Your Employee Matters

In a recent California Court of Appeals case, Brinker Restaurant Corporation v. Superior Court, the court discussed what it means to “provide” meal and rest periods. The decision made some significant conclusions:

• “While employers cannot impede, discourage or dissuade employees from taking meal or rest periods, they need only provide them, and not ensure they are taken;”
• “Employers need only authorize and permit rest periods every four hours or major fraction thereof and they need not, where impracticable, be in the middle of each work period;”
• “Employers are not required to provide any meal period for every five consecutive hours worked;” and
• “While employers cannot coerce, require or compel employees to work off the clock, they can only be held liable for employees working off the clock if they knew or should have known they were doing so.”

In other words, the court made it clear that although the employer must make meal and rest periods available, it does not have to force an employee to take such a break.

The decision also provided examples of how an employer would be non-compliant; for example, when an employer did not schedule meal periods, did not have a policy authorizing meal periods, or pressured employees to skip meals. The court further noted that if an employer knew that employees were working while eating, and did not take steps to address the situation, the employer would be depriving employees of such breaks and, thus, would have failed to provide meal periods.

This decision provides California employers with a new level of flexibility in scheduling and permitting employees to take their meal and rest periods. The decision also highlights the importance of employer wage-and-hour practices and policies, and reminds them to review employee handbooks and other policies to ensure compliance with the clarified meal and rest period laws.

Courtesy of Pettit Kohn Ingrassia and Lutz (San Diego, CA).

The FMLA, although still a source of frustration for employers in regard to its administration, is a common sight in employer handbooks. Federal law requires all employers covered by the FMLA to have an appropriate FMLA policy in any handbook or compilation of written work rules and policies. Employers can certainly offer more generous FMLA-type leave benefits if they so choose. On the other hand, inadvertent exclusion of FMLA eligibility requirements from an employee handbook might subject employers to unintended liability based on implied contract theories.

For example, in Peters v. Gilead Sciences, Inc., when an employee suffered a shoulder injury and underwent corrective surgery, he took what he thought was FMLA leave, as outlined in the employer’s handbook and as further explained to him in letters from the employer outlining his rights under the FMLA. Although the handbook and letters recited the 12-month, 1,250-hour prerequisites for FMLA eligibility, they listed no further requirements or exceptions. In fact, the handbook and letters stated that family and medical leave would be provided to “all employees” who were employed for at least 12 months with a minimum of 1,250 hours worked during the prior 12 months. The other key statutory eligibility requirement, not mentioned in either the handbook or the letters, was that the employee be working at a worksite with at least 50 employees within a 75-mile radius. Because the employer did not, in fact, have 50 employees within 75 miles, technically, the employee was not eligible for FMLA leave under the federal law.

So, when the employer miscalculated the employee’s return-to-work date and replaced him with another employee based on the improper date, the employee sued in federal court alleging violations of the FMLA and a state-law claim for promissory estoppel based on his reliance on the employer’s representations regarding his entitlement to medical leave. Although the FMLA claims were dismissed on summary judgment, the court found that, based on the employee handbook and letters to the employee, the employee could bring a state-law claim for promissory estoppel because of the employee’s detrimental reliance on the letters and handbook. Because the handbook excluded from the entitlement to 12 weeks of leave only those who did not meet the prerequisites of 12 months’ employment and 1,250 hours of work in the preceding 12 months, the court concluded that the employer offered “FMLA-like” leave benefits, using eligibility requirements less restrictive than those in the FMLA (and had offered FMLA-like leave to employees who worked at a worksite that did not have at least 50 employees within a 75-mile radius).

Although employers are entitled to offer benefits more generous than permitted under the FMLA, those employers who don’t intend to do so should ensure that their FMLA policies and related documents reflect exactly the leave that the employer seeks to grant. So if you want to provide only that required by the FMLA, your policies must include all statutory eligibility requirements. HR That Works users should consider using the Sample FMLA Policy.

Courtesy of Shawe Rosenthal, a Worklaw® Network member in Maryland.

I love the notion of trusting relationships. I’ve also come to learn that you can’t trust blindly. That’s a game that fools play and then wonder why they get burnt. I know because I’ve been there.

