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In honor of Veterans Day, let’s test your Employment Law IQ with regard to Active Duty Military Leave.

Scenario:  Linda Longlegs is employed as a dance instructor by Footloose Studios, a small dance company in Southwest Florida. Longlegs, who is in the Army reserve, tells her supervisor she needs six months of leave because she has been called to active duty in Afghanistan.

Which of the following statements is correct?

A.  When Longlegs returns, Footloose does not have to re-employ her because Footloose only has 9 employees.
B.  When Longlegs returns, Footloose does not have to re-employ her because Longlegs only worked for Footloose for two months prior to her request for leave.
C.  Longlegs can use her accrued PTO while she is on leave.
D.  While Longlegs is on leave, Footloose must pay her regular wages and continue to pay her health insurance coverage.

Continue Reading Employer’s Responsibility — Active Duty Military Leave

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At HR Law & Solutions earlier this year, we brought back Employment Law IQ: our employment law game show, designed to help attendees spot potential legal issues and learn strategies to mitigate risks from those issues. As promised at the seminar, we will share a few scenarios here on the blog over the next few weeks to further test your Employment Law IQ.

First up? Social media and hiring. Social media policies and privacy settings can be source of pain for employees and employers alike, but they are critical in this electronic age. But the considerations go beyond social media policies — employers must also take care in how they use information learned from social media and other online searches during the employment process.

Question. What would you do in this scenario? You are looking to hire a general manager. While doing an online search of the top candidates, you discover that one of the candidates has blogged about his recovery from alcohol addiction. Based on your online discovery, you decide to hire another candidate who is as equally qualified. Which of the following statements is correct?

A.  Your hiring decision is unlawful because all online searches of applicants violate the EEOC guidelines on pre-selection criteria.

B.  Your hiring decision is lawful because the first candidate self-disclosed his status as a former alcoholic.

C.  Your hiring decision is unlawful because it is based on the first candidate’s disability.

D.  Your hiring decision is lawful because the first candidate is not disabled under the ADA.

Continue Reading Employment Law IQ: Hiring Decisions Based on Social Media Postings

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When President Franklin D. Roosevelt signed the Fair Labor Standards Act of 1938 (FLSA) into law, it was a landmark and welcome law that originally only applied to about 20% of the labor force (mostly factory workers). The law banned oppressive child labor, set minimum wage at 25 cents per hour, and set a maximum workweek at 44 hours.

Over the past 75 years, the FLSA has morphed into a complex and highly-litigated area of the law that regulates nearly all workplaces. It is now almost universally despised by employers. Decades of amendments have made the FLSA so expansive it requires multi-volume sets of legal treatises to fully comprehend, its nuances ensure almost no employer can fully comply, and plaintiffs’ attorneys crank out lawsuits by the dozens, knowing a single dollar owed entitles them to recover all of the attorney’s fees spent prosecuting the case.

Continue Reading A Labor Day Toast to Seven Subjects the FLSA Does Not (Yet) Regulate

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In our last blog post on improving your workplace documentation practices, we discussed best practices for effective documentation. This post addresses when to prepare documentation of a workplace event, observation or communication.

To be effective, documentation needs to be accurate, objective, specific, and clear. But, it also needs to be TIMELY! In this fast paced work world, you always want to have current information available. We also know that memories fade as time passes. If you document early, you are more likely to be accurate and complete. Judges and juries generally perceive contemporaneous documentation to be more reliable than documents prepared days after an event occurred. For these reasons and others, we encourage our employer clients to adopt the mantra, “Do not delay; record it today.”

If time has passed without documentation, resist the urge to backdate a document. Backdating is never a good idea, and back dating some forms may even be a criminal offense.

All is not lost if you forgot to prepare documentation in a timely manner. Late is generally better than not at all. If appropriate, consider writing an “as you know memo” to document past activity, such as the following notation to an employee’s personnel file:

As you know, I previously warned you about the need to arrive at work by the start of business at 8:15 a.m. Today you did not clock in until 9:15 a.m. . . . “

The “as you know memo” documents a past event in the context of a current event.

