Making an Employment Decision? 5 Questions to Ask!

November 27, 2017

As consultants, we are asked to review a lot of employment decisions. If we’re lucky, we’re brought in early in the process when the decision isn’t yet final and where our input can be useful. Unfortunately, at other times, we’re asked to give an opinion on decisions after the fact.

And truth is, it’s really pretty easy to Monday morning quarterback employment decisions and sometimes there is something that wasn’t thought of before the decision was made.
Often, it may not be important. The employer would have still made the same decision if something else was looked it. Sometimes!

Had you known that there was a law protecting free speech in the workplace, would you still have disciplined the employee for putting up a post on Facebook about his working conditions? Hopefully not but this is a simple example.
Many employers can’t afford an in-house attorney to bounce their decisions off, which is why we have been in business for 37 years!

So, for those companies, here are five questions to get you thinking BEFORE you make an employment decision. These are merely suggestions and when in doubt about any such decisions make sure you get the proper advice before moving forward.

1. Is the decision fair? If you can’t answer this question honestly, start over. You’re doing it wrong. Fairness matters to judges, juries, and other employees.
2. Is the employee going to be surprised by the decision? Good management principles dictate that employees should know what is going on. If you’re terminating an employee for poor performance, did the employee know his or her performance was in jeopardy?
3. Is the decision well documented? Is there backup to support the decision and is the rationale clear from them? And is the decision being properly communicated to the employee too?
4. Are there any laws that are implicated by the decision? This is one area that is tough to fake. You probably know you can’t fire someone because of their age, but what if you are trying to save money; can you fire the highest paid employee who also happens to be the oldest?
5. Is there anything else going on that should be taken into consideration? For example, did the employee just return from maternity leave, or medical leave (work related or not). Has the employee been asking for an accommodation?

Obviously these five questions won’t solve all your employment law decisions however, it should give you a head start on figuring out what other questions you should be asking and whether the decision you are about to make is one that you’ll be happy with down the road.

On another, be safe over the holidays! We are living in different times. Be, aware, be vigilant, and once again, be safe!

Employer Rules for Conducting Background Checks in California

November 20, 2017

Let me start out by stating background checks are not required by law and in some respects are becoming a thing of the past. California has stated you can only do credit checks for those handling money. Keep in mind, Credit checks are a part of background checks which, effective January 1, 2018, can only be done after the job offer.

If you choose to conduct background checks (some organizations are required because of their type of business) yourself or hire a third party, thoroughness and full compliance with each standard helps avoid costly litigation.

Class Action Case Example

For instance, when conducting background checks in the State of California, there are two statutes that must be followed in addition to the federal government’s Fair Credit Reporting Act. The Consumer Credit Reporting Agencies Act (CCRAA) monitors reports on an individual’s “creditworthiness.” And the Investigative Consumer Reporting Agencies Act (ICRAA) focuses on gathering information that helps employers evaluate an individual’s character.

There are some differences in how this information is obtained and applied. And companies are expected to follow these statutes to the letter for employee fairness and the protection of consumers.

Observing these laws may seem tedious and following them to the letter may seem unnecessary to some. You might think that meeting the standards of one set of rules might prevent you from facing any penalties if you fail to fully meet standards of a second set of rules. But you may not want to take that risk. Some employers don’t even bother.

In the case of, Conner v. First Student, Inc. an appellate court is examining a prior ruling in favor of the employer. Connor filed a class action lawsuit on behalf of herself and over 1,200 coworkers who underwent another round of background checks after First Student acquired their former employer, Laidlaw. Initially, the California Supreme Court ruled that ICRAA requirements were “unconstitutionally vague” when used in conjunction with CCRAA criteria.

But the appellate court reversed that judgment and concluded that companies are obligated to comply with both ICRAA and CCRAA, and can do so without violating either.
Employer Liability

Employers are liable for threats to consumers whether they conduct background checks themselves or rely on third-party reports.

While some background reports provide inaccurate (e.g., wrong person or information like expunged records erroneously reported) and/or incomplete (e.g., pertinent criminal history was excluded or not discovered) information, this doesn’t preclude companies from penalty.

An Uber case offers an appropriate example. Although Uber detailed their extensive approach to conducting background checks on drivers in the State of California, the company must pay the County of Los Angeles and the City and County of San Francisco 5 million dollars each – with millions more in stipulation fees if they fail to comply within a specified amount of time – because the State accused them of misleading passengers about the thoroughness of their driver screenings.

It turns out that some of their California drivers were registered sex offenders, had criminal records, and one had been convicted of murder. Employers are held accountable for relying on inaccurate or incomplete reports when making hiring decisions, even with independent contracting positions like this one.