You can’t trust employees blindly. Employees are there to perform work that produces a profit or other defined value-producing outcome. Anything short of this is unacceptable and the cause of eventual business failure. Here are some ways I’ve seen well-intended employers get burnt:

1. They’ll steal your money. You must have checks and balances around any money, anywhere. Is your CPA checking the work of your bookkeeper? Do all P&Ls and banker reconciliations have to be signed off by more than one person? Do you have specific rules about handling cash? Have you considered video surveillance anywhere cash or money is handled? The point is: Don’t conduct social experiments! You might be doing OK financially, but there are people out there who are not. The temptation can be overwhelming when panic is at their doorstep.

2. They’ll steal your merchandise. Employee pilferage in the retail industry is alarming. But guess what? It’s the same in every industry! Employees are stealing everything from office supplies to equipment, tools, furniture, food, employee valuables, you name it. If you run a retail operation without surveillance, you’re conducting a social experiment. If you have equipment that hasn’t been stamped and bar-coded, you’re conducting a social experiment. If your security guard isn’t watching your employees as well as your customers, you’re allowing people to think they can get away with it (which is the reason that most people steal). Your job is to remove that thought.

3. They’ll steal your time. I’m always amazed when I go into stores or other offices and observe the amount of time that employees waste. We’ve all had the experience of waiting in a customer line while somebody is finishing a personal conversation. If the business owner saw this, they’d have a heart attack. Add cell phones, online shopping, MySpace, texting, and instant messaging and you begin to see the many ways in which employees become distracted. Dan Kennedy, in his excellent book, Ruthless Management, recommends that companies set up separate areas for employees to engage in private communications during their breaks. Outside of an emergency, no private communications are allowed while they’re supposed to be doing work. Great idea!

4. Your managers would rather be liked than be effective. Nobody likes to be “villainized” and bosses have been cast squarely in the villain role. As a result, they’ll often focus on being liked, as opposed to being effective. The result is that poor performers are kept on the bus much longer than they should be and their department never makes the profit it should. Have your managers generated crystal clear performance objectives, goals, and benchmarks for both themselves and every one of their employees? If not, then what are they managing? If not, how can you trust them? It’s also important not to assume that just because somebody is in a management position that their primary motivation is to help you make a profit. They have lives of their own and, quite frankly, their conversation with their kid, their online shopping, and their fantasy football league might be far more important to them than enhancing the bottom line.

5. They’ll abuse sick pay leave and other attendance related policies. Every company has employees who seem to be sick more often on Monday mornings or Fridays before a holiday. Be very clear about your attendance policies; put them in writing. Make sure employees take their lunch and rest breaks and show up and leave on time. Taking 20 minutes for a smoke break is unacceptable if the break period is 10 minutes. If an employee is out for more than a few days, or if they claim family and medical leave or some other leave, then be sure to get proper medical certifications. According to annual surveys by the publishing giant CCH, more than two-thirds of sick time is used by employees who are not sick! Whether it’s to see their kid’s soccer game or entertain in-laws who are in town, the fact is that you’ve set up a system which encourages people to lie two-thirds of the time. This why we encourage employers to collapse vacation and sick days because the bottom line to you is they’re not there to help you service the client or customer. Here’s how it works: If you offer two weeks of vacation and offer five days of personal leave, simply collapse them into three weeks of vacation. Remember, before terminating an employee for violating your time and attendance policy, make sure that their actions aren’t due to a disability (protected by the ADA where there are more than 15 employees) or related to a serious medical condition or other condition covered by the Family Medical Leave Act (50 or more employees).

6. They’ll sabotage your relationships. Many employees have little regard for themselves — never mind you. These same folks will talk behind management’s back, poisoning the well with co-workers, clients, customers, and vendors. Employers who look up their company name on a Google search (this can be done automatically) will probably be amazed by what disgruntled employees say in chat rooms, blogs, etc.

7. Finally, they’ll file frivolous claims knowing that dragging you through the drill is an expensive and emotional waste of time. For example, I recently had a client who was hit with a completely frivolous EEO claim and an OSHA contact about “unsafe” working conditions — despite the fact that this is one of the best intended employers and safest workplaces I know of. The best way to pull this rug out from under the feet of litigious employees is by using the Employee Compliance Survey.

