Federal Personnel Recordkeeping Requirements

October 27, 2014

Federal personnel recordkeeping requirements are mandated by the Equal Employment Opportunity Commission. EEOC Regulations require that employers keep all personnel or employment records for one year. If an employee is involuntarily terminated, his/her personnel records must be retained for one year from the date of termination.

Under ADEA recordkeeping requirements, employers must also keep all payroll records for three years. Additionally, employers must keep on file any employee benefit plan (such as pension and insurance plans) and any written seniority or merit system for the full period the plan or system is in effect and for at least one year after its termination.

Under Fair Labor Standards Act (FLSA) recordkeeping requirements applicable to the EPA, employers must keep payroll records for at least three years. In addition, employers must keep for at least two years all records (including wage rates, job evaluations, seniority and merit systems, and collective bargaining agreements) that explain the basis for paying different wages to employees of opposite sexes in the same establishment.

These requirements apply to all employers (15 or more employees) covered by Federal anti-discrimination laws, regardless of whether a charge has been filed against the employer.

When a Charge Has Been Filed

The EEOC Notice of Charge form that you receive should explain the agency’s record keeping requirements. When an EEOC charge has been filed against your company, you should retain personnel or employment records relating to the issues under investigation as a result of the charge, including those related to the charging party or other persons alleged to be aggrieved and to all other employees holding or seeking positions similar to that held or sought by the affected individual(s).

Once a charge is filed, these records must be kept until the final disposition of the charge or any lawsuit based on the charge. When a charge is not resolved after investigation, and the charging party has received a notice of right to sue, “final disposition” means the date of expiration of the 90-day statutory period within which the aggrieved person may bring suit or, where suit is brought by the charging party or the EEOC, the date on which the litigation is terminated, including any appeals.

Internet Addiction Disorder (IAD): Employers Beware!

October 20, 2014

Internet addiction disorder (IAD) is characterized by the problematic use of online video games, computer use, and mobile handheld devices. While not officially a clinical diagnosis according to the most recent version of the Diagnostic and Statistical Manual of Mental Disorders (DSM), individuals with IAD manifest severe emotional, social, and mental dysfunction in multiple areas of daily activities due to their problematic use of technology and the internet.

A California man who checked in to the Navy’s Substance Abuse and Recovery Program for alcoholism treatment was also treated for a Google Glass addiction. San Diego doctors say the 31-year-old man “exhibited significant frustration and irritability related to not being able to use his Google Glass.” He has a history of substance abuse, depressive disorder, anxiety disorder and obsessive-compulsive disorder, they say.

The man was using his Google Glass for up to 18 hours a day in the two months leading up to his admission in September 2013, according to the study…. “He reported that if he had been prevented from wearing the device while at work, he would become extremely irritable and argumentative,” the doctors wrote.

Apparently the doctors noted their patient repeatedly tapped his right temple with his index finger … an involuntary mimic of the motion regularly used to switch on the heads-up display on his Google Glass.

What results when we toss this “addiction” into the employment-law blender?

  • Do you have employees who seem to spend an inordinate amount of time online? Is it affecting their performance and inhibiting their ability to perform the essential functions of their jobs? If so, you may have to engage them in the interactive process to determine if there exists a reasonable accommodation that enables them to perform those essential functions? For example, could you deny computer access to employees who do not need to use a computer for their jobs, and require that such employees leave their cell phones outside the work area?
  • Do you have a policy that prohibits non-work-related Internet use? If so, it might run afoul of the ADA, just like hard-capped leave absence of policies. It’s not that employers cannot place reasonable limits on workplace computer use. By instituting a ban, however, employers are avoiding their obligations to engage in the interactive process, thereby violating the ADA.

These are difficult issues, exacerbated by the novelty of the concept. Nevertheless, the more the Internet becomes entrenched in our lives, the greater the likelihood that employees will begin embracing ideas such as Internet addiction as a disability and the need for employers to consider and provide reasonable accommodations. It’s a brave new world, we just happen to work in it.

NOTE: The Podcast this week discusses “FMLA SLIP UPS MADE BY EMPLOYERS!” Go to www.pottsandassociates.com and simply click on the podcast link or go to Itunes and click on “Listen Up with Jim Potts”

New OSHA Rules Effective January 1, 2015

October 13, 2014

Recently, the federal Occupational Safety and Health Administration (OSHA) announced a final rule changing requirements for reporting severe injuries and fatalities. The rule also modifies OSHA’s exemptions from its record-keeping requirements. The new rule takes effect January 1, 2015.

