Category: Archive

Issue: Your employee injured his back while on the job. He took five days of workers’ compensation leave but did not return on his scheduled return date. In addition, he neither called nor otherwise informed your company of his whereabouts. One week after his scheduled date of return, your office received a doctor’s note stating that the employee would be off work indefinitely.

Approximately six weeks later the employee received a medical released to return to work without restrictions, but once again, he did not return to work on his scheduled return date. Three weeks after his second scheduled return date, the employee called, stating that he would know his medical status within the next few days.

During this time, your office received a copy of its own leave form from the employee’s workers’ compensation attorney, but the form had the second return date crossed off and a new return date written in its place. You then sent a certified letter to the employee informing him that he did not have approval from a medical doctor to change the return date.

In your letter you specified the date that the employee was expected to return to work, and although the employee reported to work on that day, he failed to report for work thereafter. You subsequently terminated the employee; will that termination be upheld?

Answer: Yes; just cause supports the termination here. There are seven standards traditionally applied by labor arbitrators in discipline and termination cases. An answer of “no” to any question often means that an employer does not have just cause to terminate or discipline an employee. Consequently employers need to ask themselves the following questions before imposing any disciplinary, especially one that results in termination:

1. Whether the employer gave the employee forewarning or foreknowledge of the possible or probable disciplinary consequences of the employee’s conduct?


2. Whether the employer’s rule or managerial order reasonably related to (a) the orderly, efficient, and safe operation of the employer’s business, and (b) the performance that the employer might properly expect from employees?


3. Whether the employer, before disciplining the employee, made an effort to discover if the employee did in fact violate or disobey a rule or order of management?


4. Whether the employer’s investigation was conducted fairly and objectively?


5. Whether the employer obtained substantial evidence or proof that the employee was guilty as charged?


6. Whether the employer applied its rules, orders, and penalties evenhandedly to all employees?


7. Whether the degree of discipline administered was reasonably related to (a) the seriousness of the employee’s proven offense and (b) the record of the employee’s service to the employer?

Here the employee’s discharge was warranted by just cause since the evidence clearly established that he violated a work rule by refusing to come to work in spite of a medical release. In addition, the employee had been made aware of the employer’s work rules and the potential disciplinary measures.

The employer had a right to expect its employees to work when they were scheduled to work, and had conducted its investigation in a fair and objective manner. Finally, the discipline imposed had been applied even handedly and was reasonably related to the proven offense.

Cite: City of Pella, Electrical Division and International Brotherhood of Teamsters, Local #147. 99-2 ARB 3238. Rex H. Wiant.

SOURCE: CCH Incorporated is a leading provider of information and software for human resources, legal, accounting, health-care and small-business professionals. CCH offers human resource management, payroll, employment, benefits, and worker-safety products and publications in print, CD, online and via the Internet. For more information and other updates on the latest HR news, check our Web site at http://hr.cch.com.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.

Issue: Your organization has just hired a part-time executive assistant, and you need to classify the job as exempt or nonexempt from the requirements of the Fair Labor Standards Act (FLSA). To qualify for the FLSA’s administrative exemption, the regulations state that the employee must receive a minimum salary of $155 a week (under the long test) or $250 a week (under the short test).

The salary for this position has been set at $7.50 per hour and the employee will be working 20 hours per week, totaling $150 per week. But, since this employee will only be working part-time, can the minimum salary requirements be prorated (i.e., divided in half) to account for the reduced hours of work?

Answer: Unfortunately, the regulations do not distinguish between full-time and part-time employees. Absent such a distinction, and based on the regulation’s mandate that salaried employees “must” be paid their full salaries in any given workweek “without regard to the number of days or hours worked,” the salary requirements may not be reduced.

Cite: 29 CFR §541.2; 29 CFR §541.201 through .215; and 29 CFR §541.602. Wage & Hour Opinion Letter No. 2022, February 25, 1997, 99-02 CCH WH 32,843.

SOURCE: CCH Incorporated is a leading provider of information and software for human resources, legal, accounting, health-care and small-business professionals. CCH offers human resource management, payroll, employment, benefits, and worker-safety products and publications in print, CD, online and via the Internet. For more information and other updates on the latest HR news, check our Web site at http://hr.cch.com.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.

While searching for ways to boost employee productivity, have you considered what your employees are eating for lunch? In these days of creative benefits, companies are replacing their drab old cafeteria settings with better décor, and replacing their meatloaf with restaurant-quality food.