Consult your counsel if you have questions about workplace documentation.

Next post in this workplace documentation practices series: Where to put the workplace documentation? It depends.

Good news doesn’t seem to come often for employers in the employment law world. However, just a few days ago, the U.S. Supreme Court issued two split (5-4) decisions favorable to management. Let’s take a brief look.

In Vance v. Ball State University, the Court found that a “supervisor,” for purposes of vicarious liability under Title VII, is an employee authorized by an employer to take tangible employment actions against another worker. Justice Alito wrote that a Title VII “supervisor” must have the power to make a “significant change” in another worker’s employment status, such as through hiring, firing, failing to promote, reassigning with “significantly different responsibilities,” or causing a “significant change in benefits.” The majority rejected the broader definition of “supervisor” adopted by the Equal Employment Opportunity Commission. (Note: as the employment lawyers here at HF have mentioned before, it is important to consider the guidance and positions issued by the EEOC, but there are some which the courts do not follow – this is an example).

On the very same day, in Univ. of Texas SW Med. Ctr. v. Nassar, the Court ruled, in another 5-4 decision, that a plaintiff alleging unlawful retaliation under Title VII must prove retaliation was the “but for” cause of the adverse action. Here, the Court reversed a federal circuit court decision which held that a Title VII retaliation plaintiff can prevail if he/she shows retaliation was just a “motivating factor” for an employer taking adverse action. The Court held that the “mixed motive” standard only pertains to “status discrimination,” meaning alleged discrimination based on race, color, gender, national origin, and religion. Writing for the majority, Justice Kennedy wrote that the “text, structure, and history of Title VII demonstrates that a plaintiff making a retaliation claim . . . must establish that his or her protected activity was a but-for cause of the alleged action.”

This was a huge victory for employers. As we all know, retaliation claims have boomed in the last few years, and are often difficult to defend. The Nassar decision will make it much more difficult for plaintiffs to prevail, and will give employers a significantly improved chance of obtaining summary judgment on Title VII retaliation claims. It will be interesting to see if any members of Congress move to “legislatively overrule” this decision. Of course, any such move in that direction would likely take years.

And lastly, a bonus piece of good news. The date for the 22nd annual Henderson Franklin HR Law & Solutions seminar has been set. It will be held on Tuesday, April 1, 2014 at Sanibel Harbour Marriott Resort and Spa. Please mark that on your calendars. We at HF wish you a great summer!

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In our last blog post on improving your workplace documentation practices, we discussed the type of workplace events and communications that should be documented by employers. This post provides practical tips on how to document.

Although sufficient workplace documentation is crucial, poor workplace documentation can actually hurt an employer and weaken your attorney’s ability to win your employment case. What employers need is effective workplace documentation. Effective documentation gives you (the employer) credibility, allows you to demonstrate that you followed the law, and serves as “Exhibit A” if you go to trial.

Here are some dos and don’ts of effective workplace documentation.

Dos:

  • Do record specific objective and factual information. Specific information (who, when, where, why, etc.) allows you to recall and support workplace events and decisions.
  • Do follow consistent documentation practices. Similar situations should be treated and documented in a similar manner to avoid claims of retaliation or discrimination.
  • Do reference or include relevant back-up information. Reference past relevant events, specific workplace policies, procedures, and rules that are involved in the situation.
  • Do allow for employee acknowledgment and feedback where appropriate. It demonstrates the employee was given information; it also describes the employee’s reaction and rebuttal to the information conveyed.
  • Do proofread the document.  Is the document clear, objective, and complete? Beware the perils of e-mails and texts where the casual nature of the medium often leads to inadvertent, but costly, mistakes.
  • Do sign and date the document. If the document is worth preparing, it should be legible and the author of the document and the date should be noted.

