All posts by stu

Americans with Disabilities Act, Commercial Motor Vehicle Driver, FMCSA, Opioids, Safety

CDL Drivers and Prescription Medication

It’s okay for employees to take medication when properly prescribed by a licensed physician, right?  Yes.  But that doesn’t always mean they can still legally qualify to drive CMVs.  Florida employers should be aware that certain medications can disqualify a CDL driver.  And trust us on this …  the best time to find out that one of your drivers has become medically unqualified to drive is BEFORE they have an accident!

While we all know that drivers can’t take illegal or unprescribed controlled substances, navigating the implications of legitimate medical conditions and medications can be tricky.  First of all, learn which medications disqualify a CMV driver.  Any anti-seizure medication used for the prevention of seizures is disqualifying.  Methadone is also an automatic deal-breaker.

Many more prescription medications, as identified in 21 CFR 1308.11 (391.42(b)(12), or any other substance such as amphetamine, a narcotic, or any other habit-forming drug, are considered “by default” medically unqualifying.   However, if the prescribing doctor will issue a written opinion that the patient can safely conduct commercial driving while taking the medication, the Medical Examiner may (but is not compelled) to certify the driver.  The Medical Examiner is entrusted with considerable leeway in case-by-case evaluations, and other actions available to them include issuing a temporary suspension of a medical certificate, or, qualifying a driver but shortening the expiration period down from the standard 24 months in order to monitor an on-going health concern.

No matter when a medical certificate is set to expire, if any new diagnosis occurs that creates a physical or mental impairment of normal duties (whether such impairment is attributable to the disease or required medication), the driver may be considered unqualified to drive until a new examination and re-certification is completed.

Construction, Fall Protection, OSHA, Safety

Two Florida Contractors Hit with Big OSHA Fines

In the last 2 weeks, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has issued big citations against two Florida contractors.  On August 29, OSHA cited Coastal Roofing Inc. for exposing employees to fall and other hazards at a St. Johns, Florida, worksite. The Jacksonville-based roofing company faces $105,283 in proposed penalties.  OSHA investigated the company as part of its Regional Emphasis Program on Falls in Construction. and Coastal Roofing was cited for (1) failing to ensure employees utilized a fall protection system; (2) failing to ensure employees utilized eye protection; and (3) not extending a portable ladder 3 feet above the roof landing.

Two weeks earlier, G&H Underground Construction was cited $57,738 after an employee received a severe laceration to his neck when his concrete saw kicked back while cutting concrete pipe.  OSHA’s St. Augustine cited the construction company for failing to provide eye and face protection, failing to train employees on operating equipment, and not inspecting equipment for damages and defects.

Is your company prepared for an unexpected accident, employee injury or OSHA visit to your construction site?  Today, fall protection is a huge focus for OSHA and every contractor must know and adhere to the safety regulations affecting employees working at heights.  Workers who work six feet or more above lower levels are at risk for serious injury or death from falls, and the OSHA construction standards require that fall protection must be used.  OSHA has additional standards for scaffolding, use of ladders and working in aerial lifts and scissor lifts.  Read more about OSHA’s fall prevention campaign, including training materials and fact sheets.

What is the six-foot rule in construction?  OSHA Subpart M requires the use of fall protection when construction workers are working at heights of 6 feet or greater above a lower level. However, it also applies at heights of less than 6 feet when working near dangerous equipment, for example, working over machinery with open drive belts, pulleys or gears or open vats of degreasing agents or acids. Click here for the Fall Protection in Construction booklet.

Construction, Employee Policies, OSHA, Safety

Hot Summers and Contractor Heat Illness Prevention plans

Florida construction is booming – and thousands of construction workers are working under the scorching summer sun.  Florida heat can be intense and dangerous. Forty (40) percent of heat-related deaths happen in construction.  With the quick rise in construction employment, there are many new workers who may not be used to working under the Florida sun.   Contractors should recognize that it takes time for new employees (and especially those with weight and medical conditions) to acclimate to working under the Florida summer sun.  To educate contractors, OSHA has created some great resources for your company on how to create a Heat Illness Prevention Plan.  Employers are responsible to educate workers on the dangers of working in high heat and implement actions that control the risks.   Construction related employers have learned how to protect workers from heat. It comes down to three keywords – Water. Rest. Shade.

