Happy Birthday, tHRive!

Today is a big day!  Today, tHRive Law & Consulting turns one.  In just the past year:

Human resources and employment law are ever-changing and exciting.  Our work touches nearly everyone, making it incredibly meaningful and challenging.  This is why I love it.  I can’t think of another area of business or law I’d rather be in.

tHRive Law & Consulting made it through one of the most significant milestones of any start-up – the first year.  I could not have done it without the support of so many and the confidence of my HR tribe.  For that, I am eternally grateful.  Thank you!

Now, onto the challenges of year two!

Photo by Markus Spiske on Unsplash

Twin Cities Sick & Safe Time

For those of us HR and employment law nerds, the goings-on about paid sick leave in Minnesota has been fascinating and at times, nail-biting.  Minneapolis reached its ordinance first, St. Paul quickly followed suit, the Republican-controlled Legislature got really, really upset, and then Governor Dayton squashed the Legislature’s hopes.  Ah, the drama!  Now, that the legislative kerfuffle is over, it’s time to focus.  If you do business in the Twin Cities or you have employees who spend more than 80 hours a year working here, these ordinances require your attention.

What the Ordinances Do

The ordinances are called “Sick and Safe Time” ordinances, designed to give employees time off for illness (their own and their immediate family members), time off when an employee (or family member) has been the victim of domestic abuse or stalking, certain public health emergencies, inclement weather, and other closures due to loss of power or HVAC operations.  Minneapolis and Saint Paul want to employers to provide this time to promote employee well-being and improve the overall health of each city.

The similarities between the ordinances are many, but both have their own quirks.  Here is a breakdown of each ordinance:

Minneapolis

Saint Paul

Employers with 5 or fewer employees need only provide time off, the time does not need to be paid Employers of all sizes must provide paid time off.  However, for employers with 23 or fewer employees, the ordinance does not go into effect until January 1, 2018
Employees accrue 1 hour of time off for every 30 hours worked Employees accrue 1 hour of time off for every 30 hours worked
Employers may impose a cap of 48 hours Employers may impose a cap of 48 hours
Employees can carry over time, but an employer can cap the amount of available time to 80 hours Employees can carry over time, but an employer can cap the amount of available time to 80 hours
Employers may grant the leave in advance (i.e. employers can front-load the time) Employer may grant the leave in advance (i.e. employers can front-load the time)
Employers can prohibit employees from using the time in the first 90 days of employment Employers can prohibit employees from using the time in the first 90 days of employment
Employees may use the time in a manner consistent with business/payroll practices, provided the time is no more than 4 hours at a time Employees may use the time in a manner consistent with business/payroll practices, provided the time is no more than 4 hours at a time
Startups (under a year old) can provide unpaid time in their first year (until July 1, 2022) Startups (within six months of hiring employee number 1) can provide unpaid time.  After six months, the employer must provide paid time off.
Minneapolis has a notice provision and a poster Saint Paul has a notice provision and a poster
Employees can lodge complaints of violations with the City of Minneapolis Department of Civil Rights Employees may lodge complaints with the City of St. Paul or may bring a private action (litigation) in court

The Saint Paul ordinance’s private right of action provision is controversial and a big deal.  If the employee is successful in bringing a claim, the employee may also get attorneys’ fees and costs.  (Spoiler alert:  Attorneys are not cheap.)   Minneapolis’ ordinance does not provide for such a right and instead, employees can only lodge a complaint with the Minneapolis Department of Civil Rights, which can determine how to handle the complaint.  While the availability of a private lawsuit shouldn’t sway an employer to implement policies consistent with the ordinance, it should give an employer pause.

Some Challenges

The ordinances are a bit of a challenge to implement.  Many (if not most) employers grant time off based upon years of service, not on hours worked.  This presents the challenge of counting the hours, making sure the way the employer grants time is equal to or greater than the ordinance allotment.  Another challenge may require employers to revise or rewrite their policies.  Depending on the employer, this may involve drafting a detailed list of how an employee may use the time to be consistent with the ordinances.  A policy doesn’t have to list all the ways, leaving room for some flexibility, but that said, some employers may want to be more explicit to make compliance clear on the surface of the policy.