Don’ts:

  • Do not include personal feelings, impressions or opinions. Stick to the facts. Inflammatory or judgmental comments will not help your case.
  • Do not use legal or technical terms and conclusions. Ask yourself whether a person outside your organization will understand the information the document is intended to communicate.
  • Do not write personal notes on company documents. It might help you to remember the candidate if you jot down notes of race, gender, etc., but such a notation can wreak havoc in a discrimination case.
  • Do not use “always” or “never.” Most employee conduct is not absolute. The use of these terms can affect your credibility.
  • Do not “embellish” or “sugarcoat.” Inflation of employee performance makes it difficult to support disciplinary action. Telling the good and the bad, allows employees to accurately gauge their performance and conduct.
  • Do not backdate documents. This practice is dangerous and in some cases, illegal.

Consult your legal counsel if you have questions on how to document a workplace event or observation.

Next post in this workplace documentation practices series:  When to document? Immediately!

Yesterday, April 16, 2013, the United States Supreme Court rendered a significant decision within the FLSA arena that will surely change the strategy of many employers facing potential collective action claims.

For the three hundred or so of our readers who attended our HR Law & Solutions Seminar last month at the Sanibel Harbour Resort, you may recall a case Bob Shearman briefed in the case law update portion of our seminar, Genesis HealthCare Corp. v. Symczyk. The case was in the “on the horizon” portion of our presentation, as it was on appeal to the U.S. Supreme Court and oral argument had occurred in December 2012, but no decision had yet been rendered. That decision is now in, and it’s a rare breath of fresh air to employers, who do not very often hear “good news” and “FLSA” in the same sentence.

Case Background

Continue Reading A Monumental Win for Employers in Latest FLSA Decision

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Our HR Law & Solutions seminar is less than a week away! As we make final preparations, we want to take a moment to thank our sponsors for their support and share a little information about them:

Breakfast Sponsor – CTR Systems

Name of Representative to be in attendance at conference:
Bridget Escobar

What do you feel is the biggest challenge facing employers and HR professionals? One of the biggest challenges that employers and HR Professionals face is how to find affordable yet efficient technology to properly manage their human resources and payroll processes.

What is the one thing your company can do to assist Southwest Florida businesses and human resource professionals? CTR Systems can provide Southwest Florida businesses with a variety of affordable technology solutions to manage their payroll, human resources, and time and attendance business processes. Our solutions will help Southwest Florida businesses manage their employees from recruitment to retirement.

Years in Business or in Southwest Florida: CTR has been in business since 1965.
 

Lunch Sponsor – Lykes Insurance

Name of Representative to be in attendance at conference:
R. Mark Webb

What do you feel is the biggest challenge facing employers and HR professionals? Making informed decisions regarding both human and financial capital to assist H.R. in becoming more credible and impactful in organizational success.

What is the one thing your company can do to assist Southwest Florida businesses and human resource professionals? Education/Training by raising awareness and bringing solutions through education on current issues facing organizations. Proven outcome is increased awareness through education in topics directed toward success in business.

Years in Business or in Southwest Florida: 85 years or since 1925
 

Valet Sponsor – Markham Norton Mosteller Wright & Company

Name of Representatives to be in attendance at conference:
Sandie Peterson, SPHR, and Christi Sarlo

What do you feel is the biggest challenge facing employers and HR professionals? The biggest challenge is finding qualified, motivated employees.

What is the one thing your company can do to assist Southwest Florida businesses and human resource professionals? As a certified public accounting / and business consulting firm our goal is to help businesses grow and be profitable. In addition to traditional accounting functions, such as taxes and financial statements, we can conduct an operational review which would indicate appropriate flow of work both for efficiency and protection from fraud. We are pro-active in guiding clients in making financial decisions throughout the year.

Years in Business or in Southwest Florida? 33 

We also thank our in-kind sponsors:  HRMA of Southwest Florida, HR Collier and Charlotte County SHRM!  Be sure to stop by all our sponsor booths to learn more about them the day of the conference!

