office sharing arrangements whereby two or more employees share an office because they work outside the office part of the time.  This does require the company to schedule the use of office space, but the cost savings on office space often makes up for this additional administrative task. Some companies have chosen to create revolving work stations.  Employees are not assigned to a work station but may choose their work space upon arrival at the office.  As such employees are not “married” to their desks, office, or cubicle. Instead they “check-in” on days when they commute to work.   Some organizations have reported up to 30% reductions in overhead by allowing some personnel to telecommute.

Improved Retention and Recruiting.  Employees who have tried telecommuting tend to prefer it and tend to seek out similar opportunities at other companies when looking for new employment.  Employers are also realizing that telecommuting is a way to keep talented employees from “jumping ship” or who, for various personal reasons, find that they can no longer commute to the office.  A common example is when the spouse of a valuable employee is forced to relocate.  Companies are learning they can often retain the employee through the use of telecommuting.

Telecommuting is also a mechanism for recruiting persons with disabilities.  These may be individuals who are excluded from the work force solely on the basis of their inability to commute to and from an office.  (Companies who have employees with disabilities as telecommuters should take care to provide for some social interaction among all their employees.)

C.     There are Some Drawbacks to Telecommuting

Not every company sings the praises of telecommuting.  Contrary to employees’ assertions, some companies feel productivity actually decreases among telecommuting employees.  Also, allowing employees to work remotely (particularly on a large scale) can create unintended problems and raise concerns that companies need to adequately resolve before deciding to make telecommuting an option for their employees.  Some of the potential drawbacks include the following:

  1. Employee productivity actually decreases;
  2. Working remotely allows for abuse of vacation and sick leave;
  3. Supplying office equipment, and worker’s compensation insurance; and
  4. Telecommuting is too difficult to implement for non-exempt, hourly employees.

Decreased Productivity.  Some companies disagree that telecommuting creates increased productivity among employees.  One common problem that many companies point to is that employees who work remotely tend to get distracted by outside demands on their time that they would otherwise put off until after work or their day off if they were coming into an office every day.  Everything from kids, to pets, to doctors’ appointments, to appliance repairmen are thought to detract from employees’ productivity by creating distractions that are not present at an office.

Abuse of Paid Leave.  When employees work from home, they are able to incorporate into their day some things that they would have otherwise had to take vacation or sick time to cover.  Doctor’s visits, school meetings, home repair visits, car service appointments, etc. are just some of the tasks that telecommuting employees can do during their day without taking paid leave.  An employee who works from the company’s office would ordinarily have to take vacation or sick leave to accomplish these things during the business day.  While companies can try to make telecommuting employees use their PTO for such things, monitoring their whereabouts when they are not in the office is not always easy.

Creating a Viable Remote Office.   Companies who allow employees to work from home are still obligated to provide them a safe environment from which to perform their duties.  Furthermore, employers should check with their insurance carrier as to whether their workers’ compensation coverage will apply to their employees’ home office.  Companies often utilize a formal agreement to iron out employee safety and insurance issues – sometimes even requiring the employee to attest in the agreement that her home work space contains certain items (i.e., ergonomically sufficient desk and chair, sufficient lighting, a room or space designated solely as an office, etc.).  Another oft cited concern by companies is that supplying office equipment to telecommuting employees can be a hassle and often results in loss of the items when an employee departs the company.  In other words, it is far more likely a company will recoup all the company property from an employee’s office that is located at the company’s worksite as opposed to being located in the employee’s home.

Monitoring Non-Exempt Employees’ Time.  By all accounts, telecommuting seems to work better for exempt employees than non-exempt employees.  Exempt employees do not necessarily need to punch a “time clock” and their pay is not driven by the precise number of hours they work during any given day or week.  By contrast, non-exempt employees only get paid for hours they actually work – and therein lies the rub.  Many companies find it difficult to monitor the hours “actually worked” by non-exempt employees who telecommute.  Certainly, many companies today have electronic time keeping systems where employees can “clock in” and “clock out” using a computer or even a cellphone.  But some companies believe that allowing non-exempt employees the option to telecommute invites “time card fraud,” because there is no consistent means to monitor whether a non-exempt employee is working when they are not in the office.

D.     The End Result for Employers

There are undoubtedly pros and cons to allowing employees to telecommute.  Whether it makes sense for any particular organization to implement a telecommuting program for some or all of its employees requires an individualized assessment of many factors, including the type of work the company performs, the makeup of its workforce, the practices of its competitors in the market, and whether the company thinks it can reap any overhead savings or other tangible benefit (as opposed to simply providing the employees an additional benefit program). Those companies that decide to utilize some form of telecommuting arrangement for its employees are well advised to create appropriate handbook policies, agreements, and other written parameters so that both the company and the employees are all on the same page.

