Best human resources practices for writing and enforcing policies in the workplace.

Employers and employees working together under ADA guidelines (Part 3 of 4)

The Americans With Disabilities Act (ADA) has been a topic of discussion for HR professionals since it was implemented in 1990. Initially, the act did not give clear guidelines, but included information about expectations for employers and employees working together to create accommodations for employees when necessary

The original act left employers with a lot of questions and we are now receiving clarification on key points. One of the expectations when accommodations are needed, is that it be an interactive process.  This means that the employee and the employer must work together, establishing the best approach that doesn’t put undue hardship on the employer and allows the employee to maintain an active employment status with the company.

For the interactive process to be successful, both employee and employer should be open to varied ideas and be willing to work together. Managers may need training in this area as to what are acceptable and not acceptable questions regarding accommodations.

Sometimes the employee has an idea about how they want to be accommodated, but this may not be reasonable for the employer. For example, an employee may want to work from home, but the employer does not have employees that telecommute or the essential job functions cannot be done from home. This would not be a reasonable request.  If an employee makes such a request, it is always appropriate for the manager to offer other suggestions. We recommend that employers be open to ideas and, if the accommodation is not available, be willing to explain why their request can’t be handled in that way.

Employees may not always know what accommodations are available to them. Sometimes accommodations require a little bit of creativity, like allowing space for an employee to do stretching for an injured back, or bringing in a freezer to keep ice packs cold. For this to happen however, the employee needs to provide information about why they can’t perform certain job duties. One suggestion is that the employee fill out a “request for reasonable accommodation.”  This type of request needs to include information about the impairment and how it impacts the employee’s ability to perform and what the employer may be able to do to help. A request like this is a great way to start the interactive process between employee and employer.

Every ADA situation will be different and it is important for both employee and the employer to maintain good communication throughout the process.. Employers should carefully consider every request and employees must notify their employer as soon as a need arises.

BCN Services is prepared to assist in the entire ADA process and encourage our clients to reach out to us with any questions or concerns. Please see the following case studies for examples of how ADA decisions have affected other employers:

ADA Case studies from

Marytza Golden v. Indianapolis Housing Agency

Marytza Golden alleges that Indianapolis Housing Agency (“IHA”) violated Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Section 504”), when IHA denied her request for additional, unpaid leave to complete her cancer treatment and terminated her upon expiration of 16 weeks of medical leave (including 12 weeks of Family and Medical Leave Act (FMLA) leave).  IHA maintains that, under its medical leave policy, it is proper to terminate all employees who are unable to return to work after taking 16 weeks of medical leave regardless of whether an employee may need additional leave because of a disability.  IHA also maintains that, because Ms. Golden was unable to perform the essential functions of her job at the end of 16 weeks of leave, she was no longer “qualified” for the position and termination was permissible.

The United States respectfully submits this Statement of Interest to clarify the proper interpretation of Section 504 and the Americans with Disabilities Act (“ADA”) with respect to an employer’s obligation to consider a request for additional, unpaid leave as a reasonable accommodation and its obligation to evaluate whether an employee who seeks an accommodation is qualified.

The United States files this brief to help clarify the appropriate standard to determine whether Ms. Golden is a qualified individual with a disability entitled to a reasonable accommodation under the law.  The appropriate standard is to assess whether Ms. Golden is able to perform the essential functions of the job as of the end of the requested leave period that is found to be a reasonable accommodation—not during the time period she was on disability-related leave.

