All posts by stu

Americans with Disabilities Act, Construction, Drug Free Workplace, Employee Policies, Opioids, Safety

How to Handle an Employee Taking Prescription Narcotics (legally)

Many Americans are addicted to powerful narcotics to treat chronic pain.  According to HHS data, opioids were involved in 42,249 deaths in 2016, and opioid overdose deaths were five times higher in 2016 than in 1999.  In 2016, the prescribing rate had fallen to the lowest it had been in more than 10 years, but was still at 66.5 prescriptions per 100 persons (over 214 million total opioid prescriptions annually).  What can employers do to protect themselves from workers who perform dangerous work and may be taking strong narcotics?  There are restrictions from the Americans with Disabilities Act (ADA), but employers must follow a recommended course of action to legally respond to job-related safety concerns.

A recent Ohio case shows employers the roadmap for addressing an employee taking prescribed narcotics (and unprescribed ones) when the employee works in a dangerous environment or has job duties that directly impact safety.  The employee, a manufacturing production manager, worked around heavy machinery for a portion of his day.  The employee regularly took opioids (morphine and Vicodin) for pain management related to his degenerative disc disease and arthritis in his neck and back during working hours.  Some of his painkillers were unprescribed and obtained from co-workers. The employer’s policies required employees to disclose the use of prescription and non-prescription drugs if it affected the ability to perform their jobs safely.  The employee failed to do so.  A co-worker reported his Vicodin use, the employer drug tested the employee – and he tested positive for hydrocodone (the opioid found in Vicodin).  The employee was put on leave to obtain a release from his doctor (and sent to the company EAP).  The employee disclosed his morphine prescription, and the employer informed him to confer with his doctor about alternative treatment options to opioids because he could not remain working while using morphine.  The employee refused and told his employer that he would not stop taking morphine medication.  The employer then terminated his employment.  Of course, the lawsuit followed.

What are an employer’s legal obligations?  Painkillers pose a significant safety risk to employees in dangerous jobs and work environments.   In fact, the label on his prescription morphine warned against operating heavy machinery.  The ADA says that employers must make individualized assessments by reviewing the medication, job duties and work environment (in each case) and not make generalized assumptions about the use of certain drugs without medical evidence.  A blanket “no prescription medication use” rule violates the ADA.  Employers may request an employee to disclose medications that impact safety or negatively impact or restrict their job duties.  Then, when prescription drug use is disclosed, the employer must engage in an interactive process so the employee can explore and discuss alternative treatments with their doctor (to lessen the safety risk) and be forced to disclose the restrictions and impacts of their current medications.  An employee cannot decide unilaterally that he can safely perform his job while using the prescription and his employer should conduct a direct threat analysis before denying him work.  The employee can not impede the employer’s process by refusing to participate in the situation.  An employer is legally permitted to investigate the extent of the employee’s disability (disc disease and arthritis) and to determine whether his disabling pain required the use of prescription morphine, or whether a non-opioid medication or alternative treatment could reasonably accommodate his disability.

Due to the complexities of these situations, employers should speak to an experienced human resources professional or their attorney about these situations, and to develop the written workplace policies that impact opioid and prescription drug use situations.

Discrimination, HR Compliance, I9 Form, Immigration

What employers need to know about DOJ’s Immigrant and Employee Rights (IER) office?

There are many federal agencies that regulate some part of employer conduct.  All employers should know that there is a legal obligation to complete the Form I9 for all new hires (not independent contractors).  When completing the form, an employer must allow a newly hired employee to present any of the lawful documents to show eligibility to work in the United States.  Employers must treat all new hires in a non-discriminatory manner, and cannot ask extra questions, or offer heightened scrutiny to the documents provided by individuals from certain countries.  The Immigrant and Employee Rights Section (IER), enforces the anti-discrimination provision of the Immigration and Nationality Act (INA) and the INA regulations for this law are found at 28 C.F.R. Part 44.

Federal law prohibits: 1) citizenship status discrimination in hiring, firing, or recruitment or referral for a fee, 2) national origin discrimination in hiring, firing, or recruitment or referral for a fee, 3) unfair documentary practices during the employment eligibility verification, Form I-9 and E-Verify, and 4) retaliation or intimidation.

