Show Notes: Episode 22 – SHRM Credit: Employment Law Q&A
February 12, 2018
Show Notes: Episode 23 – SHRM Credit: Meeting Skills
February 26, 2018

Click here for this episode’s show notes.

This transcript was created using an automated transcription service and may contain errors.

JoDee  0:08 

Welcome to The JoyPowered® Workspace Podcast, where we talk about embracing humanity in the workspace. I am JoDee Curtis, owner of Purple Ink and author of the “JoyPowered®” workspace, the inspiration for this podcast series, and I’m here with my good friend, Susan White, a national HR consultant.

Today’s topic is on employment law. Now, note that Susan and I are both consultants and absolutely not employment law attorneys. And we don’t want to be either, right, Susan?

Susan  0:44 

Yes, that’s right.

JoDee  0:46 

We both, though, frequently receive questions about the law, and we thought it was time to cover some of the basics. If you have some complicated issues or you want some specific advice for your company, you may need to call your attorney, but we’ll be talking about some of the biggest employment law regulations passed in the last 60 years. Susan, I was talking to the director of the SHRM Knowledge Center a few weeks ago, and she told me that the number one issue they received the most calls about was FMLA.

Susan  1:24 

I believe that.

JoDee  1:25 

Yeah, it’s complicated, even though it’s been around for a long time. FMLA is the Family Medical Leave Act. At its simplest, generally, employers with 50 employees or more must offer 12 weeks of unpaid but job protected leave for specific family or medical issues during a 12 month period. The leave may be taken intermittently or all at once. Probably most widely used for pregnancies and new babies, those of which, of course, are somewhat pre-planned and the moms are off for a specified period of time. But there can be a whole host of complications and difficulty tracking other types of leave when the leave is not continuous. And then how do you track it with holidays, vacation, sick time, disability? So we have a caller with a question about FMLA. Our question today is from Laura. Laura, are you still on the line?

Laura  2:32 

Yes, I just started working for a new health care employer and I’m running FMLA or the family medical leave, and worker’s compensation concurrently when someone is off work for a work-related injury. Can you confirm that I’m handling that correctly?

Susan  2:50 

Well, Laura, thank you so much for calling in and I hope you’re going to enjoy the new job. So let’s start by explaining to our listeners what you mean by concurrently. Do you record the time off as worker’s comp and then use FMLA, or vice versa? Or if you take them at the same time and count them at the same time, then you’re doing it concurrently. So the answer, really, is yes. In your case, it is important to run FMLA and worker’s comp concurrently. Most employers run FMLA and worker’s comp simultaneously to stay in compliance and limit the amount of time injured employees can be away…away from work. You have to notify employees once they’ve had a worker’s comp injury and require them to fill out FMLA paperwork, and it may not be the first thing on your mind, but it’s very important to do, because there have been cases where an injured worker was able to maintain their employment for an additional 12 weeks because the employer had not issued proper notification of the worker’s FMLA rights nor filed paperwork to run FMLA leave during the employee’s recovery from a work injury. You want to make sure you’re handling leave the same for every person. Anything else you’d want to add, JoDee?

JoDee  4:02 

No, just that I think it’s complicated. Ironically, Susan, my husband just asked me a question yesterday about leave, not specific to FMLA, but about when do employers…do you have to use all your PTO time before you go into a disability situation? Which can become an FMLA issue. It may or might not be, but I was telling him that companies can determine their own policies around that as to whether or not you have to take PTO or not. And so questions like Laura’s about worker’s comp and FMLA and which one you do first…I mean, it gets very complicated to think about how do people use your time, so it’s definitely a tricky question. I would not…I mean, the answer…I agree with the answer to your question, but it’s a tricky concept of thinking how to track people’s time.

Susan  5:03 

And, you know, I always think about the employer out there who doesn’t have an HR person, or maybe the HR person really isn’t an expert at FMLA. It really is smart to do some coursework on it or to rely on maybe a consultant on the outside who this really is their specialty.

JoDee  5:19 

Right. So let’s go on. Our next topic is Title VII of the Civil Rights Act of 1964. Again, it’s been around for a long time, right, but we’re still getting questions around it. This act prohibits discrimination based on race, color, sex, religion, or national origin. It prohibits sexual or sex-based harassment. Harassment may violate Title VII if it is sufficiently frequent or severe to create a hostile work environment, or if it results in a tangible employment action, such as refusal to hire or promote, firing or demotion. It prohibits retaliation for a protected activity, including actions such as filing a charge of discrimination, requesting accommodation under the EEO laws, participating in an EEO investigation, or otherwise opposing discrimination. We have a question. Mary is calling in with a question about the Civil Rights Act. Mary, are you still on the line?

Mary  6:34 

Yes. I understand that we can’t discriminate against people at work and everyone has an equal opportunity to be hired, promoted, and treated respectfully. Sometimes I hear the term “retaliation” regarding discrimination and I don’t know for sure what it means and how business makes sure it doesn’t happen.

