Posts Tagged ‘Pat Rountree’

Don’t Underestimate the Power of Job Descriptions in ADA Legal Challenges

Thursday, September 3rd, 2015

CAI’s Advice and Resolution team member Pat Rountree shares valuable information regarding job descriptions and compliance with the ADA

Pat Rountree, HR Advisor

Pat Rountree, HR Advisor

The terminology essential functions of the job has been around since the Americans with Disabilities Act (ADA) became law in 1993.  However, the significance of making sure that you have current job descriptions for each position that lists the essential duties, physical, and mental requirements greatly increased with the recent amendments to the ADA.  Also, technology advances have resulted in a faster pace of job change over the last several years.

Employment law attorneys continue to stress that job descriptions that identify the essential functions of the job are the first line of defense when employers are trying to defend undue hardship decisions on inability to make accommodation, and terminations for inability of employees to do the job.

At the most recent CAI/Ogletree Employment and Labor Law Update, Attorney Gretchen Ewalt recommended that employers use the employee performance review time to go over the job description with the employee annually and determine if changes need to be made to accurately reflect the current job responsibilities.

Another recommendation in light of recent case law is to document in the job description if the job requires the employee to be present at the worksite and to document the reasons why.  It may sound ridiculous—of course attendance at work is required.  However, with requests for accommodation to work from home, it is important to document when actual presence at work is required as in the EEOC vs. Ford Motor Company.  The employee, a resale buyer, requested to work from home as an accommodation, but the employee’s lack of availability for impromptu meetings on important issues was an undue hardship for the employer.  The court sided with the employer and noted in their decision, in most jobs, especially those involving teamwork and a high level of interaction, the employer will require regular and predictable on-site attendance from all employees.  To read the full court decision, see http://www.ca6.uscourts.gov/opinions.pdf/15a0066p-06.pdf.

Obviously with the advance of technology, working from home may be a reasonable accommodation for some jobs.  However, for those jobs that require person-to-person contact on the job, it is important to document.

How long has it been since you actually reviewed job descriptions with incumbents to determine that they are still valid?

Considerations in determining essential functions include:

  • The importance of the function to the overall job
  • The number of employees available to perform it
  • The time spent on the function
  • The degree of skill required

Other kinds of evidence that EEOC will consider include:

  • The actual work experience of present or past employees in the job
  • The consequences of not requiring that an employee perform a function
  • The terms of a collective bargaining agreement.

For additional guidance on this topic, please reach out to CAI’s Advice and Resolution team at 919-878-9222 or 336-668-7746.

Summer Planning for Youth Employment

Tuesday, May 5th, 2015
Pat Rountree, HR Advisor

Pat Rountree, HR Advisor

Summer is on its way, and in today’s post, CAI’s Advice and Resolution team member Pat Rountree shares critical information about summer employment opportunities for teens and young adults.

Applications for summer employment are likely already arriving as the school year draws to an end. Now is a good time to review things you need to know to be in compliance with laws affecting youth employment.

Wage and Hour Laws

Non-Agricultural

North Carolina and federal law have limitations on hours and occupations for employees under age 18 applicable to non-agricultural employers. Where North Carolina employers are also subject to the Fair Labor Standards Act (FLSA), the laws that offer the most protection to minors are applicable.

Youth under 18 may not work in any occupations determined to be hazardous or detrimental. (See http://j.mp/NC-HAZ and http://j.mp/NC-DET.)

During non-school weeks, there are no restrictions on hours for youth 16 and over. If they are attending school, they may not work during the hours of 11:00 pm to 5:00 am if they have school the next day unless waived in writing by a parent or principal.

Minors age 14 and 15 may not work in any manufacturing job and are limited to eight hours per day, 40 hours per week between the hours of 7:00 am and 7:00 pm (7:00 am to 9:00 pm from June 1 to Labor Day) during non-school weeks. They must also be given a 30 minute break after working five hours. For more detailed information on restrictions for youth age 14 and 15, go to http://j.mp/Y-15.

Children of business owners may work for their parents in their business any hours, but not in hazardous or detrimental occupations as noted above.

Agricultural/Farm Jobs

North Carolina does not regulate youth employment in agriculture. For the applicable federal law, go to http://j.mp/j-ag.

Youth Certificate Required

All youth under age 18 working in North Carolina must obtain a youth certificate (worker’s permit) and submit it to the employer prior to starting work. See http://bit.ly/ncdol-y. These must be retained for at least two years after employment ends or until the employee reaches age 20.

