Interactive Process under the Americans with Disabilities Act: What You Don’t Do Can Hurt You

For the most part, employers are familiar with and make every effort to comply with the Americans with Disabilities Act, as amended (“ADAAA”).  These compliant employers understand that the ADA prohibits discrimination against qualified applicants and employees because of a disability. These employers also understand that they must provide a reasonable accommodation to such individuals with a disability, absent an undue hardship. To determine if a reasonable accommodation exists, employers must engage in the “interactive process.” What I find to be an area of frequent misunderstanding . . . how does the interactive process – a mandatory requirement – work? Often employers take a solo approach to evaluating whether an accommodation can be made. This action, while well-intentioned, fails to satisfy the requirements of the ADA.

The ADA requires covered employers to engage in an interactive process to determine the limitations created by the applicant’s or employee’s disability and how to respond to these limitations. In other words, the employer must engage in a dialogue with the applicant or employee. There is no exact script for employers to follow – the goal is to determine the employee’s limitations and identify potential reasonable accommodations, if any.

What should you be discussing during the interactive process? First, determine the essential functions of the applicant/employee’s job. This is where accurate, thorough Job Descriptions are critical. Second, determine the nature and extent of the individual’s limitations. Discuss with the individual his or her exact limitations and ask how these limitations could be overcome. Employers should consider the employee’s request and then explore potential reasonable accommodations. Talk to the applicant/employee about possible accommodations and assess whether the accommodation would enable the individual to perform the essential functions of the job position. Finally, select the most appropriate accommodation, if one is available. Employers do not have to grant the request of an employee if it is too burdensome. Rather, an employer is free to discuss alternatives or, where the essential functions of the job cannot be performed with a reasonable accommodation, to explain same to the employee and explore leave as a reasonable accommodation or consider separation of employment.

Please keep in mind that while applicants/employees have a duty to ask for an accommodation, if the employer has notice of a potential disability, then the employer should  initiate the process. Failure to do so could result in litigation resulting in owed wages, compensatory damages, and the ever-dreaded and never cheap reimbursement of a plaintiff’s attorneys’ fees. If your supervisory staff needs training on this process, please contact me. To be sure you don’t miss out on upcoming words of wisdom, subscribe to this blog!

Internal Investigations in the Workplace

Do you have clear policies in place that enable supervisory personnel to respond promptly to complaints of harassment and discrimination in the workplace? Are you training your employees to handle subsequent investigations? My thoughts:

All employers should have a grievance procedure clearly outlining the steps an employee should take to make such a complaint. The policy should outline who the employee should contact and offer the employee the ability to bypass their direct supervisor should that person be the harassing party. A good grievance policy emphasizes that confidentiality will be maintained to the greatest extent possible, but, makes it clear that an investigation will require interviewing the alleged harasser, as well as relevant witnesses. Although confidentiality cannot be guaranteed, investigators should only disclose appropriate information on a need-to-know basis.

Investigations should involve an interview with the complainant, as well as other involved parties and/or witnesses. Open-ended questions offer both parties the opportunity to tell their side of the story. The investigating party should consider taking statements and using this documentation to support any later finding. Investigations should be fair and keep the complainant apprised of the status of the investigation.   Moving with haste demonstrates that the employer does not tolerate harassment of any form or fashion. If disciplinary action is necessary, it should be taken.

Communication of the results of an investigation, whether affirming or negative, is crucial. By informing the pertinent parties of the results, both are assured that their complaints and/or responses were heard and recognized. Where the parties will continue to work together, it is important to reiterate to all involved that retaliation for a complaint, whether substantiated or unsubstantiated, is prohibited.

The best way to ensure that an internal investigation is handled appropriately? Proper training. While a grievance policy is the first step, the policy itself is only as effective as its implementation. A savvy business owner or HR professional trains supervisory staff on appropriate follow-through on a complaint. Ignoring a complaint of harassment or discrimination or taking inappropriate action in regards to the complaint can be an expensive misstep by the employer.

I love nothing more than equipping employers with the tools necessary to create a compliant workplace, which cultivates a positive company culture and minimizes liability. If your workplace is in need of training on internal investigations or assistance handling complaints of harassment or discrimination, please don’t hesitate to contact me. Don’t want to miss this and other fantastic HR thoughts? Subscribe to this blog.

Avoid Litigation: 10 Fast Facts About FMLA

 (1) Private employers are subject to the FMLA if the business employs 50 or more employees within 75 miles of the worksite for at least 20 workweeks in the current or preceding calendar year.

