Published June 2011
Do you often feel stumped and confused by all the HR-related issues – and legal traps – that confront you as an employer and manager?
You’re not alone. The Employers Resource Association (ERA), based in Ohio, gets more than 8,000 calls each year to its HR Hotline. These questions from HR professionals and employers commonly center around hiring and firing, FMLA and other leave issues, employee access to personnel records, and drug testing.
Following are nine questions on most-asked-about topics in the past year, with answers from Daniel Chaney, director of ERA’s HR Advisory Services. Chaney spent 11 years a human resource manager for a construction products company before joining ERA. Prior to that he was an Industrial and Manufacturing Engineer. His answers to the questions follow:
Q.1. Intermittent FMLA leave. Are there ways to legally control intermittent FMLA leave, and if so, what are they?
Chaney: All private employers that employed 50 or more employees for 20 or more weeks in the current or previous year fall under the Family and Medical Leave Act (FMLA) obligations. Public employers are covered no matter how many employees. The employee [to be eligible for FMLA] must have worked at least 1,250 hours in the 12 months immediately preceding the need for leave. Finally, the employee must work at a site where there are at least 50 employees within a 75 mile radius.
Intermittent leave is by far the biggest problem resulting from this law. There is no magic solution, no silver bullet. We recommend following the rules for employers to the letter, and requiring employees to also follow their requirements. Have a detailed notification process and require all employees to strictly account for each absence using a form that explains their reason for absence.
Also, do not allow employees to call at odd hours and leave voicemail messages, or to text or e-mail. They should be required to speak to their supervisor or, if he or she is not available, to Human Resources or another supervisor. Requiring this direct communication reduces all absences dramatically, both FMLA and non-FMLA.
Q. 2. Documenting a termination: Is any documentationrequired to fire someone? If so, what are some important guidelines that define the documentation an employer should have?
Chaney: Theoretically, there is no particular document required to fire an employee. To one degree or another, every state is at-will with respect to the relationship between employer and employee. However each state limits at-will status by restricting the reasons one can fire an employee. Some provide for public policy, whistle blower and other exceptions. Some (Montana comes to mind) practically eliminate the at-will doctrine all together.
But regardless of any at-will allowance, when you need to discharge an employee, we recommend that you have enough documentation in the file to demonstrate your reason or reasons for the firing and that due process was followed. By that I mean a series of documents describing the employee’s problems and the counseling and discipline that was given. Together these documents should show that the employee was given multiple opportunities to become fully aware of the problems and the time after each warning to correct things. Two, or better yet, three chances are desirable.
If after these chances the employee has demonstrated that he can’t or won’t correct the situation, then we move to termination as the last resort.
Q. 3. Pressuring a new hire: Is it safe to ramp up the heat on a new hire that may not be working out?
Chaney: By ramping up the heat we mean to hold the employee to absolute standards of performance and coach them up or out. The manager might want to consider whether his or her hiring practices were at fault so that he or she can prevent a recurrence.
But concerning this new employee, if he was given a fair shot at satisfying the needs of the organization and demonstrated that success is probably beyond him, then it is very unlikely that any further coaching or counseling will produce the desired result. Of course the basics of coaching are to be exhausted before you come to the decision to terminate. And it should go without saying that no disparate treatment or impact is at work.
But we are dealing with a new employee and if there is a large gap between expected and demonstrated performance, it will probably be kinder to the employee and more advantageous to the organization to terminate.
Q. 4. Calculating overtime pay. How does the employer go about calculating overtime for multiple rates?
Chaney: Multiple rate calculations of overtime premium are relatively simple. Barring a previously agreed upon plan to pay the OT based upon the actual rates in effect for the over-40 hours, we would take all the wages earned for the pay week (for all rates) and divide that total by the total hours worked. This yields a “regular rate” or average rate. Then divide that regular rate by 2 and pay the result for each hour over 40 in the workweek.