HR That Works Users can access this form in Word format by logging on to the site.

On July 23, 2008, the EEOC updated its pronouncements on the meaning of “religious discrimination” under Title VII, how to manage and address competing employee rights in the area of religion, and how to avoid engaging in religious discrimination in the workplace.

The EEOC issued three documents: an update to its Compliance Manual Section on religious discrimination; a “Question and Answer” document addressing basic issues in that area; and a “Best Practices Manual” that provides suggested strategies for legal compliance. The documents are intended to provide guidance to employers, employees, and legal practitioners, as well as EEOC investigators addressing religious claims under Title VII. Broadly speaking, the documents address definitions (e.g. what is religion), fundamental legal questions (e.g. what is religious harassment or discrimination and what is required to accommodate religion); and compliance guidance (e.g. how to avoid claims, how to balance demands to engage in religious expression versus demands to be free from workplace proselytizing).

What is ‘Religion’?
As the EEOC Q&A document explains, “For purposes of Title VII, religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others. An employee’s belief or practice can be ‘religious’ under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief or practice, or if few — or no — other people adhere to it. Title VII protections also extend to those who are discriminated against or need accommodation because they profess no religious beliefs.” Under this broad view of “religion” adopted by the EEOC, an employer has virtually no ability to question an employee’s assertion that he/she is “covered” with respect to asserted religious beliefs (or non-beliefs).

The same Q&A document identifies a “religious practice” that might trigger the accommodation duty: “Religious observances or practices include, for example, attending worship services, praying, wearing religious garb or symbols, displaying religious objects, adhering to certain dietary rules, proselytizing or other forms of religious expression, or refraining from certain activities. Whether a practice is religious depends on the employee’s motivation.”

The EEOC notes, however, that mere personal preferences are not “religious beliefs” even if they are strongly held. Thus, a person who personally espouses or adheres to vegetarianism would not in most cases be espousing a religious belief. Similarly, using an example from the Compliance Manual, an employee’s tattoos and body piercing would not be deemed religious (such as to require an exemption from a company dress code) where it was advanced as a form of self-expression through body art (as compared with rooted in a religious tradition or belief).

Religious Harassment and Discrimination
The EEOC explains that discrimination includes treating individuals disparately because of their religion in the terms and conditions of employment (e.g. interviewing, hiring, firing, promoting, and the like). It also includes differential treatment generally. As the EEOC Q&A document explains, “For example, if an employer allowed one secretary to display a Bible on her desk at work, while telling another secretary in the same workplace to take the Quran off his desk and out of view because co-workers ‘will think you are making a political statement, and with everything going on in the world right now we don’t need that around here,’ this would be differential treatment in violation of Title VII.” Similarly, adopting different security requirements for adherents of some religions (e.g. Muslims) as opposed to others would be religious discrimination.

The Compliance Manual has this to say about harassment: “Religious harassment in violation of Title VII occurs when employees are: (1) required or coerced to abandon, alter, or adopt a religious practice as a condition of employment (this type of ‘quid pro quo’ harassment might also give rise to a disparate treatment or denial of accommodation claim in some circumstances), or (2) subjected to unwelcome statements or conduct that is based on religion and is so severe or pervasive that the individual being harassed reasonably finds the work environment to be hostile or abusive, and there is a basis for holding the employer liable.” Permitting or tolerating harassment of employees by customers is equally illegal as is permitting such conduct by managers or employees.

Compliance Guidance
Perhaps most useful is the EEOC’s guidance on how to avoid claims and fulfill obligations under the law. The EEOC Best Practices Manual suggests that employers ensure that their policies explain the legal obligations in this area. Supervisors and managers should also be trained to understand when an issue of religious discrimination and/or a duty of accommodation arises and how to respond to it. The Manual and the other EEOC documents provide examples that can help employers balance the rights of employees to express religion against the right to be free of undue religious pressure in the workplace.

(Courtesy, Shaw and Rosenthal of the Worklaw® Network)

Most employees with disabilities can maintain acceptable conduct on the job. However, on occasion, some employees with disabilities might exhibit unacceptable conduct at work. These situations leave employers with concerns about discipline, accommodations, and the ADA.

