A Florida law firm, Elizabeth R. Wellborn PA, recently fired 14 workers for wearing matching orange shirts to work according to the Sun Sentinel. According to the article, an executive of the firm had gathered that wearing the shirts represented a form of protest and questioned them about it. The employees denied any protest motive, some claiming they simply wanted to look like a group when they went to happy hour after work. After questioning the employees, the executive conferred with others and the employees were summarily fired.
There are a few HR issues embedded in the story:
“At will” employment is based on the concept that an employment relationship is voluntary on both sides and thus can be terminated be either party for any reason, a bad reason or no reason at all (aside from an illegal one such as discrimination) with or without notice. Florida is an at will state and, it seems, mode of dress is not legally provided for except upon religious or other protected grounds. So it appears, without further information, that the law firm acted within its legal rights.
It’s a bit ironic that, had the employees not denied the protest motive and had instead indicated that wearing the shirts was to protest their working conditions, their act would have been protected by the National Labor Relations Act (NLRA.) Under the NLRA, employees have the right to engage in concerted activity for their mutual aid and protection in relation to their working conditions. Presumably the law firm executives would have known this and not fired them.
The third issue is not legal but one of employee relations. Many organizations these days are focusing on the concept of improving employee engagement and trying to become an employer of choice. It seems the firings at Elizabeth R. Wellborn, PA will run counter to both ideas. Fear of firing is not a good motivator, at least beyond the short term. It’s also a distraction that will interfere with worker morale and engagement. The bad publicity will likely make recruiting tougher for this firm. And, given the potential anger other employees may harbor over the incident, this firm may become fertile ground for a unionization campaign.
There may be more to the situation than the Sun Sentinel article reveals and perhaps time will tell. In the meantime, it appears that the human resources job at that firm just got a lot tougher.
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.
Of all the headaches HR professionals deal with, the Family and Medical Leave Act (FMLA) head throb is among the most frequent complaints. The law’s complexity is exacerbated by its overlap with a host of other laws: workers compensation, the Americans with Disabilities Act (ADA), similar state leave laws and the Uniformed Services Employment and Reemployment Rights Act (USERRA.) What’s the best approach to get a handle on the FMLA and its legal cohorts so you can feel confident about compliance? Start with a foundation of understanding the basics, add more complex features to your knowledge base from there, and, when you face an unusual or complicated scenario, do your homework thoroughly.
The most important cornerstone in your foundation of leave law compliance is applicability. You must first know whether the laws apply to you as an employer; and, if so, which employees are covered, what must be provided and under what circumstances. If you operate in any of the eleven states (plus District of Columbia) that have a law similar to the FMLA, get to know those requirements because state law is likely to be broader: cover smaller employers, have more qualifying situations, provide for more types of leave and benefit protections. Where both federal and state laws apply, you must provide what is most advantageous to the employee.
FMLA applies to private employers who meet a threshold of 50 or more employees within a 75 mile radius as well as to all governmental agencies and elementary and secondary schools, no matter how few their employees. Also, there are special FMLA regulations that apply to schools and to airline flight crews with information available on the DOL website.
Employees, to be eligible for FMLA, must have worked at least 12 months (not consecutively) for the employer and have put in at least 1250 hours during the past year. Keep in mind that, under USERRA, hours that an employee would have worked but for his or her military service are credited toward the 1,250 hours. Similarly, such time must be counted in determining whether the employee has been employed at least 12 months.
The FMLA requires that you provide eligible employees with job-protected, unpaid leave for up to 12 weeks during a 12 month period if they have a qualifying reason. Events that qualify include:
• the birth of a son or daughter, and to care for the newborn child;
• the placement with the employee of a child for adoption or foster care, and to care for the newly placed child;
• caring for an immediate family member (spouse, child, or parent — but not parent-in-law) with a serious health condition; and
• when the employee is unable to work because of a serious health condition.
There are also currently two qualifying situations related to military families:
• Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered service member on active duty (or has been notified of an impending call to active duty).
• To care for a covered service member with a serious injury or illness if the employee is the spouse, son, daughter, parent or next of kin of the service member.
In the case of the latter bullet, up to 26 weeks of military caregiver leave may be taken within a 12 month period. If you encounter either situation, review the DOL’s Fact Sheet #28A. It should also be noted that an expansion of FMLA related to military service is currently under consideration.
