HR Legalist

HR Legalist

Employment Law Updates
& Best Practices for Employers

Trick or Treat: Can Employers Face Liability for Celebrating Halloween in the Workplace?

Posted in Religious Discrimination, Wage & Hour, Workplace Policies

Halloween celebrations in the workplace can be a treat for employees but the trick is in the employer’s execution. Costumes present a particularly tricky issue because well-intentioned “creativity” can quickly deteriorate into an employee relations nightmare. Employers should also be mindful that employees must have the option not to participate because certain religions prohibit the celebration of Halloween. Read on for tips to ensure your workplace celebration is more fun than frightening. Continue Reading

NLRB and DOL Gang Up On Employers with Referral System

Posted in Labor Relations, Wage & Hour

In August 2014, by Memorandum OM 14-77, the National Labor relations Board (NLRB) notified its Regional Offices that NLRB agents should take an active role in notifying employees who file unfair labor practice charges of their rights and potential claims under the Fair Labor Standards Act (FLSA) and under the Occupation Safety and Health (OSH) Act. Occasionally, unfair labor practice investigations unearth information about employment practices and/or decisions that may trigger other potential statutory violations. If during an unfair labor practice investigation an NLRB agent learns of facts that suggest that an employer has violated the FLSA or the OSH Act, the agent has been instructed to advise the complaining employee (or witness) of his right to file charges with OSHA and/or the Wage and Hour Division, both of which are agencies within the U.S. Department of Labor (DOL). Continue Reading

I-9 and E-Verify: Knowing the Difference Makes a Big Difference for Employers

Posted in Hiring, Immigration

At a recent presentation on Form I-9 compliance a participant asked: “Isn’t E-Verify just an electronic replacement for the I-9 form?” This a great question and I am glad someone asked it because knowing the answer is critical to compliance with federal employment regulations. The answer is a resounding, “NO!” The E-Verify program does not replace the I-9 and participating in E-Verify does not remove an employer’s obligations to comply with the I-9 process. There remains a fair amount of confusion about the I-9, which has been described by a colleague as “deceptively simple” and indeed it is. Simply recording an employee’s name incorrectly or waiting until the fourth day of hire to complete the form constitute violations and if an employer isn’t careful the potential fines in the event of an audit can be enormous. Continue Reading

Beyond Essential Functions: The Role of Job Reassignments in Accommodating Employee Disabilities

Posted in Americans with Disabilities Act, Workplace Policies

Imagine for a moment that you are the HR Manager for a company with many physically demanding jobs. One of your employees submits a doctor’s note prohibiting her from lifting anything over 25 pounds. Mindful of your obligations under the Americans with Disabilities Act (ADA), you check to see if the lifting restriction will prevent the employee from doing her job. Unfortunately, after checking the employee’s job description and talking with her supervisors, you conclude that lifting is a key part of the employee’s job (in legal terms, an “essential function”), and there is nothing practical that can be done (in legal terms, no “reasonable accommodation”) to allow her to perform her job. When you tell the employee that she cannot return to her job, she asks if there are other positions available within the company that she can be transferred to. You say you’ll look into it, but when you start asking around, things get complicated. There are a handful of open positions in other departments, but the job requirements are different and some of the positions already have applicants who seem better qualified. None of the positions have exactly the same pay as the employee’s warehouse position, so she would either be getting a raise or a demotion. What should you do? Continue Reading

Reminder to Private Employers: EE0-1 Reports Due Soon!

Posted in Workplace Policies

If you are a private employer with 100 or more employees, you must file an EE0-1 Report with the federal Joint Reporting Committee no later than September 30, 2014. The EEOC uses this employment data to detect employment patterns and to assist in civil rights enforcement. The EE0-1 Report is a snapshot of what an employer’s workforce looks like on a given day. For human resources purposes, that day should be within a pay period in July, August, or September of 2014. The report then asks for a breakdown of an employer’s workforce by race/ethnic category and sex, as well as by each of the nine occupational categories delineated by the EEOC. Since transitioning to a digital online form, this report has become less burdensome to complete, but it still is important to submit the document on time to avoid incurring penalties. Continue Reading

Happy Birthday HRLegalist!

