In layman’s terms, retaliation is payback, the act of getting back at someone, harming or punishing the person because of something they’ve done.  In the employment law sense, it’s when an adverse action is taken by an employer against an employee for having taken an action that is protected by law; the result is considered retaliation and it is unlawful.

Adverse action by an employer can take many forms: termination, demotion, discipline, salary reduction, negative performance evaluation, change in job assignment, change in shift assignment and can even consist of hostile behavior toward the person by the supervisor or someone else.  Obviously, many of these actions may be perfectly legal and within an employer’s rights under proper circumstances.  You are free to engage in adverse actions that are brought about by nondiscriminatory reasons even if the employee happened to have filed a claim against you or was out on protected leave.  But before embarking on any adverse action, carefully think things through, ensure that HR is involved and be certain there is proper documentation that shows your action was taken lawfully. If you are unsure, it’s well worth it to get sound legal advice.

Here’s an example of a situation you might encounter: when someone is having performance issues, don’t procrastinate; document the problems right away.  If the person then requests and becomes eligible for FMLA leave, you want it to be crystal clear that performance issues were already being addressed in advance and are completely separate from the request for leave.  If discipline results from the performance issues after the person returns from leave, be sure you have excellent documentation of the lawful reasons for taking disciplinary action.  You always want to consider your documentation in terms of how a jury might view it. Timing of and clear communication to the employee about any performance issue or other lawful reason are vital.

Don’t forget that whether or not retaliation occurred may be in the eye of the beholder.  Consider whether any adverse action you take may be viewed by the employee as punishment for something they have done that has legal protection.  Treating employees humanely and respectfully, even when initiating a disciplinary action, is vital.  Not only is it the right thing to do, but employees who are treated disrespectfully can become angry.  And angry individuals are much more likely to file a lawsuit, baseless or otherwise, against you.

In addition to taking FMLA leave, what other common employee activities are protected by law? Here are some important examples:

• Requesting accommodation under the Americans with Disabilities Act;
• Bringing a claim of discrimination;
• Taking protected leave under Uniformed Service Employment and Reemployment Rights Act;
• Making a complaint of harassment or other workplace violation (such as a safety infraction or a wage-hour law violation;)
• Posting comments on social media that qualify as “protected concerted activity;”
• Participating in a government agency’s investigation of a claim brought by another employee.

It’s pretty clear that retaliation should be on every employer’s radar screen and it’s key that all of your managers and supervisors be trained to understand it, to understand protected statuses and activities, and to make sure discrimination in general and retaliation in particular doesn’t happen.  After all, supervisors are on the front lines where they could make stray comments that might be construed by an employee to be retaliatory.  Even unfounded legal claims are costly in terms of time, effort and attorney fees so you want to avoid even the appearance of retaliation.  Further, it is ironic that even when an initial claim of a workplace violation is found to be baseless, the employee may still be able to prove that retaliation occurred as a result of his or her making that initial, baseless claim!

And there’s yet another caveat–they say the road to hell is paved with good intentions!  Here’s an illustration of good intentions gone bad:  Let’s say an employee alleges sexual harassment by her supervisor.  In response, you switch the employee’s shift from day to evening so she doesn’t have to work with that supervisor.  Guess what?  Even though you intended no harm and thought you were trying to help her, if the employee prefers the day shift, she has a claim that you retaliated due to her claim of sexual harassment.  In response to a claim of sexual harassment or any other forms of discrimination, don’t focus only the victim and ignore the alleged perpetrator as shown in the example.  Conduct a full investigation and, if such discrimination is indeed happening, put a stop to it.  And document all of your actions along the way.

So what can you do to prevent claims of retaliation in your workplace?  Here are some strategic steps:

Establish a policy.  Spell out what retaliation is and make it clear that you will not tolerate retaliation from managers or other employees.  Tell employees what steps to take if they feel they are being retaliated against.

Train your managers.  Make sure managers and supervisors understand what retaliation is and what your policy says.  Make sure they know to always include HR when they wish to recommend an adverse action against an employee.

