A Final Special Post For 2010

December 30, 2010

Addressing the needs of the older workers is becoming more of an issue for employers. In 2011, seventy-six million baby boomers will begin turning 65 years of age. That will mean more retirements that will have a huge impact on the work environment.  Employers should embrace and utilize the skills of these workers and not just usher them out the door.

SHRM (Society for Human Resources Management) found through a survey that employers are bracing for the loss of mature workers  and that one out of five respondents indicated that the potential loss of baby boomers would be a problem for their organizations. Some employers have even implemented or plan to implement programs in preparation for these retirements while others have initiated workplace flexibility programs that will enable older employees to work and balance their personal lives.

On the other hand some employers may embrace the exodus because of the conflicts caused by generational issues, stereotypes and discriminatory comments that land employers in the cesspool of litigation.

Employers need to keep in mind if they do experience a high volume of retirements, the replacement of these individuals should be based on their qualifications and not their youth. In addition, there are still older workers out there who want to continue to work (and considering the state of the social security benefit program-who knows?) and will be searching for opportunities. 

I would like to take this opportunity to thank each and every one of you for reading my Blog every week and hope that you have found it to be beneficial throughout the year. On behalf of Potts & associates and its entire staff we wish you all a prosperous 2011.

Altering Time Records Can Mean Personal Liability-A New Case

December 27, 2010

U.S. Department of labor has once again jumped into the mix and stated under the Fair Labor Standards Act that employees can sue their managers, human resource professionals, and owners for altering time sheets and hold them personally liability.

We have had many discussions with our clients on this exact issue. If you’re responsible for approving time sheets or signing off on alterations to the hours reported, it’s not just the organization that can be held liable according to a new ruling on the federal level. The U.S. Department of Labor announced that they have been receiving more complaints in this area as well as employees being forced to work through breaks. As I have stated previously, federal audits regarding wage and hour related issues will be increased next year. Some clients have already been audited.

For breaks to be unpaid, employees must be completely relieved of their duties. Do not let them take their breaks or lunch at their workstations. There was a recent case where the managers of a particular company routinely deducted time (i.e. lunch, missed punches, unauthorized overtime) and the CEO or Human Resource person signed off on the altered time record. Be particularly careful if you have a business that requires staff to remain on premises or have to call in when they are not on the premises.  Because their time was not their own the court said they should be compensated. I this case the court held the CEO personally liable and ordered him and the company to pay $500,000 to the employees.

For the reasons stated above you have to make sure supervisors and managers don’t encourage off-the-clock work OR the altering of time records. If your responsibilities include approving time records don’t get caught with going along with the status quo. As a final note, don’t make assumptions that the supervisors or managers are doing everything according to company policy. I cannot tell you the number of times that we have conducted HR Audits and to the “shock and awe” of our main contact we find that that similar practices as noted above are happening on a regular basis. My best advice is for you to monitor time record keeping procedures and do not sign off (and make sure to document your objections) on practices that you know are illegal.

New EEOC Regulations Effective January 2011

December 20, 2010

The EEOC has issued final GINA regulations which take effect January 10, 2011.  GINA refers to the Genetic Information Nondiscrimination Act that was signed into law in 2008 and took effect in November 2009.  GINA, which applies to employers (both private and public) with 15 or more employees, prohibits employers from using genetic information in making decisions about terms, conditions and privileges of employment.  The Act also specifically prohibits employers from requesting, requiring, purchasing, or disclosing employees’ genetic information.

This is very important. Read the entire article! The EEOC will be pushing hard on this new law.

Under GINA, the term “genetic information” includes (1) information about an individual’s genetic tests; (2) information about genetic tests of an individual’s family members; (3) information about a genetic disease or disorder of an individual’s family members; (4) an individual’s request for, or receipt of, genetic services, or participation in clinical research relating to genetic services; and (5) genetic information of a fetus carried by an individual.

Importantly, GINA’s prohibition against acquiring genetic information does not apply to information that is “inadvertently” acquired by the employer (e.g. in response to a lawful request for medical certification under the FMLA).  However, the final regulations make clear that in order for an employer to show inadvertence and avail itself of this safe harbor, an employer requesting medical information from an employee or medical provider must specifically advise the employee or health care provider not to disclose genetic information.  The regulations provide the following sample language that can be used in medical certifications and/or letters requesting medical information to satisfy this safe harbor requirement:

“The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law.  To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information.  “Genetic Information” as defined by GINA includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.”