 

 

A few weeks ago, the Family and Medical Leave Act (FMLA) celebrated its 20 year anniversary. At a recent speech at the Department of Labor, Former President Clinton, who signed the FMLA into law in 1993, stated “I’ve had more people mention the family leave law to me, both while I was in the White House and in the 12 years since I’ve been gone, than any other single piece of legislation I’ve signed.”

Political proponents marked the anniversary by advocating their calls for enhanced leave benefits. Clinton, President Obama, Representative Nancy Pelosi, and Senator Tom Harkin all recently introduced or advocated for legislative measures aimed at, among other things (i) mandating paid family and medical leave; (ii) dropping thresholds so that the FMLA applies to smaller employers; (iii) making job protected leave available to part-time employees; and (iv) redefining what qualifies for protected leave to include, for example, recovery from routine illness like the flu.

Senator Harkin is poised to re-introduce the Healthy Families Act, which would require companies with 15 or more employees to allow workers to earn up to an hour of paid sick leave for every 30 hours worked. Moreover, House Democrats recently introduced the “Federal Employees Paid Parental Leave Act,” a bill which would provide all federal employees four weeks of paid parental leave upon the birth or adoption of a child. Other measures are being debated and considered, and Republican opposition is expected.

Suffice to say that the next four years should be interesting for employers on the leave and benefits front. We will keep you informed as these events, sure to impact most employers, play out in Washington.

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In our last blog post, we challenged employers to resolve to improve their workplace documentation practices in 2013. This post is the first in a promised series of practical tips for achieving your resolution.

How many times have you heard the phrase: “If it’s not in writing, it didn’t happen.”? That saying has special meaning in the workplace context. Judges, jurors, arbitrators, EEOC investigators, unemployment referees, employees, and last, but not least, ME as the attorney retained to defend your company, expect employers to keep good records, and to be able to produce them when a question arises about a workplace complaint, incident, or employment decision.

Documentation comes in many configurations. Employers can document through formal reports, printed forms, memoranda, performance evaluations, disciplinary memos, phone notes, day planners, post-its, and even on the back of cocktail napkins. In future blogs, we will discuss how, when, and where to document or record workplace events, observations, communications, but first things first: WHAT SHOULD BE DOCUMENTED?

Here is a list of the many “documentation worthy” workplace activities.

  • Recruiting materials and employment applications. (Necessary to establish compliance with Title VII, ADA, ADEA, OFCCP, Affirmative Action Regulations, and many other laws recognized by their acronyms.)
  • New hire information. (Critical to demonstrate terms of employment and compliance with federal and state laws. Includes employment application and references, criminal background check, required certifications and licenses, drug tests results, driver’s license checks, I-9s, etc.)
  • Payroll.  (Required by law and must be retained under the IRC, EPA, FMLA, FLSA.)
  • Performance evaluations. (Essential to ensure clear communication of employer’s expectations, support employment decisions, track progress, correct deficiencies and defend lawsuits.)
  • Misconduct and discipline. (Important to address employee behavior and violation of workplace rules and standards of conduct, establish patterns of behavior and administer progressive discipline in a fair and consistent manner.)
  • Employee incidents, complaints, and investigations. (Necessary to establish a precise accounting of events that are critical to legal disputes and to promote better decision making.)
  • Leaves of absence. (Key to calculating, tracking, and coordinating leaves of absence under FMLA, workers’ compensation ADA, USERRA, Florida domestic violence leave law, and voluntary employer policies.)
  •  Absenteeism and tardiness. (Necessary to track hours of non-exempt employees and to ensure the fair and consistent administration of employer’s absenteeism policy.)
  • Accommodations. (Convenient to demonstrate employer’s participation in the required interactive process of accommodating disability, religious practices, etc.)
  • Employee acknowledgments. (Valuable to prove that employee attended training sessions and received policies, write-ups, performance evaluations, and required notifications.)

While this list is not exhaustive, it gives you an idea of the diverse workplace activities that should be documented and why proper documentation is important.

Next post in this workplace documentation practices series: How to document? Carefully.