Here are a few scenarios that you may be facing:

  • If you offer paid time off (PTO) and your PTO policy allows employees to take time off for the same reasons the ordinances allow employees to take time off and in equal amounts or greater amounts than what the ordinances require, you don’t need to take any action. Your PTO policy is probably already compliant.
  • If you offer sick time separate from vacation, you will need to review your sick time to make sure you grant the same amount (or more) than the ordinances and you permit employees to use the time for the same reasons the ordinances allow employees to use the time.
  • If you offer unlimited time off, your program is probably in compliance provided you are providing payment for the time off and encourage employees to take the time.
  • If you don’t offer any sick time (or PTO), the ordinances provide a framework to offer time.

For more information, take a look at the resources available for employers from both Minneapolis and Saint Paul.

The Injunction

Both ordinances attempt to extend beyond their own borders by covering any employee who works more than 80 hours a year within the respective city.  For example, if an employer was headquartered in a suburb, but employees regularly work in the big city, the employer would have to provide paid leave to those employees too.  Businesses were really upset by this and the Minnesota Chamber of Commerce challenged the Minneapolis ordinance in court.  The Chamber was partially successful and obtained an injunction on this issue, which it is up on appeal.  The hearing on the injunction is scheduled for July 11, 2017 – ten days after the ordinance goes into effect.  While we probably will not get a decision until September or later, risk-adverse employers whose employees only occasionally work in the Twin Cities may want to still implement sick leave while the appeal is pending.

New laws are always a challenge for employers.  These ordinances are no different.  While Minneapolis promises not to “enforce” the ordinance for the first year, employers should be looking at their policies, updating where necessary, and identifying where we could offer more benefits where compliance would require it.  Your friendly neighborhood employment attorney is here to help.  Use us.

Selling Compliance

No one in HR wants to be considered a Peter from Peter and the Wolf.  But yet, when it comes to compliance issues, it is easy to fall into that trap.  We are often running around saying “we can’t do that!  We’ll get in trouble!”   After a while, leaders start to tune us out.  To be effective, we have to seize a case for compliance in terms of business.

Consider this:  What if we looked at employment laws and regulations like best practices with teeth?  Now, I get that this is controversial.  Very, very few people would design a diversity program like the OFCCP’s affirmative action regulations and other examples certainly exist, but bear with me.  What if we looked at the underlying reason for a particular law and compared that with a business goal?  Wouldn’t they be similar in most cases?  Would that make it easier to sell compliance?  The answer: You betcha!

Take for example, paid sick leave.  As of December 31, 2016, 37 jurisdictions (mostly cities, counties, and some states) had enacted paid sick leave laws.  While paid sick leave is certainly a trend at the local and state levels, many employers have understood that they needed to provide sick leave to employees for decades.  These businesses knew that if they didn’t offer the paid time, they would not get the talent they were looking for and employees might leave if they didn’t have the time to care for themselves and their families.  While paid sick leave is now law in some areas, it has long been a recruitment and retention tool for employers.

For an employer in a jurisdiction with a paid sick leave law who doesn’t offer it, HR is now in a position where it needs to sell the benefit as a legal requirement.   HR could package a proposal like this – paid sick leave is needed to get and keep the talent we need and the new ordinance provides a framework to do that.  Would that be an easier sell?

What about sexual harassment?  We know that anti-harassment laws were designed to protect women in the workplace so women could be productive, safe, and contribute our skills.  These laws also try to create workplaces built on the respect for all employees.  These are business goals.  When there is a culture rife with disrespect or disharmony, productivity comes to a near halt.  Turnover increases.  Employees are disengaged.  No business leader wants this to happen.  Preventing and then stopping harassment in its tracks protects the workplace and protects the business from legal claims and PR nightmares and keeps the focus on where it should be – the organization’s mission.

CEOs care about talent.  They care about finding the best talent the can and holding on to the great talent they have. According to PwC’s 2017 CEO survey, talent remains a top priority and as does diversity.  When we view employment laws and regulations as things that can be aligned with business goals, it becomes easier to get buy-in from the top.

