The new Employee Rights Under the NLRA poster deadline is now upon us: by April 30th most private sector employers, that is, those covered under the National Labor Relations Act (NLRA,) need to display the new poster.
How do you know whether you are covered? The NLRA applies to most private sector employers who engage in interstate commerce. Specifically excluded are federal, state and local government employers as well as those who hire agricultural workers exclusively and those covered under the Railway Labor Act such as railways and airlines. More information is available under the Q&A section of the National Labor Relations Board (NLRB) web site.
The poster, similar to one already required of federal contractors, states that employees have the right to act together to improve wages and working conditions, to form, join and assist a union, to bargain collectively with their employer, and also to refrain from any of these activities. It provides examples of unlawful employer and union conduct and lets employees know how to contact the NLRB with questions or complaints.
Employers must post the notice conspicuously where other workplace notices are typically posted. It must be at least 11 x 17 inches in size (which can be achieved by taping two 8 ½ x 11 sheets of each half of the poster together.) The required posters are available for free download and may be obtained from your regional NLRB office so don’t ever pay for them. Subscribers to HRSentry® may access for free all the federal and state posters they need by clicking on HR Solutions, then HR Modules and scrolling through the list of available kits to the Poster Kit.
Note that, if you regularly post employee notices of personnel rules or policies on an internet or intranet site, you’ll have to post this notice there as well or, at least, post a link to the employee rights on National Labor Relations Board web site, with the heading: “Employee Rights under the National Labor Relations Act.”
Also, if 20% or more of your workforce is made up of by groups of speakers of different languages, the poster must be displayed in each language or a hard copy given to each affected employee. Translated versions of the posters in 23 languages are available on the NLRB site; others are available upon request.
Not only is workplace gossip unproductive, it can quickly sabotage morale.
Sometimes there’s that one employee who seems to delight in being the bearer of bad news, accurate or otherwise. She or he may ascribe an ulterior motive to other employees, other departments or management. Sometimes the person believes that gossiping and spreading rumors about others is a way to raise their own status by appearing to be the person “in the know.” Or sometimes gossip and rumors spread to fill a vacuum; that is, to make up for a lack of communication from a supervisor or top management.
Seeds of discontent, fertilized by rumors, can grow into misunderstandings, unresolved conflict, and a general breakdown in trust. Further, a culture riddled with gossip can encourage good employees, who don’t want to get sucked into negativity, to leave. Here are some tips to halt the gossip machine before it takes on a life of its own:
Management should communicate regularly and consistently with employees about what’s happening in the workplace. Otherwise, especially during times of uncertainty, employees will naturally speculate. Rumors often play on fear and fear can come from the perception, misguided or otherwise, that information is being withheld. Regular communication can also defuse the influence a gossiping employee has over others, because everyone else is “in-the-know” too.
Supervisors should make sure they communicate with employees every day or at least every week. Even if it is only for five minutes or if there’s nothing new to add since the last time, checking in regularly is important. Communication goes both ways so supervisors should express true interest in their staff and be ready to listen to concerns as well. Employees need to believe their supervisors and managers care about them. Set a calendar reminder and make it a priority!
Prevent and lessen the exclusivity of cliques through team building activities. Just as members of political parties within Congress cannot work together to create good legislation if they demonize one another, employees should view one another as human beings who are trying to do their jobs well and not sabotage others. Encourage a greater understanding of the roles of various positions and departments to break down barriers and foster better inter-departmental communications. Team building can involve such activities as different departments working together to solve problems or simply having an ice cream social during work hours to get to know one another better. Use your imagination!
Provide employees with a list of “Workplace Expectations.” Include a reference to employees not engaging in spreading gossip or rumors. For example: “Do not participate in spreading gossip and rumors, and do not tolerate it from others. Rumor and gossip sabotages the team’s ability to work together effectively. It is disrespectful, nonproductive, and a selfishly motivated act that impedes employees from performing their jobs. If you hear about an issue that pertains directly to you, verify the accuracy of the information by asking the supervisor or the coworker involved, rather than simply passing on the information.” Discuss with employees the impact gossip has on the workplace. Having a workplace expectation about gossiping gives permission to coworkers to hold each other mutually accountable for maintaining a “gossip free” workplace.
Speak with a gossiping employee about his or her behavior. Let him or her know that gossip results in others not trusting him or her because they believe they may become the next subject of the gossip. For some employees, this single statement will create a realization that will result in immediate change. You should also describe the impact the employee’s behavior has on the workplace and that his/her continued participation in the spreading of rumor and gossip is a violation of the workplace expectations.
Devote a performance evaluation category to Cooperation or Teamwork within and across departments. Include verbiage for behavior that merits a strong rating such as: “is eager to share knowledge and skills with other employees; seeks out and create opportunities to share such information with coworkers. Engages in and promotes positive interactions with all other employees.” When employees cooperate and work together, they avoid negative gossip. Where an employee falls short, make sure the bad behavior gets reflected in the performance appraisal.
Finally, enhance employee engagement in the workplace. Engaged employees are more motivated and more productive. Not coincidentally, they are not your gossip mongers. Our next HRSentry® blog will provide you with ideas and steps to get your staff fully engaged.
