These are just some of the typical questions our consultants answer every day. Click a question to read the answer. If you need more details or to know how the answers may apply to your organization, please give us a call.
Americans with Disabilities Act
May an employer ask all employees what prescription or over-the-counter medications they are taking?
The EEOC has issued its EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Exams. The answer is “generally, no.” Asking all employees about their use of prescription medications is not job related and consistent with business necessity. In limited circumstances, however, certain employers may be able to demonstrate that it is job-related and consistent with business necessity to require employees in positions affecting public safety to report when they are taking medication that may affect their ability to perform essential functions. Under these limited circumstances, an employer must be able to demonstrate that an employee’s inability or impaired ability to perform essential functions will result in a direct threat. For example, a police department could require armed officers to report when they are taking medications that may affect their ability to use a firearm or to perform other essential functions of their job. Similarly, an airline could require its pilots to report when they are taking any medications that may impair their ability to fly. A fire department, however, could not require fire department employees who perform only administrative duties to report their use of medications because it is unlikely that it could show that these employees would pose a direct threat as a result of their inability or impaired ability to perform their essential job functions.
It is traditional for employers to include questions on prescription drug usage in a substance abuse plan and to ask for employees to report such usage in all cases where performance may be impaired. Under the EEOC’s guidance, the federal agency would find such questions illegal under the ADA unless the employee is in a position where prescription or over-the-counter drug usage would affect public safety. An employer also may be able to argue that any other situation where another employee potentially might be physically harmed also could be appropriate for coverage under the reporting requirement. If you, as an employer, have such a provision in your substance abuse program, it may be advisable to eliminate that requirement until the EEOC’s regulation has been tested in court.
May an employer ask all employees what prescriptions or over-the-counter medications they are taking?
Generally, no. According to the Equal Employment Opportunity Commission (EEOC), asking all employees about their use of prescription medications is not job-related and consistent with business necessity. In limited circumstances, however, certain employers may be able to demonstrate that it is job-related and consistent with business necessity to require employees in positions affecting public safety to report when they are taking medication that may affect their ability to perform essential functions. Under these limited circumstances, an employer must be able to demonstrate that an employee’s inability or impaired ability to perform essential functions will result in a direct threat. For example, a police department could require armed officers to report when they are taking medications that may affect their ability to use a firearm or to perform other essential functions of their job. Similarly, an airline could require its pilots to report when they are taking any medications that may impair their ability to fly. A fire department, however, could not require fire department employees who perform only administrative duties to report their use of medications because it is unlikely that it could show that these employees would pose a direct threat as a result of their inability or impaired ability to perform their essential job functions.
Is it okay to ask questions about prescription drug usage as part of our substance abuse plan?
Generally, no. Please see the above response. The Equal Employment Opportunity Commission, a government agency that enforces laws on employment discrimination, has issued guidance on this issue and would likely find this practice illegal under the Americans with Disabilities Act (ADA) unless the employer can demonstrate that impairment in a particular position would pose a threat to public safety. An employer may be able to successfully argue that a situation exists where another employee may be harmed by the employee’s impairment and therefore that a particular position may have a reporting requirement. We advise against the use of blanket reporting unless you are able to demonstrate that risk exists in all positions.
What benefits are part-time employees entitled to?
Most benefits are provided at the discretion of the employer, so employers generally can define part-time status and benefits eligibility. Exceptions to this are non-discretionary benefits, such as social security and family leave. Additionally, state and local laws may require otherwise.
Can we legally transfer vacation time off into sick leave to help reduce the balance of a staff member who has negative sick leave balance? If that member resigns or is terminated before the sick leave is paid back, can we legally deduct that from their final paycheck?
Since legal requirements vary from state to state, you should check with a local employment attorney to find out whether you can properly deduct sick leave pay from an employee’s paycheck at termination. Many states do not allow such a deduction to be made, and certainly not without written authorization from the employee. Caution is the key when considering deductions from an employee’s paycheck. The best way to get around this issue is to only pay sick leave after it has been earned. Some organizations allow an employee to use vacation leave to cover for sick time, especially if the sick leave account has been exhausted. If the sick time is covered by the federal or a state Family and Medical Leave Act, the employee may have the choice to use vacation time after sick leave has been used. A trend we see is the combining of sick and vacation time to Paid Time Off, which can be used for either instance. The key is if an hourly non-exempt employee has used up available leave (for the purpose noted in the policy), any additional time taken off should be unpaid. For salaried or exempt employees, it will depend on the amount of time taken, state law and the impact on their weekly salary. Keep in mind, if you provide one employee with an extra benefit, you may be setting precedent for this to be provided to other employees.
How long does COBRA coverage last?
There are certain qualifying events that allow an individual to obtain COBRA coverage. These events are the death of a covered employee, termination (if it is not for gross misconduct), a reduction of hours of the covered employee’s employment, divorce or legal separation of covered employee, employee’s eligibility for Medicare benefits, or a dependent child ceasing to be a dependent child of the covered employee depending on the terms of the plan. COBRA coverage lasts 18 months from when an employee is terminated or the hours of work are reduced. For the other qualifying events, 36 months of coverage is allowed. If an individual who is entitled to COBRA continuation is disabled, he/she is entitled to 29 months of continuation. These 29 months are for the covered employee as well as for the individual’s non-disabled, covered dependents. If the individual becomes disabled during the first 60 days of coverage, the 29 months of coverage still apply. Coverage must continue at the level of benefits as when the qualifying event occurred. However, if the employee waives her/his coverage within the time period for making the decision (they have up to 60 days to make a decision and then 45 days to make the first payment) or if he/she does not pay the premiums, COBRA coverage may end.
