All posts by Bernice Wheelock

The NLRB Issues Two Advice Memoranda That Address Handbook Rules

The National Labor Relations Board (NLRB) historically has had broad reach when scrutinizing an employer’s company policies; however, two recent memorandums set a new standard in determining whether company policies violate the National Labor Relations Act, which prohibits employers from “restraining, coercing, or interfering with” employees who are attempting to improve working conditions.

Over the last decade, facially neutral policies, including Social Media, Cell Phone and Pay policies have been deemed illegal, if they are overly restrictive and unlawfully interfere with the exercise of rights protected by the National Labor Relations Act (NLRA).

Continue reading The NLRB Issues Two Advice Memoranda That Address Handbook Rules

What is Your Company’s Definition of Outside Sales?

As you know, the Fair Labor Standards Act (FLSA) requires most employees to be paid minimum wage and overtime, except for those that are exempt outside sales employees.

According to the FLSA, to qualify for the outside sales employee exemption, all of the following tests must be met:

  • The employee’s primary duty must be making sales (as defined in the FLSA), or obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer; and
  • The employee must be customarily and regularly engaged away from the employer’s place or places of

Sounds simple enough, so why do so many employers miss the mark?

Many employers do not fully understand the outside sales exemption, which can prove to be extremely costly. Continue reading What is Your Company’s Definition of Outside Sales?

Clarifying The New California Anti-Harassment Training Requirements (SB 1343)

Employers in California are scrambling to meet new Anti-Harassment training requirements mandated by SB 1343 which was approved by Governor Brown last year in September.

By January 1, 2020, an employer having five or more employees shall provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees and at least one hour of classroom or other effective interactive training and education regarding sexual harassment to all non-supervisory employees in California within six months of hire.

How does SB 1343 differ from AB 1825 that was approved in 2004?

  • AB 1825 required employers with 50 employees to train supervisors and managers every two years.
  • SB 1343 amended that law, by lowering the threshold to smaller employers with 5 employees or more.
  • SB 1343 also requires training for non-managerial employees; therefore, most employers in California will need to provide interactive training to all employees.

For more information on the new training requirements, please see “Sexual Harassment and Abusive Conduct Prevention Training Information for Employers“, which the DFEH published earlier this year

How can employers meet these new training requirements?

  • An employer may provide this training in conjunction with other training provided to employees.
  • The training may be completed by employees individually or as part of a group presentation, and may be completed in shorter segments, as long as the applicable hourly total requirement is met.
  • An employer who has provided this training and education to an employee after January 1, 2019, is not required to provide training and education by the January 1, 2020, deadline.
  • After January 1, 2020, each employer covered by this section shall provide sexual harassment training and education to each employee in California once every two years.
  • The training and education must be interactive and must include information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment and the remedies available to victims of sexual harassment in employment.
  • The training and education shall also include practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation, and shall be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.
  • An employer shall also include prevention of abusive conduct as a component of the training and education.
    • The training and education shall include practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation, and shall be presented by trainers or educators with knowledge and expertise in those areas.
    • Beginning January 1, 2020, for seasonal and temporary employees, or any employee that is hired to work for less than six months, an employer shall provide training within 30 calendar days after the hire date or within 100 hours worked, whichever occurs first. In the case of a temporary employee employed by a temporary services employer, as defined in Section 201.3 of the Labor Code, to perform services for clients, the training shall be provided by the temporary services employer, not the client.
  • Beginning January 1, 2020, sexual harassment prevention training for migrant and seasonal agricultural workers, as defined in the federal Migrant and Seasonal Agricultural Worker Protection Act  shall be consistent with training for non-supervisory employees pursuant to paragraph (8) of subdivision (a) of Section 1684 of the Labor Code.
  •  An employer may develop his or her own training module or may direct employees to view the online training course developed by the Department of Fair Employment and Housing, which will include two online training courses on the prevention of sexual harassment in the workplace. The course for non-supervisory employees will be one hour in length and the course for supervisory employees will be two hours in length.

How can ePlace help?

Fortunately, we have made it easy for our members to meet these requirements by the January 1, 2020 deadline.

Currently, we offer two compliant Supervisor and Management training courses that meet SB 1343 requirements, which members can access online now.

Two online courses for non-managerial staff will be available before the end of April 2019.

Employers can upload users and assign training to employees through our Learning Management System (LMS).

