Labor and Employment Law blog

Three Year Run Ends for Labor and Employment Law Blog

Exactly three years ago today we published our first post on laborandemploymentlawblog.com, welcoming everyone to a new legal blog. Our hope was that people would visit us time and time again, and benefit from the posts and articles we presented. As we stated then, the purpose of this blog was to provide easy-to-understand, accurate, and informative articles that involved labor and employment laws - articles that could be used to help organizations answer questions, craft employee policies and programs, and create positive and "best practices" working environments. Since that time, we have published close to 150 articles.

Our readers have included both employers and employees, private and public entities, and professionals from both large and small businesses and organizations. Since the first of this year, our readership has averaged approximately 10,000 page views per month - and for this we are very thankful. We also appreciate the many approving comments and the many email inquiries we have received over the past three years. Currently, this blog is rated in the top 5% of all legal blogs on the Internet and is considered one of the top employment blogs by a number of search engines.

However, today we are announcing that this will be the last published post for laborandemploymentlawblog.com.

To the many organization who we have reciprocal links with, we thank you for your partnership and hope we have brought readers to your websites and blogs.

It has been a great run. Thank you to all from laborandemploymentlawblog.com.

George Kittredge

Issues Employers Should Consider When Conducting a Workplace Investigation

Once the need for a workplace investigation has been identified and the investigator has been selected, the next step the employer should take is to prepare an Investigation Plan. When developing such a plan, here are a few issues that employers should be aware of and consider including in their plan.

1. When interviewing the accused, give the accused an opportunity for rebuttal of the allegations presented. The investigator should also ask the accused for any reasons they believe the complaining party would have to lie. Advise him or her of the possibility of discipline, but also give assurance that no conclusions will be reached until the investigation has been completed.
2. If the accused is represented by a union, be sure to follow the union contract and any special rules that may apply.
3. When interviewing the witnesses, give some thought as to the location of the interviews and the timing. Review witness personnel files and other relevant documentation (i.e. emails, production records, reports, timesheets, expens reimbursement records, telephone records, etc.), and beware of possible underlying motives and biases.
4. Establish a secure system of organizing and maintaining files and records.
5. When determining appropriate remedial action, ask yourself these questions. Do you have the whole story? Do the facts stand up? Was the investigation thorough? Was there a violation of the employer's policy? Was the conduct criminal? Does the punishment fit the crime?
6. When the investigation is completed, communicate the results to the appropriate persons. This should include follow-up with the victim, reporting any criminal conduct to the authorities, and following-up with witnesses, if appropriate.

This blog has written some other posts regarding workplace investigations that you may wish to read. Here are the titles and links.

Workplace Investigations - Who Should Conduct The Investigation?

Factors Used To Evaluate The Competency And Effectiveness Of A Workplace Investigation

Conducting A Proper Workplace Investigation - 13 Factors To Consider

Are There Any Employment Situations That Are Exempt From the ADEA?

Yes, there are certain employment situations that are exempt from the Age Discrimination in Employment Act (ADEA). Here are six such situations.

1. Whe age is a bona fide job qualification reasonably necessary to the normal operation of a particular business (i.e. modeling clothes for teenagers).
2. When the differentiation is based on reasonable factors other than age, such as the use of stringent physical requirements necessitated by the nature of the work, ADEA prohibitions do not apply.
3. When differentiations are based on the terms of a bona fide seniority system or any bona fide employee benefit plan, such as a retirement, pension, or insurance plan, the actions are exempt from the ADEA.
4. Another exception to the prohibition on mandatory retirement at any age covers state and local governments with mandatory retirement ages for firefighters and law enforcement officers.
5. When an individual has, for a two-year period prior to retirement, been employed in a bonafide executive or high policy-making position, and is entitled to an immediate, nonforfeitable, annual retirement benefit from a pension, profit-sharing, savings, or deferred compensation plan which equals at least $44,000, then compulsory retirement at 65 is not prohibited.
6. When there is a bona fide apprenticeship program, which has been traditionally limited to training younger persons for skilled employment, the ADEA prohibitions do not apply.

As in all applicable cases, the employer asserting any of these defenses has the burden of showing that the age limit is reasonably necessary.

Harassment Allegation Confidentiality - Some Considerations for Employers

An employer should make clear to all employees that it will protect the confidentiality of harassment allegations to the best of its ability and to the extent possible.

An employer cannot guarantee complete confidentiality, since it cannot conduct an effective harassment investigation without revealing certain information to the alleged harasser and potential witnesses. However, information about the allegation of harassment should be shared only with those who need to know about it. Records relating to harassment complaints should be kept confidential on the same basis.

A conflict between an employee's desire for confidentiality and the employer's duty to investigate may arise if an employee informs a supervisor about the alleged harassment, but asks him or her to keep the matter confidential and take no action. Inaction by the supervisor in such circumstances could lead to employer liability. While it may seem reasonable to let the employee determine whether to pursue a complaint or not, the employer must discharge its duty to prevent and correct harassment.