  • Heat illnesses can affect anyone, regardless of age or physical condition.
  • Employers are responsible to protect workers: Under OSHA regulations, employers are responsible for protecting workers from extreme heat. An employer with workers exposed to high temperatures should establish a complete heat illness prevention program.  Read heat index guide for employers.
  • Provide workers with water, rest and shade.
  • Adjust work practices.  Allow new or returning workers to gradually increase workloads and take more frequent breaks as they acclimatize, or build a tolerance for working in the heat.
  • Plan for emergencies and train workers on prevention.
  • Monitor workers for the symptoms of heat-related illness in yourself and others during hot weather. Plan for an emergency, learn first aid and know what to do — acting quickly saves lives.

Read more about heat stress from the University of Florida – IFAS Extension.  If your company needs assistance with setting up a heat illness prevention plan, just give us a call.

Compensation, HR Resources, Human Resources, Social Security card

Your Online Social Security Account: Claim It or Block It!

Did you know that the Social Security Administration offers online accounts that allow the public to view and track all that information that we used to receive once a year via a paper Social Security Statement that was delivered to our mailbox?  The service is called “My Social Security,” and it can be a useful resource for retirement planning, income and contribution verification, benefits management, and identity protection.

One good reason to sign up for your “My Social Security” account is to prevent anyone else from trying to claim an account associated with your social security number.  When you apply, you will have to validate your identity by answering questions generated from your history of legal transactions and credit relationships.  Upon successful identity testing, you will receive an activation code to create your online account.  For those of us who can’t remember what they ate for lunch, much less an old address or mortgage lender you haven’t used since the late 90’s …  don’t worry, an account may also be opened by visiting your local SSA office in person.

Once an account is activated, people who are not yet collecting any benefits can keep track of earnings and track their estimated future retirement, disability, or survivor benefits.  The Social Security Administration recommends that contributors review their posted earning once a year and verify for accuracy.   When planning for retirement, keep in mind that the projected benefits are only estimates, based on future earnings continuing at the same rate as the last reported year, adjusted for average wage growth.  The less stable your career path, and the earlier you start tracking your earnings history, the more fluctuation you should anticipate.

Once you become eligible for benefits, your actual payment amount will be calculated on your top 35 years of earnings.  The amounts of money you earned in previous years are indexed for inflation so that they can be effectively ranked along with your most recent earnings.  Checking in once a year will help you formulate an increasingly accurate projection as you advance toward retirement age.

If you are already collecting benefits or have Medicare, you can use “My Social Security” to perform several administrative functions, such as accessing tax forms, updating address and phone numbers, managing direct deposit of payments, or request a replacement Medicare or Social Security card.   Avoiding a trip to the local Social Security Administration office in person is a time-and-hassle saver we can all appreciate.

But what if,  for whatever reason …  you simply do NOT want to conduct any online business with the Social Security Administration?  The best approach is to proactively BLOCK access to My Social Security.  This is similar to putting a freeze on your credit reporting, and will ensure that nobody can come along without your knowledge to activate your account fraudulently.  Blocking is especially recommended in cases of domestic violence or during times of contentious family conflict or divorce, because family members with intimate knowledge of your life and history are much more likely to be able to pass the self-identification testing than a stranger.   You can always remove the block later on, if you decide to participate in online account management.  So … if you have not already signed up for My Social Security, now is the time to make a choice about the online account waiting for you.  Either claim it or block it!

 

Company Culture, Hiring, Recruiting, Social Media

6 Steps to Kick Start Social Media Recruiting at your Small Business

We all know that the Florida economy is steaming ahead and your best candidates are definitely working for another employer. How can you recruit them? The good news is that when there’s a job you need to fill, it’s likely the right candidate is on social media right now. Even if they are not looking for a new job, your social media activity might interest them in your opening. If your company does not use social media, you are likely missing out on some fantastic job candidates – regardless of industry. So, it’s time to double down on your efforts, think creatively and take action to attract and retain employees on relevant social media platforms. It’s a great way to engage with candidates and to show off your company culture. It was reported somewhere that more than half of resumes originate from social referrals. So, here are 6 steps to start using social media recruiting at your small business.

