Archive for the ‘Employment Laws’ Category

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Employment Law Blog Carnival: The Holiday Edition

Wednesday, December 14th, 2011

“Tis the Season to be Jolly”, or so they say. While we turn to eggnog, gingerbread cookies and a cozy fire to forget our troubles, our dedicated politicians, employment lawyers and government legislatures never rest! Just when you were ready to get out and start caroling down the streets, along comes the Employment Grinch to bring sobriety to your intoxicated holiday cheer!

To kick off the holiday season, let’s talk about the Corporate Holiday Party. If you are like most businesses, you will be hosting one sort of party or another. Before you start uncorking the champagne, we suggest you read the following articles:

Jon Hyman’s post on Booze, Sex and HR: maintain perspective; accept corporate responsibility

Shaun Reid’s article, The Company Holiday Party: HR’s Role as Party Planner

Mark Toth’s post, Top 5 Holiday Party Tips.

Do you have any employees planning on celebrating their holidays with a new baby? Here is Andrea W. S. Paris’s post on California Pregnancy and Parental Leave Laws to help set the facts straight.

With 75% of employees active in Social Media, it’s just a matter of time until one of your staff posts their favorite picture taken dancing with the boss’s wife on their Facebook page. However, before making any brash decisions, be sure to check out Robert B. Fitzpatrick’s post, Sternly, and in Writing, Warn Clients Not To Mess With Facebook. Or, even worse,  they may actually share their lewd pictures over email with each other! Wondering how to manage that?? See Philip Miles’ Ranking Workplace Porn Emails.

Now, if things escalate and you are in the unfortunate position to let that employee go, you should read John Holmquist’s Note to Employers: Avoid the Aggie Way before taking the first step.

But we all know what happens next – faster than a speeding sleigh, the employee files a wrongful termination lawsuit (does your Employee Handbook say anything explicitly about not emailing lewd party images to co-workers??). Dawn Lomer provides some good advice in Bad News Can Be Good for a Wrongful Termination Lawsuit.

If you’re lucky enough to avoid a lawsuit, don’t be surprised if your ex-employee starts badmouthing  you to your clients, ruining everyone’s holiday cheer. Uh-oh. Better check out Adam P. Whitney’s post  You’re Damned if You Don’t Deal with Rogue Ex-Employees before things get out of hand.

Once the holidays wind down, employees will no doubt share their vacation experiences over breaks with their co-workers. Heather Bussing covers the hot topic of breaks and lunch periods in her post, Are Employers the Lunch Police?

Whew! And when it’s finally time to move on and recruit new talent to replace your former employee, Donna Ballman offers an employee-side perspective  regarding Employment Offer Letters and Joan Ginsberg has some suggestions for conducting video job interviews, Legal Concerns – Video Job Interviews.

If you are feeling exhausted and depressed and sapped of all your festive cheer, Robin E. Shea helps us get back into the spirit with her uplifting post, 10 Reasons for Employers to be Jolly about the ADA.

And who ever said the holidays weren’t fun??

Happy New Year everyone!

 

 

 

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How to Effectively Manage Violence in the Workplace

Wednesday, December 7th, 2011

In November, 2009, U.S. Major Nidal Hasan killed 13 people and injured dozens more on a US military base in Fort  Hood, Texas. More than two years later, the Defense Department classified the shooting as “workplace violence”. While this has caused a stir in the political world (with Republicans decrying the classification as putting political correctness over national security), workplace violence is a reality that should be taken seriously by all employers. In this post we will briefly review some of the causes of workplace violence, and what employers can do to mitigate it.

What Causes Violence in the Workplace?

Several reasons are given for violence in the workplace. These include:

  • Economic pressures and personal stress – financial, psychological or social challenges that can build over time;
  • Violence may be viewed as a way to deal with personal frustrations or resolve conflicts;
  • The glorification and tolerance of violence due to the abundance of graphic depictions on video, TV and in games;
  • An opportunity to express extreme or fanatical political opinions or religious beliefs.

Ultimately, there are unlimited reasons why workplace violence exists. However, as an employer you are expected to create an environment that is safe for all employees, to the best of your ability.  There is no way to predict if or when violence will occur in your workplace, but certain proactive, interventive steps can be taken that can reduce the chance of violence erupting.

Proactive Steps:

  • If you notice an employee exhibiting aggressive or threatening behavior, address the situation immediately.
  • Review your workplace safety policy with problem employees so they are aware of the consequences of their actions.
  • Educate employees in the workplace to be alert and to report any aggressive, disruptive or violent acts.
  • Immediately refer employees who have exhibited violent behavior to counseling (EAP or private)

Following these initial steps, be sure to remain proactive and follow-up with ongoing monitoring of the employee’s behavior, use progressive discipline as needed, and assess the violent potential of terminated employees.

While intervention is an important approach to address workplace violence, the number one prevention is to define and require professional conduct across all-levels of the organization. In a professional work environment, disruptive or violent employees will be identified much faster than they would in a chaotic environment with little or no professional standards. Every business should strive to this goal which will not only minimize the chances of workplace violence, but will enhance the overall success of the organization.

