Want to know the latest buzz in the HR arena? Professional Employer Resources has a world of information in our newsletter. Not only is it fun, it’s resourceful! Including, important changes to federal and state employment practices.
Eighty five percent (85%) of all employment lawsuits can be prevented!
“Reality TV” at Work
HR Stories From The Front Lines*
What do you do when your manager’s intoxicated girlfriend confronts him at work about his affair with another woman? The catch … both women are current employees, subordinates of the manager, and one is pregnant.*
Do you have an HR question keeping you up at night?
The following question was submitted to our HR Professionals in the past month …
Question #1
I am the HR manager of a family-owned business with several different entities – each of which is a separate corporation owned by the family. In recent months, I have noticed a trend of former employees applying for positions at one of the other locations and some of these former employees are not subject to rehire at their previous location. To avoid this problem, can I provide a report of former employees who are not eligible for rehire to the managers of our other locations?
Question #2
Is it legal for a company to hire a new employee and put them on a 3-month probation period to see if the worker and the job are a good fit and if not a good fit is that grounds for termination?
You had an employee who started work for you in 2017. She was a good employee until last spring and that was reflected on her reviews. She started slipping in her performance in April. She missed deadlines, became sloppy with her work, and overall was not performing as she had in the past. You talked to her, but there wasn’t any documentation. She knew what she was doing wrong; she was just being careless. She told you she’d improve, but she didn’t. Recently, she asked for a few days off to attend a convention for her church. You let her go, but it didn’t help matters; her performance continued to slide. While she was out, you found a significant error she’d made which impacted a customer. You’d finally had it and terminated her. From your perspective, it shouldn’t have been a surprise; you had been talking to her about the problems for a while. You were shocked when you received a charge from the EEOC claiming discrimination based on religion. You didn’t fire her because of her religion; she wasn’t doing her job! You tried to explain to the EEOC. How did they respond?
Choose the best answer.
They completely understood. Once you explained the course of events, they could understand why she needed to be terminated and dismissed the charge.
They asked you and her supervisor a lot of questions. It seemed they were looking for ways you’d discriminated against her, making implications you didn’t feel were accurate. It was very frustrating. You didn’t feel it went well, and you don’t know what will happen next.
They asked to see documentation of her performance problems. They wanted to see evidence you’d talked to her. They asked if she was disciplined for her behavior – in writing. They asked a lot of questions about her absence, and why you terminated directly after it. In the end, they concluded you had discriminated against her, and her termination was retaliation for taking the time off to attend her church conference.
You hired a lawyer and spent tens of thousands of dollars to defend yourself. It got ugly and you didn’t win.
This information is provided by ePlace Solutions, Inc. which is solely responsible for its content. ePlace Solutions, Inc. is not engaged in rendering legal or other professional services. Federal and state laws are more complex than presented here. This information is simplified for the sake of brevity and is not a substitute for legal advice. ePlace Solutions, Inc. disclaims any liability, loss or risk incurred as a consequence, directly or indirectly, of the use and application of any of the contents of this information.
Want to know the latest buzz in the HR arena? Professional Employer Resources has a world of information in our newsletter. Not only is it fun, it’s resourceful! Including, important changes to federal
and state employment practices.
Eighty five percent (85%) of all employment lawsuits can be prevented!
Untangling an Employee’s Web of Deception
HR Stories From The Front Lines*
What may seem like an employee’s far-fetched conspiracy theory that a manager is out to sabotage the employee is not a conspiracy theory at all. This is what happened when a hotel manager prompted a guest
to give a negative review about one employee’s performance.*
Do you have an HR question keeping you up at night? The following question was submitted to our HR Professionals in the past month …
Question #1
In a non-unionized workplace, does federal law permit an employer to prevent employees from talking about their wages? Would amending the employee handbook to prohibit the discussion of wages/salary be
the correct approach?
