Archive for the ‘Employment Laws’ Category

Substance Abuse in the Workplace, Part 3: Suggested Tips & Protocols

Thursday, May 23rd, 2013

In this, our third and final article in the Substance Abuse series, we examine several suggested tips and protocols in the event of suspected substance abuse by an employee.

1. Reasonable Suspicion

Suspicion of substance abuse by a particular employee calls for action on the part of management. What constitutes “reasonable suspicion”? “Reasonable suspicion” is more than just a feeling but less than probable cause; it refers to observed facts based on the surrounding circumstances. Some examples include alcohol on the breath, the inability to respond appropriately to questions, lapses in performance and the physical symptoms of alcohol or drug influence.

What should management do in a case of “reasonable suspicion”?

  1. Notify HR immediately
  2. Quietly escort the individual to a private location for a discussion
  3. Attempt to locate another supervisor as a witness
  4. Express your concerns to the employee, including specific facts and observations
  5. Define expected standards
  6. Allow the employee a chance to respond
  7. Depending on employee’s responses and the advice of senior management, possibly place employee on suspension, pending a formal investigation
  8. Arrange for a drug test
  9. Organize an escort home for the employee

 

2. Drug Testing

When an employer becomes reasonably suspicious of an employee, it is acceptable at that point, in most circumstances, to order a drug test. Other circumstances when a drug test may be acceptable include:

  1. When screening before hiring
  2. During a physical examination
  3. During testing following an accident
  4. As part of random testing, although the legality of random testing in California is very limited

 

3.   Post-Testing Investigation

Following a drug test, human resources should conduct an investigation into the matter. Following the investigation and reviewing the results of the drug test, a course of action should be determined.

If the employee returns to work, management should continue to carefully monitor the employee’s behavior and performance.

4.  ADA and FEHA

It is important to note that employees and applicants found to currently be abusing alcohol or using illegal drugs are not protected under the American with Disabilities Act (ADA). Additionally, under California employment law, the Fair Employment and Housing Act (FEHA) also does not protect employees who are under the influence of drugs. However, recovering drug and alcohol abusers are protected and should be treated with care.

Summary

Both HR and management should be familiar with the signs of substance abuse and immediately report and document all concerns and suspicions. When necessary, experienced human resources consultants can assist.

Keep in mind that the safety of all employees and the security of the company should be top priorities. Employees who are abusing substances will inevitably create safety and performance problems in the workplace. Ignoring suspected substance abuse issues can become very costly for a company. Quick action will help the employee receive crucial help and create a safer and more productive environment for the remainder of employees.

 

Substance Abuse in the Workplace: Legal Requirements and Detection

Wednesday, May 15th, 2013

In a previous article we discussed the laws regarding substance abuse in the workplace. Let’s examine some of the practical ramifications of those laws.

The Drug-Free Workplace Acts recommend that employers implement several policies and procedures with the goal of reducing the presence of substance abuse in the workplace. Employers should begin by compiling and distributing a report to all employees notifying them of the company’s policies.

Drug-Free Programs

The law requires the establishment of drug-free awareness programs. The programs should include the following 5 components:

  1. Written policy
  2. Drug testing
  3. Supervisor training
  4. Employee education
  5. Employee assistance program

Employee education is implemented via an orientation, followed by both formal routine reminders and informal reminders such as posters.

Leadership Training

Employers should arrange specific training for their managers and supervisors, given their first-hand contact with the employees. Leaders should be familiar with and impart the company policy, have knowledge of substance abuse symptoms and understand how to approach and when to contact HR.

Confidentiality

Employee privacy laws require managers and supervisors to maintain strict confidentiality regarding discussions with employees suspected of drug or alcohol problems. Information should be divulged on a need-to-know basis in compliance with state and federal laws.

Documentation

Documentation is essential both in assembling solid support for eventual supervisory actions and recommendations, as well as recognizing developing problems, increasing the possibility of early intervention.

Supervisors and managers should maintain both informal and formal documentation.

  • Informal Documentation: observations, brief comments or conversations that will eventually support the manager’s explanations but are not considered part of an employee’s file.
  • Formal Documentation: progressive disciplinary actions, documented accidents reports and formal complaints that are part of the employee’s personnel records.

