I have been saying for the last few months, employers need to wake up and take notice! The Obama administration is serious about compliance with wage and hour laws. The DOL is taking actions to identify violators and any company caught violating of wage and hour laws can be sure that stiff financial penalties will follow.
The decision to add to the staff of investigators seems to signal that the government thinks the information published in a recent study by the Center for Urban Economic Development at the University of Illinois at Chicago, The National Employment Law Project and the UCLA Institute for Research on Labor and Employment is accurate and represents real problems.
The study indicates that:
· 76% of employees who worked overtime were NOT paid time-and-a-half for the overtime hours
· 26% of employee are paid less than minimum wage
· 69% of employees entitled to meal breaks either were no given any breaks, had their breaks interrupted by management or worked through their break.
Given the nation’s current economic crunch, employers are leaving themselves exposed to increased risk of government audits and lawsuits by overlooking their duties under wage and hour laws in order to survive, using fewer employees to do the same amount of work regularly done by a large staff. Now, with the government cracking down and actively searching for violators of wage and hour laws with the addition of more investigators, the chances of an employer continuing to violate employee pay rights are becoming less and less.
Any employer who does not take this issue seriously runs the real probability that they will be found out, and if wage and hour laws have been ignored, their businesses can be in jeopardy. This is the time to conduct a HR audit to ensure that wage and hour laws are being complied with, that all the paperwork and documentation will withstand any investigator’s scrutiny.
Showing investigators, government agencies and courts that the employer made a legitimate effort to comply with the FLSA and Wage laws, and are actively working to meet all of their duties to their employees, may be the difference between fines & penalties that break the employer’s financial “back” and company survival with minimal fines.
All the press that wage and hour violations have gotten recently, along with this increase in government investigators should clearly establish that this issue is not be taken lightly or dismissed out of hand. Take action before it is too late and your business is targeted.
Monday, September 21, 2009
Tuesday, September 8, 2009
Exempt vs. Non-Exempt Status
I am always amazed by the number of managers who continually make the mistake of assigning exempt status to anyone in the company who has management-related duties... or my favorite, equating “salary” with “exempt”!
Just because the employee is paid by salary or is called a "manager" does not make the employee exempt! It seems that the mistake made most often is calling an employee a manager in order to avoid paying overtime. In order to ensure you properly classify an employee as a manager, you need to evaluate whether the employee’s management-related duties actually fit into one of the exempt classification tests under the federal Fair Labor Standards Act (FLSA). Incorrectly classified managers could lead to class action lawsuits to back overtime pay.
For example if your managers spend almost no time performing managerial tasks; instead, perform customer service, cleaning, and sales duties you may have a real problem meeting the exemption classification. If your “managers” lack real authority over their departments and employees, and are required to confer with their district managers before making management decisions then they may not be exempt. The main question is, what is the employee’s main duty?
Time alone is not the only test for determining an employee's "primary duty," especially when, as in this case, the performance of managerial and non-managerial duties overlap. Courts have determined that when managerial duties are more critical to the success of the business than non-managerial duties they are most likely exempt.
So what are the tests? Managers do not need to be an ultimate decision-maker in order to be considered exempt employees. Additionally, a managers' exempt status is not jeopardized just because there is someone else higher up on the corporate ladder that has the final say in hiring, firing, and other employment decisions.
The Department of Labor (DOL) has stated that a manager meets the executive exemption test "even if a higher-level manager's recommendation has more importance and even if the employee does not have authority to make the ultimate decision as to the employee's change in status." The DOL looks at whether it is part of the manager's job duties to make such recommendations, and the frequency with which such recommendations are made, requested, and relied upon. Alternatively, to meet the administrative exemption test, a manager must exercise discretion and independent judgment. The fact that a higher-up may review and revise or reverse a manager's decisions does not mean that the manager is not exercising discretion and independent judgment.
When making a determination the DOL will evaluate the manager’s duties to evaluate if the manager:
· has authority to formulate, affect, interpret, or implement management policies or operating practices;
· carries out major assignments in conducting the operations of the business;
· performs work that affects business operations to a substantial degree;
· has authority to commit the employer in matters that have significant financial impact; or
· has authority to waive or deviate from established policies and procedures without prior approval.
Be sure to seek assistance from qualified advisors in order to evaluate all employees that are classified as exempt, to guard against paying back overtime wages which can run into the millions of dollars. In this case, a penny spent can save your entire business from financial disaster.