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Recordkeeping Best Practices: Maintenance and Penalties

Tuesday, November 29th, 2011

Continuing with our detailed analysis of proper recordkeeping practices, we now turn to the various human resources documents requiring maintenance, discuss exceptions to standard recordkeeping practices and the penalties for negligent recordkeeping.

I-9 Forms

The Immigration Reform and Control Act (IRCA) bans the employment of illegal aliens. Employers must complete an I-9 form, the Immigration and Naturalization Service’s Employment Eligibility Verification Form. They must include the identity and authority to work of all employees. Failure to comply can lead to civil and even criminal penalties. Maintaining copies of supporting identification and work authorization documents in addition to the I-9 forms is therefore advised, although it is not mandatory according to the law.

Records should be preserved for three years after hiring and/or one year after termination, whichever is later. The records should be placed together in a common file or stored electronically for all employees together rather than in separate personnel files.

Employee Benefits Data

The Employee Retirement Income Security Act (ERISA) governs retirement and other employee benefits. Employers must maintain records supporting the data in summary plan descriptions (SPDs), Cobra notices, annual reports for all benefit plans and records pertaining to eligibility for benefits under ERISA.

Records should generally be retained for six years after the end of employment, although records pertaining to eligibility determination for benefits should be saved for as long as relevant.

FMLA/CFRA

The FMLA (Family and Medical Leave Act) allows eligible employees up to 12 weeks of unpaid leave within a 12-month period, based on specific medical and family criteria. General documentation of requests should be stored in personnel files. Specifics of medical necessities and request details including diagnosis should be sent to employee medical or health files.

Relevant documentation should be retained for a period of 4 years, based on the ADA, FMLA and CFRA (California Family Rights Act).

Employee Health Records

Employee health records include all records of job injuries or deaths (OSHA forms 300, 300A and 301), drug and alcohol testing records, pre-employment physicals and specific medical records.

Information from medical exams is confidential and must be placed separately from other records. Records of any medical examination resulting from exposure to toxic or hazardous substances or required by OSHA should be saved for 30 years after the employee terminates employment. Otherwise, employee health records should be retained for five years.

Workers’ Compensation

Each work-injury claim must be documented in a file that includes the worker’s name, the date of injury, the claim administrator’s claim number, an indication of whether the claim is an indemnity or medical-only claim, a note if there has been a denial and a Certificate of Consent to self-insure if appropriate.

Records relating to workers’ compensation should be saved for 5 years from date of injury or 1 year from the date compensation was last provided to the employee.

Who Must Retain Records?

All employers are obligated to retain documentation of compliance with state and federal regulations and records pertaining to the life cycle of an employee. Nonetheless, there are some exceptions based upon the number of employees in the company. Check with your Human Resources department for exceptions.

Fines and Penalties

Violations of recordkeeping requirements can incur fines of up to $70,000 and prison terms that range according to the specific violation. The verdicts are often “per incident,” which typically includes all occurrences to each individual employee.

Summary

Understanding the state and federal employment laws that drive employment is essential in order to comply with them. Proficient recordkeeping also facilitates efficient and effective human resource management and will help defend employment decisions and actions. Using your Human Resource experts for guidance, practice smart documentation and recordkeeping for a secure and organized company.

 

 

 

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Recordkeeping: What Employment Documents to Keep, and For How Long

Wednesday, November 23rd, 2011

Recordkeeping plays an integral role in the human resources administration of any company. A wide range of information about employees must be preserved to comply with federal and state laws, defend employment decisions when the need arises and facilitate efficient and effective management of human resources.

As a general rule, ensure that records are stored in a safe and secure place, accessible only to authorized personnel, and that they are shredded, completely erased from digital storage or otherwise discarded in an appropriate manner.

Below is a detailed analysis of the various record categories requiring maintenance.

Hiring Records

Hiring records include applications, resumes, pre-employment tests, reference checks, interview evaluations, external ads and internal postings for open positions and job requests submitted to employment agencies. The safe period of time to save records pertaining to hiring would be 2 years after the employment relationship has ended, as driven by Title VII, FEHA, ADA and ADEA. If you choose not to hire an individual, store this information in an applicant file. Records for an individual you hire should be placed in their personnel file.

Employee Personnel Files

Employee Personnel Files should contain the employee’s job title, description and classification. The file should also include the job offer letter, promotions, demotions, performance observations and evaluations, training, testing (including certificates), disciplinary notices, attendance records, discharges, transfers, lay-offs and recall files, acknowledgements of company policy and handbook receipt and requests for reasonable accommodations.
The personnel files should be kept for a period of 2 years following cessation of the employment relationship in an exceptionally secure location.

Employee Polygraph Test

While the Employee Polygraph Protection Act (EPPA) limits the routine use of lie detector tests, they are sometimes used in investigations such as employee theft. The law requires employers to save a copy of the statement delivered to employees stating the incident under investigation, the reason for testing, the loss endured by the employer, the nature of the employee’s access to the person or property under investigation, the notice delivered to a polygraph examiner naming the person or persons to be examined and all documentation relating to the actual testing.

