What’s New in HR?

1. What’s New in HR? Presented by Kellie Boysen, MBA, PHR From Alternative HR

2. Today we will talk about… Confidentiality Policy Requirements Gender Identity Protection Legal Application Questions Cell Phone/ BYOD Policies FLSA Issues: Time clock procedures, meal/ break policies and exempt employees FMLA Mailbox Rule Ruling OSHA Violence Concerns

3. What we need to know about Confidentiality Policies… • We can no longer make generic statements about what is considered confidential. List specific items/ data. • Recent case law: Phillips Electronics’ unwritten workplace policy prohibited employees from discussing their discipline with other employees. This, according to the NLRB, violated Section 8(a)(1) and was therefore unlawful.  • "Nothing in [Company's] _____ policy is designed to interfere with, restrain, or prevent employee communications regarding wages, hours, or other terms and conditions of employment."

4. Executive Order 11246Include "sexual orientation" and "gender identity" in the list of protected classes federal contractors and subcontractors may not discriminate against. The Executive Order only applies to federal contractors and subcontractors. Unlike 18 other states and the District of Columbia, Pennsylvania does not have a law prohibiting employment discrimination based on sexual orientation or gender identity—however many of the Commonwealth's largest cities including Pittsburgh, Harrisburg, and Philadelphia do.

5. What does your EEO/ Non-Discrimination Policy State?

6. “We hold that when employees must use their personal cell phones for work-related calls, Labor Code section 2802 requires the employer to reimburse them. Whether the employees have cell phone plans with unlimited minutes or limited minutes, the reimbursement owed is a reasonable percentage of their cell phone bills. Schwan knew that these managers used their personal phones and made no effort to curtail the use of personal cell phones or to reimburse employees for using their personal phone. Take away: Prepare concise procedures for cell phone use for work-related purposes.  If you don’t want to supply a company phone for your employees to use, make sure that the expectations of use and reimbursement of personal cell phones is crystal clear.

7. Can I ask if a candidate has a criminal record? Can I ask if a candidate has had a workers comp injury?

8. Fair Labor Standards Act Issue • Employees claimed that they were often interrupted and forced back to work during the required meal period.  According to the employees, the company’s point of service (POS) system did not allow employees to accurately track meal breaks shortened by interruptions, rather a manager had to override the system to allow employees to shorten the period. • Review your POS system to evaluate whether employees could, if needed, record shortened meal periods when taken.  If your system doesn’t allow for adjustments, then make sure that your organization has clear policies on how the employee’s time will be adjusted and how the organization ensures that the employee is properly compensated.

9. More FLSA Issues • Does your company utilize time clock rounding policies? • Are hourly employees permitted to eat unpaid lunch at their desk? • Are you confident that your exempt employees meet the exemption requirements? • Are hourly employees checking email or responding to work calls from home? • Should your independent contractors legally be employees?

10. The “Mailbox Rule” The Mailbox Rule is an evidentiary presumption that mail will be received by the intended recipient if it is properly addressed, with proper postage, and delivered to the U.S. Postal Service.  Employers often conclude (based on this presumption) that their FMLA individual notice mandate is satisfied upon sending such notice via U.S. Mail. Corinthian Colleges Inc. (CCI) met with an employee prior to her leave (though they never specifically discussed her FMLA rights).  CCI followed up the same day with an individual letter detailing her FMLA obligations and rights.  When she advised CCI that she was ready to return to work 16 weeks later, CCI told her that she needed a full release, which she obtained.  However, rather than return her to work, CCI terminated her because (i) she had not returned to work within 12 weeks (the amount of FMLA job-protected leave) and (ii) CCI suffered from low student enrollment.  She asserted that she never received the letter, and then sued CCI for FMLA interference and retaliation.

11. Employers should: • Consider using more than one method to communicate with your employees on important matters (e.g., e-mail and regular mail or certified mail). • Contemporaneously document conversations with employees with an eye towards potential litigation. • Review handbooks and posters, and use up-to-date forms to ensure compliance with legally mandated general and individual notices. • Discuss with HR/ counsel potential risky terminations.

12. Although employers have an obligation to protect workers from unsafe conditions, not all do. OSHA recently applied its "general duty clause" to cite two different companies for willful violation and assessed fines. The broad duty clause, which falls under the Occupational Safety and Health Act of 1970, requires employers to create a workplace that's free from recognized hazards causing or likely to cause serious physical harm or death to employees.

13. The Cases • One of the companies provided healthcare services to inmates at a correctional facility. The provider was fined $71,000 last year because it failed to develop and implement an effective workplace violence prevention program. • The other company -- a hospital -- was fined $78,000 this year, mainly for failing to protect its workers. Approximately 40 incidents of workplace violence were reported between February and April, including an attack on a nurse who sustained severe brain injuries.

14. What can be done? • Develop Zero Tolerance Policy • Require employees to work in teams • Train employees on how to handle violence • Conduct trend analysis • Implement controls: cameras, lighting, security, bolt things down • Background checks!!!

15. Questions?