Just because the employee is paid by salary or is called a "manager" does not make the employee exempt! It seems that the mistake made most often is calling an employee a manager in order to avoid paying overtime. In order to ensure you properly classify an employee as a manager, you need to evaluate whether the employee’s management-related duties actually fit into one of the exempt classification tests under the federal Fair Labor Standards Act (FLSA). Incorrectly classified managers could lead to class action lawsuits to back overtime pay.
For example if your managers spend almost no time performing managerial tasks; instead, perform customer service, cleaning, and sales duties you may have a real problem meeting the exemption classification. If your “managers” lack real authority over their departments and employees, and are required to confer with their district managers before making management decisions then they may not be exempt. The main question is, what is the employee’s main duty?
Time alone is not the only test for determining an employee's "primary duty," especially when, as in this case, the performance of managerial and non-managerial duties overlap. Courts have determined that when managerial duties are more critical to the success of the business than non-managerial duties they are most likely exempt.
So what are the tests? Managers do not need to be an ultimate decision-maker in order to be considered exempt employees. Additionally, a managers' exempt status is not jeopardized just because there is someone else higher up on the corporate ladder that has the final say in hiring, firing, and other employment decisions.
The Department of Labor (DOL) has stated that a manager meets the executive exemption test "even if a higher-level manager's recommendation has more importance and even if the employee does not have authority to make the ultimate decision as to the employee's change in status." The DOL looks at whether it is part of the manager's job duties to make such recommendations, and the frequency with which such recommendations are made, requested, and relied upon. Alternatively, to meet the administrative exemption test, a manager must exercise discretion and independent judgment. The fact that a higher-up may review and revise or reverse a manager's decisions does not mean that the manager is not exercising discretion and independent judgment.
When making a determination the DOL will evaluate the manager’s duties to evaluate if the manager:
· has authority to formulate, affect, interpret, or implement management policies or operating practices;
· carries out major assignments in conducting the operations of the business;
· performs work that affects business operations to a substantial degree;
· has authority to commit the employer in matters that have significant financial impact; or
· has authority to waive or deviate from established policies and procedures without prior approval.
Be sure to seek assistance from qualified advisors in order to evaluate all employees that are classified as exempt, to guard against paying back overtime wages which can run into the millions of dollars. In this case, a penny spent can save your entire business from financial disaster.
Friday, September 4, 2009
Recruiters & EEOC changes on referral policy
Sometime in the future, the economy will spring back and businesses will start hiring again. How will they find the employees to replace the employees laid off during the economic hard times? Many businesses will ask their current employees to recommend people that they know. Often businesses believe that by have employee referral programs, the business’ corporate culture is improved because employees will enjoy working with “friends” and people that they know.
Often, businesses pay a fee to the employee who refers someone who is hired by the business. The prevailing thought is that paying an employee for a referral is much less expensive than paying 10% or 15% to a recruiter, or pay for a recruiting job board such as CareerBuilder.
However, prior to making that decision, employers must be mindful that the EEOC has looked upon employee referral programs as potentially creating homogeneous working environments reducing the diversity of the work place. The EEOC suggested that people tend to refer people like themselves and those businesses that are not careful could find their employee population reflects a racially unbalanced workforce.
So what? The EEOC has successfully sued a company that did not carefully monitor their recruiting programs, and relied on employee referrals and created a less than diverse workforce. Cost to the company? $2,200,000!
What is the lesson? Recruiting programs should be developed to seek employee candidates from as diverse a group of qualified candidates as possible. Relying on only one or two methods to identify candidates is dangerous. It is best to develop programs that recruit candidates from a wide variety of sources. It is also a good idea to use a reliable recruiting service in addition to other recruiting sources to establish that the company is not limiting candidates based on race.
In the end, it seems to me that businesses are better served by expanding their recruiting sources because the opportunity to uncover talented individuals who will be able to make significant contributions to the employer. During the period of recovery, this will be important to growing the business and getting back to normal.
Often, businesses pay a fee to the employee who refers someone who is hired by the business. The prevailing thought is that paying an employee for a referral is much less expensive than paying 10% or 15% to a recruiter, or pay for a recruiting job board such as CareerBuilder.
However, prior to making that decision, employers must be mindful that the EEOC has looked upon employee referral programs as potentially creating homogeneous working environments reducing the diversity of the work place. The EEOC suggested that people tend to refer people like themselves and those businesses that are not careful could find their employee population reflects a racially unbalanced workforce.
