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Last night, we hosted our latest Executive Forum here at Henderson Franklin’s conference center.   An Executive Forum, for those of you who are not familiar, is a small gathering of human resources and other business professionals sponsored by our Employment Law Practice Group.  Attendees join us for cocktails, hors d’oeuvres, networking, and a presentation on varied topics of interest in the employment law world.

About 25 professionals joined us last night for a presentation by Rob Teas of CIGNA on everyone’s favorite hot-topic — the Patient Protection and Affordable Care Act.  Rob shared a lot of great information, including several tips for employers as they tackle this massive legislation.  Among Rob’s tips?  Employers should review coverage once “essential benefits” are defined; consider the benefits of self-funding, especially for small businesses; and assess the value of “Grandfathered” status on a plan-by-plan basis given the interim final regulations.

Also worth a special mention is the retirement of Goodwill Industries of Southwest Florida’s HR Director, Becky Hayes-Foriest.  Becky retires at the end of 2010 after 31 years with Goodwill.  Becky, who is pictured below (center) with Steve Csotty of WilsonMiller and Charlotte King of Hope Hospice and Community Services, was recognized and presented with a gorgeous gift basket from Norman Love Confections.  We wish Becky all the best in her retirement.

If you are interested in attending our next Executive Forum, which will be held sometime in early 2011, please let us know.  We would love to have you!

Recently we were asked when an employer may seek a second opinion to verify an employee’s serious health condition for purposes of Family Medical Leave Act (“FMLA”) leave.  The folks at the FMLA Insights blog addressed this very question in their recent post, FMLA FAQ – When to ask for a Second Opinion.

Like the post suggests, the short, rules-based answer is that an employer who “doubt[s] the validity of a medical certification” can ask for a second opinion.  29 CFR 825.307.  This does not mean, however, that an employer should make a regular practice out of asking for a second opinion.  Take a more conservative approach, and only request a second (or third) medical opinion when you have a solid reason to doubt the medical certification provided by the employee.

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MEMO

From:  Miss Blu in HR

To:  All Employees

Re:  Perfume Assaults Policy

It has been brought to the attention of HR that some employees feel (okay, ONE employee feels) assaulted by the ridiculous amounts of perfume some of you are wearing, so HR created the following policy, which is effective immediately.

Perfume Assaults Policy:  It is this Company’s policy that all employees shall refrain from assaulting other employees with perfume.  As you all know, some of us (or one of us!) may be allergic or have some sort of other aversion to smelling perfumes or other scents, and of course HR must try to accommodate these people.  Thus, all employees are forbidden from wearing perfume in the office, because heaven forbid the perfume waft over into someone else’s breathing space.  Spraying perfume or any other scent on yourself while in the office is strictly prohibited.

As part of your daily grooming practices, you may use hair products, deodorant, and the like.  However, none of these products can be scented/perfumed because if someone smells you, they may be assulted, and you know we cannot allow that to happen.

HR will begin to patrol the office to ensure compliance with this policy.  Those employees found smelling too “perfumey” will be sent home to re-groom in accordance with this policy.  Repeat violators will be disciplined.

*Miss Blu is the nom de plume for a Human Resources professional who lives and works in Southwest Florida.  You can find her complete biography here.

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Most employers know about Florida’s “Bring Gun to Work” law, even if they do not agree with it.  The law, which is codified as Florida Statute Section 790.251 prevents employers (with a few exceptions) from banning firearms on their premises under certain conditions.  More specifically, if the employer has an employee with a concealed weapons permit, the employer cannot prohibit any customer, employee, or invitee from possessing a firearm on the employer’s premises, so long as the firearm is lawfully possessed and locked inside a motor vehicle.  The law exempts schools, correctional institutions, nuclear power plants, defense contractors, and employers involved with explosive materials.

