All posts by stu

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

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

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.

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

Accommodation, Construction, EEOC, Religion

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

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.

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

Construction, Independent Contractor, Wage and Hour

Plastering contractor misclassified workers from labor “broker”

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.

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

EEOC, Employee Rights, Retaliation, Title VII

EEOC Issues Final Guidance to Employers on Retaliation and Interference

#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”).

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

Accommodation, EEOC, Essential functions, Job Description

What factors determine essential job functions?

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”.

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

HR Resources

Total Rewards Strategy

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.
HR Resources

Job Descriptions

Job Analysis and Job Descriptions
For small to mid-sized businesses, it is important for employees to have a clear picture of their duties and responsibilities.  Job analysis and job descriptions provide the foundation for the employment relationship.  In the job description, you will compile all the information collected during the job analysis.  It is a document that is used for many purposes within the organization, starting with hiring.  Especially in small business where employees in small business wear many hats, a job description helps with maintaining continuity (if a key employee departs).
  • Recruiters screen applicants for required KSAs (knowledge, skills and abilities)
  • Applicants use it to see what they will be required to do
  • Managers use it performance management and employee annual performance review
  • HR uses it to determine the appropriate pay level for the work required
  • HR uses it to define essential job functions and as a guideline for employees who request reasonable accommodations for disabilities
Job Analysis
To develop the most complete and accurate job descriptions, it is best to perform a job analysis.  The relevant information can be obtained by interviewing the employee and supervisor using a structured questionnaire.  Complete a task inventory, and check on the amount of time spent on various tasks.  All this information is assembled, summarized and placed into the job description.
Job Description
The following areas are typically addressed in a job description:
  • Job title
  • Admin details (supervisory functions, FLSA status, reports to)
  • Job summary (thumbnail sketch)
  • Job duties (essential functions, non-essential)
  • Equipment Operated
  • Job Specifications (licenses, education, etc..)
  • Physical and mental requirements
  • Work Environment
  • Approvals
HR Resources

Conducting Effective Interviews

Job Interviews are stressful for interviewees and candidates.  To help turn a short period of time into an effective evaluation tool, it is best to have a plan for the interview.  There are different types of interviews for selecting candidates.  The University of Florida, HR Department – Recruitment/Staffing, has some good examples of behavioral interview questions.

Behavioral interview – This interview type asks candidates to describe how they have handled specific situations in previous jobs.  Candidates are expected to describe a situation or problem, the actions they took, and what outcome was the result.  Interview questions (when structured), and notes by interviewers, can be combined to create a consistent, repetitive process for various applicants.
Non-directive interviews use very broad questions, and allows the interviewee to focus and guide the conversation.  This allows for a great deal of information, but it is hard to have standard consistent interviews among candidates.
Non-permissible interview questions. Equal Employment Opportunity law requires that candidates not be asked questions that do not have any relationship to the functions of the position.  The following is a list of questions that should not be asked about during an interview:
  • Questions of applicants because you think your clients or customers may have certain prejudices.  Customer preference is not a bona fide occupational qualification.
  • Questions about age, race, color, place of birth, national and family origin, religion, sex, sexual orientation, disability, or ancestry.
  • Questions about the date a candidate graduated from high school or college. You may ask number of years attended and if a degree(s) was obtained.
  • Questions about past, present, or future marital status, pregnancy, plans for a family or childcare issues. You may ask if the applicant has any commitments that would preclude the applicant from satisfying job schedules or performing job-related travel. If such questions are asked, they must be asked of both genders.
  • Questions about the candidate’s state of health or handicap/disability (physical or mental).
  • Questions about family health.
  • Questions about the workers’ compensation history of a candidate.
  • Questions on the basis of sexual preference.
  • Questions that pertain to a candidate’s appearance (height and weight).
  • Questions about financial status or a candidate’s credit rating.
  • Questions about whether a candidate has filed or threatened to file discrimination charges.
  • Questions that would reveal arrests without convictions. You may ask about convictions (but not arrests) for crimes that relate to the candidate’s qualifications for a position.
  • Questions about what type of military discharge they received.
  • Questions about citizenship.

The Uniformed Guidelines on Employee Selection Procedures were developed,in part, by the EEOC to assist employers in complying with the requirements of Title VII and other federal EEO laws.

HR Resources

HR Workplace Posters

As an employer, federal and state laws require you to clearly display official labor and employment posters detailing federal and applicable state labor laws. Both federal agencies such as, the U.S. Department of Labor, Occupational Safety and Health Administration, and state agencies, such as Workers’ Compensation and the Florida Department of Economic Opportunity, provide posters at no cost to employers.  The posters and notices explaining the various Acts must be posted in conspicuous place in each establishment so employees can readily read them.

Federal Posters

  1. Equal Employment Opportunity Poster
  2. Employee Rights under the Fair Labor Standards Act Poster
  3. Family and Medical Leave Act (FMLA)
  4. Occupational Safety and Health Act (OSHA)
  5. Uniformed Services Employment and Reemployment Rights Act (USERRA)
  6. Employee Polygraph Protection Act Notice (EPPA)

Florida State Posters

Florida businesses must also display the State of Florida employment law posters where they can be easily viewed by employees.

  1. Florida’s Minimum Wage
  2. Florida Law Prohibits Discrimination poster
  3. Florida Workers’ Compensation
  4. Florida Reemployment Poster
HR Resources

Human Resources Recordkeeping

State and federal laws have different requirements for employers when it comes to displaying informational posters and retaining company records.  The following summary shows information for both federal and state (Florida) requirements.  The confusing part of these standards, is that they are based on the specific type of document, not the overall system used by employers to maintain records.  For instance, there is no generic standard on how long to maintain a former employee’s personnel file, but rules for each document in the file.  By looking at the rules for each specific document (i.e. employment application, discipline warning, benefit enrollment form etc…) you will know how long the document must be maintained.

Federal and State Recordkeeping Requirements (general – government contractors are different)

  • Advertisements (jobs) – 1 year from date of action
  • ADA Accommodation docs – 1 year from date of action
  • Age Certificates for Minors – until termination of employment
  • Applications, resumes – 1 year from date of action
  • Applicant Testing – 1 year from date of action
  • COBRA documents – follow ERISA rule for 6 years
  • EEO-1 Form – current and past year
  • Employee Beneficiary docs – as long as relevant (current version)
  • Employee Benefit Plans – 1 year after termination of the plan
  • Employee Exposure and Medical Records – 30 years (OSHA tests)
  • Fair Credit Reporting Act – 2 years from date of action
  • FICA, FUTA related – 4 years after tax due date, or tax paid (later of)
  • FMLA related documents – 3 years
  • HIPAA – 6 years
  • I9 Forms – 3 years, or 1 year after termination (whichever is later)
  • Safety Data Sheets (SDS) – Chemical lists kept current and for 30 years
  • OSHA 300, 301, 300A – 5 years, and current year
  • Payroll Records – at least 3 years
  • Personnel Files – minimum 1 year after termination (but recommend at least 7 years)
  • Polygraph Protection testing – 3 years from testing
  • Time cards (FLSA) – at least 3 years
  • W2 forms (and undeliverables) – 4 years
  • Workplace Accident investigations and records – 3 years
  • Discrimination claims – 1 year from termination
  • Drug Free Workplace testing records – 1 year from test
  • DWC-1 forms – at least 30 months
  • Unemployment claims and records – at least 5 years
  • Workers’ Comp claims – length of employment, plus 2 years (or until case resolved)
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