Leave of Absence Terminations

Many times employers are hesitant to take action when an employee has been on an extended leave of absence due to a workers’ compensation claim arising from an injury or illness occurring while in the course of work duties or when the employee is unable to return from a protected leave, such as the federal Family Medical Leave Act (FMLA), or a state’s equivalent leave. Employers must look to the mandated leaves, organizational-internal policies, and past practices before taking an adverse employment action, such as disciplinary action or termination. Ensuring compliance with regulatory guidelines, and consistent application of internal policies and practices will generally protect an employer from any discriminatory practices.

• Workers’ Compensation Leaves - Employees who have sustained an on the job injury and are on a workers’ compensation leave of absence are protected under individual state non-discrimination regulations, and may enjoy protection under a state’s mandated leave or the FMLA. Employers must ensure that these employees are treated the same as other employees who are temporarily disabled and follow any internal policies or past practices related to the leaves. Further, employers should consult with the claims manager at their workers’ compensation carrier to discuss any adverse employment action prior to taking the action, to determine that there is agreement in terminating the employment of the individual, and to discuss the effect of such a termination on the claim.
• FMLA or State Equivalent Leaves - Employers must comply with the FMLA or a state equivalent leave if the employee is employed at a work site that has 50 or more employees within a 75-mile radius.· FMLA or the state equivalents often run concurrently with a workers’ compensation claim and/or internal leave of absence policies. The FMLA or the state equivalent provides a period of time of job protected leave.· After the expiration of the mandated leave, employers may rely on internal policies and practices related to the extension of time off if the individual is still unable to return to work. Otherwise, an employer may terminate the individual’s employment if he/she is unable to return after the expiration of the mandated leave.
• Internal Leave of Absence Policies – Many times an employer who does not have to comply with a mandated leave or who wants to provide an extended leave of absence will have an internal temporary disability leave policy that affords employees time away from work for recovery. These internal practices also may be used to extend an employee’s leave if he/she is still unable to return to work following an FMLA or state equivalent leave’s expiration.

The key with all leave of absence administration is that the employer’s policies and practices are consistently applied.· Consistent application of these policies and practices will ensure non-discriminatory practices when it comes to the termination of an individual who is unable to return to work from leave. If you have questions about your leave of absence requirements, or need assistance in the development of a policy in this regard, please reach out to your HR Professional for guidance.

EEOC Updated Guidance on Use of Conviction Records

On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) released updates to its guidelines on when and how employers may inquire into an applicant’s arrest and conviction history.

The EEOC’s Updated Guidance
No federal law explicitly prohibits employers from so inquiring into an applicant’s past criminal history, however, court decisions and EEOC guidelines have previously recognized that, in some cases, disqualifying an applicant because of an arrest or conviction record could violate the Civil Rights Act of 1964, as amended (Title VII), which prohibits employment discrimination based upon race, color, religion, sex and national origin. 
 
How could we be found to have violated Title VII?

Why do we only use conviction records to make employment decisions?
According to the EEOC, an employer’s reliance on an arrest record in and of itself is not job related and consistent with business necessity because the fact of an arrest does not establish that criminal conduct has occurred. The EEOC further recognizes that a conviction record in most cases will usually serve as sufficient evidence that an individual engaged in particular conduct, but notes that in certain circumstances there may be reasons why an employer should not rely on a conviction record alone.

EEOC Best Practices

What if there is an investigation?
During an investigation, the EEOC will look to whether the particular employer’s use of criminal history has a statistically significant disparate impact on any protected group. Once a disproportionate impact is shown, the employer may only avoid liability if it can show that the reliance on criminal history is job related and consistent with business necessity.

Example of Disparate Treatment Based on Race

John, who is White, and Robert, who is African American, are both recent graduates of State University. They have similar educational backgrounds, skills, and work experience. They each pled guilty to charges of possessing and distributing marijuana as high school students, and neither of them had any subsequent contact with the criminal justice system.

