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Jun20

Harrassment Claim

Can an employer be sued for harassment if an employee complains of being “picked on” by a supervisor? There is a rumor going around the office that this is the plan and reasoning however nothing has been brought to anyone’s attention or formally filed in writing. This employee was recently laid off due to a reduction in the workforce.

Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.

Offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance.

Being “picked on” by a supervisor doesn’t often rise to the level of an illegal hostile work environment. However, if the supervisor was targeting the individual based on a protected characteristic or made inappropriate comments/jokes etc…about a protected characteristic, then the behavior may have violated federal (and possibly state) laws.

If the supervisor’s harassment results in a hostile work environment, the employer can avoid liability only if it can prove that: 1) it reasonably tried to prevent and promptly correct the harassing behavior; and 2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.

Though the former employee may just be upset about being laid off, his claims are still worth investigating. Talk to the supervisor in question regarding the employee’s allegation. If you have any suspicion that the allegation has merit, investigate the matter further. You may not be able to make the former employee happy but you can make sure inappropriate behavior is addressed and corrected.

Also, make sure you have clear evidence to support reason for laying off the employee (and really any employee). Ensure legitimate, non-discriminatory, business related criteria were used to determine the layoff.

HTH!

June 20th, 2016, 7:42 PM |  Posted in: Human Resources Management |
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Jun20

Excessive Sick Time

I have a wonderful doctor (DVM) that works for me and our clients, patients and staff adore her. She has lupus that is pretty severe and she is sick often. Sometimes she will be home sick for a month at a time. She is a salaried employee and we offer her 3 weeks vacation time per year, which she always takes. I know that she is sick when she claims to be, and she is entitled to her vacation time. She usually gets sick after her vacations (gone for a week on vacation, then out for a month recovering), which makes scheduling her appointments very difficult. Our clients get frustrated and so does the staff, plus with her being gone so much (paid), we are concerned about the cost. We have 12 employees and 3 salaried doctors and we are in Texas. What are my options? Thank you!!

The federal Family & Medical Leave Act (FMLA) entitles eligible employees up to 12 weeks of unpaid, job protected leave within a 12-month period for certain family and medical reasons. A covered employer is one with at least 50 employees.

Though some states have adopted their own family and medical leave laws, Texas is not one of them.

Discrimination laws in Texas mirror the federal Americans with Disabilities Act (ADA) which prohibits discrimination in any aspect of employment on the basis of disability and requires employers to make reasonable accommodations to employees with disabilities.

Employers with 15 or more employees must comply with the ADA.

Employees are not required to meet any service criteria to be eligible for accommodations under the ADA. An employee need only have a covered disability as defined by the ADA.

Under the ADA, an individual is considered to have a disability if he has a physical or mental impairment that substantially limits one or more major life activities or functions, has a record of such an impairment, or is regarded as having such an impairment.

Though there is no list of medical conditions that constitute disabilities under the ADA, lupus is often considered a disability since it typically limits a major life activity. Still, an employer should conduct an individual assessment to determine if the employee’s condition is truly a covered disability.

If it’s determined the employee has a covered disability and needs an accommodation because of the disability, the employer must provide a reasonable accommodation, unless the accommodation poses an undue hardship. An accommodation is any modification or adjustment in the work environment or in the way things are customarily done that enables an employee with a disability to perform the essential functions of his position.

Both employer and employee must engage in an interactive dialogue to determine an appropriate reasonable accommodation.  Keep in mind any accommodations that impose a significant difficulty or expense on the operations of the business are not required. But, employers should make every effort to provide reasonable accommodations to allow an employee to perform the essential functions of his job.

Types of reasonable accommodations for an employee with lupus depend on the employee’s limitations. For example, if the employee experiences excessive fatigue, consider offering additional or extended breaks, or allow a flexible work schedule. It really depends on what job duties are being affected by the employee’s limitation.

A leave of absence is often considered a reasonable accommodation. However, an employer is not required to provide extended or excessive leaves.

