September 28, 2010

HR policy development, part 3 of 3: attendance and job abandonment under the FMLA and USERRA

Posted in Absenteeism, Employee Handbooks, Family and Medical Leave Act, Job Abandonment, Leaves of Absence, Leaves of Absence, Uniformed Services Employment and Reemployment Rights Act tagged , , , , at 10:55 am by Tom Jacobson

In the first segment of this three-part series, I noted that having and following a well-written sexual harassment policy can help provide an effective defense to sexual harassment claims.  In the second installment, I pointed out how reasonable personnel policies can provide the foundation for defining employment misconduct for the purposes of a Minnesota unemployment claim.  In this final installment, the topic is leaves of absence under the Family and Medical Leave Act (FMLA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA); the case is To v. US Bancorp.

In the To case, US Bank had strict “Reporting Absences” and “Job Abandonment” policies.  The policies required certain call-in procedures and return-to-work documentation.  To missed work for medical reasons and for National Guard service, but he failed to follow the bank’s call-in and reporting procedures, so the bank terminated his employment.

To sued US Bank under the FMLA and USERRA, but the court threw out his case.  With regard to To’s FMLA claims, the court noted that To had not complied with the bank’s policies for reporting absences, and “Employers who enforce such policies by firing employees on FMLA leave for noncompliance do not violate the FMLA.”

To’s USERRA claims were based in part on a portion of USERRA which states that reemployed service members “shall not be discharged from such employment, except for cause” for specified periods of time.  After noting that under USERRA, “An employer has just cause to terminate an employee who does not comply with a known company policy,” the court held that To’s failure to follow US Bank’s handbook policies gave US Bank just cause for To’s discharge.

Read together, the To, Gaustad and Cross cases all underscore the importance of developing and applying effective employment policies.  Such policies not only frame the expecations that employers may have for their employees, but they can also provide important defenses to many employment-related claims.  In sum, developing and applying effective employment policies are crucial to business success.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

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September 24, 2010

HR policy development, part 2 of 3: policy violations as “misconduct” in unemployment cases

Posted in Breaks, Employee Handbooks, Misconduct, Smoking, Unemployment Benefits tagged , , , , , , at 9:24 am by Tom Jacobson

In the first of this three-part series, I highlighted the case of Cross v. Prairie Meadows (http://bit.ly/bDzdNt) where the employer’s well-written policies were a key reason why the court threw out a sexual harassment lawsuit against the company. In this installment, the issue is how well-written policies can help show that an employee committed employment misconduct which disqualifies him/her from unemployment benefits; the case is Gaustad v. Minnesota Department of Employment and Economic Devlopment (http://bit.ly/9uLFWY).

In the Gaustad case, Jon Gaustad worked for Innova Industries, Inc.  Innova had a very clear work break policy; breaks were strictly regulated in order to manage work flow.  Innova also had a strict no-smoking policy inside its plant and a clear designation of where smoking was permitted outside the plant.  Both policies were plainly stated in the company’s employee handbook.  The smoking policy, which had been adopted after a discarded cigarette butt caused a serious plant fire, was also posted in the employee break room, and it had been handed out to employees.

After two prior warnings about violating the company’s smoking and break policies, Gaustad was fired for a third violation.  Gaustad filed for unemployment.  His claim made its way to the Minnesota Court of Appeals, and the court ultimately rejected it. 

The court initially noted that when an employee refuses to abide by an employer’s reasonable policies, the employee commits employment misconduct and is disqualified from unemployment benefits.  The court also noted that an employer’s policies are reasonable when the employer can articulate or identify purposes which further a legitimate employer interest.

In this case, the court concluded that Innova’s policies were indeed reasonable because the break policy was needed to aid the manufacturing process, and the smoking policy was needed due to the prior fire.  Because Gaustad deliberately and knowingly violated those policies, the court determined that his actions were misconduct.

Just as Cross v. Prairie Meadows highlights the importance of having a well-written sexual harassment policy, Gaustad v. Minnesota Department of Employment and Economic Devlopment points out that reasonable personnel policies (that is, policies that  further a legitimate employer interest) can provide the foundation for defining employment misconduct for the purposes of a Minnesota unemployment claim.

Next in this series:  leave policies under the FMLA and USERRA.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

September 21, 2010

The importance of HR policy development, part 1 of 3: sexual harassment

Posted in Discrimination, Employee Handbooks, Gender / Sex, Harassment, Sexual Harassment tagged , , , , , , at 7:59 am by Tom Jacobson

Occasionally the courts decide a series of cases which, though based on completely different facts and laws, share a common thread.  When tied together, the cases teach a valuable lesson that applies across the board.  So it is with sexual harassment, unemployment, USERRA and FMLA cases decided over the last several weeks.  Their common thread:  developing and applying effective employment policies is crucial to business success.

In the first of this three-part series, the topic is sexual harassment; the case is Cross v. Prairie Meadows Racetrack and Casino, Inc.  In this case, Lucy Cross alleged that she was sexually harassed while working as a parking valet for Prairie Meadows.  She described a work environment where, among other things, there was horseplay directed at her, an incident of inappropriate touching, and at least one sexually graphic conversation.

