Author: hrconsulting14

FMLA Expansion Rights Due to the Coronavirus

by hrconsulting14

On March 18, 2020 U.S. Congress passed legislation which expands employee rights under FMLA (Family And Medical Leave Act of 1993). This is contained in the Families First Coronavirus Response Act, Division C.  Under previous law, all FMLA leave was unpaid. New legislation now adds a paid leave provision. Here is a summary of the new law for HR consultants:

Effective Dates:

From April 2, 2020 through December 31, 2020.

Eligible Employees:

An employee who has been employed for at least 30 calendar days before taking the new FMLA.  Apparently, this applies to both full and part-time employees (Section 110(a)(1)(A).

Which Employers?

Companies that have fewer than 500 employees for each working day during each of the 20 or more calendar workweeks in the current or preceding calendar year. (Section 110(a)(1)(B).

However, for businesses that have fewer than 50 employees, there may be an exemption when the leave would jeopardize the “viability of the business as a going concern.”

Reason for Taking a Leave: The reason for taking Enhanced FMLA leave is limited to only one circumstance: based on a public health emergency, if the employee is unable to work (or telework) due to a need to care for a son or daughter under 18 years if the school or place of care has been closed (Section 110(a)(2)(A). This means it applies even to situations in which a child is 16, 17 or 18 years of age and is traditionally able to care for himself or herself. And there is no provision that the parent must be present or care for the child at all times—does that I mean a parent can watch the child per couple hours and then go off and engage in other activities? Nor does there appear to be requirement for the child stay home.

The qualifying public health emergency is the Coronavirus outbreak declared by federal, state, or local authority. There is currently a national state of public health emergency.

A school is defined as either a childcare facility, as well as elementary or secondary schools.

Unpaid Leave:

Leave is unpaid for the first 10 days. But the employee can elect to use accrued and paid vacation, PTO or sick leave (Section 110(b)(1).

Paid Leave:

From the 11th day on, the leave is paid (Section 110(b)(2)). For paid leave, the employee receives an amount not less than two thirds of that person’s regular rate of pay. But in no event shall such paid leave exceed $200 per day and $10,000 total (Section 110(a)(1)(B)).

www.HRconsulting.network can act as your virtual HR Independent Consultant. Our consulting services include: 1) acting as your virtual Human Resources department, 2) assisting your existing HR department personnel, 3) giving advice to other HR consultants or 4) simply providing outsourcing information to anyone interested in HR matters. And, we are equipped to prepare any documents required. Examples include: termination notices; warnings; counseling reports; progressive discipline procedures; write-ups; employment/confidentiality/noncompete agreements; employee handbooks; responses to employee demands; responses to wage and hour, overtime, rest/meal breaks, retaliation and hostile work environment disputes; memos to management; complaint investigations and reports; separation and severance agreements; settlement and release agreements; responses to sexual harassment claims; responses to discrimination claims; arbitration procedures (preparing a binding arbitration agreement, responses and other paper work, scripts and declarations for testimony, representatives to appear at hearings) and help with language used in your emails and communications with employees. Services can be on a retainer basis, hourly or flat fee. Our HR consultants have 20+ years’ experience in HR consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434 (Ext. 1). Or email our parent company (attention Cliff): Info.NationalLienLaw@gmail.com.

 

 

Coronavirus Fact Sheet for Employers to Post

by hrconsulting14

 

With the Coronavirus appearing more and more in the news, it is inevitable that employers will be asked to post a fact sheet for their employees to read. This can be posted By the HR Department in conspicuous spots, for example break rooms, bulletin boards or near time clocks.

Here is an example of a fact sheet HR professionals and employers can use for the Coronavirus:

 

Coronavirus Fact Sheet for Employees

 

What is Novel Coronavirus? COVID-19 is a new virus strain spreading from person-to-person in China and now other countries, including the United States. Little is known about this new virus and it has the potential to cause serious illness and pneumonia in some people.

How Severe? Reported cases have ranged from mild illness (like a common cold) to severe pneumonia that requires hospitalization. So far, deaths have been reported mainly in older adults who had other health conditions.

Risk of Infection: Currently, the risk you will contract the virus is low.