Question #2
Your employee is an opiate addict and has been since you hired him (so much for your pre-employment screening and interview process!). His name is Oscar the Opiate Addict. He’s your in-house IT network
administrator. Unbeknownst to you, Oscar the Opiate Addict has participated in a physician-supervised, medication-assisted treatment (MAT) for the addiction since 2015. Last month, Oscar the Opiate Addict
took two weeks of his vacation time and voluntarily admitted himself to an inpatient treatment facility to eliminate the need for MAT. He successfully completed the inpatient treatment and returned to
work.
Upon his return to work, you learned that Oscar the Opiate Addict spent his vacation in a treatment program for Opiate addiction. Your understanding of the Americans with Disabilities Act is that a “recovered”
addict is no longer “disabled” under federal law nor under the law of your state. After discussing with senior management, everyone agrees: it is too risky to have an Opiate addict (even if “recovered”)
serving as the IT network administrator. After all, IT systems are the backbone of the company. Since he is no longer “disabled”, you terminate Oscar. All employees (including Oscar) are “at will”, of
course, and it says so in your employee handbook. Choose the best answer.
You just avoided a huge potential problem. You terminated Oscar the Opiate Addict when he’s not protected by the ADA. If you waited, he might start using opiates again, enter into a recover program, and
you’d be stuck. At that point, Oscar would be covered and protected by the ADA again.
You just screwed up big time. Once an addict, always an addict and protected by the ADA.
This information is provided by ePlace Solutions, Inc. which is solely responsible for its content. ePlace Solutions, Inc. is not engaged in rendering legal or other professional services. Federal and
state laws are more complex than presented here. This information is simplified for the sake of brevity and is not a substitute for legal advice. ePlace Solutions, Inc. disclaims any liability, loss or
risk incurred as a consequence, directly or indirectly, of the use and application of any of the contents of this information.
Want to know the latest buzz in the HR arena? Professional Employer Resources has a world of information in our newsletter. Not only is it fun, it’s resourceful! Including, important changes to federal and state employment practices.Eighty five percent (85%) of all employment lawsuits can be prevented!
Why You Should Never Skip the Investigation Process
HR Stories From The Front Lines*
Even small-town businesses face big city problems. Such is the case for Paperco. Tom has worked for them for three years without any issues – no verbal warnings, write-ups, or performance concerns. He’s been a model employee, but that’s all about to change.*
Do you have an HR question keeping you up at night?
The following question was submitted to our HR Professionals in the past month …Question #1
We recently received an anonymous report that one of our employees was arrested for sexually assaulting a minor. We were able to confirm that an arrest occurred, but have not found any information indicating that the employee was charged with this crime. We are a restaurant that serves minors and have some concerns. How should we best address this situation?Question #2
We have an employee who has been out on FMLA leave. This employee’s FMLA leave benefits expire on May 5, 2019. We received a doctor’s note from the employee on May 6th advising us that he is unable to return to work until August. How should we address this employee’s request for an extension of leave?View the Answer (Opens in a new window)
What Type(s) of Leave Apply?
Brain Teaser
Managing leaves can be complex, especially when multiple leave laws may apply to a situation.
You have an employee that twists her ankle on the job:
Your employee has worked for you for two years as a server. She has worked a total of 1485 hours in the last year. You have 35 employees at one location and 25 miles away you have 40 employees at another location. She is pregnant and is planning to take time off to bond with her baby. She just slipped in the kitchen and twisted her ankle. She needs to be off of her feet for 6 weeks for her ankle to heal.
How do you handle this time off?
Family Medical Leave Act – She has a serious medical condition that prevents her from working.
State Pregnancy Disability Leave – She’s pregnant and disabled so this leave must apply.
Workers’ Compensation Leave – She was hurt on the job, so it has to be designated as workers’ comp.
Americans with Disabilities Act – Since she is disabled, she would have protections under this law.
This information is provided by ePlace Solutions, Inc. which is solely responsible for its content. ePlace Solutions, Inc. is not engaged in rendering legal or other professional services. Federal and state laws are more complex than presented here. This information is simplified for the sake of brevity and is not a substitute for legal advice. ePlace Solutions, Inc. disclaims any liability, loss or risk incurred as a consequence, directly or indirectly, of the use and application of any of the contents of this information.