Step 1 – Google your business (and key employees). What comes up? When people are looking for new jobs they will likely investigate your company before submitting an application or resume. Check out your online footprint and encourage your key employees to have a current and professional LinkedIn profile.

Step 2 – Get your company online.  It is critical to create and maintain up-to-date company profiles on the Big 5 platforms for online recruiting: Facebook, Twitter, LinkedIn, Instagram and Google+. Occasionally post an interesting article, press release, employee news or a company picture. A great profile for your company is essential as well as this is your “face” to potential candidates. Show your company culture through the information you chose to post. LinkedIn uses your description text to help people find you and Google uses text from LinkedIn pages to decide where they’ll show in search results. Fill out your description fully, using keywords so your company can get found on LinkedIn. Don’t forget images for your LinkedIn page.

Step 3 – Build your online reputation. For instance, if your company uses Indeed, the largest job posting aggregator, for job postings – check out your Company’s Indeed comments. Seek to obtain online feedback, reviews and comments from customers, employees and applicants. Places like Google, Yelp, Bing, Angie’s List can be excellent locations for driving attention to your website. Regularly ask for customer ratings and feedback.

Step 4 – Post your openings and get your employees involved. When you post your positions on various social media sites, direct them to your website or the official job listings. Encourage employees to share cool company content in order to showcase why your company is a good place to work. For instance, are you starting a new project, landed a new client, announcing a cool employee reward or incentive, fun employee outing? Also, ask employees to share your new job openings with their friends and connections. Connect your referral incentive program so that social media referrals also qualify for the referral bonus.

Step 5 – Locate, reach out and connect with potential candidates using Linkedin. Use filtering to identify qualified candidates and then send a personal message to the candidate and mention a factoid from their profile that interested you, and why they might be a good fit for your company. Check and see if they have their “I’m interested” in recruitment flag on their profile. If not interested right away, always ask if they know someone that might be a good fit for the position. Keep building your connections and rapport.

Step 6 – Use hashtags across social media. Well written hashtags will help qualified candidates find your messaging. Develop a recruiting or job opening hashtag. For instance – #job, #jobs, #jobsearch, #careers or #jobopening. Or use specific career hashtags such as #engineers #craneoperator #projectmanager #cpas. Then add a location hashtag #tampa #stpete #orlando. For example: add the following: #jobopening #juniorengineer #tampa

Send us your small business social media success stories to [email protected] or other suggested techniques for using social media to recruit effectively.

Drug and Alcohol, Drug Free Workplace, Medical Marijuana

How will your drug testing lab handle medical marijuana results?

Now that medical marijuana is legal in Florida, there is a good chance that your company will have an applicant or employee test positive for marijuana, and then present proof that they have a valid registration with the Office of Medical Marijuana. Is that drug test reported as positive or negative by your testing lab?  I was curious, so I contacted our Medical Review Officer (MRO) and third-party testing company to find out their protocol. Here is what we learned.

Although marijuana is legal for qualified Floridians, marijuana is still illegal under federal law. As a result, our testing lab will continue to process a positive marijuana drug test as a “Fail” for a positive finding. However, our drug testing vendor stated that the MRO has the ability to collect and notate information about any medical prescription (or the marijuana registry). The results collectively will go to the company and each employer can make their own decision on how to navigate the state/federal discrepancy.

As we watch and wait for the issue of state-approved medical marijuana to play out in future court challenges, check with your drug testing lab today to see how your lab will handle this special situation.  Florida Statute 381.986 has thus far supported the right of employers to treat a positive marijuana test as a violation of your drug-free workplace.   Employers are not required to accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana, nor do the new laws “create a cause of action against an employer for wrongful discharge or discrimination.”  Click here to read the entire statute and continue to follow our ConsultStu blog page for any updates.