Is it possible to be exempt and non-exempt at the same time?
Many organizations unwittingly break federal and state laws by having managers work in non-exempt jobs for more than 20% of the week. That’s the key: if an employee spends more than 20% of any work week in non-exempt work, then s/he is non-exempt for that week or work period. For example, several organizations have their managers spend a full week every quarter or every six months stocking shelves or taking stock. These are definitely non-exempt responsibilities and, if the organization was trying to be in full compliance, they should pay overtime for any hours in excess of 40 worked during that week. And while, most managers don’t want to “rock the boat” or jeopardize their positions, the true challenge is that most managers and organizations rarely know or ever think about this provision of overtime laws.
Is an employee protected by the FLSA anti-retaliation provision if s/he is discharged for making an internal complaint?
Yes. The FLSA regulates employee wages and work hours. It requires employers to pay employees a minimum wage and overtime compensation. The FLSA also contains an anti-retaliation provision which makes it unlawful to discharge or discriminate against any employee because they filed a complaint, but, you may say, the complaint was made internally, not to a governing body such as the DOL. The courts have made the following observations: Congress intended the anti-retaliation provisions of the FLSA to provide an incentive for employees to report wage and hour violations by their employers. The U.S. Supreme Court has previously stated that the FLSA is a remedial statute designed to protect the individual rights and, therefore, its provisions should be interpreted broadly. The anti-retaliation provision of the FLSA was created to prevent fear of economic retaliation for voicing grievances about substandard conditions, and limiting the scope of the anti-retaliation provisions would jeopardize the protection promised by the provision and discourage employees from asserting their rights.
What is the difference between having a progressive disciplinary policy versus a corrective action policy?
We continue to recommend that organizations have a disciplinary policy, but urge care and caution when writing one and when implementing it. First, we recommend that it not be termed “progressive,” but instead call it a corrective action policy. “Progressive” implies that you will always follow the same steps in the action you take. We strongly recommend a good disclaimer to provide leeway for more serious situations where the employee would be discharged immediately (such as violence, theft, etc.). This one has been successful in several court cases. It is not always necessary that the corrective action process commence with verbal counseling or include every step. The above options are not to be seen as a process in which one step always follows another. Some acts, particularly those that are intentional or serious, warrant more severe action on the first or subsequent offense. Consideration will be given to the seriousness of the offense, the intent, and the action of the individual, and the environment in which the offense took place. Management has the right to use any of the corrective steps it feels, in its own judgment, properly respond to the situation.
Does an organization need to take any actions about an employee who is known for making off-color remarks and inappropriate jokes if no one has complained about him?
With inappropriate behavior or incidents that may be viewed as sexual harassment, an employer must take action if they knew or should have known there was a problem. In a situation such as this, we strongly recommend that there be a discussion with the supervisor and, more than likely, some of his subordinates. The discussion with the supervisor should be clear that such behavior is not tolerated and the conversation should be documented. EEOC guidelines require training for all employees, supervisors, managers and line staff. If you do not have a strong anti-harassment policy, you will want to start by developing and implementing one.
May an employer discipline an employee who reports to work under the influence of drugs or alcohol, even though the actual usage occurred off premises during non-work time?
Yes, assuming the employer has a substance abuse policy and can prove the employee violated the policy by being under the influence (impaired or hung over). Such proof is important because states are increasingly passing laws that protect off-the-job use of lawful substances such as alcohol.
Is an organization in compliance if employment posters are posted only on their organization’s intranet?
Intranets are effective tools to communicate with employees, especially if employees are geographically dispersed, but using your organization’s intranet as the sole vehicle for displaying federally mandated workplace employment posters may not relieve you of your obligations. It will depend on the requirement of the particular law.
- The Fair Labor Standards Act (FLSA) regulations, for example, require employers to physically display posters “in conspicuous places in every establishment where such employees are employed so as to permit them to observe readily a copy.” (29 CFR 516.4)
- Required posters must be displayed “so they are easily visible to the intended audience,” (existing and new employees) according to the U.S. Department of Labor instructions found in Workplace Poster Requirements for Small Businesses and Other Employers.
- Executive Order No. 11246, which governs affirmative action by federal contractors, indicates that required posters must be displayed in “conspicuous places accessible to all employees, job applicants and union representatives” (41 C.F.R 60-1.42).
The Family and Medical Leave Act (FMLA) requires employers with 50 or more employees to post a notice “prominently where it can be readily seen by employees and applicants for employment.” (29 CFR 825.300) Furthermore, FMLA states that “where an employer’s workforce is comprised of a significant portion of workers who are not literate in English, the employer shall be responsible for providing the notice in a language in which the employees are literate.” The FMLA does not clarify what constitutes a significant portion, so employers may wish to err on the side of increased communication. We encourage you to be in compliance by visiting our Labor Law Posters webpage to order your posters for each of your facilities. Oregon employers can download free posters from the Bureau of Labor and Industries’ website, http://www.oregon.gov/boli/TA/Pages/Req_Post.aspx.