How is it Spread?

  • By respiratory droplets (moisture) produced when an infected person coughs or sneezes.
  • Between people who are in close contact with one another (within about 6 feet).

Symptoms: Symptoms may appear in as few as 2 days or as long as 14 days after exposure. Symptoms include fever, cough and difficulty breathing. If you experience any of these or have doubts, it is best to seek medical attention right away and stay home.

Steps to Take: The measures you can take to prevent the spread of flu and the common cold will also help prevent Coronavirus:

  • Wash hands often with soap and water (for at least 20 seconds). If not available, use a hand sanitizer.
  • Avoid touching your eyes, nose or mouth with unwashed hands.
  • Avoid contact with people who are sick. Stay at least 6 feet away.
  • Stay home while you are sick.
  • As much as practical, avoid close contact with others that appear to be sick.
  • Cover your mouth/nose with a tissue or upper sleeve when coughing or sneezing. Then throw the tissue away.
  • Don’t shake hands, rub elbows.
  • If you wish, carry wipes (use on doorknobs and other frequently touched areas).
  • Stand to the side when talking with someone.

Treatment: Currently there are no medications approved for Coronavirus. Most people with mild cases will recover on their own by drinking plenty of fluids, resting and taking pain or fever medications. However, some cases develop pneumonia and require medical care or hospitalization.

 

www.HRconsulting.network can act as your virtual HR Independent Consultant. Our consulting services include: 1) acting as your virtual Human Resources department, 2) assisting your existing HR department personnel, 3) giving advice to other HR consultants or 4) simply providing outsourcing information to anyone interested in HR matters. And, we are equipped to prepare any documents required. Examples include: termination notices; warnings; counseling reports; progressive discipline procedures; write-ups; employment/confidentiality/noncompete agreements; employee handbooks; responses to employee demands; responses to wage and hour, overtime, rest/meal breaks, retaliation and hostile work environment disputes; memos to management; complaint investigations and reports; separation and severance agreements; settlement and release agreements; responses to sexual harassment claims; responses to discrimination claims; arbitration procedures (preparing a binding arbitration agreement, responses and other paper work, scripts and declarations for testimony, representatives to appear at hearings) and help with language used in your emails and communications with employees. Services can be on a retainer basis, hourly or flat fee. Our HR consultants have 20+ years’ experience in HR consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434 (Ext. 1). Or email our parent company (attention Cliff): Info.NationalLienLaw@gmail.com.

California Meal and Rest Break Law

by hrconsulting14

As a HR consultant, everyone would agree you must be mindful of the California Law for rest and meal breaks. These rules are laid out in California Labor Code Section 512. Not only must there be compliance, but there are severe penalties: for every rest or meal break that is not taken or allowed by an employer, there is a penalty of one hour of the employee’s regular rate of pay. So the HR consulting industry must be ever vigilant in this regard.

Here is an example of the wording HR can insert in employee handbooks on the subject of meal and rest breaks:

 

Employees who work 4 hours or more may take a paid 10-minute rest break for every 4 hours worked, with the rest period being in the middle of each 4-hour work period, as far as practicable.  Employees may leave the premises during their paid 10-minute break, but are expected to return timely.

Employees who work more than 5 hours must take a minimum 30-minute unpaid meal break, during which he or she shall be relieved of all work-related duties.  Meal breaks must be taken before the end of the 5th hour of work. The end of the 5th hour is defined as 5 hours and 59 minutes.  Employees must clock out at the beginning of their meal break, and clock back in at the conclusion of their meal break.

If the total work period per day for an employee is no more than 6 hours, the employee may mutually agree with Company to waive their right to a non-paid meal period and may continue to work throughout their shift.

For employees who work more than 10 hours, a second uninterrupted 30-minute meal break must be provided no later than the end of the 9th hour (meaning by 9 hours and 59 minutes). However, if the total work period per day is more than 10 hours per day but less than 12 hours, a second meal period may be waived through mutual agreement between the employee and Company (assuming the first meal period has not been waived).

All waivers must be in writing and can be revoked at any time by the employee. All non-exempt employees must accurately account for their mandatory lunch breaks by recording their time taken.