After college, they both apply for employment with Office Jobs, Inc., which, after short intake interviews, obtains their consent to conduct a background check. Based on the outcome of the background check, which reveals their drug convictions, an Office Jobs, Inc., representative decides not to refer Robert for a follow-up interview. The representative remarked to a co-worker that Office Jobs, Inc., cannot afford to refer “these drug dealer types” to client companies. However, the same representative refers John for an interview, asserting that John’s youth at the time of the conviction and his subsequent lack of contact with the criminal justice system make the conviction unimportant. Office Jobs, Inc., has treated John and Robert differently based on race, in violation of Title VII.

Example of Disparate Treatment Based on National Origin

Tad, who is White, and Nelson, who is Latino, are both recent high school graduates with grade point averages above 4.0 and college plans. While Nelson has successfully worked full-time for a landscaping company during the summers, Tad only held occasional lawn-mowing and camp-counselor jobs. In an interview for a research job with Meaningful and Paid Internships, Inc. (MPII), Tad discloses that he pled guilty to a felony at age 16 for accessing his school’s computer system over the course of several months without authorization and changing his classmates’ grades. Nelson, in an interview with MPII, emphasizes his successful prior work experience, from which he has good references, but also discloses that, at age 16, he pled guilty to breaking and entering into his high school as part of a class prank that caused little damage to school property. Neither Tad nor Nelson had subsequent contact with the criminal justice system.
 

The hiring manager at MPII invites Tad for a second interview, despite his record of criminal conduct. However, the same hiring manager sends Nelson a rejection notice, saying to a colleague that Nelson is only qualified to do manual labor and, moreover, that he has a criminal record. In light of the evidence showing that Nelson’s and Tad’s educational backgrounds are similar, that Nelson’s work experience is more extensive, and that Tad’s criminal conduct is more indicative of untrustworthiness, MPII has failed to state a legitimate, nondiscriminatory reason for rejecting Nelson. If Nelson filed a Title VII charge alleging disparate treatment based on national origin and the EEOC’s investigation confirmed these facts, the EEOC would find reasonable cause to believe that discrimination occurred.

Oregon Minimum Wage Change

Oregon minimum wage climbs 15 cents effective January 1, 2013 bringing the minimum wage hourly rate to $8.95/hour.

Pay for Holiday Closures?

When a company decides to close on Thanksgiving Day or for the entire week between Christmas and New Year’s Day, is the employer required to compensate any of its employees? Well, that depends.

For non-exempt (overtime eligible employees), the company is generally not required to pay employees on days in which they do not perform work.·As long as all non-exempt employees are notified of the closure prior to reporting to work on the holiday, no pay is required.· If the non-exempt employee has accrued vacation or PTO time, the employee may request or the employer may require that the employee use accrued vacation or PTO to cover the days of the holiday closure.

For exempt employees who are paid on a salaried or fee basis, federal law requires the company to pay the employee his or her regular salary without interruption for business closures that extend less than one full workweek.· Failure to provide this continued compensation is likely to jeopardize the employee’s exempt status.·A workweek is the predefined seven-day period that the employer uses for payroll purposes.· Unless the closure extends for a full workweek, the exempt employee should experience no interruption in salary for the purpose of a holiday closure.· The employer may require the exempt employee to use accrued vacation time or PTO time to cover the closure.· However, if the exempt employee does not have sufficient accrued time to cover the holiday closure, the employer is required to ensure the exempt employee experiences no interruption in salary.

As a benefit to workers, many companies opt to pay non-exempt employees for certain holiday closures.·In fact, according to a Society for Human Resource Management (SHRM) Benefits Survey (2011), 97% of responding employers provide some type of paid holidays to their employees.· The company may set its policy in this regard, and it has a good deal of discretion regarding the payment and calculation of the holiday pay.·· This may also include “shifting” the days of the recognized holiday so as to reduce the amount of vacation, PTO or unpaid time employees may experience during the holiday closure. We simply recommend creating a written policy regarding holiday pay and applying it consistently among employees.

It is also important to note that the law only requires the employer to consider actual hours worked versus hours paid when calculating overtime pay.· If the employer provides paid holidays, it is not required to count the unworked paid holiday hours towards the overtime calculation for a non-exempt employee.

There are several examples of holiday policies in the HR Support Center, under the “Policy Library” section.·Should you have any questions regarding holiday closures, please speak with an HR Professional.

Should you be using Facebook for References?

Facebook for screening applicants-- is it a good idea?