This works for every employment law.  If you can’t come up with a business goal, try me.  I believe there is a business goal attached to nearly all employment laws.  I’ll accept the challenge to find one for your organization!

 

Photo by Redd Angelo available at unsplash.com

Fitness for Duty Warning Signs

Last week, I had the pleasure of speaking with hundreds of occupational health professionals – doctors, nurses, and administrators about return-to-work policies.  We had 90 minutes.  We could have chatted for three hours, we got so many questions!

These health care professionals were most concerned about the scope of their fitness for duty examinations for good reason.  They wanted to know that they were doing the right thing.  Some companies have fitness for duty examinations for all employees returning from leave.  Some rarely do unless they have a particular concern about a particular condition or particular employee.  Our message to them was this:  Fitness for duty exams are sticky legal wickets all the time.  Health care professionals and employers have to be careful when they require such exams and what they examine.  Below are some tips.  If you don’t have the Department of Labor’s

Below are some tips about fitness for duty exams.  If you don’t have the Department of Labor’s FMLA Employer Guide, get it, print it, put it where you can find it. Even if you’re not subject to the FMLA, this is a good resource when an employee returns to work.

When an employee is returning to work from leave, you only get to ask about what put the employee on leave. The return to work is not permission to examine everything about the employee.  You only get to look at what put the employee on leave and only if you have a reasonable belief that the employee’s current ability to perform the essential functions of the job are impaired by the medical condition or the employee poses a direct threat to the organization.

Here’s an example:  Jamal works as a laborer on a construction worksite.  He broke his arm a few weeks ago.  He is ready to return to work.  You can ask for medical documentation from his health care provider that Jamal can return to work with or without accommodations if you are concerned that Jamal may be weaker, could cause injury to his co-workers, and the position requires him to lift 50 pounds regularly.  You don’t get to require Jamal to undergo a blood and urine test.  The scope is limited to his ability to use his arm to perform the essential functions of his job.

One more example:  Jenny works as a marketing executive.  She has been out on FMLA after having a baby.  The birth did not go well, and the baby was in the hospital for several weeks.  You are concerned that Jenny might not be “all there” after this ordeal even though everyone is healthy now.  You cannot ask for a fitness for duty examination related to Jenny’s mental health unless you have some evidence – more than your gut feeling or even rumors – that Jenny is a direct threat or unable to do her job.   Of course, if you later get evidence when she returns, you can ask for such an examination.

If you do fitness for duty, do them consistently. Employers should give fitness for duty examinations on a consistent basis for similarly situated employees.  It makes sense to have a fitness for duty examination for everyone who has a heart attack who works on a production floor.  If you do such an exam for everyone who has a heart attack regardless of their position, this may be a bit more questionable.  Your receptionist who has a heart attack probably does not need a fitness for duty examination.

“Walking work comp claims” do exist, but this doesn’t mean you can always intervene or terminate. Most employers at some point in their business life have had an employee who is a danger to himself primarily because they are klutzy.  They break their arms, cause workplace accidents, and have racked up some hefty work comp benefits.  But these facts do not necessarily mean you get to put the employee through a thorough medical examination.  These facts don’t support extreme changes to his position because he is klutzy.  Your job is to try to make the worksite as safe as you can and train the employee and others to be safe.  Prescribing health care won’t do it.  You must have facts to support a reasonable belief that the employee is a direct threat to himself or others before you can force an examination.

Returning employees to work after an illness or injury can be a legal minefield.  At play are the Family Medical Leave Act, the Americans with Disabilities Act, workers’ compensation laws, and a myriad of state and local laws on top.  Certification forms, injury reports, calculating leave time, benefits – it all gets complicated.  It is downright frightening for the unwary trying to do the best thing for the employee and the organization.  When this happens to your organization, find the right resources and be sure to ask lots of questions.

Time to Put Away the Blankets

 

Spring has most definitely sprung.  It’s almost summer!  We don’t need extra blankets on our beds anymore!  While blankets keep us warm and make us feel safe in a cold world, blanket policies are dangerous and in at least three occasions, they’re downright unlawful.  So while we’re packing up the extra down comforter, let’s look at packing up these three blanket policies too.