These meal and rest break provisions are mandatory. Under no circumstances may an employee decide not to take them, as these breaks are mandated by California law. An employee need not consume a meal during the meal break and can instead decide to simply take a rest for other purposes. But employees who take breaks at their desk or workstation, should not be conducting any work activities.

Failure to take required rest or meal breaks may result in disciplinary action, up to and including termination.

Your HR Department to keep these rules in mind at all times.

 

www.HRconsulting.network can act as your virtual HR Independent Consultant. Our consulting services include: 1) acting as your virtual Human Resources department, 2) assisting your existing HR department personnel, 3) giving advice to other HR consultants or 4) simply providing outsourcing information to anyone interested in HR matters. And, we are equipped to prepare any documents required. Examples include: termination notices; warnings; counseling reports; progressive discipline procedures; write-ups; employment/confidentiality/noncompete agreements; employee handbooks; responses to employee demands; responses to wage and hour, overtime, rest/meal breaks, retaliation and hostile work environment disputes; memos to management; complaint investigations and reports; separation and severance agreements; settlement and release agreements; responses to sexual harassment claims; responses to discrimination claims; arbitration procedures (preparing a binding arbitration agreement, responses and other paper work, scripts and declarations for testimony, representatives to appear at hearings) and help with language used in your emails and communications with employees. Services can be on a retainer basis, hourly or flat fee. Our HR consultants have 20+ years’ experience in HR consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434 (Ext. 1). Or email our parent company (attention Cliff): Info.NationalLienLaw@gmail.com.

 

HR Consulting News: California Sick Leave and Overtime

by hrconsulting14

California law provides that employees can be cashed out for their accrued sick leave at their regular rate of pay. Under Labor Code Section 246 (l)(1)(2) the employer or HR department has the option of calculating the rate of pay as either: 1) the regular rate of pay in the workweek in which the employee uses the paid sick leave or 2) the regular rate of pay for the last 90 days. In both instances, overtime is not to be considered.

But that has to do with being cashed out. What about the accrual of sick leave to HR consultants? We know it is 1 hour for every 30 hours worked. Does that include overtime? The Labor Code Section above does not address this issue. It only talks about hours of work. On that basis, it appears the employer can have a uniform policy that the accrual only applies to regular hours and not overtime.

Note also that the University of California also takes that position for its employees: “An eligible employee shall earn sick leave credit at the rate of .046154 hours per hour on a pay status, including paid holiday hours but excluding all paid overtime hours.” (https://ucnet.universityofcalifornia.edu/labor/bargaining-units/cx/docs/cx_2017-2022_36_sick-leave.pdf).

 

www.HRconsulting.network can act as your virtual HR Independent Consultant. Our consulting services include: 1) acting as your virtual Human Resources department, 2) assisting your existing HR department personnel, 3) giving advice to other HR consultants or 4) simply providing outsourcing information to anyone interested in HR matters. And, we are equipped to prepare any documents required. Examples include: termination notices; warnings; counseling reports; progressive discipline procedures; write-ups; employment/confidentiality/noncompete agreements; employee handbooks; responses to employee demands; responses to wage and hour, overtime, rest/meal breaks, retaliation and hostile work environment disputes; memos to management; complaint investigations and reports; separation and severance agreements; settlement and release agreements; responses to sexual harassment claims; responses to discrimination claims; arbitration procedures (preparing a binding arbitration agreement, responses and other paper work, scripts and declarations for testimony, representatives to appear at hearings) and help with language used in your emails and communications with employees. Services can be on a retainer basis, hourly or flat fee. Our HR consultants have 20+ years’ experience in HR consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434 (Ext. 1). Or email our parent company (attention Cliff): Info.NationalLienLaw@gmail.com.

Sick Leave payments for Commission Salespersons in California

by hrconsulting14

How do you calculate the hourly rate paid to commissioned salespersons when exercising their sick leave?

The California Department of Industrial Relations, Division of Labor Standards Enforcement, in its opinion letter of October 11, 2016, answers this question. The preferred method is to calculate all the earnings (hourly, commissions and bonuses) for the prior 90 days before taking sick leave and simply dividing by the total hours worked. Since we are talking about salespersons, the compensation would consist of commissions only. This is pursuant to California Labor Code Section 246(k)(2).

