All posts by stu

Accommodation, Americans with Disabilities Act, EEOC, HR Compliance, Leave of Absence, Pregnancy, Reasonable Accomodation

What Employers Need to Know About the Pregnant Workers Fairness Act

The Pregnant Workers Fairness Act (PWFA) took effect on June 27, 2023, and represents a significant increase in the legal protections given to pregnant workers.  This new law requires employers to provide reasonable accommodations to employees affected by pregnancy, childbirth, or related medical conditions, unless doing so would impose an undue hardship on the business. Every employer needs to understand the key provisions of the PWFA to ensure compliance and ensure pregnant employees are included in the workplace.

Key Provisions of the PWFA:

  1. Who is covered?  The PWFA applies to private and public sector employers with 15 or more employees. It covers all employees, including part-time and temporary workers, who require accommodations due to pregnancy, childbirth, or related medical conditions
  2. What must be offered to pregnant employees?  Reasonable Accommodations.  Similar to the Americans with Disabilities Act (ADA), the PWFA mandates that employers must provide reasonable accommodations to pregnant workers. These accommodations can include adjustments such as more frequent breaks, light duty assignments, flexible scheduling, and temporary transfers to less strenuous positions.
  3. What process is used to determine reasonable accommodation?  Interactive Process.  Employers are required to engage in an interactive process with pregnant employees to determine appropriate accommodations. This involves a collaborative dialogue to understand the employee’s needs and explore feasible solutions without imposing undue hardship on the business.
  4. What is prohibited?  The PWFA prohibits employers from discriminating against employees on the basis of pregnancy, childbirth, or related medical conditions. This includes protection against adverse employment actions such as termination, demotion, or denial of promotions based on pregnancy-related reasons.  Employees are protected from retaliation for requesting accommodations or asserting their rights under the PWFA.

What steps should employers take to comply?

  1. Review and Update Policies.  Employers should review and update their existing policies to ensure they align with the PWFA requirements. This includes revising the employee handbook and adding additional language to the accommodation policy.
  2. Train Managers.  It is essential to train managers on the PWFA and the importance of the interactive process.  Training should cover recognizing accommodation situations, engaging in effective communication, and understanding what constitutes reasonable accommodations.
  3. Establish an Accommodation Process.  Employers should establish a clear and consistent process for handling accommodation requests. This includes providing employees with information on how to request accommodations and ensuring timely and appropriate responses.
  4. Document Accommodation Requests and Actions: Proper documentation of accommodation requests and the steps taken to address them is critical. This helps demonstrate compliance with the PWFA and can help defend a company’s actions if there is a legal challenge.
Construction, consultstu, Employee Handbook, Employee Policies, HR Compliance, Human Resources

Crafting Custom Employee Handbooks: Affordable Solutions for Small Business

Creating an employee handbook is a crucial step for any business, regardless of its size or industry. It sets the tone for company culture, outlines policies, and ensures that employees are well-informed about their roles and responsibilities. At Consultstu, we specialize in crafting customized and comprehensive employee handbooks that cater to the unique needs of small businesses, all at affordable fees.

Why Choose Consultstu for Your Employee Handbook?

Tailored to Your Business Needs – Every business is unique, and so are its policies and culture. Consultstu takes the time to understand your specific requirements, ensuring that the handbook reflects your company’s values and operational guidelines.

Expertise Across Industries – Whether you run a tech startup, a retail store, a construction company, a medical office, or any other type of business, our team will create a handbook that is relevant to industry standards.

Affordable Pricing – We believe that every business, regardless of its size, should have access to high-quality employee handbooks. Our pricing is designed to be budget-friendly, making it possible for small businesses to benefit from our services without breaking the bank.

Comprehensive Content – Our handbooks cover all essential topics, including company policies, employee benefits, code of conduct, safety procedures, and more. We ensure that every aspect of your business is addressed, providing clarity and consistency for your employees.

Legal Compliance – Staying compliant with local, state, and federal laws is crucial. We ensure that your handbook is up-to-date with the latest legal requirements, helping you avoid potential compliance issues.

Help with Updates – As your business evolves, so should your employee handbook. We offer services to update your handbook so it remains current and relevant.

The Consultstu Process

  1. Initial Consultation. We start with a detailed consultation to understand your business, culture, and specific needs. This helps us tailor the handbook to your exact requirements.
  2. Draft the Handbook. Our team creates the handbook draft, incorporating the necessary policies and procedures. We use language that is clear, concise, and easy to understand.
  3. Review and Feedback. We provide you with a draft of the handbook for review. Your feedback is crucial, and we make any necessary revisions to ensure that the final product meets your expectations.
  4. Finalize and Deliver. Once the handbook is finalized, your handbook is ready to distribute to employees.
  5. Ongoing Support. Our relationship doesn’t end with the delivery of the handbook. We offer ongoing support to help you make updates and ensure that your handbook remains a valuable resource for your employees.