Agricultural Occupations

The North Carolina youth employment provisions do not apply to farm work.

Drug Testing and Background Checks

Attorneys recommend having the parent sign the consent for pre-employment drug testing or post-offer background checks if these are required contingencies. However, the results should be released to the minor and not the parent(s).

Completing the Form I-9

If the minor has documents to satisfy I-9 requirements, they may complete Section 1 and present documents.

If the minor cannot present documentation of proof of identity and authorization to work, the parent may complete Section 1 on behalf of the minor. (See http://j.mp/I9-m.)

If you have questions about youth employment, please contact a member of CAI’s Advice and Resolution team at 919‑878‑9222 or 336‑668‑7746.

Rehire of Former Employees Terminated for Positive Drug Test

Thursday, July 24th, 2014
Pat Rountree, HR Advisor

Pat Rountree, HR Advisor

In today’s post Pat Rountree, an HR Advisor on CAI’s Advice and Resolution Team, discusses the decisions employers have made regarding rehiring former employees who were terminated for a positive drug test.

There was recently discussion on the CAI Members List Serve about whether other employers considered rehiring employees terminated for testing positive on a drug test and if so, after what length of time. Responses on past Policies and Benefits surveys have revealed that employers’ decisions on this vary from not being eligible for rehire to not being eligible for some specified period of time.

There was a court case several years ago where a former employee who had been terminated for drug use applied for an open position. He was told he was not eligible for rehire. He sued the employer for disability discrimination. Rehabilitated drug users are protected under the Americans with Disabilities Act (ADA). The employer prevailed because their policy was that no one who was terminated for cause was eligible for rehire.

Equal Employment Opportunity Commission (EEOC) ADA Guidance does address inquiries about illegal drug use. It states as follows:

An individual who currently uses drugs illegally is not protected under the ADA; therefore, questions about current illegal drug use are not disability-related inquiries. 42 U.S.C. §12114(a)(1994); 29 C.F.R. §1630.3(a)(1998). However, questions about past addiction to illegal drugs or questions about whether an employee ever has participated in a rehabilitation program are disability-related because past drug addiction generally is a disability. Individuals who were addicted to drugs, but are not currently using drugs illegally, are protected under the ADA. 29 C.F.R. §1630.3(b)(1),(2)(1998).

Since questions about past addiction or participation in a drug rehabilitation program are disability related, those questions can only be asked post offer. If you choose to make those inquiries, it is recommended that you ask all applicants post offer and not just a former employee who was terminated for a positive drug test as that may indicate you considered them to have a disability (drug addiction).

If you have questions on this issue, please contact a member of CAI’s Advice and Resolution team at 919‑878‑9222 or 336‑668‑7746.

 

Contingent Workers a Win-Win

Tuesday, June 3rd, 2014

In today’s post Pat Rountree, an HR Advisor on CAI’s Advice and Resolution Team, shares valuable information about contingent workers and how they are transforming the workplace.

Pat Rountree, HR Advisor

Pat Rountree, HR Advisor

The contingent workforce is changing.

Contingent workers include staffing agency employees, independent contractors, consultants, freelancers and generally workers who are not direct hires with an ongoing employment relationship.

The recession of 2009 and slow recovery caused businesses to move cautiously in adding headcount. Many businesses moved to more contingent workers as a hedge against the slow recovery. The contingent workforce has continued to grow since then, and there are some estimates that contingent workers will represent nearly half the workforce by 2020.

The benefits for businesses are flexibility in hiring skilled workers as needed to meet project needs that are not ongoing without adding to fixed costs. Technology has enabled businesses to more easily search for and recruit contingent talent.

However, another change is taking place. Many workers are contingent by choice. This work lifestyle offers opportunities to use their skills and experience personal growth through exposure to different business environments. Contingent workers like the flexibility, opportunity to manage their career and make more money (for those with in-demand talent).

Who makes up the contingent workforce?

  • Remote talent made available through technology
  • Older workers who no longer want to work full time but have knowledge, skills and abilities that are valuable and marketable to businesses on a consulting basis
  • Millenials who do not expect or want to work for one employer for more than 15 to 18 months, and who also want rapid career growth, work-life balance and to be free agents
  • Those who make a temporary lifestyle for a time-out from regular work while staying at home with children, caregiving or other personal responsibilities
  • Workers that are unable to find regular employment and are contingent workers by necessity

As businesses and workers change, there can be a win-win. Businesses can recruit talent to supplement the regular workforce and take on unique projects that are outside the skills or talent available in-house. This allows them to ramp up or scale down quickly to meet demand without affecting core employees. And, individuals with desirable talent and skills can take advantage of the contingent workforce market by actively managing their career without being tied down to a long-term commitment.