In order to make the calculation, salesperson must’s submit timecards of their hours. Unfortunately, many salespersons don’t submit them, because they are not paid an hourly rate. But you must explain to them such timecards are still required under California law.

Another reason is that salespersons must be paid commissions equaling at least 1 1/2  times the minimum wage. How can you make that calculation unless you have timesheets?

 

www.HRconsulting.network can act as your virtual HR Independent Consultant. Our consulting services include: 1) acting as your virtual Human Resources department, 2) assisting your existing HR department personnel, 3) giving advice to other HR consultants or 4) simply providing outsourcing information to anyone interested in HR matters. And, we are equipped to prepare any documents required. Examples include: termination notices; warnings; counseling reports; progressive discipline procedures; write-ups; employment/confidentiality/noncompete agreements; employee handbooks; responses to employee demands; responses to wage and hour, overtime, rest/meal breaks, retaliation and hostile work environment disputes; memos to management; complaint investigations and reports; separation and severance agreements; settlement and release agreements; responses to sexual harassment claims; responses to discrimination claims; arbitration procedures (preparing a binding arbitration agreement, responses and other paper work, scripts and declarations for testimony, representatives to appear at hearings) and help with language used in your emails and communications with employees. Services can be on a retainer basis, hourly or flat fee. Our HR consultants have 20+ years’ experience in HR consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434 (Ext. 1). Or email our parent company (attention Cliff): Info.NationalLienLaw@gmail.com.

No-hire or Non-solicitation of Employees Provisions–Are They Legally Valid?

by hrconsulting14

Here is a situation many companies are confronted with over time. You are consulting firm and your customers hire-out your consultants on a temporary basis. But you are finding recently your customers are taking away your consultants. In other words, after they finish one of the jobs, they are hired permanently as an employee and you lose the income for future work. Can you have your customers sign a contract which prevents this? In other words, inserting a No-hire or Non-solicitation of Employees clause?

The courts have not wavered from the strong public policy of the right of every employee to earn a livelihood under Business and Professions Code Section 16600. See Metro Traffic Control, Inc. v. Shadow Traffic Network (1994) 22 Cal.App.4th 853, 859 (“every citizen shall retain the right to pursue any lawful employment and enterprise of their choice”); Morlife, Inc. v. Perry (1997) 56 Cal.App.4th 1514, 1520 (“the important legal right of persons to engage in businesses and occupations of their choosing”).

The California Supreme Court has gone so far as to state that even “a mere limitation on an employee’s ability to practice his or her vocation … [that was] reasonably based” would fall afoul of section 16600. Edwards v. Arthur Andersen LLP, 44 Cal.4th 937, 81 Cal.Rptr.3d 282 (2008)

Key Points:

  • Courts overwhelmingly favor the right of a person to find the employment of their choosing.
  • Courts almost have a built-in bias against no-hire and similar provisions.

 

See VL Systems, Inc. v. Unisen, Inc. (2007) 152 Cal.App.4th 70. Company hired consultant for computer services. One of consultant’s employees was hired away by Company, which caused a lawsuit for violation of the no-hire agreement. That agreement had a liquidated damages provision. The employee of the consultant had never worked on any jobs for the Company and was just a random employee. The employee was hired away after answering an Internet ad. The court invalidated the no-hire provision and allowed the employee to be employed.

Key Points:

 

  • There is a better chance of stopping the employee if that person was actually working for the contracting party.
  • There is a better chance of the employee winning if he or she did the solicitation as opposed to the contracting party (because the contracting party would not be directly violating the provision it signed).
  • It is easier for the employee to win if he or she did not know about the no-hire provision.
  • It is not okay to “raid” the employment pool by taking away numerous employees

 

Golden v. Cal. Emergency Physicians Med. Grp., 782 F.3d 1083 (9th Cir., 2015). A doctor worked with a medical staffing company that specialized in staffing emergency rooms with physicians. The agreement signed by the doctor prohibited him from working for any of the hospitals that had been under contract. At the appellate level, the Court of Appeal held in favor of the employee and sent the case back to the District Court for re-determination.