A recent example of enforcement involved a Settlement Agreement with a Florida restaurant (Rustic Inn Crabhouse) in Fort Lauderdale, Florida.  After terminating a new hire that did not present requested documents, the IER completed an investigation into whether Rustic Inn discriminated against work-authorized immigrants by verifying their employment authorization, in violation of the Immigration and Nationality Act (INA).  The restaurant routinely requested that work-authorized non-U.S. citizens present specific documents, such as Permanent Resident Cards or Employment Authorization Documents, to verify their citizenship status information, but did not subject U.S. citizens to such verification.   This is prohibited discrimination based on employees’ citizenship, immigration status or national origin. The restaurant paid a $4,000 civil penalty, as well as train its staff, post notices informing workers about their rights and be subject to IER monitoring for three years.

If you are unsure about how to properly complete the Form I9, or have a question about employment authorization for a new hire, just call our office at 727-350-0370.

 

EEO-1 Form, EEOC, Federal Contractors, HR Compliance

2018 EEO-1 Survey website now open (due March 31)

Starting in February, the EEO-1 Joint Reporting Committee’s website began accepting online submissions of demographic data from qualifying companies.  Earlier, qualifying entities were mailed notices explaining the reporting schedule and instructions.  The 2018 EEO-1 reports (for data in the last quarter of 2017) must be filed by March 31, 2018.

Who is covered? Private employers with 100 or more employees and federal government contractors or primary subcontractors with 50 or more employees and a contract/subcontract of $50,000 or more are required to file the EEO-1 report by federal law.  Employers provide employment data by race/ethnicity, gender, and job categories.  The data is used to develop affirmative action plans and to guide enforcement decisions regarding Title VII of the Civil Rights Act.  Employers with questions about reporting, or if your company reported last year, but did not receive a notification letter from the Joint Reporting Committee should call 1-877-392-4647 (toll-free) or e-mail [email protected].  More information is available on the EEO-1 Joint Reporting Committee website.

1095C form, Affordable Care Act, IRS

Compliance Reminder – March 2 deadline to issue 1095-C forms

At the end of December, the IRS extended the 2018 due date for certain entities to provide 2017 health coverage information forms to individuals.  The IRS maintains an employer resource section for Affordable Care Act (ACA) compliance information.

Insurers, self-insuring employers, other coverage providers, and applicable large employers now have until March 2, 2018, to provide Forms 1095-B or 1095-C to individuals, which is a 30-day extension from the original due date of Jan. 31.

Insurers, self-insuring employers, other coverage providers, and applicable large employers must furnish statements to employees or covered individuals regarding the health care coverage offered to them. Individuals may use this information to determine whether, for each month of the calendar year, they may claim the premium tax credit on their individual income tax returns.

The 30-day extension was automatic, and employers didn’t have to request it. The due dates for filing 2017 information returns with the IRS are not extended. For 2018, the due dates to file information returns with the IRS are Feb. 28 for paper filers and April 2 for electronic filers. Read the full IRS press release.   The tax year 2017 version of IRS Publication 5223 is now available, which sets forth the general rules and specifications for preparing substitute Forms 1094-B, 1095-B, 1094-C, and 1095-C.   Read here.

300 Log, OSHA, Posters, Record Keeping

OSHA 300A Workplace Posting

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 COMPLIANCE REMINDER

OSHA 300A WORKPLACE POSTING REQUIREMENT: FEBRUARY 1st to APRIL 30th

Unless your company employed fewer than 10 individuals at all times throughout 2017, or, your company’s NAICS code is recognized as a “low-hazard” industry by OSHA, your company must maintain a written record of work-related injuries and illnesses on the OSHA’s Form 300.  Additionally, you must then post your 2017 OSHA 300A Summary of Work-related Injuries and Illnesses form by February 1st in a conspicuous location where notices to employees are typically posted.

Have you determined your company’s NAICS code?  If not, then you won’t be able to confirm an exemption.  So it’s time to let go of those old SIC code(s) and identify which 6-digit NAICS code best describes your primary income-producing line of business.  Call us here at ConsultStu if you need assistance.  Once you know your NAICS code, look HERE to determine if you are exempt from OSHA 300 workplace posting.  (Notice that OSHA defines this industry list as “partially” exempt, because certain OSHA exemptions do not apply in cases of employee fatality, in-patient hospitalization, amputation, or loss of an eye.)

If you have more than 10 employees and your NAICS code does not appear on the list, you are required to post the 300A summary data per OSHA regulation.  The easiest thing to do is just print off a signed copy of the 300A log (do NOT include the overly detailed 300 or 301 logs), and attach to the bulletin board in the break room or wherever you display other workplace postings.

If you have any questions about OSHA logs and compliance, OSHA or ITA reporting, or any other workplace posting requirements, ConsultStu is here to assist you!  Call or email us anytime.

