Personnel Records: Sexual Orientation Changes

A recent Forbes article on the tax implications of infamous whistle-blower Bradley Manning’s planned transition from male to female also made me curious about the HR implications of such a change in an employee’s sexual orientation.  What started as a quest to find an answer to whether or not or when Personnel Records needed to be updated quickly became an interesting overview of the complexity of this issue.  While not always the last authority on any controversial human rights subject, the American Civil Liberties Union once again provides some general direction on how to handle an employee in an organization who has decided to change their sexual orientation from one sex to the other.

1. Are there laws that prohibit discrimination against transgender employees?

Yes. California, Colorado, Connecticut, Hawaii, Illinois, Iowa, Maine, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington and the District of Columbia all have such laws. Their protections vary. For example, Nevada’s law bans discrimination in employment, housing, and public accommodations; Maine’s law covers those categories plus credit and education.

At least 150 cities and counties have passed their own laws prohibiting gender identity discrimination including Atlanta, Boise, Buffalo, Cincinnati, Dallas, El Paso, Indianapolis, Kansas City, Louisville, Nashville, New Orleans, and Pittsburgh. A list of localities with nondiscrimination laws that cover gender identity and/or expression is available at


2. Does an employee have to have undergone sex reassignment surgery in order to be protected by these laws?

No, they do not.


3.       Can a person change his or her name to reflect his or her gender identity?

Yes. In some states, through what is called “common law name change,” people may change their name simply by using the new name in everyday interactions. It is free and easy, but does not create the kind of solid paper trail needed to change identity documents.

The other way to change one’s name is to file a petition in court. Most judges will grant a name change so long as they are convinced that the petitioner is not trying to evade debts or the police.

In rare cases, judges have required a transgender petitioner to prove that he or she has undergone medical procedures that show an intention to live permanently in the gender associated with the name desired.


4. Can a person change his or her name and gender marker with the Social Security Administration?

Yes. To change his or her name with the Social Security Administration (SSA) and obtain a new Social Security card, a person needs to submit a court order reflecting the name change. SSA officially requires a surgeon’s letter in order to change a person’s gender marker in its records. However, a letter from a physician documenting that one has “completed all the recommended medical treatment” for “altering one’s body and appearance” or “a gender transition” is frequently enough.


5. Does the law protect a transgender person’s right to use the restroom consistent with his or her gender identity?

There’s no clear answer because very few courts have considered this question.


6.       If one spouse in a marriage transitions, is the couple still legally married?

Yes. A marriage is valid unless and until one or both spouses get a divorce or annulment.

Even without a divorce or annulment, legal problems can arise from a spouse’s transition. For example, employers have been known to refuse health benefits to a spouse who is now of the same sex as the employee. Likewise, when one spouse dies, the surviving spouse may have problems collecting inheritance or tax benefits restricted to married couples. There’s very little law at this point on these issues.

As you can see, not all questions have easy and straight-forward answers.  However, as it becomes more common for these situations to arise it is all the more important for employers to prepare general policies that reflect current Federal, State and Local law as well as the protect all employees from discrimination.  Furthermore, because many of the legal issues as it relates to employment have yet to be fully addressed by the legal system, it makes good business sense to seek out the advice of both Human Resource and Employment Law specialists.

The Small Business HR Resource

The HR Experts for Small Business

Affordable Care Act: Not Just for Large Employers

Many people think that The Affordable Care Act, Obamacare, is for large employers only. HRInsights is here to tell you that that notion is not entirely true. All part-time worker hours, regardless of number of bodies working, in one month divided by 120 (30 hours every 4 weeks) is equal to the number of full-time equivalents (FTE’s) in your organization. If you have at least 50 full-time employees and/or FTE’s in your organization, pay attention to the chart below. If you have less than 50 full-time employees and/or FTE’s but already provide health benefits, you could be eligible for tax credits.

What we’re really trying to say is … read the chart below (click to enlarge).

ACA Pay to Play Guidelines pic

4 Metrics to Predict Future Organization Success

HR leaders today face challenges in making the most of their human capital investment.  In order for organizations to be successful in today’s environment, HR will need to review and redesign professional tools and processes to be able to measure data and facts to ensure a competitive edge. HR leaders are challenged today more than ever to make sound business decisions.  For us and our leadership teams to make decisions, we need to have correct data and facts. But, we continue to struggle with the answer to, “What should we measure?”.