Key Points:

  • Although there are many cases regarding non-solicit or non-compete, as to no-hire agreements, there is no definitive statement thus far from the California Supreme Court.
  • Regardless, the weight of authority and the trend modernly is to invalidate these provisions and allow the employee to work.
  • Other states allow the prohibitions if they are reasonable in nature. California cases say that any restraint is unlawful.

As you can see from the above, this is a highly technical issue, it’s best to receive legal advice you are confronted with it. And if you do insert a no hire or non-solicitation employees provision, make sure it is properly worded. Be careful, as this is one of the frequent issues confronted by HR consultants.

 

National Lien Law can act as your virtual Human Resources Consulting Firm–either replace your existing HR Department or augment it with our ongoing human resources consulting services. And, we are equipped to prepare any documents required (for example, termination notices, warnings, employment agreements/confidentiality/noncompete, employee handbooks, write-ups, responses to claims, wage and hour disputes, legal memos to management, response to attorney demands, legal investigations, help with arbitrations or language used in your emails and communications with employees). Services can be on a retainer basis, hourly or flat fee. Our human resources consultants have law degrees and 20+ years’ experience in human resources consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434. Info.NationalLienLaw@gmail.com.

Employment Arbitration Agreements–New Changes 2019 for Employers

by hrconsulting14

 

As employers, most are well aware of the benefits of resolving disputes with employees through binding arbitration, as opposed to a court proceeding. Especially if you have to undergo the ordeal of a jury trial. But make sure your arbitration agreements are up-to-date.

Based upon some recent court decisions, you have to make sure you have certain exclusions in the agreement. In other words, disputes that cannot be determined by binding arbitration.

Traditionally, the exclusions consisted of workers compensation and unemployment insurance claims. But what about claims through the National Labor Relations Board?

The Board on June 18, 2019 handed down the decision of Prime Healthcare Paradise Valley, LLC and Richard Cardona and Stephene Ortega Cases 21–CA–
133781 and 21–CA–133783 (https://www.nlrb.gov/cases-decisions/decisions/board-decisions).  In that case, all employees were required to sign a binding arbitration agreement as a condition of employment. The agreement did not mention either way disputes with the NLRB. On the other hand, it did not indicate that those disputes had to be arbitrated. Instead, it had broad language that arbitration applied to: “All claims or controversies for which a federal or state court would be authorized to grant relief”.

The court invalidated the provision because it did not explicitly exclude NLRB claims. Moreover, the general language applied to all claims; inferentially it meant that such claims would have to be arbitrated.

For this reason, it is recommended you have explicit language in this regard. An example would be:

Arbitration does not cover, and you have the right to pursue independently of arbitration: workers’ compensation claims, unemployment insurance claims or
any claims that could be made to or under the National Labor Relations Board.

On a related point, you should also make it clear that there is no prohibition of bringing in action through the EEOC. However, after its conclusion or the issuance of a “right to sue” letter, further proceedings would have to be through arbitration and not a court trial. The language you might want to use is as follows:

You are not prohibited from pursuing an administrative claim with a local, state or federal administrative body or government agency that is authorized to
enforce or administer laws relating to employment, including but not limited to the Federal Equal Employment Opportunity Commission or similar state
administrative agency.  However, after exhausting such an administrative claim, if you wish to proceed further, it must be done by arbitration.

 

www.HRconsulting.network can act as your virtual HR Independent Consultant. Our consulting services include: 1) acting as your virtual Human Resources department, 2) assisting your existing HR department personnel, 3) giving advice to other HR consultants or 4) simply providing outsourcing information to anyone interested in HR matters. And, we are equipped to prepare any documents required. Examples include: termination notices; warnings; counseling reports; progressive discipline procedures; write-ups; employment/confidentiality/noncompete agreements; employee handbooks; responses to employee demands; responses to wage and hour, overtime, rest/meal breaks, retaliation and hostile work environment disputes; memos to management; complaint investigations and reports; separation and severance agreements; settlement and release agreements; responses to sexual harassment claims; responses to discrimination claims; arbitration procedures (preparing a binding arbitration agreement, responses and other paper work, scripts and declarations for testimony, representatives to appear at hearings) and help with language used in your emails and communications with employees. Services can be on a retainer basis, hourly or flat fee. Our HR consultants have 20+ years’ experience in HR consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434 (Ext. 1). Or email our parent company (attention Cliff): Info.NationalLienLaw@gmail.com.

