October 14, 2019

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!

October 7, 2019

It ranks high on most HR professional’s minds as a nightmare come true: an employee has just showed up for work and it is seems clear that they are drunk.  Now what?  First, understand that the signs of alcohol intoxication can sometimes be confused with an illness or medication.  If you are observing bloodshot eyes, an odor or alcohol and slurred speech, instead of rushing to a snap judgment and accusing the employee of being drunk, rely on your reasonable suspicion clause in your drug testing policy to get the employee tested.  Arrange alternative transportation for the employee to get to the testing center and await the test results.  If the results are positive, you may consider having the employee attend a rehabilitation program or decide to take disciplinary measures.  Remember, the appropriate route to take depends on many things including past practices, policies, and state law.  Last, be on the lookout for the possibility of having to provide accommodations under the ADA.  Individuals suffering from alcoholism may be protected by the ADA and eligible for various accommodations such as time off to attend a rehabilitation program or AA meetings.  As with most HR issues, while the appropriate way to handle a drunken employee may seem clear, it is often more muddled than that.  For expert assistance from our team of legal pros, reach out to myHRcounsel for answers.

September 30, 2019

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.

September 23, 2019

Recently, the clothing store PacSun was given a harsh reminder that the ADA’s requirement that employers provide qualified individuals with disabilities with reasonable accommodations applies to both employees and applicants.  Further, the EEOC drove home the point that rushing to snap judgments about whether an applicant may perform the essential functions of a job based on first appearances will cost you.  In this case, an individual in a wheelchair went into a PacSun store in Florida to apply for a job.  Even though the store manager had just told other non-disabled applicants that the location was hiring, the manager told the disabled applicant that they were not.  The manager never tried to understand what specific limitations the applicant might have or whether they could accommodate the applicant, but rather summarily denied him the opportunity to apply based on a rush to judgment about the applicant’s abilities.  PacSun ultimately settled the lawsuit for $85,000 and was required to comply with a litany of other requirements like requiring that PacSun update their anti-discrimination policy, conduct manager training, maintain a telephone hotline for employees to report incidents of workplace harassment and post a notice the EEOC created on the company’s website.  The ultimate moral of the story is, have a solid job description for each position that you are hiring for, ask every applicant whether they can perform the essential functions of the job with or without an accommodation, and engage in the interactive process to determine what accommodations you can make for disabled applicants and employees every single time.  Otherwise you won’t be calling myHRcounsel’s attorneys for proactive guidance, but litigation assistance.    

September 16, 2019

Have you ever had an employee request to bring a service animal to work and wondered how to handle the situation? While service animals obviously provide a very necessary service to those in need, they can be problematic at work. Whether it be because the role is safety sensitive, the workplace environment must remain sterile, or other employees suffer severe allergies, service animals in the workplace can perplex even the most seasoned HR professionals. The Americans with Disabilities Act is not a huge help in this realm either because unlike service animals in public accommodations, the statute covering service animals in the workplace doesn’t define what a service animal is and doesn’t exclude emotional support animals. If an employee makes a request to bring their service animal to the workplace, the employer must consider whether that accommodation is reasonable and whether any undue burden exists to deny the request. To help with the decision-making process about whether an employee’s request to bring a service animal in the workplace is a reasonable accommodation, contact one of our attorneys at myHRcounsel to help in the analysis.

September 9, 2019

We get many tickets from clients regarding when it is appropriate to make deductions from an exempt employee’s pay. An employer’s trepidation here is understandable given that exempt employees must be paid the same amount of pay regardless or the quantity or quality of work performed in a pay period. However, there are some limited exceptions to this general rule. First, an employer may make deductions from an exempt employee’s salary when the employee is absent from work for one or more full days for personal reasons, other than sickness or disability. Naturally then, it follows that employers may not make partial day deductions from an exempt employee’s salary when the employee works any amount of time in a given day. So if an employee works, for example, one hour in a day and then is gone for the rest of the day to deal with personal issues, the exempt employee must be paid their salary for the full day. Employers can also make deductions from salary for absences of one or more full days when an exempt employee is out sick, if the deduction is made in accordance with a policy of providing paid sick leave. Tread carefully when making deductions from exempt employee’s salary, though, as the punishment for an employer improperly docking exempt employee’s salary is losing the exemption for all employees subject to that illegal pay practice for the duration of the time that the practice went on. For more guidance on this complicated issue from one of our licensed attorneys, reach out to us today!

September 2, 2019

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

August 26, 2019

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!

August 19, 2019

 

For those employers who must file an EEO-1 report, you know all too well very the limited options in choosing an employee’s gender when an employee does not self-report.  You can choose male or you can choose female.  But what is an employer to do when an employee is identifies as nonbinary since there is no option to choose other or unknown.  First, the EEOC states that an employer may use employment records or employer observations of the employee to determine whether to identify the employee as either male or female on the EEO-1 report.  However, recent guidance from the EEOC on nonbinary employees goes even further.  The EEOC  has issued a new FAQ stating that employers can include “employee counts and labor hours for nonbinary gender employees by job category and pay band and racial group in the comment box on the Certification Page.”  So while the EEOC has yet to provide us with an updated form with more gender options, there is now at least the chance to provide a more complete narrative response in the comments section. 

August 12, 2019

I have previously posted a tip of the week advising companies not to terminate pregnant employees because they are pregnant and failed to disclose the pregnancy during the employee’s interview. It should go without saying, then, that refusing to hire an applicant because she is pregnant and did not inform the employer during the employee’s interview is also frowned upon. Take a lesson from a Scottsdale, Arizona company that paid out $150,000 to settle a pregnancy discrimination lawsuit when they withdrew a job offer within one week of learning the applicant was pregnant and accused her of failing to disclose her pregnancy during the interview. Neither applicants nor employees are required to disclose a pregnancy unless they are requesting leave or some other accommodation related to the pregnancy. Further, employers should refrain from asking both applicants and employees if they are pregnant. Even if they look like the proverbial snake that swallowed the basketball, there is no reason for an employer to ask that question and it can only get you in hot water. Last, employers cannot retaliate against an applicant or employee on the basis of pregnancy as that is considered a form of sex discrimination in violation of Title VII and many states’ laws. In addition to the fine, this company was required to formally apologize to the applicant, review and revise its equal employment opportunity policies, modify their leave of absence policies and conduct supervisor training. If you are an employer wondering about your own policies and procedures, or have questions about supervisor training, contact one of our attorneys here at myHRcounsel for guidance.

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