(2) Employees (men and women) are eligible for FMLA if they have a “qualifying health condition,” which includes:

  • Birth of a child or need to care for a newborn child
  • Need to care for a family member with a serious health condition
  • Employee’s own serious health condition
  • Qualifying exigency arising out of active military duty of employee’s child, spouse, or parent

(3)  When FMLA leave is complete, an employee has the right to return to either the same position or an equivalent position, i.e., a position with equal pay, benefits, and working conditions.

(4)  FMLA covers incapacity for 3 or more consecutive days or a condition that requires periodic medical treatment over an extended period of time. Other short leave is covered by the employer’s sick-leave policy.

(5)   FMLA leave can be foreseeable or unforeseeable. If foreseeable, employers are entitled to at least 30 days advance notice of the need for leave or as soon as practicable. If the need for leave is immediate and notice is not possible, you still must grant the FMLA leave if the employee is otherwise eligible.

(6)  The FMLA is enforced by the Department of Labor. The regulations governing the act are part of the federal code of regulations. Unless you have taken the time to review and familiarize yourself with the Code, it is likely you are overlooking some of the Act’s requirements. For instance, did you know the Department of Labor places an affirmative duty on employers to notify an employee of their eligibility for leave within five (5) business days if the employer “acquires knowledge” that the leave may be for an FMLA-qualifying reason? In other words, you can’t wait for the employee to ask for the leave for which they may be entitled. You must advise the employee that he or she may be eligible for unpaid, job-protected leave.

(7) Did you know that in addition to displaying a posting about the FMLA at your office, you also have to provide written notice to employees’ of their rights under the FMLA? In other words, does your Employee Handbook spell out employee rights and your responsibilities?

(8) If you don’t advise an employee of his or her FMLA eligibility, you face claims of FMLA interference. FMLA interference includes scenarios where an employee is terminated for absences that were otherwise protected, or an employee being forced to return to work when he or she could otherwise have used additional time off to continue medical treatment. Damages for FMLA interference include lost wages and benefits, actual monetary losses, liquidated damages (double damages), attorneys fees, reinstatement.

(9) Are you aware of the risk of terminating an employee who is returning from FMLA leave? Similar to FMLA interference claims, FMLA retaliation claims carry significant financial consequences. Documentation supporting any adverse employment action against an individual returning from protected leave is essential.

(10) Employers have the right to request that medical certification be full and complete. If an employee requesting medical documentation returns a certification that fails to provide the information necessary to grant leave, the employer is entitled to ask for clarification or for the insufficiencies to be addressed. However, an employer must provide the employee with at least seven (7) calendar days to remedy the issue.

If you have questions on how best to avoid litigation and remain compliance with the FMLA, please contact me. To subscribe to this blog and learn more “fast facts” in the future, visit me here.

Are You Calculating Overtime Correctly?

frame-78003__180A non-exempt employee works over forty (40) hours in one workweek. For each hour over forty, you pay the employee time and one-half.  Have you met your obligation under the Fair Labor Standards Act? The answer will depend on whether you calculated the employees’ “regular rate of pay” correctly.

Non-exempt employees are entitled to overtime pay for hours worked over 40 in a work week “at a rate of not less than one and one-half times the regular rate.” What many employers forget is that an employee’s “regular rate” includes “all remuneration for employment paid to, or on behalf of, the employee,” subject to a limited number of defined exclusions.  In other words, the “regular rate of pay” is not just the employee’s hourly rate, but also, includes certain additional payments that the employee received during the relevant time period. For instance, if an employee is paid $10.00 per hour and receives a $50.00 performance bonus promised for completing a certain task, then the $50.00 must be used to calculate the employee’s regular rate of pay. Where the $50.00 bonus was awarded for activity done in one week – it will affect only the regular rate for that particular week. However, if the bonus is earned over multiple weeks, then overtime for all of those weeks will be similarly affected.

How do you make sure that you are paying overtime correctly? First, be sure that you understand what compensation is included in the regular rate and what can be excluded. Here are some examples:

Included: Awards or bonuses for quality, quantity or efficiency, commission payments, cost of lodging and meals, lump sums for on-call payments.

Excluded: Discretionary bonuses, i.e., not promised in in advance to employees, premium payments for work over 8 hours in a day, value of stock options, holiday bonuses

Second, be sure that you are taking into consideration whether the bonus was awarded in one week or should be assessed over time.

These are very important considerations – remember, one dollar owed to a plaintiff can result in full payment of their attorneys’ fees in litigation under the FLSA. If you have questions on whether your business is properly calculating overtime, please contact me for more information. If you would like to subscribe to this blog, please click here.