Susan  6:53 

Mary, that really is a great question. You know, I think those of us who’ve been in HR for a long time, we talk about retaliation a lot, but I don’t think we ever really stop sometimes and think about, you know, what does that mean to the normal worker who is wondering if they’re a victim of it? Well, retaliation is a business or an employer taking action against someone for having raised a claim of discrimination. So if someone says, you know, I’m being mistreated because of my age, my race, my disability, my whatever, and then after that the individual experiences some type of harmful treatment, that could be construed as retaliation. I had individuals who have made allegations of sexual harassment, that they believed that their boss was treating them differently, and in fact, was making some type of advances toward them that was unwelcomed.

JoDee  7:49 

Certainly heard a lot about that in the past couple months.

Susan  7:51 

Yeah. Sadly, in the world today, sadly, yes. And then the individual felt as though, come review time, that they were not rated nearly as highly as they should have been. So instead of getting an exceeds requirements, they were getting meets. And they really felt it’s because they had come forward and said that their boss had been hitting on them. So there…that’s an example, where someone feels like their performance is later evaluated lower because of them having come forward. I…you know, I’ve also had people who felt that, just by speaking up or reporting something, that they got on the radar or on the wrong side of management. And so it may not have been…they may not have used the term “retaliation,” but they really put it back to the fact that they had spoken up for themselves and how they were being…experiencing things and then later had some type of retribution.

JoDee  8:24 

Right. And obviously, that’s a problem, and the biggest issue around this #MeToo statements. Right? That women have not reported harassment claims over all of these years, and currently, women are still not reporting them because they fear this retaliation in the workplace, so they’ve kept it quiet. They’ve been secret about it for…for fear of this.

Susan  9:07 

That’s right. They say, you know, I don’t want to rock the boat. I don’t want to be on the wrong side of management. That fear of retaliation. So why it’s so significant is with the Civil Rights Act of 1964, it absolutely…It clearly states that retaliation is not allowed. And so if the EEOC, the Equal Employment Opportunity Commission, would come in and investigate a charge of discrimination, certainly the organization, if they had been found…there was merit found to that allegation, there would be consequences. However, if it’s retaliation involved, if they come in and they realize that not only did the individual raise an allegation of discrimination, but then the employer actually did some type of retribution or retaliation, the consequences are far greater and the punishments are far greater.

JoDee  10:02 

Our next topic is on the FLSA, the Fair Labor Standards Act. Susan, I mentioned earlier that the SHRM Knowledge Center told me the number one topic they received questions about was FMLA, and she said the number two topic related to compensation and pay. And I suspect that many of those questions connect back to the FLSA. This is a federal law which sets minimum wage, overtime, record keeping, and youth employment standards. Overall, I think one of the biggest issues I hear surrounding the FLSA is the definitions of exempt versus non-exempt. Right? So a non-exempt employee must be paid the minimum wage and overtime pay for any time worked beyond 40 hours in a given week, and exempt employees are therefore not entitled to overtime pay and are likely paid a salary, a bi-weekly salary or a weekly salary. I just had a question from a client on this issue last week. The client is a small company who just hired a part-time HR manager. She makes about $30 an hour, but she wanted to be paid on a reduced salary due to her 20 hour a week schedule, versus hourly. I think the HR manager had never not been paid salary before, and so I think it was difficult for her to be thought of as…treated like an hourly employee. And my client wanted to know if this was okay. Well, let me start by saying you can always pay people hourly. It doesn’t matter how much you make or what your job is. You can be the CEO of a company and be paid on an hourly basis.

Susan  12:04 

And I bet some of those CEOs would like to get paid that, all the hours that they work. Long…many of them, it’s much more than 40 hours a week, right?

JoDee  12:11 

As a matter of fact, maybe I’ll change my own pay to hourly now that we talk about that.

Susan  12:16 

Yeah.

JoDee  12:16 

Likely most of the questions revolve around when can you pay them salary. So could this part-time HR manager be paid on salary? Well, the answer to that is yes, because she meets the definition of an exempt employee. So I won’t…we won’t get into all of that today, about the differences between those, but in her case, she was a manager, she was supervising others, she was making decisions, she had authority over several areas, she was educated, she was certified. So a lot of those requirements are part of the definition of an exempt employee. But our recommendation was that she did get paid on an hourly basis so they could be clear about how much she was working, that there were tracking requirements in place, but they can hold her to a maximum number of hours. Also, it doesn’t mean if she decided to work 40 hours every week that they had to pay her for 40. Well, if she worked it, they would have to pay her, but they could ask her not to work more than 20 hours a week. Does that make sense, Susan?