Is our organization required to give veterans the day off in observance of Veterans Day?
In Oregon as of 2013, employers are required to provide employees who are veterans with time off (paid or unpaid) on Veterans Day. Under the law, businesses must provide paid or unpaid time off for Veterans Day if the employee would otherwise be required to work on that day and the employee provides (a) at least three weeks’ notice that he or she intends to take time off for Veterans Day and (b) documents showing that he or she is a veteran as defined by Oregon statute. To take leave under the law, the veteran must have served on active duty in the armed forces for at least six months and received an honorable discharge. If the individual served in a reserve or National Guard unit, the employee is not qualified for leave unless he or she was deployed or served on active duty for at least six months.
How is part-time defined?
Many employers define part-time employees as those working under 40 hours per week, and offer pro-rated benefits for employees who work at least 20 hours per week. The Affordable Care Act defines a full-time employee as anyone working 30 or more hours per week. Your benefit contracts may provide some definition and guidance as well.
Is an employee who is involved in a car accident while running company-related errands covered by Workers’ Compensation and who is responsible for an employee-owned vehicle?
Since the employee was working, he/she will more than likely be covered by Workers’ Compensation for medical and time loss. Exceptions to this may be if it can be shown that the employee was not working at the time, for instance, possibly doing personal grocery shopping or another personal errand at the time. Unless your insurance policy covers otherwise, the employee’s auto insurance will be primary for vehicle damage and liability. It is a good idea to ask employees for proof of current insurance coverage if their job involves driving their own vehicle for work. Also, let employees know their coverage will be primary in case of an accident.
What are the rules regarding meal breaks and rest breaks; and do the rules regarding meal and rest breaks differ for part-time and full-time employees?
In almost every state, the rules are the same for breaks and become self-explanatory regarding part-time and full-time employees: an employee is entitled to a minimum of a 30-minute unpaid meal period when an employee works more than five hours a day. (Splitting hairs a bit, in California a 30-minute meal period must be given to an employee who works a five hour day, but not if the work can be completed within six hours.) A 10-minute rest break is required for every four hours worked – or fraction thereof. (In California, no rest period is required for employees working less than three and a half hours.) The federal Fair Labor Standards Act does not require breaks, meals, and rest periods, so you must check into your own state’s code. Many organizations simplify the process by giving 15-minute break periods morning and afternoon and anywhere from 30-minute to one-hour lunch periods. Employees must be relieved of all duties during their meal and break periods or the time is considered work time and has to be paid.
Do the rules regarding meal and rest breaks differ for part-time and full-time employees? And may we require employees to take their meal periods on company premises?
You can compel an employee to take their meal periods on company premises. If employees are habitually late returning from meal breaks, you can, of course, dock their pay and notify employees of this practice ahead of time by stating it in the employee handbook or manual.
Do employees have a right to privacy in regard to their desks, computers, lockers, etc.?
The desk and contents other than personal property belong to the organization. The organization has the right to “search” an employee’s desk, file cabinets, and so on. With proper notice and reason, you may also search an employee’s purse, briefcase, and other personal belongings. We suggest clear statements about organization “ownership” of desk and file cabinet contents are part of the Employee Handbook.
How can we prevent employees from access to inappropriate use of the internet during work hours?
You are probably right to be concerned about this issue. Your approach to this potential problem can vary depending upon the culture and how much of an issue you believe it will be. First and foremost, you should have a comprehensive policy about employees’ use of electronic equipment. Important points to cover: equipment is being provided for organization use only during work hours; the equipment is owned by the organization and can be monitored, so employees should not expect privacy; and that sites being accessed (for business purposes) must comply with other employment policies, such as non-discrimination and non-harassment issues. You may decide that such a policy is all you wish to do, and that you will deal with individual issues as they arise. If you measure productivity or outcomes, it should be pretty obvious if someone is spending too much work time not being productive. There is also software available to track net surfing (sites and usage time), and that will allow you to block access to certain categories of web sites. If you choose to monitor, be sure to monitor everyone, not just singling out one individual. Another approach is to allow occasional employee use of the Internet during breaks or meal periods. With today’s technology, employees can access the Internet with their own devices and this practice becomes an issue of productivity and performance rather than one of use of company equipment.
If driving is an essential part of an employee’s job and this is reflected in the written job description, how do we handle the situation if the employee’s license has been suspended?
You have essentially two options. You can see if you have a temporary position you can transfer them to which does not require driving or a current driver license. Be sure that they are aware that once their license is returned, they can go back to their original position, if it is open and available and they meet all other conditions of a transfer (i.e. acceptable performance, attendance, etc.). The second option is to terminate their employment based on the fact that they are no longer able to perform an essential function of their job. NOTE: This is yet another example of why it is so important to have a current job description which outlines the essential functions of the job and any job requirements, such as a current license.
Is employee time spent donning (putting on) or doffing (removing) required to be paid?