Essential Employer Review: EEOC Guidance on Leave as a Reasonable Accommodation

eeocLet’s start off the New Year by avoiding litigation, shall we? A helpful resource to do so comes to you courtesy of the EEOC.

Last year, the EEOC issued a resource document addressing leave as a reasonable accommodation under the ADA, entitled “Employer-Provided Leave and the Americans with Disabilities Act.”  New Year’s Resolution – employers and human resource professionals should print and read a copy of this resource in full. Although this document does not carry the weight of official EEOC guidance, you can bet your bottom dollar that Investigators of Charges of Discrimination filed against your company will be using it to assess liability. Below, I highlight key aspects from the resource essential to those owning and operating within a business:

(1) Equal Access to Leave Under Employer’s Paid Leave Policies. Employer’s should treat requests for leave for a disability the same as they would any other request for leave as it pertains to the company’s existing paid leave policy. For example, if the employer requires a doctor’s note for non-disability related requests for leave, it can also require a doctor’s note where a disability motivates the leave. However, if the employer normally does not require a doctor’s statement, then it cannot require one only for disabled employees to obtain paid leave. Employers can require doctor’s notes for all sick leave; the key is to apply policy uniformly.

(2) Unpaid Leave is a Reasonable Accommodation. If the employee’s paid leave and unpaid leave has exhausted, the employer must consider providing unpaid leave to the disabled employee as a reasonable accommodation if the employee needs it and the leave does not create an undue hardship for the employer. Remember, “undue hardship” is much, much more than inconvenience or increased costs. Employer may request information from a health care provider to elaborate on the time period required for leave.

(3) All Requests for Leave Must be Treated as a Request for a Reasonable Accommodation. Any time an employee requests leave because of a medical condition, the employer must analyze the request under the ADA and Family and Medical Leave Act.

(4) “Automatic Termination” Upon Expiration of Leave is Risky. The EEOC warns against blanket policies that call for immediate termination where the employee exhausts leave. Reasonable accommodations must be considered.

(5) “Automatic Termination” Following a Particular Length of Leave as a Reasonable Accommodation is Risky. The EEOC also warns against termination that follows leave as a reasonable accommodation where there is no explanation for why the leave cannot continue. Don’t forget – the ADA requires an interactive process that involves a case-by-case assessment before any employment related decisions are made.

(6) Don’t Forget about Reassignment to a Vacant Position. The resource issues a reminder than an employer must, under the ADA, reassign an employee if their disability “prevents the employee from performing one or more essential functions of the current job, even with a reasonable accommodation, or because any accommodation in the current job would result in an undue hardship.” In other words, you should at least consider reassignment.

When is leave as a reasonable accommodation enough? How flexible does an employer need to be? These are questions for which there is no concrete answer. A case-by-case assessment is essential. I highly recommend vetting any decision in this regards with employment counsel to be sure that you have made every effort to comply with the ADA (and more importantly, avoid costly litigation). If you have questions on the ADA, the interactive process, or leave as a reasonable accommodation, please contact me. Another great New Year’s resolution – subscribe to future issues of this blog here.

Federal Court Hits Pause on Dec. 1 DOL Overtime Rule

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Extra, extra! Just when employers thought they had all of their ducks in a row to comply with the FLSA overtime changes and head out the door for Thanksgiving, a federal judge in Texas issued a game changer . . .  a temporary injunction stopping the implementation of the regulation changes to which employers were required to comply by December 1, 2016, i.e. one week from Thanksgiving.

As a recap, in May of 2016, the DOL published new regulations that raised the minimum salary level needed to qualify for a white collar exemption from the overtime compensation requirements of the FLSA from $455 per week ($23,660 annually) to $913 per week ($47,476 annually). Over the summer and with an uncertain political climate, prudent employers took initial steps to analyze the effects of the change on their business and put plans of execution in place. Then, in September of 2016, two lawsuits were filed, one on behalf of 21 states, the other by the U.S. Chamber of Commerce, challenging the regulation change and arguing that the DOL exceeded its authority in establishing the revised regulations. These two lawsuits were consolidated in October of 2016 and the parties began argument regarding the preliminary injunction requested by the plaintiffs. Following unsuccessful attempts to legislatively alter the rule, many, myself included, doubted that the litigation, which was assigned to Judge Amos Mazzant, a President Obama appointee, would impact the upcoming deadline. The more likely result was an enjoinment of the 3 year automatic update.

And yet, this evening, with only one week to go, the DOL’s regulations are officially on pause. In issuing the injunction, the Court explained, “Due to the approaching effective date of the Final Rule, the Court’s ability to render a meaningful decision on the merits is in jeopardy. A preliminary injunction preserves the status quo while the Court determines the department’s authority to make the Final Rules as well as the Final Rule’s validity.”

