Archive for April, 2017

Can HR be Held Liable for FMLA Denial?

Friday, April 28th, 2017

An employer that took issue with an employee’s FMLA paperwork and refused to allow her to return to work until she provided new documentation, and ultimately fired her for job abandonment after a breakdown in communication, will face a jury on her FMLA interference and retaliation claims, the Second Circuit ruled in reversing summary judgment against the employee. The court also reinstated her FMLA claims against the HR director since she could be liable as her “employer” under the FLSA’s economic realities test, but refused to revive the employee’s ADA associational bias claim (Graziadio v Culinary Institute of America, 2d Cir.).

The employee, who worked for the Culinary Institute of America (CIA), took two weeks of FMLA leave in early June to care for her son after he was hospitalized for Type I diabetes. She returned on June 18, 2012, and submitted a medical certification on June 27. That same day, her other son fractured his leg and underwent surgery. She gave notice of her new need for leave, stating that she expected to return by July 9. When that date arrived, she requested a three-day week schedule for the next few weeks and asked if she needed to submit further documentation.

Despite her numerous inquiries as to when she could return, she heard nothing until the HR director sent her a letter on July 17 stating that her FMLA paperwork did not justify her absences. After she sent several emails attempting to determine what “paperwork” was needed, the HR director provided her with a Department of Labor brochure and refused to allow her to return to work until she provided proper documentation. As communication broke down, counsel for the parties became involved and the employee was fired on September 11 for job abandonment.

Individual liability. There was sufficient evidence for the employee to advance her FMLA claims against the HR director individually as her “employer.” Applying the economic-reality test used in FLSA cases, the Second Circuit found that triable issues existed as to the director’s authority since she appeared to have played an important role in the decision to fire the employee and also controlled her rights under the FMLA. Notably, the director specifically instructed her supervisor not to communicate with the employee and that she alone would handle her leave dispute.

FMLA interference. A jury could also find that the employee was denied leave to which she was entitled. First, it appeared that she may have taken intermittent leave to care for her diabetic son which was not approved by CIA. For example, the HR director’s July 17 letter stated that her documentation was insufficient and after she submitted a new certification, the director never responded (suggesting that she continued to withhold approval). Moreover, her updated certification arguably met the statutory requirements.

Good faith compliance. Regarding her injured son, a jury could conclude that the employee attempted in good faith to comply with CIA’s certification requests and that its conduct excused any residual failure in compliance. The HR director’s vague request for “paperwork” hardly sufficed to give adequate notice that CIA was requesting a medical certification, especially given the employee’s repeated requests for clarification. Although the HR director then sent her a Department of Labor brochure, she failed to respond to any of her continued pleas for clarification. Such unresponsiveness might itself run afoul of the FMLA.

After the employee submitted a doctor’s note, the HR director quickly rejected it and cut off communication by refusing to discuss the matter further until she appeared for an in-person meeting. The employee could thus have believed that she could not submit new medical information until the meeting. The director’s concurrent failure to acknowledge receipt of her updated certification for her diabetic son might also have signaled that further submissions would be futile. The meeting never occurred and the HR director never reopened the lines of communication until August 30, when CIA’s attorney demanded a new medical certification.

On this record, a jury could reasonably conclude that the employee made sufficient good faith efforts to comply with her employer’s requests and that defendants’ conduct—their imprecision in requesting certification, their failure to answer her questions responsively, and their failure to communicate with her after deeming her doctor’s note deficient—relieved her of any unsatisfied obligation to provide a medical certification to support her leave. Freed of this obligation, she may have been denied leave to which she was entitled.

FMLA retaliation. The employee also sufficiently demonstrated that CIA’s proffered reasons for firing her were pretextual since the record suggested that CIA’s assertion that it fired her because she abandoned her job was unworthy of credence. Although the August 30 email from CIA’s attorney instructed her to contact her supervisor to return to work, it also contained two paragraphs reiterating that if she wanted to return, she must submit FMLA medical certifications. The weakness of the evidence supporting CIA’s explanation, in conjunction with the very close temporal proximity between the employee’s leave and termination, suggested that the real reason for her discharge was her much-contested attempt to take FMLA leave.