HR Consulting News–Meal and Rest Breaks

by hrconsulting14

 

Here is a situation that occurs quite frequently. We all know that in California and in many states, there is a requirement of giving employees rest and meal breaks. For example, a 10 minute rest break and a 30 minute meal break.

Take the example of the 30 minute meal break. Assume a buzzer or bell goes off two minutes before the end of the break to give time for employees to get their affairs in order and walk back to their workstations. Is that two minutes considered working? If so, the employees could argue they are shorted for the full 30 minute break. Actually, the case law is in favor of the company.

Labor Code Section 226.7(a) prohibits an employer from requiring an employee “to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission.” But leisurely walking back to a workstation is not “work”.

We should also be mindful of the “de minimis rule” as outlined by the U.S. Supreme Court case of Anderson v. Mt. Clemens Pottery Co., 328 US 680 (1946). The Court held that “split-second absurdities are not justified by the actualities of working conditions” and “when the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded (at page 692).

Also on point, the Dept. Industrial Relations, DLSE Opn. Letter No. 1986.01.03 (Jan. 3, 1986) states in relevant part that the 10-minute net rest time excludes “any time to walk or otherwise travel to a place of rest”.

See also Lindow v. U.S. (9th Cir. 1984) 738 F.2d 1057, 1062 [noting for purposes of the Fair Labor Standards Act that “[w]hen the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded”]. In that case, workers sought over time for the approximate 15 minutes per day in which they reported to work early to review a logbook, exchange information about entries, be available to relieve outgoing employees, as well as opening and closing project gates. On de minimis grounds, the court denied the employees claims.

This same fact pattern was presented in the recent case of Chavez v. Angelica Corporation. Although an unpublished opinion, it is persuasive authority because of its comprehensive treatment of the issue and the statements by the trial judge.

Similar to our case, the defendant was a California laundry plant. Plaintiff was a nonexempt employee that brought a class action for alleged violations of rest and meal breaks. Specifically, claiming the employees were not given full 10 and 30-minute breaks because of a bell system identical to our situation: it rang two minutes before the end of rest or meal breaks to allow time to walk back to a workstation (at page 28). After an exhaustive analysis, the Court held there was no violation.

It began by stating: “Initially, we note Plaintiffs are unable to cite to any case or statute holding that employers must add walking time to meal and rest break times, nor have we found any such law based on our independent research” (at p. 24).

It is also instructive to consider comments made by the trial judge. It confirmed that the employees were not performing any working duties during the walking time:

The Court: Well, I mean, there’s no — I didn’t see any evidence of anybody saying, ‘we get a 10-minute break, but we are still working,’ you know. ‘We still have to work during part of that break period,’ or, ‘we have to start working before the ten minutes are up.’ I didn’t see any evidence of any of that (at p.12).

The Court: That’s your walking time. The net — when you start talking ‘net,’ you are talking the walking time. I didn’t see any evidence of anybody saying, ‘we get a 10- minute break, but during that break, we are actually working, still working,’ you know, ‘in production.’ I didn’t see any evidence to that (at p. 14).

The Court: No matter what, whether they use the bell or don’t use the bell, you know, your case on the production workers is predicated upon this idea that walking time is somehow a violation. I don’t see — one, I don’t think there’s any per se illegality. I don’t see any basis for that argument (at p.16).

