The Department of Labor revised six important Medical Certification Forms used by most employers. The new forms were just released and have been updated on your HRFix.com system. The old forms expired at the end of 2011, so if you have copies saved on desktops or elsewhere, please replace them with the new forms. Employers can create their own forms, but we recommend using the ones provided by the Department of Labor for FMLA administration.

2. NLRB “Right to Union” Poster Requirement is on Hold

The National Labor Relations Board (NLRB) issued a rule requiring most private sector employers to display a poster giving employees notice of their rights to unionize under the National Labor Relations Act. The legality of the rule was immediately challenged in federal court proceedings.

The controversial rule was to take effect April 30, 2012, however, on April 17, 2012, the D.C. Circuit Court of Appeals issued an injunction preventing the NLRB from requiring the posting until the legality of the rule is determined. The Chair of the NLRB confirmed that the rule will not be implemented pending the court’s decision. This means that the posting will not be required for the next several months. We will keep you updated as this issue plays out in court.

3. Employment Law Changes Proposed in Congress

On March 29, 2012 Sen. Tom Harkin (D-IA) introduced a bill that seeks to change several employment laws, none of which benefit employers.  The Rebuild America Act includes proposes changes to minimum wage, worker misclassification, and paid sick leave. Many of these changes were included in previous pieces of failed or stalled legislation, attached to economic stimulus provisions.

Increase in federal minimum wage:  Up to $8.10 an hour, then to $8.95 and $9.80 over the next two years.  The minimum wage for tipped employees would also increase initially to $3 an hour, then by an additional 85 cents per year until the hourly rate is equal to 70 percent of the federal minimum wage.

Paid Sick Leave:  The Healthy Families Act would require employers to provide employees with paid sick leave. Employees would earn one hour of paid sick time for every 30 hours worked, up to a maximum of seven days annually.

Narrow Overtime Exemptions:  The bill would amend the National Labor Relations Act (NLRA) to narrow the exemption for supervisors and clarify that workers misclassified as independent contractors are entitled to NLRA protections. The legislation would allow for civil penalties of up to $20,000 for employers.

In addition, the measure would amend the Fair Labor Standards Act (FLSA) to make it more difficult for employees to qualify for the executive, administrative, and professional exemption and would increase certain salary thresholds to enable more white collar workers to qualify for overtime.

“There was an Accident.”… “I hit every Red Light on the way in.”…“My dog got out”… “My alarm didn’t go off”…

When these excuses are consistently coming from the same individual, it’s usually a good sign that the source of the problem is the individual, not all these external factors. A solution, however, can only be found when the individual accepts the fact that the problem is indeed their own.

As a manager, you are tasked with helping employees identify their problem(s) and then suggest ways to correct it. The first step in the Progressive Discipline process is informal counseling, often referred to as a “verbal warning.” You should then require the employee to create an accountability action plan, outlining the steps they will take to resolve the issue. It is highly critical that both the verbal warning and the accountability action plan be documented and signed by the manager and employee. This accomplishes multiple goals.

1. It verifies the employee was made aware of the problem.
2. It creates a record of the employee’s commitment to improve and correct the problem.
3. It allows the employee to have input into resolving the issue. This is a very powerful aspect of this process.  People respond much better when empowered to problem solve on their own rather than implementing the suggestions of another. It also helps avoid the situation where employees feel a manager who “does not understand” is victimizing them.
4. It creates a paper trail.  By recording both the warning and the action plan you ensure you have the documentation should you ever need it.

It’s also VERY IMPORTANT to always have a witness in the office when you counsel an employee – ALWAYS. As a company this protects you from the “Your Word vs. Their Word” scenario.

If an employee refuses to sign their write up, inform them that you are only asking them to acknowledge the meeting/conversation took place. You can also inform them of their right to create and attach a rebuttal at any time.

If an employee ever refuses to write an accountability action plan, inform them that as their manager you have the right to assign any task as long as it is not illegal, unethical or immoral.  Refusing to write an accountability plan is refusing to do their job, and refusing to do their job is grounds for termination.

This initial step in the Progressive Discipline Process can be easily repeated if the problem escalates. Should you need to move from a verbal warning, to a formal write up, or suspension, simply document the counseling session, and then have the employee create and document an action accountability plan.

If you’d like more information on progressive discipline, check out our “Progressive Discipline and Avoiding Wrongful Termination” training located on www.hrfix.com and www.hrfixondemand.com. You can also view a snippet of our online training video below:

Vacation and PTO time are a fringe benefit under federal law and employers are simply required to adhere to their own policy in most cases.  However, some state laws are much more favorable to the employee and treat these benefits as “wages”.  In these states, PTO must be paid at time of termination and cannot be forfeited if not used during the qualifying anniversary or fiscal year.

In working with thousands of employees over the past decade, we have learned that a large number of employees take every day off they can, be it sick pay, vacation time, PTO, personal days, etc..  There are also employees who never miss work.  These employees actually feel stressed when away from work, even for vacation.  Some label this group workaholics; others consider them dedicated employees.  Whatever the label, the never-miss personalities are the employees who lose vacation or PTO time on a regular basis.  How do employers ensure the never-miss employees are not punished for not using all of their PTO?