Respond to all claims and complaints.  If a claim of a workplace violation or other workplace complaint is made, communicate with the employee. Explain that you take the claim seriously and won’t tolerate retaliation from anyone in the company.

Keep any claims you receive confidential.  Confidentiality is respectful to the employee but there’s another reason:  the fewer who know about a claim, the lower the chances that someone will retaliate against that employee. Naturally, when you investigate an employee’s allegation, you will have to tell some people about it but make sure it’s only those who absolutely need to know. And when you tell them, explain what retaliation is and that it won’t be tolerated.

Document, document, document. Take notes of everything you do to prevent retaliation. If an adverse action against an employee is justified, even when an employee has engaged in a protected activity, make sure it’s clear that your action was not in response to the employee’s protected activity or status and was taken for other, lawful reasons (such as poor performance or other job-related reasons) that are well communicated and well documented.

Treat all employees with respect, even when taking an adverse action.

Employment law can seem complex and it may sometimes seem that the deck is stacked against employers.  But if you are meticulous, think things through, and document all adverse action properly, you should be able to take adverse actions when appropriate and protect your organization from claims of retaliation and all other forms of discrimination.

• HR Audit—assess your weaknesses before someone else does and work to reduce your risk exposure in the most important areas first;
• Classification – make sure your workers are properly classified as employees or independent contractors;
• Policy and Handbook Review and Update – update policies as needed and make sure your handbook reflects all changes; communicate any changes to staff.
• Training — set up training for your managers (and employees as appropriate); important areas include your policies and procedures, documentation, recruiting practices, nondiscrimination, retaliation and harassment.
• Fair Labor Standards Act – evaluate the exempt vs. nonexempt status of all positions to make sure you’re in compliance.
• Performance Management – create a complete system, beginning with the job description and tying into your goals and mission, that occurs year round with continual feedback and no surprises;
• Job Descriptions – have employees and managers review and update all job descriptions; if you don’t have job descriptions, it’s a great time to create them.
• Wellness Program – institute one or improve the one you have to create a healthy workplace culture; conduct an employee survey to find out what’s working well and what could be better;
• New Employee Onboarding – enhance and improve your program for new employees so they acclimate and become productive team members sooner.

HRSentry is the best place to learn about what you can do with all of these topics and all of the issues you face daily as an HR professional.  There’s even a mobile app for conducting an HR audit.  So begin the new year on the right foot with HRSentry resources at your fingertips!

Unless legal challenges dictate otherwise, most private sector employers will be required to post the 11-by-17-inch employee rights notice by the new April 30th deadline.  The notice may be downloaded for free from the NLRB through its website which provides additional information on posting requirements as well as on NLRB jurisdiction.

Specifically excluded from NLRB jurisdiction are:

• federal, state and local governments, including public schools, libraries, and parks, Federal Reserve banks, and wholly-owned government corporations;
• Employers who employ only agricultural laborers, those engaged in farming operations that cultivate or harvest agricultural commodities or prepare commodities for delivery;
• Employers subject to the Railway Labor Act, such as interstate railroads and airlines.

To download HRSentry’s “HR Audit” visit the Apple App Store or Android Market and search for “HR Audit”. In addition to the HR Audit, HRSentry’s first app “HR At Your Fingertips” for the iPhone and iPad, continues to rank as one of the top business apps in the Apple store.

About HRSentry:

Since being founded in 2003, HRSentry’s mission has been to create, deliver, and support services and training that empower the organization to be self-sufficient in administration of its Human Resource policies, practices, and procedures. HRSentry’s services enable the user to access Human Resource forms, policies, and procedures; link to federal and state laws, regulations, and resources and expand their knowledge of HR through state-of-the-art training mediums. For more information visit www.hrsentry.com.

So, HR professionals, take time to breathe.   And then take some time to brush up on best practices, educate yourself on compliance with employment laws, and anticipate and prepare for some of the problems that inevitably arise in your workplace.  Toward these aims, it’s a great idea to thoroughly peruse and familiarize yourself with the HRSentry website, precisely the help you’ll need at your fingertips to save time and legwork in the coming year.