Settlement agreement between the United States and 360 Credit Union

  1. The United States initiated its investigation of THE CREDIT UNION after receiving a complaint made by an individual who is deaf or hard of hearing. The complainant alleged that THE CREDIT UNION is in violation of title III of the ADA because it maintains a policy against accepting third party calls, including relay calls.
  2. The United States has concluded that THE CREDIT UNION violated title III of the ADA. THE CREDIT UNION denies that it violated title III of the ADA or any other law.
  3. The Attorney General of the United States is authorized to enforce title III of the ADA by seeking monetary relief for aggrieved persons, civil penalties, and full compliance with title III’s provisions, such as requiring public accommodations to make reasonable modifications to policies, practices, and procedures and provide auxiliary aids and services, 42 U.S.C. § 12188(b); 28 C.F.R. § 36.504. The Attorney General may commence a civil action to enforce title III in any situation where he has reasonable cause to believe that a pattern or practice of discrimination exists or a matter of general public importance is raised. 42 U.S.C. §
  4. Title III of the ADA and the title III implementing regulation prohibit discrimination on the basis of disability by public accommodations. 42 U.S.C. § 12182; 28 C.F.R. § 36.201. Specifically, title III requires public accommodations to provide auxiliary aids and services when necessary to ensure effective communication with individuals with disabilities. 42 U.S.C. § 12182(b)(2)(A)(iii); 28 C.F.R. § 36.303. Title III also requires public accommodations to make reasonable modifications to policies, practices, or procedures when such modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities. 42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. § 36.302(a).

Kari Stanley, HR Generalist

Employer Responsibilities under the Americans with Disabilities Act (ADA) (Part 2 of 4)

The U.S. Supreme Court has ruled that when determining an ADA disability, an employer must consider whether the person is substantially limited in performing a major life activity when using a mitigating measure.

A mitigating measure could be, for example, an employee’s medication to alleviate the effects of an impairment.

This means that if a person has little or no difficulty performing any major life activity because he/she uses a mitigating measure, then that person will not meet the Americans With Disabilities first definition of “disability.”

Following the Supreme Court’s ruling, whether a person has an ADA disability is determined by taking into account the positive and negative effects of mitigating measures used by the individual.

The ADA makes it unlawful to discriminate against a qualified individual with a disability in all employment practices such as:  recruitment, pay, hiring, firing, promotion, job assignments, training, leave, lay-off, benefits, all other employment related activities.  The ADA also outlaws discrimination against individuals with disabilities in state and local government services, public accommodations, transportation and telecommunications.  An employer may not retaliate against an applicant or employee for asserting his/her rights under the ADA.  The Act also makes it unlawful to discriminate against an applicant or employee, whether disabled or not, because of the individual’s family, business, social or other relationship or association with an individual with a disability.

What are Essential Functions?

Essential functions are basic job duties that an employee must be able to perform, with or without reasonable accommodation.  Carefully examine each job to determine which ones are essential to performance.  This is particularly important before taking an employment action such as recruiting, advertising, hiring, promoting or firing.

Factors to consider in determining if a function is essential include:

  • Does the position exist to perform that function?
  • How many other employees are available to perform the function (or among whom the performance of the function can be distributed)?
  • What is the degree of expertise or skill required to perform the function?

Your judgment as to which functions are essential and a written job description prepared before advertising or interviewing for a job will be considered by the Equal Employment Opportunity Commission (EEOC) as evidence of essential functions.  Other kinds of evidence the EEOC will consider include:

  • The actual work experience of present or past employees in the job,
  • The time spent performing a function,
  • The consequences of not requiring that an employee perform a function, and
  • The terms of a collective bargaining agreement.

An Employer is obligated to provide reasonable accommodations

Reasonable accommodation means any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities.

Examples may include:  acquiring or modifying equipment or devices, job restructuring, part-time or modified work schedules, reassignment to a vacant position, adjusting or modifying examinations, training materials or policies, providing readers and interpreters and making the workplace readily accessible to and usable by people with disabilities.

Reasonable accommodation must also be made so that an individual with a disability may participate in the application process and enjoy benefits and privileges equal to those of other employees.

An employer that fails to provide reasonable accommodation to a known physical or mental limitation of a qualified individual with a disability is violating the ADA, unless doing so would impose an undue hardship on the operation of your business.  Undue hardship means that an accommodation would be unduly costly, extensive, substantial or disruptive, or would fundamentally alter the nature or operation of the business.

How to identify a reasonable accommodation

Many times, when a qualified individual with a disability requests a reasonable accommodation, the appropriate accommodation is apparent.  When it is not apparent, the employer must make a reasonable effort to identify one.  The best way to do this is to consult informally with the applicant or employee about potential accommodations that would enable the individual to participate in the application process or perform the essential functions of the job.

Reasonable accommodations and undue hardship

A reasonable accommodation is not required if doing so would cause an undue hardship. Factors to consider are the cost of accommodation, the employer size, financial resources and the nature and structure of its operation.