The fact that an exam was ordered may be noted in the personnel files, but the remaining related records should be stored in a separate and confidential filing system for a minimum of 3 years from the test date.

Payroll Records

Payroll records consist of name, address, date of birth, SSN, job definition, terms and conditions of employment, child labor certificates and notices, union and employee contracts, the start and end of each work week, total daily and pay period hours, meal periods and split-shift schedules, rates of pay, total wages paid each payroll and net wages and deductions.
Payroll records should be preserved for at least 4 years after termination of the employment relationship to comply with the FLSA, CUIC (California Unemployment Insurance Code), ADEA and OWBPA (Older Workers Benefit Protection Act).

Employee Wage Records

Employee wage records include time cards, wage rate calculation tables, shift schedules, individual employees’ hours and days, piece rates and any records explaining wage differential between sexes. Maintain employee wage records for at least 4 years, in accordance with the FLSA (Fair Labor and Standards Act), EPA (Equal Pay Act) and the California Labor Code.

In our next post, we will continue our detailed analysis of the various record categories requiring maintenance, discuss exceptions to standard recordkeeping practices and examine the penalties for negligent recordkeeping.

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The Latest California Labor Law: AB 469 – NOTICE OF PAY DETAILS

Wednesday, November 16th, 2011

Effective January 1, 2012, a new California labor law, AB 469, goes into effect requiring California employers to add a new document to their new hire package. The new law, formalized as Labor Code Section 2810.5, requires employers to provide all non-exempt hires with a written notice that contains the following information:

  1. The rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or otherwise, including any rates for overtime, as applicable;
  2. Allowances, if any, claimed as part of the minimum wage, including meal or lodging allowances;
  3. The regular payday designated by the employer in accordance with the requirements of this code;
  4. The name of the employer, including any “doing business as” names used by the employer;
  5. The physical address of the employer’s main office or principal place of business, and a mailing address, if different;
  6. The telephone number of the employer;
  7. The name, address, and telephone number of the employer’s workers’ compensation insurance carrier;
  8. Any other information the Labor Commissioner deems material and necessary

Going forward, if any of the above information changes, the employer must provide the employees notice of these changes within seven days in one of the following methods:

  1. By providing a written amendment to the statement;
  2. By issuing an entirely new notice;
  3. Via paycheck stub, if the updated information is contained on the paycheck stub.

AB 469 does NOT apply to exempt employees, public employers, or employees already covered under a collective bargaining agreement (unionized employees).

While the Labor Commissioner has stated that a template will be made available to assist employers, we strongly encourage you to contact a CPEhr human resources outsourcing specialist to assist you in complying with the new law.

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Employee Documentation, Part II: What to Do and What to Avoid

Monday, November 14th, 2011

Continuing with our examination of the importance of employee documentation in the workplace, we will now detail the particular events and communication that should be documented, as well as highlight common documentation errors worth avoiding.

What to Document

Managers should document any formal or informal discussions with employees regarding company policy or job performance. This includes observation of company procedure or policy violation and conversely, observing an employee performing “beyond the call of duty.” Don’t underestimate the importance of making note of informal reminders of company policies to an employee. A manager will find it difficult, if not impossible, to remember the informal comments and reminders that lead up to disciplinary action without jotting down a quick note at the time.

Rumors overheard or brought to one’s attention should be noted, especially in the case of Unlawful/Sexual Harassment, for which employers are obligated to investigate all complaints and rumors, regardless of how small.

Record all product and service specific conversations or discussions carried out with potential or existing customers, vendors, dealers or shipping agents.

In short, be sure to document any conversations or actions that may lead to tangible employment action, a need for evidence or changes in business agreements or policies. Issues with products or services and promises or agreements made also require documentation.

Common Errors

Harried managers and supervisors are often pressed for time and may rush through documentation. Admittedly, documentation can be time-consuming, but rushing can lead to mistakes, eventually damaging employers in the event of an investigation. Below are six common mistakes that should be avoided:

  1. Sign and date all statements that you write. If appropriate, ensure that the individual also signs. Penmanship does count; an illegible document will just frustrate the situation.
  2. Documentation that was recorded days or weeks later than the event holds much less credibility and doesn’t shed a complimentary light on the company or you.
  3. Remember to avoid biased or unsupported opinions and ensure that all documentation is strictly based on solid facts. Verify that all information is completely accurate.
  4. Don’t be vague: “Mary White has been arriving late for work at least three times per week for a period of 2 months” is much more effective than “she needs to get better.” To ensure that specific details will be available when needed, begin documentation at the first sign of a problem.
  5. Be very careful to avoid inconsistent or biased application of company policies. Any hint of favoritism will not be looked upon favorably at all. Ensure that similar infractions are dealt with consistently across the board.
  6. Do not write personal notes on ANY documents, including applications, warnings, resumes, performance appraisals and others. A judge may eventually see the documents and altering documents in any manner, including erasing side notes, is against the law.

Summary

Documentation is meant to demonstrate evidence of actions. Not limited to disciplinary action, documentation should cover an extensive assortment of events. Documentation is effective when it is factual, specific, unbiased, legible and when appropriate, signed. Remember to always inform Human Resources of all documentation.

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