Have you ever been in a situation where you needed to change an employee’s schedule, hours, pay or benefits and you worried about whether you could (especially if the change negatively impacts the employee)? We here at myHRcounsel have seen this question many times. An employer will write in and say that they want to cut an employee’s pay based on a variety of factors such as business necessity or poor performance. However, the employer worries because that employee is in a protected class and so they wonder if they can make that change. First, as long as the employee is an at-will employee and there is no written document in place that states otherwise, employers are free to modify the terms and conditions of a worker’s employment (including hours, pay, benefits, etc.). Second, if you want or need to make the change, be sure that the reasoning behind the change is well-documented and is non-discriminatory. In the case of reducing an employee’s pay for poor performance, as an example, be sure that you have documented the poor performance and attempts to improve it prior to making this decision. This way if the employee does perceive a discriminatory intent, you as the employer have documentation to prove a legitimate, non-discriminatory intent to justify the change in the worker’s pay. If you find yourself in the unfortunate position of having to make unfavorable changes to an employee’s terms and conditions of employment and you would like some legal guidance on how to effect that change, please consult one of myHRcounsel’s attorneys today!
Are you sure that you are providing ALL of the various types of leave that your employees are entitled to? Did you know that if you are an Oregon employer, veterans are entitled to take the day off on Veteran’s Day? Maine requires employers give employees 15 days of Family Military Leave each time the employee’s spouse, domestic partner or child is set to go on a 180-day or longer military deployment? Many states, including North Carolina and Minnesota, allow an employee to take time off from work to attend their children’s school-related functions. Staying on top of the widely varied leave laws throughout the country can be a daunting task. Enlist the help of myHRcounsel’s attorneys today to ensure you are complying with them all!
Have you ever had an employee request a reasonable accommodation under the ADA (or at least give you enough information for you to suspect an ADA accommodation may be needed) and wonder what possible accommodations may exist for a disability you have either never heard of before (i.e., ataxia) or how to accommodate someone for a disability you’ve heard of, but don’t know how to accommodate (i.e., albinism). There is a great resource our there for companies who find themselves confused about what limitations a disability poses and what some ideas for possible accommodations might be: the Job Accommodation Network. This website gives a list of disabilities from A to Z, explains what the disability is, what the limitations of the disability are, and gives suggestions for possible accommodations. For example, ataxia is an impairment of the nervous system and its symptoms include unsteadiness and inability to coordinate movement. Some of the possible accommodations for inability to stand are anti-fatigue matting, assist lift cushions, grab bars or stand aids. Next time you are confronted with an unfamiliar disability and are questioning how to accommodate that, check out the Job Accommodation Network at https://askjan.org or call an attorney at myHRcounsel for assistance.
Remember when all you ever heard from us here at myHRcounsel was: “Be ready for the salary changes to the FLSA exempt employee test!!” Yeah, me neither. That’s why I’m updating you on this important issue today. The new rule proposed by the Department of Labor (DOL) seeks to modify the salary threshold for exempt employees from $23,660 (or $455/week) to $35,308 (or $679/week). This means that if you have employees who are currently classified as exempt (meaning they are paid on a salary basis and meet the duties test so that they do not need to be paid overtime for hours worked in excess of 40 in week), if this new salary threshold passes muster, you may need to adjust exempt employee’s salary levels to comply with the new rules. Currently, the DOL is accepting public comment on these rules so things could still be modified again, but this is something all employers will want to keep their eye on – and potentially submit comments to the DOL on. If you have questions about how to submit comments, whether your employees are exempt or non-exempt, or how you can prepare for these possible changes, contact one of our attorneys at myHRcounsel today.
Have you been hearing whisperings of paid family and medical leave becoming a reality – if so, you aren’t alone! Many cities and states are exploring the possibility of passing paid family and medical leave statutes that could soon require companies to pay employees who take leave on similar terms with the FMLA. For example, just today, the Minnesota House of Representatives is holding hearings on whether Minnesota will soon join the ranks of states requiring paid leave. The legislature will be hearing from business groups today about the potential hardships this will heap upon Minnesota companies. The moral of the story with paid family and medical leave is keep your ears to the ground and keep an eye on our Tuesday newsletter for updates as we know more. If you aren’t sure if your jurisdiction already requires paid family and medical leave, as there are some that do, reach out to one of myHRcounsel’s employment law experts today!
If you are an employer who is required to comply with FMLA (you have 50 or more employees working for your company), you should be mindful of those employees who are out with an illness for three or more consecutive days. According to the FMLA requirements, an employee (or their family member) has a serious health condition entitling them to FMLA leave when they are receiving continuous treatment by a health care provider that results in an inability to work for more than three consecutive calendar days. There are more requirements to when something is considered a serious health condition, but if you have an employee call out sick for three days in a row, it’s going to be time to do some more digging and find out if the leave may potentially qualify for FMLA. Remember: an employee does not need to specifically state the letters F-M-L-A for an employer to be on notice of the need to start the FMLA process. When an employer knows or has reason to know that an employee may have an-FMLA qualifying serious health condition, the employer must be proactive in starting the FMLA discussion. myHRcounsel attorneys answer questions about the FMLA several times every day and are very well versed in all aspects of advising on this complicated law. Contact them today with your FMLA questions. Companies cannot afford to get this one wrong.
You already know that you have to complete the Form I-9 process for each employee that you hire to verify that the individual is authorized to work in the United States. You may also already know that you are NOT required to complete the Form I-9 for independent contractors. However, did you know that even though you are not required to complete the I-9 for independent contractors, U.S. companies are still prohibited from engaging an independent contractor if the company knows or has reason to know that the contractor is not authorized to work in the United States? The provision prohibiting a company from contracting with a known alien is 8 USC 1324a. To that end, companies looking to work with an independent contractor can confirm the contractor is authorized to work in the United States with either a list A or list C document. If you have any questions about the Form I-9 process or would like help assessing whether your hiring process ensures you only hire those authorized to work in the U.S., please contact one of our attorneys today!
Before you fire that employee who failed your annual/random/post-incident drug test by testing positive for marijuana, you may need to rethink termination if you’re in a state like Arizona. Under Arizona’s medical marijuana act, unless an employer has pretty good reason to believe that the employee was “high” while working, to terminate an employee solely for testing positive may constitute wrongful termination. The lesson for employers here is don’t focus just on the results of a drug test; instead know the common signs of impairment, document them, and rely on those signs to determine whether the employee was under the influence of marijuana at work. Consult with one of our attorneys at myHRcounsel to find out how to properly discipline or terminate an employee who fails a drug test to prevent a potential wrongful termination claim.
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.