Want to know the latest buzz in the HR arena? Professional Employer Resources has a world of information in our newsletter. Not only is it fun, it’s resourceful! Including, important changes to federal and state employment practices.Eighty five percent (85%) of all employment lawsuits can be prevented!
Be Wary Before Denying Religious Accommodations
HR Stories From The Front Lines*
Most workplaces have dress codes that employees must follow, and, on occasion, you’ve probably had to discuss appropriate work attire. But what would you do if your employee showed up wearing
a cloak and informed you it was for a religious accommodation? That’s exactly what happened to HR Director Riley.*Read on (Opens in a new window) to see how she handled the situation gracefully.
(*These incidents really happened; but names and other details have been changed.)
Stay Up to Date on the Latest Employment Legal Updates
Do you have an HR question keeping you up at night?
The following question was submitted to our HR Professionals in the past month …Question #1
We have a general manager who has been accused of engaging in a romantic relationship with a subordinate employee. If this accusation is true, it would be a violation of our company policy. How should we best address this complaint?Question #2
Our IT Manager is not meeting our company’s attendance expectations. The IT Manager is an exempt employee and, when we have talked to him about this problem, he has told us that as an exempt employee, he is able to have a flexible schedule and work when/where he chooses.
Are we able to hold him accountable to work a consistent schedule?
You run a 24 hour/7 day a week manufacturing operation. On the application form, you ask applicants for their availability throughout the week. On his application, Kevin stated he can work any time, any day of the week. Once hired, he lets you know he cannot work on Saturdays for religious reasons. Company policy states all employees will be rotated to work weekends and no accommodations will be made for any reason. While you can probably accommodate Kevin’s request, you fear others will complain the accommodation is unfair and employee morale will be affected.
How should you handle this issue?
You must accommodate the employee. Your policy or the fact that other employees think it is unfair has no bearing on your requirement to accommodate under the law.
You cannot accommodate Kevin’s schedule. Your company policy does not allow for any accommodation. This would not be fair to others and would be “reverse discrimination.”
Kevin did not indicate his need for accommodation and lied on his application; therefore, he forfeited his right to a religious accommodation.
This information is provided by ePlace Solutions, Inc. which is solely responsible for its content. ePlace Solutions, Inc. is not engaged in rendering legal or other professional services. Federal and state laws are more complex than presented here. This information is simplified for the sake of brevity and is not a substitute for legal advice. ePlace Solutions, Inc. disclaims any liability, loss or risk incurred as a consequence, directly or indirectly, of the use and application of any of the contents of this information.
Want to know the latest buzz in the HR arena? Professional Employer Resources has a world of information in our newsletter. Not only is it fun, it’s resourceful! Including, important changes to federal and state employment practices.Eighty five percent (85%) of all employment lawsuits can be prevented!
Don’t Ever Say This to a Pregnant Employee
HR Stories From The Front Lines*
Most people have good intentions, especially when accommodating the needs of a pregnant employee. Unfortunately, making recommendations for pregnancy leave without being asked for them can get you in hot water.*
Read on (Opens in a new window) to learn how one employer mishandled this delicate situation and how you can avoid doing the same.
(*These incidents really happened; but names and other details have been changed.)
Stay Up to Date on the Latest Employment Legal Updates
Do you have an HR question keeping you up at night?
The following question was submitted to our HR Professionals in the past month …Question #1
We are planning to install video surveillance in the workplace. Is posting a sign in the workplace considered sufficient notice of the surveillance to employees?Question #2
We have an employee who has an extreme case of psoriasis and works in our deli department. Her skin condition makes it difficult for her to work around food due to health and safety requirements of the grocery store and deli. We have engaged in the interactive process with this employee, but none of the accommodations have worked. We even offered to switch the employee’s schedule so she can work the overnight shift in the warehouse instead of her usual day shift in the deli department. Do you have any other suggestions?