Yes, when employees are required to wear protective gear, clothing, and uniforms on the job the time spent donning (putting on) or doffing (taking off) is work time when the employer requires it for the job. The Fair Labor Standards Act requires employees be compensated for all time the employee is required to be on the employer’s premises performing work. Courts have held that activities related to the employee’s principal job are part of the continuous work day and the time spent in these activities must be paid. If employees are required, for example, to wear special clothing before going out on the production floor, the time spent putting on the clothing at the start of the shift and removing the clothing at the end of the shift is compensable.
When are employees required to be paid for overtime?
All blue collar positions, and white collar positions not exempt from the Fair Labor Standards Act, must be paid overtime for all work in excess of 40 hours per week at the rate of 1 ½ time the regular rate of pay. There are six classes of white collar positions that qualify for exemption from mandatory overtime requirements. Those are Executive, Administrative, Professional, Outside Sales, Computer Professional, and highly compensated employees. See this link on the U.S. Department of Labor’s website for more information about exemptions from overtime: http://www.dol.gov/whd/regs/compliance/fairpay/fs17a_overview.pdf
. There are special overtime rules that apply to government agencies, hospitals, canneries, and manufacturing establishments. An employer may determine an employee’s work schedule and hours, and require that employees work mandatory overtime when required to complete assignments. In addition, employers may discipline or terminate employees who refuse to work scheduled overtime. Also, there are some states with special regulations affecting those employed in that state so state laws should be considered as well in calculating overtime payments.
When and why should an organization conduct an internal investigation, and when should it consider having an external investigation performed?
To determine if an investigation is necessary or if a situation can be resolved informally, employers should look at the nature of the employment issue. Is this a situation that has a fairly simple answer, or is it a more complex problem? Does it involve just this employee or others? Is this a single incident or complaint, or have there been others? Is it an issue of minor, moderate, or major significance? Do you need more facts than the employee is able to provide? Do you need the assistance of someone who is specialized to reach a conclusion, such as legal advice, security, financial, etc.? If you need to speak with others, review documents, need expertise assistance, or if the allegation is serious, such as sexual harassment, criminal misconduct, etc., conduct an internal investigation.
In determining who should conduct your investigation, employers should examine the employment issue, including the severity of the allegations and available resources. Investigations can be outsourced or they can be conducted by someone within the organization. Always keep in mind that the purpose of an investigation is to gather facts so that the organization can make a credible determination as to what happened in a given situation. The person conducting the investigation should be impartial and objective. Even the appearance or perception of partiality can damage the investigation and usefulness of an investigation. As well, the investigator needs to have the necessary skills and training to conduct the interview. This person needs to be able to gather information from sometimes reluctant sources, to determine the individuals to interview, what to tell them regarding confidentiality and need-to-know, determine the real issue and separate it from ancillary issues that arise, and be able to evaluate the information gathered and provide recommendations. In choosing your investigator, also look at the potential for this issue going to litigation. The stronger the charge, the greater the likelihood it will be litigated, and the more reason to look at outsourcing the investigation.
How long do I have to hold a job for an employee who is out due to a Workers’ Compensation injury?
There is no easy answer for this as it depends on state regulations. In Oregon, an injured worker generally has re-instatement rights for three years after the date of injury. There are exceptions for employers with 20 or fewer employees. Holding a job also depends on a number of items, including the individual’s ability to return to regular and/or modified work, and the employee’s timely request to return to work. Keep in mind that an employee may also be covered by FMLA or other state job-protected leaves and/or ADA. Check your state regulations.
What leaves are employees entitled to and what are the requirements?
Employers can provide vacation, bereavement, and personal leaves of absence at their discretion; they are not required to provide these, paid or unpaid. Some states do require paid leave for jury duty and for voting time. Oregon is not among them. Some states and municipalities, including Seattle, WA, Portland, OR and (as of July 2015) Eugene, OR do require paid sick leave.
There are two main federal leave laws: the federal Family/Medical Leave Act (FMLA) and the Uniformed Service and Reemployment Rights Act (USERRA). Under FMLA, employees are entitled to twelve weeks of unpaid leave if they have worked 1,250 hours in a twelve-month period for an employer that has 50 or more employees within a 75-mile radius. Employees may take this leave for the birth or adoption of the employee’s child, to care for a family member with a serious health condition; and, the employee’s own serious health condition. Additional qualifying events for FMLA include military exigencies and to care for a covered service member who is a next of kin. Under USERRA, any employee called to military duty, whether voluntary or involuntary including training, has re-employment rights when they return from the service, regardless of how long the employee has worked for the employer and the size of the employer.
There are additional state leave laws that may or may not entitle the employee to more job-protected time off. Specific Oregon leave laws include crime victims, domestic violence and Oregon Family Medical Leave (OFLA) which is similar to FMLA. Washington also has job-protected leave for victims of domestic violence, employees who serve as volunteer emergency personnel, and the Family Leave Act (FLA) (which mirrors the federal FMLA) Consult your state Department of Labor for state specific regulations.
More details regarding many of these leaves are available in the HR Answers’ Resource Guides and at the following Department of Labor websites: http://www.dol.gov/elaws/userra.htm and http://www.dol.gov/whd/fmla/ There are posting requirements for FMLA, USERRA, and many of the state and local leaves.