Testimonials – Here’s what one our satisfied client had to say:

• Tucker, Low Tide Kava Bar (Gulfport): “Great source of information for business owners and managers! Stuart helped put together a very professional business handbook and job expectations for my company and I’m very pleased with his work,”

Check out all our Google reviews! Contact us today to get started!

Company Culture, Consultstu Team, New Hire

Congratulations! Welcoming Nikita Stoltenberg, to the Consultstu team

We are extending a warm welcome to Nikita Stoltenberg, who joined the Consultstu HR business services team as an HR Coordinator in August. Niki joined Consultstu after graduating from St. Petersburg College with a BAS in Business Management and Organizational Leadership. She later obtained her SHRM-CP certification in May 2024. Consultstu is committed to working towards building a strong, skilled, and passionate HR team to help our clients. We believe Niki is an excellent fit for our company and the services we provide for our clients.

Nikita brings three years of hands-on experience as an HR Specialist at a Tampa area newspaper printing company. Her areas of expertise in the HR field include onboarding, insurance benefits, HRIS and general HR data administration. She is a Florida native and graduated from Seminole High School. She enjoys boating on the weekends and loves to travel to new places. She loves spending time with her two children, Juliana and Nolan.

Welcome to the team Niki! 

Audits, Compliance, I9 Form, Immigration, Publix Immigration Certification, Record Keeping, USCIS

What is a Notice of Inspection (NOI) to Review Employer I9 Forms?

The Immigration Reform and Control Act (IRCA), enacted in 1986, requires employers to verify the identity and employment eligibility of their employees and sets forth criminal and civil sanctions for employment-related violations. For current employees, employers are required to maintain for inspection the original Form(s) I-9 on paper or as an on-screen version generated by an electronic system that can produce legible and readable paper copies. 

When an administrative inspection process is initiated, employers are served with a Notice of Inspection (NOI). Employers receive at least three business days to produce the Form(s) I-9 requested in the NOI.  Currently, employers who physically examine the documentation presented by new employees may choose to make and retain copies or scans of the documentation presented by employees for the purpose of completing the Form I-9. However, employers that use E-Verify must make and retain copies of documentation presented by employees for List A of the form I-9.  If copies of an employee’s Form I-9 documents are retained for reasons unrelated to E-Verify requirements, they must be retained for all employees, regardless of actual or perceived national origin, citizenship, or immigration status, or the employer may risk violating anti-discrimination laws.

When an employer responds to an NOI by producing Form(s) I-9, Homeland Security Investigation (HSI) agents and/or auditors conduct an inspection of the Form(s) I-9 for compliance. When HSI finds technical or procedural failures, the employer receives at least 10 business days to make corrections. An employer may receive a monetary fine for all substantive violations and uncorrected technical or procedural failures. Employers who are found to have knowingly hired or continued to employ unauthorized workers will be required to cease the unlawful activity and may be civilly fined and/or criminally prosecuted. Read more about the Form I9 Inspection process (ICE). Also, learn how civil money penalties are assessed for technical or procedural failures/violations.

To help employers meet compliance responsibilities, Consultstu provides I9 audit services and immigration reviews, including the independent reviews required for Publix Suppliers and Contractors.

Employee Handbook, Employee Policies, Florida rules, FTC, NLRB, Non-complete Agreements

FTC Non-Compete Ban is Blocked, Will Not Go into Effect

Much to the relief of many employers, a Texas court entered an order blocking the Federal Trade Commission’s (FTC) non-compete ban on a nationwide basis. On August 20, the court blocked the non-compete ban from going into effect on September 4. The judge concluded that the FTC lacks the authority to promulgate the non-compete rule and that the rule is arbitrary and capricious. So, for now, the rule can not be enforced or otherwise take effect.

What do employers need to know?

  • Employer non-compete agreements will continue to be effective as long as they comply with state law.
  • Other federal agencies, including the National Labor Relations Board (NLRB). continue to attack non-competes and will attempt to block employers from enforcing agreements that restrict employees’ actions during or after employment.
  • Florida employers need to review its statute (542.335 – Valid restraints of trade) that addresses permissible restrictions, such as non-competes, and employers should review their existing agreements based on these standards.
  • In case the FTC regulation is allowed to go into effect, employers can prepare an alternative agreement that protects trade secrets, confidential information, non-solicitation of clients and the non-raiding of employees. These protections were not impacted by the FTC non-complete ban.

