Light Duty Work: Must I Provide For Non-Work Related Injuries?

This question came in from a client who subscribes to my HR HelpLine.  Here’s the question and my advice:

Client Question: As part of our workers’ compensation program, we bring injured employees back to work on light duty. We now have an employee who was injured outside the workplace. Do we have to provide light duty to him too?

Answer: It depends on the circumstances. Many employers are reluctant to bring injured employees back who were hurt off the job because they fear if the employee aggravates the injury while on light duty at work, it may become a workers’ comp case. As a result, many employers put policies in place limiting light duty jobs to individuals with work related injuries or illnesses only.

However, and this is where it gets tricky, if the injury or illness meets the definition of “disability” under the Americans with Disabilities Act (ADA) and a light duty position is open and available, under the ADA, you would be required to consider reassigning that employee to the light duty position as a reasonable accommodation. The EEOC guidance states: If an employee with a disability who is not occupationally injured becomes unable to perform the essential functions of his/her job, and there is no other effective accommodation available, the employer must reassign him/her to a vacant reserved light duty position as a reasonable accommodation if (1) s/he can perform its essential functions, with or without a reasonable accommodation; and (2) the reassignment would not impose an undue hardship.  This is because reassignment to a vacant position and appropriate modification of an employer’s policy are forms of reasonable accommodation required by the ADA, absent undue hardship

If the injury does not fall under the ADA definition and if the employer does not fall under ADA guidelines, then you would not be required to offer light duty.

Modify your polices and practices to comply with the requirements. Studies also show that employees heal faster while on light duty.

If you need expert advice on employee issues, call the HR HelpLine. I provide operational advice, not legal advice, on how to address difficult employee and organizational issues. To learn more, click here.

Overtime Pay: Should Holidays & Vacation be Included?

This question came in from a client who subscribes to my HR HelpLine service.  Here’s the question and my advice:

Client Question: When calculating overtime pay, do we have to factor in holiday and vacation time into the overtime?

Answer: No. Overtime payment is based on hours worked. Under the federal Fair Labor Standards Act, employers must pay time and one half for all hours worked that exceed 40 in the pay period. Holiday and vacation pay is not considered work time.

As an example, in a hypothetical work week with Monday as a paid holiday under your benefit plan, if the employee received 8 hours holiday pay on Monday, worked Tuesday through Friday, 8 hours each day, and 4 hours on Saturday, the pay would be calculated as:

            8 hrs. holiday pay

+         36 hours regular pay (32 hrs., Tues –Friday plus 4 hrs. on Saturday)

       ________

            44 hours total at straight time

There is no overtime requirement since the regular hours worked (36) did not exceed 40. You should pay the employee 44 hours at the straight time rate.

Note: Employers should note in their policies that overtime is based on hours worked and that holidays, vacation, sick and personal time are not included in the calculation of overtime. Finally, if you have a union contract (this client did not), check how the contract addresses this issue.

If you need expert advice on employee issues, call the HR HelpLine. I provide operational advice, not legal advice, on how to address difficult employee and organizational issues

HR HelpLine: When You Need Expert Advice

Managing people is hard and often frustrating.  Throw in those ever changing employment laws, lawyers that want to sue, employees who “know their rights,” a bruising economy and everyone demanding more and more of your time, and your job just got very complicated.

Well, I can help you with the people side of the business. Since I started my business in 1995 I have provided my clients with practical, uncomplicated, expert advice on how to make managing easier. Through my HR HelpLine, I have provided managers, just like you, the human relations expertise and hands-on skills needed to improve employee productivity, mitigate risk, and eliminate headaches that comes with managing people.

My clients call me for help on a number of difficult issues, from how to deal with the cook who came to work smelling of booze, to the clerk who hasn’t showed up to work in days, to the injured nurse who has refused to return on modified duty, to the manager who gets bit “handsy” with his female staff. You name it, I’ve been asked.

Regardless of the issue, if it is impacting your workplace, I can provide you with the assistance and expert advice you need to rectify the situation.

Want to know more? You can click HR HelpLine for a more detailed description of the service or you can call me direct at 207-967-0837. It’s that easy.

Incidentally, when you call the HR HelpLine, you speak only to me, Rick Dacri. No rookies. And, beyond the unlimited phone and email access, I’ll also give you a subscription to my management newsletter, The Dacri Report; a copy of my book, Uncomplicating Management; and regular updates and alerts designed to help make managing a bit easier.

Sound too good to be true? Give me a call and we can talk a bit more about it—and when you do, I’ll even send you a copy of my book—Free. See, I’m a nice guy too!

Off the Clock Work: Must I Pay?

I received this question about off-the-clock work from a client who subscribes to my HR HelpLine service. Here is the client’s question and my advice:

Client Question: On occasions, some of my employees complete work assignments at home. In addition, most of them regularly check their smartphones for emails and take phone calls from me, other managers or even clients. Am I required to pay my hourly employees for this time?

Answer: Yes. Under the Fair Labor Standards Act (FLSA), employers are required to compensate hourly, nonexempt workers for all work performed, including such “off the clock” work. And, if the total hours worked (regular and off duty) exceeds 40 hours worked, you must pay overtime. You have no obligation to compensate your exempt workers.

