Author: Site Staff

Important—This certificate provides evidence of your prior health coverage. You may need to furnish this certificate if you become eligible under a group health plan that excludes coverage for certain medical conditions you have before your enrollment in the new plan. This certificate may need to be provided if medical advice, diagnosis, care or treatment was recommended or received for the condition within the six-month period prior to your enrollment in the new plan. If you become covered under another group health plan, check with the plan administrator to see if you need to provide this certificate. You may also need this certificate to buy, for yourself or your family, an insurance policy which does not exclude coverage for medical conditions that are present before you enroll.

1. Date of this certificate:

2. Name of group health plan:

3. Name of participant:

4. Identification number of participant:

5. Name of any dependents to whom this certificate applies:

6. Name, address, and telephone number of plan administrator

or issuer responsible for providing this certificate:

7. For further information, call:

8. If the individual(s) identified in line 3 and line 5 has at least 18 months of
creditable coverage (disregarding periods of coverage before a 63-day break),
check here____and skip lines 9 and 10.

9. Date waiting period or affiliation period (if any) began:

10. Date coverage began:

11. Date coverage ended:

12. (Or today’s date if coverage continues as of the date of this certificate:)

Note: Separate certificates will be furnished if information is not identical for the participant and each dependent.

SOURCE: Alexander Hamilton Institute, “Guide to HIPAA,” 1997.

Workforce Extra, November 1998, p. 1.

It could be because an outstanding employee shows up one day with a new purple mohawk and matching nose ring. Or maybe for health-care costs, the company wants to ban employee smoking on and off the job. Or because two high-performing employees end up dating. Sooner or later, HR will have to look at what it can and can’t dictate in employees’ lifestyle choices. Caution: The laws are beginning to favor employee freedom over employer mandates. Jeff Tanenbaum, partner at San Francisco-based employment law firm Littler, Mendelson, Fastiff, Tichy & Mathiason offers guidelines on what is and isn’t legal.

Are there particular areas of lifestyle issues that employers shouldn’t try to govern at all?
I advise my clients that every decision they make should be work-related. If it isn’t work-related, I think an employer is asking for trouble. It’s far more likely that an employer is going to get a lawsuit over a decision based on a personal preference or bias than over a decision that has its roots in a job-related reason. Let’s look at an example: style of dress. Say an employer is making a decision based on style of dress because the business requires employees to have customer contact-it’s a bank with people working as tellers. If there’s an impact on the business because of how people dress, then that’s a good basis on which to create a dress code. If, however, employees don’t have any client contact at all and the employer is creating some form of dress standard out of personal preference for that type of look, you can anticipate more litigation-and perhaps more successful litigation.

What about really nonmainstream looks, like body piercing-does that change the situation?
Recently I’ve had two clients call me with questions about tongue piercings. In one case, it concerned an individual in a customer-service position. And it was a customer who had brought it to the employer’s attention. The customer was somewhat embarrassed about it, but had said [the piercing] just made her É the word she used was “queasy,” to talk to this person. The other case concerned an individual working in a warehouse setting. The employer had noticed the tongue piercing and asked me what to do in that case. My answer in those two cases was different. In the situation in which there’s customer contact, and it may impact the customers, an employer has a greater ability, and a greater need, to take appropriate action in terms of setting an appearance standard. In the warehouse, if it’s not affecting work, there’s less of a need to do so.

If a company requires a lot of customer contact and does want to institute a dress code, should HR track customer reaction to employees’ appearances? Would it make a stronger case if there were actually negative customer reaction?
There’s no doubt in my mind that you have a stronger case if the company can actually document customer concern as opposed to speculating about that concern. However, having said that, there are so many other things that [HR] needs to do, just in terms of running a business, let alone other important employment-law areas, that I tend to think of dress- and appearance-code issues as things that should only be addressed when they become an issue. There are more important things for [HR] to be spending time on.