Navigating the California background check landscape requires meticulousness:
1. Fully comply with ICRAA and CCRAA, even when there appears to be overlap in information provided by each report.
2. Obtain proper authorization prior to conducting a background check using stand-alone documents.
3. Outline the manner in which personally identifiable information will be used offshore.
4. If information will be used offshore, a separate statement or web page should be labeled, “Personal Information Disclosure: United States or Overseas.”
5. For online application permissions, a separate web page must conspicuously detail request and use of personal information for background checks.
6. Provide the applicant or employee with the option to obtain a copy of the report and to dispute any questionable information.
7. Derive as much information from primary sources as you can; don’t solely rely on electronic databases.
8. Authorization form must have a check box that allows applicant to obtain copy of background check report if he/she desires.
9. Be certain to provide consent forms in a language the individual understands (e.g., a Spanish translation for those whose primary language is Spanish).

If this whole process sounds overwhelming and even downright scary, you might consider not attempting it in-house. I suggest that you use a reputable background screening service that has experience in complying with the required regulations.

A Reasonable Accommodation Test for Employers!

November 13, 2017

Now as much as I “preach” on this issue let’s find out how much do you know about an employer’s reasonable accommodation obligations under the law(s)? Take this quiz and find out! I found this on the internet and thought it was good.

Question 1: Which of the following federal employment laws require reasonable
accommodation, either by their terms or as courts have interpreted them over the years?
A. The Americans with Disabilities Act
B. The Family and Medical Leave Act
C. Title VII-religion
D. The Nursing Mothers Act
E. The Pregnancy Discrimination Act
F. All of the above
G. A, C, D, and E

Question 2: Which of the following disability accommodations does an employer at least have to be prepared to consider under the ADA?
A. Displacing a current employee to reassign an employee with a disability.
B. Creating a vacant job for an employee with a disability.
C. Making an accommodation that would be perceived by co-workers as unfair.
D. Promoting an employee as a reasonable accommodation.
E. Accommodating someone who is “regarded as” having a disability but does not have an actual disability.

Question 3: Melinda, a data entry clerk, needs time off during her work day to express milk for her three-month-old baby. Her employer gives her 20 minutes of unpaid time off, assigns her an unused cubicle without a door, and tells her to send an email to her co-workers when she is using the cubicle, warning them to stay away until she is through. In what ways has the employer failed to comply with its “lactation accommodation” obligations under the Nursing Mothers Act?
A. None. The employer has fully met its obligations under the NMA.
B. The employer has failed to provide Melinda with a blanket or shawl that she can use to cover herself up while she expresses milk.
C. The employer gave her 20 minutes, but if Melinda needed more than 20 minutes, including preparation and clean-up/storage, it would be required by law to give her more time.
D. The employer did not pay Melinda for her time spent expressing milk.
E. The employer did not give Melinda a private location with a locked door.
F. C and E.
G. B, C, D, and E.

Question 4: Leon is a devout Baptist working at a plant that has 24/7 operations. Leon tells you that he cannot work at all on Sundays because he believes Sunday is a day of rest and it would be a sin to perform productive work on that day. He is willing to use his accrued vacation time for those days, or to work extra during Monday through Saturday. You have hundreds of other Baptist employees, some of whom take off Sunday mornings long enough to go to church but then come to work, and others who don’t take Sundays off at all. You tell Leon that he cannot have Sundays off “because the Baptist Church doesn’t require Baptists to take all of Sunday off.” You tell him that you are willing to let him take off the time necessary to attend Sunday services. If Leon files a charge with the Equal Employment Opportunity Commission, you will win.
A. True
B. False

Question 5: You are the owner of a child care center that has 30 employees. A toddler teacher, Janice, is four months pregnant and brings you a note from her doctor saying that she is restricted from lifting more than 10 pounds for the duration of her pregnancy. You already offer light duty to employees who have on-the-job injuries, and you accommodate lifting restrictions for employees with disabilities as required by the Americans with Disabilities Act. If you accommodate these other “restricted” employees, you must offer similar accommodations to Janice for her pregnancy-related restriction.
A. True
B. False

Question 6 (BONUS!): Because toddlers still like to be carried and weigh a lot more than 10 pounds, you are struggling with how best to accommodate Janice’s lifting restriction. What should be your first step?
A. Fire Janice.
B. Require Janice to take a leave of absence until after her baby is born.
C. Begin the “interactive process” with Janice and brainstorm with her about ways to accommodate her lifting restriction, given the requirements of her job and what assistance is available.
D. Give Janice blanket permission to let the toddlers sit on the floor and cry their eyes out when they want to be picked up.
E. Reassign Janice to the receptionist desk until her baby is born.


ANSWER: G. The FMLA does not require reasonable accommodation, but all of these other laws do. And there is some overlap between the FMLA and pregnancy or disability accommodation because leave for pregnancy or disability can be a form of reasonable accommodation.