Does an employer have to offer sick leave to employees working in Oregon?
Yes, as of January 2016 employers must offer sick leave to employees working in Oregon. If an employer has fewer than ten employees, the leave can be unpaid. For employers with ten or more employees, the leave is paid.
Employees earn 1 hour of sick time for every 30 hours worked, up to 40 hours per year. Once an employee has worked 90 days, they are able to access the time. Leave can be taken in as little as one hour increments. The sick time can be used not only for the employee’s own illness, but also for medical appointments, family member health care, issues caused by domestic violence, stalking, or sexual harassment, and in cases of business or school closure because of public health emergency or any absence covered by the Oregon Family Medical Leave Act.
For more details see the BOLI website. http://www.oregon.gov/BOLI
Are there other states and/or localities that require employers to offer sick leave?
Yes, besides the state of Oregon, the states of California, Connecticut, Massachusetts and multiple cities including, Seattle, SeaTac, Tacoma, Philadelphia and New York City, among others all mandate paid sick leave.
Where can I learn more about Seattle’s sick leave ordinance?
Seattle’s sick leave ordinance went into effect September 1, 2012. The ordinance requires that all employees who work for employers with four or more FTEs accrue sick time at a rate of 1 hour per 30 hours worked or 40 hours, depending on employer size. All employees including those working part-time, temporary, or on-call are covered by the ordinance. Employees may use the time for a variety of reasons, including their own or family member’s illness and preventative care, workplace and school closures because of a public health issue, and absences as a result of domestic violence, sexual assault, or stalking. In general, employees may use the paid time after they have been employed for 180 days. See the Seattle paid sick and safe time website for more details http://www.seattle.gov/civilrights/labor-standards/paid-sick-and-safe-time
What is an employer’s responsibility for Jury Duty?
When an employee receives a subpoena for jury duty, an employer may not interfere with the employee’s obligation to serve. The employee may ask to have the service postponed or dismissed. Employers are required to hold the employee’s job for the length of the subpoena. In general, non-exempt employees do not have to be paid by the employer for jury duty time. There are some exceptions where jurisdictions do require payment by employers, Colorado and the District of Columbia for example. To remain exempt under the Fair Labor Standards Act, exempt employees must be paid their full wage for any week they perform work, this includes weeks when time is missed due to jury duty. Exempt employees do not need to be paid in any workweek that no work is performed for the employer.
In addition, Oregon does not allow employers to require employees to use any vacation, PTO or other available paid time while serving jury duty. Oregon employers with 10 or more employees are required to maintain health, disability, life or other insurance coverage while employees serve jury duty.
What forms do I need to complete when I hire an employee?
There are generally only two required forms that must be completed when hiring an employee: an I-9 and a W-4. There are a number of recommended forms, many dependent upon the specific business. HR Answers recommends having new hires sign an employee handbook acknowledgement form, appropriate benefits forms, emergency contact, internal payroll authorization (direct deposit), receipt of company property, if applicable, employment agreements, such as confidentiality and non-solicitation agreements, inventions agreement, and job description acknowledgment. An employer should also obtain a signed employment application (preferably prior to hiring). In addition, employers must report new hire information to state child support enforcement agencies. The Child Support Program Website offers more details regarding this reporting requirement: http://www.oregonchildsupport.gov/employers/Pages/reporting.aspx
Is it true that job offers should be in writing and should we change our policies to make such an offer in writing?
Whether an organization wants to make such agreements and arrangements is up to each organization. You may want to make the offer with the conditions of employment in writing, but also state that employment is contingent upon the policies and procedures set forth in the employee handbook. The letter really serves as a confirmation to the discussion. The nice thing about putting it on paper is that it starts the “paperwork” for the personnel file and everything in the letter should come as no surprise to the new employee. We strongly encourage a signature line for both the new employee and the employer with a copy for each party. At times, the agreement is nothing more than stating that a particular new employee will be able to take a previously planned vacation from date of hire or some other “out-of-pattern” policy, and you should abide by it under any conditions. If you are uncomfortable with such agreements, then don’t write anything more in a letter than the date employment starts and the wages to be paid. All other conditions can be stated in the organization’s policies and procedures. If you are interested in a sample confirmation letter, give us a call.
Which is a more appropriate term to use to describe the first 90 days of employment: “probationary period” or “introductory period?”
There are basically two reasons to change the language. First, the term “probationary period” can be seen as an implied contract, negating the at-will rights employers try so hard to maintain. The implication is that once an employee completes a “probationary” period they will be retained no matter what. It is also very important that you do not call an employee who has completed the introductory period a “permanent” employee. We recommend they become a “regular” employee. The term “permanent” implies that they will always be with the organization. We also recommend that you have in your policies a disclaimer that the transition from the introductory period to a regular employee does not alter the at-will employment relationship in any way. Another good reason not to use the term “probationary” for new hires is that this terminology is often utilized in the corrective action process when an employee is not performing to standards. Having two completely separate periods referred to by the same terminology can be very confusing, or even misleading. Therefore, our suggestion is to re-name the initial period introduction or orientation.