Detecting Abuse

Detecting substance abuse is no simple matter. Abusers attempt to hide the problem, and co-workers, friends and family members may be hesitant to speak up. The key to detecting abuse is careful and consistent performance monitoring. Keep in mind that classic symptoms of substance abuse may be indicative of a difference problem entirely, such as a health or family issue.

Managers can detect signs of substance abuse in 5 main categories:

  1. Performance: lowered productivity, change in work pace, excessive absenteeism and tardiness, and extended or excessive breaks during work hours.
  2. Appearance: sloppy, unkempt or unshaven appearance, inappropriate seasonal dress, physical changes such as slurred speech, shaky hands, red eyes, weight loss or gain and excessive minor injuries resulting from accidents and domestic spats.
  3. Behavior: moody, argumentative, suspicious or paranoid, overly emotional, extremely talkative, displaying signs of fatigue, stealing or frequent borrowing of money from co-workers.
  4. Safety: careless around dangerous equipment or hazardous materials, more accidents and close calls and damage to equipment or property.
  5. Concealment: secretive behavior, isolation, denial of responsibility for problems, rationalizing or transferring blame to others and defensiveness regarding investigation into their private life.

Detecting and managing employees with substance abuse should be handled with the utmost care, and managers should tread lightly when addressing the issue. Alternatively, human resources outsourcing  professionals can be consulted if your management team suspects a problem and does not feel equipped to properly address and defuse the situation. But either way, taking a proactive stance against workplace drug abuse will go a long way in reducing costs and maintaining a productive and safe work environment.

 

Substance Abuse and the Drug-Free Workplace Act

Thursday, May 9th, 2013

Substance abuse is one of the most critical problems facing employers in the workplace today. Over 22 million Americans are illegally using drugs and 74.8% of them are employed, the majority of whom are full-time.  Substance abuse can affect anyone, at any age and from any walk of life.

The cost of substance abuse in the workplace has been estimated at $81 billion annually! This figure includes direct and indirect costs including loss of productivity, sick time, workers compensation claims, unemployment rating, turnover costs and hiring costs.

Problems in the Workplace

Numerous problems can be traced to employees who use illegal drugs:

  • Absenteeism and tardiness. Two of the most common signs of substance abuse are frequent absenteeism and tardiness. These employees are 2 or 3 times more likely to be late and absent, request time off and to be laid off.
  • Increased Medical Costs. Substance abusers utilize medical benefits at a rate three greater than regular employees. This in turn increases the cost of medical insurance for both the employer and all the employees in the company.
  • Theft. Theft is another issue employers have to face regarding substance-abusing employees. Employers may be shocked to know that up to 80% of drug abusers steal from their workplace to support their drug use!
  • Workplace Violence. Substance abuse is known as the 3rd leading cause of workplace violence. Other leading causes, such as family and marital problems and personality conflicts often result from an underlying substance abuse problem.
  • Injuries and Accidents. Up to 40% of workplace fatalities and 47% of industrial accidents can be attributed to substance abuse. A sobering statistic informs us that the injured party in 80% of serious accidents is not the abuser.

Drug-Free Workplace Act

In 1988, Congress passed the Drug-Free Workplace Act. To comply with the law, federal grantees and recipients of federal contracts of $100,000 and above are required to:

  • Publish a statement informing employees that unlawful manufacture, distribution, dispensation, possession or use of a controlled substance is prohibited in the workplace. The consequences of violation must be specified.
  • Establish a drug-free awareness program to apprise employees of
    1. the dangers of drug abuse in the workplace
    2. the employer’s policy of maintaining a drug-free workplace
    3. the availability of drug rehabilitation, counseling and employee assistance programs
    4. possible penalties imposed on employees for drug-abuse violations
  • Distribute copies of the statement to all employees directly involved in implementation of the government contract. Such employees must agree to:
    1. comply with the terms of the statement
    2. inform the employer within 5 days of any drug-related criminal conviction for a violation occurring in the workplace.
  • Require satisfactory participation in a rehabilitation program or impose sanctions on individuals convicted of a workplace, drug-related crime.
  • Once an employer becomes aware of a workplace-related drug conviction, they must notify the contracting agency within 10 days.
  • Constantly endeavor to maintain a drug-free workplace.