Susan  13:39 

You know, I look back on my career. There was a point in time I was a part-time HR manager and I earned 80% of pay, and to me, that felt fair, because I actually went into the office four days a week, but I did work from home, I worked weekends, but I knew, being an exempt person, I wasn’t getting paid for all the hours I worked, just as if on one of those days I normally went to work, if I had to go to the doctor or go have some other type of appointment, I would get paid for it. So I think you can go either way. The good news is, as JoDee said, step one is is this job exempt or non-exempt, and there’s tests that are very well laid out for you to determine if it is or is not. But if, for simplicity standpoint, if you have an exempt person and you want to put in their tracking of hours, you absolutely can do it. In this particular situation, they would not be required, if she ended up working, just because they track their hours doesn’t mean we have to pay her for every hour that she works. That’s…there’s a lot of latitude with somebody who is exempt. So I think that they just have a lot of freedom to do whatever they want. So I think your client, the route they went, is absolutely fine. You know, I…as we talk about Fair Labor Standards Act, I love to reflect on the fact that this law has been in effect since 1938. That’s one of the older, you know, very active employment laws that we operate under. And the reason it went into effect is before 1938, there were a lot of factories and production places where they would tell people, you’re working six days a week from, you know, six in the morning till when it gets dark, and people really were not being treated fairly and fair and right. And so with this law, that’s when they created the 40 hour workweek and for any time over, that you’re eligible for time and a half. Now, lots of states and cities have actually changed and enhanced a number of things about minimum wage. For example, there is a federal minimum wage at the time of this broadcast of $7.25 an hour, but many parts of the country, it’s much higher than that. But this is really the one federal law that is the basis for really ensuring that we don’t have those sweatshops and things that we had in, you know, much of our country before 1938.

JoDee  15:52 

Right. Well, and if you recall, a lot of our listeners will recall there was a proposal for the Department of Labor that was supposed to go into effect…what was it, about December 1, 2016…

Susan  16:08 

That’s right.

JoDee  16:09 

Making changes to this law, which then didn’t get enacted, and we’re still waiting to hear if if new changes will come out on the act.

Susan  16:23 

Yes, that’s right. And that change was, in order to be a supervisor, considered a person who manages others, and that’s how you’re…what you’re using as a…as your exemption threshold, or the te…meeting the test of it. I think right now, JoDee, it might be like 20…gosh, I’m going to say the mid 20s, thousands of dollars, is…has to be the minimum wage of someone who is in a supervisory position, and it was going up to something like $47,000 and change or $46,000 something. And the fact is, is at the very last moment, the court put a hold on it and now we have a current labor secretary who has said that he thinks that amount is way too high. He does think it needs to go up, but they haven’t really reached a conclusion as to where.

JoDee  17:07 

Right. That…that 20 something number hadn’t been adjusted in a long time and it clearly is too low, but yes, it would have been a significant jump a year ago to jump to 47.

Susan  17:23 

One of the best things, I think, about that whole exercise in 2016, it caused a lot of employers to stop and think…Have we correctly classified our employees as exempt or non-exempt? And, you know, our advice as consultants is, you know, if you’re going to err one way or the other, err on making people non-exempt, because there’s no challenge or there’s no risk to that. But if you have mistakenly categorized some of your employees as exempt, meaning that you don’t have them on a time clock, you’re not, you know, watching the…every hour that they work and paying them, you know, any overtime for everything in excess of 40, you really could be at risk if any employee decided that they were going to file a wage and hour claim with the Department of Labor. Then you might have to demonstrate and to prove that you had them correctly classified, and if you have not, you may end up having to pay back wages for the past three years.

JoDee  18:14 

Right. And of course, it’s not just the wages, but also the payroll taxes, too, which, then you would be paying fines on the payroll taxes that weren’t paid, so that can result in some significant dollars.

Susan  18:28 

I would say a best practice is at least every couple of years to just sit, do a self-audit, you know, if we’ve created any new jobs, or even take a look at some of your old jobs, because duties do change, and a job at one time that might have been exempt based on meeting the tests of exemption, maybe you’ve reallocated work, and some of those individuals really should be reclassified as non-exempt. And you don’t want to be…you don’t want an employee to go forward and say that, you know what, I’m not being treated fairly as to how you pay me, so you want to be on top of that, and you can always, you know, go outside, have someone objectively come in and do it for you, or do your own self-audit, right? So hey, JoDee, we do have a call that relates to the ADA. And for those listeners who aren’t as familiar with what ADA stands for, it’s the Americans with Disabilities Act, and it was passed in 1990, and it really was a game changer for people with disabilities in the workplace. And I think it’s really been…a lot has been written about it, a lot has been done, so let’s take the caller’s question and go from there.

Listener  19:32 

What exactly is considered an undue hardship when examining an ADA situation? Sometimes every request seems like it will create some type of undue hardship.

JoDee  19:43 

Right, I agree. They define “undue hardship” as an action requiring significant difficulty or expense when considered in light of a number of factors. So what does significant mean? Right? In that what’s significant for one employer might not be significant for another. So not always an easy question to answer, but the factors include the nature and the cost of the accommodation in relationship to the size, resources, nature, and structure of the employer’s operation. An employer is not required to make an accommodation if it would impose this, quote, “undue hardship” on the operation of their business. So one example of a situation that does not represent an undue hardship is, for example, an employee may need additional lighting in their workspace or a dimmer to help accommodate their visual needs. So I think we can think of examples where almost any employer could accommodate that one, right? If you had to redesign the lighting in your office space, that might be a different issue, but if you can bring on a lamp or…or do something in that particular area, that typically would not be an undue hardship. And another may be that an employee needs to use their personal vehicle that is wheelchair accessible instead of the company buying a car that would accommodate them for business purposes. So we recommend that you not jump to the conclusion that it presents the company an undue hardship. Look at the angles and…and determine what you could do to help them that will meet their needs. You won’t always be able to do so, but you must do your due diligence before confirming that the request presents an undue hardship.

