Employee Relations

Retaliatory Firing: Don’t Fire Whistleblowers, No Ifs, Ands, or Buts

Wednesday, April 24th, 2013

Employees have a right to report alleged non-compliance to federal and state agencies without fear of retaliatory firing or demotion- no ifs, ands, or buts. A violation of an employee’s protected conduct of reporting potentially illegal or dangerous circumstances, the Department of Labor has made it very clear that retaliatory firing will not be tolerated.

A historical case of retaliatory firing landed one company with a $110,000 back wage payment, as well as fines imposed by OSHA, After an employee reported mechanical issues with his truck and was fired the next day, United Auto Recovery was required to rehire the employee, pay back wages and punitive damages, and was required increase trainings on employee rights, as well as to improve the workplace by posting employee rights posters.

Traditionally OSHA and the EEOC (Equal Employment Opportunity Commission) have been the primary investigators of complaints of retaliatory firing. Other agencies, including the SEC and FTC, have become involved with strong whistleblower protections under Sarbanes Oxley for employees of public companies; new laws including The Patient Protection and Affordable Care Act of 2009, which creates whistleblower protections for employees in the health care sector; and The Dodd-Frank Wall Street Reform and Consumer Protection Act, which provides expansive protection to whistleblowers in the financial services industries.

The bottom line is that you can’t afford to fire a whistleblower unless you have absolute, irrefutable evidence that the firing had nothing to do with the report of fraud, complaint of discrimination, or safety issues.

Tis the Season for an HR Reminder

Wednesday, December 12th, 2012

Now is the time of year when many employees are getting ready to party hard at the company holiday party.  Yet, company polices do not end when the party begins. Therefore, employers should remind employees about guidelines for appropriate behavior, and how company polices are still applicable during a holiday party (even if it is scheduled off-site and during non-business hours).  (more…)

State by State: Are Employers Required to Give Time Off to Vote?

Monday, October 29th, 2012

There are 13,000 different voter districts in the United States and each one has its own rules and regulations. As HR administrators and employers, the important thing to know is whether or not your state requires employers give their employees time off for voting. Most do, and even some with pay.

Here’s the state-by-state list of employers who are mandated to give their employees time off to vote, re-posted as it appears on the Society of Human Resources Management (SHRM) website:

Alabama: Employers are required to give employees time off to vote unless the employee’s work shift commences at least two hours after the polls open or ends at least one hour before the polls close. If an employee requires time off for voting, the employee must give the employer “reasonable notice.” The employer is not required to grant more than a one-hour absence, and the employer may designate the time when employees may leave work to vote. Time off for voting is not required to be paid time off. Alabama Code § 17-1-5.

Alaska: Employers are required to give an employee as much time off “as will enable voting,” unless the polls are open for two nonworking hours before or after the employee’s work shift. Time off for voting must be paid. Alaska Stat. § 15.15.100.

Arizona: Employers must allow employees up to three hours of time off for voting unless the polls are open three hours before or after the employee’s work shift. The total time off allowed is three hours, less the time the polls are open before or after work. The employee is required to apply for leave before the day of the election and the employer may specify the hours when the employee may be absent. Time off for voting must be paid. Ariz. Rev. Stat. Ann. § 16-402.

Arkansas: Employers are required to “schedule the work hours of employees on election days so that each employee will have an opportunity” to vote. Employers are not required to grant paid time off. Ark. Code Ann. § 7-1-102.

California: If an employee does not have sufficient time outside of working hours to vote, the employer must provide enough time off that, when added to time available outside of working hours, the employee will be able to vote. Unless otherwise agreed, the time off must be at the beginning or end of a shift, whichever allows the most free time to vote and the least time off from work. Employees who, three working days before the election, have reason to believe that time off will be necessary must give the employer two business days’ notice. Up to two hours off must be paid. Employers must post, in a conspicuous place, a notice setting forth these provisions no less than 10 days before the election. Cal. Elec. Code §§ 14000-14001.

Colorado: Employers are required to give an employee two hours off to vote unless the employee has three consecutive nonworking hours available for voting at the polls. The employee is to be paid for working time he or she is required to miss in order to vote. The employee must apply for the leave before the day of the election and the employer may specify the hours that the employee may be absent, provided, however, that the hours shall be at the beginning or end of a shift if the employee so requests. Colo. Rev. Stat. § 1-7-102.

Georgia: Employers must give an employee up to two hours of time off to vote, unless the polls are open for two consecutive hours before or after the employee’s work shift. The employer may specify the time when employees may be absent. Employers are not required to provide paid time off to vote. Ga. Code Ann. § 21-2-404.

Hawaii: Employers are required to give an employee two consecutive hours off for voting unless the polls are open for two consecutive hours before or after the employee’s work shift. Time off for voting must be paid if the employee presents proof of having voted (with a voting receipt). Haw. Rev. Stat. § 11-95.

