Posts Tagged ‘ELLU’

Best Practices for Getting Your Workplace Investigation off to a Good Start

Thursday, May 31st, 2012

During CAI’s 2012 Employment and Labor Law Update, attorney Bob Sar from the Ogletree Deakins law firm recommended several best practices for conducting successful workplace investigations. To minimize retaliation risks from related investigations, Bob lists three actions that organizations can take to protect themselves:

  • Establish a strong anti-retaliation policy
  • Develop a standard interview process
  • Document employee performance regularly

Bob shared with conference participants the four ultimate goals of a workplace investigation:

  • To determine if a problem exists
  • To protect the company
  • To provide an opportunity to demonstrate fairness
  • To encourage internal dispute resolution and reporting of problems

Employers should investigate all employee complaints, even if the complaining employee doesn’t want an investigation started. Bob advises employers to also investigate off-the-record complaints and never promise employees absolute confidentiality during the course of an investigation.

Once you have cause to investigate a workplace complaint, follow these three steps to start an effective investigation:

1. Determine if it’s necessary to implement immediate action on parties currently involved or soon-to-be involved.

  • Examples include suspension, separating employees, sending a status report to company leaders.

2. Select the best candidate to be the investigator.

  • Consider the following factors when choosing an appropriate candidate: how is his or her demeanor? Is this person empathetic? Does gender matter in regard to the complaint? Can he or she be impartial?

3. Review all documentation related to the complaining employee, the accuser and the actual complaint.

  • Consistent documentation is key for an effective investigation. Collect information from several sources, including employee personnel files, company policies and handbooks, and past complaint files. Reviewing emails and electronic files are helpful to the investigation as well.

Once you’ve selected your investigator, alerted people who should know about the investigation and collected necessary documents, you can proceed with employee interviews with the victim, the accused and witnesses to determine the outcome of the complaint.

For additional information and tips for conducting workplace investigations, please contact a member of CAI’s Advice and Counsel Team at 919-878-9222 or 336-668-7746.

Photo Source: Nina Matthews Photography

6 Things to Know about the NLRB’s Notification of Employee Rights from the 2012 Employment and Labor Law Update

Tuesday, May 15th, 2012

On May 2 and May 3 CAI hosted its annual Employment and Labor Law Update at the McKimmon Center in Raleigh. More than 390 HR professionals and company executives participated in the two-day event. Experienced lawyers from Ogletree Deakins updated the audience on the most recent developments in state and federal employment law and how they affect North Carolina employers. Topics discussed at the conference included the ADAAA, conducting investigations, healthcare reform, E-Verify and more.

Participants were concerned and surprised by some of the recent changes from the NLRB, which attorney John Burgin shared. Burgin explained that the recess board under President Obama’s administration currently has a 3-2 pro-union majority, and the board’s effects are shaping how employers and employees can interact with each other. Here are six things you need to know about the NLRB and its Notification of Employee Rights:

1.       Notification of Employee Rights              

  1. Originally effective November 14, 2011 but implementation was delayed indefinitely by U.S. Court of Appeals on April 17, 2012
  2. The National Labor Relations Act (NLRA) requires most private employers to post employees’ rights
  3. All employers under jurisdiction of the NLRB are included, but the act excludes government, agricultural, railroad and airline employers
  4. Ruling applies to employers of unionized and non-unionized workforces

2.       Foreign Language Notice

  1. Where 20 percent or more of a workforce is not proficient in English, employers must post the Notification of Employee Rights in the language employees speak
  2. If workforce includes two or more groups constituting of 20 percent, employers must physically post information in each language or post notice in the language spoken by the largest group and distribute the notice to each employee in appropriate language

3.       Electronic Posting of Notice

  1. If an employer “customarily communicates” with employees about personnel rules or polices electronically, the employer is required to post the Notification of Employee Rights as prominently as other electronic notices to employees
  2. The information on the electronic version must be the exact copy of the NLRB’s poster or a link to the NLRB website that contains a copy of the poster must be present

4.       Under the NLRA, it is illegal for an employer to:

  1. Prohibit an employee from talking about or soliciting for a union during non-work time hours or from distributing union literature during non-work time hours, in non-work areas
  2. Prohibit an employee from wearing union hats, buttons, t-shirts and pins in the workplace except under special circumstance
  3. Question an employee about his or her union support or activities

5.       Responses to Posting Notification

  1. Employers still have the same rights under Section 8(c) to share their position and opinions in non-coercive manners
  2. Employers may inform employees about their rights to refuse to support a union—written or verbal

6.       Notification Options

  1. If it is eventually approved, consider the following options when posting the Notification of Employee Rights:

a.      Post the new notice

b.      Post the new notice and your own side notice

c.      Post the new notice and train supervisors on expectations and compliance

d.      Post the new notice and conduct meetings with employees to  build positive employer-         employee relationships

If you have additional questions regarding the NRLB and posting of the Notification of Employee Rights, please contact a member of CAI’s Advice and Counsel Team at 919-878-9222 or 336-668-7746.

Photo Source: avrene

4 Things Employers Should Know About the ADAAA

Tuesday, April 17th, 2012

Congress passed the Americans with Disabilities Act Amendments Act  (ADAAA) in 2008 with the intent to focus trials on whether discrimination occurred instead of whether an impairment is a disability under the Americans with Disabilities Act (ADA). With the burden of proof now shifted to the employer, it is important for HR departments to be aware of and up to date with the act’s revisions. Knowing the details of the ADAAA will help your organization stay compliant with the law and avoid a lawsuit and accompanying fees.

