Forum discussion: How employers and managers can negotiate a changing workplace

Business Journals

16 hours ago

The workplace is changing all the time, but the pace recently seems to have accelerated. Employers are still dealing with a transition to remote work and how that plays out with employees and the office environment. And in recent months, the White House has issued executive orders concerning diversity, equity and inclusion initiatives that many companies have embraced. In addition, there have been changes to laws governing Social Security, 401k plans and other benefits. To sort it out, the Cincinnati Business Courier assembled a panel of legal, human resources, and benefits experts: Jennifer Walwyn Colvin, senior counsel, Calfee, Halter & Griswold LLP; Seth Priestle, partner, Pension Corporation of America; Andrea Whalen, senior human resources business strategist, Clark Schaefer Strategic HR. The forum, held May 15 at Union Hall in Over-the-Rhine, was moderated by Cincinnati Business Courier Market President and Publisher Jamie Smith.
The panel kicked off with a question about legal compliance today, as laws and regulations appear to be shifting rapidly. Attorney Walwyn Colvin reminded the audience that the big federal employment statutes still exist. Those protect certain classes of workers under Title VII, the Americans with Disabilities Act, the Age Discrimination and Employment Act, and others. 'We should all still work to comply with those, regardless of what's happening with DEI and other actions by the administration,' she said. However, for federal contractors and subcontractors, the landscape has changed. For them, 'There is no longer an affirmative action obligation for anything except veterans as a protected class,' she said. The current administration has abandoned attempts to overturn the injunction that stalled the Federal Trade Commission's 2024 noncompete ban, she said, so at this point, state laws will govern noncompetes.
That raised the question of laws governing people who work remotely in different states. 'The rules governing your employees will be based on where that employee is performing work, almost always,' Walwyn Colvin said.
Smith then asked what is changing in human resources work. Whalen agreed that federal laws regarding employment still stand, but said, 'It's about respect anyway. It's about how can you create the most respectful environment without the chance of discrimination.' Many companies have instituted DEI policies and procedures in the last few years, which are now under attack. Every company that has a DEI policy should review it, Walwyn Colvin said. 'There is obviously still the opportunity for inclusion and creating diverse teams,' she said. 'What the current administration has prohibited is preferences and quotas.'
Whalen said she has seen fear on the part of employers concerning their DEI policies. She advised, 'Let's see how we can work through and make sure that we're doing inclusion in ways that matter most to your team. A lot of it still applies.'
Smith then turned to potential changes in corporate retirement plans. Priestle of PCA said SECURE Act 1.0 and 2.0 brought fairly significant changes. Some are still working their way through the system. But one, effective this year concerning catch-up contributions gives people ages 60 to 63 a greater ability to make those. Another coming down the road next year requires high earners to make catch-up contributions through a Roth after-tax basis. Another provision that created substantial tax credits for small businesses starting new retirement plans has resulted in an influx of new plans being created.
Smith asked about retirement timing and how that may be affected. Priestle said changes in interest rates actually made it more beneficial for individuals covered by traditional pension plans to retire a year earlier in some cases. And the Social Security Fairness Act passed this year will affect those individuals with a public sector pension. 'It's a unique planning opportunity for teachers, cops, firefighters, and so on to make sure they're aware of it,' he said.
Whalen said she sees a lot of people who don't want to retire because they've seen huge fluctuations in their 401k plans and are worried about Social Security benefits changing. She also hears from employees at retirement age, who want to continue working part-time. 'Think about great ways, interesting ways to keep those people who want to stay and be productive,' she advised employers and managers.
A new administration has brought some new trends in employment regulations. Walwyn Colvin suggested that HR professionals review the company employee handbook with an eye to recent changes. She also suggested doing an audit of employment authorization forms or Forms I-9. 'With the immigration issues and raids, frankly, and deportations, we found that there are certain industries where, if you have not properly engaged in the I-9 process and ensured that the workers are authorized, it's possible you lose a significant portion of your workforce all at once.'
Walwyn Colvin said she is also seeing more employment disputes coming based on reductions in force and misclassification claims. She suggested reviewing job descriptions to make sure that workers are properly classified as employees or independent contractors, and also whether employees are properly classified as exempt or nonexempt from overtime pay.
Smith asked how important it is for multi-state corporate HR teams to work locally to make sure everything across the board is equal. 'It's really about consistency,' Whalen said. 'Job descriptions and the duties of what they're doing, and skills required should be pretty consistent.' Walwyn Colvin added that some states have different requirements related to who can be exempt. 'The state tests are often more restrictive than the federal tests under the Fair Labor Standards Act,' she said. The positions she sees misclassified most often include staff accountants, human resources generalists, and administrative assistants.
From a legal perspective, it's preferable to have a signed job description that's accurate, Walwyn Colvin said. She also suggested retaining documents or reports that lead to changes in job descriptions.
Whalen suggested that when changing a job description, make sure that the manager and the employee or incumbents in that role review the changes and sign off on them. Those new qualifications and job duties then need to be changed in the performance review system.