EEOC, Harassment, Investigations

Who’s telling the Truth in “He said, She said” Harassment Complaints

In many harassment complaint cases, there are no witnesses and an investigator is left with the statements of harassment from the complainant and the denial from the alleged harasser. When there are conflicting versions of events, an investigator must review relevant factors to help determine who may be telling the truth. It is important for an investigator to make a conclusion about the allegations and decide whether there was a violation of the company’s harassment policy occurred and recommend corrective action to address the violation and/or prevent violations in the future. Fortunately, the Equal Employment Opportunity Commission (EEOC) provides several factors that can be used by investigators to assess the credibility of employees (or others) involved in a complaint or grievance.  It is important to remember that the investigation is trying to determine the facts by a preponderance of the evidence (more likely than not), and not beyond a reasonable doubt.  If the primary evidence is the testimony of the victim (no witnesses), and the alleged harasser denies the allegations – the investigator can ensure that he/she fairly and independently reviews the complaint and respects the right of the harasser to be confronted with the allegations.  Examine the following factors, while at the same time look for signs that a witness may be lying, exaggerating or being deceptive.

Evaluating Credibility

  • Inherent plausibility: Is the testimony believable on its face? Does it make sense?
  • Demeanor: Does the person seem to be telling the truth or lying?
  • Motive to falsify: Does the person have a reason to lie?
  • Corroboration: Is there witness testimony (such as testimony by eye-witnesses, people who saw the person soon after the alleged incidents, or people who discussed the incidents with him or her at around the time that they occurred) or physical evidence (such as written documentation) that corroborates the party’s testimony?
  • Past record: Does the alleged harasser have a history of similar behavior in the past?

None of the above factors are determinative as to credibility. For example, the fact that there are no eye-witnesses to the alleged harassment by no means necessarily defeats the complainant’s credibility, since harassment often occurs behind closed doors. Furthermore, the fact that the alleged harasser engaged in similar behavior in the past does not necessarily mean that he or she did so again. EEOC Guidance.

Interview, not Interrogation

Your investigation should involve interviews, not interrogations.  Interviews are taken with willing witnesses, who are prepared to tell you what they know.  For reluctant witnesses, build rapport by (1) asking general open-ended questions; (2) explaining the advantages of cooperation; (3) outlining necessity to cooperate; (4) empathizing and be non-judgmental; and (5) let them explain their side of the story.

How to Spot Deception (American Psychological Association)

  • Encourage interviewees to talk while an interviewer slowly reveals evidence.
  • Consider initially withholding some evidence until later in the interview, to give the person a chance to either not answer, or blatantly lie about something.
  • Encourage a witness to say more during their interviews.
  • Ask a witness to tell their story in reverse order.
  • Ask unexpected questions in the interview – surprise questions can leave them floundering for a response or contradicting themselves.
  • A liar may use more single-syllable words, repeat particular words or use words that convey uncertainty, such as “might” instead of “will.” (Read more)

Misconceptions about Lying (Not necessarily signs of Lying)

  • Crossing arms
  • Lack eye contact, looking away, shifting eyes
  • Movement (fidgeting, scratching, picking hands, tapping foot)
  • Sweating or nervousness
  • Ums, ahhs – filling pauses

Clues to Spot Liars: an ABA article offered ways to spot liars (from Cynthia R. Cohen, Ph.D)

  • Affect (change in demeanor) differs than normal baseline
  • Smiles inconsistent with emotion; micro expressions revealing inappropriate emotions
  • Outward signs of fear or guilt – such as higher pitch, faster/louder speech, speech errors, indirect
    speech
  • Gesture slips (e.g., shoulder shrugs)
  • Shifting eyes if linked to other signs
  • Length of answers, details
  • Can’t tell the story backward
Child labor, Construction, Department of Labor, Employment Poster, Posters

Can a 17 year old work at a construction site?

With the shortage of construction labor (skilled and unskilled) in Florida and the beginning of the summer, construction employers are looking at any and all available labor sources. Is your company looking to hire a high schooler this summer?  Before your construction company hires a 16 or 17-year-old to work, make sure your company reviews the Florida child labor rules and federal restrictions because there are several hazardous occupations that cannot be performed by a minor. Here is a quick review of what construction companies need to know about child labor for the summer (school is out).