ANSWER: C. Even if the accommodation might not be well-received by co-workers, the employer would have to remain open to making it if it was an effective accommodation that would let the employee with a disability perform the essential functions of the job. Employers are generally not required to make “accommodations” A, B, D, or E.

ANSWER: F. Under the Nursing Mothers Act (which amended the Fair Labor Standards Act), the employer would be required to give Melinda as much time as she needs, and that time must include reasonable prep time and reasonable storage and clean-up time in addition to the time spent actually expressing milk. Twenty minutes may be enough for that, or it may not be. The location must be private (not a bathroom) with restricted access. (It’s also not cool expecting her to announce to everyone in the office that she is getting ready to express breast milk!) However, the time can be unpaid if the employee is non-exempt under the FLSA. (If the employee is FLSA-exempt, the employer is not required to offer lactation breaks, but if it does, it cannot dock the employee for the time.)

ANSWER: False. You would be required to at least try to accommodate Leon’s sincerely held religious belief. Because Baptists make their own determinations as individuals regarding their religious obligations, the fact that some Baptists handle this differently is not relevant and certainly does not mean that Leon’s belief is not sincere or legitimate. Assuming you have plenty of employees who can work in Leon’s place on Sundays, and that there is no other undue hardship, you would be expected to accommodate him.

ANSWER: True. It’s possible to make an argument that work-related injuries and ADA-qualifying disabilities are different from pregnancy-related restrictions, but that is not at all clear after the Supreme Court’s 2015 decision in Young v. UPS. If you don’t want to be a legal “test case,” you should try to accommodate Janice’s restrictions.

ANSWER: C, obviously!

All six correct: Awesome! You can perform the essential functions of VP-HR, with or without a reasonable accommodation!
4-5 correct: Great! You are a “qualified individual”!
2-3 correct: Hmm. We may need to engage in the “interactive process.”

Holiday Pay Reminders!

November 6, 2017

With major holidays approaching over the next two months I felt compelled to put out this Blog because I know the questions will come pouring into the office! The following represents the most common questions.

  1. Do you have to pay for holidays? You are not required to pay non-exempt employees for holidays. Paid holidays is a discretionary benefit left entirely up to you. Exempt employees present a different challenge. The Fair Labor Standards Act does not permit employers to dock the salary of an exempt employee for holidays. You can make a holiday unpaid for exempt employees, but it will jeopardize their exempt status, at least for that week.
  2. What happens if holiday falls on an employee’s regularly scheduled day off, or when the business is closed? While not required, many employers give an employee the option of taking off another day if a holiday falls on an employee’s regular day off. This often happens when employees work compressed schedules (four 10-hour days as compared to five 8-hour days). Similarly, many employers observe a holiday on the preceding Friday or the following Monday when a holiday falls on a Saturday or Sunday when the employer is not ordinarily open.
  3. If we choose to pay non-exempt employees for holidays, can we require that they serve some introductory period to qualify? It is entirely up to your company’s policy whether non-exempt employees qualify for holiday pay immediately upon hire, or after serving some introductory period. Similarly, an employer can choose only to provide holiday pay to full-time employees, but not part-time or temporary employees.
  4. Can we require employees to work on holidays? Because holiday closings are a discretionary benefit, you can require that employees work on a holiday. In fact, the operational needs of some businesses will require that some employees work on holidays (hospitals, for example).
  5. Can we place conditions on the receipt of holiday pay? Yes. For example, some employers are concerned that employees will combine a paid holiday with other paid time off to create extended vacations. To guard again this situation, some companies require employees to work the day before and after a paid holiday to be eligible to receive holiday pay.
  6. How do paid holidays interact with the overtime rules for non-exempt employees? If an employer provides paid holidays, it does not have to count the paid hours as hours worked for purposes of determining whether an employee is entitled to overtime compensation. Also, an employer does not have to pay any overtime or other premium rates for holidays (although some choose to do so).
  7. Do you have to provide holiday pay for employees on FMLA leave? You have to treat FMLA leaves of absence the same as other non-FMLA leaves. Thus, you only have to pay an employee for holidays during an unpaid FMLA leave if you have a policy of providing holiday pay for employees on other types of unpaid leaves. Similarly, if an employee reduces his or her work schedule for intermittent FMLA leave, you may proportionately reduce any holiday pay (as long as you treat other non-FMLA leaves the same).
  8. If an employee takes a day off as a religious accommodation, does it have to be paid? An employer must reasonably accommodate an employee whose’ sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. One example of a reasonable accommodation is unpaid time off for a religious holiday or observance. Another is allowing an employee to use a vacation day for the observance.

Here comes the disclaimers. The laws of your state might be different. If you are considering adopting or changing a holiday pay policy in your organization, or have questions about how your employees are being paid for holidays and other days off, it is wise to consult with an HR professional or counsel. Also, these 8 tips assume that your company lacks a collective bargaining agreement.

Happy Holidays and be safe out there!