Consider talking to the employee. Explain your concerns regarding the affect her absences are having on her work, co-workers, clients, and the business. Acknowledge her accomplishments. Explain that you’re open to discussing reasonable accommodations that will allow her to come to work more often and continue her good work. Let her know that 5 weeks off at a time is causing hardship and is just not possible anymore. Be open to suggestions. Remember to document the discussion, especially the agreed upon accommodations.

The Department of Labor offers the Job Accommodation Network (JAN) to help employers comply with the ADA. They offer a variety of accommodation suggestions for employees with lupus at http://askjan.org/media/Lupus.html.

You mention the employee’s leaves of absences are paid. There is no requirement under federal or Texas discrimination laws that leaves as accommodations be paid. Absent an employment contract or collective bargaining agreement stating otherwise, once the employee has exhausted her paid time off consider allowing only a short duration of paid leave time (say 2 weeks). Any additional leave time needed would be unpaid. This will reduce your financial cost while still allowing the employee her recovery time.

HTH!

Jun20

Leave of Absence for Small Business in Texas

Do you know if Texas has any laws regarding medical/maternity leave? We only have 12 employees so I know that we are not regulated by the FMLA. However, I am unsure of any state specific laws. TY!

Covered employers under the federal Family & Medical Leave Act (FMLA) are those with 50 or more employees. So, as a small business with 12 employees, you’re right that you’re not covered under the FMLA. Some states have adopted their own family and medical leave laws; however, Texas is not one of them.

There are federal and state discrimination laws to consider.

The federal Pregnancy Discrimination Act (PDA) prohibits sex discrimination on the basis of pregnancy. Under the PDA, an employer that allows temporarily disabled employees to take leave must allow an employee who is temporarily disabled due to pregnancy to do the same. Further, employers must hold open a job for a pregnancy related absence the same length of time that jobs are held open for employees on sick or temporary disability leave. Employers with at least 15 employees are covered under the PDA.

Texas pregnancy and discrimination laws mirror the federal laws for the most part. Texas law requires non-discriminatory treatment of pregnant employees and reasonable accommodation for employees with disabilities. Again like federal discrimination laws, employers with 15 or more employees are covered. Keep in mind, Texas law considers an employee as anyone who works for the business, performing services for pay, for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.

Though you may not be obligated to comply with these regulations, many employers choose to do so as a benefit to employees and to ensure consistent, fair and nondiscriminatory practices. Also, offering leaves of absence reduces turnover.

With no legal mandates to uphold, offering any type of leave of absence and the duration of such leaves is at your discretion. Federal and many state leave laws provide up to 12 workweeks of unpaid leave. Otherwise, it’s fairly common to offer at least 2-4 weeks of leave. Consider what you can afford to provide. Can your business operations continue as normal if you offer 12 weeks? If so, it’s a great benefit to provide and your employees will appreciate it.

HTH!

June 20th, 2016, 6:34 PM |  Posted in: Benefits, Labor Laws |
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Jun20

Full Day Salary Docking for Exempt Employees

Our industry (construction) regularly requires 6 day work weeks- our exempt employees (supervisors and managers) are aware of this at time of hire. I know you can doc a salaried exempt employee a full day if they have run out of paid time off. If they exceed the allowed time off (sick / vacation days) do we doc them 1/6th of their weekly pay (say they take a Tuesday off but have no more paid time off) Moreover- do we calculate our employees daily rate based on a 6 day work week or a 5 day work week

The federal Fair Labor Standards Act (FLSA) establishes compensation requirements for employees. Under the FLSA, there are limited permissible deductions from an exempt employee’s salary including:

  • When an employee is absent from work for one or more full days for personal reasons other than sickness or disability;
  • For absences of one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for salary lost due to illness and the employee has exhausted such paid leave;
  • To offset amounts employees receive as jury or witness fees, or for temporary military duty pay;
  • For penalties imposed in good faith for infractions of safety rules of major significance;
  • For unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions;
  • In the employee’s initial or terminal week of employment if the employee does not work the full week, or
  • For unpaid leave taken by the employee under the federal Family and Medical Leave Act (FMLA).

It’s up to the employer to determine what an exempt employee’s salary is intended to cover. When you say employees “regularly” work 6 days a week, it implies that employees are expected to work 6 days a week or at least do so on a regularly occurring basis. So, their salaries would be based on 6 days a week.

