HR Solutions Weblog

Employment law is a constantly changing field and your policies and practices must stay current to be compliant with those legal changes. Although a complete HR Audit is critical to all of your polices and practices, many lawsuits can be traced to four key practices in employment areas:

• Hiring
  • Does your organization have solid and compliant job descriptions?
  • Do you use up-to-date job applications?
  • Do you ensure all applicants fill out an application?
• Employee Evaluations
  • Does your organization have and follow a written schedule for performance evaluations?
  • Do performance evaluators receive proper training?
  • Does your organization ensure performance evaluation changes have proper documentation?
• Employee Discipline
  • As part of your Employee Handbook, is there a standardized disciplinary system?   What do you do to ensure it is followed consistently?
  • Prior to an employee discipline action, how do you ensure the violation has been properly investigated?
• Terminations
  • Has the termination decision been compared to other terminations?
  • Can you assure the termination is not a retaliation?
• Are you comfortable that you have proper termination documentation?

The best way to avoid potential employee lawsuits is to conduct a regular audit – HR Solutions, suggests at least every 2 years an audit of all of your policies and practices should be conducted. 

Give us a call at 443-356-4352 if you are concerned that you might need a Human Resource Audit.
  

What Can An Outside Human Resources Company Do For My Organization?

We receive so many calls and emails from small business owners tentatively questioning what we can do for them.  HR Solutions LLC is a full-level service resource.  Here are just a few examples of how we can assist your business with employee issues:

• We like to start with a Human Resource Audit.   We do a complete review of your compliancy for proper HR law posters, handbooks/policies, job descriptions for FLSA, EEO, FMLA, ADD Compliancy, Employee Training and how you keep your employee files.
• We can help you develop a handbook that is specific to your organization’s needs.
• HR Solutions, LLC can assist you with properly handling employee performance issues to ensure you are proceeding in a non-litigative manner.
• Benefits Administration – to take the administrative aspect off owner’s desk.
• Recruiting and Retention – How to ensure you are hiring the right fit from the beginning.
• Employee and Management Coaching/Training.

The above is a small sampling of what we can perform for your organization.   We can perform any of these a full outsourcing or can be a simple phone call resource – you decide on the level of assistance you need.  There is no level of assistance too small or too large for us to help.

Are you questioning your compliancy for Federal Laws?  Are you hesitant to call for fear of what you don’t know?  Don’t be!  We make this process easy, friendly and on a personal level to benefit you and your organization.

Give us a call and stop wondering!

There is not a day that goes by where we are not answering the age-old question:  Is this employee Exempt or Non-Exempt?  and why?  There is no exact science or matrix you can follow to answer this question.  There are some critical points:

• First and foremost, you must make the decision based on the responsibilities for the position and NOT the person in the job.

• Decision for Exempt or Non-Exempt must be based on level of responsibility and the impact those decisions have on the company.

• Regularly supervises two or more other employees may be Exempt
• Has management as the primary duty of the position.
• Has some genuine input into the job status of other employees (such as hiring, firing, promotions, or assignments).

These are just a few of the critieria to consider. 

It is illegal to classify a position to avoid paying overtime!

We get this question often.  There are too many reasons to list here, but a few of the critical ones:

• Job Descriptions are the perfect way to ensure you are managing,  hiring, promoting and terminating your employees.  They describe the duties, responsibilities, required qualifications, physical requirement and working conditions of a particular job.
• Job descriptions also ensure you are hiring employees fairly and consistently based on experience and key competencies/skills needed.  This is critical not only for ensuring compliance, but also for when you are conducting performance reviews or promoting employees into new positions.
• Finally, they are important because they send the message to your employees that you want to be fair and consistent about their employment with your organization.

Some, and I do emphasize some, of the criteria to classify an employee as Exempt:

·      Must be paid at least $455 per week

·      Primary duty must be to perform work requiring advanced knowledge, also defined as work that is “predominantely intellectual in character and which includes work requiring the consistent exercise of discretion and judgment

·      The advanced knowledge must be in a field of science or learning, AND it must be “customarily acquired by a prolonged course of specialized intellectual instruction” typically at the college level.

Again, the criteria above are just a starting point and it is always better to err on the side that benefits the employee, i.e. classifying them as non-exempt where they would be eligible for overtime.  Do you want to ensure your employees are properly classified to meet FLSA exempt and non-exempt status, contact HRSolutions, LLC for an audit of your jobs?

RELIGIOUS ACCOMMODATION IN THE WORKPLACE – HOW MUCH AND WHEN?

How should an employer respond when a religious accommodation is requested?   HR  Solutions, LLC suggests you discuss the employee's specific bona-fide  religious needs and accommodations options with them.  We also believe it is critical to completely understand the specific religious requirements of the employee’s religion – all easy information to access via internet or a phone call.  However, employees do not have to justify or prove their religious belief to the employer; but the employer is required to accommodate – subject to undue hardship – any of the employee’s sincerely held religious beliefs. When considering potential accommodations, you should evaluate any impact an accommodation would have on your company and determine whether it fully eliminates the conflict.   Let’s review the law:

Title VII of the Civil Rights Act of l964 (“Title VII”) prohibits employers from discriminating against individuals because of their religion in hiring, firing, and other terms and conditions of employment. Title VII also requires employers to reasonably accommodate the religious practices of an employee or prospective employee, unless to do so would create an undue hardship upon the employer.  This means that:

• Employers may not treat employees more or less favorably because of their religion.
• Employees cannot be required to participate—or refrain from participating—in a religious activity as a condition of employment.
• Employers must reasonably accommodate employees’ bona-fide held religious practices unless doing so would impose an undue hardship on the employer.
• Employers must take steps to prevent religious harassment of their employees.