Posted in Uncategorized

Today, HRLegalist celebrates its first birthday. We would like to extend a big thank you to all of our readers and invite you to let us know of any labor and employment issues that you would like to see addressed on HRLegalist in the upcoming year. We hope you have enjoyed our posts and look forward to continuing to provide valuable insight into the latest developments in labor and employment law!

How to Structure an Employee Severance Package Regarding COBRA and the ACA

Posted in Terminations, Workplace Policies

Often, when parting ways with an employee, an employer may offer to pay for some months of COBRA continuation coverage so that the employee can remain covered without having to pay the substantial premiums associated with COBRA. Historically, this always seemed like a solid gesture from the employer and a “no-brainer” from the employee’s standpoint. However, with the implementation of the Affordable Care Act (“ACA”), employees who part ways from their jobs now have another option—purchasing insurance via the ACA “marketplace,” which may be less expensive. Because of the intertwining of potential timing issues between electing and obtaining COBRA continuation coverage and the opportunity to purchase insurance in the ACA “marketplace,” employers must give additional thought to the typical employee separation and offer of a severance package. Continue Reading

Philadelphia Now Requires Workplace Accommodations for Nursing Mothers

Posted in Pregnancy Discrimination, Workplace Policies

Philadelphia now expressly requires both private and public employers to provide workplace accommodations for nursing mothers pursuant to an amendment to the Philadelphia Fair Practices Ordinance signed by Mayor Michael A. Nutter on September 3, 2014. The amendment, which is effective immediately, requires employers to provide employees with reasonable break times and a private, sanitary space (other than a bathroom) for expressing breast milk. Unlike the “Break Time for Nursing Mothers” provision of the Affordable Care Act (ACA) (which only applies to nonexempt employees as defined by the Fair Labor Standards Act), the Philadelphia ordinance does not distinguish between exempt and nonexempt employees. By eliminating this distinction, the ordinance makes it an unlawful employment practice for a Philadelphia employer to fail to reasonably accommodate any nursing mother (exempt and nonexempt alike). Continue Reading

New Burdensome Federal Contracting Requirements

Posted in Government, Workplace Policies

On July 31, 2014, President Obama signed the Fair Pay and Safe Workplaces Executive Order, which—for the first time—requires large federal contractors to disclose prior labor law violations, designate a Labor Compliance Advisor, and disclose wage and hour information to its workers. The provisions of the Executive Order take aim at federal contracts with a value of $500,000 or more. Continue Reading

What to Expect When Your Employees Are Expecting

Posted in Pregnancy Discrimination, Workplace Policies

Does an employer have to provide a modified work schedule to a pregnant employee with morning sickness or light duty to a pregnant employee with lifting restrictions?The answer depends on who you ask. Most federal courts say no, but the Equal Employment Opportunity Commission (EEOC) says yes. Fortunately for employers, resolution of this issue is on the horizon. On July 1, 2014, the United States Supreme Court agreed to decide the issue during its October 2014 term in Young v. United Parcel Service, Inc. The Supreme Court will decide whether employers that accommodate nonpregnant employees’ work limitations are required to do the same for pregnant employees with similar pregnancy-related limitations under the federal Pregnancy Discrimination Act (PDA). Although the Supreme Court will provide clarification on the issue under federal law, employers should be mindful that several states and cities, including New Jersey, New York City and Philadelphia, have laws which require employers to provide reasonable workplace accommodations to pregnant employees unless such accommodations would pose an undue hardship on the employer’s business. For now, one thing is certain—employers should pay particular attention to this issue because there is a growing trend in laws expanding the rights of pregnant women in the workplace. Continue Reading