Recently you may have read or heard news of employers using Facebook to screen applicants. Using as many tools as possible to find the right employee is generally a good thing, especially the art of finding a person who fits with your organization. However using Facebook or other social media can be problematic. At this time there are no specific legal prohibitions in Oregon on using Facebook to screen employees. This includes asking applicants to log into their account to allow the interviewer an opportunity to look around. While the practice of using social media to screen may be legal there are a variety of pitfalls.

“At-Will” Statement vs. National Labor Relations Act

In the news recently, there has been mention of the National Labor Relations Act (NLRA) and the National Labor Relations Board (NLRB). The NLRA is a federal act, otherwise known as the Wagner Act.The NLRA was enacted in 1935 “to diminish the causes of labor disputes burdening or obstructing interstate and foreign commerce, to create a National Labor Relations Board, and for other purposes.”· The NLRB was established to oversee and monitor the NLRA.

The key principle behind the NLRA is to provide protection to employees, regardless of union membership status, in concerted and protected activities such as organizing, and protecting employees as a “class.” The NLRB oversees these activities for compliance with the NLRA. The function of the NLRB to prosecute violations of the NLRA has been reaching further into employers who do not have unionized employees, specifically in the area of “at-will” employment.


The NLRB has most recently challenged the “at-will” employment relationship disclaimers that many employers have in employment applications, offer letters, policy statements and employee handbooks.· The NLRB challenged that some of the statements typically contained in employment at-will policies (e.g. “I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status, except for a written statement signed by me and the Company’s president or executive vice president/COO.”) may be in violation of the NLRA.

At this point, the NLRB has only taken this issue up in the state of Arizona and the final outcome has yet to be decided in the courts.· One alternative an employer may want to consider is simply changing this portion of its at-will statement to “I acknowledge that my at-will employment status can only be changed if noted in a written agreement.”· According to many legal blogs authored by attorneys, it seems that this change would meet the legal challenges that have been put forth to date by the NLRB.

Employers seeking additional assistance regarding the company’s “at-will” employment statements may want to reach out to an HR Professional for guidance.

Summer Dress Codes: Too Hot for Compliance?

According to the May 2012 HR Support Center poll inquiring about spring and summer dress code policies, most businesses do not alter their dress code policies during these months. Out of all the respondents, 63% indicated no change during the spring and summer months from the company's standard dress code, while 9% indicated that employees are not required to wear professional clothing during these months. There are several implications to be aware of in regards to workplace dress code policies in the summer.

• Health concerns (physical and mental stress). During the hot summer months, it is important to consider the health of employees who will be performing work outside or in a facility without air conditioning. The company may need to alter its dress code in order to reduce the physical stress of employees working outdoors, as physical stress can lead to reduced cognitive ability and heat-related injuries and illnesses. In addition, some employees may be protected under the American with Disabilities Act (ADA) which may require reasonable accommodations.
• Productivity levels (includes motivation). The productivity levels within the business may be reduced if employees are dressed in a manner that is distracting to themselves or others. Therefore, it is important to ensure that dress codes allow for maximum productivity. For example, if an employee is wearing a baseball cap during an office meeting, others may find that to be a distraction.
• Safety concerns (injury and accident prevention). There are several safety concerns to consider if dress codes are not properly enforced. Even in extreme temperatures, it is critical that employees wear all recommended and required safety equipment. For example, those in a construction field should not wear sandals; those in the medical field should avoid exposing unprotected skin and wearing loose accessories (such as jewelry) around hazardous chemicals, equipment/machinery (such as wheelchairs), and other things (i.e. syringes).
• Image/Professionalism. Even in the summer months, it is important that the company portray a professional business image. For example, allowing pilots to wear swim trunks could certainty result in decreases in customer confidence levels.

It is encouraged to write comprehensive policies that cover the business dress code. The management team must consider productivity, safety, and regulatory compliance when writing the dress code policy. It is vital to consider whether the dress code could create a charge of discrimination. A workplace dress code for summer months should not discriminate against members of a protected class under civil rights laws such as gender discrimination, religious discrimination and race discrimination. It is important to stay consistent for all exceptions to the policy and to apply consequences for all violators of the policy. Considering these factors will ensure the company's dress code maximizes summer productivity and minimizes the potential for legal exposure.