Does Florida law allow employers to put non-compete restrictions on employees? Yes, but it says that any person seeking enforcement of a restrictive covenant in Florida must be able to prove the existence of one or more legitimate business interests justifying the restrictive covenant. The interests include: (1) trade secrets, as defined by FL law,\; (2) valuable confidential business or professional information that otherwise does not qualify as trade secrets; (3) substantial relationships with specific prospective or existing customers, patients, or clients; (4) customer, patient, or client goodwill associated with an ongoing business or professional practice; (5) a specific geographic location; (6) a specific marketing or trade area; and (7) extraordinary or specialized training. Read more in a Florida Bar article on non-competes.

Company Culture, Employee Policies, Engagement, Human Resources, Management, Performance Review

Trends in Designing Employee Performance Reviews (2024)

Employee performance reviews are evolving. Gone are the days of the dreaded annual review; today’s trends focus on continuous feedback and development. Employee performance reviews are crucial for several reasons. They provide a structured opportunity for managers and employees to discuss job performance, set goals, and address any areas needing improvement. These reviews facilitate open communication, ensuring that employees receive constructive feedback and recognition for their achievements. They also help align individual performance with organizational objectives, fostering a sense of purpose and direction. Additionally, performance reviews can identify training and development needs, enhance employee skills and contribute to career growth.

Here’s a look at some trends shaping the future of employee performance reviews. 

  • Continuous Performance Evaluations – The shift towards ongoing performance evaluations is one of the most significant trends. Regular, real-time feedback is replacing the traditional annual or semi-annual reviews³. This approach allows for more timely and relevant feedback, which can lead to immediate improvements and adjustments.
  • Management Evaluations – Another trend is the emphasis on management evaluations. Managers are being trained to provide more effective feedback and to use performance reviews as a tool for coaching and development.
  • 360-Degree Performance Ratings – The 360-degree performance rating system is still popular. This comprehensive approach gathers feedback from all directions – peers, subordinates, and supervisors – to give a well-rounded view of an employee’s performance.
  • Forced-Choice Reviews – Some organizations are adopting forced-choice reviews, where managers must rank employees against each other. This method can be controversial, but proponents argue that it helps identify top performers.
  • Team Assessments – Team assessments are on the rise. Evaluating the performance of a team as a whole can foster a sense of collective responsibility and highlight the importance of teamwork.
  • Self-Evaluations – Encouraging employees to conduct self-evaluations is another popular trend. This empowers employees to reflect on their own performance and set personal goals, enhancing their personal engagement with the process.
  • Eliminating Ratings and Metrics – Finally, there has been some movement towards eliminating ratings and metrics.  Some argue that qualitative feedback is more valuable than quantitative ratings, which can be arbitrary, subjective and demotivating.

Employee performance reviews are also moving towards a more continuous, comprehensive, and developmental approach.  Companies are adopting regular check-ins, real-time feedback, development plans and goal setting to increase employee involvement.  By adopting these trends and strategies, organizations can create a more engaged and high-performing workforce, and foster continuous improvement and professional development.

Company Culture, Employee Policies, Engagement, Human Resources, Management, Morale, Performance Improvement Plan, Wellness program

What Drives Workplace Culture in 2024

In 2024, the landscape of workplace culture continues to evolve at a rapid pace, shaped by an interaction between technology advancements, shifting societal norms, and emerging business priorities. Companies are increasingly recognizing the importance of fostering a positive and inclusive workplace culture to attract and retain top talent, drive innovation, and improve overall organizational performance.  In addition to completing the everyday work, companies that focus on the drivers of a strong culture separate themselves from competitors and create loyal, dedicated employees.  Here are the key drivers of workplace culture in 2024:

1. Hybrid Work Models – The hybrid work model, which combines remote and in-office work, remains a dominant force in shaping workplace culture. Employees now expect flexibility in their work arrangements, and companies are investing in technology and infrastructure to support seamless collaboration regardless of location. Hybrid work models require clear communication, trust, and effective management practices to ensure all team members feel included and valued.

2. Employee Well-being – Employee well-being has emerged as a critical component of workplace culture. Organizations are prioritizing mental health, physical health, and work-life balance to create a supportive environment. This includes offering wellness programs, health resources, and promoting a culture of open communication where employees feel comfortable discussing their well-being. Recognizing and addressing burnout and stress is essential to maintaining a healthy and productive workforce.