The FMLA Bank

A creative solution that works for several of our clients is what we refer to as an “FMLA Bank” policy.  Our title may be confusing, because this policy is not just for companies whose employees qualify for protection under Family and Medical Leave Act (FMLA) and can be used by companies of any size. The way it works is simple: employers allow employees to “bank” their unused time off which can be used later for major events, with certain qualifications.  Employers can limit the amount of “banked” time to two weeks, six weeks or twelve weeks.

Administration

The reason we call this the FMLA bank is because the banked time is not saved for vacation, but for those situations that would normally qualify for (unpaid) FMLA leave.  Situations such as pregnancy, serious illness, deployment of a service member, and other causes which are clearly spelled out in the FMLA. Managers can then use the FMLA as a guide to determine if an employees situation qualifies for the use of ‘banked’ time off.

Benefit to Employee and Employer

With the FMLA bank system, a company can provide financial help to dedicated employees in a non-discriminatory manner, because those employees are more likely to have accrued time in this system.  The benefit for the employee is obvious, it gives them some peace of mind knowing they’re still collecting a paycheck at a time of need, rather than having to rely solely on unpaid FMLA leave.

Sharing Programs

To really impact workforce unity, companies can allow their employees to donate saved time to other employees who have an emergency.  This is done purely on a volunteer basis and can ONLY be requested by the employee who wishes to donate his or her time.  We recently saw a company come together to support a fellow employee stricken with Parkinson’s disease.  This became a rallying cry of sorts for the company and the employees who donated their time which had a lasting effect on morale and culture.

If you would like to review this policy and forms for your company, please give us a call and we will provide an electronic copy for you to review.

It won’t be long before a high school diploma can’t be considered a requirement for any position. Should it?

So What Does a High School Diploma Tell Us Anyway?

We’ve all met high school graduates that couldn’t spell, add, or structure a simple sentence. Was it because he was a sub-par student, or did he just receive a sub-par education? Not all students are created equal, but neither are the school systems. A high school diploma never guarantees any specific skill set, in fact about the only thing it guarantees is that its recipient graduated high school.

In 1970 Willie Griggs filed a class action lawsuit against his employer Duke Power Company. Griggs claimed that Duke’s “inside” transfer policy, which required employees who wished to transfer to higher paying positions register a minimum score on two separate aptitude tests and possess a high school diploma, discriminated against African-American employees in violation of Title VII of the 1964 Civil Rights Act.

After noting that Title VII of the Act intended to achieve equality of employment opportunities, the Court held that Duke’s standardized testing requirement prevented a disproportionate number of African-American employees from advancing to higher-paying departments within the company. Neither the high school graduation requirement nor the two aptitude tests was directed or intended to measure an employee’s ability to learn or perform a particular job or category of jobs within the company. The Court concluded that the purpose of these requirements was to safeguard Duke Power Company’s long-standing policy of promoting and increasing the pay of its white employees.

With this example, it’s easy to conclude that requiring a high school diploma has a disparate impact on protected groups and is not a bona fide occupational requirement. Much has changed since Willie Griggs won his case in 1970, unfortunately minority groups continue to disproportionately account for more than half of the annual 1.2 million students who fail to receive a high school diploma.

Do Your Positions REALLY Require a High School Diploma?

A recent Bureau of Labor Statistics survey shows the educational level Employers currently require for all their positions:

• college degree required for 35% of the positions
• high school diploma required for 48% of the positions.
• High school dropouts eligible for 17% of the positions.

It’s a safe bet that 48% of the jobs in your company actually require a specific skill set more than they do a high school diploma. It’s time for employers to rethink their position on requiring high school diploma. The idea that 48% of all jobs in the United States require a high school diploma is a stretch at best.  In addition, It’s only a matter of time before the EEOC begins to share the same view, especially when you factor in the disparate impact such a policy has on protected groups.

Job Specific Requirements are the Answer.

Many years ago when the American’s With Disability Act was enacted, HRFix created a position description template, which allowed employers to create a position description in minutes, that would define both the mental and physical requirements for any job.

Applicants now know in advance they must be able to verify they possess the various skills as defined in the job description, before they’re even interviewed.  Utilizing this tool allows employers to zero in on the skill sets needed, expand their applicant base, and comply with the new position of the EEOC as well as negating a disparate impact claim that may be out there in your future!

The ADA Position Description Tool is located under the forms section of the HRFix  website and can be found on HRFixOnDemand for non hrfix.com clients.  For further information or questions please contact hrfix.com at (866) 240 6618.

The following states have announced minimum wage rate increases which take effect January 1, 2012:

Arizona:
Standard minimum wage increases from $7.35 to $7.65 an hour.
Tipped employees minimum wage for  increases from $4.35 to $4.65.

Colorado:

Standard minimum wage increases from $7.36 to $7.64 an hour.
Tipped employees minimum wage increases from $4.34 to $4.62 an hour.

