Tag: The Practical Employer

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COVID-19 is not an excuse for age discrimination

workforce management software; hr tech
Consider these headlines:
While there’s still a lot we don’t know about COVID-19, one of the things we do know for sure is that is much more greatly impacts people age 65 and above.
Indeed, according to the CDC, 80.6 percent of all coronavirus deaths are in that age bracket. These fatality rates might explain why you might want to protect your older workers by forbidding them to come into work or by placing them on leaves absence.
Here’s the thing, however. Employment discrimination laws hate paternalism. While you might be acting from a place of good intentions to protect your older workers from a potentially deadly exposure of COVID-19 by keeping them away from the workplace, that’s not your choice to make. Only the employee can make that choice.
The EEOC confirmed this guidance in an updated FAQ on COVID-19 and antidiscrimination laws it published late last week.

The ADEA would prohibit a covered employer from involuntarily excluding an individual from the workplace based on his or her being 65 or older, even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19.

Unlike the ADA, the ADEA does not include a right to reasonable accommodation for older workers due to age. However, employers are free to provide flexibility to workers age 65 and older; the ADEA does not prohibit this, even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison.

If you force older workers to stay away (even if it’s for their own protection), you are almost certainly committing age discrimination. Their health, their choice. Don’t make it for them.
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President extends PPP loan forgiveness, signs Paycheck Protection Program Flexibility Act of 2020

CARES Act, coronavirus

The Paycheck Protection Program Flexibility Act of 2020, which President Trump signed into law on June 5, makes several key business-friendly changes to the small business loans made under the CARES Act’s Paycheck Protection Program.

Specifically, this Act:

  • Extends the “covered period” borrowers have to use PPP loans and qualify for loan forgiveness from the original eight weeks to the earlier of 24 weeks from loan disbursement or Dec. 31, 2020.
  • Extends until Dec. 31, 2020, the CARES Act’s June 30, 2020, deadline to rehire employees and reverse salary cuts of more than 25 percent.
  • Exempts borrowers from the reduction in loan fordeadline to rehire employees and reverse salary cuts of more than 25 percent. giveness because of a reduction in employee headcount if the borrower is able to document in good faith that from Feb. 15 through Dec. 31, 2020, the borrower: (a) was unable to rehire employees who had been employed on Feb. 15 or hire similarly qualified employees for unfilled positions by December 31, 2020; (b) was unable to return to the same level of business activity at which the borrower was operating pre-Feb. 15 as the result of compliance with requirements, guidelines, standards for sanitation, social distancing, or other COVID-19 employee or customer safety issues.
  • Lowers the threshold for the use of PPP loan funds for payroll purposes from 75 percent to 60 percent.
  • Allows for an agreed-upon extension of PPP loan repayment from two years to five years.
  • Eliminates the CARES Act’s restriction on the deferral of payroll taxes for employers who receive PPP loan forgiveness.
As Suzanne Lucas (aka the Evil HR Lady) points out, this Act’s biggest benefit might be the gift of time it gives to employers to staff up. “Hiring is always a difficult part of running a business, and the terms of the original PPP put pressure on companies to act quickly.” She added, “If you don’t need someone working yet, you can wait until you do need someone in the position.”
Suzanne is correct. Even in the best of circumstances, hiring is time-consuming and difficult.
The current circumstances are far from best, and businesses that took PPP money felt tremendous pressure to hire by June 30 to qualify for loan forgiveness. Employees hired in haste often lead to mistakes. These amendments offer significant relief through the benefit of added time.
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‘I was terminated for refusing to wear a Trump 2020 face mask.’

coronavirus, mask, reopen

Ohio requires that all employees wear face masks or other face coverings as a condition to any business reopening that (subject to a few limited exceptions). The only rules are that the mask cover the employee’s nose, mouth, and chin. There are no other requirements about the nature of the mask or face covering, including its design or style.

One southern Ohio business, The Village Inn restaurant in Farmersville, is testing the mask-requirement waters by requiring its employees to wear “Trump 2020” masks.
Worse, it’s firing employee who refuse.
Or at least that’s what Kris Hauser, a former waitress of the restaurant, claimed happened to her in her viral Facebook post describing her termination.

The owner then approached me again and stated I needed to wear my Trump 2020 mask. I responded and told him I would wear it, but I would wear it inside out (which a majority of employees had been doing already for the days prior).

The owner, Scott, told me “No, you will wear it with Trump 2020 facing out for people to see.”

I told him I would not do this and he said that I needed to leave.