3. Technology Advancement – Advancements in technology are reshaping how work is done and how employees interact. Tools such as artificial intelligence, automation, and collaboration platforms are enhancing productivity and enabling more efficient workflows. However, it is essential to balance the benefits of technology with the human element, ensuring that technology improves rather than detracts from the employee experience.

4. Continuous Learning and Development – The rapid pace of change in the modern workplace necessitates a focus on continuous learning and development. Companies are investing in training and upskilling programs to help employees stay current with industry trends and develop new skills. A culture that promotes continuous learning not only benefits employees but also ensures that organizations remain competitive and innovative.

5. Purpose-Driven Work – Today, employees seek purpose-driven work that aligns with their values and makes a positive impact on society. Organizations are increasingly focusing on their mission, values and purpose and communicating it with employees.  By integrating purpose into their business strategies, companies can create a sense of meaning and fulfillment for their employees, fostering a more engaged and motivated workforce.

6. Leadership and Management Practices – Effective leadership and management practices are crucial for cultivating a positive workplace culture. Leaders who are empathetic, transparent, and supportive can inspire trust and loyalty among employees. In 2024, there is a growing emphasis on servant leadership, where leaders prioritize the needs of their team members and empower them to succeed.

7. Collaboration and Team Dynamics – Collaboration and team dynamics play a significant role in shaping workplace culture. Creating a collaborative environment where employees share ideas, provide feedback, and work together across departments, towards common goals is essential. Companies are adopting agile methodologies and fostering cross-functional teams to enhance collaboration and drive innovation.

8. Diversity – Diversity continues to be a key driver of workplace culture. Companies are making concerted efforts to recruit from all sources and build diverse teams.  Identifying ways to create inclusive environments leads to employees feeling valued and respected. This may involve implementing training programs, setting measurable goals and creating programs that welcome and encourage diverse perspectives and ideas – and closely linked to the common goals and objectives of the company.

In 2024, workplace culture is being driven by a combination of flexibility, well-being, technology, continuous learning, purpose, effective leadership, diversity and collaboration. Companies that understand and embrace these drivers will create a thriving workplace culture that attracts top talent, fosters advancement and drives long-term success.  The future of work is dynamic and ever-changing, and companies that prioritize and adapt to these cultural drivers will be well-positioned to navigate the challenges and opportunities ahead.

Employee Injury, Risk Management, Safety, Workers Compensation, Workplace Violence

No Work Comp Immunity for Workplace Shooting

Workplace shootings create unique risks to Florida employers. Is a co-worker shooting incident covered by workers’ compensation benefits, or not? A recent case (Bottling Group v. Bastien) has wide implications for Florida employers. The court ruled that an employer cannot deny a workers’ compensation claim on the grounds that a shooting injury is not work-related and then turn around and argue it has immunity from a tort lawsuit because the incident happened at work. The District Court of Appeals upheld the Miami-Dade decision.

What happened?  In 2020, there was a shooting incident near the Pepsi Bottling facility in Medley, Florida, near the Miami Airport.  Two workers had a simmering dispute (allegedly about one employee’s union activity) and left the workplace during a break to settle the dispute with a fight.  Bastien was seriously injured when his “aggressive” co-worker shot him 3 times while he was in his vehicle.  Both workers were on break and the shooting took place on a nearby roadway.  Bastien was seriously injured in the shooting and Pepsi Bottling Group denied his workers’ compensation case because the “injury did not occur in the course or scope of employment – accident/injury occurred off-premises”.   Later, Bastien filed a personal injury (tort) case against PepsiCo and the Bottling Group (for failing to discipline or terminate the aggressive employee despite numerous complaints from coworkers).  Pepsi asked the trial court to dismiss the lawsuit, contending that the company was protected from tort actions by the exclusive remedy of the workers’ comp system.

Lesson for Florida Employers.  The case re-affirms that Florida courts notice the inconsistency of employers/insurers who ask for immunity after already denying a claim as non-work related. Denying work comp benefits to an employee because an accident did not happen in the course of employment means an employer will be unlikely to have an immunity defense to a tort claim.  Making these two assertions are inconsistent grounds. Workplace injuries resulting from non-work actions, such as anger from a personal relationship gone bad, have consistently been deemed to be non-compensable in Florida.  So, if workplace shooting victims are not able to collect workers’ compensation benefits, they will need to file personal injury negligence lawsuits against their employers in order to receive compensation for the injuries.  Workplace shooting victims, involving employees, will still need to prove that it was work related to collect workers’ compensation benefits.