The Job Accommodation Network (JAN) consulting service provides job accommodation ideas helping employees with disabilities perform their jobs. Although it might seem challenging to identify such accommodations, following these guidelines can help resolve these workplace issues quickly:

First, create a workplace policy on conduct. Provide clear explanations of expected, and prohibited, behavior. Specific behaviors to address might include: destruction of property, using profanity at work, insubordination, or leaving one’s work area. Vague statements such as “employees must act professionally” might be interpreted many ways, and it can be difficult to determine whether or not an employee’s behavior complies with such a statement. Precise wording of your policy can help ensure that employees understand the policy. Provide your policy to employees and offer training and periodic reviews to ensure compliance.

Next, train managers and supervisors to apply your policy in a consistent and reliable manner to all employees. Applying a policy often means “counseling” employees on conduct issues, using “performance plans,” or disciplining employees for conduct violations. The ADA does not require employers to withhold or rescind disciplinary actions from employees with disabilities, nor to lower standards of conduct. Furthermore, the ADA does not prevent employers from maintaining safe workplaces (free from violence or threats of violence). Require managers and supervisors to apply your policy equally to all employees.

Then, encourage employees with disabilities to request job accommodations that ensure compliance with your conduct policy. Job accommodations can help minimize the likelihood of employees with disabilities violating your conduct policy, such as attendance rules or computer use guidelines.

Some examples of job accommodations that help employees with disabilities comply with conduct policies are:

• A sales manager with anxiety is required to participate in staff meetings by sharing one thought or idea with the group. Due to her disability, she has difficulty speaking in front of groups. The employer allows her to submit her idea or thought via e-mail soon after the staff meeting.
• Due to chronic pain, a retail employee experiences irritability during long work shifts when medications wear off. Thus, it becomes difficult to maintain satisfactory customer service. As a job accommodation, the employer shortened the employee’s work shift, which helped manage pain, lessened irritability, and improved the employee’s customer service.
• A claims processor who had ADHD frequently disrupted teammates with impulsive communication and socialization. To help control his behavior, the employer provided a job coach to teach strategies for managing impulsiveness and reinforcing appropriate workplace conduct.
• An employee with depression enjoyed reading inspirational phrases on various Web sites to help her manage her mood at work. However, using office computers to surf the Internet violated company policy. The employer suggested bringing inspirational books to work, and allowing her to read short portions throughout the day.

Finally, if job accommodations don’t prevent conduct violations, or if employment separation is imminent due to the severity of the conduct violation, proceed with termination. Be prepared to show that the conduct standard was job-related and consistent with business necessity. According to the EEOC Guidance on ADA and Psychiatric Impairments http://www.eeoc.gov/policy/docs/psych.html, some conduct standards might not be job-related for a specific position, and if not, imposing discipline or termination could violate the ADA.

Some JAN users are concerned about the outcome of a recent court case called Gambini v. Total Renal Care, Inc., 486 F.3d 1087 (9th Cir. 2007). The case, from Washington State, involved the discipline and subsequent termination of an employee with bipolar disorder. Washington’s State Human Rights Commission issued guidance on this case: http://www.hum.wa.gov/DisabilityMatters/Gambini.html

JAN strives to help employers understand their responsibilities under the ADA, and hopes that this article will help you succeed in writing and implementing conduct policies in your business.

Suzanne Gosden Kitchen, Ed.D.
Senior Consultant

(Courtesy of the Job Accommodation Network)

The Los Angeles Times recently ran a series of articles about how cutbacks in sick pay were leaving unhealthy employees stuck in the workplace. One article lamented the reduction or elimination of paid sick days. This has a great impact on low-wage earners. It also protested the collapsing of sick pay and vacation pay into what’s known as “paid time off.”

Here are some ways of looking at the situation that these articles didn’t discuss:

• Most employees get sick because they don’t take care of themselves. It’s their responsibility to take care of themselves — not the employers.
• Most sick days are abused and generate little “white lies.” According to CCH, less than one-third of all sick days taken are for people who are truly sick!
• According to another L.A. Times article, the average worker takes off 3.9 days per year for their own illness and 1.3 days to care for ill family members. It would seem fair for an employer to allow an employee five sick days, or to add those five sick days to a vacation schedule. I’m not sure why an employer would be obligated to do otherwise (some employers cited give weeks of sick leave and allow full accumulation).
• Many employee support groups have successfully begun legislating for mandated sick pay benefits. This is but one way to get around minimum wage requirements.