From the HRSentry home page, click on Custom Profile and update your information to be presented with valuable resources that are tailored to your needs.  Click on HR Solutions to find the information kits we’ve put together for you on myriad HR topics by clicking:  HR Daily Tasks, HR Education and HR Modules.  It’s also a great idea to peruse the Best Practices library (on the lower left of the home page) to ensure your organization is on top of the most pressing issues.

Taking these steps now will save you lots of time when the flurry of activity resumes.  So give the gift to yourself of using HRSentry to its fullest.  You’ll breathe easier.

Reporting premiums on 2011 W-2s remains optional.  It’s a good tool to help educate employees on just how much the employer is paying in health insurance premiums on their behalf.  Ordinarily, such “sticker shock” doesn’t hit unless and until an employee terminates without other health coverage options and needs to consider taking on the full cost of the employer’s health coverage through COBRA.  At that point they are usually quite shocked and dismayed to learn the full cost of premiums.

The health insurance value reported on W-2s is excludable from income and thus not taxable and, purportedly, that won’t change. But the reporting will help the IRS monitor compliance with coverage mandates for large employers slated for 2014.  And the information will help employers know whether their health plan offerings are headed toward being considered “Cadillac plans” which are scheduled to incur excise taxes in 2018.

The difficult economy, lack of job openings and preponderance of students and others willing to accept unpaid internships can create a tempting situation for employers.  But this lawsuit sends the message that it’s probably no longer safe for employers to reason, “everyone does it.”  The Department of Labor has long had a six factor test for unpaid internships so if you’ve not already done so, and you have interns, you should become familiar with it immediately.

Here are a few additional tips:

• Implement procedures that ensure the HR department is always in the loop and managers can never bring anyone on board without HR’s prior knowledge and approval;
• If the internship is not tied to an academic program, your chances that it qualifies as unpaid go down;
• If the intern is brought on board in lieu of a regular employee doing the work, the intern is actually an employee and the FLSA and state laws apply;
• If HR determines the internship position does pass the DOL six factor test, supporting documentation should be kept on file;
• Understand and document what interns are doing, how their work is overseen and by whom;
• Check state laws as well to ensure both federal and state compliance;
• The FLSA makes an exception for bona fide volunteers in the non-profit sector or for state or local government agencies.

The punishment for violating the FLSA can be severe and may include steep fines in addition to back regular pay and back overtime pay, back taxes, and attorneys’ fees for the opposing side.   Even when companies prevail, lawsuits are generally costly.   It will be interesting see how this version of the Black Swan story turns out.

Reporting pay laws vary a great deal among these states so it’s important to understand the details that apply to you.  For instance, some states have exceptions for certain industries, some require that employees be scheduled for a minimum number of hours in order to qualify for reporting time pay, some have requirements that apply only to minors, and there are varying requirements regarding both the number of hours that must be compensated and at what rate.

Following is an illustration of how things work in the state of Massachusetts.  The reporting time pay obligation under wage law there dictates that “when an employee who is scheduled to work three or more hours reports for duty at the time set by the employer, and that employee is not provided with the expected hours of work, the employee shall be paid for at least three hours on such day at no less than the basic minimum wage.”

So let’s say a store in Massachusetts has two employees earning $10 per hour both of whom start work at 9:00 a.m.  Sally is scheduled to work two hours and Sean is scheduled for four.  A snow storm has arrived with fury that morning so the store closes after being in operation only an hour and the employees are sent home.  Under Massachusetts law all the employees must be paid at their regular rate, in this case $10, for the one hour they actually worked.  But Sally would not get paid for her additionally scheduled but not worked hour since the law only covers those scheduled for three or more hours.  Sean, on the other hand, must be paid at least $8 per hour, the prevailing minimum wage, for two additional hours, totally the minimum three hours of pay required to be compensated by Massachusetts state law.