Your first inclination might be to say, “Jon, Ohio, like every other state besides Montana, is an at-will state, meaning that an employer can fire any employee for any reason, good or bad. And just last Thursday you told us that there are only a few states that ban political opinion discrimination, and Ohio isn’t one of them. So while many will feel that Kris Hauser’s termination is morally and ethically reprehensible, I don’t see anything unlawful about it.”
While Ohio is an at-will state, it recognizes several key exceptions to employment-at-will, including a tort claim for wrongful discharge in violation of public policy. What does this mean? I’ll let the Ohio Supreme Court explain:

In order for a plaintiff to succeed on a wrongful-termination-in-violation-of-public-policy claim, a plaintiff must establish four elements: (1) that a clear public policy existed and was manifested either in a state or federal constitution, statute or administrative regulation or in the common law (“the clarity element”), (2) that dismissing employees under circumstances like those involved in the plaintiff’s dismissal would jeopardize the public policy (“the jeopardy element”), (3) the plaintiff’s dismissal was motivated by conduct related to the public policy (“the causation element”), and (4) the employer lacked an overriding legitimate business justification for the dismissal (“the overriding-justification element”).

In other words, if a termination offends a clear public policy of the state, and the employee does not have any other remedy to redress the termination, the employee can sue in tort for the wrongful discharge.
In this case, Ohio has a clear public policy against employers influencing employees’ political opinions—Ohio Revised Code section 3599.05, which criminalizes employers that make expressed or implied threats “intended to influence the political opinions or votes of his or its employees.”
That’s exactly what The Village Inn did in imposing its “Trump 2020” mask requirement under threat of termination. And it’s not too far off the mark from Kunkle v. Q-Mark, Inc. (S.D. Ohio 6/28/13), which refused to dismiss a public policy claim based on section 3599.05, after the employer allegedly threatened employees with termination if President Obama won re-election, and allegedly fired the plaintiff after she stated she voted a “straight Democratic ticket.”
I’ve never been shy about calling out an employer that has wronged an employee. The Village Inn has wronged Kris Hauser. The internet has already spoken. I hope Ms. Hauser finds a lawyer to take her case and the courts have their say as well.
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Is your business ready for the COVID-19 golden age of union organizing?

union

“Among the many lessons we will learn from the COVID-19 pandemic is its demonstration of the importance of union membership for essential workers.

“Of all the injustices exposed by the pandemic, the risks faced by non-union workers have become the most apparent. Non-union workers are being asked to risk their safety with little or no protections of their own.”

— Gary Perinar (executive secretary-treasurer of the Chicago Regional Council of Carpenters), The importance of unions is more obvious than ever during the COVID-19 pandemic, Chicago Sun-Times, Apr. 30, 2020

One of the unexpected byproducts of the COVID-19 pandemic is a corresponding rise in union organizing.
This crisis has magnified attention on key labor union agenda items and talking points such as worker safety and higher pay. Unions have been pressing these issues not only for current members but also more importantly for potential members.
  • The Teamsters is backing Amazon warehouse workers.
  • The UFCW is helping organize Instacart shoppers.
  • The SEIU is funding fast-food activists and Uber/Lyft drivers.
Indeed, according to Richard Berman, the founder of the Center for Union Facts, this union activity is part of a much larger trend:
  • This is the first time since the early 1980s where I sense significant interest by employees in “collective action” and “3rd party representation”.
  • Gallup polling in 2019 shows the 18-34 demographic has a 69% approval of unions. In 2017, 76% of those joining unions were younger than 35.
  • Employees who feel they will be exposed to co-workers or customers who have the virus are communicating on Facebook and other platforms about their jointly held concerns. Union organizers have access to these conversations and are making themselves available to help.
  • Most current HR professionals have no history in dealing with a partial workforce rebellion. This will most likely happen in individual companies or it could be a wider industry movement in a city or region.
That last point might be the one most important to your business. “Most current HR professionals have no history in dealing with a partial workforce rebellion.” What should your business be doing right now to best prepare itself in the event a union starts talking to your employees? The best defense is a good offense. I recommend that employers adopt the T.E.A.M. approach to union avoidance:
Train supervisors.
Educate employees.
Affirm the open door.
Modernize policies.

