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

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.

 

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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.

 

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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.

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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.

 

 

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Kateyln Walzbecker, Partnership Manager

Resources:
Society for Human Resource Management: http://www.shrm.org/hrdisciplines/employeerelations/articles/pages/annua…
Boomer Consulting: https://www.boomer.com/
HRMorning.comhttp://www.hrmorning.com/dos-and-donts-to-make-performance-reviews-actua…

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.

 

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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.

 

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Sue Kester, Human Resource Manager

Consider its purpose before using an employee severance agreement

The use of severance agreements has increased over the past several years, particularly with the recent economic downturn.

In some cases of involuntary separation, employers choose to enter into severance agreements with employees to avoid potential litigation.  The idea behind the severance agreement is that an employee receives something of value to them which they would not otherwise be entitled to (usually additional compensation or benefits). In return, the employee makes a written agreement not to sue his/her employer.

Severance agreements not right in every case

While the premise of a severance agreement may sound like a viable option if you have an employee you are considering terminating, they are not right in every situation. There are legal considerations you should review before using such an agreement:

  • The employee must receive something in exchange for the release (typically, a sum of money) and that offering must be included in the release.  Keep in mind that if you normally offer a severance package to employees that do not sign a release, you must offer something additional to employees that do sign.
  • An employee cannot be forced to sign a severance agreement.  As an employer, all you can do is offer the agreement.  A court will not enforce the release if they find that the employee was coerced.
  • You must be clear about the rights the employee is waiving in the agreement.

EEOC warns that it may interfere with rights

The Equal Employment Opportunity Commission has argued that, in some cases, a severance agreement unlawfully interferes with the employee’s ability to communicate with the EEOC regarding potential discrimination.

Also, the age of the employee can impact the content and potential risk of using the severance agreement.  If the employee is age 40 or older, they receive special protections under the Older Workers’ Benefits Protection Act. This agreement must contain specific language regarding legal counsel and there is a mandatory allotment of time for the agreement to be signed and revoked by the employee.

BCN Services can assist you in determining whether or not a severance agreement should be used for your particular employee situation as well as drafting and execution of the agreement.  If you have questions, please contact us at 1-800-891-9911 or contact us here.

 

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Alicia Jester, Manager Benefits and Payroll

Don’t let flu vaccine myths deter you from getting your shot

The Centers for Disease Control and Prevention (CDC) recommends anyone over the age of 6 months get a flu shot each year. Unfortunately, many people don’t because they believe one or more of the following myths:

Myth: The flu isn’t so bad.

Fact: The flu can lead to serious illness, including pneumonia, even for otherwise healthy people. Plus, a normal bout of the flu can keep a person out of work or school for several days.

Myth: The flu vaccine will make you sick.

Fact: The flu vaccine cannot give you the flu, although you may experience side effects such as a sore arm, low fever or achiness. Side effects are generally mild and short-lived.

Myth: Healthy people don’t need a vaccine.

Fact: Anyone can become sick with the flu and experience complications, even people who are active and healthy. Plus, if you get the flu, you may endanger those around you who are at a higher risk for complications.

Myth: You can still get the flu after getting the vaccine.

Fact: This one is partially true for the following reasons:

  • You may have been exposed to a non-flu virus, such as the common cold.
  • You may have been exposed to the flu after you got vaccinated but before the vaccine took effect, which typically takes about two weeks after vaccination.
  • You may have been exposed to a flu virus that was different from the viruses included in the current year’s vaccine. The flu vaccine protects against the three influenza viruses expected to be most prevalent, but other flu viruses circulate as well.

Myth: It’s too late to get protection from a flu vaccine.

Fact: As long as it is still the flu season, it’s not too late to get vaccinated. Flu seasons can begin early in fall and last until spring, so getting a vaccine can be beneficial into the spring months.

Myth: You only need to get vaccinated if family and friends get sick from the flu.

Fact: If you wait until people around you get sick, it is often too late to protect yourself, because it takes about two weeks for the vaccine to kick in.

Myth: The discomfort of getting a shot isn’t worth it.

Fact: The minor pain of a flu shot is nothing compared to getting the flu. Plus, many people can receive the nasal-spray vaccine instead of getting a shot. Talk to your doctor about which is the best choice for you.

Myth: If you got the vaccine last year, you don’t need it this year.

Fact: Research suggests that your body’s immunity from the flu vaccine declines throughout the year, so there is often not enough immunity left to protect you from getting sick for multiple seasons. This is why the CDC recommends a flu vaccine each year.

Myth: The vaccine isn’t safe.

Fact: Flu vaccines have been used for more than 50 years and have a very good safety track record. They are made the same way each year, and their safety is closely monitored by the CDC and Food and Drug Administration.

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Patrick Boeheim, Risk Manager