On March 30, the EEOC published its final ruling related to the Age Discrimination in Employment Act (ADEA.) As you may know, ADEA was enacted to protect workers aged 40 and over from discrimination, in any aspect of employment, based on their age. The rule is applicable to: private employers with 20+ employees, state and local government employers, employment agencies, and labor organizations. The rule relates only to the “disparate impact” aspect of ADEA and the related defense known as “reasonable factor other than age”(RFOA) and does not apply to federal governmental agencies (although ADEA does.)
The rule is in response to two Supreme Court decisions (one in 2005 and one in 2008) in which it criticized part of the EEOC’s existing ADEA regulations. The Court upheld EEOC’s longstanding position that the ADEA prohibits policies and practices that have the effect of harming older individuals more than younger individuals, even if the harm was not intentional. Such an unintentional, yet harmful, effect is known as disparate impact.
The Court disagreed, however, with the part of the regulations which said that, if an employee proved in court that an employment practice disproportionately harmed older workers, the employer had to justify it as a “business necessity.” It said that, in an ADEA disparate impact case, the employer does not have to prove business necessity; it need only prove that the practice was based on an RFOA. The Court also noted that the RFOA defense is easier to prove than the business necessity defense but did not otherwise explain RFOA. The final rule accomplishes two things:
• It makes the existing regulation consistent with the Supreme Court’s holding that the defense to an ADEA disparate impact claim is RFOA, and not business necessity; and
• It explains the meaning of the RFOA defense to employees, employers and others.
According to the EEOC, an employment practice is based on an RFOA if it is reasonably designed and administered to achieve a legitimate business purpose in light of the circumstances, including its potential harm to older workers. Some items that may be considered to assess reasonableness include:
• The extent to which the factor is related to the employer’s stated business purpose;
• The extent to which the employer defined the factor accurately and applied the factor fairly and accurately, including the extent to which managers and supervisors were given guidance or training about how to apply the factor and avoid discrimination;
• The extent to which the employer limited supervisors’ discretion to assess employees subjectively, particularly where the criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes;
• The extent to which the employer assessed the adverse impact of its employment practice on older workers; and
• The degree of the harm to individuals within the protected age group, in terms of both the extent of injury and the numbers of persons adversely affected, and the extent to which the employer took steps to reduce the harm, in light of the burden of undertaking such steps.
Further information is available on the EEOC website or, for subscribers to HRSentry, by typing ADEA in the Search box from the home page.
One of the challenges of administering leave that falls under Family and Medical Leave Act (FMLA) is that occurrences come up only occasionally and thus raise questions about how to get it right. In Part 1 we looked at the basics of the law; in Part 2 we added additional important requirements to keep in mind. Here, we look at a few interesting scenarios you might face so you can be ready when they arise:
1. What happens when a company holiday falls within an employee’s FMLA leave period? Does it count as holiday time or FMLA leave time?
If the employee has the full week off in which the holiday occurs, the entire week is counted as FMLA. However, if the employee is taking leave in smaller than one week increments, the holiday doesn’t count against the employee’s FMLA entitlement (unless the employee was otherwise scheduled and expected to work on the holiday.)
Similarly, if employees are not expected to report for work for one or more weeks (for example, school vacations or manufacturing plant closings) the days the employer is closed do not count against the employee’s FMLA leave entitlement.
2. How do you handle the birth or adoption of a child when both the mother and father work for you? The law says that the 12 weeks of leave entitlement for the birth/adoption/foster care placement of a child is divided between a married couple so that the combined total time taken by your two employees for that qualifying event is 12 weeks. It may be taken in any combination the couple chooses and can be simultaneous or consecutive.
But what if the couple is not married? The law is silent regarding unmarried couples, including same sex couples, so they are treated as individuals and must be provided with up to 12 weeks each! This legal quirk may become more of an employee relations headache for you in the disparate treatment of married vs. unwed couples who work for you: approximately 40% of American children are born out of wedlock these days.
3. What if a grandmother or grandfather requests FMLA leave to care for a seriously ill grandchild? An important administrative interpretation of came about in 2010 which expands the definition of son or daughter to ensure that employees who assume the role of caring for a child receive parental rights to family leave regardless of the legal or biological relationship. The role is referred to as in loco parentis which means in place of the parent. Also note that a child having a biological parent in the home, or having both a mother and a father, does not prevent a finding that the child is the “son or daughter” of your employee for purposes of taking FMLA leave. The regulations do not restrict the number of parents a child may have under the FMLA.
Here are some examples:
An employee provides day-to-day care for his unmarried partner’s child with whom there is no legal or biological relationship.
A child’s biological parents divorce and each parent remarries. The child is considered the “son or daughter” of both biological parents and both stepparents.
A grandparent takes in a grandchild and assumes ongoing responsibility for raising the child because the parents are incapable of providing care.