If there is an undue hardship, try to identify another accommodation option.  If cost is the undue hardship, consider whether funding is available from an outside source, such as a vocational rehabilitation agency, and whether the cost can be offset by state or federal tax credits or deductions.  You must also give the applicant or employee with a disability the opportunity to provide the accommodation or pay for the portion of the accommodation that constitutes an undue hardship.

Other things to consider

You can ask an applicant questions about his or her ability to perform job-related functions as long as the questions are not phrased in terms of a disability.  You can also ask an applicant to describe, or to demonstrate how, the applicant will perform job-related functions with or without reasonable accommodation.

After a job offer is made and prior to employment  start, you may require an applicant to take a medical examination if others working in the job category must also take the examination.

Once you have hired an applicant, you cannot require a medical examination or ask an employee questions about disability unless you can show these requirements are job related and necessary for the conduct of your business.  Results of all medical examinations or information from inquiries about disability must be kept confidential, and maintained in a separate medical file.

Debbie Strahle, Partnership Manager


American with Disabilities Act compliance still an issue for employers Part 1 of 4

Twenty-five years after passage of the American with Disabilities Act (ADA), the complexity of compliance continues to plague employers.  For years, the U.S. Equal Employment Opportunity Commission (EEOC) has offered little guidance about the law and employee discrimination claims have continued to increase. Following are a few examples:

In EEOC v. Kaufman Container, a long-term machine operator was awarded $120,000 in monetary relief after the company failed to reasonably accommodate her when she became visually impaired as a result of complications related to her diabetes.  In EEOC v. Starbucks, a barista with a mental impairment who required extra training and support was awarded $75,000 after a new manager stopped accommodating her.  And, in EEOC vs Sears, Roebuck & Co., $6.2 million was awarded to 235 employees involved in a class-action lawsuit based on the company’s policy of leave exhaustion.

Over the next three weeks we’ll blog about the following key components of ADA and how to keep from jumping through hoops while staying compliant.

Here are the topics that all employers should understand:

  • Their responsibility under the ADA
  • The need to enter into the interactive process with employees and/or
  • The decision to offer a leave of absence as a possible accommodation for an employee.

We encourage you to call BCN’s professional HR associates to assist as you navigate the process of employee accommodation and leave requests.


Sue Kester, HR Manager

It’s Spring: Time to organize and clean up those employee records

Spring is in the air and there is no better time to get organized. That includes your HR records. It can seem daunting at first but take a deep breath and roll up your sleeves and use a few of these guidelines to will help you get started.

Where should you keep personnel files? If you have a person or department dedicated to Human Resources, keep personnel files in that person’s area or in a designated place within that department. If your organization does not have a designated Human Resources representative, then the manager who supervises the employee should keep the personnel files in a locked cabinet or room.

Who has access to personnel files? Only the Human Resources representative and an employee’s immediate supervisor should have access to personnel files. Grant other access on a case-by-case basis only, and at the discretion of the Human Resources representative or relevant manager. In large companies with many managers who access files, I recommend implementing a check-out system which tracks when a file is reviewed, and by whom. Become familiar with your state’s regulations as to how and when an employee may have access to their own personnel files, as they vary.

  • What should you keep in a personnel file? Personnel files should include objective information related to hiring, promotion, demotion, compensation, discipline or discharge of an employee. Specific documents that may go in a personnel file include, but are not limited to:
  • Application and resume
  • Offer letters
  • Performance Reviews and disciplinary notices
  • Compensation and deduction information
  • Confidentiality and/or non-compete agreements
  • Acknowledgment of handbooks
  • Attendance records, including vacation and personal leaves
  • Changes in name, address or telephone numbers
  • Beneficiaries on Company provided insurance policies
  • Emergency Contact information
  • Training records
  • Termination/Resignation letters

What should NOT be kept in a personnel file? Documents which should never be placed in a personnel file include, but are not limited to:

  • Subjective notes about the employee (during interviews, on applications, etc.)
  • Reference checks or letters of reference
  • Documents relating to a criminal or other investigation of the employee
  • Credit reports
  • Immigration and naturalization information (I-9 Forms)
  • Medical files or any records informing of a medical condition
  • Photos of the employee, including photocopies of drivers licenses

What about I-9 Forms? These immigration forms disclose national origin, so keep this data separate from personnel files. It is not necessary to keep a separate I-9 file for every employee. Instead, keep I-9 information in two binders: one for current employees and one for past employees. The Immigration Reform and Control Act (IRCA) requires employers to retain completed I-9 forms for three years after the date of hire or one year after the date employment ends, whichever is later.

