Your Employee Matters

If you have more than 15 employees, you’re required to accommodate a disabled employee. If you’re in California, that obligation starts at five employees. Just what is an accommodation? According to the EEOC, FEHC, and Job Accommodation Network, possible job accommodations include:

• Modifying facilities
• Job restructuring
• Part time or modified work schedules (creating a full time modified job is not required)
• Reassignment to a vacant position (persons with accommodations get first dibs on those opportunities)
• Acquisition or modification of equipment
• Adjustment or modification of examinations, training materials, or policies
• Provision of qualified readers or interpreters
• Extended leaves of absence
• Preference of disabled persons over non-disabled persons in reassignment
• Any other accommodation idea that you or an employee or accommodation specialist can think of

Remember that obligation is mitigated by the “undue hardship” standard, under which an employer need not create an accommodation if it would be overly burdensome due to costs, overall financial resources, size of the employer, type of operations, and geographic considerations. Ultimately, the accommodated employee must to be able to do the job they were hired for. An employer is usually better off allowing an employee to try the suggested accommodation as long as there are no ancillary security or safety concerns. Employers have the incentive to find job accommodations when there are Workers Compensation-related injuries to avoid adding costs to the Work Comp system.

To prevail in a disability accommodation case, an employee must show that they could have done the job with or without an accommodation. Also, the courts have stated that employers have access to information that employees do not and have an affirmative duty to investigate possible accommodation scenarios. Finally, there’s an incredible wealth of accommodation resources on the Job Accommodation Network Web site.

A policy prohibiting workplace harassment and instructing employees on how to report it is only as effective as the training supervisors and employees receive and the level of accountability the employer requires. The federal district course case of King v. Interstate Brands Corp. offers a valuable lesson for employers that having a good policy might not be enough.

King alleged that a supervisor frequently used racial slurs to talk about him and other black employees. When complaints were logged about the supervisor with HR, the supervisor responded by claiming to be upset with the implication he was racist. King concluded that enough was enough, and eventually sued, alleging racial harassment. The employer argued that because they had a proper harassment policy, it had “exercised reasonable care to prevent and correct promptly” incidents of harassment. The company also argued that King failed to avail himself of this policy (the Farragher defense).

In rejecting the employer’s defense and permitting the case to go to trial, the court stated that “There is sufficient evidence upon which a reasonable juror could find that King was subject to such severe and pervasive harassment as to change the terms and conditions of his employment.” Furthermore, the company’s anti-harassment policy was not communicated to the workforce (other than in the employee handbook) and was not enforced. According to the court, the totality of the employer’s actions “all suggest that a reasonable black employee would hesitate about complaining to IBC supervisors or HR about alleged harassment.”

To make sure that your employment policies “work” to either identify harassment or defend against a harassment claim, we’d recommend these steps:

• Be sure that the policy is comprehensive, covering discrimination, harassment, and retaliation.
• Don’t just rely on the Employee Handbook to communicate the policy.
• Include the policy in an employee handbook, post it in the workplace, and review the policy annually with all employees.
• Have employees sign acknowledgement of the policy.
• Provide employees with multiple options to report a policy violation.
• Investigate all claims promptly and thoroughly.
• Take appropriate disciplinary or remedial action.
• Make the policy a cultural requirement within the workplace, training supervisors and managers to report any potential violation, even if it is due to the behavior of a peer or superior.

Article courtesy of Worklaw® Network firm, Lehr Middlebrooks Vreeland (www.lehrmiddlebrooks.com).

Many employers are concerned about their exposure to missed meal or rest periods taken by employees. Last year the DOL issued an opinion letter which clarifies the effect on a company’s overtime obligations in cases where an employee misses a meal period or break through no fault of their own. Remember these principles:

• The employees must be paid for all the time they work, whether authorized or not. For example, if they miss a rest or meal period, the employer is required to pay for this time.
• If the missed rest or meal periods result in the employee working overtime hours, the employer is responsible for paying overtime.
• An employer may “credit” extra premium compensation paid for extra hours to its overtime obligation. Also, those payments are not considered a part of the employee’s regular grade of pay.
• When it comes to recording time, an employer is required to compute time to the nearest five minutes or nearest one-tenth or quarter of an hour, so long as this will not result, over a period of time, in failing to compensate the employee properly for the time they actually worked. This “de minis time” need not be paid for

Click here to read the opinion letter.

Note to California employers: In CA rest and meal periods are mandatory and can result in penalties and fines simply because an employee missed one. Employers must provide rest and meal periods by making them available, but need not ensure that they are taken. To learn more, click here and go to Section 45.

Several times a year, the Wage and Hour Division of the Department of Labor issues opinion letters as guidance on wage and hour legal issues. A recent letter discussed the calculation of salary deductions, job bonuses, tipping pools, salary reductions and exempt status, overtime and numerous classification issues.

California employers can find similar opinion letters here.