What does this mean for employers? The immediate result – the Dec. 1st deadline is a thing of the past. Employers are not required to comply with the new regulations, i.e., raise salaries for white collar exempt employees to maintain the exemption, by Dec. 1st. The long term result – the future of the overtime rule is certainly in doubt. Keep in mind that the injunction is temporary – it only delays the effective date of the new regulation until the Court makes a final determination on the merits of the case. However, to succeed on the preliminary injunction, the plaintiffs had to prove a “likelihood of success on the merits.” The Court found that this burden was met, noting “Congress did not intend salary to categorically exclude an employee with [white collar] duties from the exemption.”  If the injunction remains intact until President-elect Trump takes office, there is a good chance that it will see significant modification and amendment.  Had the injunction not been imposed and the final rule implemented, a new administration would have needed a new rule to modify or reverse the changes. In other words, stay tuned . . .

In the meantime, if you have any questions on how to respond to this change in your workplace, please don’t hesitate to contact me.

 

 

 

 

The Importance of the Written Job Description

job-1257204__180Employee Handbooks are critical to operating a business. They provide employees with valuable information on their rights and responsibilities and offer management a set of guidelines to follow to ensure that these rights and responsibilities are honored or satisfied. In my opinion, of equal importance are employee Job Descriptions. You will agree with me after hearing about the recent decision from the 4th Circuit Court of Appeals.

In March of 2016,  4th Circuit Court ruled in Stephenson v. Pfizer, Inc. that the plaintiff, a former traveling pharmaceutical sales representative, was entitled to a trial to determine the validity of her claim of discrimination in violation of the Americans with Disabilities Act. The employer had moved for summary judgment on the grounds that the traveling sales representative, who was fired after she developed an eye condition that rendered her unable to drive, could no longer meet the travel requirements of her job. No driving = no travel = can’t make sales. Seems simple enough, yes? Unfortunately, the employer did not have a written job description listing driving as an essential function of the job. The Court found the lack of memorialization of the importance of driving meant that it was an issue of fact whether driving – for a traveling salesperson – was truly an essential job function.

An individual is only protected by the ADA if he or she is “qualified,” that is, able to perform the “essential functions” of the job with or without a reasonable accommodation. The ADA defines an “essential function” as “fundamental job duties of the employment position that the individual with a disability holds.” The ADA only requires accommodations that would allow the employee to perform the essential functions of the job. While the plaintiff in Pfizer will face an uphill battle at trial to show that, based on other factors, driving was not an essential function of her job, had the job description made this clear, the employer may have had the dismissal of the case upheld by the 4th Circuit.

The lesson – have written job descriptions prepared for each employee position at your workplace. Most importantly, be sure these job descriptions are appropriately thorough and accurate. If you have questions on how to prepare proper Job Descriptions for your employees, please contact me. Let’s avoid unnecessary trials, shall we? Click here to subscribe to future blog posts on the ADA and other employment law matters.

DOL Mandatory Posters – HR’s Version of the Mona Lisa

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The Mona Lisa certainly has more of a following than the DOL posters, but just as the Mona Lisa is a must-see, DOL posters are a must-have.

On August 1, 2016, the DOL updated its mandatory posters for both the Federal Minimum Wage poster and the Employee Polygraph Protection Act poster. The wage poster has been revised to include a section on the rights of nursing mothers to receive reasonable break time to express breast milk, as well as new information on the consequences of incorrectly classifying workers as independent contractors. Civil monetary penalty limits have been removed from both posters, and the EPPA poster alters the toll-free phone number for employee reports of violations.

To stay compliant, human resource personnel and business owners should be sure that the newest versions of these posters are immediately displayed in the workplace. To make your jobs a little easier, I have provided below the links to these posters for your ease of reference. If you have other questions on these or any other mandatory federal and state postings, please contact me. I am no da Vinci, but I know my way around a Department of Labor poster.

Fair Labor Standards Act Minimum Wage Poster

Employee Polygraph Protection Act Poster

 

 

 

Tennessee Employers: Deadline to Amend Signs Prohibiting Firearms in Workplace

339554436_47892809d5_mTennessee law permits employers and business owners to prohibit employees and customers/clients from bringing firearms and weapons onto company premises, even when the individual has an otherwise valid carry permit. However, to effectuate this prohibition, employers and business owners must comply with the notice requirements of Tennessee statutory law, Tennessee Code Annotated section 39-17-1359(b), which was recently amended by Governor Haslam.