If you have questions about using contingent workers at your organization, please call a member of CAI’s Advice and Resolution Team at 919-878-9222 or 336-668-7746.

Executive Exemption and its Supervision Requirements

Thursday, February 6th, 2014
Pat Rountree, HR Advisor

Pat Rountree, HR Advisor

CAI’s Advice and Resolution Team answers several questions from members daily. The team often receives questions concerning the different exemptions under FLSA and how to ensure correct compliance, such as this one below:

If a supervisor supervises one employee and two independent contractors, would he or she be eligible for the executive exemption under FLSA?

In today’s post, Advice and Resolution Team Member Pat Rountree offers guidance for this employer issue:

The executive exemption has several tests that must be met:

  • The employee must be compensated on a salary basis (as defined in the regulations) at a rate not less than $455 per week;
  • The employee’s primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise;
  • The employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and
  • The employee must have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight.

The requirement that the supervisor regularly direct the work of at least two full-time employees or their equivalent refers to employees of the employer under the FLSA. The US Department of Labor Wage and Hour handbook states that “only other employees of the employer may be considered when determining if the two full-time employee equivalency is met; supervision of volunteers, employees of independent contractors, or any other ‘non-employees’ (trainees, interns) in relation to the employer are not considered for purposes of this test.”

Also, to clarify, full time is generally considered to be 40 hours per week.

If the supervisor does not qualify for the executive exemption, you may want to consider whether he or she would meet the administrative exemption.

For more information on the executive, administrative, and other white-collar exemptions, see http://www.dol.gov/ elaws/ esa/ flsa/ overtime/ menu.htm.

Revoking an Offer of Employment

Thursday, December 5th, 2013

In today’s post Pat Rountree, an HR Advisor on CAI’s Advice and Resolution Team, shares important information to keep your company protected when revoking an offer of employment.

Pat Rountree 5x7 300dpi

Pat Rountree, HR Advisor

When making an offer of employment, be sure to advise the applicant of any contingencies that must be satisfied before the offer is final. These may include satisfactory drug test results, background and reference checks, or post offer medical exams. These contingencies in the offer may help protect you later if the offer is revoked based on unsatisfactory results.

There may be occasions (hopefully rare) when an employer has made the offer, received satisfactory results from contingencies, and then needs to revoke an offer. It may be for any number of reasons: a lost contract that eliminates the need for the position, a change in the direction of the company, etc. In this case, failure to fulfill your commitment to employ may result in a lawsuit based on the individual’s reliance on your offer.

There is also the potential for discrimination charges in connection with information acquired after the offer (for example, a prior disability or prior convictions that are not job related). For charges of discrimination, you would need to be able to show the business reasons for the revocation to challenge that there was a discriminatory purpose.

If you would like more information regarding offers of employment, please contact a member of CAI’s Advice and Resolution Team at 919‑878‑9222 or 336‑668‑7746.

Rally Your Troops for a Good Cause

Tuesday, November 5th, 2013

In today’s post Pat Rountree, an HR Advisor on CAI’s Advice and Counsel Team, shares several ways that your organization can honor veterans and military service men and women this veterans day.

Pat Rountree 5x7 300dpi

Pat Rountree, HR Advisor

Veterans Day is November 11. There is still time to make plans to honor veterans and military service men and women and thank them for their service to our country to preserve our freedom. They give their time, leave home and family, often see things no one should have to witness, and know that they may face injury or even death. This is a great opportunity to support those in your community through some personal recognition, or anywhere through cards or donations.

Ideas for honoring service – employers can help by considering and hiring veterans. Go to http://www.hireveterans.com to see resumes of veterans or to post your openings.