In our next article, we will provide detailed guidance to managers and human resources professionals for dealing with employees who are abusing drugs or other substances in the workplace.

 

What You Need To Know About the New I-9 Form (Effective May 7, 2013)

Tuesday, April 23rd, 2013

Enforcement of I-9 compliance by Immigration and Customs Enforcement (ICE) is at an all-time high. Following the audits of 3,000 employers in 2012, ICE work-site enforcement efforts generated over $130 million last year. And to keep employers on their toes, on March 8, the USCIS (U.S. Citizenship and Immigration Services) unveiled a newly revised I-9 Form, to be effective on May 7.

The new form can be found on the USCIS website at www.uscis.gov/I-9Central.

Accompanying the new form is the M-274 employer handbook. The Handbook includes examples of correct I-9 completion, using the new form. The updated handbook can be found at http://www.uscis.gov/files/form/m-274.pdf.

Key changes on the new form include:

  • expanding the form from one to two pages;
  • a slightly different layout;
  • additional data fields, plus  certain optional fields such as telephone number and email address
  • more detailed instructions concerning completion of the form.

While the new form actually went into effect on March 8, the USCIS provided employers a 60-day grace period to phase out their old forms and begin using the new ones. So starting on May 7, employers will be required to begin using the new form.

Here a few quick pointers to keep in mind as you transition to the new form:

  • Form I-9 has been expanded to two pages long, and the instructions are now six pages.
  • You should keep the instructions handy as they offer practical guidance on each new I-9 item. Among other pointers, they now provide better definitions of the selections for immigration status (e.g., citizen, authorized alien, non-citizen national, etc.).
  • These instructions should be made available to employees as they are completing  the form.
  • Employers may not pre-populate Section 1 of the form – it must be completed by the employee – unless you also complete the “Preparer or Translator Certification” that follows Section 1.
  • The employee still must sign Section 1, even if preparer certification is included.
  • Section 1 must be completed and signed by the employee on their first day of employment, but not before accepting a job offer.
  • A new field in the form is the first day of employment which employers must complete in Section 2. In the event of an I-9 audit, ICE and USCIS may compare the date on the employee’s signature date in Section 1 to the employer’s signature date in Section 2, so be sure they match.
  • Finally, employers must complete Section 2 within three days of when the new employee is hired. An undated or incomplete Section 2 will be useless in the event of an audit.

With the deadline for the new I-9 form looming, it’s more important now than ever for employers to brush up on their procedures for hiring and for administering I-9 compliance. As always, if you have any questions regarding the I-9 form, or any other employment situation, please do not hesitate to contact CPEhr.

Payment of Wages While on Lock-Down

Monday, April 22nd, 2013

Guest Post: Barry J. Miller, partner at Seyfarth Shaw, LLP, Boston Office

Employers in metro Boston awoke on Friday morning to an unprecedented lock down, with Commonwealth and city officials asking business to remain closed and individuals to remain in their homes while law enforcement officials continued with a manhunt for a suspect in the Boston Marathon bombings. As the tension from the manhunt begins to ease, employers may begin to wonder about their obligations to pay employees for work that they performed or missed during the lock down.

Exempt Employees

Salaried exempt employees generally will be entitled to receive their usual weekly pay, regardless of Friday’s events. Most employees who are exempt from minimum wage and overtime requirements and paid on a salary basis are not subject to reductions to their weekly salaries because of a closure. Even when an exempt employee misses a full day of work, the employer may not reduce the employee’s weekly salary unless the employee misses an entire workweek. Improper deductions from an employee’s salary can compromise the employer’s ability to treat the employee as exempt from overtime pay requirements.

While employers typically must pay exempt employees their full salaries regardless of closures imposed by the lock down, employers legally may charge those employees vacation or PTO for any work that they missed. However, even employees who do not have enough accrued leave to cover the closure must receive their full weekly salaries.

Of course, in deciding whether to charge employees with paid leave in conjunction with the lock down, employers may also want to consider nonlegal factors such as employee morale and the organization’s finances.

Non-Exempt Employees

Employers are only required to pay non-exempt employees for the hours they actually work. There is, therefore, no legal requirement to pay hourly employees who stayed home and performed no work during the lock down. Again, non-legal considerations may motivate some employers to pay employees who were scheduled to work but prevented from doing so because of the lock down.