“The biggest change over the last 3-5 years is the facilities themselves—the size of them, the scope of them, the expertise behind the counter, and the amazingly wide variety of menus,” says Kevin VanderVoort, who as CEO of Windsor, Connecticut-based supplier TruFresh, is benefiting from the trend.

VanderVoort says the benefits from having appealing meal options onsite include:

• Employees will eat onsite more often, which eliminates driving around searching for a place to eat.

• Employees can spend more time enjoying lunch without spending more company time offsite.

• With the stress, expense and extra time of going out to eat eliminated, employees can focus and be more productive.

SOURCE: Kevin VanderVoort of TruFresh, Windsor, Connecticut.

As the scope of EAPs continues to broaden, it’s critical to determine if the programs are doing what they were intended to do. The effectiveness of EAPs can be evaluated on a variety of fronts. The specific aspects of care and services that should be monitored include:

• Access, availability and responsiveness of counselors:
  How timely is the telephone access to case managers? How quickly are appointments scheduled for emergent clients? For routine affiliate appointments? What is the proximity between the client customer location and the counselor/affiliate’s office? To assure prompt access to EAP services, the timeliness of counselors’ response to clients’ initial request for assistance is evaluated.
  
  The timeliness of emergent and routine appointments is also monitored to assure the availability of client appointments. Access and availability are further determined by the number of counselor offices in proximity to the company’s locations.

• Types of clinical services being sought:
  What is the number and type of the high-risk cases such as threats of suicide, homicide, and aggressive workplace behaviors? How many substance abuse cases are being treated? What is the timeliness of aftercare follow-up on substance abuse cases? What is the number of type of critical incidents and the rate of response for these requests? To assure the quality of care provided, companies need to determine how many clinical audits are conducted each year.

• Program and company satisfaction:
  To evaluate client satisfaction and efficiency of client care and services, companies need to determine if their employees and managers are satisfied with the EAP services provided. Client, training, and account management surveys are used to determine the satisfaction with and effectiveness of EAP services. To further assess the level of satisfaction, the number of and timely response to complaints is also monitored.

• Utilization rates:
  To determine annual usage—including over and under utilization—companies need to know how many employees and family members are using the service and the demographics of the people using the EAP. What is the age, gender, relationship to employee, job category, and knowledge of EAP?
  
  To determine if the EAP is being under or over utilized, the number of employees and family members accessing the service is monitored. This also includes an evaluation of the demographics of the people using the program, as well as the types of problems assessed by counselors.

SOURCE: VMC Behavioral Healthcare Services, Chicago, 847/625-3521.

DearWorkforce:

We’re thinking ofmandating direct deposit of paychecks. Is this OK?
(Ginny GordonGriffiths, HR Manager, Centryco, Burlington, NJ).

I note that your messagewas sent from New Jersey. The statute relating to direct deposit of wages forNew Jersey reads as follows: Direct deposit of an employee’s wages into theemployee’s account in a financial institution is permitted with the employee’sconsent (N.J. Rev.Stat., §34:11-4.2a).

In addition, arepresentative at the department of labor in New Jersey confirmed in atelephone conversation that employers in New Jersey cannot mandate directdeposit.

Most states have similarstatutes on file. Therefore, to ensure compliance with state regulations, itwould be advisable to consult with the department of labor in the appropriatestate or with an attorney for an interpretation of local labor laws.

SOURCE: Ceridian Employer Services, Minneapolis, December 1999.

E-mailyour Dear Workforce questions toOnline Editor Todd Raphael at raphaelt@workforceonline.com,along with your name, title, organization and location. Unless you stateotherwise, your identifying info may be used on Workforce.com and in Workforcemagazine.

Issue: After all that has been said about the prohibitions on discrimination on the basis of sex, religion, national origin, or age, it may come as a surprise to learn that federal law specifically permits the use of these characteristics as qualifications for some jobs. As an HR professional, what do you need to know about the bona fide occupational qualification (BFOQ) exception to federal employment discrimination laws?

Answer: Title VII of the Civil Rights Act of 1964 provides that employment decisions may be made on the basis of sex, religion, or national origin (but not race or color) if the sex, religion, or national origin is a BFOQ reasonably necessary to the normal operation of the business. The Age Discrimination in Employment Act of 1967 contains a similar provision for the BFOQ exception in regard to age.

The availability of a BFOQ exception is predicated on two conditions: (1) A particular religion, sex, national origin or age must be an actual qualification for performing the job; and (2) the requirement must be necessary to the normal operation of the employer’s business. The same exception is allowed for job notices and advertisements, where the position at issue requires a worker of a particular religion, sex, national origin or age. The availability of a claimed BFOQ exception is determined on a case-by-case basis.