What about medical records? There are many opportunities for employees to provide the organization with documents which include medical information. For instance, an employee may provide medical information relating to disability issues, a workers’ compensation issue, Family Medical Leave Act, or even sick leave. Maintain such records separately from the personnel file, in a locked drawer with very limited access. Similar to my advice regarding personnel files, institute a check-out system to regulate and document who has access to these records.

How long should specific documents be kept?

Employee Compensation: Payroll records (including records of wages, hours, collective bargaining agreements, employment contracts, date of payment, amount of payment, record of straight and overtime earnings etc.) should be kept for three years. Time cards can be discarded after two years.

Leave of Absence Records: Family Medical Leave Act records related to leaves of absence should be kept for three years. This includes basic payroll data, FMLA leave dates, and copies of leave notices.

I-9 Documentation: Employers must retain completed I-9s for three years after the date of hire or one year after the date employment ends, whichever is later.

Pre-Employment Records (i.e. advertisements, applications, resumes): The Age Discrimination in Employment Act requires you to keep advertisements, job applications, and resumes for one year from the date of the event.

OSHA Logs: This law mandates that Occupational Safety and Health Administration logs be kept for five years following the end of the year to which the records relate.

Employment Records (including promotions, demotions, transfers, terminations): Companies must keep these records for one year from the date the record was made or the termination action was taken, whichever is later.

Now that you have some guidelines to help you get organized, Happy Spring Cleaning!

If you are already a BCN PEO client, BCN securely keeps your employment records for you, and it is not necessary for you to keep records on site. But if you do, these guidelines will help. Contact the experts at BCN Services if we can answer any additional questions about your record-keeping or other HR policies.



Lisandra Quinones, Human Resource Administrator

Consider policies for off duty emails

Recent technology advances have made it easier to view work-related documents while away from the office. Employees may have access to e-mail or other work-related items through their phones, personal computers, or tablets.

So the question arises: Is reading e-mails while off duty considered hours worked or wages owed? The Fair Labor Standards Act (FLSA) defines hours worked as “all the time during which an employee is required to be on the employer’s premises, on duty, or at a prescribed workplace” (

The FLSA addresses what it considers substantial duties versus “de minimus” (or minimal, trifling) activities. If an employee’s activities outside of the workplace are considered substantial, then the company should provide a method of recording those hours to be counted as time worked. Work that is not substantial in nature would be something that can be done at a later time, say while you are in the office as opposed to at home, such as checking e-mails.

It is, therefore, generally understood that an employee checking e-mails from a personal device while away from the office is not required to be compensated for these activities. As with any practice however, an employer needs to be consistent. If an employer choses to pay one person for e-mail activity away from the office, then an employer would need to continue that practice going forward with all employees.

In 2015, there was a court ruling favoring the employer when employees filed a claim based on work-type activities they were engaged in, but not compensated for. The judge ruled that these were not substantial activities and that the employees could have waited until they were back in the office to complete the tasks.

Employers have the ability to make this arrangement clear to their employees by having two types of policies in place:
• One addressing how to report work that isn’t recorded in the usual way and
• Another, considering personal devices that specifically addresses when work should, and should not, be accessed through a personal device.

As always, if you have any questions about this topic or other questions about your corporate policies, contact BCN Services for clarification and assistance.


Kari Stanley

Kari Stanley, HR Generalist

Consider liability issues if serving alcohol at company parties

The holiday office party season is upon us, but before you decide to serve alcohol at your company party this year you should be aware that there are potential legal liabilities, including injuries to your employees.