So what? The EEOC has successfully sued a company that did not carefully monitor their recruiting programs, and relied on employee referrals and created a less than diverse workforce. Cost to the company? $2,200,000!
What is the lesson? Recruiting programs should be developed to seek employee candidates from as diverse a group of qualified candidates as possible. Relying on only one or two methods to identify candidates is dangerous. It is best to develop programs that recruit candidates from a wide variety of sources. It is also a good idea to use a reliable recruiting service in addition to other recruiting sources to establish that the company is not limiting candidates based on race.
In the end, it seems to me that businesses are better served by expanding their recruiting sources because the opportunity to uncover talented individuals who will be able to make significant contributions to the employer. During the period of recovery, this will be important to growing the business and getting back to normal.
Thursday, September 3, 2009
Saturday, August 15, 2009
Sexual harassment remains an issue of concern for employers.
While sexual harassment has been at the forefront of employee relations in the United States for years and just as it would appear that the days of pervasive quid quo pro harassment (where sex is demanded from a subordinate in exchange for a promotion, keeping the job, better pay, etc.) are dwindling, new forms of harassment are becoming prevalent in the workplace.
Now that it is rare to hear complaints that a manager said something like, “Sleep with me or I’ll have you fired!” technology has made harassment much more subtle and harder to uncover. Technology has shifted the concern of preventing the creation of illegal hostile environments.
Now, we see managers making inappropriate comments in social situations such at happy hours, or on business trips, flirting at a company party or company sponsored event. It includes sending text messages to an employee’s Smartphone and personal email account. Email, IM and texting remove the ability of co-workers from reading the body language and the tone of the sender.
A young professional female tells a story about how one of her supervisors who was married with children almost her age, overheard her comment to a female co-worker that she was going to buy a new dress after work. The supervisor sent a message to the professional’s email account late at night stating that he could not wait see her in the dress as he was sure that she would look amazing.
What can you do to protect your business from a hostile environment claim?
Do your employees have a complete understanding of what behavior is unacceptable?
Do your employees know how to report such behavior?
Do your employees know that you will respond quickly and effectively to address all complaints?
Do you fully investigate each and every complaint that is reported?
Do you take prompt appropriate and effective action at the conclusion of the investigation?
Preventing harassment and hostile work environment is difficult BUT, creating defenses against expensive and time consuming litigation over harassment is possible and highly suggested. If you are not sure where to begin, or need assistance, hire assistance from knowledgeable and experienced HR/legal professionals.
Now that it is rare to hear complaints that a manager said something like, “Sleep with me or I’ll have you fired!” technology has made harassment much more subtle and harder to uncover. Technology has shifted the concern of preventing the creation of illegal hostile environments.
Now, we see managers making inappropriate comments in social situations such at happy hours, or on business trips, flirting at a company party or company sponsored event. It includes sending text messages to an employee’s Smartphone and personal email account. Email, IM and texting remove the ability of co-workers from reading the body language and the tone of the sender.
A young professional female tells a story about how one of her supervisors who was married with children almost her age, overheard her comment to a female co-worker that she was going to buy a new dress after work. The supervisor sent a message to the professional’s email account late at night stating that he could not wait see her in the dress as he was sure that she would look amazing.
What can you do to protect your business from a hostile environment claim?
Do your employees have a complete understanding of what behavior is unacceptable?
Do your employees know how to report such behavior?
Do your employees know that you will respond quickly and effectively to address all complaints?
Do you fully investigate each and every complaint that is reported?
Do you take prompt appropriate and effective action at the conclusion of the investigation?
Preventing harassment and hostile work environment is difficult BUT, creating defenses against expensive and time consuming litigation over harassment is possible and highly suggested. If you are not sure where to begin, or need assistance, hire assistance from knowledgeable and experienced HR/legal professionals.
Wednesday, July 29, 2009
Working overtime to prevent being sued for unpaid overtime wages.
This is not the first time we have noted the issue of overtime and how the government and employees are coming after employers who fail to understand their duty and don’t pay overtime wage to those employees who deserve them.
We continue to hear employers say “well, my employees are salaried, so they don’t get overtime.” Failure to understand the FLSA and who is eligible for overtime continues to be a huge problem for employers. In addition to figuring out who is or isn’t exempt from overtime pay, how to calculate how much to pay also confounds small and medium sized business. Even large corporate employers have trouble with FLSA and overtime.
