All posts by stu

“No pants” religious belief required accommodation by Employer

November 17, 2016 stu

COLUMBIA, S.C. – Akebono Brake Corporation, a Michigan-based company that designs and manufactures automotive brake components, was alleged to have violated federal law when it refused to hire a temporary laborer because of her religion, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today. The EEOC charged that the company discriminatorily interfered with the temporary laborer’s employment opportunities with her direct employer, a temporary labor service provider.

Clintoria Burnett is an observant member of the Apostolic Faith Church of God and True Holiness, a Pentecostal Christian denomination. Burnett holds the religious belief that she cannot wear pants because she is a woman, and that she is commanded to wear skirts or dresses. Burnett was hired as a temp to work at Akebono’s West Columbia, S.C. Even while she was temping, Akebono maintained the ultimate authority to deny hire to any employee recruited by the TLSP. Burnett was hired by the temp firm to work at Akabono, but the company maintained a dress code policy requiring employees to wear pants while at Akebono’s facility. Ultimately, Akebono directed the temp company not to hire Burnett due to her religious belief and the Company did not consider any potential religious accommodations. The temp agency withdrew her offer of employment.

Title VII of the Civil Rights Act of 1964 prohibits employers from refusing to hire people because of their religion. Unless it would be an undue hardship on the employer’s operation of its business, an employer must reasonably accommodate an employee’s religious beliefs or practices. The EEOC filed suit in U.S. District Court for the District of South Carolina, Columbia Division (EEOC v. Akebono Brake Corporation, Civil Action No. 3:16-cv-03545-CMC-SVH). When an employee or applicant needs a dress or grooming accommodation for religious reasons, she should notify the employer that she needs such an accommodation for religious reasons. If the employer reasonably needs more information, the employer and the employee should engage in an interactive process to discuss the request. If the request does not pose an undue hardship on the business, the employer must grant the accommodation.

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 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

Overtime, Record Keeping, Salaried employees, Wage and Hour

Paying all Workers only fixed salaries leads to $424k back wage settlement

November 11, 2016 stu

An Orlando based plastic recycling company agreed to pay $424,000 in back wages to almost 200 employees after a Department of Labor investigation alleged violations of the Fair Labor Standards Act (FLSA). The investigation revealed that Ravago Americas LLC failed to pay overtime to employees and failed to record and track employee work time. The investigation was performed by the Wage and Hour Division, Jacksonville District Office.

The employer paid workers fixed salaries, based upon a 40 hour workweek, without regard to how many hours they actually worked. When employees performed work before their shifts, after their shifts, during their meal breaks, and/or at home, those hours were neither recorded nor paid for. This practice created an overtime violation when the unpaid time pushed workers’ totals beyond 40 hours in a workweek, and no overtime premium was paid. The company also failed to maintain required time and payroll records. After the investigation, the company agreed to: (1) pay $424,537 in back wages to 195 employees and comply with the FLSA in the future; (2) install an accurate time-keeping system to capture daily start and end times of employees; (3) include an accurate record of hours worked on pay stubs for all nonexempt personnel; (4) perform enterprise-wide training with all managers and employees on proper clock in/out procedures on installed time-keeping system, employee rights regarding compensable and non-compensable time; and (5) the proper procedures to correct inaccurate payroll caused by a time-keeping error.

Simply paying an employee a salary does not necessarily mean the employee is not entitled to overtime. Other businesses, who may be paying in the same manner, should take note. Also, it is important to remember that the DOL Salary rule change takes effect on December 1, 2016. An employee is exempt from both minimum wage and overtime pay requirements when they are employed in bona fide executive, administrative, professional and outside sales positions, as well as certain computer employees. To qualify for exemption, employees generally must meet certain tests regarding their job duties and be paid on a salary basis at not less than $913 per week (updated by Final Rule) as of Dec. 1, 2016.

Department of Labor, Employee benefits, HR Compliance

Current model #CHIP Notice extended through November 30, 2016

November 10, 2016 stu

Employers that provide medical insurance to employees in states with premium assistance through Medicaid or Children’s Health Insurance Program (CHIP) must inform employees about the potential opportunities for assistance in obtaining coverage. This is usually accomplished by providing a notice annually at the time of open enrollment, and then added to the new hire benefit orientation package. Recently, the U.S. Department of Labor has extended the effective date of its model Employer Children’s Health Insurance Program (CHIP) Notice through November 30, 2016 (even though the current model notice had been scheduled to expire on October 31, 2016). Click here for the Spanish CHIP Model form.

The model notice gives employees information about the applicable state’s CHIP program, on and how employees can contact their state for additional information and how to apply for premium assistance. The model notice contains information current as of July 31, 2016.