How can an employer determine an appearance code’s business necessity?
With a dress code, the very first question an employer should ask is, “Is the dress code safety-related?” Sometimes employers limit loose-fitting clothing or dangling jewelry because it may get caught in equipment. The second question is, “Is the dress code job-related?” To the extent that it isn’t, it raises more questions. The third issue an employer should raise is, “Does the dress code or appearance code discriminate on some basis?” For example: A grooming code prohibits men from wearing facial hair. That policy can have an adverse impact on African-Americans because more African-American males than members of other groups have a skin condition that limits their ability to shave. Another question to ask: “Does the dress code reflect some unwanted stereotype of one sort or another?” Consider a restaurant that has a uniform for men and a uniform for women. The uniform for men is a white shirt and black pants. For women, it’s a low-cut blouse and a short skirt. Is that appropriate? Again, it’s going to depend on what court you wind up in. And it depends on what type of business you’re in, as well.

What other areas of lifestyle issues should employers use caution in trying to govern?
Clearly, there’s a greater sensitivity to sexual-orientation issues in this day and age, especially depending on what part of the country you happen to be working in. In some states, and in some localities, sexual orientation is a protected classification, just like race, sex and natural origin. Even in those areas of the country where it’s not a protected classification, I suggest it’s an issue that in almost all cases is unrelated to the working environment, and thus is something that an employer simply shouldn’t be involved with.

What about policies such as not hiring smokers or not allowing employees to smoke-are those legal?
There has been something of a trend in recent [nonfederal] cases in which employers have been allowed to regulate a lifestyle choice by choosing not to hire a smoker. I seriously question whether that sort of trend is going to continue. I think that’s just the politically correct position today. I wouldn’t encourage employers to go down that path. [As for] an absolute ban on employees’ smoking-in some states and in some localities an absolute ban or close to it is required by law, in which case an employer is going to have to follow that law. Where such a law doesn’t exist, I think it would be an error for an employer to voluntarily establish such a complete ban. A better alternative would be to attempt to accommodate both smokers and nonsmokers. Otherwise, one way or the other, you’re going to adversely impact people who can be very good employees.

If there is a no-smoking policy, can an employer fire an employee for smoking outside the workplace?
I truly believe that any time employers take action that isn’t work-related, they’re looking for trouble. If an employer were to fire an employee for smoking away from the workplace, I think that employee would have a very good case, depending on [the locality]. There are some courts that will allow an employer to make that decision. The rationale of the court might be a belief that an employee who smokes has a greater likelihood of increased absenteeism due to colds. However, again, I think those sorts of decisions are just politically correct today. Does that mean that [the courts would] allow an employer to generally terminate an employee who’s more susceptible to colds? I think most courts would say employers can’t do that.

What about a no-office-romance rule? Is that legally enforceable?
State law differs on that. In general, an employer can limit the ability of individuals engaged in a personal relationship from being in a direct reporting line of command. The reason for that is obvious. You don’t want that personal relationship to interfere with work. The good side of a no-office-romance rule is it’s going to be helpful in avoiding sexual-harassment cases, because at least some of those office romances are going to deteriorate, and one party or the other is going to be unhappy about it. The downside to no-office-romance rules is they’re very difficult to enforce and very difficult to enforce equitably. The employer is going to have some people engaged in an office romance while action has been taken against others simply because the employer knows about some and not others. And when HR finds out about an office romance, how does it handle that? Is it always the person with the more important position who gets to keep that position and the other person has to move on? It’s a very awkward situation and a very difficult situation to deal with. These days, one of the places that people meet is the working environment. Employers will never be able to preclude that completely.

How would you suggest approaching this issue, then?
I’d suggest that employers concerned about this issue have a rule that precludes individuals from working in a direct reporting relationship if they’re engaged in a personal relationship. I’d suggest that they not attempt to interfere with personal relationships in any other way. I’d also suggest that employers remind employees these sorts of relationships are to take place away from the office and should not interfere with work, and that if the relationship does interfere with work, that the employer may then engage them in some form of counseling or disciplinary action. It’s important that such relationships not only don’t distract from those employees performing their work, but also don’t encourage any of those [involved] to engage in favoritism.

Is there a guiding principle?
If it’s not work-related, employers shouldn’t go there. Some courts would uphold their actions. But I think there are more important things for employers to be doing.

Workforce, November 1997, Vol. 76, No. 11, pp. 69-72.

Are you allowed to “bank” overtime—saving it up for later use, such as to provide vacation time or something else for employees?

Under the Federal Fair Labor Standards Act and most state wage and hour laws, you cannot bank overtime except in extremely limited circumstances. Employees who are exempt from the overtime law can get “time off” in a sense, but if you treat them as hourly employees for pay and leave purposes, you run the risk that they will be found to be non-exempt (and you would have to pay overtime at the time-and-a-half rate).