If you plan to serve alcohol, consider the following best practices to limit those legal liabilities:

  • When sending out your invitations, be sure to include a statement that encourages employees to drink responsibly and in moderation at the event and to not drink and drive. Circulate another written reminder just before the party.
  • Hire a professional bartending staff for the event; do not have a self-serve bar or open keg. Verify the bartending staff’s experience and ensure that they have proper insurance coverage.
  • Limit the number of drinks each guest may consume or consider having a cash bar. You may wish to serve beer and wine only instead of offering a full bar.
  • Always serve food so that employees are not drinking on an empty stomach
  • Offer a variety of beverages including non-alcoholic options. Consider having “mocktails”(cocktails without alcohol) so that those who do not wish to drink can still feel included.
  • Emphasize to management staff that they should lead by example and that they may need to intervene if a situation at the party crosses the line.
  • Have alternate transportation, such as rented vans or cabs, available in case an employee has had too much to drink and needs a ride home.

BCN Services is here to help you. If you need assistance communicating to your employees regarding your company’s alcohol policy or if you have additional concerns about serving alcohol at your holiday party, please contact us.



Alicia Jester, Manager-Benefits and Payroll

Be cautious asking for confidentiality during workplace investigations

As an owner or manager of your company, complaints, allegations of harassment, or other types of grievances will inevitably come to your attention from time to time, meriting an investigation

In the past, you may have been involved with investigations where an employee was required to maintain confidentiality except with the person doing the investigation. Confidentiality is beneficial in an investigation if you are attempting to learn each person’s individual take on a situation and not have employees collaborating and tainting what is shared by their conversations.

But recent guidance from the National Labor Relations Board (NLRB) states that employees are allowed to discuss investigative situations as they are allowed to discuss job-related factors such as wages, job conditions and work assignments. The NLRB considers this a legally protected right of employees. There have been judgments against companies who have required employees to sign confidentiality statements when participating in investigations, especially when a company terminates an employee in the process of enforcing those statements.

Workplace investigations are best handled by BCN Services, which has professional staff to assist you and can provide an impartial, professional investigation of the situation. BCN will work with your management team as appropriate, and make recommendations designed to help defuse situations and protect the company from legal issues down the line.

Your management team will likely be involved in these discussions, too. It’s important that the BCN HR staff and your mangers be on the same page in approaching the investigation and what’s required or asked of employees.

The bottom line for employers: It’s acceptable to request confidentiality and explain how it will help the integrity of the investigation process, but use caution when prohibiting the discussion of sensitive information. Any disciplinary action plans related to the sharing of information should be carefully reviewed with the experts at BCN prior to taking action.

Trisha Crigger, Human Resources Generalist

Take steps to ensure that reviews are positive and beneficial

Employee performance reviews are traditionally a part of the workplace that almost everyone fears. But if utilized as a tool and an interactive process, both employee and employer will benefit.

Evaluations are important for the company, management and employees. They can be an opportunity to collaborate and foster a healthier and happier relationship. We suggest having performance reviews that focus on areas in which employees are both competent and interested. Employers then can consider adjusting the employee’s assignments to those areas of interest.

Supervisors should focus on forward progression rather than last year’s struggles. When it is necessary, offering criticism shouldn’t be avoided. However, approaching the conversation with employees as an interactive discussion that focuses on progress is more beneficial. The discussion of what an employee does well, versus what the employee needs to work on, will help shift employees’ perspectives of performance reviews so they feel encouraged and supported.

In addition, when employees are held accountable, they are more likely to perform better. Performance reviews reiterate this accountability, as well as the goals and vision of the company.

Some basic guidelines supervisors should follow:

  • The evaluation should take place in a location that is private and away from interruption
  • Employees should have a clear understanding of their responsibilities
  • Start by being positive and acknowledging accomplishments
  • Highlight what you value and appreciate about the employee
  • Move to discussion of areas that require improvement
  • If you are going to criticize, make sure to have specific suggestions for improvement that are measurable
  • Encourage the employee’s feedback, such as asking if there is something you can do to help them be successful
  • End with a plan including action steps to be taken towards the goals discussed in the session

Fewer than half of workers find performance reviews to be useful. The key to changing this perspective is for employers to approach the review positively and focused on progress.

Excellent work from employees will result from constructive feedback and a support system that offers encouragement. If you have any questions or would like to learn more about performance reviews, please contact your BCN Partnership Manager at 800-891-9911or or contact us here.