Susan  21:52 

You know, JoDee, it’s interesting, in my career in HR, when I was with a really large company and we would have…sometimes it would be applicants and sometimes it would be employees who, for whatever reason, they realize that they had a disability at this point that was going to need some kind of an accommodation. We always took the stance that it was going to be really difficult for us, being a very, very large corporation, to ever say anything was undue hardship. And so there really…all my years, I cannot remember one time that somebody had a request for something that we were not able to do if they actually medically needed it. It was really the right thing to do to keep them in the workplace or to bring them in the workplace. The other thing I always like to mention is there are so many resources out there in the world, especially here in the U.S., that employers will think, well, gosh, I cannot afford to get a particular piece of assistance, technology assistance or whatever, for the person. Well, there’s so many government resources, there are local organizations that will help individuals in the workplace with whatever accommodation needs they need. So really, people shouldn’t think about, you know, we don’t have the dollars to accommodate people. Let’s go first to the vocational rehab in your particular state and find out who are the local providers and who might have some assistance available to you at a very low or no cost.

JoDee  23:12 

Yeah, great advice.

Susan  23:15 

Let’s go to our next law that we’re going to be talking about today. It’s PDA. Now that’s not public displays of affection, JoDee. It’s the Pregnancy Discrimination Act. And what this is, this…this law prohibits employers from refusing to hire or to dismiss a woman because of being pregnant, and it prohibits forcing a pregnant women to go on leave if she’s ready and willing to stay at work, and it guides employers on how to treat pregnancy as any other temporary disability. Honestly, before this law was enacted, it was very possible that someone who was pregnant could be in a job interview and the employers could say, you know, how soon can you start, and the person might say, well, I could start next week but I am going to be out because I’m having a baby in two months, or they might look at the person and make all these assumptions, and that was not illegal. And so the fact is, this law came into effect so that people who do have children, in the process of having children, cannot be discriminated against. They have to be judged on their abilities and their skills and their fit for the job, not on their medical condition at the time.

JoDee  24:21 

I was involved in a very complicated issue one time surrounding this where I had recommended a candidate to one of our clients. It didn’t matter to me, but I’ll say I didn’t know the candidate was pregnant. And then they went to the client’s office to interview and shared with them that they were pregnant, to which the client was very upset and didn’t want to hire the candidate because they would be taking off. Let’s just say it got very complicated.

Susan  24:58 

And I bet…

JoDee  24:59 

So, it happens! I mean, it happens.

Susan  25:01 

It absolutely does. People, they think, you know, I’m going to spend so much time training someone to come in and then they’re going to be off having a baby. How do I know they’re going to come back? That was a question I used to hear from some of the hiring managers, or they’re going to…I’m gonna have to retrain them when they come back. And I say, yes, that’s right, yes, you will, because we aren’t going to discriminate against this person because they are going to be having a child.

JoDee  23:13 

Right.

Susan  25:22 

You know, I can think back, I did have a question one time about this not too long ago and it was a manager saying to me, “Listen, Susan, you know, I’ve got two really good internal candidates and I really think that either one of them could do the job and I’m not sure which one could do better. I mean, I’d be willing to put my money on either one of these people, but the fact is, I do know that one of them is six months pregnant. I mean, she’s showing, she’s thrilled about it, she’s talking about, you know, adding to her family. In all honesty, it really makes me want to push for the other person and recommend that we hire them, and when the…my other employee comes back after having the baby and, you know, happy to work on what could we do with her so that she continues to advance, but in the short run, can I make that logical decision? They’re both good employees, no one’s going to lose their job.” So, you know, I sat down with them. I said, “Listen, I need for you to put out of my…out of your mind that one of them’s pregnant. Alright?” you know, “I need you to be the adult in the room here. We’re going to need to come to the right decision, and it can’t be based on medical information.”

JoDee  26:24 

Right. Yeah, it gets tricky.

Susan  26:26 

Yes.

JoDee  26:29 

Our next law is the Age Discrimination in Employment Act, known as the ADEA. This prohibits discrimination of anyone age 40 or over in employment advancement or benefits. By the way, I think many people are surprised to know that this age is so young. Of course, I think 40 is very young, don’t you, Susan?

Susan  26:55 

I do. I do.

JoDee  26:57 

So people think about age discrimination, and I think typically they think much older than that, but it’s only 40. It prohibits employment advertising targeting people of a preferred age, and it prohibits mandatory requirement based on age, unless it is a bonafide occupational qualification, the company has a bonafide seniority system, or the employee is a top executive or policy maker. Susan, did we have a question on this one?

Susan  27:33 

Yeah, we actually had a voicemail left for us on our JoyPowered® voicemail. Let’s listen to it.