What most employers may not know, however, is that their employee handbooks must conform to Section 790.251.  Many employers have handbook policies that may prevent an employee from bringing a firearm to the workplace, often subjecting an employee to discipline or even termination for violation of the policy.  While employers are free to prohibit employees from bringing a firearm inside a building or displaying it out in the open, a covered employer cannot prohibit an employee from keeping a firearm locked in his or her vehicle.

Employers should take care to ensure their handbook policies comply with the statute.  Often it is a simple fix, one which will not require a wholesale revision or change of the policy.  For example, revise an old policy to state “Employees are strictly prohibited from possessing firearms on XYZ Corp’s premises, except when in compliance with Section 790.251, Florida Statutes.”  Adding the italicized clause keeps the policy in line with the statute, without requiring the employer to completely eliminate the ban on firearms in the workplace.

The Department of Labor recently issued a fact sheet on the break time requirement nursing mothers, which I discussed in a previous post.  As a brief review, the Patient Protection and Affordable Care Act included a provision amending the Fair Labor Standards Act to require employers to

"provide reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk."

The fact sheet clarifies the effective date, which was March 23, 2010.  It also addresses issues such as time and location of breaks, covered employers, and compensation for the nursing mothers. 

Of note for many of our readers is the exception for employers with fewer than 50 employees:  if compliance with the provision would "impose an undue hardship," companies with fewer than 50 employees are exempt.  Exemption status will be determined on a case-by-case basis, with consideration given to the size, financial resources, and structure of the business, among other things.

View the fact sheet by downloading it here. 

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With the mountains of paperwork in the workplace these days, HR professionals often question what should — and what should not — be kept in an employee’s personnel file.  Should it be every single document that refers to the employee?  Should it only be the “important” documents like applications and disciplinary records?  Or should it be something in between?

As we all know, personnel files are very important, particularly in a time where employment litigation is booming.  A well-kept personnel file just might hold the employer’s so-called “smoking gun,” and perhaps the key to the case.

A recent HR Hero email cited to a 2007 Montana Employment Law Letter article addressing this topic.  Briefly, employers should include documents like applications, offer letters, and employment agreements.  Performance documentation and handbook/policy acknowledgments should always be included (remember that “smoking gun” we mentioned?).  Among those documents that should not be included?  Anything related to employee health information, including information regarding health insurance.  This information should be kept in a separate, confidential medical file.

Though not comprehensive, the article is a good guide for what employers should keep in a personnel file.  Legal counsel can help address concerns regarding specific documents.  When in doubt, the best practice is to include a document about which you are unsure.  Better safe than sorry!

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In an Administrative Interpretation issued yesterday, the Department of Labor clarified the definition of “son and daughter” as it applies to an employee standing “in loco parentis” to a child under the Family and Medical Act for purposes of non-military leave.  The Interpretation was intended to ensure an employee who assumes the role of caring for a child receives parental rights to family leave regardless of the legal or biological relationship.  With the Interpretation, the DOL made clear the FMLA, which allows employees to take leave for the birth or adoption of a child, extends to the various parenting relationships that exist in today’s world.

The definition of “son or daughter” includes a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.”  In loco parentis includes those with day-to-day responsibilities to care for and financially support a child.  Employees who have no legal or biological relationship with a child may nonetheless stand in loco parentis, and thus be entitled to FMLA leave.

The Interpretation clarifies that the regulations do not require an employee who intends to assume the responsibilities of a parent to establish that he or she provides both day-to-day care and financial support.  The Interpretation lists several examples, including an employee who provides day-to-day care but does not financially support his or her unmarried partner’s child with whom there is no legal or biological relationship.  It also lists, as an example, an employee who will share equally in the raising of an adopted child with a same-sex partner, but who does not have a legal relationship with the child.