Such situations may, or may not, ultimately lead to a legal relationship with the child (adoption or legal ward,) but no such relationship is required to find in loco parentis status. If you question whether an employee’s relationship to a child is covered under FMLA, you may require the employee to provide reasonable documentation or a statement of the family relationship. A simple statement asserting that the required family relationship exists is all that is needed in situations such as in loco parentis where there is no legal or biological relationship.
4. What happens if an employee cannot or does not return to work after their FMLA leave is used up? The FMLA provides for job protection through the employee’s leave entitlement period so the employee has a right to their former, or an equivalent, position upon return. But the protection does not go beyond their 12-week allotment so you may be able to discipline or terminate the employee for failing to return to work. Communication is important. Be sure you have communicated in writing the date you expect the employee to return. If the employee does not return, let him or her know in writing that you consider the absence to be unexcused and that (s)he will be disciplined/terminated.
As always with serious employment actions, however, be very careful. An employee’s serious illness or injury may very well qualify the person as disabled and thus protected under the Americans with Disabilities Act. If so, you may have to consider additional time off or a return to work part-time if it is a “reasonable accommodation” and would not create an undue hardship for your organization and, under the ADA, the person must be returned to the same job, not just an equivalent one. It’s helpful for employers to know that, as a general rule, time off of an indefinite nature is not considered reasonable.
Of course there are always more scenarios that arise. The best thing is to do your homework. The DOL website is a great source of information. And for subscribers to HRSentry, all the resources you need to get HR compliance right are at your fingertips.
Last week, we looked at the basics of FMLA. The law itself seems straight forward enough; so why is administering FMLA such a headache? Well, there are many different administrative aspects, many situations that don’t come up every time, many types of events that qualify, and other laws that overlap, so keeping track of how to do things right becomes a challenge. Let’s build on the basics by looking at some common questions.
Who qualifies for FMLA leave? When calculating whether someone has at least one year of service with your organization, understand that a person’s prior service does not have to have been consecutive. Keep in mind when rehiring former staff that you have to count prior service unless the person had more than a seven year break in service unless the break was to fulfill the employee’s National Guard or Reserve military obligations. Also, remember that to be covered, the employee needs to have worked at least at least 1250 hours during the past year.
How are the employee’s job and benefits protected? When an employee returns from FMLA leave, they must be given their original job back or one with equivalent pay, benefits and other terms and conditions of employment. You have to keep their health benefits intact while they are gone (they need to reimburse you for the employee portion of any premium) but you don’t have to give them a bonus based achieving certain results or hours worked while they were out on leave. If someone doesn’t return from leave, you may be able to get reimbursed for health premiums you paid on their behalf.
How does the employer designate the leave as FMLA? The employee is supposed to give you 30 days’ notice if the leave is foreseeable or as soon as practicable otherwise. They must provide sufficient information so you can determine whether the FMLA applies. If it does, you must notify the employee of whether or not (s)he is eligible and what his/her rights and responsibilities are under the law. When the employer has enough information to determine that leave is being taken for a FMLA-qualifying reason, the employer must notify the employee that the leave will be counted as FMLA leave. Employers have the option to use forms Department of Labor (DOL) forms WH-381 and WH-382 to meet these notification requirements.
How do I know if the employee or family member truly has a serious medical condition? You may require that a request for leave due to the employee’s or family member’s serious health condition be supported with a certification from a health care provider. You may even require second or third medical opinions, at your expense, and periodic re-certification of an ongoing condition. The employee’s direct supervisor cannot be the one to authenticate or get clarification of the medical certification. It is normally done by HR but it could also be a leave administrator or another managerial figure. Employers have the option of using DOL forms WH-380-E and WH-380-F for medical certification.
How do other types of leave tie in with FMLA? If an employee takes workers’ compensation or disability leave, get the FMLA clock ticking as well! In other words whenever an employee’s leave involves their own serious illness or injury that prevents them from performing their job, immediately designate the leave concurrently as FMLA leave. If you don’t, employees can take consecutive leave periods that go well beyond their FMLA allotment.
When is intermittent leave permitted? When medically necessary or if due to a qualifying exigency, you must allow the employee to take their leave intermittently or on a reduced leave schedule. Likewise, the employee has to make reasonable efforts to schedule leave for planned medical treatments such that they don’t unduly disrupt your operations.
How does unpaid leave work for salaried, exempt staff? The use of unpaid FMLA leave, intermittent or otherwise, does not compromise an employee’s status as exempt under the Fair Labor Standards Act, even if they do not receive their full week’s salary. FMLA leave is one of the exceptions under the FLSA to the requirement that exempt employees be paid their full weekly salary regardless of the number of hours worked that week.
Can FMLA leave be paid? Yes, if your leave policy provides for it, the employee may choose or you may require the employee to use their accrued vacation or sick leave for some or all of their FMLA leave.
How do I keep up with the FMLA requirements related to the Military Family Leave addition to the law? This is an area of the law that has its own specific rules. When you encounter this situation, do your homework and start with DOL Fact Sheet 28-A. It covers just about everything you’ll need to know.
In our next blog, FMLA Administration – Part 3, we’ll take a look at some situations that are different enough to ignite some questions but not so rare that you’ll never run across them.