EEOC, Medical Exams, New Hire

Required Post Offer Medical Examination leads to EEOC Lawsuit

November 8, 2016 stu

A Southern Indiana manufacturing services company refused to hire or provide reasonable accommodations to a class of job applicants because of medical information it obtained during pre-employment medical examinations, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed on October 19, 2016.

According to EEOC’s lawsuit, Chemtrusion, Inc. made job offers to experienced, qualified applicants which were conditioned on successful completion of a medical examination. Chemtrusion summarily withdrew the job offers upon receiving notice of medical impairments and/or the lawful use of prescription medication without individualized analyses or good faith effort to determine whether reasonable accommodations existed. In so doing, Chemtrusion was alleged to have violated the Americans with Disabilities Act (ADA). EEOC filed suit (Case No. 4:16-cv-00180) in the U.S. District Court for the Southern District of Indiana, New Albany Division. The agency is seeking back pay, compensatory and punitive damages, and injunctive relief to prevent the Company from rejecting qualified individuals on the basis of disability or from failing to engage in an interactive dialogue to determine if a reasonable accommodation exists to enable applicants to perform the job for which they received a conditional job offer.

Based on earlier EEOC cases, employers using medical examinations should conduct a functional job analysis and create written job descriptions for each position subject to a post-offer medical examination. Employers are directed to individually assess whether an applicant’s medical impairments or medications prevent that applicant from performing essential job functions with or without a reasonable accommodation before rejecting an applicant because of a mental or physical impairment. Blanket rejections based on a medical condition does not meet the ADA interactive process requirements. The same concepts will apply to the use of a post offer medical questionnaire.

8(a)(1), Concerted Activity, Dress Code, NLRB

Firing an employee for discussing work warning with a co-worker is illegal

October 24, 2016 stu

A staffing company learned an expensive lesson after it questioned and then terminated an employee (administrative assistant to the branch manager) who complained to a co-worker about unfair application of the company dress code policy. The employee felt her discipline was unfair (because other similarly dressed employees were not disciplined) and she told a co-worker that she was thinking about bringing her complaint to a higher level of management (over the head of the local branch manager). The co-worker later informed human resources about the conversation and complained that the employee had been disrupting his work. The branch manager was informed, and he decided to terminate the employee (who had several other write ups for rule and policy violations). He questioned her about the conversation with the co-worker and told her that she put the other employee in a “bad spot,” and that she should have complained to him instead. The employee’s termination letter stated that she was discharged for being unprofessional, as well as attitude, dress code and negativity to other staff and corporate representatives. UniQue Personnel Consultants, Inc. (25-CA-132398; 364 NLRB No. 112).

A unanimous National Labor Relations Board panel concluded that the Company violated Section 8(a)(1) of the NLRA by instructing an employee not to discuss her terms and conditions of employment with other employees, customers, or the general public, and by threatening her with legal prosecution if she discussed her terms and conditions of employment further. A majority of the Board also concluded that the Company violated labor law by discharging the employee because of her protected concerted activity and by interrogating her about that activity. It was legally protected conduct for the employee to solicit a coworker’s advice and support regarding how to respond to her discipline. This was concerted activity and undertaken for the purpose of mutual aid or protection.

The Board’s Order required that the complaining employee be reinstated to her former position and make her whole for any loss earnings and other benefits lost as a result of the discrimination – and remove any reference to her termination in company records. The company was required to post a notice stating that it shall cease and desist from instructing employees not to talk to or discuss with other employees, customers or the general public their terms and conditions of employment. The company also had to rescind a letter sent to the local police department threatening employees with prosecution if they discussed working conditions with employees, customers or the public.

Do not question, discipline or terminate employees that voice disagreement with company policies with co-workers, or seek the support of co-workers to dispute instances of workplace discipline. An employee is protected when he/she communicates with co-workers about work issues and seek mutual aid, protection and support. These legal protections exist in both union and non-union workplaces.

Accommodation, Construction, EEOC, Religion

Mandating Saturday work to employee costs Ready Mix Concrete company $42,500

September 24, 2016 stu

With the busy #construction season in full gear, many companies ask employees to work on weekends and nights. #HR What happens when an employee is asked to work a Saturday shift and he turns it down because he says his faith does not allow him to work on the Sabbath? A Greenville, NC ready mix concrete company recently agreed to pay a $42,500 settlement to an employee that refused to work on Saturday because he was a Seventh Day Adventist. The EEOC initiated legal action against Greenville Ready Mix Concrete for allegedly violating Title VII of the Civil Rights Act when it refused to accommodate the employee’s religious beliefs and then fired him.