  1. No work permit is required n Florida.
  2. School is not in session so there is no limit on the number of hours a 17-year-old can work per day.  However, no more than 6 consecutive days in any one week.
  3. Minors must be given a 30-minute uninterrupted break every 4 hours.
  4. If under 18 years old, a minor may not do the following hazardous activities:
    • operating a motor vehicle;
    • working on scaffolding, roofs or ladders above 6 feet
    • demolition or excavation work
    • operating a circular saw or band saw
    • working with compressed gasses exceeding 40 p.s.i.
    • working around toxic substances, corrosives or pesticides
    • working with electrical apparatus or wiring
    • Operating earthmoving equipment, forklifts or any moving machinery

What if the child labor regulations are violated? Under the Fair Labor Standards Act (FLSA) the penalties for violating a child labor restriction is subject to a penalty of $11,000 per violation.  Under Florida law, a violation is subject to a fine of $2,500 per offense and/or be guilty of a second-degree misdemeanor.  In addition, if an injured minor is employed in violation of any provision of the child labor laws, an employer is subject to up to double the compensation otherwise payable under Florida’s workers’ compensation law.  If minors are employed, an employer must also post the federal and Florida child labor poster in a conspicuous place on the property, or place of employment, where it may be easily read.

Bonuses, Compensation, FMLA, Leave of Absence, Payroll

Equivalent Job Restoration and Bonuses for Employees taking FMLA

When an employee returns from FMLA leave, he or she must be restored to the same job that the employee held when the leave began or to an “equivalent job.” The employee is not guaranteed the actual job he or she held prior to the leave. An “equivalent job” means a job that is virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions (including shift and location).

Equivalent pay includes the same or equivalent pay premiums, and the same opportunity for overtime premium pay as the job held prior to FMLA leave. An employee is entitled to any unconditional pay increases that occurred while he or she was on FMLA leave, such as cost of living increases. In addition, an employer must give pay increases conditioned upon seniority or length of service if employees taking the same type of leave (i.e., paid or unpaid leave) for non-FMLA reasons receive the increases.

Equivalent pay also includes any unconditional bonuses or payments. If a bonus is conditioned on achieving a specified goal, such as hours worked or products sold, and the employee does not meet the goal due to FMLA leave, payment of the bonus is not required unless the employer pays it to employees taking the same type of leave for a non-FMLA reason. If the employer pays the bonus to such employees taking leave for a non-FMLA reason, it must also pay the bonus to an employee taking FMLA leave. So, when an employee is substituting PTO or sick leave during FMLA, the employee would likely be eligible for bonuses, but when the employee is in an unpaid status, he/she is usually not eligible.  Review company policies and practices to determine your specific situation.

Download the Employer’s Guide to FMLA for more answers from the DOL to common situations.

Hiring, I9 Form, Immigration, IRS, Social Security card

Can employers accept an ITIN card?

What is an ITIN Number?

An ITIN is a nine-digit number issued by the U.S. Internal Revenue Service (IRS) to individuals who are required for U.S. federal tax purposes to have a U.S. taxpayer identification number but who do not have and are not eligible to get a social security number (SSN).  The ITIN is a tax processing number issued by the Internal Revenue Service (IRS) to ensure that people – including unauthorized immigrants – pay taxes even if they do not have a Social Security number and regardless of their immigration status. Fact Sheet about ITINs.

Can a Person Get Hired with an ITIN card?

ITIN is for federal tax reporting only and is not intended to serve any other purpose.  An ITIN does not authorize work in the U.S. or provide eligibility for Social Security benefits or the Earned Income Tax Credit.  ITINs are not valid identification outside the tax system.  The ITIN card is not a valid document listed on either List A or List B of the Form I9.

What is the IRS Guidance on ITINs?

Do not accept an ITIN in place of an SSN for employee identification or for work. An ITIN is only available to resident and nonresident aliens who are not eligible for U.S. employment and need identification for other tax purposes. You can identify an ITIN because it is a 9-digit number, beginning with the number “9” and is formatted like an SSN (NNN-NN-NNN). Note: An individual with an ITIN who later becomes eligible to work in the United States must obtain an SSN.  Click here for more IRS info.

 

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