HR Specialist: Employment Law

Clear, common-sense employment law advice that cuts directly to the bottom line. An attorney may say what the law is – but the monthly issues of HR Specialist: Employment Law and its related weekly e-letters explain what managers and human resource professionals should do that is both safe and practical in the real world of business. Learn more about HR Specialist: Employment Law and the two free reports you'll get when you subscribe...
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The IRS has clarified that, under the new health care reform law, coverage provided for employees’ children under age 27 is tax-free to the employee. That means employers with cafeteria plans may permit employees to immediately make pretax salary-reduction contributions to provide coverage for children under age 27.
Fans of “Jon & Kate Plus 8” can relax. After an investigation, the Pennsylvania Department of Labor & Industry decided not to fine the popular reality TV show for alleged child labor violations.
The U.S. Constitution guarantees citizens the right to free association without government interference. But what about the right of public-sector employees to free association? Can a public employer punish an employee for having a romantic relationship with a subordinate?
Employees whose disabilities require reasonable accommodations in the form of breaks or a modified schedule don’t get to save their FMLA leave for later use. You are free to subtract the time off from any FMLA hours available.

The immigration law landscape keeps changing, and employers must keep up. Even employees who are in the United States illegally can sue you for unpaid overtime. Now you also have to be aware of another risk: Clever attorneys have begun filing RICO Act lawsuits, alleging that some employers are essentially running “mob” operations by knowingly hiring illegal immigrants.

Do you have a system that allows all employees in the same job category an equal shot at earning overtime pay? If not, consider setting up a fair system for distributing that extra work. Otherwise, you may find yourself facing a discrimination lawsuit.
Before you even consider firing (or refusing to hire) someone because they might jack up your health insurance costs, count your dollars, not your pennies. You may be staring down a lawsuit that could dwarf whatever premium costs you hoped to avoid.
Test your knowledge of recent trends in employment law, comp & benefits and other HR issues with our monthly mini-quiz ...

Sometimes, for whatever reason, a seemingly great employee makes an awful decision that forces you to terminate her. The key: Be consistent. Letting bad behavior slide because the worker is a stellar performer can trigger a discrimination claim. The best way to show bias played no part in the decision: Document the employee’s unacceptable behavior.

Employers can’t use an employee’s undocumented status as an excuse for not paying minimum wage or overtime under the Fair Labor Standards Act, as the following case shows.
Many government safety regulations require employers to give employees safety or health training. In May, OSHA issued an enforcement memo to its inspectors, directing them to verify that employers are giving such training, “using both a language and a vocabulary that the employee can understand.”
As FMLA administration grows more complex, more employers are using software to track it. Most of the time that works fine. But if you decide to terminate because the software told you an employee overstepped her leave or wasn’t eligible for FMLA leave, review the reasons for the leave and double-check your calculations.

Sometimes, the best lessons are learned from the worst examples. That’s often the case with HR management. When employers make big mistakes and have to pay for them in court, other employers with good practices—that maybe need just a little tweaking—can discover what not to do. Here’s a good example:

Two employees of a Sprint store chased down and subdued a shoplifter even though they were on break at the time. Heroic? Yes. But also a violation of Sprint company policy, and both men were fired. Employers are within their rights to set such policies, but make sure you enforce such policies consistently to avoid discrimination claims.

As a way to pay for the new health care reforms, a new excise tax on “high cost” health care plans is set to kick in Jan. 1, 2018. The tax will be 40% of a health plan’s annual costs that exceeds a certain threshold: $10,200 for individual coverage and $27,500 for family coverage.

OSHA requires employers with 10 or more employees to report work-related injuries on injury and illness logs. A recent OSHA interpretation letter makes clear that injuries suffered during company outings and sporting events still count.
Lots of employers have no-fault attendance policies, which allow a certain number of unexcused absences without any documentation and then punish employees who go beyond allowable limits. No-fault policies are fine … as long as they don’t penalize workers for taking time off that’s protected under the FMLA.
As we told you last month, the DOL and many state agencies are cracking down on employers that illegally fail to pay their interns. Now the DOL has published “Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act” that helps clarify employers’ obligations.

It happens all the time: A manager decides to take a chance by hiring a marginally qualified applicant. Then, days later, it becomes clear she can’t do the job. The employer has little choice but to terminate. But then the fired employee feels she has little choice but to sue for some form of discrimination. The best way to avoid those lawsuits: Don’t count on “gut feeling” or interview skills. Run the applicant through job-specific tests.

Many employers have adopted so-called zero-tolerance rules prohibiting any kind of violence at work. But be careful how you enforce the rule. If you ever make exceptions, you’ll be asking for a lawsuit. Instead, terminate violent employees promptly, as soon as you verify what happened.

When drug abuse isn’t an obvious problem in the workplace, it’s easy for employers to develop a cavalier attitude about it. That’s not smart. It’s in your best interest to detect employee drug abuse early and root it out immediately. Keeping your workplace drug-free means knowing how to spot the problem and effectively respond to it—without violating employees’ legal rights and creating legal liability.

During the past few years of deep recession, employees mostly understood your organization’s need to freeze wages, stop 401(k) matches and, in some cases, trim payrolls. But the improving economy and resulting positive headlines are causing more employees to wonder when this good news will trickle down to their own paychecks. And unions are using this unease as a way to organize new members.
Test your knowledge of recent trends in employment law, comp & benefits and other HR issues with our monthly mini-quiz ...

The risk isn’t new—e-mail has been around for a while. But managers and supervisors still continue to play fast and loose with their e-comments. E-mail messages are increasingly finding their way into employment-law court battles. Remind managers in the hiring process that it’s typically better to pick up the phone or walk down the hall to discuss a candidate than it is to send an e-mail.

With 70% of all corporate records now stored electronically, HR must make sure their organizations’ systems are set up to retrieve critical information on demand. That’s essential if your organization is sued. Long delays in providing evidence can lead to needless litigation costs—and crush your chances in court.