On occasion employers will be sued for an employee’s wrongful act committed after work hours or off the employer’s premises. Often the argument is the employer was negligent in hiring the employee in the first place. Recent cases have made clear that the concept of negligent hiring is limited to being “unfit” for the specific tasks to be performed. An employer cannot be held responsible for guaranteeing the safety of anyone an employee might incidentally meet while on the job, or for injuries inflicted independent of the performance of work-related functions. For example, if an employer hires a day care sitter who has a history of sexual molestation, they can certainly be sued for negligent hiring if they don’t inquire into that applicant’s background. However, if the employer hires a salesman with a criminal background who ends up sexually assaulting a prospect after work hours, there would probably be no liability. Employers are not guarantors of the safety of all customers or other persons with whom their employees meet incidentally while performing service work or other functions.

Every month I review a variety of HR publications and blogs, including HR Magazine, Workforce Management, HR Florida Review, The California Labor Employment Review, and others. Here are subjects that appear to be at the top of HR’s collective mind:

• Managing layoffs and terminations. Do this in a way that doesn’t generate lawsuits and demotivate remaining employees.
• Healthcare management. Look at alternative options such as HSAs, increased co-pays, and eliminating coverage altogether.
• Executive pay and compensation. Ask yourself these questions: Are executives overpaid? Should anybody be getting a raise now? Is there wage deflation? What kinds of bonuses make sense?
• Significant changes to the FMLA and ADA. Make sure you have your leave management act together. HR That Works Members should see the updated Training Modules and Webinars.
• Managing stress. Focus on this byproduct of our crazy times and its huge impact on productivity and turnover.
• Leadership improvement. Identify competencies, best practices, training, and development. There are many excellent leadership Webinars on HR That Works.
• Managing privacy exposures. Consider the impact of the Internet, cell phones, Twitter, and other technologies. HR That Works members should watch the recent Webinar on Privacy in the Workplace.

Look for these trends to continue. Several years ago Fast Company magazine argued that business success would be based squarely on the ability to engage in change, learning, and leadership. Are you and your company embracing change? Are you the change others have to catch up to? In a knowledge economy, learning must be a process, not an event – and leadership is ever more important in tough times.

The question to ask is: “How well are we engaging in any of these activities? Are our HR strategies helping or hurting us in these areas?” If you’re an HR That Works Member, there are many tools on the Web site to help you excel in these crazy times.

The administrative exemption creates one of the most difficult distinctions in the wage and hour area. Whether somebody works in an “administrative capacity” has a lot to do with whether they work “in the business” or “on the business.” A telling case was recently decided in the Northern District of West Virginia, Desmond v. PNGI Charles Town Gaming (08-1216). In this case, racing officials at the Charles Town Gaming racetrack were treated as exempt employees. After extensive analysis, the appellate court overturned the previous court, ruling that the employees were not exempt and overtime was owed.

Remember, an employer bears the burden of proving, by clear and convincing evidence, that an employee’s job falls within the administrative exemption. These exemptions are “narrowly construed against the employee seeking to assert them.” In viewing the dichotomy, the court made these points to keep in mind:

1. The indispensability of an employee’s position within the business cannot be the determining factor of whether the position is directly related to the employer’s general business operations.
2. Regulations generally exclude “run of the mill” jobs with administrative classification. So although secretaries and clerks might be “indispensable,” they are not exempt under the FLSA. In the same way, just because an employee is required under state law (i.e., posting a flagman around highway work), it does not mean that they are indispensable for purposes of exemption analysis.
3. The employee must perform work directly related to assisting with the running or servicing of the business, as distinguished, for example, from being a secretary, working on a manufacturing production line, or selling a product in a retail or service establishment.

According to the DOL, administrative exempt work includes — but is not limited to– functional areas such as tax, finance, accounting, budgeting, auditing, insurance, quality control, purchasing, procuring, advertising, marketing, research, safety and health, personnel management, human resources, employee benefits, labor relations, public relations, government relations, computer network, internet and database administration, legal and regulatory compliance, and similar activities. Not included would be work consisting of tasks similar to those performed on a manufacturing production line or selling of a product in a retail or service establishment. (See 29 C.F.R. § 541.241)
To learn more, please click here.

An employee’s serious medical condition often extends beyond the 12 weeks granted under the FMLA. Under the ADA, they’re able to take off additional time for their medical condition unless it causes an undue hardship. For example, in a case decided by the First Circuit, an employee took 15 months of medical leave and then requested an additional two months of unpaid leave. However, he could not provide absolute assurances that he would return to work on that date. The court ruled that unless the employer could show that his continued absence poses an undue hardship (temporary placement is inadequate or too costly) an additional two months may be a reasonable accommodation.

The ADA does not require an employer to grant an extended leave of absence when it’s unlikely that the leave will enable the disabled employee to perform the essential functions of the job. The courts have found leaves to be unreasonable where the employee works only five out of 28 months, the employee is out for a year and a half and asks for a 90-day extension, and the leave was so erratic that the employer does not know from one day to the next that the employee will be returning to work or not or when they might arrive.