Ben  27:41 

Yeah, hi. My name is Ben from Kalamazoo, Michigan. I love the show. I just wanted to ask you guys a question. So, I work for a company I like, and I want to keep advancing. The company helped pay for part of my tuition when I got my master’s, and I really…I can see myself at this company for…for a long time. I get great performance feedback, and top management tells me I have a great future with them, but my immediate boss is almost six years…60 years old, and keeps talking about the fact that he has no plans to retire anytime soon. So I would love to have that position, I just don’t know how long I’m gonna have to wait for him to retire in order to advance at this company. Is there any mandatory retirement age for people, and how long do you think I should…should wait for him? So, keep up the great work. Thanks. Appreciate it.

Susan  28:41 

So Ben, thank you so much for your call, and sounds like you’re doing really well at your job and I hope it continues. So I get that. I do get asked that question. “Come on, Susan. Don’t people have to retire? Isn’t there such a thing as a mandatory retirement age?” And I will tell you, in the private sector, there really isn’t. As JoDee mentioned, when she explained the law, sometimes it could be a bona fide occupational qualification. I mean, it may be a job where their age is absolutely relevant. I’m trying to think of one now…maybe a…well, I can’t think…

JoDee  29:14 

Actor.

Susan  29:14 

A…maybe an actor, maybe there’s a role – that’s right – that you have to play, and maybe you have to be a young mother that’s doing something, and clearly that…that would be a bona fide occupational qualification. There is an exclusion for CEOs or top executives of companies. A company can choose to say that the CEO has a mandatory retirement age, maybe 70, 65, whatever. But lower than that, in the private sector, there really is not, and so people can work as long as they can perform the job. Unless there’s a performance, you know, that sort of…there’s a performance issues, people can certainly take action. It sounds like in your company, that you’ve got somebody who’s in that spot ahead of you that you really would like, and they’re not moving soon. My suggestion is to really sit back, maybe involve your boss or involve HR or maybe one of those senior leaders that you’re getting good feedback from, to really do some career discussions about, you know, what skills you have today. What are some other roles? Maybe your boss’s role is not going to be the one that you really want to hitch your wagon to if you’re anxious to keep moving forward. Maybe there’s other types of roles that maybe you need to acquire some new skills and some new experiences, so maybe there’s some projects that you could go on that would expose you to other areas of the company that would help you develop some skills to make you a stronger candidate for another, more senior level role than you have today. JoDee, any other suggestions you might have?

JoDee  30:39 

I think that’s good advice. I do think it’s interesting…somewhat unrelated to the law, because as you know, Susan, I grew up working in CPA firms for 21 years of my career, which were both partnerships, so they were outside of the private sector and the partnership could make up their own rules. But the first firm I worked for for 15 years did have a mandatory retirement age, and then the second firm I worked for for six years did not, and I was fascinated at the difference between the two. In…in the first firm I worked for, which was the firm I started with right out of college, so it was a constant topic of conversation about how old some of the partners were, about how many more years they had until they would be retiring, about what the succession plan was for them. It was very open discussion about those plans and their goals. And of course, they could choose to retire even earlier. At the time, that age was 62, and I think that firm has actually lowered that age now, but then I went to this…and I…so I didn’t know any different. Right? The only company I’d ever worked for for 15 years, and they had this mandatory retirement age. Then I went to the second firm, which didn’t have one, and it seemed like retirement was a bit of a secret. Right? Nobody knew how old people were, what their retirement plans were, so it…it wasn’t as much of a constant discussion about succession plans and who would take over the role or their clients. And so it’s a…it’s a…it doesn’t really help with the law, but I thought it was a fascinating idea and discovery in my career, I guess, to work in that environment and did really make a big difference when…Ben, if you know…think if you knew exactly when that person would retire and what you might do different in your career, or what conversations you might have surrounding that. But I like Susan’s advice about thinking about even if it’s…you’re not getting that exact job for a while. What other projects, what assignments, what opportunities might you be able to take on? What pieces are their strengths and what pieces might be your strengths, that the role might even be restructured at some point?

Susan  33:20 

Oh, that’s a great point. And you know what, when we talk about age discrimination, I will sometimes have people say to me, “Listen, I am 28 years old, and I really feel like people are discriminating against me because of my age.” And you know what? They might be. It’s not against the law. Isn’t that awful? Because it only protects you age 40 and above. My hope is that as an employer, you don’t want to discriminate against anybody and you want to treat people well. But I do think that people at different ages may…especially somebody young into the workplace, if you’re walking in and there’s a lot of older people, you might sometimes feel that you’re being treated differently.

JoDee  33:53 

Mm hmm. Yeah. Our next topic is regarding the Immigration Reform and Control Act. Once a…once again, a very hot topic in our…in the United States, at least. I actually heard a conversation about this on the radio on…on the way here today. But that…the IRCA is the Immigration Reform and Control Act, it prohibits discrimination on the basis of national origin or citizenship. It penalizes employers who hire illegal aliens and mandates that employers must verify an employee’s identification and right to work in the U.S. and to complete an I-9 form within three days of hiring.