It is not uncommon, particularly with good dedicated workers, to find that they put in additional hours beyond their normal work days. This is good for the company and under the law, nonexempts must be compensated for that. Secondly, because of technology, employers have come to expect employees to check smartphones and laptops for emails and texts and to remain in communication during after hour periods and weekends. Again, employers are obligated to compensate nonexempts for all hours worked—whether it is required or not, and even if the employee fails to report it. If an employer has reason to believe it occurred, they should address it with the employee and compensate the employee.

Clearly communicate with your employees that if they work “off the clock,” they are to record these hours and you will compensate them for it.

Is that the policy in your company? How do you handle “off the clock work”? Please comment below.

If you have employee questions, call our HR HelpLine. I provide operational advice, not legal advice, on how to address difficult employee issues.

 

Bullying: It Has To Stop

 

It keeps happening. Bullying. In the schools, playgrounds, social media, and work. We read about suicides of young people who were bullied. Now Rutger’s basketball coach Mike Rice is fired after striking and berating his players. But his termination only happened after a video of his behavior went viral.  The problem is not just in schools and with young people. Bullying is occurring on a daily basis in the workplace and employers are at a loss as to what to do about it.

Survey after survey point to widespread workplace problems. The findings of the Workplace Bullying survey conducted in 2011 found that half of the companies surveyed reported incidents of bullying. Victims report experiencing mental and emotional harm along with stress related physical damage including hypertension, gastrointestinal disorders and migraine headaches. A Canadian study even suggested that co-workers who witness bullying are also traumatized by it. And it is costing employers a lot in decreased morale, increased turnover and absenteeism, and drops in productivity—all impacting the bottom line.

So what does workplace bullying look like? Victims report a number of behaviors including verbal abuse, shouting, swearing, name calling and malicious sarcasm; hurtful gossip, rumors and lies; threats and intimidation; cruel comments and teasing; and even physical assaults.

While most bullying occurs between peers, much of it happens at the hands of supervisors directing their fury at staff.

Reference Checking: 5 Tips To Get Great References

I received this question about reference checking from a client who uses my HR HelpLine Service.  The client is the Chair of a human service agency board of directors. Here is the client’s question and my advice:

Client Question: We are preparing to hire a new executive director for our agency. My experience in checking references is that the HR department only verifies employment and nothing more. For this hire, should we even bother trying to do references?

Answer: Absolutely do the references. You would be putting your agency at risk if you failed to do so.

In today’s litigious society, it is often difficult to get employers to provide references. Everyone is afraid they’ll some how be sued for telling the truth about a past candidate. As a result, you get the standard name, rank and serial number response. This won’t do. You need to get solid references so don’t be deterred by these kinds of responses.

To get great references, follow these 5 tips:

1. Tell the candidate who you want to speak with and have him identify these people. These could include members of his board of directors, current and past managers, staff, customers, etc.
2. Once you get the names and contact information, tell the candidate to call these people first to tell them that you will be calling. Have them ask the reference to take your call.
3. Offer to call after hours.  If the reference prefers, call the reference at their home.
4. Unless your hiring someone for your Human Resources department, by-pass this department. They have been lawyered up and will never give you the straight scoop.
5. If necessary, utilize a Reference Authorization Form. This is a form, signed by the candidate, authorizing the reference and promising not to sue for providing truthful information.

For an executive level hire, you may also want to go beyond a background check. You may want to do a criminal background check and credit check.

Reference checking is essential to the hiring process. Not doing this exposes the Board and the agency to bad hires and even potential lawsuits.

If you have employee questions, call our HR HelpLine. I provide uncomplicated, operational advice, not legal advice, on how to address difficult employee and organizational issues.

Job Abandonment: How Should Employers Handle?

I received a question from a client who uses my HR HelpLine Service about an employee who has apparently abandoned his job. Here is the client’s question and my advice on how to handle it:

Client Question: We have an employee who has gone MIA (he has done this in the past also, apparently he has a significant drinking problem). We are in the process of terminating him for absenteeism and failing to show up for scheduled shifts. We have called his cell phone numerous times with no success at connecting with him. Is there anything we need to do on our end other than to document the reason(s) for his termination? Should we send a letter of termination to him?

 Answer: To begin, your desire to terminate is because the employee has an absenteeism problem and has failed to call in when absent, consistent with your policy. Do not discuss the alleged issue of drinking. This is not an issue unless you actually see him drinking on the job or he admits he was drinking. Stick with the issues you know: he has not shown up for his scheduled shifts and he has not called in to inform you of his absences.

 Note: Employers should never accuse or suggest that someone has been drinking or has a drinking problem. You should only discuss performance related issues. Stick to what you know or what you observe. Do not surmise, diagnose, or act simply on rumors. Focus on observable behaviors. In this case: no call, no show—repeatedly.

Since you have tried to contact him a number of times without success, you can move forward with the termination for job abandonment. Send a certified letter, return receipt. Tell him after continued absences and his failure to call in to inform you of his absence; and after your repeatedly calling him to find out where he was, you are terminating his employment due to job abandonment, consistent with your policy, as outlined in your employee handbook. Keep the letter short. You should also keep in the file his record of absences and the days and times you tried to contact him. Note that you left messages for him to call you and he did not do this.

Pay him all monies owed including any unused, accrued vacation time.

If he should contact you with a legitimate reason for not contacting you and working, then you may have to reconsider your decision. But multiple violations of your attendance and call in policy constitutes job abandonment.

If you have employee questions, call our HR HelpLine. I provide operational advice, not legal advice, on how to address difficult employee issues.