The myHRcounsel™ Tip of the Week
The myHRcounsel™ Tip of the Week is our Weekly Legal Brief exclusive, that is written by attorneys each week. Subscribe to our Weekly Legal Brief to get our Tip of the Week directly, as well as numerous other updates in the HR and employment law world.
oCTOBER 16, 2018
Does your workplace have a safety incentive program that rewards employees for completing a certain number of days without a work-related injury? OSHA previously released guidance stating that such programs can often have the effect of discouraging reporting. For example, let’s say XYZ Vegan Butcher Shop has a program where if the employees can go 100 days without getting injured on-the-job, they will all receive a Thanksgiving tofurky. On day 99, Larry slices his finger cutting through a thick, juicy slab of seitan. Rather than risking losing the coveted tofurky for everyone, he eschews medical treatment and just wraps his wound up in organic paper towel and duct tape and carries on with his day. Here, Larry has been discouraged from reporting his injury by XYZ’s incentive program. This is prohibited by OSHA. Recently OSHA has clarified its position that incentive programs are not per se prohibited, but that any incentive program should be carefully drafted so as not to deter individuals from reporting. For example, the company could also implement an incentive program to reward employees for reporting unsafe conditions or reporting near misses. If you are concerned about your workplace safety program, contact one of the attorneys at myHRcounsel today for expert guidance on this issue.
October 9, 2018
Does your company have a practice of running background checks on applicants even before the applicant comes in for an interview? If so, you could be violating the background check laws in a number of states. Many states require that an employer make a conditional offer of employment (i.e., offering the applicant the job) prior to running any background checks. This ensures that companies are giving those who may have a criminal history a chance to compete on a level playing field with other candidates. If you find that the candidate you choose has a criminal history after making the offer of employment, you then have to decide whether that history disqualifies the candidate for that position. myHRcounsel urges employers not to take a hard line as to what crimes are considered automatically disqualifying. States like California require that you only deny jobs to those whose criminal histories are directly related the particular position for which the applicant is applying. If you have questions about your practices or would like assistance drafting a compliant background check policy, please contact one of the attorneys here at myHRcounsel.
October 2, 2018
Today’s tip of the week involves downsizing and how it can go very wrong for an employer. Recently, a parking company was sued by the Equal Employment Opportunity Commission (EEOC) for national origin discrimination. The company installed automated payment machines at the exit to their parking ramps and so had laid off a few employees whose roles had now been replaced with these machines. The company laid off a Moroccan customer service representative, a Moroccan cashier and an Ethiopian cashier. The Ethiopian cashier happened to ask the company why only certain people had been terminated, to which the company’s operations manager responded that it was due to their “broken English”. The lesson here is to ensure that when you are making decisions about which employees get downsized, you are not either intentionally or unintentionally targeting a specific group of individuals based on their protected class. Here, the protected class was national origin and the discrimination stems the company’s admitted motivation to terminate the employees based on having a foreign accent and not speaking perfect English. Remember, employers can require that an employee speak fluent English, but only if fluency in English is necessary to perform the job effectively. Here, there was nothing in the record that showed fluency was required or that there were any problems with the employees’ performance based on their accents or “broken English”, so the employer now gets to defend this lawsuit. If you are concerned about an upcoming downsizing and want to ensure your company stays compliant with all applicable laws, contact one of our attorneys at myHRcounsel at the beginning stages to ensure everything is done properly.
September 25, 2018
You’re aware of what you need to do to avoid claims of discrimination, harassment, and FLSA, FMLA, and ADA violations but you may not be aware of an associated claim that an aggrieved employee can make: retaliation. Retaliation occurs when an employer takes adverse action against an employee who engages in protected activity. Protected activity can include making a complaint of harassment, discrimination, or unfair wage practices, requesting or taking protected leave, or requesting a reasonable accommodation, for example. Retaliation claims can stand alone and an employee who is terminated after making a claim of discrimination or harassment can succeed on a retaliation claim, even if it is determined that no discrimination or harassment ever occurred! It is not sufficient to enact policies and train managers on anti-harassment, ADA, and FMLA policies. Employers must have anti-retaliation policies in place and examine all extenuating circumstances before taking adverse action against an employee. Managers should be trained to look for retaliatory behavior against employees who engage in protected activity and stop it in its tracks. Contact myHRcounsel’s experienced employment law attorneys for help crafting anti-retaliation policies and guidance on working with employees who have engaged in protected activity.