Contact an HR Professional for more information.

Turning a Blind Eye Can Cost a Company High Dollar Settlements

Recently, the EEOC laid a heavy hand on Green Apple, LLC, DBA Applebee’s Grill and Bar, for allowing two sisters to be sexually harassed for months by an assistant manager, which included physical groping, soliciting sex and enduring offensive sexual comments.  The sisters allege that despite multiple complaints to management, and the fact that many of these incidents were witnessed by members of management, the harassment was allowed to continue with no investigation or corrective action taken by the company.

The company was ultimately held responsible for creating a hostile work environment and was mandated to pay a $75,000 monetary settlement to the sisters. In addition, the company entered into a two-year consent decree to develop an auditing process to assist the company identify and address sexual harassment violations or potential violations; provide anti-harassment training to all area directors, general managers, assistant general managers, and assistant managers; and to report to the EEOC all complaints of sex-based conduct or comments made by employees.

In legal terms, this is called Vicarious Liability, which means an employer is liable for a hostile work environment created by a supervisor, manager or an individual perceived to have authority over employees. Continue reading Turning a Blind Eye Can Cost a Company High Dollar Settlements

Don’t Tell Me How To Dress, Or Can You?

This is the million-dollar question…literally (well almost). Violating the state and federal anti-discrimination laws can cost employers thousands of dollars per violation.

“Can’t an employer impose a dress code?”, you ask.  Do you have to allow employees to show-up in any “get up” they’ve imagined for the day, costing you customers, reputation and possibly your business.

Before we answer that question, let’s look at the issue from another perspective.

The law is continually expanding to cover more individuals and the definition of sex has grown to cover gender expression, gender identity, transgender, sexual orientation and other LGBT groups.

Because our definition of sex is no longer limited to “boy” or “girl”, our dress codes will also need to expand. Continue reading Don’t Tell Me How To Dress, Or Can You?

Tennessee’s “Guns in Trunks” Law Amended

Tennessee’s “Guns in Trunks” law has been amended to include a prohibition for disciplining employees who choose to keep firearms or ammunition in their vehicles on company property.  Specifically, the amendment states:

“No employer shall discharge or take any adverse employment action against an employee solely for transporting or storing a firearm or firearm ammunition in an employer parking area.”

 

 

Does Your State Offer Employment Protections for Marijuana Use?

shutterstock_152111996Drug Testing Policies. You’ve always been advised to add one to your company handbook, perhaps to lower on-the-job injuries, or to employ and retain a more stable and productive workforce. It’s your business, you should have the right to maintain a drug-free workplace – what’s the big deal?
Usually, there is no issue until an employee produces a medical marijuana card. It is at this time that an employer asks the question, “Can I fire an employee if they have a valid marijuana card?”

The answer: It depends on the state.

This topic will only become more relevant as more states pass marijuana use laws.

Case in point, your favorite, long time, highest performing employee gets hurt on the job. He picked up a box of client files and pulled a muscle in his back. Per company policy this employee is required to be drug tested post-accident. The test comes back positive. The employee states he has smoked marijuana during off duty hours for complications brought on by glaucoma and carries a valid medical marijuana card.

Issues:
For starters, the employee feels obligated to tell you about protected medical information he would have never had to divulge had he not been drug tested. He is being questioned regarding off-duty personal activity. He possess a medical marijuana card that has been issued by the state. In addition, he is the highest revenue generating employee on your sales team.

Your policy has put you in a position that requires you to take adverse action, since it is a zero tolerance policy. It requires that any positive test results will lead to immediate termination.

How do you handle this situation?

Most employers ask themselves these three questions:
• Does the Medical Marijuana Card prohibit me from terminating this employee?
• Can I make an exception in this case?
• What do I do going forward?

First let’s start with what you are required to do by law. Employers are legally required to comply with drug testing requirements set forth by the Department of Transportation. In addition, certain federal contractors are required to comply with the Drug-Free Workplace Act. While the Drug-Free Workplace Act does not require alcohol or drug testing, retaining an individual who produced a positive test result may undermine the good-faith effort requirement to maintain a drug-free workplace.

Outside of these considerations, employers can then decide if they want to drug test and under what circumstances. Some states allow drug testing, others are silent, and some have great restrictions, as in California.