I9 Form, Immigration, OPT, Recruiting, USCIS

What Employers Need to Know about Optional Practical Training (OPT) of Foreign Students

Due to the large number of foreign students that are studying in the United States. Employers need to know about Optional practical training (OPT) and the option for temporarily employing a foreign student once they graduate from a U.S. university if they work in their major area of study. According to USCIC, eligible students can apply to receive up to 12 months of OPT employment authorization before completing their academic studies (pre-completion) and/or after completing their academic studies (post-completion). However, all periods of pre-completion OPT will be deducted from the available period of post-completion OPT. Read more.

  • The OPT is a benefit of a foreign student’s F-1 visa status and not a separate work visa or visa category.
  •  During OPT, the worker remains on their F-1 student visa status and must abide by all F-1 regulations during the OPT.
  • The University remains the sponsor of the OPT student and oversees the employment authorization time period.
  • F1 Students can perform internships (paid and unpaid) during the OPT, and can perform more than one position at the same time. Each employer must employ the student for at least 20 hours per week. 
  • Each employer must also sign and agree to all the reporting requirements on Form I-983.
  • OPT must be used directly after graduation; it cannot be saved for later.
  • A student can not start to work until after they receive their EAD card and reach the start date on the card.
  • Read more good Frequently Asked Questions (FAQs) from a University.

For students with degrees in certain science, technology, engineering and math (STEM) fields, they may apply for a 24-month extension of their post-completion OPT employment authorization, if they: (1) are an F-1 student who received a STEM degree included on the STEM Designated Degree Program List (PDF); (2) are employed by an employer who is enrolled in and is using E-Verify; and (3) received an initial grant of post-completion OPT employment authorization based on your STEM degree. More information, and how students can apply for OPT is available on the USCIS link above.

For employers, here is some USCIS guidance on how to complete the Form 983. Here is some information for STEM OPT employers from NYU. Here is the Form 983 and Instructions booklet.

Americans with Disabilities Act, Commercial Motor Vehicle Driver, Construction, HR Compliance, Opioids, Reasonable Accomodation, Risk Management, Safety

What can Employers Do When Employees are Legally Using Opioids?

Fortunately for employers, the Equal Employment Opportunity Commission (EEOC) has issued technical assistance documents that address issues concerning the employment provisions of the Americans with Disabilities Act, as it relates to the use of opioids by employees. Although not legally binding on the public, there is valuable information for employers and gives the blueprint for removing employees for safety concerns and poor performance.

First, the EEOC reminds employers that individuals who lawfully use opioid medication are protected under the Americans with Disabilities Act (ADA). However, illegal drug use is not a covered disability under the ADA, and employers can fire and take other adverse employment actions against individuals based on the illegal use of opioids, even if the individual does not have performance or safety problems. The EEOC defines “opioids” as prescription drugs such as codeine, morphine, oxycodone, hydrocodone, meperidine, and illegal drugs like heroin. 

Second, if an individual is using opioids legally and isn’t disqualified for the job by federal law (for example, DOT regulations), an employer may be required to provide a reasonable accommodation before firing the employee or rejecting a job applicant based on opioid use. The EEOC defines a reasonable accommodation as “some type of change in the way things are normally done at work, such as a different break or work schedule (e.g., scheduling work around treatment), a change in shift assignment, or a temporary transfer to another position.

What if an employer thinks that the use of opioids by an employee poses a safety risk or causes ineffective job performance? An employer never has to lower production or performance standards, eliminate essential functions (fundamental duties) of a job, pay for work that is not performed, or excuse illegal drug use on the job as a reasonable accommodation. The employer will need to have objective evidence that an employee can’t do the job or poses a significant safety risk, even with a reasonable accommodation. To remove an employee from the job for safety reasons, credible evidence must show that an employee poses a significant risk of substantial harm—an employee can’t be removed because of remote or speculative risks. To make sure that it has enough objective evidence about what an employee can safely and effectively do, the employer might ask an employee to undergo a medical evaluation. If a reasonable accommodation would allow an employee to perform the job safely and effectively, and does not involve significant difficulty or expense, the employer must give it. An employer is not allowed to charge an employee for the accommodation.

The EEOC explains that safety concerns can justify a suspension of duties or other adverse employment action if the risk level rises to a “direct threat,” which means a significant risk of substantial harm to the individual or others that cannot be eliminated or reduced to an acceptable level with reasonable accommodation. The EEOC advises that when determining whether an employee poses a “direct threat,” employers need information that will help them evaluate the level of risk presented by a disability, taking into consideration the following factors:

  • probability that harm will occur;
  • imminence of the potential harm;
  • duration of the risk; and
  • severity of the potential harm.

For more information, check out the guidance for small businesses on the EEOC’s website (https://www.eeoc.gov).

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