Every company has one, a difficult employee to deal with. They are late, insubordinate, poor performers and, well…just bad! To add insult to injury, you attempt to discipline this employee by writing her up. During your discussion, the employee exclaims, “I’m not signing that, it’s not true and I don’t agree with it!”
How should you handle this issue?
You stop the meeting and shred the write up. What’s the point, she won’t sign it.
Terminate the employee for not signing the write up. That’s insubordination.
Write in “Refused to Sign” and date on the employee signature line. The disciplinary action is valid and in force.
This information is provided by ePlace Solutions, Inc. which is solely responsible for its content. ePlace Solutions, Inc. is not engaged in rendering legal or other professional services. Federal and state laws are more complex than presented here. This information is simplified for the sake of brevity and is not a substitute for legal advice. ePlace Solutions, Inc. disclaims any liability, loss or risk incurred as a consequence, directly or indirectly, of the use and application of any of the contents of this information.
Want to know the latest buzz in the HR arena? Professional Employer Resources has a world of information in our newsletter. Not only is it fun, it’s resourceful! Including, important changes to federal and state employment practices.Eighty five percent (85%) of all employment lawsuits can be prevented!
Is an Off-Duty Lap Dance Request Cause for Alarm?
HR Stories From The Front Lines*
Many employees moonlight to make ends meet, which is permissible as long as their other job doesn’t interfere with the workplace. What would you do if you learned that an employee’s second job caused one of your managers to engage in questionable off-duty behavior?*
Do you have an HR question keeping you up at night?
The following question was submitted to our HR Professionals in the past month …Question #1
Our company is currently experiencing a measles outbreak amongst our workforce. Are we able require employees stay home while they are contagious? Also, do you have any recommendations on steps we can take to prevent future outbreaks?Question #2
We have a cook who recently returned from a medical leave of absence. The cook is on light duty, but we recently discovered that he is taking medication related to his recovery. We are concerned that the medication may have side effects (such as drowsiness or dizziness) that may place the employee in danger. What can we do to ensure that the employee remains safe at work?View the Answer (Opens in a new window)
Can You Ask This Question During An Interview?
Brain Teaser
You are interviewing for an all-night cashier/manager position at your convenience store. The candidate you are about to interview seems like a perfect fit for the job. She has managed other convenience stores and has no problem working the graveyard shift.
When this candidate comes in, you are quickly disappointed. You are not quite sure, but it appears she may be a few months pregnant. You are worried about her safety and the safety of her baby if she is pregnant. You want to make sure she’s able to do the job. In addition, it has been really hard to find someone to fill this position. Having her leave for a few weeks, after being newly hired would be a hardship on your business.
How should you handle this issue?
You have the right to ask, especially if she’s going to take time off immediately after you hire her.
You cannot ask a woman if she’s pregnant. This is discrimination.
OSHA requires you to keep your employee’s safe. This job can be dangerous. You cannot put her safety at risk, or the safety of her unborn child.
While asking the question is not illegal, exposure to a claim of discrimination may be established by the known information.
Want to know the latest buzz in the HR arena? Professional Employer Resources has a world of information in our newsletter. Not only is it fun, it’s resourceful! Including, important changes to federal and state employment practices.Eighty five percent (85%) of all employment lawsuits can be prevented!
How to Fire an Employee Without Him Firing His Weapon
HR Stories From The Front Lines*
The news has been inundated with stories of workplace violence — from shootings, to bomb threats — and no company wants to be the next headline. As such, employers must be extremely cautious in the face of situations that may spark aggressive behavior. See how one HR Director handled the termination of a potentially violent employee…*
Do you have an HR question keeping you up at night?
The following question was submitted to our HR Professionals in the past month …Question #1
We have an exempt employee who has been out on a leave of absence since mid-January. This employee has been choosing to work 2-3 hours every day. How should I compensate this employee for the time worked? Do I pay him just for the hours worked or am I required to pay the employee his full weekly salary?Question #2
We have an employee who was recently in a (non-work-related) car accident and is going to be off work for several weeks. This employee is asking for FMLA leave. What are our responsibilities with respect to providing this employee with FMLA?View the Answer (Opens in a new window)
Deductions To An Exempt Employee’s Salary
Brain Teaser
You know deductions to an exempt employee’s salary are limited under federal and sometimes state law. You have an exempt employee who quit in the middle of a workweek. The employee states you must pay her for the entire week.