Employee benefits, HR software, I9 Form, Social Security card

How HR handles an Employee Name Change

Name changes occur among employees for all kinds of reasons. After marriage, either spouse may elect to change his or her last name, or, both might agree to assume a new hyphenated version. Other scenarios include divorce, religious or gender conversions, or …. just simple dislike of the name one was given. Here is some guidance for you to effortlessly handle employee name changes at your company.

Payroll – Payroll records must match the name on an employee’s Social Security Card. Do not make updates to payroll, withholding, or any IRS-related documents, until a copy of the new SSA card has been provided. Advise employees to download the SSA card application and visit their local SSA office as soon as possible, as it may take an additional 10-14 days to then receive a new card. Unlike almost everything else in our daily lives, there is no online process for SSA name changes, so this link to the SSA office locator may come in handy for your employees.  Not only should a new W-4 withholding form be signed specifying the new name, it’s likely that withholding calculations should be updated to reflect marital status.

Employee Benefits – If an employee name change is related to a qualifying life event such as marriage or divorce, there will be an array of benefits administration tasks required in addition to simply updating the name. Most plans allow sixty (60) days from the date of the life event for enrollment or selection changes. Whether or not changes are made to any benefit programs, an employee’s beneficiary forms should be reviewed and re-signed to minimize confusion and conflict in the event of future claims.

I9 Form – Assuming an employee’s name changes at a time other than during a rehire or re-verification, employers are encouraged to update Form I-9 in the space provided in Section 3, in order to maintain correct information. The employer may ask about the basis of the name change and to request and accept supporting documentation to be used only as evidence of the name change. However, new I-9 documentation to prove eligibility to work in the U.S. may not be requested due to name change only.

Other considerations – (1) update the employee’s email (set up forwarding from old email address, have employee send a name change to all contacts from new email, if forwarding can’t continue indefinitely, provide a transition period during which email is not forwarded but sender receives an auto-reply with new address); (2) implement cross-referencing capabilities in your HR software for continuity of employee records and employment history.

 

Company Culture, Human Resources, Job Description, Performance Improvement Plan, SMART goals

How to Create an Employee Performance Improvement Plan (PIP)

What can be done to improve the performance of a struggling manager, supervisor or employee?  Answer – develop a written performance improvement plan (PIP).  A PIP is an action plan that provides for the four (4) key ingredients to successful employee performance: (1) clear expectations, (2) accurate and specific feedback, (3) solid two way communications and (4) a reasonable timeline to demonstrate performance.  Your employees have the opportunity to succeed when you have the means to hold them accountable for performance.  Your PIP dialogue can explore the reasons for the poor performance (i.e. excuses) – such as lack of appropriate training, unclear expectations of the job, unforeseen roadblocks etc…  Most importantly, you document the performance discussion and clarify that his/her performance must improve by a set date, in a way that can be objectively measured or calculated.  As a manager, you can use a PIP for substandard performance, minor-misconduct or even workplace behaviors that do not match your company’s culture or values.  Lastly, the PIP can also identify the consequences for failing to meet necessary improvements, such as reduction in pay, transfer, demotion, or termination of employment.  So, at the end of the PIP, everyone knows the potential outcome.  Because there are so many great uses for a PIP, let’s explore the steps to effectively implement a performance improvement plan for an employee.

Step 1: Document the Performance or Behavior Issues

Before initiating the PIP process, a manager should document the areas of the employee’s performance that need improvement.  Be objective, factual and specific.  Provide facts and examples to further clarify why it is a problem and needs to be addressed.  Do not nitpick or create a gigantic list, but focus on the main issues and key points.  This is the catalyst for needed action by the employee.

Step 2: Develop your Action Plan using SMART goals

Study the job description, performance goals and key performance indicators (KPIs) for the job.  As the manager, establish the framework for an acceptable action plan for improvement, which may be adjusted based on employee feedback in the meeting.  The employee meeting should be collaborative, with the employee being tasked with developing a plan to meet performance expectations.  The manager will coach the employee if stuck, or if there are legitimate obstacles to success.  Be prepared to clarify any confusion or misunderstanding on the employee’s part, to make sure the employee takes full ownership of the issue and solution in the PIP.  The PIP should include specific and measurable objectives that are built on SMART goals.  Also, make reference to any relevant HR policies that may impact future performance and behavior objectives.

Step 3: Review the PIP and Meet with Employee

Prior to meeting with the employee, the manager can seek assistance from his or her manager or Human Resources to review the PIP.  A third party review will help ensure the documentation is stated clearly, objective and without emotion.  The third party can also review the suggested PIP to make certain it is specific, measurable, relevant and attainable within the PIP timeline.  Provide a reasonable time for employee improvement, such as 30 to 60 days (time period may be longer depending on improvement needed and measurements).  Conduct a collaborative, supportive meeting with the employee to achieve the best chance of success.  The employee must embrace the PIP and agree to work toward goal achievement.  Have employee sign and date the PIP Agreement.