Florida:

Standard minimum wage increases from $7.31 to $7.67 an hour
Tipped employees minimum wage increases from $4.29 to $4.65 an hour.

Montana:
Standard wage increases from $7.35 to $7.65 an hour.
Montana law does not allow employers to take a tip credit against minimum wage for tipped employees.

Ohio:
Standard minimum wage increases from $7.40 to $7.70 an hour.
Tipped employees minimum wage increases from $3.70 to $3.85 an hour.

Oregon:
Standard wage increases from $8.50 to $8.80 an hour.
Oregon law does not allow employers to take a tip credit against minimum wage for tipped employees.

Vermont:
Standard minimum wage increases from $8.15 to $8.46 an hour.
Tipped employees minimum wage increases from $3.95 to $4.10 an hour.

Washington:
Standard minimum wage increases from $8.67 to $9.04 an hour.
Washington law does not allow employers to take a tip credit against minimum wage for tipped employees.

2. HIPAA Enforcement Program Launched 

The U.S. Department of Health and Human Services’ Office for Civil Rights (OCR) recently launched a pilot audit program as part of its HIPAA enforcement efforts.  HIPAA violations can occur when a supervisor accesses, examines, and discloses an employee’s medical records without employee authorization.

In 2010, OCR received over 8,000 HIPAA-related complaints, and identified the following top five HIPAA-compliance issues:

• Impermissible Uses & Disclosures
• Improper Safeguards
• Access to Protected HealthInformation (PHI)
• Providing the Minimum Necessary PHI
• Notice Obligations

In February the first civil penalty for HIPAA violation was levied.  The OCR found that a health care provider violated the rights of 41 individuals by denying them access to their medical records, which resulted in a fine of $4.3 million.  It’s also worth noting that the company also failed to cooperate with investigators.

HIPAA enforcement is still in its early stages, but it is an area all affected employers should closely monitor.  The more recent HITECH Act (2009) adds additional privacy and security provisions for employers, particularly with electronic health information.  If you have any questions about HIPAA’s impact on your business, please give us a call.

3. Systemic Wage and Hour Violations in Hospitality Industry

This week the U.S. Department of Labor reported ‘widespread noncompliance’ in an investigation of hotels and motels in Tennessee.  According to regulators, 35 franchised hotels are being fined $14,000 and paying back employee wages to the tune of $173,000 to employees.  Violations included:

• Charging excessive room and board to employees
• Paying housekeepers by the room cleaned, resulting in rates less than minimum wage
• Failure to pay overtime for hours worked over 40
• Failing to pay temps for all hours worked
• Misclassifying employees as independent contractors

As enforcement of existing laws continues to escalate, employers should ensure compliance with all aspects of the FLSA.  HRFix is happy to review your job descriptions and pay policies to ensure compliance with FLSA rules.

Starting November 14, 2011, The National Labor Relations Board will require employers to notify employees of their union rights under the National Labor Relations Act. The notice states that employees have the right to act together to improve wages/working conditions, to form, join and assist a union, to bargain collectively with their employer, or to refrain from any of these activities. It provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with questions or complaints.

Private-sector employers and labor organizations whose workplaces fall under the National Labor Relations Act will be required to post the employee union rights notice where other workplace notices are typically posted, including internet or intranet sites used for sharing personnel rules or policies. This requirement is already being challenged in court, we’ll keep you informed as to the outcome.

For all HRFix clients this notice has been loaded on your site and appears in the “Communications” tab prior to the mandatory date.

2. DOL and IRS Partner to Challenge Independent Contractor Status

The U.S. Department of Labor signed an information sharing agreement last week with the Internal Revenue Service to “improve departmental efforts to end the business practice of misclassifying employees in order to avoid providing employment protections.“

Although misclassifying workers as independent contractors can result in violating tax codes and wage and hour laws, the various government agencies charged with enforcing those laws have historically not shared information or coordinated their efforts. The DOL has continued to become more aggressive in its enforcement efforts and state and federal entities appear to be doing the same, as they look for opportunities to raise tax revenue. Because misclassification violations frequently involve multiple workers, they can represent a significant liability for small and midsize businesses who lack the resources to defend or settle these claims.  With the DOL and IRS sharing information, if an employer gets a visit from one agency you should now expect a visit from the other.

Call us for best practices advice on classifying employees and contractors.

3. New Trend Emerging in Employment Laws:  Paid Sick Leave

Seattle (following San Francisco and Washington DC) just became the third city in the country to require businesses to provide paid sick leave to employees, and Connecticut recently became the first state to require employers to provide workers with paid sick leave.

The Seattle legislation, which takes effect in September of 2012, requires businesses to provide paid leave to workers who are ill or are taking care of ill family members outlined as follows:

• Businesses with 5 to 49 employees must provide at least five paid sick days
• Businesses with 50 to 249 employees must provide at least seven paid sick days
• Businesses with more than 250 employees must provide at least nine paid sick days.

Similar bills requiring employers to provide mandatory paid sick leave have been proposed in almost half the states in the U.S.  This train seems to have a lot of momentum, we will keep you posted and let you know when it’s time to re-write your paid time off policy.