How should you handle this issue?
You must pay the employee for the entire week.
During the initial or terminal week of employment an individual’s pay may be reduced to reflect days actually worked.
You are not required to pay any portion of the week since the employee ended employment in the middle of a workweek.
Want to know the latest buzz in the HR arena? Professional Employer Resources has a world of information in our newsletter. Not only is it fun, it’s resourceful! Including, important changes to federal and state employment practices.Eighty five percent (85%) of all employment lawsuits can be prevented!
Avoid Potential Lawsuits by Calling an HR Professional
HR Stories From The Front Lines*
Have you ever wondered why we encourage you to call an HR Professional before every termination? Simple. 85 percent of all employment lawsuits can be prevented just by making one simple call. Sounds too good to be true, right? This story illustrates how one simple call to our HR Professionals saved a company from not one but several potential lawsuits.*
Do you have an HR question keeping you up at night?
The following question was submitted to our HR Professionals in the past month …
Question #1
We have three employees who have been out of work due to serious health conditions. We have not provided any of these employees with FMLA paperwork, but all of these employees have worked for the company for over a year.
Are we required to continue the employees’ healthcare benefits during their time off?
Question #2
We have an employee who requested accommodations for him to return to work or to extend his leave of absence. Right now, he has exhausted his FMLA and has been on leave for about 8 months. If it is difficult for the business to accommodate this request, could we simply extend his leave till further restrictions (like the requirement of a chair while working.) are removed?Are there any liability risks to the business that we should be aware of if we simply extend this leave?
Managing leaves can be complex, especially when multiple leave laws may apply to a situation.
You are the owner of two restaurants that are approximately 40 miles apart. You employ 35 employees at one location and 25 employees at the second location.
Sally has worked for your company for two years as a server. In the past 12 months, Sally has worked a total of 1485 hours.
Yesterday, Sally slipped in the kitchen and twisted her ankle. According to her doctor, she needs to be off of her feet for 6 weeks for her ankle to heal.
To further complicate matters, Sally is 6 months pregnant and is planning to take time off after the baby is born for post-partum recovery and baby bonding.
How do you handle Sally’s leave of absence request?
The leave of absence should be categorized as:
Family Medical Leave Act – She has a serious medical condition that prevents her from working.
State Pregnancy Disability Leave – She’s pregnant and disabled so this leave must apply.
Workers’ Compensation Leave – She was hurt on the job, so it has to be designated as workers’ comp.
Americans with Disabilities Act – Since she is disabled, she would have protections under this law.
Want to know the latest buzz in the HR arena? Professional Employer Resources has a world of information in our newsletter. Not only is it fun, it’s resourceful! Including, important changes to federal and state employment practices.Eighty five percent (85%) of all employment lawsuits can be prevented!
How to Avoid a Costly Leave of Absence Mistake
HR Stories From The Front Lines*
Managing an employee’s leave of absence can be very tricky – especially when it spans several months. While you may be tempted to “cut ties” with an employee on extended leave, don’t make that move without reading this
cautionary tale.*Read more (Opens in a new window)
(*These incidents really happened; but names and other details have been changed.)
Stay Up to Date on the Latest Employment Legal Updates
Do you have an HR question keeping you up at night?
The following question was submitted to our HR Professionals in the past month …
Question #1
I have an employee who faxed over a doctor’s note taking her out of work for a month. She is due back on 1/17/19, however she was only mailed the Notice of Eligibility and Rights and Responsibility notifications. Would it be too late to send out a Designation Notice? I am concerned she may not be counting this time off towards her FMLA leave since we never designated it.