  1. All employees with XYZ medical conditions can’t do XYZ job. A heart attack is a big deal, but not all heart attacks are the same.  Some mean stents that do not stop driving while others require open heart surgery that lay the victim up for months.  Having a blanket policy that prohibits all heart attack victims from doing a certain job denies employees the opportunity to explain their own condition and engage in the interactive process the ADA demands.  While it’s true that some conditions will disqualify employees every time, do the individualized process for each employee who presents with the condition.
  1. We don’t employ felons. Employers conduct criminal background checks for all sorts of reasons – reducing workplace violence, reducing the risk of negligent hiring, etc.  The temptation exists to not hire anyone with a felony.  However, the EEOC takes issue with this given the number of incarcerated minorities.  Just like the medical conditions, the EEOC requires employers to do an individualized assessment of whether an individual with a felony conviction should be hired.  This analysis involves the Green factors: 1) the nature of the job, 2) the nature of the conviction, and 3) the time between the crime (or end of incarceration) and application.  While it may be true that you’re never going to hire an accountant with an embezzlement conviction, deal with this on a case-by-case basis.
  1. We can never accommodate a level beyond the FMLA-mandated 12 weeks. The EEOC has litigated this issue several times.  With the ValleyLife case and guidance issued last May, the EEOC has tried to make the point that employers must engage in the interactive process after FMLA to determine if the employee needs even more leave.  Employees have to show a need for the leave, but a hardline cutoff will get an employer in trouble.

The EEOC wants employers to treat employees and applicants like the individuals they are, talking with them about their individual circumstances and needs before dismissing those circumstances and needs summarily.  Dealing directly with these is sometimes hard, it may mean an employer takes a chance on someone in close cases, and it means we leave the comfort of that blanket policy.  But, it’s spring now.  We don’t need the blanket.

Image by Kelly Sikkema from unsplash.com

Loving Your Managers Means Training Your Managers

Last week, I had the privilege of presenting to two different groups on two very different topics.  The first was for the Marsh & McLennan Agency on the Bermuda Triangle of employment law – FMLA, ADA, workers’ compensation, and other leave issues.  The second was at MRA’s Minnesota HR Conference on investigations into sexual harassment and workplace bullying.  Both groups had great questions and were super fun.  Yet, even though the topics were different, one issue cropped up in both – manager training.

Manager training is crucial.  Managers are on the front line of production, products, marketing, and many other business aspects of any organization.  They are also on the front line of employment law issues.  For example, a manager who denies an employee’s request to alter her shift due to insomnia issues could be launching an employer headfirst into an ADA claim.  Or, a manager to engages in sexual banter with employees could create strict liability for a sexual harassment claim.  These exemplify why this training is downright essential.

Yet, it is hard to get managers together to learn about compliance issues.  First, they’re busy people.  Second, it’s compliance.  And, even when you do get them together and try to (gently) beat these issues into them, more often than not, they may forget or cannot recall the ins-and-outs of FMLA leave or the intricacies of your benefit plan.  This isn’t because managers don’t want to remember all of this information – it would just be impossible to do so.  They’re human.

Instead of rote memorization, managers need to know enough – enough to know when they need step into a situation and enough to know who to talk to.  This is all.

So how do you get to enough?  In my humble opinion, it takes real world examples and lots of time for questions.  With simulations and questions, managers get some experimental learning so they can identify when they need help.  It’s kinda like giving managers spidey sense.  As soon as they see, hear, or otherwise learn about a situation, we want manager’s spidey sense to go off and know what to do and who to talk to.  Good training can do this.

Here are the key ingredients for an effective manager training:

  • Managers need to understand their roles and responsibilities to prevent and stop inappropriate behavior (even if that behavior wouldn’t technically be unlawful).
  • Managers need to know enough about compensation, benefits, and other privileges employees may have (think leave and reasonable accommodations) to answer basic questions.
  • Managers need to know how to explain performance and conduct expectations and how to seek improvement of both.
  • Managers need to know who to talk to when issues arise and who to send employees to when they have questions the manager can’t answer.

Managing is really hard.  Employers succeed when they recognize this and equip managers with the training and development they need.

Photo credit: Helloquence available at unsplash.com