Susan  34:42 

You know, JoDee, I think it is important…this passed in 1986. Prior to that, it was not unusual to see on employment applications, “Are you a US citizen?” And no, the fact is, you cannot ask that. It is against the law to ask, you know, your place of national origin.

JoDee  34:58 

Right. So the…by the way, the question to ask in the interview process is, is the applicant eligible to work in the U.S.

Susan  35:09 

Exactly.

JoDee  35:09 

Not about are you a citizen or not, but are you eligible to work?

Susan  35:14 

That’s right. And then what it does, is it…the law really lays out what can you do to prove that that individual does have a right to work in the U.S., and that’s where I think people get really worked up or, you know, concerned about…Am I looking at the right documents, and is this person, you know, bringing me false documents or real documents?

JoDee  35:34 

Right, right. So we do have a caller with a question on this topic, from Emily. Emily, are you on the line?

Emily  35:43 

Yes. I started at a new company last month for a job I was really excited about. My first day, I had to go through a sign in process with HR, and they said I had to provide a passport, which I don’t have, or multiple forms of identification to prove I had a right to work in the U.S. They let me report to my department and new manager, but told me if I didn’t bring in the proof within my first three days of work, I would be terminated. I don’t drive, so I don’t have a driver’s license, and when I saw the list of other document proof options, I was overwhelmed. My manager told me not to worry about it, as HR would probably forget they asked me for it.

JoDee  36:20 

Oh, no!

Emily  36:21 

But they didn’t. I got called into HR on my third day of work there, and when I told them I didn’t have any proof documents, I was fired. Are they allowed to do this?

JoDee  36:31 

Well, Emily, yes, they are. But I think…I get so frustrated with this topic, that there seems to be so much confusion or lack of compliance around this, and I cannot stress to our clients or to HR professionals or to business owners enough the need to have this conversation before the new employee starts. Right? I always encourage people to put this in the offer letter, so that the new employees know when they show up on the first day that they only have 3 days to get these documents, because, Emily, it’s not so uncommon. Right? That employee would show up, would not be prepared, maybe, if they don’t have a driver’s license, they don’t have a passport. I’ve had many times where people have recently gotten married and they haven’t updated their social security card or some of the…or they’ve lost their social security card and…and I guess I should go back for a minute, that I-9 has a list of qualified documents and which combinations of documents are appropriate. So we won’t go into all those details, but it can be a passport, or it can be a combination of a driver’s license and a social security card or…and a few other things, so I’m not surprised you were overwhelmed, Emily, that’s a fair question. But don’t call…surprise your new employees at the last minute by requesting these documents and then not giving them time to find them.

Susan  38:21 

I love that you put in the offer letter, because, you know, generally there is…between the time someone accepts a job and when they start, they often have to give notice to their other employer, there’s usually some time, so that if you have to go to the Social Security Department and get a fresh card, or if you need to go to the lockbox in another town where you left your passport, whatever, it gives that individual some time. So I think that’s a great suggestion. Right? And Emily, I’m so sorry. You know what, get your…get your ID together now. Go ahead and get a driver’s…a non…what do you call it…a identification card at the Bureau of Motor Vehicles, so you’re ready for that next job.

JoDee  38:54 

Right. And for those companies out there who think this is not a big deal and that HR might forget, I warn you that it’s really important to have these documents on file and to have them filled out accurately. There are severe penalties for companies who…who don’t have these signed forms appropriately filled out within a three day period.

Susan  39:22 

Yeah. And so, JoDee, you know, it is interesting, people say, “Well, who’s going to catch me?” Right? I mean, there’s going to be somebody out there who likes to play the odds. The fact is, is that you could be audited at any time, and the Department of Labor can come in if you have anything else that arises in your company, and it might be something they ask to look at. I know that when we would have an OFCCP audit at a prior employer, when they’d come in, one of the things they would look at as well is the I-9, so…you don’t…don’t wait. In fact, if you haven’t been as…maybe as vigilant about this as you would have liked to have been, it’s not bad to do a self-audit. And you can go out, there’s a lot of free webinars on the Department of Labor’s website that will train you on how to identify documents, make sure you’ve got…you’re doing a good job of completing your I-9s, and then how to audit yourself.

JoDee  40:10 

Yeah. I know I worked for an organization for a period of time where we had…we were very diligent on the I-9 process, but we also discovered – or should I say the Social Security Administration discovered for us – that we had several employees who had given us forged documents, so that that was an issue too. Even though we were…we thought we were doing the right things, they were giving us forged documents with the incorrect social security numbers on them, which then got us in trouble with the Social Security Administration as well, and it was not a good place to be, let’s just say.