Under Tennessee law, an employer or business owner is authorized to prohibit the possession of firearms or weapons on company premises, so long as certain requirements are met. These requirements are as follows:

  • The employer/business owner must post a sign that includes the phrase “NO FIREARMS ALLOWED” in English.
  • The sign must be at least one inch high and eight inches wide.
  • The sign must include a visual representation – a circle with a diagonal line over a firearm. The diagonal line must be at a 45 degree angle from the upper left to the lower right side of the circle.
  • The visual representation mentioned above must be at least four inches high and four inches wide.
  • The sign must include the phrase “As authorized by T.C.A. § 39-18-1359”
  • The sign must be posted in prominent locations, including the entrance to the premises.

The new notice requirements are effective July 1, 2016, for employers who did not previously make use of signs to prohibit firearms and weapons on the premises. If the employer did use such signs prior to January 1, 2015, then the business has until January 1, 2018 to comply with the requirements listed above. If you have questions on these deadlines or the interaction of this law with the “Guns in Trunks” law, which permits employees to store firearms in vehicles on company property, please contact me.

Maternity Leave and Paternity Leave: What to Expect When Your Employees are Expecting?

9031445181_edebfc8b3b_mOnce the daycare arrangements are made and a copy of “What to Expect When You’re Expecting” lands soundly on the nightstand, the next call is to HR – “What maternity/paternity leave am I entitled to?” I get many questions from business owners anxious to be sure that they are providing the appropriate amount of leave to their employees. Below, I tackle some of the most common questions on maternity/paternity leave posed to me:

What maternity/paternity leave are employees entitled to?

Well, unless you are Netflix (one year leave!) – the types of maternity/paternity leave an employer must offer depends on the size of the business and the laws of the particular state.  As it pertains to federal law, employers with 50 or more employees must afford their employees with medical leave as guaranteed by the Family and Medical Leave Act (“FMLA”).  Under the FMLA, an eligible employee is entitled to up to 12 weeks of job-protected, unpaid leave during a 12 month period.

In addition to the protections offered by the FMLA, state laws may have a more generous maternity/paternity leave law in place.  For example, Tennessee has in place the Tennessee Maternity Leave Act, under which any employee working for a business with 100 or more employees is eligible for up to four months of job protected leave for childbirth, pregnancy, or adoption.

What if the employer has less than 50 employees and there is no state law on maternity/paternity leave that applies?

If not covered by the FMLA or another state or federal protection, it is in the employer’s discretion to set maternity/paternity leave policies.  Of course, even without leave guarantees, an employee may be entitled to certain other protections as a new parent. For instance,  under the Pregnancy Discrimination Act (“PDA”), which kicks in at the 15 employee threshold, an employer cannot discriminate against an employee because she is pregnant.

For businesses with less than 15 employees who fail outside of the FMLA, PDA, and Title VII – it is up to the employer to decide on and implement their own maternity/paternity leave policy. Generally, employers appreciate that maternity/paternity leave is an expected benefit for employees and, even if not covered by law, will provide the physician recommended 6 weeks of leave.

About the FMLA – discuss employee eligibility – what if leave was taken earlier in the year; is it paid?

An employee is “eligible” for medical leave under the FMLA if the following conditions are met:
  1. employed with the business for at least 12 months (it doesn’t have to be consecutive)
  2. worked at least 1250 hours in the preceding 12-months for the employer; and
  3. has a “qualifying reason” for the leave, which in this case is the “birth of a child, or to care for a newborn child.”

Although FMLA leave is unpaid,  many employers have policies that require employees to use paid leave at the same time they are exercising their FMLA leave.  If this is the case, then the employee will receive payment in accordance with company policy for the portion of leave that qualifies as accrued paid time off.  If an employee used this paid leave earlier in the year, it will not affect whether the individual is entitled to FMLA leave – however, no portion of the FMLA leave will be paid.

If the leave taken earlier in the year by the employee was FMLA leave, the employee is not be eligible for additional leave under the FMLA.  Eligible employees only get 12 weeks of FMLA leave in a 12 month period.  In other words, an employer is under no obligation to give an additional 12 weeks of leave. Of course, pregnancy cannot be a factor in the denial of additional FMLA leave.  In other words, an employer must uniformly apply a policy denying leave in all situations where FMLA leave is exhausted.  An employer cannot only deny additional FMLA leave for employees seeking maternity/paternity absence.

Final thoughts?

Maternity/paternity leave is full of nuances. Employers must have clear policies in place communicating to employees their rights and obligations as it pertains to receipt of FMLA leave. If you do not have a succinct policy in place or have additional questions on your rights to maternity and paternity leave under state and federal law, please do not hesitate to contact me.