One mechanism to help avoid such conflicts would be for the employer to set up an informational phone line that employees can use to discuss questions or concerns about harassment on an anonymous basis.

Guidelines to Follow When Determining Family Medical Leave Eligibility for Your Employees

Are all employees eligible for family medical leave benefits? If you, as an employer, are unclear regarding eligibility standards, the following guidelines will be helpful.

1. The Family Medical Leave Act (FMLA) requires that an employee work for a covered employer and be employed by that employer for at least 12 months.
2. The employee must have worked at least 1,250 hours in the 12-month period immediately preceding any taking of leave.
3. The employee must be engaged at a worksite where 50 or more employees are employed by that employer within 75 miles of that worksite.

The law is clear that the 12 months needed for coverage need not be consecutive. In order to establish whether the 1,250 hours have been worked, the principles of the Fair Labor Standards Act (FLSA) are used. The employer has the burden of proving that the worker has not worked the requisite hours. However, in the case of full-time teachers, regardless of the teaching level, they are deemed to have met the 1,250-hour test.

The critical date for the application of these tests is as of the date of commencement of leave. An employer wo receives a "need for FMLA leave" request must act within two business days or the employee will be deemed eligible. Once eligible, the employee's eligibility is not affected by any subsequent change in the number of employees employed.

Finally, the 75-mile rule is measured by surface miles and the shortest route using transportation over public streets, highways, waterways, and the like.

In a future post, we'll discuss how you can determine how much leave an employee is entitled to.

If You Are Looking for an Outstanding HR Guidebook to Help Keep Your Business in Legal Compliance, This is it!

 Special $10.00 discount offer to employers and HR professionals.

If you do not have an easy-to-understand reference that explains all of the significant federal labor and employment laws and offers guidance on how to structure company policies and programs that comply with these laws, you definitely need to own this guide book.

What Every Business Manager and HR Professional Should Know About Federal Labor and Employment Laws, a 7th edition, has helped over 100,000 HR professionals - and it can be of terrific help to you.

Normally priced at $59.95, for a limited time only, this guide is being offered at a special price of $49.95!

How can it help you? Here are just some of the ways.

• If you work with independent contractors, it will provide you with guidelines on how to ensure they are not considered employees by the IRS.
• It discusses wage compliant issues including minimum wage and calculating overtime, and understanding exemption rules.
• It explains the anti-discrimination laws and EEOC enforcement procedures.
• It will help you determine how much medical leave an employee may be entitled to, provides guidelines for FMLA recordkeeping, and explains what a "serious health condition" is.
• It offers guidance on how to respond to a harassment complaint, how to establish an anti-harassment policy, and how to properly conduct a workplace investigation, should one be necessary.
• It explains how to respond to and accommodate employees with disabilities.
• It offers practical advice on how to avoid age discrimination issues.
• It explains what OSHA is and does.
• It offers procedures and guidelines on maintaining fair labor practices, and how to respond to union issues and organizing efforts.
• It provides an excellent overview of employee health and insurance laws including COBRA.
• It offers advice regarding testing or not testing for drugs and alcohol in the workplace and guidance on how to set up an alcohol abuse prevention program.
• It provide outlines and checklists on employee hiring procedures, applications, performance reviews, termination procedures, and personnel practices that should be avoided.
• And much, much more!

Throughout the 18 chapters and 301 pages, you will find numerous question and answer sections that address issues you face every day. For example, there are over 40 FAQs on the FMLA. And what a terrific book to use if you want to train any of your supervisors on how to avoid adverse employee issues and how to respond should one occur.

Only $49.95. This book will pay for itself on day one - the first time you use it.

To take a close-up look "inside the book" and to order your copy, please click here. To receive the special discount price, simply enter discount code 103FEL in the code box on the order form.

This is indeed a special offer, and one you will be happy you took advantage of.

And, for those of you who have a copy of this guidebook, please leave a comment below and tell everyone what you think of it or how you are using it. Many thanks.

Some Important Guidelines Regarding National Origin Discrimination

The Equal Employment Opportunity Commission (EEOC) broadly defines national origin discrimination as including, but not limited to, the denial of equal employment opportunity because of an individual's place of origin, or because an individual has the physical, cultural, or linguistic characteristics of a national origin group.

The Commission will examine, with particular concern, denied opportunity for reasons that are grounded in national origin considerations such as:

• marriage to, or association with, persons of a national origin group;
• membership in or association with an organization identified with, or seeking to promote the interests of national origin groups;
• attendance or participation in schools, churches, temples, or mosques generally used by persons of a national origin group; or
• because an individual's name or spouse's name is associated with a nation origin group.