1. Train supervisors. If a union is organizing, supervisors are likely to be the first people to know. They will also be the people who rank-and-file employees will come to with questions or concerns. Thus, supervisors need to know how to report, monitor and legally respond to union activity.
2. Educate employees. Employees should not be told that the company is anti-union, but why it is anti-union – competitive wages and benefits; a strong commitment to worker safety and health; positive communication between management and employees; a history of peaceful employee/management relations; management’s openness to listen to employees and handle their concerns without an intermediary; and an unwillingness to permit a third-party to tell the company and employees how to do their jobs. Of course, if this is just lip service, you might as well not say it at all.
3. Affirm the open door. Management should routinely round its employees up to learn what is happening within the rank-and-file and what they are thinking about. Management should walk the floor on a daily basis. It should also hold regular meetings with employees, whether in small sessions with HR or large town hall-style meetings. And management’s door should always be open to listen to employees’ concerns, offer feedback and adopt positive change when feasible and practical.
4. Modernize policies. In an ideal world, employee handbooks and other corporate policies should be reviewed and updated annually. I’ve yet to come across a company that does so this frequently. Issues to consider and review? Do you have a written statement on unionization? An open-door policy? An issue resolution procedure? Peer review? An employee bulletin board? An electronic communications policy? Most importantly, do you have a no-solicitation policy? It is the single most important policy to help fight labor unions.

No avoidance program is foolproof. No matter what steps are taken and no matter the quality of employee relations, every company is at some risk for a union organizing campaign. Some, however, are more at risk than others.
All businesses should strive to be an employer of choice for employees and not an employer of opportunity for labor unions. The steps you take before that representation petition ever arrives will help define whether you remain a non-union employer.
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House proposes significant expansions to paid leave under Families First Coronavirus Response Act

warehouse workers, hourly employees
The House of Representatives on May 15 passed the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act, H.R.6800. Among other things, it proposes significant clarifications and expansions to the Emergency Family And Medical Leave and Emergency Paid Sick Leave provisions of the Families First Coronavirus Response Act.
What are these proposed changes?
Emergency Family And Medical Leave
  • Expands emergency FMLA coverage to all employers, not just those with less than 500 employees.
  • Expands the definition of “parent” to include foster parents, adoptive parents, stepparents, parents-in-law, a parent of a domestic partner, and someone who stood in loco parentis to an employee when the employee was a child.
  • Provides emergency FMLA to an employee who is —
    • self-isolating because of the employee’s own COVID-19 diagnosis;
    • obtaining a medical diagnosis or care if the employee is experiencing the symptoms of COVID–19;
    • complying with a recommendation or order by a public official with jurisdiction or a health care provider to self-isolate on the basis that the physical presence of the employee on the job would jeopardize the employee’s health, the health of other employees, or the health of an individual in the household of the employee because of the possible exposure of the employee to COVID–19 or because of the exhibiting of symptoms of COVID–19 by the employee;
    • caring for or assisting a family member (also defined in the amendments) because the family member is self-isolating because of a COVID–19 diagnosis, because the family member is experiencing symptoms of COVID–19 and needs to obtain medical diagnosis or care, or because a public official or health care provider makes a recommendation or order that the presence of the family member in the community would jeopardize the health of other individuals in the community because of the possible exposure of such family member to COVID–19 or exhibiting of symptoms of COVID–19; and
    • caring for a family member who is incapable of self-care because of a mental or physical disability or is a senior citizen, if the place of care for such family member is closed or the direct care provider is unavailable due to COVID–19.
  • Permits an employee to elect, but an employer cannot require, the substitution of paid time off for emergency FMLA.
  • Allows employees to take paid sick leave intermittently or on a reduced work schedule without regard to whether the employee and the employer have an agreement with respect to whether such leave may be taken intermittently or on a reduced work schedule.
  • Prohibits an employer from requiring certification by an employee in support of an emergency FMLA leave to not earlier than five weeks after the date on which the employee takes such leave
  • Extends the sunset date of emergency FMLA from 12/31/2020 until 12/31/2021.
Emergency Paid Sick Leave
  • Clarifies that paid sick leave under the FFCRA must be offered in addition to any paid leave offered by an employer, and prohibits an employer from changing its policies to avoid providing any additional paid leave.
  • Allows employees to take paid sick leave intermittently or on a reduced work schedule without regard to whether the employee and the employer have an agreement with respect to whether such leave may be taken intermittently or on a reduced work schedule.
  • Prohibits an employer from requiring certification by an employee for the need for paid sick leave for leaves less than three consecutive days of paid sick time, and further prohibits an employer from requiring such certification earlier than seven workdays after an employee returns to work.
  • Provides for a new allotment of 80 hours of paid sick leave if an employee changes employers.
  • Requires restoration of an employee to the same or equivalent position at the end of a period of paid sick leave.
  • Extends the sunset date of paid sick leave from 12/31/2020 until 12/31/2021.
Sen. Mitch McConnell has already said that this bill is DOA in the Senate in its current form but it’s unclear if this statement specifically referenced the FFCRA amendments. Stay tuned to see if any of these proposed amendments gain any traction in the Senate. I’ll keep everyone updated as this bill progresses.
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You have every right to be a 𝘤𝘰𝘷𝘪𝘥𝘪𝘰𝘵, and we have every right to fire you for it

