Posts Tagged ‘HR compliance’

Employment Law Advice Now Available…

Tuesday, May 2nd, 2017

CAI filed suit on January 23, 2015, to overturn a state law that currently prevents us from providing legal advice and services to member companies. We believe this state law is unconstitutional because it prevents free speech and free association by our members, and by our lawyers on their behalf. The lawsuit is still pending and our Motion for Summary Judgement will be filed in the first half of 2017. Essentially, it will argue the U.S. Constitution renders our restrictive state law unconstitutional and void. We expect the defendants will file their own motion to dismiss our claims. In our view, this case presents legal questions for the court, not fact-based inquiries. Litigation is expensive and slow, but given our experience in the General Assembly, it is the only path to providing members direct legal services through CAI’s own licensed attorneys.

In the meantime, due to the time required by litigation, we created a CAI Pre-Paid Legal Services Plan for our members. CAI members will now receive employment law advice from experienced attorneys serving our Plan as part of CAI membership dues. Services are provided by independent, local, licensed NC attorneys assigned to serve CAI members in an open-ended, no-extra-fee environment. CAI’s Plan is for members – created specifically to help reduce employment law risk (this is not an employee PPLSP benefit.)

CAI already provides members unlimited consultation with our HR professionals. These Plan attorneys add telephone-based legal advice in a very similar format. They will also use legal templates to help you resolve employment law matters such as separation and release agreements. They will help you understand claims and charges filed against you and your options. They will give opinions on employee handbook provisions.

Members can access the CAI PPLSP, and speak with the third-party firm’s attorney located in the CAI Raleigh office, by asking for an Advice and Resolution team member or for the attorney. The Plan has already served dozens of members with timely, immediate responses to urgent needs for essential legal advice. Full details of this new member benefit are provided at www.capital.org/pplsp.

Not a CAI member yet? Learn more about how CAI can help your company.  We deliver HR, compliance, and people development solutions to 1,100+ NC companies to help build engaged, well-managed and low-risk workplaces. Contact us to find out how we can help your company.

Bruce Clarke serves as CAI’s President and CEO, and has been with CAI since 2001. Bruce practiced labor and employment law with the national labor law firm of Ogletree Deakins for 18 years. He is listed in The Best Lawyers in America and was selected as one of North Carolina’s Legal Elite by Business North Carolina Magazine. Bruce is 100% committed to helping companies maximize employee engagement and minimize workplace liabilities.

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.

HR Managers: How Well Do You Understand the Pregnancy Discrimination Act?

Tuesday, March 21st, 2017

The Pregnancy Discrimination Act (PDA) is an amendment to Title VII of the Civil Rights Act of 1964, a federal discrimination law. Discrimination on the basis of pregnancy, childbirth, or related medical conditions is unlawful sex discrimination under Title VII, which covers employers with 15 or more employees, including state and local governments. Women who are pregnant or affected by related conditions must be treated in the same manner as other applicants or employees with similar abilities or limitations.

At CAI, we receive over 7,000 calls annually from our North Carolina members on a wide variety of HR compliance and workplace issues. Here are a few situations that employers may face when complying with the PDA.

Q. My employee has had several absences due to an illness unrelated to her pregnancy.  Recently, pregnancy complications kept her out of work an additional two days.  Can I discipline or discharge her according to our attendance policy?

A: In this case, be sure that you are following the same policy for all employees. Would you typically terminate or discipline at that level of attendance? Also, be sure to think through ADA or FMLA (if applicable) coverage if her illnesses or complications might qualify.

Q. I have a visibly pregnant applicant applying for one of our busiest jobs. We can’t take the risk of her needing to be out to go on maternity leave so we decide not to offer her the job, even though she is the most qualified. Is this ok?

A: No. This would be a direct violation of the PDA

Q. Our leave policy provides for four weeks of leave for employees that have worked less than a year.  Our employee has only worked with us for 6 months and did not return to work after her four weeks of leave. Are we ok to discharge?

A: If you are treating the pregnant employee in accordance with your other leave policies and treat all employees the same, regardless of their medical condition, you should be fine. Again, you may want to ensure that there are no ADA/FMLA implications.

Q. My pregnant employee has been given a lifting restriction of 25 lbs. Her job requires her to be able to lift up to 50 lbs.  We do not allow for light duty other than Workers Compensation situations.  Do we have to accommodate this employee’s light duty request?

A: Yes.  If you have policies that allow for light duty for employees who are injured on the job (or ADA accommodation) you must treat your pregnant employee with the same accommodations/allowances. In this example, because you allow for light duty for WC situations, we would recommend that you allow your pregnant employee to continue with light duty.

Q. My employee is pregnant and I feel like she shouldn’t be lifting our boxes and placing them on the shelves. I think I may switch her to another duty to help her out, would this be ok?

A. If your employee hasn’t requested accommodation or light duty and hasn’t been placed on restriction from her doctor, do not make an automatic inference on what would be best for her in her job. You may however, engage your employee in a conversation to discuss your concern and to obtain her perspective.  As a result, you may both reach the conclusion that a reassignment is appropriate.  Should this be the case you will want to document your conversation including a written acknowledgment from the employee.  An employer may, of course, require that a pregnant worker be able to perform the duties of her job, adverse employment actions, including those related to hiring, assignments, or promotion, that are based on an employer’s assumptions or stereotypes about pregnant workers’ attendance, schedules, physical ability to work, or commitment to their jobs, are unlawful. Even when an employer believes it is acting in an employee’s best interest, adverse actions based on assumptions or stereotypes are prohibited. For instance, it is unlawful for an employer to involuntarily reassign a pregnant employee to a lower paying job involving fewer deadlines based on an assumption that the stress and fast-paced work required in her current job would increase risks associated with her pregnancy.

Q. My employee is pregnant and hasn’t been placed on restriction by her doctor or requested duty accommodation, however, our jobs require a lot of standing, bending and lifting. Can I force my employee to go on leave at this time?

A. No. The PDA specifically addresses Forced Leave.  An employer can not force an employee to take leave because they are pregnant. On the other hand,  you must allow women with physical limitations resulting from pregnancy to take leave on the same terms and conditions as others who are similar in their ability or inability to work. Thus, an employer could not fire a pregnant employee for being absent if her absence fell within the provisions of the employer’s sick leave policy. An employer may not require employees disabled by pregnancy or related medical conditions to exhaust their sick leave before using other types of accrued leave if it does not impose the same requirement on employees who seek leave for other medical conditions. Similarly, an employer may not impose a shorter maximum period for pregnancy-related leave than for other types of medical or short-term disability leave. Title VII does not, however, require an employer to grant pregnancy-related medical leave or parental leave or to treat pregnancy-related absences more favorably than absences for other medical conditions.

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.