Some employers don’t realize that they should define their 12-month leave year. If you don’t designate which of the four types of allowable leave years your organization uses, a court could decide for you and their decision is likely to reflect whichever is most favorable for the employee. You may change your choice but only with 60 days’ notice to employees and then only if no employee is harmed by the change. The four methods permitted are:
the calendar year;
any fixed 12 month period, such as fiscal year or anniversary date;
“forward year” method looking forward 12 months from the first date leave is used; and
“rolling year” method looking backward 12 months from the date leave is used;
The first two are the most straight forward and easiest to administer using a set 12 months as the leave year period but allow for the possibility of 24 weeks of leave in a row: 12 at the end of one year and 12 more at the beginning of the next. Under #3, the forward year method, the 12-month period begins on the first day of the employee’s leave and the employee receives up to 12 weeks for all qualifying events which occur during that upcoming year. Number 4, the rolling method is more complicated to administer but is viewed as the best method to limit the amount of leave employees can take. Under this option, each time an employee takes FMLA leave, the remaining entitlement equals any balance of the 12 weeks they haven’t used during the preceding 12 months. An example makes this clearer:
Suppose an employee uses four weeks beginning February 1, four weeks beginning June 1, and four weeks beginning December 1. That’s 12 weeks and they won’t be able to take any more FMLA leave until February 1 of the next year. However, at that point the employee will only be entitled to four weeks of leave, with an additional four becoming available on June 1 and four more on December 1.
So those are some keystones in your foundation of FMLA compliance knowledge. In Part 2, we’ll discuss some situations that get more detailed and complicated so you can build upon these basics. Stay tuned.
Sexual harassment in the workplace seems to be a never ending problem. Previously, we looked at the issue with an eye toward preventative steps that can reduce your risk of claims. Considered to be a form of sex discrimination, it’s helpful to remember that sexual harassment can occur among individuals of any combination of gender. Regular training and a good anti-harassment policy are among the best practices you should follow.
Best practices reduce but don’t necessarily eliminate your risk. Simply put, stuff happens. So what should you do if you get a complaint of sexual harassment? How about if you become aware of a potential situation and there’s no formal complaint? What if an employee complains and then wants to take it back? The legal standard is whether you “knew or should have known” about a situation. So embark on an investigation whenever you realize a case of sexual harassment might exist.
An important rule of thumb is never procrastinate. In order to follow Equal Employment Opportunity Commission (EEOC) guidelines and demonstrate that you take such complaints seriously, respond to any allegation promptly. Unless the claim is truly harmless and minor or the harasser admits right away to the offense, you’ll need to investigate thoroughly. Here are some important steps to help you set up an effective investigation process:
1. Decide who the investigator should be. A trained HR professional is a wise choice. But if there is a close personal connection to either party or some other issue or reporting relationship that compromises impartiality, the investigation should be conducted by another trained individual or by outside legal counsel.
2. Never jump to conclusions. If an individual’s allegation initially sounds far-fetched, push aside any instinct to judge right away. Conversely, don’t condemn the accused either; it’s vital to remain objective and treat all parties with respect.
3. Assure the individuals involved that you will provide confidentiality and protect their privacy as much as possible; don’t make any guarantees, however, and let them know that information will be have to be shared on a need-to-know basis.
4. Consider the immediate pressure the alleged victim may be feeling and help alleviate it; but create a solution that does not create harm. For instance, separating the individuals by changing the alleged victim’s location or shift may be detrimental to him or her. Even when unintentional, such harm could result in a claim of retaliation. Instead, focus your solution on the alleged harasser; consider placing him or her on administrative leave.
5. Plan the investigation carefully. Develop a list of witnesses and other relevant sources of information including electronic evidence such as emails, letters, cards, phone records or computer history. These may be added to as you glean further information throughout the process.
6. Prepare questions in advance. Keep them open ended and try to frame them in a way that does not reveal confidential information, if possible. Interview the complainant, alleged harasser and witnesses. Your questions should cover: who, what, when, where, why and how. An excellent list of suggested questions for each type of interviewee, along with additional guidance, can be found on the EEOC website.
7. During all interviews, take careful notes. Never make promises or offer your opinion. Look for inconsistencies as well as further evidence and additional potential witnesses. It can be helpful to ask that the individual to put his or her version of what occurred in writing or at least sign off on your notes. A disparity between what the person says and what he or she is willing to put into writing could be a red flag and may help you assess credibility.
8. Interview individuals again if new information warrants.
9. Make your best determination of what happened and the appropriate action to take based on an assessment of credibility and review of all the evidence. Create a confidential, written report that documents your methods, all evidence and information gathered, conclusions drawn, and, if warranted, recommendations for appropriate remedial action. Any remedy should fit the situation and need not always be as serious as discipline or termination. Other actions might include counseling, training, changes to procedures or improvements in complaint mechanisms.
10. Stay in touch with both parties throughout the investigation. Let them know when it’s been completed and what your findings are. To protect privacy, you likely won’t reveal to the complainant the specifics of any disciplinary action. However, you should let him or her know if some action is being taken. Encourage the complainant to report any further instances of misconduct and regularly check in with him or her to follow up and make sure there are no further problems.
The concept of retaliation is a potential danger when dealing with complaints of sexual harassment or complaints of any workplace misconduct for that matter. Retaliation is any action that punishes an employee who engages in legally protected workplace activity. Employees who complain sometimes find they’re treated differently afterward, either by the alleged wrongdoer or others. Hostile treatment, including being ignored or shut out, can be considered a form of retaliation. Remind everyone involved in the situation that retaliation against any party or witness is strictly prohibited. Continue to follow up during the ensuing months or year to make sure it’s not happening in your workplace.