Policies & Handbooks
Do employers need to change their policy(ies) on marijuana use in states where marijuana is legal?
No. Your organization can choose to follow federal law. Under federal law, marijuana is illegal. We recommend having a zero-tolerance / drug-free workplace policy. Contact HR Answers for more information to develop a Substance Abuse Policy.
What are the benefits of having a policy manual or employee handbook? Does every policy become contractual?
An employee handbook can be an essential tool for communicating information about workplace culture, benefits, attendance, pay practices, safety issues, and discipline. In the absence of policies typically found in an employee handbook, past and present activities become policy. Since many of these practices are or can be discriminatory (because of a lack of consistency), the company is in greater danger of law suits and claims with government agencies than if they had carefully spelled out the organization’s expectations of the employee.
To deter a policy from being contractual, it’s always a good practice to use a disclaimer in your policy manual or handbook. Here’s an example: This employee handbook is not intended to be a contract or any part of a contractual agreement between the employer and the employee. The employer reserves the right to modify, delete, or add to any policies set forth herein without notice and reserves the right to terminate an employee at any time with or without a specific cause. In addition, avoid using phrases such as “permanent employee.” A more appropriate phrase is “regular employee.”
Is it a discriminatory practice to not include a certain holiday (e.g. Martin Luther King’s birthday and Good Friday) as a paid holiday, especially if an employee feels it is an important day to observe?
No, as long as the employee knew that they may be required to work on certain holidays, it is certainly not discriminatory nor is it, at face value, unfair. However, we would suggest that you either provide an alternate day off to those who do have to work on normal paid holidays OR that you give one “floating holiday” per year to compensate for this type of situation.
Contrary to what many employees think, there is no law stating that organizations have to provide any paid holidays. Of course, in this employees’ market, it may be difficult to find employees willing to work for an organization with minimal benefits.
May an employer prohibit employees from discussing their pay with one another?
The action is considered unlawful under the National Labor Relations Act (NLRA). Wage discussions among co-workers are generally considered to be concerted and protected activity under the NLRA; therefore, under most circumstances, management cannot prohibit salary discussions or threaten discharge or discipline for revealing salaries.
Under certain circumstances employers are permitted to treat salary information as confidential if there are legitimate business reasons for the confidentiality that outweigh the protected interest of employees in discussing wages. For example, an employer may be able to discharge an employee who steals confidential wage information. There is also a practical reason for not attempting to prohibit or curtail co-worker pay discussions. Prohibitions are issued for reasons. Such a prohibition starts employees wondering why they can’t talk about pay. Is there something the company is trying to hide? Is the program not fair? What will I learn by talking about this that the company doesn’t want me to know? These questions lead to employee rumors and speculation. No employer needs that. If the system and pay levels are believed to be fair and market appropriate, let them talk.
What questions should I avoid asking when conducting an interview?
In general, whenever you question a potential employee, your first question to yourself should be, is this question job-related? If it is not, do NOT ask it. If there is a legitimate business reason for needing to have an answer, then it is okay to ask that question. For example, religion is a protected class under the Civil Rights Act of 1964. If you were in construction, it would be illegal for you to question a person’s religion. However, if someone were applying for a priest’s position in a parish, it would be appropriate to question the individual’s religion.
Questions can be inappropriate even if the questioning is not along the lines of governed protected classes. Personal questions are generally not okay. For instance, you may believe that you want to know if your female candidate has children because then she might take time off for childcare. This may seem like it is alright to ask for the business purpose of wanting individuals at work on a consistent basis, but this would be an illegal question, especially if only asked of female candidates. The bottom line is whether or not the need to know is for legitimate business purposes.
Can I run credit checks on prospective employees?
Yes and no. Many states, including Oregon and California, have restrictions around using credit checks to make employment decisions. In Oregon, there are four scenarios where employers may take into account an applicant’s or employee’s credit history. These include decisions made by federally insured banks, credit unions, and law enforcement agencies, when employers are required by law to obtain such information and if the information is substantially job-related. Substantially job-related refers to the access to financial information not usually required in a retail transactions or if the report is required for insurance or bonding purposes. Substantially related duties do not include retail transactions involving cash or credit card handling; it relates to the access to financial information. If a job falls into a category where a credit check is permitted and the employer decides to run the check, the employer must give the applicant or employee written notice (separate from the employment application) and provide the applicant/employee a copy of their rights as outlined in the Fair Credit Reporting Act, otherwise known as FRCA rights.
What is a confidentiality agreement and who does it protect?
A confidentiality agreement sets forth the understanding and agreement between the employer and employee about information that is considered confidential or secret and may not be disclosed to competitors, future employers, and others. This agreement protects the organization and its clients.
Is it acceptable to request an applicant to supply his/her social security number on an application for employment?
Each digit in the social security number is coded and provides extensive information about the person to whom it was issued, such as age, region of birth, etc.; therefore, if you have the key to the code, you can discover information about a candidate that can be used in a discriminatory manner. The keys to these codes can be purchased. By not asking for this information, you will not be in a position to defend yourself and prove that you did not use such information in a discriminatory manner. For this reason, we advise employers not to ask for this information until a candidate has become an employee. Exceptions to this would include the necessity of conducting a criminal history check.