The "speak English only" rule: The Commission will presume that a rule requiring employees to speak only English at all times in the workplace may violate Title VII as a burdensome term and condition of employment. Requiring employees to speak only in English at certain times would not be discriminatory if the employer shows that the rule is justified by business necessity.

Accent: The Commission has determined that an employer must show a legitimate non-discriminatory reason for the denial of employment opportunity because of an individual's accent or manner of speaking. Requirements that employeees or applicants be fluent in English may also violate Title VII.

Harassment: The Commission has consistently held that harassment on the basis of national origin is a violation of Title VII. It holds that an employer has an affirmative duty to maintain a working environment free of harassment on the basis of national origin.

For more in-depth information on this subject, we suggest you visit the EEOC website regarding Title VII National Origin Discrimination. To do so, please click here.

The Six Requirements of the "Belo Plan" - Something Employers Should Be Aware Of.

The Fair Labor Standards Act (FLSA) does permit a wage plan that provides for a constant wage, even though overtime is worked. It is know as the "Belo Plan," named after the company that successfully argued its merits to the U.S. Supreme Court.

The Belo Plan is designed for salaried employees who work irregular hours, but there are a number of restrictions. Under this Plan, the employer and the employee agree on an hourly rate of pay which is substantially less than the employee's average hourly earnings in an ordinary week. The employee is promised this hourly rate for the first 40 yours each week, not less than time and one-half this rate for overtime hours, with a guarantee of a certain weekly salary regardless of the number of hours the employee works.

The Belo Plan is appropriate when the employee's job demands irregular hours of work. However, the following six requirements must be adhered to:

1. There must be a written agreement between the employer and the employee.
2. The employee's regular hourly rate must be specified.
3. The employer must guarantee time and one-half the regular rate for hours worked over 40.
4. The employer must guarantee a weekly salary, regardless of the number of hours actually worked.
5. The guaranteed weekly salary may not cover more than 60 hours per week.
6. When the employee's earnings at the regular rate for 40 hours and time and on-half for additional hours exceed the amount of the guarantee, the employee must be paid the excess over the guarantee.

For more information about Belo Plans, and a detailed explanation of compensation considerations, you might like to read an article written by Robert Ditmer.

Employers' Obligations and the Six Basic Objectives of Workers' Compensation

The basic tenet of workers' compensation laws is that employers are to provide compensation in the form of wage replacement and the cost of all reasonable and necessary hospital, surgical, and medical expenses, for all accidental injuries or illnesses and death arising out of, an in the course of, employment. In return, employees give up their right to sue their employer for damages resulting from injuries which they incur while working.

Each of the 50 states has its own worker's compensation law. In addition, there are federal laws, including the District of Columbia Workers' Compensation Act, the Federal Employee's Compensation Act, and the Longshoremen's and Harbor Workers' Compensation Act.

Employers, in understanding what their workers' compensation obligations are, should be aware of the following six basic objectives that underly workers' compensation laws:

1. Provide sure, prompt, and reasonable income and medical benefits to work accident victims, or income benefits to their dependents, regardless of fault.
2. Provide a single remedy and reduce court delays, costs, and workloads arising out of personal-injury litigation.
3. Relieve public and private charities of financial drains incident to uncompensated industrial accidents.
4. Eliminate payment of fees to lawyers and witnesses as well as time-consuming trials and appeals.
5. Encourage maximum employer interest in safety and rehabilitation through an appropriate experience-rating mechanism.
6. Promote the frank and open study of causes of accidents (rather than concealment of fault), thereby reducing preventable accidents and human suffering.

For some ideas on how employers can control workers' compensation costs, simply click on the following link.

Workers' Compensation - 10 Suggestions For Controlling Cost

What Employers Should Know About The Fair Credit Reporting Act

The Fair Credit Reporting Act (FCRA) provides employees certain rights regarding credit checks and general investigative background checks obtained from third parties. The FCRA also governs the disclosure of "consumer reports," which includes information provided by consumer reporting agencies that address credit, character, general reputation, personal characteristics or mode of living. The Federal Trade Commission has an excellent article that explains what specifically consumer reports are and what employers should know about them. To view the article, click here.

Although employers often fail to recognize that the FCRA applies in the employment context, criminal background investigation reports and credit histories generally fall within the FCRA's scope.

The FCRA requires employers to provide employees certain notices and disclosures before requesting a report, before taking any adverse action based on the report, and after taking adverse action based on the report. There are, however, limited exceptions from these notice and disclosure requirements where the report concerns suspected employee misconduct, or compliance with federal, state, or local laws or regulations or preexisting written employer policies.

Yale University has a webpage that discusses the specific rights outlined in the Fair Credit Reporting Act. Although it has been published for the employee, it is very informative from the employers' perspective as well, and worth a read. To view the write-up, clear here.

If the report falls within one of these exceptions, the statute requires only limited employee notice, but still restricts access to the report to individuals or organizations prescribed by statute.