QuikTrip Corp recently had to pay almost $750,000 in back overtime wages to current and former employees in nine states including Kansas and Missouri. A Department of Labor investigation found that QuikTrip violated the FLSA when they did not pay additional overtime based on performance related bonuses.
Federal law does not require an employer provide bonuses to its employees, however if nondiscretionary bonuses are paid to non-exempt employees, the bonus amount must be included in the employee’s regular pay rate to compute overtime. The determination of exempt or non-exempt status is an individual determination based on what the employee actually does, not the position, title, or being paid by a salary. A wrong decision can have a devastating impact on a business financially as well as its reputation.
This determination is extremely important and you should make sure that your HR partner is trained and fully competent to assist you in making it. Don’t be one of the thousands of employers this year that gets caught by the government investigators or sued by your employees for violations of the FLSA.
Let us help ensure you are protected, call us today!!!
We continue to hear employers say “well, my employees are salaried, so they don’t get overtime.” Failure to understand the FLSA and who is eligible for overtime continues to be a huge problem for employers. In addition to figuring out who is or isn’t exempt from overtime pay, how to calculate how much to pay also confounds small and medium sized business. Even large corporate employers have trouble with FLSA and overtime.
QuikTrip Corp recently had to pay almost $750,000 in back overtime wages to current and former employees in nine states including Kansas and Missouri. A Department of Labor investigation found that QuikTrip violated the FLSA when they did not pay additional overtime based on performance related bonuses.
Federal law does not require an employer provide bonuses to its employees, however if nondiscretionary bonuses are paid to non-exempt employees, the bonus amount must be included in the employee’s regular pay rate to compute overtime. The determination of exempt or non-exempt status is an individual determination based on what the employee actually does, not the position, title, or being paid by a salary. A wrong decision can have a devastating impact on a business financially as well as its reputation.
This determination is extremely important and you should make sure that your HR partner is trained and fully competent to assist you in making it. Don’t be one of the thousands of employers this year that gets caught by the government investigators or sued by your employees for violations of the FLSA.
Let us help ensure you are protected, call us today!!!
Thursday, July 23, 2009
Could you be personally liable for Unpaid Wages?
Unthinkable? Maybe not!
Earlier this month, the Washington Supreme Court held an employer’s CEO and CFO personally liable for willfully failing to pay wages due employees. For those of us, who don’t live, work or operate a business in the State of Washington, why do we care what the Washington Supreme Court decided?
Under Washington state law, “any employer and officer, vice principal, or agent of any employer” who willfully and with the intent to deprive an employee of any part of his wages actually does withhold wages is liable for twice the amount of wages withheld, and the employee’s attorney’s fees and court costs.
The determined that the statute imposes personal liability both on the employer and its officers so as to include those individuals who make the type of financial decision that cause the failure of paying the wages, along with the business, responsible for the violation of the wage laws.
The language of both the Kansas and Missouri Wage Payment statutes has similar language to the Washington Statute. Would Kansas or Missouri Courts make the same decision? Do you want to take the chance? In these economic times which cause business to be “between a rock and a hard place” with cash flow, making sure that you do not run afoul of wage payment laws is critical.
In dissolution of the business or even bankruptcy, when the business may no longer exist, you could still be liable if the courts were to follow the thinking and interpretation of the Washington Supreme Court in applying similarly worded statutes in Missouri or Kansas.
G & J Consultants provides HR and legal consulting to businesses on compliance and best practices in human resources and employee relations. For more information contact: Glenn Brown, J.D. Managing Consultant at glennb@GJCounsultants.com.
The information contained herein, is provide for information only and should not be considered legal advice. Seek appropriate advice and counsel from competent counsel.
Earlier this month, the Washington Supreme Court held an employer’s CEO and CFO personally liable for willfully failing to pay wages due employees. For those of us, who don’t live, work or operate a business in the State of Washington, why do we care what the Washington Supreme Court decided?
Under Washington state law, “any employer and officer, vice principal, or agent of any employer” who willfully and with the intent to deprive an employee of any part of his wages actually does withhold wages is liable for twice the amount of wages withheld, and the employee’s attorney’s fees and court costs.
The determined that the statute imposes personal liability both on the employer and its officers so as to include those individuals who make the type of financial decision that cause the failure of paying the wages, along with the business, responsible for the violation of the wage laws.