 

Source: Epstein, Becker & Green, New York, June 16, 1998.

I had one of my employees work the night shift one night, and then come back to work five hours later to work the day shift the next day. Is that legal?

It may not be. Some states (not all) have laws which require at least an eight-hour break between full-time shifts. In addition, some federal regulations may apply as well, such as those which require a truck driver to take an 8 hour break for sleep in every 24 hour period. Check your local state law or call your local wage and hour division of the state department of labor.

Source: Epstein, Becker & Green, New York, June 16, 1998.

When you terminate an employee, does federal law require you to pay them their unused vacation pay?

The short answer is “no.” Federal law does not require an employer to pay unused vacation time. Most state wage and hour laws permit employers to adopt a policy calling for forfeiture of unused vacation time, but some state laws require payment of unused time. Check with your state labor department for more information.

Source: Epstein, Becker & Green, New York, September 8, 1998.

Discriminating on the basis of age is illegal under the Federal Age Discrimination in Employment Act (ADEA).

Under the law, there are some special limitations on who can sue.

People under forty years old are not protected by age discrimination laws. If an employer refuses to hire somebody because he or she is thirty-nine, and therefore “too young”, that is not illegal. But if it because he or she is forty and “too old”, that is illegal.

Age discrimination has some special aspects that make it different from other types of employment discrimination. A few of these are discussed below.

Golden Handshakes
Sometimes when employers are downsizing, they lay people off by offering “golden handshakes”, which are special packages to employees who agree to take early retirement. This is not age discrimination. However, if it is being done for the purpose of getting rid of older workers just because of their age, and if it can be shown that there is a real discriminatory motive, that is illegal.

Replacing Older Workers
It is illegal to replace a person over 40 with a person under 40, if age is the reason. It is also illegal to replace a person over forty with a younger person who is also forty.

Replacing Higher Earners
It is not illegal to replace people who are making high wages with people who will make less because they have less seniority. However, this usually means replacing older workers with younger ones. If the wage considerations are not the real motivator, and the employer is actually trying to replace older workers with younger ones, that is illegal. Here, the employee must prove that it is the age, not the wages, which is motivating the employer to fire the older workers.

Contact your attorney for more information about the law in your state.

Source: David H. Greenberg, Los Angeles, September 25, 1998.

On September 9, Mitsubishi agreed to pay $3 million to settle a class action lawsuit involving 87 disabled people. According to the U.S. Equal Employment Opportunity Commission, Mitsubishi rejected the 87 candidates after pre-employment medical exams revealed disabilities ranging from hearing loss to diabetes. While these exams are normally legal, the 1992 Americans with Disabilities Act requires employers to make a reasonable effort to accommodate disabled workers.

Last month, the EEOC also filed a class action lawsuit against J.Crew Group, Inc. and one of its subsidiaries for allegedly discriminating against men. This complaint was initiated on behalf of George Mandell of West Haven, CT. According to the lawsuit, Mr. Mandell was told he would not be considered for a customer service job because he is male. This lawsuit alleges a “pattern and practice” of refusing to hire men for management and customer service positions.

While both of these lawsuits involve incidents that occurred during the interview stage of the hiring process, the “pattern and practice” that the lawsuits allege is directly relevant to recruitment advertising. Improper language in a job posting can often contribute to a case as a form of “prima facie” (implied or giving the appearance of) guilt. While an advertisement might not expressly discriminate against certain applicants, it might give that appearance based on interpretation and can serve as evidence in a discrimination lawsuit.

Here’s what you can do to avoid costly mistakes:

• Avoid any references to age, even those that sound benign. How often have you seen an ad describe the ideal candidate as “youthful and energetic”? While one might argue that a person of any age can be described that way, it can be easily be interpreted differently.
• Be sure not to use gender-specific language. Obviously, you want to avoid phrases like “the right man for the job”, but even commonly used words like “repairman” can cause problems. Also, avoid more subtle references to gender, such as in appearance and apparel. (“This job requires that you provide your own tuxedo”, etc.)
• When writing a job description, avoid phrases that preclude people with disabilities. For example, you should never say a job “requires long hours on your feet.” You may not have intended to discriminate against a candidate in a wheelchair, but it still gives that appearance.