Prairie Meadows had zero tolerance for sexual harassment, and its policy listed various ways that employees could seek help if they experienced harassing or violent behavior.  The remedies included talking to a supervisor or directly contacting the human resources department.  The policy also provided that if an employee was unhappy with the resolution of her complaint, s/he could address his/her concerns to upper level management and the company CEO.

Cross read the policy and testified that she was aware that there were multiple effective avenues for reporting harassment.  Cross reported some of her concerns to the company, and the company followed up on them.  Despite the company’s policies which provided many other avenues for obtaining relief, Cross did not pursue them.

The court threw out Cross’s case because the company had followed its policy and responded appropriately to Cross’s complaints while Cross herself did not take reasonable steps to prevent the harassment or lessen the harm.  The court specifically noted that when an employer’s sexual harassment policy provides multiple effective avenues for reporting misconduct, a reasonable employee, after realizing that her initial complaints were ineffective, would then seek another remedy.

Cross vs. Prairie Meadows stresses that having and following a well-written sexual harassment policy can provide an effective defense to sexual harassment claims.  This will help satisfy the employer’s obligation to take prompt remedial action designed to end the harassment.  Moreover, it stresses that an important element of an effective sexual harassment policy is providing multiple avenues of relief for the aggrieved emploee.

Next in this series:  how strong personnel policies impact eligibility for unemployment benefits.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

September 15, 2010

DOL to Disney: Failing to pay for hours worked ain’t no Mickey Mouse

Posted in Exempt/Non-Exempt Employees, Fair Labor Standards Act, Hours Worked, Record Keeping tagged , , , , at 5:00 pm by Tom Jacobson

Sixty-nine employees of Disney World in Orlando, FL will be receiving $433,819.00 in back wages after a U.S. Department of Labor investigation uncovered violations of the Fair Labor Standards Act.

The workers were a group of non-exempt inventory control clerks in the park’s food and beverage department who were not paid for work done before and after their normal shift, during meal times, and when working from home.

The FLSA requires that non-exempt workers be paid for “hours worked.”  Generally speaking, “hours worked” include all time an employee must be on duty, or on the employer’s premises or at any other prescribed place of work, from the beginning of the first principal activity of the workday to the end of the last principal work activity of the workday.  This includes time spent working when employees are supposed to be on their breaks.

“While Walt Disney has specific rules regarding off-clock work, an investigation conducted by the Department of Labor’s Wage and Hour Division found that managers within the company were not adhering to those important policies,” said Wage and Hour Deputy Administrator Nancy Leppink. “It is not enough to have policies. Management must also ensure that all supervisors are implementing them.”

The DOL’s investigative findings stress how important it is for employers to have and enforce policies for tracking and paying for the  “hours worked” by their non-exempt employees, even the time spent working from home and on breaks.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

September 7, 2010

DOL targets health care & other industries in FLSA enforcement campaign

Posted in Aggregating Work Hours, Enforcement, Exempt/Non-Exempt Employees, Fair Labor Standards Act, Hours Worked, Independent Contractors, Independent Contractors, Meal Periods, Overtime, Rounding, Travel Time tagged , , , , , , , at 3:35 pm by Tom Jacobson

As a part of its stepped up efforts to enforce the Fair Labor Standards Act, the Department of Labor has taken aim at certain industries.  The health care industry now appears to be one of the DOL’s targets.

In a recent article published in the Workplace Law Bulletin, the Society for Human Resource Management noted that when common FLSA issues permeate an industry, the DOL will target that industry with its enforcement efforts.  In the health care industry, for example, SHRM listed the following common violations:

  • Meal period violations;
  • Rounding time in the employer’s favor;
  • Failing to pay for pre-shift/post-shift time;
  • Mistakes about what is “off the clock” time;
  • Travel time errors;
  • Failure to aggregate work hours;
  • Employee/independent contractor misclassifications;
  • Exempt/non-exempt employee misclassifications.

As a result, some DOL Wage and Hour Division district offices have started local initiatives targeting health care employers.  These initiatives have been costly for non-compliant employers.  For example, the DOL  reported earlier this year that $2.2 million in back wages was awarded to health care workers in New York, while over $2 million was awarded late last year to their colleagues in Connecticut and Rhode Island.

The health care industry is not alone.  SHRM reports that other low-wage industries, such as agriculture, day care, restaurants, garment manufacturing, hotels and motels, janitorial, and temporary help have also been targeted.    Given the DOL’s March, 2010 administrative interpretation that most mortgage loan officers are not exempt from the FLSA’s overtime standards, it appears that the financial services industry is also in the department’s sights.

Although certain industries may be DOL targets, all employers must be aware of what the FLSA requires, for violations can lead to not only DOL enforcement, but also private lawsuits brought by employees or classes of employees.  For these reasons, employment policy development and review, education, training,  and proper record keeping are musts for all employers.

The SHRM article, “Health Care Industry Targeted in FLSA Enforcement,” can be found at http://www.shrm.org/LegalIssues/FederalResources/Pages/HealthCareIndustry.aspx.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

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