After an employer determines that drug testing is allowable, the next factor to consider is whether adverse action can be taken based on positive results.
Currently federal law considers any marijuana use illegal, including use for medicinal purposes. Even if state law allows use for medicinal purposes, most states offer protections from criminal prosecution, not adverse employment actions. Federal and some state court decisions have supported an employer’s decision to take adverse action based on clearly written policies that provide advance notice to employees of drug testing procedures and ramifications of testing positive, even if an employee possess a valid medical marijuana card.

In efforts to minimize conflicts, some states have included employment protections in their marijuana use laws.

For example, Arizona law states:
Unless a failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate against a person in hiring, termination or imposing any term or condition of employment or otherwise penalize a person based upon either:

1. The person’s status as a cardholder.
2. A registered qualifying patient’s positive drug test for marijuana components or metabolites, unless the patient used, possessed or was impaired by marijuana on the premises of the place of employment or during the hours of employment.

Other states that have similar employment protections, include Connecticut, Illinois, Rhode Island, Delaware and Maine.

It is important to recognize that even these protections do not condone the use or possession of marijuana while on duty.

One more aspect to consider? Discrimination complaints. Not taking adverse action on one employee, but terminating another who tests positive for marijuana can open an employer up to potential discrimination claims. Consistency is the key to lowering exposure. Furthermore, employees who carry medical marijuana cards may have an underlying disability that is covered under the Americans with Disabilities Act or other state disability protection laws. Employers should always ensure they can effectively demonstrate that any adverse action taken is based on drug policy violation, not a disability.

Thoroughly confused?

Recommendations:

Check your state marijuana use law for employment protections. Also review your state drug testing laws to ensure your policy is compliant and sound. Determine if DOT or federal contract requirements apply to your business. Review your policy and consider all potential scenarios that can arise and decide how you want to handle them in the future. Your policy should reflect your practice. Remember, if you are going to allow your favorite employee to continue employment after testing positive, you will have to do the same for all other employees (including your worst). Finally, with more and more states allowing marijuana use for medicinal and recreational use, determine if taking adverse action for positive test results will limit your ability to hire and retain employees.

New Year, New Employee Handbook

The New Year is a great time to update your handbook, make changes and revisions.

Although there is no law requiring employers to have a handbook, a handbook is a great way to communicate company expectations and rules of behavior in the workplace to your employees.

Many employers have a handbook, but haven’t updated it in a few years. This can be problematic if an employer has an outdated mandatory policy, such as a state mandated pregnancy leave policy or a Family Medical Leave Act policy. Having an outdated policy can be just as bad, if not worse, than having no policy at all. Make sure any provisions in the law that have been amended are reflected in your handbook. An annual update of your handbook will usually help you catch these changes. Many state and federal laws go into effect at the beginning of the year, which also makes this a great time to make changes.

Other common issues:
• Your practice differs from your written policy. If you like the practice you have established, update your policy so there are no conflicts.
• Your practice is not in your handbook. If you would like to establish a new practice or rule, having a written policy can help support determinations you make in the workplace.
A handbook meeting, or “rollout” is a must when making changes to your handbook. You want to highlight any new changes, and answer any questions that your employees may have about new policies. This is also a great time to revisit the oldies, but goodies. You can review your attendance policy, anti-harassment policy, or any other policy you feel your employees need to be reminded about. Don’t forget to get an updated signed acknowledgement from all of your employees.

Lastly, your handbook can be a vital tool when managing your employees. A thorough, comprehensive handbook that clearly communicates your policies will assist you when confronting employees about poor performance or behavioral issues.

“He Said, She Said”

It has been said there are two sides to every story and the truth lies somewhere in between. It can be a long and arduous journey just getting to the truth — if you ever get there. Once you do, it’s your call on how to handle the situation.

Real life occurrences are rarely concluded as definitively as on an episode of CSI. Employment issues are often comprised of complex, sometimes multiple issues, involving several individuals. Employers only have to make a determination based on the facts presented and decide who is in the wrong and discipline or terminate, if warranted.

Who Do You Believe?

First: Determine if any wrong doing has occurred. Don’t entangle yourself in the minutiae of each account if there is no relevancy to the incident.