September 18, 2018
If you have an employee that requires extra break time throughout the day as a reasonable accommodation under the ADA, are you paying that employee for the additional break time and wondering if you must? The Department of Labor (“DOL”) has recently issued an opinion letter on this very topic. According to the Fair Labor Standards Act (“FLSA”), employees are required to be paid for any time spent that benefits the employer and not the employee – put another way, any time that an employee is “permitted” or “suffered” to work, the employee must be paid for. When an employee’s breaks differ from ordinary rest breaks or are “solely due to the needs of the employee’s health condition,” the breaks primarily benefit the employee and do not need to be compensated. Complying with all of the various requirements of the FLSA can complicated, so please reach out to us any time if you questions!
September 11, 2018
The 2018 ACA reporting season is just around the corner – are you prepared? Even though the individual mandate was thrown out this year, the reporting requirements for employers remain…YAY! Remember: employers are subject to the information reporting and employee statement requirements if your company has 50 or more full-time employees during the prior year. To comply with these rules, starting in 2015, employers are required to provide employees with Form 1095-C. This year’s forms must be provided to employees by January 31, 2019. While extensions have been granted in the past, we never recommend relying on those. We know that January is a very busy month for human resources, so getting started early never hurts! myHRcounsel has recently launched an exciting new partnership with SyncStream Solutions – a cloud-based ACA solution to help you create all the required ACA forms and e-file with the IRS. To learn more about getting started with one of SyncStream’s industry-leading ACA solutions, email us at firstname.lastname@example.org.
September 4, 2018
If you’ve noticed that the Department of Labor provided notices technically expired on July 31, 2018, you’re not alone. I have had clients write in with concerns about the appropriate form to use after the expiration date. If you were blissfully unaware, don’t start to panic wondering if you’ve been giving the wrong forms for a month and a half. While the forms technically expired on July 31st, the DOL issued guidance that employers should continue using those forms until they could complete new ones. Now, the DOL has extended the expiration date of these model forms through August 31, 2021. The lesson of today’s tip, keep calm and continue using the forms you’ve been using! Contact our team of attorneys if you have any questions about the FMLA or any other area or employment law.
August 28, 2018
Don’t do what this manager at a Jersey Mike’s sub shop in Marysville, Washington did...ever!
First, you cannot discriminate against an employee who is pregnant. Second, not only is an applicant not required to disclose their pregnancy in an interview, but the interviewing employee should not ask for this information. Last, do not fire an employee via text message.
August 21, 2018
Do you employ workers in multiple jurisdictions? If so, have you checked whether there are paid sick leave laws on the books in those jurisdictions? If you have employees working in multiple jurisdictions that require employers provide employees with paid sick time, you must be sure that you are complying with each law’s unique differences. Some of the differences among various paid sick leave laws include: the amount of time an employee must work in that jurisdiction in order to qualify to accrue paid sick leave, the amount of hours an employee may accrue for each hour worked, the annual usage and accrual caps, the amounts of carry-over from one year to the next, among several others. There are a couple of ways you could handle these differences. One option would be to create a separate policy for each jurisdiction and apply that policy to only those employees working in that jurisdiction. This could become difficult from a recordkeeping and tracking standpoint, though, as you would have to use different tracking methods for different employees based on where they work. You could also choose the most employee-friendly statute of the jurisdictions where employees work and apply that to all employees. However, this option could give some employees a lot of paid sick leave that they would not ordinarily be entitled to. Bottom line: no matter which option you choose, you must be sure that you are complying with each jurisdiction’s laws. Contact the attorneys at myHRcounsel to discuss how you can be sure you are complying with the myriad paid sick leave laws throughout the country and get a legally compliant multi-jurisdiction paid sick leave policy.