Step 4: Follow up with Performance Check-ins

The employee and manager will agree upon a schedule of regular follow-up meetings (weekly, biweekly, etc..), which should be described in the PIP.  These meetings should discuss and document progress toward goals, and actions taken by the manager to support the employee’s plan.  Ultimately, the employee should use the meetings to seek feedback, check on performance measurements and ask for coaching/training opportunities to strengthen areas of weakness.  The manager is available to remove roadblocks and ensure that employee has the necessary tools.  Progress meetings should be documented and added to the PIP documentation.

At the end of the PIP period, the manager documents progress toward required goals and makes a decision about any follow-up performance actions or consequences.  When the employee has responded positively and is meeting agreed upon objectives, the manager should formally close the PIP and allow the employee to continue employment. If the employee has not met agreed upon goals, then the manager has sufficient documentation to take action.

In January check out our website for the Performance Improvement Plan Agreement template.  Do you need help with a difficult employee performance situation?  Give us a call.

Employee Handbook, Employee Policies, NLRB, Section 7 Rights

New NLRB standard for reviewing legality of Handbook Policies

In December, there was more good news for employers who were hoping that regulators would take a more centrist approach to labor and employment policy.  There was another rollback of an Obama era regulatory interpretation at an agency that had been very activist in the last few years.  In early December, the National Labor Relations Boards (NLRB), with new Trump appointees, changed an important interpretation regarding Employee Handbook rules, and how to determine if they violate federal law.  NLRB decisions impact all employers, even those without unionized employees or collective bargaining agreements.  Under Obama’s NLRB, the agency took an activist approach to the National Labor Relations Act and brought a series of complaints against employers because facially neutral employment policies were alleged to have unlawfully interfered with the exercise of rights protected by the National Labor Relations Act.  For instance, a workplace civility standard could violate legal protections because it might interfere with an employee’s right to disagree or voice displeasure with a company policy.

Under the NLRB’s new standard announced in the Boeing Company decision, when evaluating a facially neutral policy, work rule or handbook provision that could reasonably interfere with the exercise of NLRA rights, the Board will look at two things: (1) the nature and extent of the potential impact on NRLA rights, and (2) the legitimate justifications associated with the rule.

How can your company evaluate the legality of its handbook and workplace policies under this standard?  The Board describes three categories of rules. First, category 1 rules are lawful to maintain because they do not interfere with NLRA rights or the potential impact on protected rights is outweighed by the rule justification.  Two examples at Boeing are the “no cameras” rule and basic standards for civility.  A rule that requires employees to foster harmonious interactions and relationships (or civility) was legally permissible.   The Obama NLRB had ruled that civility standards were illegal.

Category 2 includes rules that require individual scrutiny to determine on a case by case basis as to whether the neutral rule interferes with NLRA rights, and whether the adverse impact on NLRA protected conduct is outweighed by legitimate justifications.

Category 3 rules are unlawful to maintain because they prohibit NLRA protected conduct and the adverse impact on NLRA rights is not outweighed by business justifications associated with the rule.  For example, employees cannot be prohibited from discussing wages and benefits with other employees.

So, the best guidance to employers is to review each proposed workrule, determine if the rule may interfere with NLRA Section 7 rights, and if so, the extent of the overlap.  Each work rule and policy must also have a solid business justification.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR and risk management solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

Human Resources, New Hire, Onboarding, Retention

Jump start your On-boarding program!

In small business, we all wear many “hats”, and are really busy.  Those handling HR duties can easily get overwhelmed by just completing the necessities of HR.  If your company is growing fast or experiences high employee turnover, it may be all you can do to just get new hire paperwork completed.  A lack of attention and appreciation during onboarding leads to bad first impressions for new hires.  Onboarding is more than paperwork, supervisor introduction and review of the Employee Handbook.  Small businesses often neglect to deliver a comprehensive and meaningful onboarding experience for new hires because there is no plan.  HR is just moving the paperwork and the supervisor is not given any guidance or resources to implement the onboarding.  No plan means no consistent and impactful onboarding.  A lost opportunity.  Instead, make new hires feel important and express your gratitude they joined your team.  It’s not hard – here’s how to jump-start your small business onboarding program.  Onboarding is an experience.