Employers are advised to modify their medical certification forms and similar letters seeking medical information (e.g. with respect to a request for accommodation) by January 2011.  If they have not already done so, employers are also advised to revise their policies to add genetic characteristics to the list of protected classes for equal opportunity employment and non-discrimination/harassment purposes.

The new regulations also provide guidance on other types of “inadvertent” disclosure, including learning of genetic information through social media or in the course of casual conversation.  If an employer learns of an employee’s genetic information through voluntary disclosure by the employee, it will be considered inadvertent.  However, if the employer affirmatively solicits the information or requests more specifics than volunteered by the employee, the acquisition may no longer be considered inadvertent.  The key is that employers are prohibited from purposefully seeking genetic information.

Employers who have voluntary “wellness programs” tied to certain health-related conditions should have those programs reviewed for compliance with GINA.  The EEOC regulations do not prohibit such programs, but they do limit the employer’s ability to request genetic information (e.g. through a health survey) in connection with such programs.

To review the full text of the GINA regulations, click here.

Paying For Travel Time-Are You in Compliance?

December 13, 2010

Employers know that they do not have to pay employees for the typical commute to work.  The tricky part involves nonexempt employees, several work sites or overnight travel. To determine whether or not you have to pay, just remember if the travel is for the benefit of the employee, you don’t have to pay. If the travel is for the benefit of the employer you will have to pay. Here are some important rules to remember.

Home-to-work travel

Under the Fair Labor Standards Act (FLSA) and the Portal-to Portal Act, regular travel back and forth to work does not count as working time unless the employee actually works along the way. This is true even if the work site fluctuates. It does not matter whether the employee works at a fixed location or different job sites. But if you require employees to report to a central location to receive their assignments, supplies or tools, then travel time from the central site to the job site is paid time.

Note: You must count travel that is a regular part of the worker’s daily duties as hours worked because federal law considers it “all in a day’s work.”  This includes travel to different job sites during the work day or time spent driving from customer to customer.

Day-Trips-Out of Town

Typically, all travel time on day trips is counted, except meal periods, if the employee travels to another city or job location on assignment. But travel to the airport or train station is not paid because it falls under the home-to-work rule. The travel time by flight and whatever time they spend working after they land, is working time. If they have to spend the night they are only paid for “normal working hours.”


You don’t have to pay employees for time spent at training programs, lectures, or similar activities as long as they meet the following four criteria:

  1. The event is outside the normal working hours.
  2. It’s voluntary.
  3. It’s not job related (employees may want to improve their personal skill set).
  4. No work is performed during that time.

If all four of the above are not satisfied you must pay.

When in doubt, lean toward paying. It is cheaper in the long run to avoid a Labor Board claim or be faced with a class action lawsuit.

DOJ Gives Guidance Regarding Social Security No-Matches

December 6, 2010

The U.S. Department of Justice (DOJ) weighed in this week with guidance on how Employers should handle social security number no-matches for employees.  DOJ stressed that a no-match should merely be the start of an inquiry and a request to the employee to help resolve the discrepancy.  It should not be cause for an immediate termination, or immediate filling out of a new I-9.

There is still an open question as to how much time an Employer has before they should request a new I-9, and if necessary terminate an Employee with a social security no-match.  DOJ stressed that each case is fact specific.  Interestingly, they also noted that for E-Verify employers, the Social Security Administration (SSA) can now hold a tentative non confirmation in abeyance for up to 120 days if the facts warrant it.

Causes of social security no–matches include: name changes due to marriage or divorce, input errors by SSA staff; reporting errors by an employer or employee, identity theft, errors in reporting hyphenated surnames, and fraud.

This new guidance from DOJ is helpful.  However, employers are still concerned whether U.S. Immigration & Customs Enforcement (ICE) will have the same view as to how much time is reasonable to resolve a no-match.  Until Congress decides to create a uniform electronic verification system, employers will still be left with many uncertainties.  For information on the latest DOJ pronouncement, see: http://www.justice.gov/crt/osc/htm/SSA.php.