ADA claim. However, the Second Circuit refused to revive the employee’s associational disability bias claim because she failed to show that she was fired because CIA feared that her concern for her diabetic son would cause her to perform inadequately. Rather, she presented evidence that she was terminated because CIA felt she had taken too much leave to care for her sons. Thus, it did not fear that she would be “inattentive at work,” but rather that she would not be at work at all.

We’ll have to wait and see how this case turns out.  In the meantime, CAI members always have access to our Advice & Resolution team for questions about FMLA leave for an employee.

CAI delivers HR, compliance, and people development solutions to 1,100+ NC companies to help them build engaged, well-managed and low-risk workplaces. Contact us to find out how we can help your company.

Doug Blizzard brings a wealth of knowledge to CAI, serving as Vice President of Membership. During his first 15 years at CAI, he led the firm’s consulting and training divisions and counseled hundreds of clients on HR and Employee Relations issues. If he isn’t speaking at North Carolina conferences, teaching classes on Human Resources or consulting clients on EEO and Affirmative Action, Doug is leading the company’s membership services.

Is Your Office Space Repelling Good People?

Thursday, April 20th, 2017

Millennials are considered by many to be the first generation since the 60’s to come with their own set of preferences as to what they desire in regards to various aspects of their daily life – including their work environment. An interesting position to take, considering the ups and downs of the economy, but this group of individuals also bring the technology, innovative thinking, and energy to the table, creating a very competitive recruiting atmosphere in which their desires must be taken into account.

For this reason, companies are working to understand what does and does not appeal to this latest generation to join the workforce.  Office space is being specifically designed and re-designed to attract these highly sought-after workers.  Large, closed-in office space with more doors than windows is quickly losing popularity in favor of open work areas with space for collaboration over traditional conference rooms.

Desks which can be raised to accommodate employees who prefer standing part of their workday are being introduced, along with desks that stand over working treadmills to encourage a healthier environment.  Smart boards are being used to record brainstorming notes, and then send them to a computer or printer with the press of a button.

In addition, on-site fitness centers complete with showers are now common in many businesses. Millennials are researching potential employer locations to determine what amenities they currently provide “on campus”.  Are there bike racks?  Are there walking trails?  Are restaurants and retail shopping options within walking distance?  Are mass-transit drop points within walking or biking distance from the office?  The millennial generation is known for living a healthier lifestyle with an affinity for convenience.  Speaking of convenience, another popular feature with millennials at the workplace is a resident concierge to handle things like travel arrangements, massage appointments, pick up/delivery of dry-cleaning and order in lunches.

You may ask yourself, “Do they really need all that?”  A better question would be “Does my company really need all that?”  There are several things to consider here:

  • Is it more cost efficient to retrofit your current space or to simply give up your current office and move to a more modern facility?
  • Would the increased and improved collaboration from a more modern work environment lead to more innovative thinking and creativity among teams?
  • Does your business model dictate a more traditional or forward-thinking atmosphere?
  • Which type of environment will appeal more to your clients / customers / business partners?
  • How do you want your company to be viewed – both internally and externally – by your competitors, your peers, your current and future employees?

That’s right, take a look at your competitors and peer companies.  What are they doing?  Ask your employees for their opinion on the current work environment and any suggested improvements.  Write down a list of amenities your office has to offer new recruits.  Is it enough?  If you were interviewing with your company today for a job, would it be enough for you?  Answers to these questions might provide you with some ideas for change, even small changes, which could be very important to fueling your business growth in regards to your workforce.

CAI delivers HR, compliance, and people development solutions to 1,100+ NC companies to help them build engaged, well-managed and low-risk workplaces. Contact us to find out how we can help your company.

 

CAI’s Advice & Resolution Advisor Renee Watkins is a seasoned HR professional with a diverse background in Human Resource. Renee provides CAI members with practical advice in a wide range of human resource functions including conflict resolution, compliance and regulatory issues, and employee relations.