Most recruiters know that it is illegal to reject a candidate based on age, gender, and disabilities. In most cases, it is also illegal to discriminate on the basis on nationality. Many business owners feel that when staffing positions that deal with the public, the ideal candidate should be someone the customer can relate to on a personal level. For this reason, if the job is a salesperson in a predominately Chinese community, the employer might prefer Asian candidates and indicate that in advertising. While there are instances when this can be legally defended as a “bona-fide occupational qualification,” this is a quick route to trouble.

Another area that can cause problems is religious discrimination. Some employers consider a “Christian and pro-family environment” to be an attraction and want to advertise this as an advantage over other companies. This could cause problems if Jewish or Muslim applicants feels they were denied employment on that basis.

One easy way to convey a fair and equitable company image is to include equal employment notices on all of your job ads. This is as simple as adding the customary shorthand designation of “EEO/M,F,H,V” at the end of your company biography. One benefit to Internet advertising is you are normally not limited by space. Thus, it wouldn’t hurt to include sentence or two detailing your company’s equal employment policies.

Discrimination is fairly difficult to conclusively prove, but the axiom of “innocent until proven guilty” is not applicable in civil court. If you appear guilty, you will likely be found liable. Most recruiters have a clearly stated company policy against discrimination and harassment and would never consider race, gender, disability, religion or national origin in their hiring decisions. Even so, it is important to be careful of what words you choose when advertising to avoid giving the wrong impression.

SOURCE: Best Recruiter News, September 21, 1998.

Guidelines for Office Relationships:

• Employers should have written policies on dating and family relationships in the workplace to promote uniform treatment of all employees and reduce the likelihood of claims of discrimination or favoritism. Supervisors should hold question-and-answer sessions with employees upon initiation of the policies to avoid any misunderstandings. All new employees should receive the policy upon being hired and should be given the opportunity to ask questions.
• Employers generally cannot discriminate based on marital status, so workplace rules should apply to close relationships between coworkers, whether married or not.
• Employers should require employees who are in a close personal relationship to report the relationship if the employees work together as part of their jobs. Supervisors should treat this information as confidential.
• Employers should generally prohibit employees in a close personal relationship from working in supervisor/subordinate roles. If a transfer or change in responsibility is not feasible, other supervisors should handle or participate in performance reviews of the subordinate employee. It should be clearly stated that the subordinate employee has the option of going to the most senior supervisor to discuss any workplace issue.
• Employers may require that employees in a close personal relationship refrain from public displays of affection or excessive conversation.
• Workplace relationships rules should apply to all employees, even senior executives.
• Guidelines and policies regarding dating and close relationships in the workplace need legal review to ensure compliance with federal, state and local laws.

Source: Michael D. Karpeles, partner and head of the Chicago-based employment law group of Goldberg, Kohn, Bell, Black, Rosenbloom and Moritz, Ltd.

How can you keep track of the race of your job applicants for affirmative action purposes, but abide by the law at the same time?

Employers may legitimately need information about their employees’ or applicants’ race for affirmative action purposes and/or to track applicant flow. One way to obtain racial information and simultaneously guard against discriminatory selection is for employers to use “tear-off sheets” for the identification of an applicant’s race. After the applicant completes the application and the tear-off portion, the employer separates the tear-off sheet from the application and does not use it in the selection process.

Source: U.S. EEOC, Washington, D.C., September 11, 1998.

Are you concerned that a former employee may use your company secrets either for personal gain or to file lawsuits against the company? Employment contracts can help protect you. Here are some of the many benefits of employment contracts.

A defense against claims of wrongful termination.
A contract clause that demonstrates the at-will nature of the employment can help.

Protection of the company’s confidential information.
Make sure you specify in the contract what constitutes confidential information.

Protection of the company against competition from its employees.
These provisions usually require geographical limitations and a specific period of time that the employee must wait before working for a competitor or soliciting your clients/customers.

Lowering the risk of expensive litigation and runaway jury verdicts.
An arbitration clause can provide for quick, less expensive, and confidential (arbitration isn’t in the public record like lawsuits) resolutions.

Source: John M. Myers, David V. Radack & Paul M. Yenerall, Eckert, Seamans, Cherin & Mellott, Pittsburgh, PA, March 17, 1998.