Walwyn Colvin added that with remote workers, job descriptions can include cross-functional collaboration with individuals who are at the office location, and that can be included as an essential job function. 'You can then enforce it in a performance review,' she said.
Smith brought up the needs and styles of different generations in the workforce. Whalen said most employers now have five generations in their workforces. 'The difference now is that there are smaller numbers coming in with Gen Z, so it's harder to find people,' she said. 'The different generations are being more vocal and more adamant about wanting a different lifestyle with work,' she said. Understanding generational differences and the talents of each and then adapting the culture will improve hiring and retention, she said.
Walwyn Colvin remarked that younger generations generally need more feedback about their performance. 'It's the surprised employee that is more likely to sue,' she said. 'You have to be very clear and communicate about performance that is not satisfactory.' Priestle recommended looking at the entirety of the benefits package to make sure it's relevant to the types of employees you want to attract and retain.
Whalen reminded the audience, 'The number one key benefit everyone still wants, no matter your generation, is pay.' But the desire for benefits such as financial counseling, retirement benefits, and time off may differ among generations.
Turning to Priestle, Smith asked about retirement planning in this era. He responded saying that although traditional pensions are becoming a thing of the past, the workplace is still the primary means by which people save for retirement. Employers have flexibility to pick and choose different features within their retirement plans and reduce barriers for the type of employee population they have. How to communicate that plan to the workforce is another point to consider. He is also seeing financial planning as a workplace benefit. 'Offering comprehensive financial planning to your employees can be very beneficial in this, and, if done correctly, can run the gamut of your population.'
The discussion turned from financial benefits to health and wellness, as Whalen said, she had changed her attitude about its importance during her career. 'It's critical,' she said. 'It's part of what employers should be doing.' That includes mental health too, she said. 'It's not just about providing some tips and wellness benefits,' she said. 'It's more about looking at the overall health of your culture, and the overall health and wellness, including mental health, of your employees.' About 75% of all employees often deal with mental health challenges, she said, citing a recent survey.
Walwyn Colvin notes that mental health challenges can affect leave under the Family Medical Leave Act and under the Americans with Disabilities Act. Once an employee has a mental health challenge, the employer needs to consider if there are any functional limitations affecting performance of the job and, correspondingly, if accommodations might be appropriate, she said. She also cautioned employers that if a manager hears something from an employee that indicates a potential health issue, they should be trained to escalate it, 'don't just stay quiet and walk away, because your duty is triggered to engage in the interactive process.'
Smith turned again to financial questions, asking Priestle how companies can design retirement plans that are attractive to employees but also financially sustainable for the organizations. Priestle noted that it is very beneficial to have employees who are financially healthy, as employees who are in financial straits will not be productive. 'There is a return on investment to the company from the standpoint of structuring retirement benefits,' he said. He suggested starting with a traditional 401k plan, then considering nonqualified plans that allow for more creativity about who you offer those to. These can be tied to job and company performance.
An audience member asked about Generation Z. 'How do you advise trying to change that culture from the bottom up?' Whalen suggested trying to understand, or encouraging the organization to understand, the benefits that Gen Z brings, as well as the reasons behind their preferences. Forming cross-generational teams to do training also helps, she said. 'It boils down to just getting to know the person individually,' she said. 'Each generation has different unique qualities that they bring to the table, but each person has their own unique qualities too.'
The conversation then turned to remote work and who is eligible for that as well as rules around the practice. Walwyn Colvin recommended making sure remote work decisions are very intentional and then creating standards around who is allowed to work remotely, and monitoring performance to expectations. 'Look at what standards and expectations can be set, including some that are quantitative, if possible, to make sure that performance can be managed even when an employee is remote' she said.
Smith asked the experts for any final thoughts. Priestle said it is imperative that companies have an internal champion for financial wellness. 'They need that person in the organization to truly push the benefits and push the importance of them,' he said. Having that person internally to promote the programs increases their utilization substantially, he said.
Whalen agreed, saying providing education about benefits, whether they are financial or concerning time off or mental health, will be helpful to both the employees and their company.
Walwyn Colvin suggested that employers review policies to make sure they still serve the company and that they're accurate. Then, managers need to be trained on them. 'Your managers are going to be your first line, enforcing your policies and setting your culture,' she said. She recommended consulting with the company's legal counsel often, even if it's brief. She is seeing an uptick in litigation-demand letters. 'It seems like people are worried and nervous about the economy or other job prospects,' she said. Claims of discrimination and harassment are also up, she said. Walwyn Colvin advised making sure harassment policies are up to date and that they have reporting mechanisms that are useful and effective.