August 14, 2018
Does your company provide training to your front-line managers on the Americans with Disabilities Act and providing reasonable accommodations? If the answer is no or your scratching your head trying to figure out the last time it was done, it’s time for a refresher training. If an employee suffers from a disability and the employer either knows or has reason to know that the employee may need an accommodation in order to perform the essential functions of the job, then it is incumbent on the employer to initiate the discussion about what accommodation may help the employee. Take the case of an employee at a Dollar General. The employee worked as a cashier and suffered from Type II diabetes. When suffering a hypoglycemic episode, the employee would grab a bottle of orange juice from the cooler, drink it, and then pay for it immediately after. At one point, the employee had even asked her manager if she could just keep a bottle of juice at the register with her, which was declined citing store policy. The employee was fired for consuming store merchandise before paying it, violating their “anti-grazing” policy. Cue the lawsuit which cost the employer $724,564.44 (a $277,565.44 jury award plus $446,999.00 in attorney fees). Here, the employer knew the employee had diabetes, a disability under the ADA. The employee even asked for a reasonable accommodation to keep juice at her register, which was declined. Then, the employer fired her for violating a policy, even though a medical emergency justified the employee’s actions. The front-line manager should have engaged the employee in a discussion about what the most appropriate accommodation would be. Train your managers to understand what the ADA is, when to recognize an employee’s statements as possibly triggering the ADA, and the duty to either engage in the interactive process themselves, or consult human resources. If you have questions about the ADA and providing accommodations, consult the attorneys at myHRcounsel. If you are a subscriber to our premium services, check out our trainings page for our “Managing Under the ADA” presentation.
August 7, 2018
Have you ever been in the situation where you are hiring an employee who lives a good distance from your corporate headquarters? If so, how did you handle completion of Section 2 of the I-9? The U.S. Citizenship and Immigration Services (USCIS) requires that either the company or the company’s authorized representative physically examine each document the employee presents to ensure it is original, that it reasonably appears to be genuine, and that the document relates to the employee. The person who examines the documents, must be the person to attest to viewing them – no screen shots, webcams or FaceTime allowed here. Given the short three-day window in which to complete the I-9, remote hires can cause serious headaches for employers. How do you find an authorized representative who is willing to complete Section 2 for you? Some of the suggested “authorized representatives” are personnel officers, foremen, agents or notary publics. If you have encountered this issue, you know these representatives can be hard to find. If you have questions about how you can make sure you are completing Section 2 properly for remote hires, please contact an attorney at myHRcounsel today for assistance.
July 31, 2018
Do you have a practice in your company of tracking time in 15 minutes increments and then either rounding up or down depending on the exact amount of time the employee works? Did you know, that if you always round down, you could be violating the Fair Labor Standards Act (FLSA)? The rules of the FLSA state that an employer may round down employee time from 1 to 7 minutes, but must round up employee time from 8 to 14 minutes. So if an employee clocks in 9 minutes early, that time must be rounded up to the nearest quarter of an hour. If the employee clocks in 7 minutes early, then you can round that time down. However, be sure that you are not always rounding down and that you take into account if an employee clocks out, for example, 9 minutes late and compensate that time. The rules surrounding wage and hour laws can be complex and require precision. If you have questions about your rounding policies, contact one of our experienced attorneys at myHRcounsel for assistance.