Time Magazine’s cover story this week, The Upside of Being an Introvert, looks at introversion in a society that tends to value extroversion. It explores the various challenges and strengths of introverts and extroverts, the areas that lie between them and the discomfort zones introverts can overcome through effort when warranted. The day before seeing the Time article, I read about Temple Grandin, PhD, speaking at a local conference. Portrayed by Claire Danes in a 2010 Emmy award winning TV movie, Grandin is an author and professor at Colorado State University who conducts conferences nationwide in her areas of expertise: autism, Asperger’s, and the humane treatment of livestock. According to the article, when Grandin was diagnosed with autism as a child, a doctor had recommended institutionalization; her mother refused. It’s disturbing to consider the different outcomes for Dr. Grandin and our society had her mother acquiesced!
Both articles point to society’s gains from diversity; as a microcosm of society at large, the workplace benefits likewise. After all, how many of us, as HR professionals, have witnessed (or committed) the classic mistake of hiring or promoting employees who are “just like us” rather than surrounding ourselves with the complementary skills and diverse viewpoints needed to bring the department or organization to the next level? The result can be stagnation, stifled ideas and missed opportunities. Conversely, a well-managed, diverse team can lead to synergy and high performance when diverse approaches, ideas and vantage points are encouraged and valued.
Raising awareness about these variations in personality types and styles can help employees, supervisors, and managers become more effective in the workplace. For instance, if you know your boss prefers short summaries, don’t engage in meandering explanations or tangents, even if that’s your preferred communication style. On the other hand, if you need information from a co-worker whom you know values strong interpersonal connections, ask him about his weekend and family first; he’ll go the extra mile knowing you are interested in him as a whole person.
One way for HR to help managers and employees understand and capitalize on each other’s differences is to use a formal personality assessment instrument. Possibly the most well known is the Myers Briggs Type Indicator® which is based on four categories of preferences: Extrovert or Introvert; Sensing or iNtuition; Thinking or Feeling; Judging or Perceiving. The combinations yield sixteen different personality types denoted by the upper case letter in each of the categories such as ESTJ, ISTJ, ENTP, etc. One criticism is that sixteen profiles may be hard to remember and use.
There are other assessments that yield fewer profile types and thus may be easier to remember and act upon. This is not to advocate for or against any type of assessment or even whether to use one at all. Do the research and let your judgment and budget be your guide if you think a formal tool might be helpful for your organization. My observation has been that, formal tool or not, it’s good to raise awareness among staff and managers that many differences in style are not necessarily better nor worse, just different.
For starters, it helps to know about four main temperaments, with the understanding that we are a mixture of all to varying degrees. Although the names are old fashioned, the categories themselves have stood the test of time:
1. Choleric people are energetic, ambitious and passionate. They tend to be doers and, as leaders, are dynamic and goal oriented. They are confident, outspoken and not easily discouraged; they tend to be good decision makers but can also be compulsive. Other downsides are a tendency to be controlling, become impatient, be quick to anger. Highly results orientated, cholerics may be impatient with meetings, processes and other staff members and they may be unaware of the effect they have on others.
2. Sanguine people are cheerful, talkative and entertaining. Fun-loving and enthusiastic, they have good people-skills and a confident and spontaneous style. They are emotional and communicative by nature, but can also tend towards arrogance and self-indulgence. They may be artistic. At work they provide a positive atmosphere and often volunteer to help out. However they can also be day dreamers who struggle to complete work, starting too many tasks. Their creative and enthusiastic energy can inspire others, but they may lose focus when the novelty of the project or task wears off.
3. Phlegmatic people are relaxed and easy going. They remain calm and quiet and are usually considered reliable and capable. Although generally slow to anger, if pushed too far they can be explosive. At work they are steady and have a good sense of processes and timing. They are good mediators who work well under pressure and tend to need deadlines to work towards. They sometimes find it hard to speak up in the workplace so their ideas may get overlooked. They have a tendency to avoid conflict.
4. Melancholic people are thoughtful and sensitive towards the needs of others. They are often deep, philosophical, self-sacrificing and conscientious. While principled and idealistic, they may also be self-critical and prone to depression. At work they are organized and goal-oriented and maintain high standards through being persistent and thorough. They may ask difficult questions. They can find creative solutions but may also fear the worst. They can be resistant to change unless there is a good precedent.
Being aware of temperamental differences can help you anticipate, prepare for and interact well with others for the best results. The key is not to pigeon hole people. I once had a colleague who, I suppose, had me pegged as someone who would be unsettled by change. (It’s true that I have “melancholic” tendencies.) He thought I would react if he sat in the chair that I happened to have sat in at several prior meetings in that room. I entered the room and sat in another chair, unaware of his thought process and unconcerned about which chair I sat in. He promptly burst out laughing. The joke, he admitted, was on him.