But the burden to accommodate isn't always entirely on the employer!  A good-faith attempt to meet their religious requirements must be made by the employee within their religious guidelines first.  Note that employers aren't required to give the employee his preferred accommodation just to meet religious needs.  Often, a special request for religious accommodation is too burdensome for a small business and a reasonable “half-way” request may be all the company is capable of giving.  It is then the employee’s responsibility to be flexible as possible in a mutual good faith negotiation with the employer.  

Religious accommodations for work schedules
The most common religious accommodation conflicts occur over work schedules.  You may need to deviate from your standard scheduling practices slightly;  however, I wouldn’t do so until you have verified that this is a true bona-fide requirement of the religion.

The U.S. Supreme Court has ruled that you need not violate a valid labor contract, force other employees to work undesirable shifts, or hire substitute or replacement workers if that accommodation would require more than a minimal monetary cost.

Scenario:  An employee has been with you for 2 years.  In the past their work has just been so-so, but you felt it was better to have a body in the role than to start recruiting.  Lately, however, the employee’s work habits have steadily gotten worse and you want to just fire them.  You call us for assistance in this termination, here are the questions we will ask:

• What does the employee’s most recent performance review state about quality?
• What documentation do you have of subsequent conversations about performance?
• Are there employees whose performance is the same or worse than this employee?

If you do not have documentation on the above bullet points it is critical that you start to gather this data.   Documentation is the name of the game, and that is written documentation.  Even if you talk to an employee verbally you should have documentation of that conversation.  Systematically documenting poor performance, along with a solid policy on your disciplinary structure provides a solid and legal foundation for terminating a long-standing employee.

At least several times a week, we are asked questions about employees' breaks.  Every state is different, but in Maryland, there is no law that states you must give employees a break!  Yes, I said, “there is no law requiring breaks in Maryland.”  An employer who chooses to provide a break, however, does not have to pay wages for lunch periods or other breaks in excess of 20 minutes where the employee is free to leave the worksite (or workstation if leaving the workplace is physically impractical), in fact takes their lunch or break (whether freely choosing to leave or remain at the worksite), and the employee does not actually perform work.

If employees are told their pay will be reduced each day by one-half hour for lunch, and they are not free to take this lunch period without an expectation or reasonable understanding that they must work or be on hand to work, they must be paid for the time. A "reasonable understanding" that they must work or be on hand to work is a condition in which it is generally known, or the employee reasonably believes, that failure to perform work (or be available "on hand" to perform work) during their break will result in some negative effect on employment.

Consistency is the number one priority in managing your Human Resource issues!   We do strongly believe in solid employee handbooks for a reason….they are the number one foundation behind ensuring you are consistent in your HR Practices.

Here is a great example of why consistency is so important:  Consider a small business owner (less than 50 employees required for FMLA).  Employee #1, a 31-year-old white male that has been with the company for 9 months, Owner grants 12 weeks of FMLA so employee can buy a house and be home with his new baby.  Employee #2, a 63 year old female, has been with the company for 9 years puts in a two-week-in-advance request for a particular day off and is turned down by the owner because “we are too busy.”  When Employee #2 complained to the owner, we were called. 

Those of you who are our clients know what our first question was:  “What does your handbook say?”  In this case, since we wrote the handbook, I knew for a fact that this company’s policy stated:  PTO would be granted with two weeks advanced notice.  I also knew there was no policy for FMLA, as government regulations require 50 or more employees and I knew we had written a policy stating this company did not allow unpaid leaves of absence.  This employer has not set a precedent for any future unpaid personal leaves, despite what the company handbook states.  In other words, inconsistency in this case has potentially left the employer vulnerable to any employee claims that they may have been treated unfairly.

The lesson?  Being consistent with written HR policies (or at the very least, from situation to situation) will help protect your company, and help your employees know what is expected of them at all times.

Recently we had a 40-employee client where a supervisor knew he had an employee that was bullying another employee.  The supervisor, rather than bringing it to the Manager’s attention or to us, thought he could handle it on his own by coaching the bully rather than protecting the employee being bullied.  By the time this came to someone’s attention, the victim employee had quit, was seeking legal damages and the company was negligent.  

This was a true form of harassment and should have been dealt with swiftly and specifically after the first incident. 

Questions that should have immediately been asked:

• How did the supervisor know? 
• Did he witness the harassment on a regular basis? 
• Did the victim bring it to the Supervisor’s attention? 
• Did all employees know if they brought an harassment issue to a supervisor and felt it was not resolved, they had recourse through another avenue? 
• Was there harassment training on a regular basis?

Are you comfortable identifying harassment issues?  Do you have questions that need answers for your business on all forms of harassment?  April 22, 2010 our monthly live Webinar will be on Harassment. Please join us.