Historically, we have measured areas such as cost per hire, absenteeism, benefit cost per employee, and turnover rate. While these have been important, we should consider the future of our human capital investment and measure the areas that help us make decisions for today and growing into tomorrow. The areas measured on the past do not have predicative or strategic planning value.  These items only report the past HR activities but do not provide guidance as to what can or should be done to improve the effectiveness of HR for the organization.  As HR professionals, we need to develop forward-looking analytics designed to improve understanding of employee desires and engagement. These analytics are metrics that can be used to alter the HR strategy for better hiring and retention practices in the future.  Following are four metrics that an HR leader can consider for implementation and assistance with the forward facing view of human capital:

  1. Retention rate of employees in critical roles:  Which roles have the biggest impact on your organization’s success and which roles are the most difficult to fill?  What is the retention rate for each of these positions?  This information will allow you to see if you are spending money on repeating the recruitment of these roles.  Once you determine which roles are key and which have low retention, you can figure out the reasons for the turnover.  Is it the workload? Is assistance needed?  By understanding the reasons, you can develop an action plan to identify and retain good talent.
  2. Career progression metrics:  These can be metrics to measure the average amount of time in a position before a promotion or change in job title.  Many employees site career progression as key criteria when seeking other employment positions. Use these metrics to see how attractive your organization looks to prospective candidates.  This measurement can also be an indicator of the number of employees not being promoted or moved into other positions.   By determining the reasons, solutions can be implemented to ensure future candidates have the opportunity to advance, and may assist incumbents with mobility.
  3. Percent of employees that support organizational change:  Employees that do not support organizational change are not likely to stay.  Each time a substantial change is implemented, survey employees to see how they feel about the change.  If you find that change is not accepted within your organization, this could be a reason for turnover.
  4. Employee engagement index:If employees are not engaged and happy, they will ultimately leave an organization.  Find a way to measure engagement within your organization.  Many companies use an employee survey to measure happiness in a few areas within the organization.  By having this information, goals can be developed and specifics for causes can be derived from the survey questions.

Traditional HR metrics remain useful but not predictive for the future success of an organization as it relates to human capital and strategic decision making for HR.  With these four new metrics, you can take practical steps to improving future business outcomes.

Salary = Exempt From Overtime?

Many employers and business owners believe that because they pay someone on a salary basis they are exempt from receiving overtime.  This is not always the case.

A good example is someone working as a receptionist.  According to the Fair Labor Standards Act (FLSA), for a full time administrative employee to be exempt from receiving overtime, they must make more than $455 per week (or $11.37 per hour) and their primary duty includes exercising of discretion and independent judgment with respect to matters of significance.  A receptionist making $440 per week ($11 per hour) would not be exempt from receiving overtime on two accounts:

  1. Their salary is below the $455 per week threshold, and,
  2. Their main duty is to answer the telephone and not using judgment with respect to matters of significance.

In this instance the receptionist should be paid overtime for all hours physically worked over 40 hours in a week (i.e. vacation, holiday, and personal time do not apply as being physically worked).

Refer to the FLSA on the Department of Labor’s website for specific details as they relate to each employee classification.  OR, for any small business HR issues contact

The Small Business HR Resource

To Hire or Not To Hire

With only 2 months left in the 4th Quarter, many business owners are now looking at tasks that need to be completed before year-end and also with an eye towards 2013 goals and objectives.  Both year-end holiday needs and 2013 goals and objectives may include adding staff.  Before you decide to hire full time, HRInsights has this rule of thumb:

Only hire full-time if sales are forecasted at a level necessary to maintain that person’s salary for at least a year.  If not, but you still need assistance, temporary employment may be the option for you.

Although there is a cost associated with hiring through temporary agencies, they are not as expensive as one might think.  The agency takes on the burden of finding the individual(s), paying the individual, paying taxes on their behalf, performing background/criminal checks and paying workers’ compensation costs.

Finding the right person can take a considerable amount of time; time you or your staff may not have.  HRInsights has found that the average number of resumes received for administrative positions is between 300 – 500.  Does your organization have the resources to sort through that many resumes, perform phone screens, in person interviews, make an offer, etc.?  Probably not.

When looking for a temporary agency, two questions to keep in mind are:

  • Is the agency slightly more expensive but provides additional value added services?
  • What is the agency’s own turnover rate internally in addition to that of their temporary workforce?

HRInsights has also found it critical to have one point person at the temporary agency with whom to communicate.  With one contact, you reduce confusion, improve the consistency of the candidates you screen, and, therefore, reduce the time needed to find the right worker for your particular needs.

If you have any small business HR issues, feel free to contact the HR professionals at

“The Small Business HR Resource”



How Has Sandy Affected Your Small Business?

The immediate impact that Hurricane Sandy has had on the Eastern seaboard is, and continues to be, massive. Considering the current toll, what will be the long-term impact? There are so many different ways that this storm will effect us all, but let’s look at the effect it will have on small businesses and how we can help ourselves minimize that damage.

Obviously, if you have a brick and mortar place of business as opposed to an online business, you are more susceptible to the immediate risks that any natural disaster will pose. If there is physical damage to your store and/or inventory, it’s going to cost you to repair and replenish. On the other hand, if you have an business and you can work from home, there is still the issue of being able to deliver goods to affected areas. Business still suffers if you can’t distribute your product.

Those are some pretty obvious ways that a major disaster could effect your business. What about the not-so-obvious examples? People/teams flying into an impacted area are no longer able to fly in. Webinars, seminars and trade shows have been cancelled. Offices are unable to communicate with other offices in different parts of the country/world.