What happened? The employee had worked at the company for 7 years as a truck driver. In February 2014, the employee was baptized as a Seventh-day Adventist. His faith required him to refrain from working for hire on Saturdays, specifically from sunset on Friday to sunset on Saturday, in observance of the Sabbath. The Company’s facilities were usually closed on Saturday and he was not normally scheduled to work on Saturday. About one month after the conversion to his new faith, the Company asked him to work on a Saturday. The employee refused to work and was later discharged.

Title VII of the Civil Rights Act of 1964 requires employers to make reasonable accommodations to sincerely held religious beliefs of employees absent undue hardship (more than a minimal burden on the operations of the employer’s business). It does not matter that the employee had recently converted to a new religion, or that he had been able to work occasional Saturdays in the past. According to the EEOC, examples of some common religious accommodations include flexible scheduling, voluntary shift substitutions or swaps, job reassignments, and modifications to workplace policies or practices. An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.

Construction, Independent Contractor, Wage and Hour

Plastering contractor misclassified workers from labor “broker”

September 10, 2016 stu

The Wage and Hour Division in Louisiana announced a recent settlement with Brownlow Plastering LLC in Hammond, LA regarding violations of the overtime and recordkeeping provisions of the Fair Labor Standards Act (FLSA). The Company misclassified its workers as independent contractors (instead of employees) and failed to pay overtime. The company agreed to pay $365,291 in overtime wages to 147 employees, and also sign an enhanced compliance agreement.

The investigation revealed that the labor broker used by the contractor was an employee working directly for Brownlow Plastering. Workers hired by the “broker” to work for Brownlow were, in fact, direct employees. The labor broker only worked and provided services for Brownlow (as did the other workers). None of the workers were in business for themselves, Brownlow bid all the work and supplied all the materials. Brownlow paid workers fixed hourly rates determined by the company. They were not independent contractors just because they were recruited through a labor “broker.”

According to the DOL, the FLSA defines “employ” as including to “suffer or permit to work”, representing the broadest definition of employment under the law because it covers work that the employer directs or allows to take place. A number of “economic realities” factors are helpful guides in resolving whether a worker is truly in business for himself or herself, or like most, is economically dependent on an employer who can require (or allow) employees to work and who can prevent employees from working.

Factors to consider when determining an employment relationship:

Extent to which the work performed is an integral part of the employer’s business.
Whether the worker’s managerial skills affect his or her opportunity for profit and loss.
The relative investments in facilities and equipment by the worker and the employer.
The worker’s skill and initiative.
The permanency of the worker’s relationship with the employer; and
Nature and degree of control by the employer.

Signing an independent contractor agreement that does not reflect the realities of the relationship is not the controlling factor Contractors using misclassified workers are also in violation of state workers’ compensation laws and unemployment taxes, as well as federal FICA obligations.

EEOC, Employee Rights, Retaliation, Title VII

EEOC Issues Final Guidance to Employers on Retaliation and Interference

August 30, 2016 stu

#HR and #floridacontractors, be aware that on August 29, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) issued final Enforcement Guidance on retaliation and related issues. Federal EEO laws prohibit employers from punishing job applicants or employees for asserting their rights under the discrimination and harassment laws. Asserting EEO rights is called “protected activity.” Sometimes there is retaliation before any “protected activity” occurs. For example, an employment policy that discourages the exercise of EEO rights could itself be unlawful. Small Business Fact Sheet on Retaliation.

Protected actions can take many forms, ranging from participating in an EEO complaint process to reasonably opposing discrimination. For example, it is unlawful to retaliate against applicants or employees for (among other things) taking part in an internal or external investigation of employment discrimination, including harassment; filing or being a witness in a charge, complaint, or lawsuit alleging discrimination; or for communicating with a supervisor or manager about employment discrimination, including harassment; asking managers or co-workers about salary information to uncover potentially discriminatory wages; refusing to hire an applicant because they had a previous EEO complaint against a prior employer.

What is retaliation? Retaliation includes any employer action that is “materially adverse”, which is more than employment actions such as denial of promotion, non-hire, denial of job benefits, demotion, suspension and discharge. This means any action that might deter a reasonable person from engaging in protected activity. Retaliation can be an employer action that is work-related, or one that has no tangible effect on employment, or even an action that takes place exclusively outside of work, as long as it may well dissuade a reasonable person from engaging in protected activity. For instance – taking action against a family member or friend. Questions and Answers: Enforcement Guidance on Retaliation.

What type of evidence can an employer use to defend an employment action, and refute an allegation of retaliation?