There are also ways to involve your employees:

  • Honor your own employees for their service. You can advise employees you want to honor them on Veterans Day and ask anyone who would like to participate to let you know. Certificates of recognition are available at http://j.mp/vv-c.
  • Give employees an opportunity to participate in an event or service opportunity for veterans. Attend a Veterans Day celebration and personally thank vets for their service.
  • Visit veterans at a VA hospital if one is in your area, or in hospices.
  • Send cards to veterans to thank them for their service.
  • Offer to match employee donations to the Wounded Warrior Project or other organizations that support veterans http://www.woundedwarriorproject.org/.
  • Advise employees how they can volunteer personally to help veterans if they are interested, go to http://j.mp/vm-13.
  • Give a company gift to a veterans’ organization and make employees aware of organizations they can contact to give personally (examples: Veterans of Foreign Wars (VFW) or American Legion). There are a number of homeless veterans that need our help.

If you are interested in hiring veterans or need additional help with honoring the veterans and service men and women at your organization, please call a member of CAI’s Advice and Counsel Team at 919-878-9222.

 

Working While on a Leave of Absence

Tuesday, August 20th, 2013

Pat Rountree 5x7 300dpiCAI’s Advice and Counsel Team answers several questions from members daily. The team often receives questions concerning leaves of absence, such as this one:

Should we allow employees to work from home while on a Leave of Absence?

In today’s post, Advice and Counsel Team Member Pat Rountree offers guidance for this employer issue:

There are several considerations in answering this question:

1) Most importantly, what are the employee’s medical restrictions while on leave and what is your policy?

You do not want to require or allow the employee to perform any work that would violate their medical restrictions. If they want to continue to work on projects at home, monitor emails to keep up with what is going on, or manage employees remotely, it will be determined by your policy/practice if the work is within their restrictions. It will also depend on their job and whether work from home is possible during leave.

2) Is the employee exempt or non-exempt?

If they are exempt and on unpaid leave, under wage and hour laws, you may be required to pay them for the entire week if they work any part of the week unless they are on FMLA (the only time you can pay only for hours worked for partial days) or there is available a permissible deduction for a full day’s absence (not a partial day absence).

If they are non-exempt and you allow them to work they must track, and you must pay them for, all hours worked.

3) Are they on company-paid leave (salary continuation, exhausting paid time under an FMLA policy, etc.)?

If they are on company-paid leave, they are being paid by you so there is no Wage and Hour violation if they work.

4) Are they receiving third party payments (short-term disability or Workers’ Compensation)?

If so, supplemental pay may affect their eligibility for third party payments. Check your disability insurance plan document to see if this is allowed. If on Workers’ Compensation leave, you would report any earnings.

Remember, if the employee is on a company leave of absence, the employee must volunteer to work and it must be approved by management. However, if the employee is working while on a leave of absence, then, in reality, they are not on a leave of absence but working remotely. This may have other unforeseen implications, for example, if out on a FMLA absence, the time they are working should not count against the employee’s FMLA time.

If you have questions regarding leaves of absence, please contact a member of CAI’s Advice and Counsel Team at 919‑878‑9222 or 336‑668‑7746.

 

Our Employee Was Unauthorized to Work in the US But Is Now Legal

Tuesday, June 25th, 2013

CAI’s Advice and Counsel Team answers several questions from members daily. A recent question the team received was– We had an employee who has worked for us for years come forward with new documents and advise us that he is now legal. What do we do?

 Pat Rountree 5x7 300dpiIn today’s post, Advice and Counsel Team Member Pat Rountree supplies an answer to this workforce-related issue:  

If an employee tells you they were illegal but now have legal documentation, you have a choice:

  1. accept the new documentation and keep the employee if the documentation appears valid; or
  2. take disciplinary action under your policy if you state that falsification of employment records is grounds for discipline.

There is nothing illegal about keeping the employee if you accepted the original documentation in good faith and it appeared valid, and if the new documentation appears to be valid. If you are using E-Verify, you will find out whether the new information is indeed valid.

The next question you have to ask is, “what is our policy in regards to employee falsification?”

If you have a policy that results in discipline for falsification of records and you treat this situation differently because it is a “good employee,” it begs the question of whether you are being inconsistent with your policy. Also, if you want to terminate the employee and rehire for the same reason, you should review your policy on rehires to see if employees who are terminated for cause for other reasons are allowed to return. Other employees often are aware of these situations and look to see how they are handled by the employer.

Review the situation, your policy and past practice. If your policy does not require you to terminate, verify that the new documents are valid and complete a new I-9 and attach it to the original, along with a memorandum for record describing the actions taken by the employer in regard to the I-9 form.

If you have questions about this issue, please contact a member of CAI’s Advice and Counsel team at 919‑878‑9222 or 336‑668‑7746.