The language of both the Kansas and Missouri Wage Payment statutes has similar language to the Washington Statute. Would Kansas or Missouri Courts make the same decision? Do you want to take the chance? In these economic times which cause business to be “between a rock and a hard place” with cash flow, making sure that you do not run afoul of wage payment laws is critical.
In dissolution of the business or even bankruptcy, when the business may no longer exist, you could still be liable if the courts were to follow the thinking and interpretation of the Washington Supreme Court in applying similarly worded statutes in Missouri or Kansas.
G & J Consultants provides HR and legal consulting to businesses on compliance and best practices in human resources and employee relations. For more information contact: Glenn Brown, J.D. Managing Consultant at glennb@GJCounsultants.com.
The information contained herein, is provide for information only and should not be considered legal advice. Seek appropriate advice and counsel from competent counsel.
Monday, July 20, 2009
Internet and Employee Privacy
Avenues for employees to complain about their employer, working conditions, co-workers, management etc. have been enhanced by the advent of internet social networks such as MySpace and Facebook. Southwest Airlines fired a Flight Attendant who wrote negative blogs about her employer. More and more employers are attempting to control negative comments being placed on the internet.
BEWARE!!! Employers risk significant legal liability for accessing restricted social networks without proper permission in order to monitor what is being written about the employer on those sites.
Houston’s Restaurants learned this lesson the hard way. Brian Pietrylo, one of Houston’s waiters established a “group” on MySpace with the intent of allowing other Houston’s employees who wanted to “vent about any BS we deal with at work without any outside eyes spying on us.” Mr. Pirtrylo established the site that was “entirely private” and in order to join one would have to be invited.
When one of the employees told a manager about the web site, the manager demanded the password from the employee, passed it on to other managers who after reviewing the site ultimately terminated Mr. Pietrylo and another employee. Houston’s felt the content of the web site was adverse to the core values of Houston’s Restaurant.
Mr. Pietrylo sued Houston’s under the federal Stored Communication Act and also for invasion of privacy. The federal law prohibits unauthorized access to electronic communications, such as posts on the internet. (ie. MySpace, Facebook and LinkedIn). While the factual question in this case was whether Houston’s was authorized to access the site using the password it obtained from an employee, the issue for employers is to avoid the lawsuit altogether!!!
An issue which was not raised was liability under the National Labor Relations Act which prohibits employers from disciplining employees who participate in “concerted activities” to improve their working conditions. The Houston’s case was based in privacy issues.
To protect itself, an employer should also get permission to view an employee’s website. Permission should be written and clearing indicate that permission was give freely without any threat of duress or punishment.
G & J Consultants provides HR and legal consulting to businesses on compliance and best practices in human resources and employee relations. For more information contact: Glenn Brown , J.D. Managing Consultant at glennb@GJCounsultants.com.
The information contained herein, is provide for information only and should not be considered legal advice.
Seek appropriate advice and counsel from competent counsel.
BEWARE!!! Employers risk significant legal liability for accessing restricted social networks without proper permission in order to monitor what is being written about the employer on those sites.
Houston’s Restaurants learned this lesson the hard way. Brian Pietrylo, one of Houston’s waiters established a “group” on MySpace with the intent of allowing other Houston’s employees who wanted to “vent about any BS we deal with at work without any outside eyes spying on us.” Mr. Pirtrylo established the site that was “entirely private” and in order to join one would have to be invited.
When one of the employees told a manager about the web site, the manager demanded the password from the employee, passed it on to other managers who after reviewing the site ultimately terminated Mr. Pietrylo and another employee. Houston’s felt the content of the web site was adverse to the core values of Houston’s Restaurant.
Mr. Pietrylo sued Houston’s under the federal Stored Communication Act and also for invasion of privacy. The federal law prohibits unauthorized access to electronic communications, such as posts on the internet. (ie. MySpace, Facebook and LinkedIn). While the factual question in this case was whether Houston’s was authorized to access the site using the password it obtained from an employee, the issue for employers is to avoid the lawsuit altogether!!!
An issue which was not raised was liability under the National Labor Relations Act which prohibits employers from disciplining employees who participate in “concerted activities” to improve their working conditions. The Houston’s case was based in privacy issues.
To protect itself, an employer should also get permission to view an employee’s website. Permission should be written and clearing indicate that permission was give freely without any threat of duress or punishment.
G & J Consultants provides HR and legal consulting to businesses on compliance and best practices in human resources and employee relations. For more information contact: Glenn Brown , J.D. Managing Consultant at glennb@GJCounsultants.com.