Of course, employers lament they only have so many choices in an ever-tightening economy. They can cut or eliminate healthcare costs, sick pay, salaries or job positions — or just go out of business. Not surprisingly, some employers still have well-run businesses and remain generous with their benefits and employee perks.

There are garment manufacturers paying above minimum wage and offering healthcare coverage and vacations. There are employers who allow an incredible amount of flexibility so long as employees are accountable and get their jobs done. So, in the end, it shouldn’t be legislation, but rather business competition that settles this issue.

The best companies to work for will be the ones that offer the greatest amount of employee benefit, while creating a never-ending stream of profits.

As a final note, one of the articles gave recommendations on how to call in sick. Without repeating their standards, here is what I’d recommend:

• Be clear about your attendance requirements.
• Show up on time unless you are, in fact, sick.
• Give as much advance notice as possible.
• If your boss won’t let you watch your kid’s championship soccer game, maybe you should consider another boss. If you think you’re somehow obligated to attend every one of your child’s soccer games, regardless of business demands, then maybe the company needs a new employee.
• Know that if you’re out for more than a few days you ought to show up with some kind of medical documentation. Don’t make an employer drag it out of you.
• Don’t show up sick and infect others. Even if you’ve already used up your vacation and sick days.
• Finally, see how you can mitigate your absence. Perhaps you can obtain permission to work a few days from home or make yourself available for emergency phone calls.

Twice a year SHRM puts out its bookstore catalog. The subject matter relates to benefits, hiring, retention, team work, motivation, employee relations, global HR, health and safety, wellness, diversity, compliance, and so on. There are articles on HR competencies, HR strategies, HR benchmarks, HR scorecards, and other forms of measurement. We could go on, but the point is this: In order to be a good, maybe even great, HR executive must engage in constant learning. We encourage HR That Works members to look at the Special Report series, as well as the Strategic HR Tools that are easily downloadable from the site.

We also recommend you download the MP3s of the newsletters and webinars so you can listen to them in your car.

If you decide to go it alone, this checklist provides a road map that will help to protect against some of today’s most common employee lawsuits. HR That Works Users can access this form in Word format by logging on to the site.

A recent opinion letter from the U.S. Department of Labor (DOL) addressed the issues of missed meal breaks, overtime, and rounding off time under the Fair Labor Standards Act (FLSA). In responding to an employer’s questions about its break and meal policy, the DOL offered these guidelines:

• No additional compensation is due if an employee misses an unpaid meal break but still works fewer than 40 hours in the workweek, as long as “the employee’s total wages for the workweek divided by the compensable hours worked equal or exceed the applicable minimum wage.”
• If an employee works more than 40 hours as a result of missing an unpaid meal break, the time worked during the missed meal break must be counted for purposes of determining overtime pay. As the DOL observed, “Before an employee can be said to be paid statutory overtime compensation due, the employee must first be paid all straight time wages due for all hours worked … ”
• If an employee begins work before or finishes after their regularly scheduled hours but works less than 40 hours in the workweek, the employee is not entitled to additional compensation as long as “the employee’s total wages for the workweek divided by the compensable hours worked equal or exceed the applicable minimum wage.”
• If an employee receives certain types of overtime premium pay (e.g., for work in excess of specified daily or weekly work periods, or for working certain special days), the extra compensation does not need to be included in the employee’s regular rate of pay for purposes of calculating overtime pay. Furthermore, the extra compensation may be credited toward any required overtime payments.
• An employer may round off time to the nearest five minutes, tenth of an hour, or even quarter of an hour, as long as over a period of time the employee is compensated properly for all time actually worked.

The DOL uses its Web site to publish these opinion letters, which offer the department’s interpretation of the FLSA on particular situations. We expect this opinion letter to appear there soon.

Download a PDF version of the letter here.

(Courtesy of Shaw and Rosenthal of the Worklaw® Network)