Here are four things you should know about this act—

1. The definition of a disability is broader.

The original ADA stated that a disability was anything that substantially limits a major life activity. Now that the list of “major life” activities has expanded, more employees are covered under the revised act and can potentially claim a disability.

2. Mitigating factors do not determine whether an employee has a disability.

Under the ADAAA, mitigating measures, which can reduce or eliminate a disability’s effect can’t be considered when an employer or a court is determining whether an employee has a protected disability. Eye glasses are the one exception to this rule.

3. The definition of “reasonable accommodation” is unchanged.

The act clarifies that only individuals who have an impairment that limits a major life activity and a record of the impairment are eligible to receive reasonable accommodation. It is important to note that employers have flexibility under this section of the act. They are not required to fulfill the employee’s exact request if suitable alternatives are available.

4. Documenting is your best protection.

As with most human resources situations, documenting all steps in your process is key to protecting yourself against an unfavorable lawsuit outcome. Before making any reasonable accommodations for your employees, you should request from them documentation by a medical professional affirming their disability. Document all the steps you take in ensuring that your company is doing its best to accommodate employees without undue hardship on its end.

With the ADAAA in full effect, employers should review their handbook policies regarding disabilities and requesting reasonable accommodation. Your company’s employee handbook should include the new definition of a disability. Training your managers with direct reports on how to adequately respond to disability mentions and accommodation requests will also help you stay out of the courthouse.

Labor and employment lawyers from Ogletree Deakins will discuss the ADAAA in more detail at CAI’s 2012 Employment and Labor Law Update on May 2 and May 3. In addition to a review of the ADAAA, conference presenters will give participants updates on the most recent news and changes in state and federal employment laws. Additional topics include: workers’ compensation, healthcare reform, FLSA exemptions and more. Register for the conference today: www.capital.org/lawupdate.

Photo Source: Leo Reynolds

Five Important Points from CAI’s 2010 Employment and Labor Law Update

Wednesday, May 19th, 2010

More than 350 company executives and HR professionals gathered at the McKimmon Center in Raleigh on May 12 and 13 for CAI’s 2010 Employment and Labor Law Update.  The record-setting crowd heard about the latest changes in federal and state employment laws and what North Carolina employers need to be doing now to address these changes.

The two days were packed full with illuminating information, and there were many participants’ questions answered.  To write about everything that was covered would take two weeks’ worth of daily blog entries.  In lieu of that huge undertaking, here are five important points that were made:

1. A study released in September 2009 regarding wage-and-hour violations is driving the U.S. Department of Labor’s efforts to greatly increase its investigations into such non-compliance.  The study is based on interviews with more than 4,000 “workers in low-wage industries” in New York City, Los Angeles and Chicago.  The results were:

  • 76% of those surveyed worked overtime the previous week but were not paid time-and-a-half
  • 26% were being paid less than minimum wage
  • 69% of workers entitled to a break did not receive the required break time

2. The U.S. Department of Labor is also making a large investment in pursuing the misclassification by employers of independent contractors.  Three steps employers need to take to address this issue in their organization are: conduct a thorough, companywide risk analysis of your independent contractor population; design and implement a comprehensive compliance program; and establish an internal team to implement and monitor the compliance program.

3. Every organization needs to have a social media policy.  The first question to ask is whether to create a positive/empowering policy or a negative/deterring policy?  In other words, do you empower your employees to become ambassadors for your organization, or do you prohibit them from referring to it?

4. One of the most important things an employer can do to avoid violations under the new ADA Amendments Act is to train their supervisors how to respond to an employee’s request for accommodation.

5. Three key tips for avoiding I-9 liability: implement a comprehensive written policy; conduct I-9 audits at least annually; and implement a policy for resolving no-match notices.

Did you attend the 2010 Employment and Labor Law Update?  What important takeaways did you bring back to the office?

Photo Source: srqpix

Employment and Labor Law Update Helps Employers Be Informed and Protected

Tuesday, May 4th, 2010

The past year has been marked by major changes in employment law and intense regulatory enforcement efforts, including:

Government agencies will be stepping up their enforcement activities even more in 2010.  Consider:

  • U.S. Department of Labor budget includes $25 million and the addition of 100 enforcement personnel to identify and penalize employers who improperly misclassify employees as independent contractors.
  • U.S.D.O.L. budget includes a $67 million increase for worker protection agencies, including $14 million more to OSHA to add 60 enforcement staff and conduct 9 percent more inspections.
  • The EEOC budget includes an $18 million increase that will be used in part to hire 100 new investigators.  Those additions come on top of the EEOC’s 2009 expansion.
  • OSHA has announced that they plan to increase the average fine for a serious violation from $1,000 to $3,000-$4,000.
  • The U.S.D.O.L. Wage and Hour Division launched its “We Can Help” campaign earlier this year.  It essentially presents any employee who is unhappy with their pay with a forum for a nothing-to-lose wage complaint that can be submitted online or through a hotline.

In addition, the number of wage and hour lawsuits filed by employees against employers increased by 44 percent in 2009 over 2008, healthcare reform passed and President Obama recently appointed Craig Becker and Mark Pearce to the National Labor Relations Board, tilting the board very much in a pro-labor way.

To help North Carolina employers understand what these developments mean and how they will ultimately be affected, CAI is hosting its annual Employment and Labor Law Update on May 12 and13, 2010 at the McKimmon Center in Raleigh.  CAI experts and experienced attorneys from Ogletree Deakins will discuss all of the recent changes and help companies understand what they need to worry about now and what they can move down the priority list.

For additional information, please go to www.capital.org/lawupdate.

If you are participating in the conference and would like to tweet your thoughts, we invite you to do so using the hashtag #10ELLU.

Photo Credit: CAI