The information contained herein, is provide for information only and should not be considered legal advice.
Seek appropriate advice and counsel from competent counsel.
Friday, July 17, 2009
Race Based Employment Decisions
As an employer, you want a diverse and drug-free workplace. So, you test employees to ensure that everyone is drug-free, or get the job or promotion. So…what do you do when you discover that one of your tests or policies has an unintended effect of creating an “adverse impact” on another race? Can you correct your decision by make another decision based on race?
The United States Supreme Court has said NO! Of course, as often happens in Supreme Court decisions, in the decision in Ricci v. DeStefano, the Court provides a lot unsaid, but one thing is abundantly clear. If you are going to use employment tests at any stage of the employment process, you need to be absolutely sure that your test (or policy) is neutral with no intended disparate impact on race, sex, age, national origin or disability.
How you design and validate any test you use is critical, and if done properly, use of a test will never get you or your business in a situation where an employee can prove that you intentionally discriminated based on a protected class. On the other hand, a test that is not validated to have a neutral impact is an open invitation to get hit with a significant court judgment cost your business financially and in image.
See: EEOC Employment Tests and Selection Procedures
Ricci V. DeStefano, 07-1428 (U.S.S.C. 06/29/09)
The United States Supreme Court has said NO! Of course, as often happens in Supreme Court decisions, in the decision in Ricci v. DeStefano, the Court provides a lot unsaid, but one thing is abundantly clear. If you are going to use employment tests at any stage of the employment process, you need to be absolutely sure that your test (or policy) is neutral with no intended disparate impact on race, sex, age, national origin or disability.
How you design and validate any test you use is critical, and if done properly, use of a test will never get you or your business in a situation where an employee can prove that you intentionally discriminated based on a protected class. On the other hand, a test that is not validated to have a neutral impact is an open invitation to get hit with a significant court judgment cost your business financially and in image.
See: EEOC Employment Tests and Selection Procedures
Ricci V. DeStefano, 07-1428 (U.S.S.C. 06/29/09)
Wednesday, July 15, 2009
Monday, July 13, 2009
Disability Claims on the Rise!
The Equal Employment Opportunity Commission (EEOC) has responded to the rise in disability bias complaints over the last year (disability complaints rose to the highest level in 14 years to 19,453 complaints) by filing lawsuits against a small business AND a Fortune 500 company for unlawfully refusing to accommodate persons with a disability.
Sometimes it is extremely difficult to not confuse leave policies with disability rights. In the case of the small Chicago area employer, a customer service employee with severely blocked arteries sought leave to have life saving open heart surgery. Leave was denied due to the employer policy to restrict leave during the business’ most busy times of the year. When the customer service representative took time off for the surgery and recovery, the company processed her has a voluntary termination and refused to reinstate her to employment when fully recovered and given a full medical release by her doctor.
While the employer’s leave policy was most likely legal, when the employee also met the ADA definition of “disabled”, the employer was required to reasonably accommodate her.
In the case of the Fortune 500 retailer, a store greeter was fired allegedly for using a cane on the job. In both cases, the employer did not evaluate the circumstances and application of its policies in light of the duty to comply with other employment laws. Leave policies often conflict with federal laws such as ADA and FMLA not to mention state Worker Compensation laws. Are you sure that you are complying with your obligation imposed by law?
See: www.eeoc.gov
Case # 09-C-3829 (U.S. D.C. No. Dist of ILL, June 25, 2009)
Sometimes it is extremely difficult to not confuse leave policies with disability rights. In the case of the small Chicago area employer, a customer service employee with severely blocked arteries sought leave to have life saving open heart surgery. Leave was denied due to the employer policy to restrict leave during the business’ most busy times of the year. When the customer service representative took time off for the surgery and recovery, the company processed her has a voluntary termination and refused to reinstate her to employment when fully recovered and given a full medical release by her doctor.
While the employer’s leave policy was most likely legal, when the employee also met the ADA definition of “disabled”, the employer was required to reasonably accommodate her.
In the case of the Fortune 500 retailer, a store greeter was fired allegedly for using a cane on the job. In both cases, the employer did not evaluate the circumstances and application of its policies in light of the duty to comply with other employment laws. Leave policies often conflict with federal laws such as ADA and FMLA not to mention state Worker Compensation laws. Are you sure that you are complying with your obligation imposed by law?
See: www.eeoc.gov
Case # 09-C-3829 (U.S. D.C. No. Dist of ILL, June 25, 2009)
Friday, July 10, 2009
The Rules Change Again!