Question #2 We have a foreman whose job performance has declined over the past several months. We have spoken to him several times about his recent job performance problems, but this employee has not shown any improvement. While we are not at the point where we are looking to terminate this employee, we are looking for suggestions on how to best proceed to address this situation.
Consider the following situation: You hired Roberta in September. She seemed fine during the interview…just a little nervous. She was the best candidate interviewed, so you extended her an offer of employment.
After she was hired, you discovered that Roberta is a slow learner (and you suspect that she might have a learning disability). She also has a difficult time receiving criticism.
Now, four months into her employment, Roberta has been having what appear to be panic attacks. You have moved her to several different positions. Unfortunately, her panic attacks have continued and hinder her ability to interact with the public, which is an essential function of her job.
While you’re always willing to give an employee a chance, you really don’t think Roberta is going to improve. You would like to terminate her; after all, she’s an at-will employee.
Is termination the best option?
Absolutely; though you feel sorry for Roberta, you need people who can work, and you don’t have time to babysit her.
Maybe; since Roberta has not told you she has a disability or needs an accommodation, you do not have to worry about potential disability discrimination.
Yes; if Roberta had some type of physical condition or disability, you understand you’d have to accommodate her, but you cannot accommodate a mental problem.
No, or at least not yet. You need to learn more about Roberta’s condition before making any decisions.
Want to know the latest buzz in the HR arena? Professional Employer Resources has a world of information in our newsletter. Not only is it fun, it’s resourceful! Including, important changes to federal and state employment practices.Eighty five percent (85%) of all employment lawsuits can be prevented!
The Most Shocking Terminations of 2018
HR Stories From The Front Lines*
Our HR Professionals provide support for thousands of terminations throughout the year, most of which involve typical “run-of-the-mill” offenses. Surprisingly, there are always a handful of cases where the employee’s conduct shocks us, and we’re left wondering how someone could actually act that way at work. Click here to read about the top five shockers from 2018..*
Do you have an HR question keeping you up at night?
The following question was submitted to our HR Professionals in the past month …Question #1
I recently received an anonymous complaint via our Employee Complaint Hotline where the employee complained that one of our Area Coaches was acting in a discriminatory manner towards women. Can you please provide me with guidance on how to best investigate this complaint?View the Answer (Opens in a new window)
Even Easy Terminations Lead to Claims
Brain Teaser
Henry has worked for your company for over a decade and, until recently, has been a good performer. However, over the past six months, Henry’s performance has started to slide.
You have talked to Henry about your observations with his performance on several occasions, but you did not document any of these conversations. During your conversations, Henry admitted that his performance has slipped and that he has been making several mistakes. Each time, Henry promises he will improve, but he hasn’t shown any improvement.
Last week, Henry asked for a few days off to attend a convention for his church. While he was out, you discovered he had failed to complete a project by the deadline, negatively impacting a customer.
Based on his decline in performance and the recently discovered error, you decide to terminate Henry.
Yesterday, you were shocked when you received a charge from the EEOC claiming discrimination based on religion. You didn’t fire Henry because of his religion. Henry was fired because he wasn’t doing his job.
You tried to explain that to the EEOC. Likely, the EEOC responded:
They completely understood. Once you explained the course of events, they could understand why Henry needed to be terminated and dismissed the charge.
They asked you and Henry’s supervisor a lot of questions. It seemed like they were looking for ways that you’d discriminated against him. Making implications that you didn’t feel were accurate. You didn’t feel it went well and you don’t know what will happen next.
They asked to see documentation of Henry’s performance problems. They wanted to see the evidence that you’d talked to him about his poor performance. They asked if Henry was disciplined for his poor performance, in writing. They asked a lot of questions about his absence and why you terminated Henry immediately following his return to work. In the end, the EEOC concluded you had discriminated against Henry and his termination was retaliation for taking time off to attend a church conference.
The end of the year is a busy time for all HR Professionals. Along with the critical year end tasks that must be completed, there are also other items that should be completed to help your organization move seamlessly into 2019. To help you prepare for the new year, we have prepared a checklist of some of the key tasks you should complete before the start of 2019 …