First, realize that your business has ninety (90) days to capture the heart and mind of the new hire (whether a minimum wage worker or high priced professional).  A well-developed onboarding process will not fix a “bad hire”, but a successful onboarding program can keep a good hire from leaving.  First impressions count, so don’t mess it up.  Many studies show that the first 90 days is prime time to build relationships with co-workers, managers and the company.  By increasing your support for the new hire, your company will earn a more positive attitude from the new hire.

Second,  your hiring manager needs your company’s help.  Onboarding does not happen by accident.  The socialization and professional support require company support and resources.  Take time to define the expected roles and responsibilities of the hiring manager with each new hires.  Will your company also assign a co-worker buddy?  Is there a formal structure for check-ins between the hiring manager and new hire? How will you teach the new hire about your culture and company values?  Build a plan and then first train your hiring manager about the onboarding process.

Third, take action to create a feeling of social acceptance by the new hire.  Include them in the existing professional and personal networks at work.  Invite them to connect on Facebook, Linkedin or other social media sites.  Learn about their interests and show them how they can connect with co-workers of similar interests.  After work events, company sponsored teams and happy hours. Also, use company successes as another chance to connect together.

Fourth, help your new hires by clearly defining their job duties and performance expectations.  Have an up-to-date job description and also share the key performance indicators (KPIs) for the position.  Conduct regular performance discussions (30-60-90 day) that include both recognition and developmental counseling.

Fifth, recognize that the hiring manager is busy and the company must support their role in the onboarding process.  How can you motivate your hiring manager to successfully support the onboarding process?  A survey of engineers showed that hiring managers look for clues from new hires to see if they are committed to the job – and if so, they are more likely to be helpful and make connections.  So, new hires that are trained to be pro-active and vocal, will help support a successful onboarding process.

Sixth, create ancillary onboarding materials and information sheets to help your new hires.  Information sharing and knowledge is a company value.  Use various techniques for learning including self-learning, informal OJT and formal or computer based training.  Employees can be encouraged to do their part in advancing their knowledge and skills.

Seventh, communicate your entire employment proposition during the onboarding.  Wages and benefits are important (and need to be competitive) but don’t forget about core skill training.  Teaching new hires about the “how” and “why” is a proven way to engage employees.  A mentoring program can help these learnings take place.

Develop your plan, implement your process and invest in your new hires relationships.

 

 

Bonuses, Compensation, Department of Labor, Holidays, IRS

It’s Holiday Bonus time! 4 compliance tips for Employers

Many companies provide a holiday/Christmas bonus or year-end bonus to some or all employees in December.  There are several important rules about bonuses that every employer needs to know.  When planning your bonus plan, and calculating a budget, consider the following important reminders:

  • Bonuses that are discretionary (meaning, the company decided the amount and timing without making previous promises to employees about the specifics), are excludable from non-exempt/hourly employee’s calculation of overtime rate.  Written bonuses programs that provide a roadmap for employees to know exactly how to earn the bonus are not considered discretionary.  The Department of Labor rule about non-discretionary bonuses (and how to properly calculate OT if a bonus is paid) can be reviewed here.  DOL also states that gifts and payments in the nature of gifts on special occasions may be excluded from overtime calculation.
  • If the company is paying different bonuses amounts to employees, the company should have non-discriminatory reasons for the decision.  The bonus may be based on performance, employee classification, length of service, location or department – or other non-discriminatory bases.  If someone complains, you have your support.
  • Are your company’s bonus or gift excluded from federal and state taxes? In most cases, the answer from the IRS is “no.”  IRS publication 5137 states that de minimis gifts may be excluded from taxation, including holiday gifts. An essential element of a de minimis benefit is that it is occasional (or unusual) in frequency and the value is not too large.  It cannot be disguised compensation.  If a holiday bonus is too large to be considered de minimis, the entire value of the benefit is taxable to the employee, not just the excess over a designated de minimis amount. The IRS has ruled previously that items with a value exceeding $100 could not be considered de minimis, even under unusual circumstances.
  • What about gift certificates? The IRS says that cash or cash equivalent items provided by an employer are never excludable from income. An exception applies for occasional meal money or transportation fare to allow an employee to work beyond normal hours. Gift certificates that are redeemable for general merchandise or have a cash equivalent value are not de minimis benefits and are taxable.  A certificate that allows an employee to receive a specific item of personal property that is minimal in value, provided infrequently, and is administratively impractical to account for, may be excludable as a de minimis benefit, depending on facts and circumstances.

Check out the DOL and IRS rules to make sure your holiday good tidings do not become a headache.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR and risk management solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

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