Amid the news and discussion on the issue of immigration and illegal workers, President Obama’s administration has made a shift in procedure which will affect every employer, regardless of the size of your company. It will also require more attention to recordkeeping and accurate processing of I-9s.
In the past immigration enforcement has focused on raids to find unauthorized workers and the deportation of them. Now, that focus has shifted to employers who hire illegal immigrants. The U.S. Immigration and Customs Enforcement agency (ICE) will now conduct audits of employers to ensure that the employer has records demonstrating that each employee’s documents have been reviewed and verified that the employee is authorized to work in the U.S.
This shift in focus can have a significant monetary impact on businesses. For example, due to recordkeeping errors at one of its plants, Krispy Kreme Doughnuts Inc. agreed to pay $40,000 to settle the issue with ICE. During an audit of the I-9 forms at Krispy Kreme’s factory in Cincinnati, Ohio, ICE investigators determined that the doughnut manufacturer did not have the required paperwork for ALL the workers at the plant.
Will your records meet the standard and pass an ICE audit? Don’t be surprised, it can cost you and your business!
In the past immigration enforcement has focused on raids to find unauthorized workers and the deportation of them. Now, that focus has shifted to employers who hire illegal immigrants. The U.S. Immigration and Customs Enforcement agency (ICE) will now conduct audits of employers to ensure that the employer has records demonstrating that each employee’s documents have been reviewed and verified that the employee is authorized to work in the U.S.
This shift in focus can have a significant monetary impact on businesses. For example, due to recordkeeping errors at one of its plants, Krispy Kreme Doughnuts Inc. agreed to pay $40,000 to settle the issue with ICE. During an audit of the I-9 forms at Krispy Kreme’s factory in Cincinnati, Ohio, ICE investigators determined that the doughnut manufacturer did not have the required paperwork for ALL the workers at the plant.
Will your records meet the standard and pass an ICE audit? Don’t be surprised, it can cost you and your business!
Friday, June 26, 2009
Biggest employer mistakes leading to lawsuits
1. Failing to establish an effective Anti-sexual harassment policy!
Courts, following the lead of the U.S. Supreme Court in holding employers liable for their supervisors' actions unless the complaining employee(s) fail to follow the employer's complaint procedures. In light of the courts' consistent position on this topic, creation and implementation of policies and procedures for dealing with reported sexual harassment is critical. Once an effective policy is in place, all supervisors must be thoroughly trained on the policies and procedures.
-Do your policies past muster?-Are your supervisors adequately trained and understand the procedures?
-Does your staff understand and use the procedures?
2. Failing to pay overtime to nonexempt employees!
Many employers simply pay their employees a fixed salary regardless of the number of hours worked and whether they are subject to wage and hour laws. Unless the employee meets a specific administrative, executive or professional exemption from wage and hour law, every hour worked in excess of 40 hours in a week must be paid at time and a half their regular hourly pay.
-Have you properly classified all your employees to determine if they meet the exception?
-Are all of your decisions regarding exemptions properly documented to withstand judicial review?
-Has your staff developed accurate job descriptions that will support an exception classification?
4. Failing to quickly discharge poor performers!
Traditionally, employers are advised to use progressively discipline employees and give "one more" warning, instead of given one to few. Unfortunately, a failure to act is as dangerous as overreacting. Retaining long term employees despite poor attendance records, multiple infractions and even more than one "final" warning in their file can cause you tremendous trouble. These long term employees most often sue when they are finally terminated.
-Does the employer have a consistent policy for when and how terminations should be handled?
-Are supervisors regularly trained in the termination policies?
-Are employee records and files considered every time termination of employees is being considered?
5. When conducting a layoff of a group of employees, failing properly evaluate any possible disparate impact on a protected group based on age, sex, race, national origin, religion or disability!
By failing to verify that the group being laid off does not contain a disproportionately high percentage of members of a protected class, employers are subject to being sued in a class action for discrimination.
-Are decisions regarding who will be laid off based solely on objective criteria?
-Do all the records and files support the use of appropriately objective selection criteria?
Courts, following the lead of the U.S. Supreme Court in holding employers liable for their supervisors' actions unless the complaining employee(s) fail to follow the employer's complaint procedures. In light of the courts' consistent position on this topic, creation and implementation of policies and procedures for dealing with reported sexual harassment is critical. Once an effective policy is in place, all supervisors must be thoroughly trained on the policies and procedures.