Tuesday Morning Humor for the HR Pro

Tuesday, April 18th, 2017

As HR professionals, we often are asked to present information in a concise and compelling manner. Charts are an effective way to get your point across. All charts tell a story.  For example, the line chart below illustrates how to address the gap between your intended career path and your actual career path:

This pie chart helps to explain the true value of your Facebook ‘friends’:

This bar chart explains how time is ‘warped’ while waiting for your computer to start-up at work in the morning:

Meanwhile, this graph illustrates the value of patience when on hold with the cable company:

Finally, when dealing with computer issues, this chart demonstrates the effectiveness of various problem-solving techniques.

Now, don’t you feel better on this Tuesday morning?  On a more serious note, if the charts and graphs you’re using to track your HR progress need updating, or perhaps the results they show aren’t what you would like, we’re here to help.  CAI delivers HR, compliance, and people development solutions to 1,100+ NC companies to help them build engaged, well-managed and low-risk workplaces. Contact us to find out how we can help your company

Tom Sheehan brings 20+ years of extensive, broad-based strategic, tactical and practical HR experience to CAI’s Advice & Resolution team.  He advises HR and other business leaders on talent management, organizational effectiveness, employee engagement, M&A’s, and employee relations.

 

chart source: GraphJam.com

Top Tips for Organizing Personnel Files

Thursday, April 13th, 2017

At CAI, we receive numerous calls from our members asking how to organize and maintain compliance with personnel files. If you were to take compliance guidance from government agencies literally you would conclude that you need to have a lot of separate files spread throughout many different file cabinets.  While you might get a point for being compliant, this scenario just isn’t reasonable for most employers.  Fortunately, we offer an easier way to organize your files that balance the need to be reasonably compliant with your need to be practical.

There are certain types of information that need to be maintained separately from the employee’s main file. Below I have listed the different types of files that I have used in my filing system, of course as long as you are maintaining confidential documents separate from the main general personnel file, you can develop a system that works best for your company.  A process that worked well for us was to have our medical files locked away separately. The other files listed below were kept inside a general employee file (we used a multi-tab folder similar to this one) in small manila folders that could be removed if a supervisor needed to review the file. It is also a good idea to keep your I9s completely separate (we kept in a multi-tab expanding file sorted by last name alphabetically).

Pre-Employment Information:

  • Background checks
  • Drug screenings
  • Credit checks
  • Reference Checks
  • Any EEOC Pre-Employment Disclosures (Self-Identify Veteran or Disability Status)

Benefits/401(k):

  • Enrollment information
  • Beneficiary information
  • Distribution information
  • Any benefit related information (notices, request for information, etc)

Medical:

  • Doctor Notes
  • Leave Requests (including FMLA)
  • ADA Accommodation Request information
  • Incident Reports
  • OSHA Incidents
  • Workers Compensation Claims/Incidents

Payroll:

  • Federal and State tax forms (W4 and NC4)
  • Garnishment requests
  • W2s
  • Any payroll information with Social Security numbers
  • Request for employment/wage verification
  • Direct Deposit Authorization Form

Confidential File:

  •  EEOC Claim information
  • Investigation information (EEOC, internal investigations)
  • Settlement claims

General Employee File:

  • Employment Application/Resume
  • Offer Letter
  • Any policy acknowledgments (confidentiality, code of conduct, handbook, etc)
  • Performance appraisals
  • Pay/Compensation information
  • Disciplinary actions, documents
  • All promotion, transfer, demotion, layoff information
  • Exit Interview
  • Termination documents

So to review, you have one separate medical file, one file with all of your I-9’s and then organize everything else into one big pendaflex file.  Alternatively, you could convert to electronic personnel files, including I-9’s.

Overall, the most important aspect of maintaining compliance with personnel files is securing the access to the files. The files should be kept in a secure location (behind “lock and key”) and access should only be granted to specific employees (probably within the HR department or specific information to supervisors as outlined in your personnel file policy).  On that note, it is important to remember that access to the files should even be restricted within the HR department on a “need to know” basis: the benefits specialist doesn’t need access to the confidential file, the recruiting specialist doesn’t need access to the medical file, etc.

CAI delivers HR, compliance, and people development solutions to 1,100+ NC companies to help them build engaged, well-managed and low-risk workplaces. Contact us to find out how we can help your company.