Thus, an employee’s salary would be docked 1/6 of their weekly salary for a full day absence and their daily rate would be calculated based on 6 days a week.

June 20th, 2016, 1:11 PM |  Posted in: Compensation |
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Jun20

Leave of Absence/Termination in NJ

We have only 6 employees. One of the employees is out for pregnancy and wants to return. It is best to terminate her employment but we are unsure of the laws, federal or state. Please help with clarity of the laws and also the proper method of termination (verbal with a witness/written).

There are a few federal and state laws that don’t necessarily apply to a small business with 6 employees but are still worth mentioning.

Both the federal Family & Medical Leave Act (FMLA) and the NJ Family Leave Act (NJFLA) entitle eligible employees up to 12 weeks of unpaid, job protected leave for certain family and medical reasons, including childbirth and baby bonding, within a 12-month period. An eligible employee under both laws is one who works for an employer with at least 50 employees.

The federal Pregnancy Discrimination Act (PDA) prohibits sex discrimination on the basis of pregnancy. Under the PDA, an employer that allows temporarily disabled employees to take leave must allow an employee who is temporarily disabled due to pregnancy to do the same. Further, employers must hold open a job for a pregnancy related absence the same length of time that jobs are held open for employees on sick or temporary disability leave. Employers with at least 15 employees are covered under the PDA.

Though you’re not obligated to comply with these regulations, many employers choose to do so as a benefit to employees and to ensure fair and nondiscriminatory practices.

Many states have adopted their own anti-discrimination laws and NJ is one of them. Under NJ’s Law Against Discrimination (LAD), it’s unlawful for any employer, regardless of size, to discriminate against an employee because of pregnancy with respect to terms and conditions of employment including discharging an employee because of pregnancy. Though the law doesn’t expressly cover employees on maternity leave, it does prohibit an employer from treating a pregnant employee in a manner less favorable than the employer treats a non-pregnant employee. Basically, as with the PDA, employers must treat pregnant employees in the same manner as other temporarily disabled employees.

It’s important to consider the reason for termination. Was the employee a poor performer and you hoped she wouldn’t return from maternity leave? Is her position being eliminated and she would’ve been laid off regardless of her leave? Or have you realized that you just don’t need the employee anymore? Reasons for termination should be legitimate and business related.

Even with aforementioned laws in place employers are still able to terminate an employee on maternity leave as long as the employer can show the employee would’ve been laid off/terminated whether she was on leave or not. Basically, there must be clear evidence to support the lay off/termination is not due to the employee taking maternity leave.

Employment in NJ is considered at-will unless an employment contract or collective bargaining agreement exists stating otherwise. Employment-at-will means either the employer or employee can terminate the employment relationship with or without cause or notice.

Importantly, even implied contracts can nullify the at-will doctrine. Was this employee promised a job after her maternity leave? Did she have a reasonable expectation of returning to her job after her maternity leave? Basically, did you communicate to this employee, either verbally or in writing, that she was permitted to take a certain amount of time off then return to work? If so, it’s best to keep your “promise”.

If you chose to terminate the employee, it’s best to do so verbally. Though not required in NJ, you can provide the employee a termination letter which generally includes the reason for termination and the effective date of the termination.

In-person terminations are recommended but, since the employee is on maternity leave, it may be best to conduct a phone meeting. Concisely and directly explain the reason for the termination (i.e. we no longer have the funds to support your position) and it’s effective date. Providing a legitimate, business related reason will deter accusations that the termination was for an unlawful reason.

Having a neutral witness present at a termination meeting is often advisable to corroborate your version of events. This can prove valuable if the employee challenges the termination at a later date. However, be careful in choosing a witness. With only 6 employees it’s a sure bet that your witness may have a relationship with the employee. This can make the meeting more uncomfortable than it has to be.

Make sure you have any information the employee may need readily available such as final paycheck and benefits information, and the procedures for retrieving personal items from the office and returning company property.

HTH!

June 20th, 2016, 12:35 PM |  Posted in: Termination |
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