Illinois: Employers must give an employee up to two hours’ time off in order to vote unless the polls are open two hours before or after the employee’s shift. The employer may specify the hours when an employee may be absent. Time off for voting must be paid. 10 Ill. Comp. Stat. 5/17-15.

Iowa: Employers are required to allow an employee up to three hours of time off for voting unless the polls are open three hours before or after that employee’s shift. The total time off allowed is three hours, less the time the polls are open before or after the shift. Employees are required to apply for the time off in writing before Election Day and the employer may designate the period of time to be taken. Time off for voting must be paid. Iowa Code Ann. § 49.109.

Kansas: Employers must give an employee up to two hours of time off from work to vote unless the polls are open for two hours before or after the employee’s work shift. The total time off allowed is two hours, less the time the polls are open before or after work. The employer can specify the particular time when the employee may be absent as long as that time is not during a regular lunch break. Time off for voting must be paid. Kan. Stat. Ann. § 25-418.

Kentucky: Employers are required to allow employees at least four hours of time off in order to vote or cast an absentee ballot, but employees must request leave before the day of the election. The employer may select the time during which employees may be absent from work. Employers are not required to grant paid time off. Ky. Const. § 148; Ky. Rev. Stat. Ann. § 118.035.

Maryland: Employers must give an employee up to two hours of time off from work in order to vote, provided that the employee does not have two consecutive nonworking hours for voting while the polls are open. Time off for voting must be paid. Md. Code Ann., Election Law § 10-315.

Massachusetts: Employers are required to grant an employee time off to vote during the first two hours after the polls open, if the employee requests time off during that period. Only those who are employed in a “manufacturing, mechanical, or mercantile establishment” are eligible for time off under this provision. Time off for voting need not be paid. Mass. Gen. Laws ch. 149, § 178.

Minnesota: Employers are required to give employees sufficient time off to vote during the morning of the election. Time off for voting must be paid. Minn. Stat. § 204C.04.

Missouri: Employers are required to give an employee up to three hours off from work to vote unless the polls are open for three nonworking hours before or after the employee’s work shift. The employer may specify the three hours that the employee may take off for voting. An employee taking time off to vote must request such time off before Election Day. Time off for voting must be paid. Vernon’s Ann. Mo. Stat. § 115.639.

Nebraska: Employers are required to give time off to vote to employees who do not have two consecutive nonworking hours while the polls are open. This time shall be up to two hours but any nonworking time the employee has while the polls are open may be subtracted. If the employee applies for the absence before Election Day, the time off is to be paid. The employer may specify the time when the employee may be absent. Neb. Rev. Stat. § 32-922.

Nevada: Employers are required to give “sufficient time” for employees to vote if it is impracticable for them to vote during nonworking hours. An employee who works two miles or less from a polling place may take one hour; two to ten miles, two hours; more than ten miles, three hours. The employer may designate the hours an employee will take to vote. Time off is to be paid. Nev. Rev. Stat. § 293.463.

New Hampshire: Employers are not required to give employees time off to vote, but if an employee must be physically present at work or in transit to and from work from the time the polls open to when they close, the employee may vote by absentee ballot. New Hamp. Rev. Stat. § 657:1.

New Mexico: Employers are required to give an employee two hours off to vote unless the employee’s work day begins two hours after the polls are open or ends three hours before the polls close. An employer may specify the hours during which the employee may be absent. Time off is to be paid. N. Mex. Stat. § 1-12-42.

New York: Employers are required to give up to two hours paid leave to vote to employees who do not have four consecutive nonworking hours between the polls opening and closing, and who do not have “sufficient” nonworking time to vote. Employees must request the leave between two and ten days before Election Day. The employer may decide whether the leave is to be taken at the beginning or end of an employee’s shift. Employers must conspicuously post this rule in the workplace ten days prior to the election. Consol. Laws of N.Y. § 3-110.

North Dakota: There is no provision mandating time off for voting employees, but employers are “encouraged” to establish a program allowing employees time off to vote when their work schedule conflicts with the time in which the polls are open. N.D. Cent. Code § 16.1-01-02.1.

Ohio: Employers cannot fire or threaten to fire an employee for taking a reasonable amount of time to vote. Employers may not otherwise induce or compel an employee to vote or refrain from voting. Ohio Rev. Code § 3599.06

Oklahoma: Employers must allow an employee two hours off to vote unless the employee has at least three consecutive nonworking hours in which to vote. If under the circumstances three hours is not adequate, employees may take “sufficient” time. Employers may specify the hours for leave. Employees must give notice of the need for leave the day before the election and cannot have their pay reduced if proof of voting is provided. Okla. Stat. tit. 26 § 7-101.

