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September 25, 2014

Executive Orders Mean New Rules for Federal Contractors

Filed under: Discrimination,Legal Issues — Tags: 10:20 am

A series of new executive orders from President Obama present some new HR law compliance challenges for federal contractors.

The President recently signed an order requiring that federal contractors not discriminate based on sexual orientation or gender identity. About half the states already prohibit such discrimination in one form or another. Another order mandates such contractors pay a minimum wage of $10.10 per hour. Both rules will take effect after implementing regulations are adopted and finalized later in 2014.

Yet another order requires that certain contractors (those with contracts over $500,000) disclose state and federal labor law violations from the past three years and also gather similar information from their subcontractors. Such violations include problems under the Fair Labor Standards Act, the National Labor Relations Act, the Family and Medical Leave Act, and the anti-discrimination laws. Repeat offenders may not receive federal contracts. The latest executive order also will prohibit companies holding new contracts of more than $1 million from requiring that their employees arbitrate alleged discrimination and harassment claims. The most recent executive order will be implemented on new contracts beginning in 2016.

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September 17, 2014

Should Employees Work While on FMLA Leave?

Filed under: Employment Law,FMLA8:13 am

The availability of electronic devices permits employees to work anywhere, any time.  The convenience and flexibility are generally welcomed by employees wishing to balance work and home responsibilities.  However, when does the overlap of work/life balance create a problem?  When it involves working during FMLA leave.

A pregnant employee, Tondalaya Evans, worked for the company, Books-a-Million, and was expecting a baby on September 1.  Tondalaya was the payroll manager and was in the process of implementing a new payroll system, which had been delayed until November.  She requested FMLA for the birth of her child.  Books-a-Million told her she would not be on leave, but rather would be working while on her maternity leave, and that she had no other choice, because the payroll system was due to “go-live.”  Ms. Evans had her child on August 30, and began working full time from home on September 1.  Even though, she was being paid her full wage, she was being denied the time off.

Tondalaya later returned to work, and found that she had been transferred to another position.  She was not agreeable with the change, quit her job, and sued in part for FMLA interference.  The court found that the company had violated the FMLA by denying her a benefit (FMLA leave, with no work being performed) for which she was entitled.  The company argued, to no avail, that she was being paid to work, and they were not in violation of FMLA.

The takeaway is that employees are entitled to FMLA for the purpose of being completely excused from work while they take care of a serious health condition of their own or an approved family member, without the worries of performing or losing their job.  Requiring or forcing an employee to work when eligible for FMLA can cause neither their work nor the reason for the leave to be given full attention.  Even if an employer offers to pay the employee, it is still undermining the purpose of the FMLA and is illegal.

 

Source:  Hyman, Jon.  “Do Not Force Employees to Work During FMLA Leave.” Workforce.  Available here.

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September 11, 2014

Think Before Documenting That!

Filed under: Discrimination,Legal Issues,Title VII — Tags: 8:20 pm

I was relatively new to the human resources scene in the early/mid 90s, and I watched as my manager could have shrieked in horror, (Does an audible gasp count?), at the note a hiring manager wrote on an employment application.  The applicant’s first name was Ebony.  Noted.  But, that manager in her efforts (giving her the benefit of the doubt) to remember the applicant wrote quite simply, “black girl.” Those two words, just screamed “discrimination” at my manager and she immediately took control of the situation.

Most HR professionals realize the implications of making descriptive notes on applications can be a double-edged sword.  Nearly everything is fair game to a plaintiff’s attorney, even the notes we make to ourselves about who was who in our candidate pool.  However, I learned that very day, in those very tense moments, that it is much better to write, “navy blue suit” as opposed to describing someone’s skin color.  Better yet, write nothing at all!

Such was true for a manager involved in a recent case out of Texas in which two newly hired workers complained their wages were lower than other workers with the same or very similar jobs.   After about three weeks of work for the company they were terminated on a trumped up reason.

The manager documented their personnel files after receiving a notice from the Equal Employment Opportunity Commission granting the two terminated employees the right to sue.  He wrote:

“Please note he is not eligible for rehire ever.  Tried to sue us.  Simply tell him, ‘sorry but we have nothing for you at this time.  Please try again.  Have a nice day.’  Not for rehire.  Per Ben G.”

Those words were enough to cause the Texas Court of Appeals to find for the two workers on the charges of retaliation and malice.  They were awarded damages as well.  (You can read the case here.)

So in every situation from hiring to firing – be careful and think before you document that!

 

Source:  Meyer, Eric B.  “The Problem With Putting ‘Do Not Hire’ Notes in Personnel Files.”  Article available here and here.

 

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September 4, 2014

Interesting News Briefs from the World of HR Law

Filed under: FLSA,Hiring & Jobs,Legal Issues4:36 pm

In an interesting test of the Fair Labor Standards Act (FLSA) exemption regulations, a well-known national retailer has been sued in California by employees alleging that the company improperly classified its store assistant managers as exempt employees.  This lawsuit is a good reminder of how important it is to have updated job descriptions to determine the exempt or nonexempt status of all positions within an organization.  The Department of Labor website provides general information to determine exempt status.  Click here.

A national retail provider of rent-to-own merchandise (appliances, furniture, etc.) has been sued under the federal Fair Credit Reporting Act with the plaintiffs in the case alleging that the company used a third party to run background checks but did not provide copies of the same before taking adverse action against applicants and employees (e.g. denying or terminating employment) based on the background check results. The lawsuit is pending in Georgia.  This is a great example of the importance of knowing the law!  The Equal Employment Opportunity Commission provides excellent guidance to employers and employees on background checks from each perspective.  You can check those out for employers here, and for employees here.

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