Is it acceptable on an employment application to inquire about a candidate’s ability to speak or read foreign languages?
This is another instance in which asking yourself, “Is this question job-related?” is key. This question should only be asked when it is a Bona Fide Occupational Requirement (BFOQ). This means only ask it if this is a skill required for the job (and, of course, then noted in the job description). Asking for this information for jobs which do not require it can provide you with information about an applicant’s national origin or race. Even if this information is not used in a discriminatory manner, it may be up to you to prove you did not use it in this manner if you are taken to court. Therefore, it’s better not to have it as a standard question. Use it only when required. Then you won’t have to prove you didn’t discriminate.
How can I maximize the chance of having a non-compete agreement enforced by court?
Though there are a few states like California that do not enforce non-compete agreements, most courts will enforce one if it is reasonable in terms of duration, scope and geographic region. The first issue to consider is whether or not there is a legitimate business need to have a non-compete agreement. Courts have viewed such things as protection of trade secrets, relationships with specific customers, patients or clients, ongoing goodwill associated with businesses, geographic location or marketing/trade areas as providing legitimate business need for an agreement. Some courts have allowed non-compete agreements in cases where an individual received specialized training.
If there is legitimate business need, the reasonableness of the agreement will then come into consideration. Most courts view one year, no more than three (though one is more accepted), agreements are fair if they are not too limiting as to where the individual can go to find employment. This ties into the geographic scope. Limiting the individual by saying you cannot work anywhere in the United States would not be enforceable. Though there is no set mile radius, any area as small as the town to as large as the whole state has been found to be enforceable. Finally, a reasonable scope gets into what specific work is not allowed to be done by the individual bound by a non-compete. If an individual could go to work for a competitor without divulging anything, restricting this employee would probably not be considered reasonable.
The reasonableness in time, scope and geographic location ultimately maximizes your chances of having your covenant not to compete enforced by courts. Ultimately, legal counsel should be used to protect yourself should you choose to use a non-compete.
Though any level of employee can be required to sign such an agreement, when it comes to enforcing one in court, those employees who could truly affect the company’s trade secrets, should be required to sign one. For instance, your receptionist has probably not been exposed to company secrets, nor is providing a unique function for your company that could damage your business if the individual were to leave. Requiring this individual to sign an agreement and then trying to enforce it would not be reasonable. However, anyone who is key to the success of the company should be required to sign such agreements. Key employees should definitely be issued a non-compete agreement to prevent them from going to work for a competitor.
May I refuse to hire an employee if I receive an unfavorable reference check?
The answer is a tentative yes, if the unfavorable information you have received is job-applicable. For example, you have a candidate who was convicted for domestic violence and has applied for a counseling position in a women’s shelter, or the candidate has a poor employment history of resigning after a short period of time on the job, and has had excessive absences (not covered by any protected leaves).
However, if the unfavorable information you have received is not job-applicable, or is information you should not have, you may not be able to base your decision solely on the background check. For example, in the course of your check you discover the candidate has filed numerous worker’s compensations claims. It is illegal to discriminate based on the filing of Workers’ Compensation claims and refusing to hire this candidate solely for this reason would expose the organization to a risk of a discrimination claim. This is information you should not be asking and cannot use for your decision.
When conducting background checks make sure the questions are job-related and non-discriminatory. Furthermore, it is important to have the candidate provide a written release. This protects former employers from being sued for providing accurate information. The bottom-line is if the information you have is job-related, legal information to have and may result in a negative impact to the organization, you can refuse to hire that individual.
If an employee resigns, when must wages be paid?
This depends on the how much notice the employee has given you and individual state requirements. The two extremes tend to be – you must pay on his/her last day or you do not have to pay out the final paycheck until the next pay period. Generally, if at least 48 hours notice is given, the employee must receive all wages owed (not necessarily all wages earned), including any already calculated commissions or vacation/sick pay, on the final day of employment. Check with your state to determine what the specific requirements are.
What should I know and review in regard to terminating an employee?
There are three major reasons why employees are terminated: Illegal or improper behavior, poor job performance, and position elimination. When first deciding that termination may be necessary, consider the impact on the organization. How many employees will be affected, is the job loss permanent, will there need to be a media spokesperson, are there any bargaining agreements that affect this termination, etc.? Do not discharge an individual without properly assessing the situations surrounding the termination. Once you have decided that termination is probable, double-check your policies, procedures, and past practices to maintain consistency. If the termination is affecting an employee from a protected class, this is especially important. If the policies and procedures in the past support a termination action, make sure all the appropriate documentation is in place. At this time, make sure the assessment for the reasons of termination was conducted thoroughly and that there is a paper trail supporting your decision. Consult with an attorney, HR representative or consultant to determine any other potential legal issues or risks. Finally, conduct a termination meeting in which the reason for termination is clearly communicated to the employee and a member from management and/or the Human Resource function present.
Many of the risks inherent in terminating an employee have to do with possible claims of discrimination and/or wrongful discharge. There are additional laws which impact the manner in which we may terminate an employee, and steps we need to take upon termination. It is impossible to list all laws that might cover this issue, but here are the more important ones.