South Dakota: Employers are required to provide up to two consecutive hours during the workday for an employee to vote if the employee does not have two consecutive, nonworking hours when the polls are open. The employer may specify the hours during which the employee may be absent. Time off is to be paid. S.D. Codified Laws § 12-3-5.

Tennessee: Employees who begin their workday less than three hours after polls open and finish less than three hours before polls close are entitled to up to three hours paid leave to vote. Employees must request leave by noon the day before the election. The employer can set the time for leave to vote. Tenn. Code § 2-1-106.

Texas: Employers are required to allow an employee sufficient time to vote, unless the employee has two consecutive nonworking hours in which to vote. Time off is to be paid. State agencies must allow each agency employee sufficient time off to vote in any national, state or local election, without a deduction in salary or accrued leave. Tex. Elec. Code § 276.004; Tex. Gov. Code § 661.914.

Utah: Employers are required to give an employee up to two paid hours off to vote unless the employee has three or more nonworking hours while the polls are open. The employer may specify the hours during which the employee may be absent; however, if the employee requests to be absent at the beginning or end of a shift, the employer must grant that request. The employee must apply for leave before Election Day. Utah Code Ann. § 20A-3-103.

Washington: Employers are required to arrange their employees’ schedules on Election Day so as to allow each employee a reasonable time, up to two hours, in which to vote. If an employee does not have two free hours during the day, the employer shall permit that employee to take up to two paid hours to vote. However, these provisions do not apply if the employee had time to secure an absentee ballot. Wash. Rev. Code § 49.28.120.

West Virginia: Employees who do not have three hours of their own time during polling hours are entitled to up to three paid hours of leave to vote. The employee must demand leave in writing at least three days before the election. In certain essential operations (health, transportation, communication, production, manufacturing, and processing facilities), employers receiving written requests can schedule the hours when employees will be allowed to leave, but must allow sufficient and convenient time to vote. W.Va. Code § 3-1-42.

Wisconsin: Employees are entitled up to three hours’ leave to vote. Employees must request such leave before Election Day. Pay can be deducted for the time away from work. The employer may decide when the leave is taken. Wis. Stat. § 6.76.

Wyoming: Employers are required to give employees one hour of time off to vote, other than meal breaks. The employer may decide when each employee may be absent. Time off is to be paid as long as the employee actually votes. Employees who have three or more consecutive nonworking hours while the polls are open are not entitled to leave. Wyo. Stat. § 22-2-111.

51% Of Employers Have Hired Applicant With Criminal Record

Thursday, October 18th, 2012

According to a new survey by Career Builder, 51% of employers have hired an applicant with a criminal history. Since more than 92 million individuals have a criminal history on file in state databases, according to the Justice Department’s Bureau of Justice Statistics, employers will have applicants that have a criminal past. The key for employers is to run a background check so that they know about any criminal past activities and can make an informed hiring decision. Having a past conviction should not be a bar to employment but employers have the right to know and then to consider factors such as time since the offense, the age of the offender at the time of offense, efforts at rehabilitation and if the criminal offense is relative to the job. A background check is just one tool employers should be using to make sure they hire the right person for the right job but it is a very important tool.

Comp Time Isn’t a Gift

Wednesday, July 25th, 2012

All too often I have heard an employer say to employees “we offer comp time”.  Unfortunately private sector employer cannot substitute “comp time” for overtime or in lieu of wages. This is the law despite numerous studies that show employees would welcome the idea and since the 1970 federal and state employees have been allowed to substitute comp time in lieu of overtime wages.

If an employee is classified as non-exempt; then the employer must pay overtime. Overtime is sometimes referred to as premium time. The calculation of overtime is determined by federal and state law. The state law takes precedence if more advantageous to the employee than the federal law. There are also consideration as to the start and end date of the pay period with calculating overtime. The bottom line is that comp time in lieu of wages is not permissible under the law.

Service Advisor Exemption Update

Wednesday, July 18th, 2012

A House Appropriations Subcommittee voted today to reinforce that service advisors, the frontline employee-salespersons in the service department, remain exempt from overtime pay requirements. In 2011, the Department of Labor (DOL) attempted to reverse its own 1978 opinion and multiple court decisions and roll back the longstanding exemption. DOL is currently prevented from enforcing any change due to an identical restriction in the FY 2012 Omnibus Appropriations Act which preserves the exempt status of service advisors  until Sept. 30, 2012. National Automobile Dealers Association (NADA) chairman Bill Underriner,  advocating for preserving the exemption status, has been working closely with the Department of Labor and with  Congressman Denny Rehberg, R-Mont on this issue.  The efforts of Mr. Underriner and Rep. Rehberg are highlighted in today’s NADAFrontPage.com. and press release. “Dealers across the country applaud Rep. Rehberg’s leadership. His focus on controlling regulatory costs and eliminating red tape helps give dealers the resources to expand their businesses and hire additional staff,” said Mr. Underriner in the press release. The FY 2013 Labor, Health and Human Services, and Education Appropriations bill will now proceed to the full House Appropriations Committee for consideration.