July 24, 2018
Do you still ask applicants about their salary history – either in the application itself or during the interview? If so, did you know that many jurisdictions have now banned inquiry into an employee’s salary history? The rationale is that if an employee has historically been underpaid based on a protected class such as race or gender, to continue to pay that employee based on that correspondingly lower history would continue the pattern of income inequality. Instead of asking an applicant about what they were paid in the past, ask the candidate what his or her expectations are, establish a pay range for each position at the beginning of the hiring process, or base the salary on the going rate for the job. Even if your jurisdiction hasn’t banned salary history inquiries, this is the trend and getting out in front of it by changing your practices now and training your hiring managers will save you hassle in the future. Contact an attorney at myHRcounsel if you have questions!
July 17, 2018
When an employee calls in sick, does your company have a policy that requires the employee find their own replacement to cover the missed shift? If so, you should check whether your city or state has a paid sick leave law. If it does, dig further to see if this is something that is acceptable under that law. Many of the paid sick leave laws across the country prohibit an employer from requiring that their employee find a replacement worker if they call in sick. In one such lawsuit involving this issue, a Minnesota gas station was ordered to pay an employee $11,000 for violating the paid sick leave law by requiring the employee to find a replacement worker when he called in. To avoid this same fate and get some help digging through the confusing labyrinth of paid sick leave laws, consult your experts at myHRcounsel.
July 10, 2018
Have you taken a look at your job applications lately? If not, it might be time to do a once-over to ensure that you have not asked any inappropriate or illegal questions on the application. Some of the more common issues myHRcounsel attorneys see on job applications are requests for:
Social security numbers
Date of birth
Information about the type of military discharge
Race, ethnicity, national origin
Maiden name including an option to circle Miss, Mrs. or Ms.
Criminal conviction history
Upon closer inspection, if you have any concerns about your company’s job application, contact us if you would like to receive myHRcounsel’s employment application template.
July 3, 2018
Happy Fourth of July week!! Have you noticed now that the weather has gotten hotter, that the outfits your employees are wearing around the office have gotten smaller/shorter/etc.? Hopefully you already have a carefully drafted employee handbook in place that does not create different standards for men and women and instead establishes clear and equitable guidelines about what is considered appropriate work attire for all employees. However, if you are scanning through your handbook and notice you are missing a dress code, have no fear. While I would recommend waiting to formally implement a new dress code policy during the winter months when individuals won’t feel singled out, you can still remind the offending employee that professional attire is required and discipline as needed. CAUTION: be careful that you are applying your counseling equally to all offending employees. Then contact the pros here at myHRcounsel to get you a custom dress code policy that applies to both your company’s culture and industry.
June 26, 2018
Right now employers are having to deal with multiple jurisdictions with multiple rules on sick leave. What is a best practice to comply with these rules? Here are a few tricks to keep administrative burdens low.
1. Make your sick leave policy consistent with the most common and generous rules. This way you will likely remain compliant with any newly enacted rules that may apply to you.
2. If you have questions about the rules in your jurisdiction, check for a FAQ guide on the state or municipal websites. There are always helpful tips there for employers to stay compliant. Most even have an “Employer FAQ” section.
3. You can use your current PTO policy to comply with the law but make sure the accrual rate is consistent with the rate sick time accrues. Additionally, make sure you allow your employees to use that time to care for family members.
4. Finally, be sure you post the sick time rules at the place of employment to meet the requirements of sick leave. Most jurisdiction’s require employer post the rules in a place employee can easily see them. Check your local jurisdiction’s website for these posters.
June 19, 2018
Wondering if it is safe for you to ask a prospective employee about their salary history? Neither the Equal Pay Act nor the Fair Labor Standards Act prohibit employers from inquiring about salary history during the application or interview process. However, many state and local jurisdictions have recently made it unlawful to do so.
Salary history bans prohibit employers from asking salary history questions during the application and interview process. California, Connecticut, Delaware, Massachusetts, Oregon, and Puerto Rico all have banned salary history questions. Additionally, Philadelphia, New York City, Albany County and Westchester County in New York have joined the salary ban band wagon.
