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HR Matters

Greetings!
 

Happy April Everyone!

We hope everyone had a safe and spectacular Spring Break!  We have a ton of information for you today. Check out the rest of the issue and email us with your specific questions regarding HR in your business.

Our Certified HR Business Partners are here to offer your company objective and innovative HR Solutions that improve efficiency, productivity, and the bottom line of your organization.

If you have been searching for an affordable HR Solution that improves productivity and your profit margin contact us today. We are just a phone call away!

Victoria

FLSA Right to Know Proposal - In April 2011, the Right to Know proposed
rulermaking  of the Federal Labor Standard Act ( FLSA) is expected to be released. The proposal covers ascpects including recordkeeping regualtions, as well as disclsoursre to employees about the status as employees or independant contractors.  

Using Layoffs to Manage Poor Performing Employees

With many employers seeing the business need to lay off employees during the current economic situation, it may be tempting for a manager to use it as a way to avoid confronting problem employees. When conducting a formal layoff, however, employers need to follow certain guidelines and be aware of specific state and federal laws.

In general, employers are often better off taking the more appropriately accountable route of employment termination for cause using progressive discipline. In turn, keep the following three points in mind:

1. Eliminate the Position.  A layoff involves eliminating positions and not people. Determine your business-essential positions, and your supporting documentation should demonstrate that the position being eliminated is due to decreased work demands and / or financial reasons. If you want to get rid of a poor performing employee, then getting rid of that job position would likely not be in your best interest since the work still needs to be done.

2. Selection of the Employee. For the eliminated position in question, identify all employees with similar job titles and roles. After reviewing the type of the work that needs to be done, the employees' overall work experience, knowledge, skills, and abilities, pick the least qualified individual. If that individual happens to be the poor performing employee you initially had in mind, then you now would have a more solid basis to end the employment relationship with a layoff.

3. Filling the Position. If an employer has a legitimate business reason to eliminate a position, then there should be no need to bring back that position in the near future. Otherwise, the alleged layoff may be viewed as a veiled termination for cause which can cast questions on the company's true intentions and general integrity if ever challenged. The suggested rule of thumb is to not reopen the position for about a year.

From a strategic perspective, if you are in Management, part of your direct responsibility is to effectively manage employee confrontations. Addressing employee performance problems through corrective action holds employees accountable for their behaviors and their outcomes. You can leverage various strategies to motivate employees to positively change their performance levels as well as to establish proof of your company's good faith efforts to help all employees improve.

Question: I have a small business with 9 employees. Do all labor laws apply to us? What about the major laws, such as FMLA, FLSA, ADA and others? Are there labor laws that apply to all firms?

Answer:  The Uniformed Services Employment and Reemployment Rights Act ("USERRA") applies to all employers regardless of size. Similarly, the Fair Labor Standards Act ("FLSA") does not have any expressed size requirements. In addition, employers with 15 or more employees are subject to the Americans with Disabilities Act ("ADA") and Title VII of the Civil Rights Act of 1991 ("Title VII").

Employers with 20 or more employees are subject to the Age Discrimination in Employment Act ("ADEA"), and employers with 50 or more employees are subject to the Family and Medical Leave Act ("FMLA"). However, the FMLA applies to all public agencies and all public and private schools regardless of size.  

Employers should be mindful that being exempt from federal employment laws on account of size will not automatically mean the employer will also be exempt from the applicable state laws. California's anti-discrimination laws, for example, apply to employers with as few as five employees. Usually if a federal law doesn't apply to your business on account of size, the state version of it likely will. Therefore, knowing your state's employment laws is just as important as knowing the "major" federal ones.

For a lisitng of CA laws that apply to your size of business email mia@mccabeconsultants.com and she will be happy to forward you a list.    

Final ADAA Regulations

On March 24, 2011, the federal Equal Employment Opportunity Commission (EEOC) published its final regulations concerning the Americans with Disabilities Act Amendments Act (ADAAA) that established a broad definition of "disability." The EEOC also provided new interpretive guidance to address concerns posed when the Act which was passed in 2008. Does the ADAAA expand the pool of qualified individuals who can file disability discrimination claims? Yes. Do the final regulations offer some relief for employers from the initially proposed regulations?

Yes. Some highlights of the final regulations include the following:

• ADAAA's Primary Goal. The focus remains whether or not an employer complies with its employment law obligations.
• Major Life Activity Limitation. With the reinstatement of the "condition, manner and duration" factors in determining whether or not an employee is substantially limited in a major life activity (including "working"), an employer may compare such an employee to "most people in the general population."
• Duration. The EEOC suggests that substantial limitations cannot be set in a rigid timeframe. A disability may be considered as one covering a long period (i.e. a few months) or one with "sufficiently severe" impairments covering only a short period (i.e. several days) of time.
• Employer Coverage. The "regarded as" clause of what is considered a disability points to the employer's treatment of the employee versus the employer's perception of the employee's impairment. Minor and transitory claims would not be accepted under this provision.
• Individualized Assessments. Any impairment requires an individualized assessment to determine whether or not it meets the definition of "disability."

Does the new ADAAA still make it easier for employees to file unfair discrimination claims alleging employer perceptions of them as being disabled? Unfortunately, yes. In turn, generally assume that most employees with physical (or mental) impairments are covered under state and federal disability laws. So, make sure to consistently engage in good faith efforts and be able to document your company's interactive process efforts with your affected employees, particularly in case your company is ever questioned or audited.