Continue Reading DOL Clarifies Definition of “Son or Daughter” in FMLA

The final rules implementing Executive Order 13496, which was signed by President Obama on January 30, 2009, were recently issued.  Under the new rules, federal contractors and subcontractors are required to inform employees of their rights under the National Labor Relations Act (“NLRA”), the primary federal law that governs relations between unions and private employers.  Importantly, the new posting requirements do not apply to contracts under the Simplified Aquisition Threshold (currently $100,000) or to subcontracts under $10,000.

The notice informs employees of their NLRA rights with regard to organizing and collective bargaining, conduct that is deemed an unfair interference with employee rights, and information on contacting the National Labor Relations Board if an employee believes his or her rights have been violated.  The notice must be posted conspicuously in plants and offices where notices to employees are customarily posted.  If the employer customarily posts notices electronically, the employer must post this notice electronically as well.

The Department of Labor (“DOL”) issued a “Fact Sheet” with helpful information, which you can download here.  The DOL also provides the model notices on its website.  The notice must be at least 11×17 inches in size.  Employers who can print on large paper can use this form.  Employers without the capability of printing on large paper must use this form, and tape it together so that it is at least 11×17 inches in size.

Please note that the notice must be posted no later than June 21, 2010.

MEMO

From:  Miss Blu* in HR

To:  All Employees

Re:  Birthday Decorations Policy

HR has recently learned that some employees are discussing and even <gasp> displaying other employees’ ages on birthday decorations in the workplace.  In this day and age of getting sued for everything, the Company simply cannot tolerate the added risk of an age discrimination lawsuit based on such shenanigans.  Therefore, HR has written the following Birthday Decorations Policy:

                                                              Birthday Decorations Policy

Effective immediately, no one is allowed to discuss their ages with their co-workers — not even on your birthday.

If you are hosting a little cubical party for one of your co-workers and are tempted to get an “Over the Hill” banner, do not, or you will be found to be in violation of this policy.  And don’t even think about buying brightly colored Mylar balloons that say something like “Happy 30th Birthday.”

Additionally, numbered birthday candles for the top of a cake for a co-worker’s birthday cake will not be tolerated. If numbered candles are found, the perpetrator will be forced to eat the wax candles in front of the HR Director and then send a company-wide email admitting violation of this policy and apologizing to the birthday person.

In fact, come to think of it, wishing someone a happy birthday is too risky as well, as it indicates that person has turned another year older and, by acknowledging the birthday, the company could be blamed for age discrimination. So you are forbidden from wishing any co-worker a happy birthday effective immediately.

HR is committed to keeping this company protected from getting sued for birthday-related age discrimination, so we will be patrolling the halls looking intently for someone who is in violation of this policy, especially on days we know (and, after all,  we are HR and we know everything!) to be someone’s birthday.

 *Miss Blu is the nom de plume for a Human Resources professional who lives and works in Southwest Florida.  You can find her complete biography here.

The Department of Labor recently debuted its Disability Nondiscrimination Law Advisor, an online tool intended to help employers determine which federal disability nondiscrimination laws apply to their organization, and their responsibilities under each law.  Employers answer a series of questions about their business, then the Advisor generates a list of applicable disability nondiscrimination laws.  The Advisor also includes a “Guide to Employing People with Disabilities,” which outlines resources available to help employers comply with disability nondiscrimination laws.

While it is important to note that the Advisor does not address all federal disability nondiscrimination laws, it does address many of the major federal laws, including:

  • Title I of the Americans with Disabilities Act of 1990 (ADA)
  • Title II, Subtitle A, of the Americans with Disabilities Act of 1990 (ADA)
  • Section 188 of the Workforce Investment Act of 1998
  • Section 504 of the Rehabilitation Act of 1973, as amended (only as it pertains to federal financial assistance)
  • Section 503 of the Rehabilitation Act of 1973, as amended
  • The Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended

We encourage our clients to use the Advisor as a helpful guide and good starting point for understanding these laws.  The Advisor is not, however, a substitute for legal advice on all federal, state, and/or local disability nondiscrimination laws.  Employers should consult counsel with any specific questions.