Of course union contracts, other employment contracts, or an organization’s own personnel policies may obligate an employer further as well so it’s a good idea to get up to speed on all of your wage obligations before inclement weather hits and be sure payroll staff are properly trained in advance.

Staff should always be considered non-exempt unless they meet a series of salary and duties tests for one of the exemptions laid out under the FLSA.  More information is available on the US Department of Labor (DOL) Wage and Hour Division’s compliance page.  Nonexempt employee protections under the FLSA include being paid at least at the prevailing federal or state minimum wage rate, whichever is higher, as well as being paid at an overtime rate of one and one half times the regular rate of pay for any work hours that exceed 40 in one workweek.

But keep in mind that the FLSA does not require employers to provide paid sick, vacation, holiday or personal leave.   Of course if you do have policies providing such leave, you need to follow them.  There’s nothing worse for an employer than having policies and not following them.  That said, for nonexempt staff, the FLSA says that an employer is not precluded from lowering an employee’s hourly rate, provided the rate paid is at least the minimum wage, or from reducing the number of hours the employee is scheduled to work.  And the FLSA does not require employers to pay non-exempt staff for hours they have not worked.

So, when inclement weather hits and you close your workplace, you are permitted under the law (assuming you don’t have a policy in place to the contrary) to deduct pay from non-exempt employees’ paychecks commensurate with the reduced work time.  Likewise, if you keep your workplace open but a non-exempt staff person does not make it in due to the weather, you are allowed by law to deduct those hours not worked from their pay, again personnel policy to the contrary notwithstanding.  Note that if you do make such deductions from pay, be sure to apply them to non-exempt staff across the board to avoid discrimination claims.  And there’s one more caveat:  in today’s plugged in world, employees often perform work remotely from personal computers and electronic devices such as smartphones.  Even if they are just checking email, you must count such work done remotely as time worked.

The paragraph above outlines what is permitted under the FLSA, but there may be lots of reasons for employers to choose to be more generous and pay non-exempt employees for time off related to a disaster or inclement weather, especially if the loss of work hours is based on the employer’s decision or on severe and unusual circumstances beyond employees’ control.  Important issues to consider include employee morale, retention, loyalty and engagement as well as the culture, core values and mission of your organization.

What about exempt staff? You are not permitted to reduce an exempt employee’s predetermined weekly pay without jeopardizing their exempt status except under limited circumstances.  However, you are permitted to reduce their accrued sick, vacation or other leave bank, even if the reduction is less than a full day and even if the absence is directed by the employer due to lack of work; however, the exempt employee must still be paid their predetermined weekly salary in any week in which any work is performed.  Note that the full salary must be paid: even if the leave bank is exhausted; if it becomes or goes further into the negative; even if the employer does not have a bona fide benefits plan at all; and even when the leave is required by the employer due to inclement weather according the the DOL Wage and Hour Division Opinion Letter FLSA2005-41.

So take some time now to establish the leave policies your organization needs or to review those you already have in place, including  inclement weather and disaster policies.  Make sure they are in compliance with the FLSA and that they support your culture, goals and mission.

If your organization is subject to this posting requirement, please note the following:

The poster must be displayed in at least an 11 x 17 inch format.  If you cannot download to that size, there is an 8 1/2 X 11 inch version available for printing on two pieces of paper to be attached to one another to create the correct size.  The poster is available in both color and in black and white.

If you normally post notices to employees regarding personnel rules or policies on an internet or intranet site, you will be required to post the NLRB’s notice or  a link to the NLRB’s web site on those sites as well.  The link must read, “Employee Rights under the National Labor Relations Act.”   You do not have to notify employees via email, Twitter, or other electronic methods.

If 20% or more of your workforce speaks a specific foreign language as their first language, you must also display a poster in that language.  If 20% or more of your workforce is made up of two or more  groups of speakers of other languages, the poster must be displayed in the language of the largest group.  For other groups it is the employer’s option to display posters in additional languages or to provide translated copies to those employees.   Electronic notification is subject to the translation requirement as well.  Translated versions of the posters and electronic links are available from the NLRB upon request.

The date for compliance is November 14, 2011.