So on this particular situation, there would be no violation of the employee’s rights. Make sure the company does not require any work to be done during the break.

www.HRconsulting.network can act as your virtual HR Independent Consultant. Our consulting services include: 1) acting as your virtual Human Resources department, 2) assisting your existing HR department personnel, 3) giving advice to other HR consultants or 4) simply providing outsourcing information to anyone interested in HR matters. And, we are equipped to prepare any documents required. Examples include: termination notices; warnings; counseling reports; progressive discipline procedures; write-ups; employment/confidentiality/noncompete agreements; employee handbooks; responses to employee demands; responses to wage and hour, overtime, rest/meal breaks, retaliation and hostile work environment disputes; memos to management; complaint investigations and reports; separation and severance agreements; settlement and release agreements; responses to sexual harassment claims; responses to discrimination claims; arbitration procedures (preparing a binding arbitration agreement, responses and other paper work, scripts and declarations for testimony, representatives to appear at hearings) and help with language used in your emails and communications with employees. Services can be on a retainer basis, hourly or flat fee. Our HR consultants have 20+ years’ experience in HR consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434 (Ext. 1). Or email our parent company (attention Cliff): Info.NationalLienLaw@gmail.com.

HR Consulting Update: Keeping a Job Open After Returning From ADA Leave

by hrconsulting14

Consider a case in which an employee is taking unpaid ADA leave per direction from his doctor. Because the position must be filled in order to operate the business, it was filled by a floater. The question is what job needs to be offered the disabled employee after returning from ADA leave.

The EEOC and many courts take the position that a company must hold the employee’s job open as a reasonable accommodation while under an ADA leave of absence, unless doing so would create an undue hardship. Thus, if it would cause such a hardship, the person’s position can be replaced by another during the ADA leave. But even if this is the case, upon the employee’s return, there must be a good faith attempt to find a vacant and equivalent position to which he is qualified. In other words, reassigning him to another job.

But there are other HR exceptions to the requirement of offering another job upon return from disability:

  • Absence for a significant amount of time. Most reported court cases deal with a 1 to 2-year period. However, there is a case similar to ours in which only a couple months was considered an undue hardship. For example, in Walton v. Mental Health Association of Southeastern Pennsylvania,168 F3d 661 (3rd Cir. 1999), a 2 ½ month ADA leave was considered excessive and caused undue hardship to the employer. There the employee’s presence was essential and there was fear the program the employee was heading would fail for lack of funding and leadership.

 

  • Erratic and unpredictable leave. This is when the employee frequently starts and stops his or her job. This can be especially difficult from HR consulting standpoint.

 

  • Indefinite leave. This is usually when the employee will not commit and say how long they will be out or even give an indication whether they want to come back or not.

To sum up, there is good and bad news. The good news is the company can hardly operate without having a current operator and it would be an undue hardship to leave this position vacant.  There is a good argument that having the floater take over this position is proper.

The bad news, if you want to describe it that way, is that upon the return of the employee, there has to be in a good faith effort by HR to find some other equivalents job. But he needs the experience or the desire to take another job. For this reason, it is suggested the employee be emailed that his job has been taken over by another through necessity and that upon his return, offering him a couple alternative jobs if he wishes. Then let him make the decision. The email can state:

 

Dear ______________:

Thank you for providing us your doctor’s note you will remain on disability leave through _______________, 2019. As you know, your position was that of ______________. In order to maintain operations and produce product, we need someone performing that position at all times. As result, we have hired an individual to take over that job and it is no longer available.

However, upon your return, and we would be happy to offer you the following positions if you wish: __________________________________________. Please let us know your desires in this regard.

 

www.HRconsulting.network can act as your virtual HR Independent Consultant. Our consulting services include: 1) acting as your virtual Human Resources department, 2) assisting your existing HR department personnel, 3) giving advice to other HR consultants or 4) simply providing outsourcing information to anyone interested in HR matters. And, we are equipped to prepare any documents required. Examples include: termination notices; warnings; counseling reports; progressive discipline procedures; write-ups; employment/confidentiality/noncompete agreements; employee handbooks; responses to employee demands; responses to wage and hour, overtime, rest/meal breaks, retaliation and hostile work environment disputes; memos to management; complaint investigations and reports; separation and severance agreements; settlement and release agreements; responses to sexual harassment claims; responses to discrimination claims; arbitration procedures (preparing a binding arbitration agreement, responses and other paper work, scripts and declarations for testimony, representatives to appear at hearings) and help with language used in your emails and communications with employees. Services can be on a retainer basis, hourly or flat fee. Our HR consultants have 20+ years’ experience in HR consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434 (Ext. 1). Or email our parent company (attention Cliff): Info.NationalLienLaw@gmail.com.