Employees who were scheduled to begin their work day early on Friday may have arrived at work before the lock down was imposed. If those employees had no work to do as a result of the lock down, they may be entitled to reporting pay. Massachusetts law requires that non-exempt employees receive at least three hours at the statutory minimum wage ($8.00/hour) if they are scheduled to work more than three hours on a given day and actually report for work. Employees scheduled for less than three hours need only be paid for their scheduled hours.

Some employees who reported to work also may have felt that they needed to remain in place, at least until the government clarified that such individuals were free to return to their homes. To the extent that such employees continued to work while on their  employers’ premises, they must be paid their usual rates of pay. Unless the employer prohibited employees from leaving their premises, any individuals who had no work to perform or were completely relieved of duties during the lock down need not be paid for such non-working time.

Working from Home

In assessing pay requirements for all employees, employers should keep in mind that, even if a business is closed, some employees might work remotely. Work performed remotely generally must be paid to the same extent as work performed on an employer’s premises — even if the employer did not request that the work be performed. Non-exempt employees working remotely must generally be paid at their usual hourly rate (and subject to the usual requirements for overtime pay).

The events that occurred following the Boston Marathon bombings have had a disruptive effect on businesses throughout the metro area. However, following the rules outlined above may help employers avoid further complications and be prepared for other emergencies that may arise in the future.

For more information, please contact: Dov Kesselman, Seyfarth Shaw LLP  |  (212) 218-5507  |  dkesselman@seyfarth.com

 

Understanding California’s Sexual Harassment Training Requirements

Thursday, April 18th, 2013

As discussed in our previous post, California Assembly Bill 1825 (AB1825) mandates anti-harassment training for California employers with more than 50 employees, every two years. In this, our 3rd and final installment of our sexual harassment training series, we bring you the ins-and-outs of this important piece of legislation.

Training Duration and Frequency

AB1825 requires managers and supervisors to receive at least two hours of highly interactive classroom, webinar or E-learning lessons every two years. In the case of E-learning, the presentation must be constructed so that material presented reaches a documented 2-hour learning time period.

Training should not focus exclusively on sexual harassment; harassment and discrimination involving other protected categories should be covered as well.

Training Content

Training should include the following 10 essential points:

  1. The purpose of AB1825. The law is designed to assist employers to modify behaviors that facilitate harassment and encourage ideals in supervisory employees that will help prevent and engender effective responses to incidents of harassment.
  2. The state and federal definitions of discrimination, retaliation, sexual and other forms of harassment.
  3. Behavior that constitutes sexual harassment.
  4. Remedies for and strategies to prevent sexual harassment.
  5. Concrete examples of sexual harassment, including same-sex harassment.
  6. The definition of limited confidentiality regarding the complaint process.
  7. Resources and explanations for victims and information regarding to whom to address complaints.
  8. The definition of an effective investigation, as well as the employer’s obligation to conduct one.
  9. Course of action if supervisor is personally accused of harassment.
  10. Essential elements of an anti-harassment policy that must be provided, read and acknowledged by each supervisor.

Interactive Elements

The interactive nature of the training serves to reinforce the knowledge provided, reemphasize critical points and keep the participants alert.

Some examples of interactive elements are quizzes, questions, hypothetical situations, practical examples from case law, current news and skill-building activities.

Qualified Trainers

Who is qualified to conduct sexual harassment training?

  • Attorneys with 2 or more years of employment law practice
  • Professors with a post-graduate degree and at least 2 years’ experience teaching about employment law
  • HR professionals with HR Professional certification and 2 or more years of experience in harassment related work

Additional Qualifications

Trainers should also understand the rationale behind the law.  They should be qualified to explain the definition of harassment, how to report and respond to harassment complaints, what constitutes retaliation and how to prevent it, the essential components of an anti-harassment policy, the obligation to conduct an investigation, the effect of harassment on others and how to prevent harassment.

Benefits of Training

Aside for just abiding with California employment law, there is a direct correlation between training and a reduction in harassment complaints. Training defines professional behavior for staff members and clearly marks the boundaries between legal and illegal. Training helps people to separate between personal beliefs and behaviors outside of work, and expectations and professional behavior within the workplace.