Kateyln Walzbecker, Partnership Manager

Society for Human Resource Management:…
Boomer Consulting:…

Be cautious when hiring or firing employees due to ADA protections

A new and increasingly utilized protection under the Americans With Disabilities Act (ADA) has been defined as “Associational Discrimination.” The Equal Employment Opportunity Commission explains it this way:

“The association provision of the ADA prohibits employment discrimination against a person, whether or not he or she has a disability, because of his or her known relationship or association with a person with a known disability. 

“This means that an employer is prohibited from making adverse employment decisions based on unfounded concerns about the known disability of a family member, or anyone else with whom the applicant or employee has a relationship or association.”

Ensure hiring or firing is not associated with disability

Employers need to be cautious when deciding not to hire an applicant or terminating employees. They must ensure that the decision is not associated with knowledge of an employee’s family, friend or partner with a disability that they perceive would require the employee to miss work, for example.

An employee who is eligible for the Family and Medical Leave Act (FMLA) is granted legal rights to take leave to care for a family member with medical certification. However that requirement only applies to employees who have been with the company for at least one year (cumulatively) and have worked 1,250 hours in the previous 12 months.

Under the ADA, any employee, no matter the length of service, is eligible for ADA protections. Even an applicant for an open position has these protections.

Under the ADA, an employer who makes an adverse employment action could be charged with “associational discrimination.” This could include failing to hire an applicant or terminating a current employee due to an assumption that the employee will miss time from work to care for a family member that has a disability.

An employee must be able to perform essential functions of a job. However, recent court cases have also held that  an employee that does not fall under certain attendance or tardiness policies (an exempt employee, for example) cannot be held responsible if that  employee regularly starts the work day late due to caring for a family member with a disability.

Disciplining or terminating an employee who is not subject to attendance or tardiness policies could result in an associational discrimination charge.

Structure policies and handbook to limit exposure

Structure your company handbook and policies to limit exposure to associational discrimination claims and to train hiring managers to avoid decisions that leave the company vulnerable.

Additionally, it is imperative to review all factors when terminating employees. Consider the following points:

  • Was the employee qualified for the job at the time of the adverse employment action?
  • Was (s)he subjected to an adverse employment action?
  • Did the employer know at the time that (s)he had a relative or associate with a disability?
  • Did the adverse employment action occur under circumstances raising a reasonable inference that the relative’s or associate’s disability was a determining factor in the employer’s decision?

As always, contact your BCN Services Partnership Manager to arrange manager training, handbook or policy development and/or guidance in questionable employment situations.


Jeff Walsh (200x190)

Jeff Walsh, Partnership Manager

Inclement weather policy can keep your business humming this winter

Does your company have an inclement weather policy?  Many employers choose to deal with individual situations as they arise, but planning ahead of time can ensure peace of mind for both employer and employees.

You may wish to consider how to address these top three matters:

Will you maintain regular hours of operation or close?

Some employers may choose to close their business when the weather reaches a certain threshold.

Others may stay open and encourage employees to exercise caution when reporting to work. Some employers, such as hospitals or emergency workers, may not have the luxury of choosing to stop operations due to bad weather.

In any case, make sure your employees know your policy and how any changes and decisions will be communicated to them.

How will you handle pay issues?

Whether the company closes or an employee is unable to report to work, non-exempt (hourly) employees are not required to be paid for this time.  However, if the employee is entitled to paid time off (PTO) or vacation time, your policy should indicate whether that would be applied.

Employers are not required to pay exempt (salary) employees if they do not report to work, although PTO or vacation time may be applied to cover this time.

However, in today’s age of technology when many exempt employees are “connected” to the office by email, voice mail and other means, if an exempt employee works any part of a day – regardless of whether they are physically at work – they should be paid a full day’s wage and vacation or PTO time should not be applied.

Can employees work from home or make up their time?

As stated above, you may want to consider whether to let exempt employees work from home.  That may not be possible with some positions, but making up the time off may be an option to consider.

Having an inclement weather policy that stands on its own, or as part of an Emergency Action Plan, can reduce confusion and ensure that your employees know how to respond accordingly.

The BCN Services Human Resources Department can assist you in customizing a plan that’s right for your business. Give us a call.




Sue Kester, Human Resource Manager