C2 provides strategic HR outsourcing to clients who want to develop optimal workforce strategies and solutions to allow them to be more competitive and profitable. C2 blog posts are intended for educational and informational purposes only.

 

Workplace Violence – Is Your Company Prepared?

Workplace violence is a major concern for both employers and employees. Not only does it adversely affect the victims of violence, but it can undermine employee morale, cause good employees to leave, adversely impact employee performance, and even negatively affect employers’ bottom line. Unfortunately, since workplace violence can occur in any workplace, all employers should understand how best to prepare for and respond to this impending threat.

C2 recently confronted this issue when an employee of one of our government contracting clients complained that a co-worker in her workplace was exhibiting aggressive behavior. The employee was concerned because the co-worker had shown a short-fuse during recent encounters, had slammed his hand in frustration a few times, and the employee was feeling nervous and upset on a continuing basis.  Both the client and the employee wanted to know what could be done.

  A.  What is Workplace Violence?

 According to the Occupational Safety and Health Administration, workplace violence consists of any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site. It can range from verbal threats and abuse to actual physical assaults and even homicide; and can involve not just employees, but also clients, customers, or visitors.

Each year, nearly two million American workers report having been victims of workplace violence.  Researchers have identified factors that may increase the risk of violence for certain workers and worksites. Working alone or in isolated areas may contribute to the potential for violence. Additionally, the time of day and location of work, such as working late at night or in areas with high crime rates, are also risk factors that should be considered when addressing issues of workplace violence. Jobs or worksites with a high stress level also appear to be contributing factors that increase the risk for workplace violence.

According to the National Institute for Occupational Safety and Health, workplace violence falls into four categories: Criminal intent, customer/client, worker-on-worker, and personal relationships, which overwhelmingly affects women. Statistics for workplace violence-related injuries and deaths occurring during 2013, categorized by industry, include the following:

  • Government: 37,110 injuries, 128 deaths
  • Education and health services: 22,590 injuries, 35 deaths
  • Professional and Business Services: 4,460 injuries, 65 deaths
  • Financial activities: 1,100 injuries, 37 deaths
  • Transportation and warehousing: 840 injuries, 71 deaths

  B.  What can my company do to be prepared for workplace violence?

It is not enough for employers to simply know whether their worksites are statistically more likely to suffer an incident of violence. Employers should educate and train their managers on how best to handle violent situations if they occur.  Employees should also receive education and training on how to avoid, recognize, and if necessary report violence in the workplace.  While every company and worksite are a little different, the following is a good starting point for any employer:

  1. Educate employees about the organization’s zero tolerance policy. A good zero tolerance policy clearly establishes that violence or threats of violence will not be tolerated at the workplace. Make sure you communicate the policy to your employees. It is critical that employees understand that they should report any concerns regarding incidences of workplace violence. Additionally, train supervisors and employees that reporting unusual behavior to Human Resources is the best initial step.
  2. Enforce the organization’s policy and report violations. Treat everyone the same. For example, if you write up one employee for a questionable outburst at work, that should be your practice for other employees who commit similar infractions. Consistency and fairness in enforcing policies will help illustrate to your employees that your zero tolerance policy is more than just words on a page.
  3. Secure your workplace. Make sure to keep your employees as secure as possible. This may mean checking that all doors are properly locked or that security cameras are functioning. If you are aware of any malfunctioning security equipment or any potentially vulnerable areas at the workplace, you should immediately report your findings to the appropriate person. In today’s world, keeping unwelcome intruders out of the workplace has become increasingly important.  Other good security related practices include: publishing to employees the location of safety equipment and first aid kits, designating specific person(s) to account for members of their work group or department, providing easy access to a phone to contact emergency personnel, and making the list of contacts readily available for employees to refer to in case of an emergency.
  4. Create a culture of respect and tolerance. Make sure your managers set the example. If you become easily outraged or yell at employees, then you may unwittingly inspire other managers or employees to emulate you. A climate that tolerates or fosters needlessly aggressive behavior can increase tensions and thereby increase the risk of violence. Strive to create the type of environment that cultivates goal-oriented creativity and a shared sense of business purpose.
  5. Identify and Reduce Stress. Review employee qualifications to ensure they match job requirements; and make sure employees are not overworked vis-a-vie their co-workers.  Employees experiencing a build-up of workplace stressors may be at increased risk for acts of aggression or violence.  Managers should routinely talk with their employees about their job tasks and make sure that work is distributed in an equitable fashion across their team.