termination, covidiot, workplace violence, gun, weapon
“Covidiot: A person who acts like an irresponsible idiot during the COVID-19 pandemic, ignoring common sense, decency, science, and professional advice leading to the further spread of the virus and needless deaths of thousands.”
A Dallas law firm has terminated the employment of a document services manager after it discovered his threatening, offensive, racist and very public Facebook post taking issue with mandatory face masks.
“No more masks. Any business that tells me to put on a mask (Whole Foods on Lomo Alto) in Dallas will get told to kiss my Corona ass and will lose my business forever. It’s time to stop this BULLSHIT. Do I have to show the lame security guard outside of a ghetto store my CV19 test results? I will show him my Glock 21 shooting range results. With Hornady hollow points. Pricey ammo, but worth it in this situation. They have reached the limit. I have more power than they do…..they just don’t know it yet.”
Bain’s post, which any reasonable person would interpret as just plain wrong, resulted in his termination. As my friend Eric Meyer pointed out yesterday (borrowing from a comment on the Facebook page of Bain’s former employer): “Freedom of speech doesn’t mean freedom from consequences for that speech.”
In other words, you have the right to your opinion, no matter how offensive. But once you share that opinion publicly, we have the right to fire you for it … coronavirus or no coronavirus.
COVID-19 might have temporarily upended our world, but just cause for termination is still just cause for termination. So please don’t be a covidiot. Employers don’t like firing people under the best of circumstances. We especially don’t like doing so now. But we will if we have to.
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One state is encouraging employers to report AWOL employees to unemployment agency

technology; workplace communications; internal communications

Last week I asked how employers could encourage employees to return to work when unemployment benefits pay them more than their jobs.

One suggestion I offered was to hit employees with the stick of unemployment-benefit termination.

Employees who refuse return-to-work offers might be disqualified from collecting further unemployment benefits (unless their refusal is because of coronavirus), and you can advise employees that refuse a recall that you will be asking the state to terminate their benefits.

Late last week, the state of Ohio provided a clear reminder to employers of the validity of this threat.

According to cleveland.com, “The Ohio Department of Job and Family Services has set up a webpage – and sent emails to employers Friday night – telling them to report workers who don’t return so they can get reevaluated and potentially lose unemployment benefits.” That email says in part:

Ohio law prohibits individuals from receiving unemployment benefits if they refuse to accept offers of suitable work, or quit work, without good cause. …

If you have employees who refuse to return to work or quit work, it’s important that you let the Ohio Department of Job and Family Services (ODJFS) know so we can make accurate eligibility determinations.

Employers are then encouraged to visit https://secure.jfs.ohio.gov/covid-19-fraud/ to report their AWOL employees.

As for employees who refuse to return to work over safety concerns? ODJFS says that if a reasonable person would not feel safe returning to work to that employer, an AWOL employee still might qualify for benefits.

Non-essential businesses have begun to reopen in Ohio. Employers, you need to be 100 percent transparent about the steps you are taking and measures you are implementing to help keep your employees as safe as possible from contracting COVID-19 at work. Otherwise, you risk a mass exodus, and employees might opt for unemployment over the jobs you offer them.

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Ohio governor’s explanation why masks are only recommended falls woefully short

essential workers; workers' compensation, mask

I tuned in April 28 to Ohio Gov. DeWine’s briefing to learn why Ohio had changed its stance on face masks and coverings from “mandatory” to “recommended best practice.” His explanation falls way short.

The governor offered two explanations, both based on feedback he received from constituents in the hours after his original pronouncement.

  1. Masks are offensive to some, who don’t like the government telling them what to do.
  2. Masks can be problematic for people with disabilities.
The answer to point No. 2 is as easy as three letters: A-D-A. The ADA allows employers to modify work rules as a reasonable accommodation for an employee’s disability. If a mask or face covering causes an issue for someone with a disability, the solution is to offer that individual an accommodation.
Maybe you segregate the employee so he or she does not come into contact with anyone else. Maybe you permit that employee to work from home. Maybe you grant a leave of absence until the risk abates. The point is that the employer and the employee have options other than the state modifying a rule that puts everyone at a greater risk of infection.
Which brings me to point No. 1. The governor said, “I understand some people may find that offensive, the government telling you what to.” Yet, if I’m choosing between offending some people and safety, I’m choosing safety 10 times out of 10. As I pointed out yesterday, everyone wearing masks or facial coverings reduces the risk of transmissions and infection down to a virtual zero.