Some major laws dealing specifically with discrimination: Title VII of the Civil Rights Act and amendments, Pregnancy Discrimination Act, American’s with Disabilities Act, Age Discrimination in Employment Act, Family and Medical Leave Act, Immigration Reform and Control Act, Workers’ Compensation, OSHA, and a variety of state and local laws. Basically, you cannot terminate employment based on a characteristic protected by law, such as their race, age, use of family and medical leave, etc. You also need to be careful of an adverse impact upon such a class of employees, such as a layoff that impacts only workers who are over 40 years old.
Other laws that impact termination of employment: Workers’ Adjustment and Retraining Notification Act (WARN) dealing with large layoffs or plant closings, Consolidated Omnibus Budget Reconciliation Act (COBRA) dealing with employee benefits and notification to employees and covered dependents, Fair Labor Standards Act and state wage and hour laws dealing with final pay issues. Also, some states require a written service letter (Oregon doesn’t, but Washington does) at the request of the employee, which must provide the reason for termination.
Check all state and local laws which may apply.
What are other alternatives to terminating an employee with a problem?
There are many forms of corrective action that can be used as alternatives to terminating an employee. These include mediation, Employee Assistance Programs, demotion, decision making leave, verbal or written warnings, and suspension. Keep in mind that the action should be appropriate to the situation and problem. Also, look at the actions taken so far to correct the situation and the long-term objectives.
Do I have to give severance pay when I fire someone?
The law does not require any type of severance pay to be granted to any employees, regardless of whether it is a termination because of performance or a lay off. Because of civil rights issues, if severance pay is granted, make sure that it is offered consistently and impartially with all employees based off the standards your company sets. For instance, if you offer one-week severance for a male employee who has been with the company for one year, make sure you offer the same for a female in a similar situation. Keep in mind that when you offer any type of severance package for the first time, you are setting precedence for the future.
If requested, are we obligated to provide a former employee with a written letter explaining his/her reasons for termination?
A number of states require employers to provide employees with a “service letter” which outlines the reason for termination. Some of these states also require that the letter outline the employee’s work history. The timeline for responding to the request varies. Washington has a service letter law, Oregon and California do not.
Is an organization permitted to terminate an employee whose performance is just below and has not had any corrective action taken against him/her?
As an “at-will” employer you could legally terminate the employee without reason or notice, however, we don’t recommend this type of action. We recommend that you document at least an initial attempt to bring the employee’s performance up to standards. The most logical process for that would be the performance appraisal which is due now. State in the review exactly what the issues are and what you expect with regard to improvement. Make sure to set up an action plan with follow up dates and possible consequences for inadequate improvement. Remember to document any subsequent discussions including the termination discussion, if it comes to that. Our philosophy is that any termination for performance reasons should not come as a surprise to the employee – they should be well aware of the performance issues and be given a chance to improve.
Is it legal to request a longer resignation period for management employees than other employees?
Yes, you can request a longer notice period for management employees, but there are several things you need to be aware of. First, as you suspect, such a requirement may not be enforceable unless it’s part of a valid employment contract. Management employees who fail to give the required six weeks’ notice will not be liable to you in any way. Second, requiring notice of intent to resign may jeopardize the “at-will” status of management and non-management employees alike – an unintended consequence for many employers who request notice from resigning employees. A warning: Think twice before attempting to enforce your provision by warning employees that they will forfeit any rights to unused vacation if they do not provide the requested notice. Provisions regarding forfeitures may be problematic under state law. In California, for example, accrued vacation is not forfeitable.
What is the process for hiring a foreign worker?
Most foreign workers in the United States are able to work because they have an H – 1B Visa. These are temporary work visas for skilled professionals administered by the United States Citizenship and Immigration Services (USCIS) which is a division of the Department of Homeland Security. Information on the types of workers that are eligible and how to obtain an H-1B visa can be found at www.uscis.gov
How do we document employing a foreign worker?
You document a foreign worker using an I-9 form. This is the same form that is used to document all workers. When using this form, keep in mind that you may not specify what documentation is produced nor ask for additional documents if the employee has met the minimum requirements laid out on the form, nor may you refuse documents that appear genuine. See the I-9 form for lists of acceptable documents. Remember, the person filling out the form must be the person reviewing the documents.
What should I do if I find out that an employee is not authorized to work in the U.S.?
Once you have found out one of your employees is illegal, you now are knowingly employing an illegal alien, which is not good. The first step generally is to allow the affected employee to supply you with new documentation. As when filling out an I-9, you cannot request any particular documentation. You must provide the employee a reasonable amount of time to provide you with this information. The reasonable amount of time is considered about ten days to two weeks. This number is fairly arbitrary, but it should not extend beyond 45 days. The employee may present a receipt for an application for a replacement document, but must provide the actual document within 90 days or face termination. If the employee does not provide you with appropriate documentation within the specified period of time, you must terminate that employee. A word of caution, if you have found out that one of your employees is illegal because his/her social security number was found to be invalid, your chances of being flagged by the INS for an audit is greater. Making sure your I-9’s are valid and that you have not kept any known unauthorized aliens is important at any stage, but particularly after being advised that the social security numbers used were invalid.