Employer not aware of the protected activity
Legitimate non-retaliatory motive such as: poor performance, inadequate qualification for hire, misconduct or reduction in force
Similarly situated employees who did not engage in protected activity treated the same
The adverse action would have occurred anyway

New Guidance – What is interference with disability rights under the ADA? Under the ADA’s interference provision, it is unlawful to coerce, intimidate, threaten, or otherwise interfere with an individual’s exercise of ADA rights, or with an individual who is assisting another to exercise ADA rights. Some employer acts may be both retaliation and interference, or may overlap with unlawful denial of accommodation. For instance, issuing a policy or requirement that purports to limit an employee’s rights to invoke ADA protections (e.g., a fixed leave policy that states “no exceptions will be made for any reason”).

Accommodation, EEOC, Essential functions, Job Description

What factors determine essential job functions?

July 7, 2016 stu

Employers covered by the Americans with Disabilities Act (ADA) (15 or more employees) are familiar with the phrase “essential job functions” when it comes to legally accommodating employees and applicants with disabilities. When examining company jobs, what job functions are essential, are what are marginal? The distinction is very important when it comes to dividing job functions and deciding if your company should re-assign the function, or consider it not critical to position itself.

The EEOC states that essential functions are the basic job duties that an employee must be able to perform, with or without reasonable accommodation. Factors to consider in determining if a function is essential include: (1) whether the reason the position exists is to perform that function; (2) the number of other employees available to perform the function or among whom the performance of the function can be distributed; and (3) the degree of expertise or skill required to perform the function. The company’s judgment and the written job description are considered by the EEOC as evidence of essential functions. Other evidence includes: actual work experience by employees, time spent on function and the consequences of not requiring that an employee performs the function.

A real world example occurred with the City of Anderson Transit System v. Brown. A 28 year employee was terminated because his diabetes prevented him from holding a commercial drivers’ license (CDL). When the employee was transferred to a street supervisor, the job description listed a qualification as holding a CDL because he may have to drive a bus in an emergency. In previous positions, the City had accommodated the employees diabetes and had waived the CDL requirement. The determination of “essential function” is a question of fact (for the jury) and not a question of law (for the judge). In this case, the jury determined that the the CDL was not an essential function because: (1) supervisor testified that prior employee had not driven a bus in 4 previous years; (2) there were other people with CDLs to handle emergencies; and (3) the position did not spent any time driving or needing a CDL. Bottom line: It is a best practice to maintain written job descriptions that identify essential job functions, but it is just as important to ensure that the importance, frequency and closeness of the function to the core essence of the position shows it is “essential”.

HR Resources

Total Rewards Strategy

September 27, 2014 stu

Total rewards strategy is a business mission statement used to develop and implement compensation and benefit programs that attract, motivate and retain employees. HR assists this process by working with ownership and senior management so that the total package offered to employees is analyzed to determine what combination of compensation and benefits will best help the company achieve its hiring and retention objectives. Without a Total Rewards (TR) strategy, small businesses often develop a knee jerk approach to recruiting and hiring each employee, which does not built a long term structure for meeting business goals and objectives.

Developing a compensation strategy involves balancing the internal conditions (willingness and ability of the company to pay) and external conditions (whether the company will be leading, meeting or lagging the market rates for positions). Part of the TR philosophy is how the company culture combines with the types of products and services offered by the company. By reviewing compensation data at a company, you can see how the company values the position. Organizations identify jobs that are most valuable to their organization (for instance sales or technology developers) in order to achieve their goals and objectives. The TR philosophy is used to help differentiate between the value of different positions/roles, and developing effective reward programs to support the most valued positions. For example, an organization with only a modest sum to devote to bonuses, may choose to build a bonus program around the few most valuable positions at the company, and not include those positions that have less impact on the company’s success (whether due to skills, knowledge, etc..).

Another important aspect on compensation is the company culture. What are the values and beliefs of your owner, or CEO, and how does compensation reinforce the culture. One major point to consider is whether to compensate on a merit or performance philosophy, or on a seniority or entitlement philosophy. Performance based cultures are constantly trying to align compensation practices, including incentive programs, to reward behaviors that move the company closer to achieving its goals and objectives. Employees need to be informed about how their performance impacts company objectives so they can associate behavior, results and then rewards. High performance cultures are created.

A seniority philosophy rewards longevity and length of service. Performance, while important, may be secondary to longevity at the company and loyalty. Rewarding length of service creates loyalty. Many benefit programs address length of service, such as vacation plans that provide more vacation to employees with longer service. Every company will have a balance of rewards that recognize both performance and seniority philosophies – but starting with a Total Rewards philosophy helps create a vision of building a compensation strategy.

Areas to consider include budgets for: salary/wage structure, merit pay and incentives, bonuses, employee benefit plans, insured plan offering and employer contribution rates, and other unique reward offerings.

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Consulting services and training provided by ConsultStu, LLC is not intended to constitute legal advice. Any discussion about the laws relating to the workplace is for general information purposes only. This information should not substitute for obtaining competent legal advice from an attorney licensed in your state.