Beyond FMLA, Should Employers Have Unpaid Leave Policies?

Wednesday, July 18th, 2012

Generally under federal and some state laws employers with more than 50 employees must offer unpaid leave. The FMLA* for example entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.  Employers must offer this type of leave, it’s the law.
Sometime employees in an effort to “be nice” or “offer additional benefits” create additional policies around unpaid leave. The question I have is why bother with an additional company specific policy if your company is a covered employer under the FMLA and/or state law? Smaller employers who are not required by law to have unpaid leave but are willing and able to offer unpaid leave may have an advantage when recruiting or retaining employees. However if an employer already has to provide FMLA leave what exactly is gained by having a policy on additional unpaid leave?  Having additional unpaid leave policies creates additional paperwork, and more opportunities for lawsuits for a low return. Unpaid leave of absence policies that are not required by law usually don’t guarantee job restoration or the continuation of benefits so again why bother to even have this type policy?

When developing policies and handbooks I typically recommend that a company not discuss additional unpaid leave of absences. If an employee needs to take time off beyond what is available through paid leave and  legally required unpaid leave then they can resign or be terminated.   If at a later date the former employee would like to return then the employer can rehire them. How simple is that!

*In addition to the Family Medical Leave Act there are other applicable federal and state laws related to required unpaid leave. Prior to developing and publishing any leave polices employers should consult with a qualified HR professional or legal counsel.

 

NLRB Publishes Examples of Legal and Illegal Social Media Policies

Thursday, June 21st, 2012

If your company cares about its online reputation and proprietary information, then chances are that you have a social media policy to guide employees  about what they can and can’t say about the company on facebook, twitter, and other social media outlets.

Most companies have adopted some kind of social media policy, but not all of them are legal. Lately, the NLRB has been involved with several lawsuits around protected speech and employee rights in social media cases. In most of these lawsuits, the employer was at fault because their policies contain some  provisions that go too far in limiting speech and are unlawful under the National Labor Relations Act.

With the goal of helping employers navigate the rules, the NLRB recently published seven examples of legal and illegal social media policies, complete with explanations in plain English as to which parts of the examples are legal or not.

If part of your job is to write or enforce company policies, you should take a look at these examples and see how your social media policy measures up:

Report of the Acting General Counsel Concerning Social Media Cases

NLRB Office of the General Counsel, Division of Operations-Management Memorandum OM 12-59, May 30, 2012

 

NADA Workforce Study Deadline Extension

Tuesday, May 1st, 2012

NADA has extended the deadline to participate in the workforce study to May 15, 2012. All members who take the survey will receive at no charge the Basic Report comparing their individual dealership to the regional and national industry as well as the Driven Management Guide summary report. The report will provide dealers with solid data to make competitive compensation and benefits decisions and enhance the dealership’s recruitment efforts.

There is no cost to participate in the study. All information will remain secure and anonymous.

The NADA University staff will work with dealership chains to provide an aggregate pull of their payroll data, instead of submitting data separately for individual dealerships.

If you have any questions, contact NADA University’s customer service at (800) 557-6232. Visit www.nadaworkforcestudy.com to participate.

NLBR Postpones Posting Requirement for Employee Rights Notice

Wednesday, April 25th, 2012

As of April 17th, 2012, the deadline for  employers to post the Employee Rights Notice has been postponed due to legal action. The April 30 deadline is now on hold pending appeal by the National Labor Relations Board (NLRB) in response to a ruling by the Court of Appeals for the District of Columbia Circuit.  The Court  enjoined the National Labor Relations Board from enforcing a regulation that would have required most private sector employers in the United States to post a notice of employee labor law rights beginning April 30 (Nat’l Ass’n of Mfrs. v. NLRB, D.C. Cir., No. 12-5068, injunction pending appeal 4/17/12).

In response, NLRB announced its regional offices will not implement the disputed rule, but the agency will defend the rule in the D.C. Circuit and plans to appeal an adverse ruling that was issued April 13 by the U.S. District Court for the District of South Carolina.

“We continue to believe that requiring employers to post this notice is well within the Board’s authority, and that it provides a genuine service to employees who may not otherwise know their rights under our law,” Chairman Mark Gaston Pearce said in a statement released by NLRB.
Rule Covers Employers Under NLRB Jurisdiction.

This is the third time the NLRA posting deadline has been set, and then delayed.  If you have already posted the notice or are using a poster that contains the notice you do not have to remove the notice or the poster to  remain in compliance with NLRB requirements at this time, as this posting rule has not been repealed, just delayed.  Employers may also  chose to remove the notice until the final ruling.