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Announcement of Birth of a Child

Can a company publicly announce the birth of a child? Or is this a violation of the employee’s HIPPA rights? I used to work for an organization where the HR team never published those announcements because they felt it did violate the employee’s right to privacy. I’m now at a company who publishes birth announcements in their monthly newsletter. Which is correct?

HIPAA’s Privacy Rule covers protected health information employers obtain about employees through a health care plan or provider. For example, the employee’s physician informed the employer of the employee’s childbirth.

The regulations don’t extend to internally obtained information like if the employee disclosed the information directly to the employer.

Some companies, like your previous employer, choose not to recognize such special events for various reasons such as to protect employees’ privacy and to avoid allegations of discrimination.

Many companies still publish employees’ special events such as births and birthdays as a special way to acknowledge and congratulate them. Before announcing any personal or health-related information, best practice is for the employer to obtain consent from the employee.


May 25th, 2017, 3:33 PM |  Posted in: Human Resources Management |
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Salary Employee and Holiday Pay

We have one salaried employee and we would like to verify we pay him his regular pay for holidays like Memorial Day and Labor Day?

The federal Fair Labor Standards Act (FLSA) establishes compensation requirements affecting employees in the private sector and in Federal, State, and local governments.

Under the FLSA, employees are classified as either non-exempt or exempt.

Non-exempt employees must be paid for all hours worked and are subject to overtime and minimum wage requirements prescribed by the FLSA. Non-exempt employees need not be paid for any time not worked, like a company recognized holiday.

Conversely, exempt employees receive a fixed predetermined salary for any week during which work is performed regardless of the quantity or quality of such work. There are limited exceptions to this rule.

Hourly paid and salary are compensation terms. Though a salaried employee is typically exempt under the FLSA, it’s possible for an employee to be salaried non-exempt. So, it’s important to understand the difference.

Let’s assume the employee in question in salaried exempt.

As long as the exempt employee performed work during the week of the holiday, he must be paid his full regular salary for that workweek. There is no requirement to pay a special rate for the holiday.


May 25th, 2017, 3:07 PM |  Posted in: Compensation |
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Manager Lied on Employee’s Performance Review

A manager lied about facts on an employee’s performance review and the employee has proven they were lies by producing documentation. Are there any concerns with this manager continuing to manage said employee?

Anytime any employee provides false information is concerning. Whether anything more than counseling the manager is necessary depends on the details of the situation.

Did the manager intentionally falsify the information on the review? Could it be a misunderstanding or perceived different version of events? Would the falsified information have shown the employee in such a negative light that he/she would’ve been significantly negatively impacted (i.e. not eligible for a bonus or promotion)? Is there a history of the manager providing false or misleading information? Is there a history of the manager and the employee not working well together?

Of course, if it’s found that the manager intentionally provided false information to negatively impact the employee, then the manager should not only be counseled but he/she should not be supervising the employee. If this is the case, an investigation should be conducted to determine the manager’s reasoning, possible similar past practice with the employee, and if any other employees are having similar issues with this particular manager. The situation may be larger than this one employee.

If the manager was not malicious in his/her actions but failed to properly document a situation or conduct expected due diligence regarding the situation, then he/she should be counseled. Typically, in this case, the manager-employee relationship can still be maintained but the employee may have issues trusting the manager, justifiably so. The relationship may need additional support for a time and the manager may benefit from management training.



Disciplinary Action & the FMLA

We have an employee that is having performance issues (quality and quantity). Her supervisor has been going through the progressive disciplinary process with her. Prior to her final warning the employee contacted me for assistance. She told me she is so stressed out, has problems with migraines that affect her ability to perform, suffers from anxiety, is worried about her sick family members, etc. I suggested she contact our EAP and sent her FMLA/STD paperwork. She did not get it done on time so I sent her the follow-up FMLA paperwork and gave her the additional 7 days. She states she has the FMLA paperwork and her doctor will be sending it to me today. Meanwhile, she is now at the final step of discipline… termination due to performance. Do I terminate her despite her request for FMLA? Or do I have to give her FMLA leave and terminate her when she returns? Or do we have to give her additional time to improve her performance once she returns from leave?

The federal Family & Medical Leave Act (FMLA) provides qualified employees of covered employers the right to take up to 12 weeks of leave for certain medical and family reasons. Employers may not take adverse action against an employee for requesting or taking leave under the FMLA. Nor may an employer interfere with an employee’s right to take FMLA leave.

An employee who has requested FMLA leave may still be terminated due to poor performance. However, to avoid a discrimination, interference or retaliation claim, it’s best to have clear evidence that the employee would’ve been terminated regardless if she applied for leave.

It sounds like you’ve followed your established disciplinary process; but, what was the situation that made you decide that termination was warranted? Was there a specific incident that occurred? If so, would any other employee in a similar situation be terminated for the same incident? Basically, you need to be able to provide solid evidence to support the reason for the termination essentially proving that the termination had absolutely nothing to do with the employee requesting leave.

Usually, terminating an employee for performance issues only after she’s applied for leave would constitute retaliation. Reason being, the employer was aware of the employee’s performance issues but never addressed them until the employee applied for leave. This doesn’t sound like the case in this situation. Still, it’s important to ensure your progressive disciplinary process has been followed and documented, and that the final situation truly warrants termination.

If your evidence is questionable then it’s best to proceed as normal with the employee’s request for leave. Assuming no other significant performance issues arise prior to the employee taking leave and the employee’s situation qualifies for FMLA leave, then she should be given her full FMLA entitlement. Don’t be ready to terminate the employee upon her return. She should be reinstated to her position as required under law and given the same opportunities as she would’ve received if she didn’t take leave. This may mean giving her some time to demonstrate her performance abilities.


May 25th, 2017, 1:45 PM |  Posted in: Labor Laws, Termination |
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Negative vacation balance

What is California law about negative vacation balance? Are employers allowed to recoup from final check?

Under California law vacation benefits are a form of wages. Allowing employees to take their vacation time prior to actually earning it is considered an advance on wages. Thus, if an employee takes an advance on his vacation time and then separates from the employer before the time has been earned or accrued, it’s considered to be an overpayment of wages. And, under California law, an overpayment of wages cannot be recouped from an employee’s due wages. Deductions from an employee’s final paycheck for debts owed to the employer are strictly prohibited.

May 20th, 2017, 7:12 PM |  Posted in: Benefits, Compensation |
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