Models show that if 80 percent of people wear masks that are 60 percent effective, easily achievable with cloth, we can get to an effective R0 of less than one. That’s enough to halt the spread of the disease.

One of the things we absolutely must do to combat the spread of COVID-19 is to wear masks or other facial coverings when at work or in public. While there are studies that question the ability of masks to protect people from the virus, we are not wearing masks to protect ourselves from catching COVID-19.

We are wearing them to protect others from us spreading COVID-19 to them. Thus, if everyone covers their face in public, we will protect everyone by limiting the spread of this virus. It’s just that simple, not difficult to comprehend, and not an affront to personal liberty.

So here’s my bottom line. Anyone who refuses to wear a mask in public because it’s offensive is selfish, thoughtless and doesn’t give a damn about the well being of their fellow humans, period.

I’ll be continuing to wear my mask when around others in public. I sincerely hope that for the well being of all others, you will too.

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A coronavirus DOL settlement of a Families First Coronavirus Response Act case

employment law, labor law, overtime records

It did not take long for the Department of Labor to announce its first-ever settlement of a claimed violation of the Families First Coronavirus Response Act.

The DOL’s press release provides the details:

Bear Creek Electrical – an electrical company based in Tucson, Arizona – will pay one employee $1,600 for refusing to provide him sick leave under the newly passed Emergency Paid Sick Leave Act after health care providers ordered him to self-quarantine with potential coronavirus symptoms.
WHD investigators found that Bear Creek Electrical failed to pay the employee for what qualified as paid sick leave covering the hours he spent at home after the company received documentation of his doctor’s instructions to self-quarantine. The employer will pay the employee’s full wages of $20 an hour for 80 hours of leave.… Bear Creek Electrical also agreed to future compliance with the FFCRA, which went into effect on April 1, 2020.
“This case should serve as a signal to others that the U.S. Department of Labor is working to protect employee rights during the coronavirus pandemic,” said Wage and Hour District Director Eric Murray in Phoenix, Arizona.

You’ve been warned. If you are not providing your employees the paid coronavirus leave to which they are entitled, the DOL is watching.

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Your employees walk out in protest over coronavirus-related working conditions. Now what?

COVID-19, coronavirus, public health crisis
This week, Amazon workers are protesting what they view as unsafe working conditions. 300 workers from 50 facilities will skip their scheduled shift to protest Amazon’s treatment of warehouse workers.

According to United for Respect, the worker rights group organizing the protest, says that the Amazon employees are hoping to accomplish the following.

  • When an employee tests positive for coronavirus, the immediate notification of all employees at the facility, and the closure of the facility for two weeks with full pay.
  • Regular and deep cleaning of all facilities, including after a positive test.
  • The provision of proper safety equipment to all employees, with training on effective use.
  • 14 days of paid sick leave for anyone with symptoms and 12 weeks of emergency paid family leave for employees to care for loved ones who get sick.
  • Healthcare for all Amazon employees.
  • Hazard pay, including time-and-a-half during the crisis and childcare pay and subsidies.

Amazon employees are not unionized, and this isn’t a strike. It’s a short-term walkout of non-unionized employees. Just because these employees aren’t unionized, however, doesn’t mean that their walkout isn’t protected. In fact, it’s very protected. The National Labor Relations Act covers employees who engage in protected concerted activity—meaning that employees have the right to talk between and among themselves about terms and conditions of employment, including walking off the job in protest.

Also read: What a business operating in the time of coronavirus cannot look like

An employer’s first instinct might be to fire the instigators (as Amazon is accused of doing). That would be a big mistake. The NLRA protects employees from retaliation after engaging in protected concerted activity. It’s also just a really bad look, especially now.

Instead, I’d view these protests as a wake-up call.

For starters, we know that one or more labor unions are in employees’ ears helping them organize their walk-outs. A mass walk-out could easily lead to a mass walk-in to the nearest NLRB field office to file an election petition. Don’t offer the union more ammo by firing the organizers.

Secondly, this type of protest offers employers an amazing opportunity to heal some wounds. Amazon likely won’t offer these employees each item on their laundry list of demands, but it should consider all of them and offer those that can be accommodated.

These employees just want to feel safe and know that their employer takes their concerns seriously. At the end of the day this is not that big of an ask, and treating it as such only makes the situation worse.

Also read: The rise of the sick, distressed and oppressed worker

Also read: The role of businesses in addressing a public health crisis