Emily’s primary area of focus is providing expert advice and support in the areas of employee relations and federal and state employment law compliance as a member of the Advice & Resolution team for CAI. Additionally, Emily advises business and HR leaders in operational and strategic human resources areas such as talent and performance management, employee engagement, and M&A’s. Emily has 10+ years of broad-based HR business partnering experience centering around employee relations, compliance & regulatory employment issues, strategic and tactical human resources, and strong process improvement skills.

How HR Can Help Managers Conduct Effective Meetings

Tuesday, April 11th, 2017

Today’s managers and their employees are busy. There’s never enough time in the day to ‘get it all done.’ As an HR manager or someone who is acting in an HR role, you can help your managers maximize their time and accomplish their objectives. Meetings that begin without a plan go astray quickly and become big time wasters. CAI’s Tom Sheehan shares his tips below to help your managers understand the keys to successful and effective meetings.

Here’s the thing about meetings. They all start off with good intentions. Someone calls a meeting to communicate an important update or new initiative. The next thing you know, you’ve wasted an hour of your time sitting through what appears to be a ‘stream of consciousness’ discussion with no real outcomes. While the exchanges may have therapeutic value, little else is gained.

Follow these four simple rules to improve meeting effectiveness:

1. Don’t hold a meeting without a documented agenda

Without an agenda, you have laid the groundwork for a rambling ‘free for all.’  How will you know if your meeting is getting off track if you never bothered to define the track?

2. Discuss progress vs. goals

During tactical staff meetings, make certain that the start of each meeting is dedicated to a review of how the team is progressing relative to its goals. You may also want to give a quick update on how the company is performing toward its goals.

3. Tactical and strategic discussions should be addressed in separate meetings

Oftentimes, these topics have mutually exclusive participants. By mixing the two together you can ‘cloud’ the discussion. For example, do you really want administrative staff involved in discussions that relate to establishing strategy?  Conversely, does an executive leader need to be involved in lower-level procedural tactics?

4.  Meetings must end with clear-cut and specific agreements around decisions and actions to be taken

The worst thing that can happen is to walk out of a meeting without confirmation about what has been decided. The reality is that each of us will interpret what was discussed through our own lens. As a result, without confirmation, we will apply our own set of rules to the outcome. A typical response at a subsequent meeting might sound like this…”well we talked about that change, but I don’t think anything was actually finalized.”

CAI delivers HR, compliance, and people development solutions to 1,100+ NC companies to help them build engaged, well-managed and low-risk workplaces. Contact us to find out how we can help your company.


Tom Sheehan brings 20+ years of extensive, broad-based strategic, tactical and practical HR experience to CAI’s 
Advice & Resolution team.  He advises HR and other business leaders on talent management, organizational effectiveness, employee engagement, M&A’s, and employee relations.

Fragrance Sensitivity in the Workplace

Thursday, April 6th, 2017

Scent aversions or fragrance sensitivities as they’re more commonly known can cause significant issues in the workplace.

People with a fragrance sensitivity can have a variety of reactions from sneezing/runny nose to severe migraines and asthma attacks.  Sensitivity can be triggered by anything from perfumes/colognes, room fragrances, cleaning materials or cosmetics. Although fragrance sensitivity in and of itself might not be covered under the Americans with Disability Act (ADA) some conditions may be triggered by fragrance sensitivity (such as asthma or migraines) or an employee’s fragrance sensitivity may disrupt one or more life activities.  Therefore, employers are cautioned to handle fragrance sensitivities appropriately to ensure compliance with ADA, and it just makes sense if there is an easy fix to have your employees comfortable.

There are numerous options for helping an employee with a fragrance sensitivity, all of which, need to begin with having an open conversation with the employee suffering from the sensitivity issue.

Find out if the employee is aware of specific triggers (a specific perfume or room deodorizer) and work to eliminate the trigger. Some employers find that having conversations with staff or emailing a memo asking employees to refrain from using specific products is the best resolution for the issue.

Provide a well-ventilated work space for the employee. This may mean moving an employee to an office with more air-flow available or a private office where the employee can close the door if needed.