We don’t need to be completely negative, though.  The restoration businesses, the insurance industry, online service businesses and even messengers are all busy right now. Besides the few who are really thriving right now, what are some ways that we can diminish this damage? Amy Rees Anderson, a contributor to Forbes, wrote an article all about what small businesses can do: How a Small Business Can Recover from Hurricane Sandy and Other Natural Disasters.

Obviously many of these links would be helpful for a business owner who has just endured Sandy. From the application for assistance to crisis counseling for employees and their families, there are many programs out there that provide assistance. But what about just trying to return your business culture to “normal” and get your human resources to feel comfortable again? How do you reestablish yourself in the community? Unfortunately neither I, nor HRInsights, has an exact answer. But it a question worth mulling around. It would seem that a return to normal would be a major milestone on this unwanted trek. So if “normal” is possible, how do you get there? Or how do you accelerate that process?

The Economics of Happiness: Achieving Prosperity Through Job Satisfaction

Truth be told, money does not buy happiness but it certainly does help.  Money in terms of employee compensation is finite.  So, how can business make their employees happy without increasing salaries and financial incentives?   Understanding the keys to finding long-term life personal satisfaction and applying them to your work environment is a good start.  What makes people feel satisfied?

  • A strong sense of support from belonging to a group, whether this group is family, a club, a sports team, or a church.

There is no reason why this “group” cannot be your company.  But, how can you apply this underlying dynamic in practical ways?  HRInsights would recommend that you think about these 5 simple and low cost/no cost approaches:

  1. Initiate a group activity:  There must be some shared interest that your workers have.  Start a reading group, art or music club, investment society, architecture club.  There must be something simple and low cost which could bring workers closer together.
  2. Invest in Planned “Time-Off”:  Research points to the obvious.  Experiences are more valuable than “things”.  Make a special trip to a customer who could demonstrate their product to the team.  Invite a guest speaker to talk about an important, local project.
  3. Create a Business Journal or Scrapbook:  Develop a “newsletter” for employees to share their experiences and what is important to them.
  4. Donate to a Small, Local Charity:  The emotional benefits of giving appear to be greatest when the giver feels a social connection with the recipient.
  5. Have a Tetherball Competition:   Or, take a daily walk with colleagues around the parking lot or block.  Anything that gets you up and about stimulates your mood-enhancing endorphins.

These ideas do not require a great deal of creativity nor investment.  As a business leader, to the extent that you can improve employee satisfaction by reinforcing their “membership” in your organization (group/club), that is a very positive outcome.

HRInsights Weekly Lightbulb 09-19

This Week’s HRI “Lightbulb”  – “Angers” Away!

Remember that a common goal of most people is to maintain the respect of their co-workers.  When people get angry, they may focus on retribution rather than this ultimate goal.   Anger is an emotion that can lead us to act before we think.   Take a few moments to look unemotionally at the situation.  That thought process alone is going to eliminate a great deal of the frustration and overreaction.

HRInsights Weekly Lightbulb 08-22

This Week’s HRI “Lightbulb”  – When the Boss is a Screamer

Employees tend to:

  • Quit their jobs at higher rates
  • Become less competent in performing tasks
  • Experience a decrease in working memory
  • Avoid resolving conflicts, allowing them to escalate
  • Bring less creativity to their jobs
  • Speed up their work on simple, familiar tasks

When you do get angry though, be sure to point out how the problem hurts other employees and/or the company rather than yourself.

So What! Yahoo Hires Pregnant CEO!

Goodness gracious.  The media flurry around the hiring of Marissa Mayer by Yahoo, the fact that she’s a she, and that she is also pregnant surely belies the lingering issue that remains inside C-Suite America – where are the women?  Fair enough.  Now there is a big brouhaha from many sides because Mayer told Fortune that she would work through her short maternity leave, which will only last a few weeks.  Bottom line.  It’s her choice.

What does not go unnoticed is the large number of expectant parents who DO NOT have a choice.  This is the vast population of workers who are not covered by FMLA; those who work at small businesses with fewer than 50 employees.  Choosing unemployment is a laughable option, as few of these working parents have the necessary economic reserves.  And, herein lies the conundrum.

Not surprisingly, there are health benefits for employees and their families associated with paid leave programs.

In “Policy Matters:  Public Policy, Paid Leave for New Parents, and Economic Security for U.S. Workers,” Linda Houser and Thomas P. Vartanian found that paid family leave reduces the likelihood of premature birth, improves breastfeeding establishment and duration and increases the chances of obtaining well baby care, in addition to improving the health of both mothers and children and decreasing health care costs in the longer term.  “Access to paid leave has also been linked to families’ economic security and independence,” the authors observed.

Valerie Young, a contributor to Woman in Washington, writes that “access to paid leave following the birth or adoption of a child reduces the likelihood that a family will be forced to resort to public support or food stamps.”  High-ranking officials like Mayer have the edge on middle and lower-income families, Young adds, because their employers often offer paid parental leave.  That’s why establishing a national paid leave policy is so important.

Note:  Mayer is lucky; she lives in California, one of two states (New Jersey being the other) in the United States that has a paid family leave program where employees may take up to six weeks of paid leave through a program financed entirely through small payroll tax contributions.