If you are in any of those jurisdictions it would be best if you simply stopped asking salary history questions. This will also involve auditing your job applications and removing the salary history questions. Even if you are not in those jurisdictions it might be a good idea to stop asking those questions now. With how fast those laws are developed; it is best to not be caught off-guard.
June 12, 2018
Have you ever had an employee turn in his or her timecard showing a few hours of unauthorized overtime worked? This is a very common issue for payroll to encounter. You have a policy in your handbook that requires manager authorization before working any overtime hours, but an employee works the hours without preapproval anyway and now wants to get paid for them. In this situation, as frustrating as it might be, you do have to pay that employee for the overtime that he or she worked. Then, using your policy that requires pre-authorization of overtime, you can discipline that employee for violation of the policy. In the end, this is a disciplinary issue and not a payroll one.
June 5, 2018
Everybody loves getting that jury duty summons, right? Well maybe not if you’re an employer and you end up with an employee out for several weeks on a circus like the O.J. Simpson trial. Besides the temporary loss of that employee’s work contributions, some states require that you pay the employee’s regular wages for a period of time. For example, Colorado requires that an employer pay an employee’s regular wages, not to exceed $50.00 per day, for the first three days of juror service. Make sure to check in with myHRcounsel if you’re not sure whether your state requires you to pay an employee while they are out for jury duty.
May 29, 2018
Did you know that while federal law does not require employers to give former employees their final paycheck immediately, there are some states that require immediate payment? Further, some states have different time requirements for when a final paycheck should be issued depending on whether the separation is voluntary or involuntary. California, Colorado, Massachusetts, Missouri, and Nevada all require that an employee who is fired be paid their final paycheck immediately. Other states have various requirements ranging from 24 hours, to the next scheduled payday. New Mexico law states that employees who are fired shall be paid within five days and employees who quit shall be paid by the next payday. Make sure that you know your state’s requirements so you can avoid heavy penalties associated with a delay in wage payment to a former employee. Contact our attorneys at myHRcounsel if you have questions about whether you are compliant!
May 22, 2018
Does your company ever check social media or run Google searches on candidates? Did you know that your company can run into discrimination issues if you search social media and perhaps find pictures of children, Christmas celebrations, or photos where the applicant is holding an alcoholic beverage? If you run these searches make sure you do so after making a conditional offer of employment, be sure the decision-maker is not the person running the search and consider implement a social media searching policy to create consistent processes as to who is screened and what sorts of information is checked. If you need any help with this issue, contact us here at myHRcounsel and we can help you sort through the myriad legal issues at play in social media background checks!
May 15, 2018
Have you ever been in the situation where you run a background check on an applicant only to discovery a pending criminal charge? Did you ever wonder if it’s appropriate to use that information to not hire that applicant? Did you have a flashback of an old Law and Order rerun reminding you that people are “innocent until proven guilty?” The answer about whether you can use an arrest record to make employment decisions is going to depend on which states you are operating in. For example, aside from limits on using sealed records, South Carolina does not specify the kind of criminal background information into which an employer may not inquire. On the other hand, Illinois employers may not use arrest information in making employment decisions. To help you wade through this complex web of laws, consult with an attorney at myHRcounsel and consider utilizing an innovative background screening company, such as the solution created by our partner TopDogHR, to help you perform compliant background checks for applicants and employees: http://www.topdoghr.com/partners/myhrcounsel/.
May 8, 2018
Did you know that employees are not required to state the magical phrase “I need FMLA time” in order to put the employer on notice that they must go through the FMLA designation process? If an employer “knows or should have known” that an employee needed leave for one of the FMLA-qualifying reasons, yet failed to designate it as FMLA because the specific acronym wasn’t uttered, the employer is in the wrong. Next time an employee comes to you and says, “I need to have surgery on my broken *insert body part here* and will be out for two weeks,” remember this post and think FMLA! Even if your employee does not qualify for FMLA, employers must still provide the Notice of Eligibility and Rights and Responsibilities notice (which can be found here: https://www.dol.gov/whd/forms/WH-381.pdf).