Susan  40:59 

All right. Well, hey, if you’re ready for a new law, I’d love to move to USERA, which is the Uniformed Services Employment and Reemployment Act, and…Rights Act, I’m sorry. And that was passed in 1994, and it really was a terrific timing for it. We had a lot going on as a country in the Gulf area, and so we had a lot of reservists being called up that were leaving places of employment. And I think there was a lot of uncertainty that when they got done with their service, would their jobs waiting for them? And if so, you know, would they come back into the workplace treated very well? So what’s great about this law is that it protects the public and private and employment, reemployment, and retention rights of all military personnel. It enables employees to take up to a five year military leave and receive the same seniority-based benefits had they not been gone. So JoDee, we actually have a question come in on our Facebook page, and here’s the message of the question that came. “I started with a coworker four years ago at my company. Six months after we started, he left on a military leave and said he did not know if he’s going to want to come back after he gets done with his service in the Navy. So he went off and I really didn’t hear from him again. I stayed at the company and I’ve worked really hard the last three and a half years. I’ve moved up to a senior agent, and I think I’ve had fair raises all along the way. Honestly, I’d forgotten about my former colleague who went off to the Navy. Imagine my surprise when he shows up at work this week. He came back in as a senior agent, and he just told me at lunch he’s earning the same pay I am. He doesn’t know nearly what I do after missing the last three and a half years when I was knocking myself out here. To add a kicker, management has asked me to train him up. Is this fair?” So you know what, JoDee, it is fair. The fact is, is that he has USERA rights, which is…he’s going to be, when he returns to private employment, as long as he did so within those five years – and sometimes there can be reasons to extend it – but within that five year period, the company does need to make him…I’d like to say the word whole, because as if he had not left, what type of natural raises would he have gotten? And he would have, if all the people who had been at that level or a significant number who had been performing fine went to the next level, he ought to go to that next level. So the fact that this individual has been asked to help train, you know, if the individual isn’t good at training and doesn’t want to do it, that’s a conversation he or she should have with their manager. But the company does need to help that individual pick up on any kind of training or skill building that he may have missed because he was in the employ of our National Military.

JoDee  43:45 

Yeah, I respect that. That’s difficult, right? It’s difficult to look and see that you’ve been working hard and they’re coming in at the same level on the same pay. By the same token, they been working hard, too. Right? In a different capacity. And I think we have to look broader at this, to think this person has been serving our country and we need to respect that. Now, in…if a year down the road, performance is not there, is not equal, hopefully the company will make amends or do the right thing for that, for both parties. But we do want to be respectful and admire those who are taking time off to serve.

Susan  44:29 

That’s right. And I…you know, the other interesting thing that came in this question is that, you know, a normal employee would say, “Well, if the person’s leaving and they’re not even saying hold my job or I’ll be back, you know, like, why do we…why does a company have to keep their arms open for five years?” A lot happens in a company in five years.

JoDee  44:45 

Right.

Susan  44:45 

Well, I think that’s one of the real strengths of this law to protect our military, because when someone goes off, they don’t know if they’re going to want to make a career of the military or if they want to go and serve for just a chunk of time. So anyway, I do think I can understand why it’s puzzling for somebody who’s not experiencing it, but I think it’s a wonderful thing.

JoDee  45:05 

Yeah, I actually had an interesting question this last week from one of our clients. I’ve worked in organizations and had many clients over the years who had employees who were called into service or maybe have been in the reserves, some are called in to active duty, so I’ve dealt with this topic several times. But interestingly, the situation last week was a client who had a very senior leader in their company who was in…who is in the reserves and was called up to active duty to help the people of Puerto Rico. And so – at a very high compensation level – and my client asked, “What do we do about their pay while they’re gone?” Well, typically, another situation that I’ve been involved in…now, they are getting paid from the military, so you can equate it somewhat to jury duty, right? Where if your employee takes off a day or two or five for jury duty, they are getting paid, but it’s very minimal compensation. And you can either pay them your regular rate, and then take their jury pay, or you can pay them your regular rate, but at a minimum, they’re…you’re really not required to pay them in addition to the jury duty. Well, in this case…so, sometimes the military pay could actually be more than their current pay, is my intent of my story here, but in this case, it was actually a substantial cut to their pay, because they were a senior leader. So we talked about the impact of that. Now, the company, of course, was not required to pay them the difference, but they were also very respectful and proud of this employee for serving in the military, why they were off. On the other hand, sometimes companies might not want to encourage employees to volunteer for active duty, because their job is not being performed while they’re gone. So it was an interesting situation. My client took the high road and they are paying the full pay while they’re out. But…

Susan  47:36 

I’ve seen it handled all different ways, but I have such respect for that company, because I think that’s terrific, so the person’s family did not have the impact financially of them going off and doing a wonderful thing.

JoDee  47:45 

Right, right.

Susan  47:46 

That’s great.

JoDee  47:49 

Okay, our next law is the EPA, the Equal Pay Act. This Act prohibits unequal pay for substantially equal work performed by men and women. It prohibits employers from reducing wages of either gender to comply with the law. Now, we had a question on this on Twitter, Susan. Someone tweeted us at our @JoyPowered Twitter account and said, “I think all of us women marketing associates are earning less than the men marketing associates at the company I work for. Isn’t that against the law?”

