This week's tip of the week is light on the law, heavy on the myHRcounsel process, but we thought it would be helpful for our users to know a thing or two about the ethical rules our attorneys are bound to. Whenever you open a ticket that involves a specific individual employee(s), because our we work with a law firm with a nationwide scope, our attorneys will need to run a conflict check before they can provide you with any advice. Our ethical rules require that we only work with clients with whom there is no conflict. What that means from a practical standpoint is this: if we represent your company, and you ask a question about a specific employee, we must ensure that we have never represented your specific employee in a separate matter. If we did, we will not be able to advise you against that employee. To expedite the answer to your legal question about a specific employee, please provide us with the full name of the employee and the city and state in which he/she lives in your initial question so that we can clear the conflict and move right into answering your question. It is of the utmost importance for us to get you the right answer, faster.
Many companies have employee handbooks or stand-alone policies addressing what type of dress is required of employees. I have reviewed many of these during my time with myHRcounsel, and I see a lot of prohibitions on wearing head gear or require a beard to be short. While these policies may make great sense for most employees, there are times when an employer must be prepared to accommodate an employee based on that employee’s sincerely held religious belief. For example, an outright ban on head gear could effectively stifle an employee’s ability to freely express the Muslim faith. A strict policy regarding the length of employee’s beards could violate the Sikh religion’s code of conduct prohibiting followers from cutting their hair. If you adopt a dress code policy that could prohibit an employee’s free expression of their religion through dress or grooming, be sure that you consider accommodating that employee to the extent possible unless doing so would cause an undue burden or create a safety issue. Please consult with the attorneys at myHRcounsel to ensure that your dress code policy is compliant and for guidance on accommodations to these policies on the basis of religion.
Due to the government shutdown, the EEOC has announced that the deadline for companies to file their 2018 EEO-1 reports is extended from March 31, 2019 to May 31, 2019. With the deadline in hand, companies should now begin preparing the EEO-1 report. Please let us know if you have any questions about the new deadline or EEO-1 filing requirements in general.
It’s ACA season and I’m sure that while some of you are prepared, have been tracking every month, and are ready to report, there are many others of you that are starting to remember that it IS that time of year. So this weeks’ tip relates to everyone’s favorite topic: ACA reporting. One of the areas of the Form 1094-C that employers tend to miss the most is the in Part III box (a) which requires the employer to states that they offered minimum essential coverage to at least 95% of their workforce in each month of the year. Missing that one simple check box triggers the IRS to send out one of their notorious 226-J penalty letters. Employers can go a long way toward preventing receiving one of those letters for a simple oversight by remembering to check that box. Or even better, contact our partner SyncStream Solutions who is an industry leader in providing top-of-the-line technology to help employers smoothly complete their ACA reporting requirements. You can find information about their products here: https://www.myhrcounselcompliance.com/syncstream-products
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!
While this week’s tip of the week could easily take up an entire blog post or even an all-day seminar, I wanted to distill down a very important concept employers need to keep at the forefront of their minds when considering terminating an employee who has recently engaged in protected activity – such as taking or requesting FMLA leave or filing a discrimination complaint. The lesson is: timing, timing, timing. Even though you know in your heart or hearts that you are not retaliating against an employee for engaging in this protected activity, if the termination comes shortly after an employee files a complaint or takes FMLA leave, that alone can satisfy the legal requirements for establishing a prima facie case of retaliation. Remember, prima facie is just fancy lawyer speak for a lawsuit in which the evidence before trial is sufficient to prove the case unless there is substantial contradictory evidence presented at a trial. While this hurdle can be overcome by an employer by showing a legitimate, non-retaliatory reason for the termination, it’s preferable to never be in the position to have to defend your actions in a lawsuit. To that end, documentation and communication are the keys to keeping you out of this hot water to begin with. Keep notes of all disciplinary issues and keep open the lines of communication with your employees. This is one of the most common issues we hear from employers, so please contact our attorneys at myHRcounsel with any questions you might have on this topic!
Most companies already have a smoke-free workplace policy, but does yours also cover electronic cigarettes? As the popularity of vaping increases, so do employer’s concerns that their smoke-free workplace policies may not go far enough to ensure that the use of e-cigarettes is banned. Several states have enacted laws that prohibit vaping in places where smoking cigarettes is also prohibited. In those states, employers will want to be sure that the definition section of the anti-smoking policy is updated to include e-cigarettes. Even if you are not in one of the jurisdictions that has passed laws prohibiting use of e-cigarettes, you may want to get ahead of the curve and proactively update your policy. Here is some suggested language: Smoking includes lighting, smoking, or carrying a lighted cigarette, cigar or pipe, chewing tobacco and the use of any electronic smoking device. If you have any questions, please do not hesitate to contact one of our attorneys at myHRcounsel!
If your company is like most, the end of the year signals performance reviews and pay raise or bonus decisions. However, I’m here to suggest a New Year’s resolution for our readers: do away with annual performance reviews. Think about it: if your company is only giving your employees feedback on their performance once a year, odds are your employees do not feel engaged or valued and could feel perturbed if they receive an unexpected negative review at the end of the year when the employee thought they were meeting their goals. Keeping lines of communication open with your employees throughout the year will enhance an employee’s feeling of inclusion, let them know where they are succeeding and where they can improve, and helps employees understand their goals and, if they are falling short, specific steps to take to improve. My recommendation, then, is that your company adopt a process of completing monthly check-ins that are short and sweet with a specific agenda of talking points. Keep the meeting to 30 minutes and try to hit the high points. While this may seem tedious, these monthly touchpoints will be way more fruitful than a once-a-year, general, “you’re doing fine” or not talk. To discuss how to make the most of performance reviews, contact one of our employment law experts today!
Today’s Tip of the Week is short and sweet! As many of you may have heard, a Texas court recently held that the Affordable Care Act is unconstitutional. Importantly, the court did not strike down the ACA to be effective immediately and the ruling will almost certainly be appealed. What that means for employers is, you must still comply with all of the reporting requirements of the ACA until further notice. Stay tuned to our newsletter to track the latest updates on the ACA and other laws affecting employers.
Have you heard of one of the newer HR compliance trends that has been springing up around the country lately: predictive scheduling laws? If not, and you have employees working in retail, food services, or the hospitality industries, pay attention here! Many states and cities have started passing predictive scheduling laws requiring that an employer give employees reasonable notice as to what the employee’s hours and schedule will be (usually between 10 days and two week notice), provide employees sufficient advance notice of changes to that schedule, and provide newly hired employees with an as-accurate-as-possible guesstimate as to how many hours that employee will be working. The most recent of these laws passed in Philadelphia (which only applies to companies with more than 250 employees overall AND that have at least 30 locations worldwide) is set to be signed into law soon and will become applicable starting January 1, 2020. Other jurisdictions with some form of predictive scheduling laws include: Emeryville and San Francisco in California; New York City; Oregon (statewide); and Seattle. If you have questions about how to comply with these laws, do not hesitate to contact our experienced counsel at myHRcounsel!