  C.  Impacts to Government Contractors

 Workplace violence has the potential to impact federal government contractors in a couple of unique ways.  First, an employee who verbalizes threats or actually commits an act of violence against someone else (even if it is outside of work) may jeopardize his security clearance level or may be asked by the government to not return to the worksite, which can leave the employer in a serious staffing bind.  More significantly for the company’s bottom line, prime and subcontracts may contain cancellation or termination provisions that may be invoked by the client or the prime contractor in cases where crimes are committed or violent acts threaten the integrity of the work being performed on the contract.

  D.  Conclusion

With regards to our client, we were able to walk them through the process of reinforcing their zero-tolerance policy, training their employees, and counseling the co-worker who was exhibiting aggressive behavior.  But unfortunately, there is no one-size-fits-all solution to eliminate workplace violence. At a minimum, employers should do more than assume it could never happen to them and, instead, craft a reasonable plan to educate, train, and support their employees so that workplace violence has less of an opportunity to rear its ugly head.

C2 provides strategic HR outsourcing to clients who want to develop optimal workforce strategies and solutions to allow them to be more competitive and profitable. C2 blog posts are intended for educational and informational purposes only.

Employers and Hurricanes: Managing Through a Natural Disaster

Hurricanes can be devastating for everyone involved; Particularly those unlucky enough to be located in the “eye of the storm.”  On an individual level, securing your home, loved ones, and personal effects as best you can (and then, of course, leaving the area during the storm) may be the best that you can do.  Even then, the devastation that hurricanes sometimes wreak can leave thousands of people without power, water, food, or even shelter for days, weeks or even months.  And while the personal toll hurricanes take on individual lives is often the media focus, there are countless secondary effects from such storms.  For example, how would a business continue operations if a majority of their employees’ lives were wrecked by a hurricane? Can any business truly prepare for such a devastating occurrence?

A.  Hurricane Summary

According to the South Florida Regional Planning Council, the official designated hurricane season runs from June 1st through November 30th each year. All hurricanes are dangerous and pose a threat of destruction, but some are more dangerous than others depending on storm surge, wind, rainfall and other factors.  To better predict the destruction risks of an approaching hurricane, forecasters have divided hurricanes into five categories, with category 1 causing the least amount of damage and category 5 causing the most.

  • Hurricane Categories
  • Category 1 : Winds of 74-95 mph: Strong enough to cause damage to shrubbery, trees, and mobile homes.
  • Category 2 : Winds of 96-110mph: Can blow down trees and cause damage to some roofing materials of buildings, windows and doors.  Evacuation routes could be affected due to rising water.  Strong enough to cause major damage to piers; marinas may flood and small crafts anchored in protected areas may be lost.
  • Category 3: Winds of 111-130 mph: Can rip foliage from trees and blow down large trees.  Damage is likely to roofing materials of buildings, windows and doors, and some structural damage to small buildings.  Strong enough to destroy mobile homes; and bring coastal and low-lying inland flooding.
  • Category 4: Winds of 131-155 mph: Shrubs, and trees and signs blown down.  Extensive damage to roofing materials, windows and doors.  Total destruction of roofs on small residences and mobile homes.  Flooding and floating debris is prevalent.
  • Category 5Winds greater than 155 mph: The most deadly and destructive category.  Complete roof failures and destruction of residences and industrial buildings; shattering of glass in windows and doors, along with dangerous storm surge levels and widespread flooding.

B.  2017 Hurricane Disasters

2017 was a particularly bad year for hurricanes in the United States, causing significant devastation to Texas, the Virgin Islands, Florida, and Puerto Rico.

  • Hurricane Harvey

Category 4: With rainfall topping 50 inches in some areas, Harvey devastated a swath of Texas stretching from the Houston area into Louisiana. The whole city was virtually underwater.  At least 77 people lost their life.

  • Hurricane Irma

Category 5: Hurricane Irma was an extremely powerful and catastrophic Cape Verde-type hurricane, the strongest observed in the Atlantic since Wilma in 2005 in terms of maximum sustained winds. Approximately, 132 people died in Florida, Cuba, Turks and Caicos, and other affected areas.

  • Hurricane Maria

Category 5: Hurricane Maria was regarded as the worst natural disaster on record in Dominica and caused catastrophic damage and a major humanitarian crisis in Puerto Rico, as well as being the tenth-most intense Atlantic hurricane on record.  More than 63 people died as a result.

 C.  Preparation is the Key

While it’s impossible to account for every disaster scenario, an employer’s response to a hurricane starts by preparing for it before it happens.  Attention and effort beforehand can help mitigate the effects of a hurricane-related disruption to your business in the future.  Here are five (5) tips recommended by The American Society of Safety Engineers (“ASSE”) to help your workplace prepare:

1.  Develop a Comprehensive Plan. An effective hurricane survival plan should be written down and reviewed annually. For many companies, an Emergency Action Plan (EAP) is required by OSHA, so hurricane planning can be part of the EAP planning and review each year. The plan should address, among other things, policies and procedures for employee safety regarding hurricanes, business continuity and contingency plans in the face of damage to the business’s facilities or infrastructure, and procedures for dealing with displaced employees, customers, and vendors, etc.