Q. 5. Hiring through temp agencies. On this topic of Fair Labor Standards Act issues, are there advantages for the employer – especially the small and medium-sized employer – to run employment through a temporary employee agency or contingency employee agency?
Chaney: Temporary agencies offer the convenience of having the employee for a short period of time and not having to go through the process to hire her, administer benefits, and so on. But a premium is paid and the employer needs to weigh the additional cost against the convenience.
Q. 6. Break time. Does federal law require giving employees breaks? Does federal law require that employers give employees lunch breaks? Is it legal under federal law for an employee to work through breaks and leave work early?
Chaney: Federal law does not mandate any rest or meal breaks. The only mention of breaks is that any break that you decide to provide must be a paid break if it is 20 or fewer minutes. State law may require breaks, however, so make sure you are knowledgeable of your requirements. In most cases, even if state law requires breaks, an agreement may be reached between the employee and employer allowing the employee to work through the break. While that may be useful or even necessary in some situations, it is generally considered to be more beneficial from a safety and productivity standpoint to require employees to take the provided breaks.
Q. 7. Employee viewing personnel file. Does federal law require the employer to allow the employee to see or copy his personnel file? If there’s no federal law, and if the employer’s state has no law requiring this, what are the pros and cons of allowing it versus not?
Chaney: Federal law gives no rights to the employee regarding access to or copies of any item in his personnel file. Any required access would have to be granted by state law and some states do have laws that grant access or copying rights in part or in total. Obviously if the state law requires granting access, an employer has to allow it.
But assuming it doesn’t, there are two sides to this question. The pro side includes a show of integrity demonstrating that the company does not keep any false or exaggerated records on the employee. It gives the person a chance to correct anything that may be incorrect or simply out of date. It also often surprises the employee that the file is so thin.
But on the other side, stop and think about who asked to see their file. You guessed it — disgruntled employees. You don’t know whether you may be assisting the employee on a fishing expedition for his attorney. In the end, it is a company decision and strong support for both sides is available. Some companies follow a middle road. First, any time an employee is required to sign a document, he or she should be given a copy of that document. And if at a later date he or she has a legal or business need for a copy of the signed document due to loss of the original, you gave the employee a copy.
Q. 8. Reading employee e-mails. Is it legal under federal law for the employer to read employee e-mails and/or monitor their Internet usage?
Chaney: If we are talking about company equipment during company work time, the answer to this is yes, maybe.
Problems arise when the employer has not made the rules clear and distributed them appropriately. The big concern is whether the employee has been notified that he or she should have no expectation of privacy concerning any information downloaded to, created or stored on, or sent from a company computing or communication device. This should include e-mail, website visits, social media, and blogs. But if the company has removed the employee’s expectation of privacy and if it is done properly, it is okay to monitor these communications.
An employee-owned device used during break or lunch times is another case entirely. We wouldn’t advise any overtures in that direction unless the employee used social media in a manner that distributed company confidential information or defamed the company.
Q. 9. Drug testing. If the federal law doesn’t require an employer to do drug testing of employees, and if the state law permits drug testing of employees…what are the pros and cons of doing drug testing? For employers who are not legally required to do drug testing, are there better, more effective and less costly things an employer can do rather than implement a drug testing program?
Chaney: Generally federal law does not require drug testing except for certain occupations such as CDL drivers of heavy trucks, airline pilots or other occupations with significant public safety concerns. Also, some government contracts require testing for all workers participating. State laws vary on non-government testing of employees.
But assuming the state in question does allow it, the only downside to testing is the cost and the employee relations problems that can come up.
On the positive side, by testing you are going a long way toward keeping employees and the public safe and your business secure. If you don’t test new employees, you may become the employer of choice for drug users. If you test for the common reasons — which are new employee, post-accident, reasonable suspicion and post leave — it is very likely that you will decrease illegal drug use in your work force dramatically. The payoffs are fewer accidents, reduced sickness, improved quality and a safer workplace for all.
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