An employee with a disability might need leave for a number of reasons related to the disability, including, but not limited to:

* Obtaining medical treatment (e.g., surgery, psychotherapy, substance abuse treatment, or dialysis); rehabilitation services; or physical or occupational therapy.
* Recuperating from an illness or an episodic manifestation of the disability.
* Obtaining repairs on a wheelchair, accessible van, or prosthetic device.
* Avoiding temporary adverse conditions in the work environment (for example, an air-conditioning breakdown causing unusually warm temperatures that could seriously harm an employee with multiple sclerosis).
* Training a service animal (e.g., a guide dog).
* Receiving training in the use of braille or to learn sign language.

When considering whether or not to grant extended leave as an accommodation, consider these factors:

* When the employee expects to return to work.
* Whether the absences will be planned or erratic.
* Whether they will be able to perform their full duties when they return.
* Whether the employee was hired to perform a certain task.
* Whether additional leave and temporary employees are more costly than hiring a new employee.
* Whether the leave creates an undue hardship under the circumstances.

Click here to learn more.

Many employers have grappled with defining “involuntary termination” under COBRA. According to a recent IRS bulletin, here are the standards. Note: These questions apply solely for purposes of determining whether there is an involuntary termination under section 3001 of ARRA (including new Code sections added by section 3001 of ARRA — but not for any other purposes under the Code or any other law).

Question 1. What circumstances constitute an involuntary termination for purposes of the definition of an assistance-eligible individual?

Answer: An involuntary termination means a severance from employment due to the independent exercise of the unilateral authority of the employer to terminate the employment, other than due to the employee’s implicit or explicit request, where the employee was willing and able to continue performing services. An involuntary termination may include the employer’s failure to renew a contract at the time the contract expires, if the employee was willing and able to execute a new contract providing terms and conditions similar to those in the expiring contract and to continue providing the services. In addition, an employee-initiated termination from employment constitutes an involuntary termination from employment for purposes of the premium reduction if the termination from employment constitutes a termination for good reason due to employer action that causes a material negative change in the employment relationship for the employee.

Involuntary termination is the involuntary termination of employment, not the involuntary termination of health coverage. Thus, qualifying events other than an involuntary termination, such as divorce or a dependent child ceasing to be a dependent child under the generally applicable requirements of the plan (for example, loss of dependent status due to aging out of eligibility), are not involuntary terminations qualifying an individual for the premium reduction. In addition, involuntary termination does not include the death of an employee or absence from work due to illness or disability.

The determination of whether a termination is involuntary is based on all the facts and circumstances. For example, if a termination is designated as voluntary or as a resignation, but the facts and circumstances indicate that, absent such voluntary termination, the employer would have terminated the employee’s services, and that the employee had knowledge that the employee would be terminated, the termination is involuntary.

Question 2. Does an involuntary termination include a lay-off period with a right of recall or a temporary furlough period?

Answer: Yes. An involuntary reduction to zero hours, such as a layoff, furlough, or other suspension of employment, resulting in a loss of health coverage is an involuntary termination for purposes of the premium reduction.

Question 3. Does an involuntary termination include a reduction in hours?

Answer: Generally no. If the reduction in hours is not a reduction to zero, the mere reduction in hours is not an involuntary termination. However, an employee’s voluntary termination in response to an employer-imposed reduction in hours may be an involuntary termination if the reduction in hours is a material negative change in the employment relationship for the employee.

Question 4. Does involuntary termination include an employer’s action to end an individual’s employment while the individual is absent from work due to illness or disability?

Answer: Yes. Involuntary termination occurs when the employer takes action to end the individual’s employment status (but mere absence from work due to illness or disability before the employer has taken action to end the individual’s employment status is not an involuntary termination).

Question 5. Does an involuntary termination include retirement?

Answer: If the facts and circumstances indicate that, absent retirement, the employer would have terminated the employee’s services, and the employee had knowledge that the employee would be terminated, the retirement is involuntary.

Question 6. Does involuntary termination include involuntary termination for cause?

Answer: Yes. However, for purposes of Federal COBRA, if the termination of employment is due to gross misconduct of the employee, the termination is not a qualifying event and the employee and other family members losing health coverage by reason of the employee’ termination of employment are not eligible for COBRA continuation coverage.

Question 7. Does an involuntary termination include a resignation as the result of a material change in the geographic location of employment for the employee?

Answer: Yes.

Question 8. Does an involuntary termination include a work stoppage as the result of a strike initiated by employees or their representatives?

Answer: No. However, a lockout initiated by the employer is an involuntary termination.

Question 9. Does an involuntary termination include a termination elected by the employee in return for a severance package (a buy-out) where the employer indicates that after the offer period for the severance package, a certain number of remaining employees in the employees group will be terminated?

Answer: Yes.

Click here to learn more.

For many years, Dilbert owned the HR stage. Now the TV show The Office has taken over. You can see their employee handbook, as well as hilarious pictures of offices around the country.

For a few minutes of amusement, go to www.nbc.com/office.