The Occupational Safety and Health Administration (“OSHA”) suggests that key features of an effective plan include:

  • Identifying those conditions that will activate the plan;
  • Setting out a chain of command during a disaster;
  • Assigning emergency functions and identifying who will perform them;
  • Write out specific evacuation procedures, including routes and exits;
  • Create a plan for accounting for personnel, customers and visitors; and
  • Identify any additional equipment that may be needed for personnel.

2.  Determine procedures and individual crisis management responsibilities. Identify which personnel are required to be on-site in the days surrounding a hurricane, as well as which personnel are essential to business function, whether required on-site or not. Be sure to communicate areas of accountability and responsibility for key personnel and how to perform their emergency-response duties effectively.

3.  Coordinate in advance with others. Understand the hurricane response plans of other businesses in your area as well as police, fire department, hospitals, and utility companies. It is also helpful to communicate in advance with suppliers, shippers, and others with whom you regularly do business.

4.  Prepare employees. Communicate your hurricane plan with your employees; ensure understanding of roles, responsibilities and expectations for everyone.

5.  Review emergency plans annually. Assess changes in your business or to the community that may affect your hurricane response plan and make the necessary changes each year.

D.  Employee Safety and Workers’ Compensation

Employers might think that OSHA would relax its standards during the aftermath of a devastating hurricane, but that is often not the case.  Regardless of the circumstances, employers are required to make their workplaces safe for employees to conduct their work – even after a hurricane.

However, OSHA recognizes that creating a safe environment can be challenging for employers as clean up begins in the aftermath of a destructive storm.  Therefore, the agency has established pages on its www.OSHA.gov website where employers can access various guidelines to specific workplace dangers likely associated with clean up and recovery, including flooding, electrical, fall protection, personal protective equipment, chain saws, mold, bloodborne pathogens and bacterial issues, tree trimming, trenching, and heat exposure. Employers should start with OSHA’s informative pages on Hurricane Preparedness and Response and Flood Preparedness and Response.

Employers should also not forget that employees who suffer physical injuries from a hurricane while at work, may be entitled to relief under the company’s workers’ compensation insurance.  Obviously, injuries sustained at home or while not on duty are not compensable.  But workers injured during the storm and while on duty should fill out a first report of injury and employers should submit it to their insurance carrier.

E.  “Military Leave” for Employees Called to Aid the Relief Effort

Should a storm be serious enough for the federal government to mobilize the National Guard or other military units, it is very likely that any employees called to serve as part of the relief effort would be covered by the leave provisions of the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”).  In addition to military personnel called up to serve in the federal response to hurricanes, the Bioterrorism Preparedness and Response Act extended USERRA’s protections to certain federal emergency workers dispatched to assist with national disasters, including those employees performing as intermittent disaster response appointees upon activation of the National Disaster Medical System (NDMS), even if they are not otherwise members of the uniformed services.

F.  Wage and Hour Issues

The most common wage and hour problem for employers in the aftermath of a hurricane is that their timekeeping or payroll systems are not operational, or time sheets were destroyed for the previous week before employees got paid.  There is no easy solution, since the Fair Labor Standards Act (“FLSA”) puts the onus on the employer to accurately pay employees for all their time worked.  As a starting point, employers should ask employees to try and recreate (via handwritten note, if necessary) their time for any prior days or weeks for which they have not yet received payment.  And then going forward (until timekeeping and payroll systems are restored), have all employees keep track of their hours on paper (or other means) and turn in their time to a designated person in the office. Unfortunately, the FLSA does not have a “disaster” exception that would allow employers to be late with payment to their employees or to waive overtime for employees who may have to work extra hours helping the company return to normal operations.  All wages must still be paid on time and in the correct amounts to all company employees.

The Department of Labor provides recovery assistance for those affected by hurricanes through its Disaster Unemployment Assistance (DUA) program. Information about the program may be accessed directly through the DOL’s website: www.dol.gov/general/hurricane-recovery.

Recovery Assistance for Hurricanes Harvey, Irma and Maria – Asistencia para la Recuperación de los Huracanes Harvey, Irma y María

 G.  Takeaway for Employers

There are often no easy answers for employers trying to recover from natural disasters such as hurricanes.  Early preparations, however, should be all employers’ primary focus – particularly for those employers that have offices or worksites in hurricane prone areas of the country.

 

C2 provides strategic HR outsourcing to clients who want to develop optimal workforce strategies and solutions to allow them to be more competitive and profitable. C2 blog posts are intended for educational and informational purposes only.