Second: Determine what actually happened. Your determination hinges on the credibility of the interviewees. Take the following factors into consideration:

History of allegations – has this person made allegations in the past? If so, were they     substantiated? Is this a disgruntled employee?
Testimony – is the information provided by interviewees consistent? Does the sequence of events match?
Witness knowledge – is the information provided by the witness first-hand knowledge or hearsay?
Instincts – watch for clues based on the interviewees’ behaviors? For example, did the interviewee avoid eye contact when responding to your questions? Was the interviewee crying when recounting the events?
Body Language – does the interviewee exhibit open or closed posture? For example open posture may include relaxed, unfolded arms; good eye contact; forward facing, etc. Closed body posture may include crossed arms; poor eye contact; clenched fists; etc.
Contradictions – look for inconsistencies in the events relayed by the complainant, accused and any witnesses.
Inherently improbable – is the story really believable? If it seems unbelievable, keep asking questions. If it is untrue, the story will likely unravel itself through additional probing.
Indirect admissions – did the person admit to something similar? Perhaps they did not do exactly what they are accused of, but are they admitting to something else?
Motives to lie – do any of the interviewees (complainant, accused and witnesses) have motive not to tell the truth?
Doesn’t answer the question – Asking a question that warrants an answer and the employee replies with a question, changes the subject, or gives an answer to a question that wasn’t asked, indicates avoidance. While it appears the interviewee is willing to assist in the investigation, they are refusing to answer the question.

In the end, it is up to you who you believe. Probe further if interviewees do not clearly answer questions. Ask questions more than once or phrase questions differently to identify inconsistencies.

Get it in Writing
Get initial statements written by hand from interviewees. A dishonest individual may tell on himself/herself or may find it difficult to recant their version of the events when questioned further. Compare written statements to questions asked during interviews to ensure individuals stick to the same story. If video surveillance is available, compare statements to tapings during the time period in question. You may notice an employee who is untruthful can’t recreate events to match actual events.

Document all responses to clearly show discrepancies. When you see it on paper, it may become crystal clear who is “telling the truth”. It may be that no one is telling the truth because everyone is guilty of something. In this case, everyone should be held accountable for their contributions to the incident and should be disciplined accordingly.
In conclusion, you may not always to be able to prove beyond a reasonable doubt what actually happened, but you will be assured the most appropriate action was taken based on the information presented to you if your investigation was thorough, fair and unbiased.

No Tattoos, No Piercings, No Beards…No Employees?

The workplace has changed since the days when men wore suits and ties to work, cleanly shaved with every hair in place and women wore dresses, nylons, and pumps (think Mad Men).
You may have to build a time machine if you want to keep up those dress standards, today. The new work scene includes flannel shirts, hoodies, skinny jeans, and tennis shoes. By the way, these are your best dressed employees. I believe they’re called “Hipsters”. Beards and mustaches have never been so en vogue.
Remember Elvis, the Beatles, Madonna? What you wouldn’t give for bushy hair and fingerless lace gloves. Yes. Today’s employer has to deal with face tattoos, earlobe discs, and eyebrow piercings. And tomorrow’s employer will have to deal with something even more outlandish.
The question comes up every time fads and fashions change, “Can I put that in my Dress Code Policy”?

Remember, make your Professional Appearance Policy work for you, not against you.
While employers can dictate dress at work, accommodations may need to be made for religious beliefs, disabilities, and individuals in other protected classes. If an employee is allowed to wear a beard for religious accommodation and another employee can wear open-toed shoes due to their disability, others may want to follow suit. The policy then becomes more of a guideline than a hard lined policy.

Have you noticed it seems to be getting tougher to find an employee under the age of thirty without visible tattoos. These markings were once brandished by prisoners, criminals and rock stars. Now everyone from your babysitter to the IT programmer at work have visible tattoos. Are you wading through the talent pool searching for someone who doesn’t violate your dress policy, or finding the best asset for your organization? Your refusal to give in to these trends could impact your business and hinder your ability to compete.
So do you scrap the dress code policy? You can still create expectations and boundaries with a written policy.

Best Practice: Don’t make your policy so specific that it’s outdated before the ink dries. Review your policy, does it prohibit miniskirts, bell bottoms, and fringe? Even if you update your policy often, you will likely fail to add the latest trend that walks in your door unexpectedly on Monday (Like purple hair). Instead address hygiene, unkempt, disheveled, dirty, and torn clothing. Use expectations standards like appropriate, neat, clean, professional, and business casual. Use business purpose for your dress policy requirements. Finally, if your employees have very little public contact, what’s the harm in having a relaxed dress code? Some companies actually offer it as a company benefit.