-Do your policies past muster?-Are your supervisors adequately trained and understand the procedures?
-Does your staff understand and use the procedures?
2. Failing to pay overtime to nonexempt employees!
Many employers simply pay their employees a fixed salary regardless of the number of hours worked and whether they are subject to wage and hour laws. Unless the employee meets a specific administrative, executive or professional exemption from wage and hour law, every hour worked in excess of 40 hours in a week must be paid at time and a half their regular hourly pay.
-Have you properly classified all your employees to determine if they meet the exception?
-Are all of your decisions regarding exemptions properly documented to withstand judicial review?
-Has your staff developed accurate job descriptions that will support an exception classification?
3. Failing to take and document disciplinary actions!
Often, supervisors, wishing to not appear to be the bad guy, hate to write up employees. Then, when the company can no longer tolerate unsatisfactory performances, the files will not justify the grounds for discipline or discharge. If the employer's records cannot clearly establish justification for its action, the employer is wide open to lawsuits.
-Are all disciplinary actions documented?
-Are the disciplinary actions applied consistently to employees for the same behavior?
-Are the disciplinary actions maintained in the employees' official personnel file?
4. Failing to quickly discharge poor performers!
Traditionally, employers are advised to use progressively discipline employees and give "one more" warning, instead of given one to few. Unfortunately, a failure to act is as dangerous as overreacting. Retaining long term employees despite poor attendance records, multiple infractions and even more than one "final" warning in their file can cause you tremendous trouble. These long term employees most often sue when they are finally terminated.
-Does the employer have a consistent policy for when and how terminations should be handled?
-Are supervisors regularly trained in the termination policies?
-Are employee records and files considered every time termination of employees is being considered?
5. When conducting a layoff of a group of employees, failing properly evaluate any possible disparate impact on a protected group based on age, sex, race, national origin, religion or disability!
By failing to verify that the group being laid off does not contain a disproportionately high percentage of members of a protected class, employers are subject to being sued in a class action for discrimination.
-Are decisions regarding who will be laid off based solely on objective criteria?
-Do all the records and files support the use of appropriately objective selection criteria?
What we do
As a businessperson, you bought business insurance to protect you from liability, but do you have insurance against employee lawsuits, government audits and agency investigations? During this current environment, all businesses, but particularly small and medium sized employers are subject to more stringent employment laws and regulations.
With all the challenges of running a successful business, why should you spend your time on the day-to-day Human Resources issues or worrying about employee lawsuits, government audits, or being investigated by government agencies? Failure to stay on top of the HR issues, and the regulations and laws which govern employee relations, is expensive, time consuming and could ultimately cost your business.
It is clear that the least expensive method of dealing with employee relations is to prevent situations which lead to employees filing lawsuits.
Staffed with experienced experienced attorneys and Human Resources professionals, we provide assistance for your HR and legal compliance issues at a fraction of the cost of hiring outside legal counsel.
G & J Consultants was created to specifically address the challenge that businesses, without (or limited and overburdened) human resources staff, face dealing with the complex regulations and laws governing employee/employer relationships. G & J Consultants believes that accurate and timely assistance with your human resources issues should not be cost prohibitive forcing businesses to risk violating employment law in order to maintain a positive bottom line.
G & J Consultants provides outstanding advice by experienced and accomplished HR professionals and employment/labor attorneys to meet your needs.
With all the challenges of running a successful business, why should you spend your time on the day-to-day Human Resources issues or worrying about employee lawsuits, government audits, or being investigated by government agencies? Failure to stay on top of the HR issues, and the regulations and laws which govern employee relations, is expensive, time consuming and could ultimately cost your business.
It is clear that the least expensive method of dealing with employee relations is to prevent situations which lead to employees filing lawsuits.
Staffed with experienced experienced attorneys and Human Resources professionals, we provide assistance for your HR and legal compliance issues at a fraction of the cost of hiring outside legal counsel.
G & J Consultants was created to specifically address the challenge that businesses, without (or limited and overburdened) human resources staff, face dealing with the complex regulations and laws governing employee/employer relationships. G & J Consultants believes that accurate and timely assistance with your human resources issues should not be cost prohibitive forcing businesses to risk violating employment law in order to maintain a positive bottom line.
G & J Consultants provides outstanding advice by experienced and accomplished HR professionals and employment/labor attorneys to meet your needs.
Subscribe to:
Posts (Atom)