HR professionals should keep in mind the following points from the Equal Employment Opportunity Commission (EEOC) regarding the BFOQ:

1. There is no BFOQ for race or color.
2. The BFOQ exception has been narrowly construed. The employer must prove that only individuals of one sex, national origin, religion or age group can perform the duties of the job in a safe and efficient manner, and that the essence of the business would be undermined by not hiring exclusively members of a given class.
3. Customer preferences and stereotypic notions concerning the capabilities of persons of a particular sex, religion, national origin or age do not warrant application of this exception.

SOURCES: “Employer EEO Responsibilities: Preventing Discrimination in the Workplace: The Law and EEOC Procedures” by the United States Equal Employment Opportunity Commission Technical Assistance Program. May 1999 (Revised); and “Age Discrimination: Employment Discrimination Prohibited by The Age Discrimination in Employment Act of 1967, as Amended” by the United States Equal Employment Opportunity Commission Technical Assistance Program. May 1999 (Revised).

SOURCE: CCH Incorporated is a leading provider of information and software for human resources, legal, accounting, health-care and small-business professionals. CCH offers human resource management, payroll, employment, benefits, and worker-safety products and publications in print, CD, online and via the Internet. For more information and other updates on the latest HR news, check our Web site at http://hr.cch.com.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.

Issue: As the HR manager of a manufacturing plant, one of your duties is to maintain the OSHA 200 Log and Summary of all recordable injuries and illnesses for your establishment. According to OSHA’s “Recordkeeping Guidelines for Occupational Injuries and Illnesses,” cases involving back disorders are to be classified as injuries. You would prefer to make a case-by-case determination whether a given back case is an injury or illness for recordkeeping purposes, based on specific facts. Would this practice be an OSHA violation?

Answer: Many years ago, the Bureau of Labor Statistics (BLS) determined that “because back cases are usually triggered by an instantaneous event,” employers should record all back cases as injuries, regardless of the particular facts of the case (“Recordkeeping Guidelines,” page 38, Q&A D-4). The BLS made this determination, in part, “to keep recordkeeping determinations as simple and equitable as possible.” OSHA has followed this interpretation in subsequent opinion letters.

Record all back cases as injuries until regs revised.
OSHA is in the process of revising its recordkeeping regulations (29 CFR Part 1904), and the issue concerning the recording of back injuries is one of many that OSHA is considering for revision. However, in order to maintain the consistency of the data currently kept using the existing regulations, employers should comply with the current regulations and interpretations until the revision of the recordkeeping system becomes effective. The current system provides nationwide consistency on the OSHA No. 200 and 101 recordkeeping forms and the BLS Survey of Occupational Injury. Therefore, until the regulations are revised, employers should record all back cases as injuries.

Citation not likely.
For the reasons explained above, classification of a back case as an illness rather than an injury is a violation of the regulations as interpreted by the “Recordkeeping Guidelines.”

It’s impossible to generalize because the assessment of a penalty is dependent on the specific facts presented. But if an employer were to record a back case erroneously as an illness, and that were the only infraction at issue, it seems likely that such an error would not “materially impair the understandability of the nature of the hazards, injuries and illnesses in the workplace.” The employer simply would be “provided information on maintaining the records … accurately….” No citation would be issued, but the employer would be expected to correct the records.

Case-by-case determination.
OSHA might issue a citation for such an exposure if all the necessary elements of a general duty clause violation were found to be present in a particular work situation. The elements are:

• The hazard could result in serious injury.

• Sufficient industry or employer knowledge of the hazard was present.

• The employer was aware that employees were exposed to the hazard.

This hazard isn’t addressed by any specific OSHA standard or by the applicable industry consensus standard (ANSI A92.2). Therefore, determining whether there is sufficient employer knowledge present to justify a citation for this hazard would necessarily be based on information, obtained during an OSHA inspection, specific to the particular employer and work situation. Consequently, the question of whether OSHA would issue a citation for this hazard must be decided on a case-by-case basis.

Cite: OSHA Standards Interpretation and Compliance Letter, “Employers Should Record All Back Cases as Injuries,” October 8, 1999.

SOURCE: CCH Incorporated is a leading provider of information and software for human resources, legal, accounting, health-care and small-business professionals. CCH offers human resource management, payroll, employment, benefits, and worker-safety products and publications in print, CD, online and via the Internet. For more information and other updates on the latest HR news, check our Web site at http://hr.cch.com.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.