In most circumstances, there is no obligation to notify OSHA when there is an injury or illness incurred at work. Employers are required to log work-related injuries and illnesses on OSHA forms. OSHA does inspect those logs when they conduct workplace investigations. But, in most cases there is no general obligation to notify OSHA when an employee becomes ill or injured at work except in two instances.

Employers do have an obligation to notify OSHA within eight (8) hours if there is a fatality at work. Even though the obligation relates to “work-related” fatalities, OSHA interprets the obligation broadly and requires, for example, that every heart attack that occurs at the workplace must be reported, even if the employer feels circumstances suggest there was no work causation. Under the old OSHA regulation, the other circumstance under which an employer was required to notify OSHA was if a single workplace accident resulted in in-patient hospitalization of three or more workers. In that case, notice to OSHA was required within 24 hours.

OSHA’s revised rule keeps intact the obligation to notify OSHA of work-related fatalities within eight (8) hours. The new rule expands the obligation for notice to OSHA of other kinds of workplace incidents. Under the new rule, employers will be required to notify OSHA within 24 hours if a workplace incident results in any in-patient hospitalization, regardless of how many employees are affected, and also in the case of any amputation or the loss of an eye.

The new rule does not change OSHA’s basic obligations for record-keeping. Employers with 10 or fewer employees are still exempt from the basic OSHA record-keeping requirements. However, OSHA has updated the list of specific industries that are exempt from the requirement to keep routine injury and illness records. Certain low-hazard industries have always been exempt from the basic record-keeping requirements. The new rule establishes a new list of exempt industries. The basic OSHA record-keeping requirements will now be extended to some industries that were previously exempt. The list of newly-covered industries includes, but is not limited to, automobile dealers, many retailers, industries providing services to buildings and dwellings, and various amusement and recreation industries. The changes are a result of OSHA switching from reliance on the old Standard Industrial Classification system over to the new North American Industry Classification System.


Employers Now Liable as “Dual Employers” When Hiring Labor Contractors!

October 6, 2014

Well, here is another blow for employers! California’s Governor Jerry Brown has signed AB 1897 into law, notwithstanding tremendous opposition from business and trade groups.  Under AB 1897, which takes effect January 1, 2015, a client employer will share civil legal responsibility and civil liability for all workers supplied by a labor contractor for the payment of wages and the failure to obtain valid workers’ compensation coverage.  A “client employer” means a business entity that obtains or is provided workers to perform labor within its usual course of business from a labor contractor.  However, it does not include business entities with a workforce of less than 25 workers (including those hired directly by the client employer and those provided by a labor contractor) or businesses with five or fewer workers supplied by a labor contractor at any given time. The new law makes the client employer jointly liable with the labor contractor for civil liability relating to the payment of wages and/or failure to provide workers’ compensation coverage.  However, the statute expressly permits client employers to include indemnification provisions in their service contracts and to enforce those provisions as a remedy against the labor contractor for liability created by acts of the labor contractor.  Labor contractors may also contractually agree to indemnity provisions in their favor for acts on the part of the client employer that lead to liability.  The statute sets forth one exception to the ability of the parties to shift liabilities by contract – a client employer may not shift to the labor contractor any legal duties or liabilities under Cal-OSHA. Under the new law, a worker or his representative must notify the client employer of violations at least 30 days prior to filing a civil action against the client employer.  Of course, the new law also prohibits client employers or labor contractors from taking adverse action (another anti-retaliation provision) against a worker for providing notifications of violations or filing a claim or civil action. As many of you know, we have been discussing “dual employer” relationships for years. If you have business relationships that provide a labor force to you, please make sure you have an indemnification clause included in your agreement. Of course if you have not operated with an agreement in the past, “do the math.” You need one or you will be on the hook as well. Just remember, having an indemnification clause will not prevent an attorney from dragging you into the mix. It only means that financially you are being covered by the labor contractor. Looks like Christmas came early for the plaintiff attorneys, which will now have more potential pockets to pick in wage and hour actions filed against California employers. NOTE: The Podcast this week is discussing the second half (and final) of what should, or should not, be placed in a personnel file.