Allow for “fresh air” breaks

Consider a “fragrance-free policy” in the office. Sample language may include:

“This is a fragrance-free office. Please help us to accommodate our co-workers and clients who are chemically sensitive to fragrances and other scented products. Thank you for not wearing perfume, aftershave, scented hand lotion, and or similar products.”

Of course, there may be cases when you cannot accommodate a fragrance-free workplace, such as chemicals used in the course of an employee’s daily work, etc. CAI suggests handling each request regarding a fragrance sensitivity on a case by case accommodation.

CAI offers HR, compliance & people development solutions for more than 1,100 North Carolina employers. Learn how CAI can help your company build and engaged, well-managed and low-risk workplace.

Emily’s primary area of focus is providing expert advice and support in the areas of employee relations and federal and state employment law compliance as a member of the Advice & Resolution team for CAI. Additionally, Emily advises business and HR leaders in operational and strategic human resources areas such as talent and performance management, employee engagement, and M&A’s. Emily has 10+ years of broad-based HR business partnering experience centering around employee relations, compliance & regulatory employment issues, strategic and tactical human resources, and strong process improvement skills

The Benefits of Peer Recognition in the Workplace

Tuesday, April 4th, 2017

Everyone loves to receive praise for a job well-done, but did you know that giving praise can sometimes be more rewarding for the overall business than receiving it?

O.C. Tanner, an organization that specializes in the development of employee recognition and reward programs, recently released findings from a new study on the importance of peer recognition.  The study revealed employees who are given the authority and encouragement to provide recognition and reward where appropriate, are more confident and engaged in the organization as a whole.  Among the groups participating in the study, millennials have the strongest desire to be empowered to provide recognition for their peers.

The study also found:

  • 90% of employees who always recognize their peers up their own game as a result
  • 83% of employees who often recognize their peers up their own game as a result
  • 68% of employees who sometimes recognize their peers up their own game as a result
  • 61% of employees who rarely recognize their peers up their own game as a result

Overall, 80% of employees indicated recognizing a peer’s work makes them contribute more themselves.  Also, 94% of employees who recognize and reward their peers take an increased amount of pride in working for their company.

Despite these positive results from peer-to-peer recognition and reward, most employees do not provide peer recognition and reward to their team members.

  • 17% of employees do not feel it is their responsibility to give peer recognition
  • 20% of employees do not feel empowered to give peer recognition by their employer
  • 21% of employees noted their company does not have a peer recognition program in place

Everyone is grateful for recognition from their management for a job well done.  However, recognition from a fellow team member carries with it an increased level of pride and validation that your efforts and contributions are noticed by others.

Even though some employees do not feel empowered to give peer recognition, providing an avenue for them to do so can be very good for morale, productivity, and increased success.

Organizations with peer recognition programs already in place should make certain their employees are aware of the programs and how they work.  If you do not already have a program in place for peer recognition, work to develop one that makes the most sense for your current business model and budget.  According to CAI’s most recent Policies and Benefits survey, 22.9% of local employers offer some form of peer recognition.

Recognition and reward does not have to be expensive.  Simple things such as movie tickets, a certificate of recognition or a gift card to Starbucks are very much appreciated.  In this case, it’s not the size or value of the recognition, but the recognition itself that matters most.

How valuable is receiving recognition?  Well, a recent Korn Ferry survey found that most professional employees feel getting promoted trumps having more money in their pocket. The October 2016 study of 1,200 professionals from around the world found that nearly two-thirds of respondents (63 percent) said they would prefer to get a promotion with no salary increase than a salary increase with no promotion.  “Study after study shows the incredible importance of recognition for one’s contribution is a key driver in job satisfaction, while salary is rarely near the top,” said Dennis Baltzley, Korn Ferry senior partner and the firm’s global head of leadership development. “To retain the best and the brightest, organizational leaders need to put development and clear career pathing plans in place, not just for top leaders but for those across the organization.”

1,100+ North Carolina employers choose CAI to help them build an engaged, well-managed and low-risk workplace. Find out why at CAI.

CAI’s Advice & Resolution Advisor Renee Watkins is a seasoned HR professional with a diverse background in Human Resource. Renee provides CAI members with practical advice in a wide range of human resource functions including conflict resolution, compliance and regulatory issues, and employee relations.