Susan  48:29 

You know, I wish it was so easy to say yes or no, but when it comes to almost anything, including equal pay, a real analysis would need to be done. And the fact is that it may be that some of the individuals who happen to be male have more skills or they brought much greater experience with them than the females. So I’d say that before you could answer that yes or no, I would really want to have somebody – who maybe is a compensation expert or an outside consultant or if you have someone within your company who this is their area of expertise – to really dig in. And for all the individuals in a cohort, you want to figure out what skills and abilities do they have? What’s their experience? And if you do find that you have paid differently by gender, and there is no other reason as to why, that very well could be against the law and you should take steps to equalize and to raise salaries. One of the things about this act that I think is important is that if you happen to find out in your company that you have actually, perhaps, paid men more than women, and it’s not based on skills or experience, you’re not allowed to lower the men’s pay. That…that’s clearly prohibited. But…

JoDee  49:42 

It wouldn’t be a good idea.

Susan  49:43 

No. So your fix has to be that you are raising the females’. So interesting question and I hope whoever tweeted that to us is listening. I think it’s important that you…in your company, I’d take it into HR and ask that analysis be done.

JoDee  50:00 

As a follow up to that one, there was…there is also an act called the Lilly Ledbetter Fair Pay Act, which expanded the statute of limitations filing compensation discrimination claims to a rolling open time frame, so each time an employer pays a discriminatory paycheck, the 180 day statute of limitations clock begins. So if that would turn out to be the case in the…the company that our person who asked that question about, the statute of limitations keeps extending on that, which can also get expensive.

Susan  50:46 

I love that story. Lilly Ledbetter, she really…this was only in 2009 that this act went through. She had been, I think, a…like, a sales manager, and it took her years. She had a really good career, but she realized that all the other men in her same position were earning more than her, and she brought forth action and, you know, went up through the court system. And the fact was, is that the highest court said you only have 180 days from when you’re first discriminated against to take action. And so the fact it happened years ago, she was she was left holding the bag. And so Congress took this up under the Obama administration, at their urging, and actually enacted the Lilly Ledbetter Fair Pay Act, which now says every single paycheck you get that is discriminatory, that you have a right to action within 180 days of that. Now, my understanding is that Lilly Ledbetter never got back pay. It was too late for her, but it has truly changed for all the women moving forward since 2009.

JoDee  51:44 

I didn’t realize that about her, that she didn’t get it.

Susan  51:49 

Okay, so, let’s go to the National Labor Relations Act. You know, all the laws that we’re talking about today, this is actually the oldest one. It’s 1935. And remember how we talked about the Fair Labor Standards Act that that happened in 1938? In the country, you know, coming out of the depression, it was a really difficult labor atmosphere. Right? People were working in factories, we had a lot of massive production going on, which was great, because we needed to fuel the war economy, but there was a real belief that children and adults that were in the workplace really needed to have protection, and so the National Labor Relations Act guaranteed the rights of employees to organize and bargain collectively with their employers and to engage in other Protected Concerted Activity. Now, when we say Protected Concerted Activity, those three words are still important in 2018. That is the rights of employees to talk to each other and organize with each other around things like working conditions, pay, benefits, treatment by management, and so when they get together to talk about those things or organize themselves, those are considered Protected Concerted Activity. So I do think that we actually have a question relating to this that was called into our JoyPowered® voicemail. Let’s take a listen.

Ed  53:14 

Hi, this is Ed and I had a question regarding unionization. So the…I currently work at a company that doesn’t have a union, but earlier in my career, I did work at a company that was unionized, and we were always very careful to review the current bargaining contract before taking any action with employees. And then we also, in that environment, we also used to get refresher training on the NLRA and any new National Labor Relations Board rulings which could apply or could affect our interaction with our employees. So where I work now, again, it’s not unionized, they…we don’t talk about the NLRA or the NLRB at all, and I wonder, so, do those rules…do they apply at all to non-union companies? I appreciate your help. Thank you. Bye.

Susan  54:11 

Ed, what a great question. Really, you know, I didn’t mention what the NLRB is. The NLRB is the National Labor Relations Board, and that board really was established out of the National Labor Relations Act. And why the NLRB is so important, the President actually assigns individuals to this board, and they’re the ones when any type of a labor issue arises in an organization, they are the ones who really are able to make a decision as to what the outcome will be. So, for example, if there’s a company where a union is trying to get a foothold, and they have an election, and during the process,, anywhere along the line, they feel like there’s been an unfair labor practice, it goes to the NLRB, or the National Labor Relations Board, to decision it. And if an employee that…that files a grievance and they’re not happy with how a company handles it, it can go to arbitration, and everything that happens is really overseen and governed by the NLRB. So your question, you used to work in a union environment. Very wise of you and that company that before you ever took any type of unemployment action, you looked at the collective bargaining agreement to make sure, whatever the current contract was, that you were following it, and often in there, it would have laid out how corrective action needed to take place. It probably told you how you had to investigate issues and what your time frames were, your deadlines to do each…each and every step to ensure that, you know, people are being treated fairly, and what was agreed upon by the union and management. Well, now that you’re in a non-union environment, you don’t have a contract to go to. Right? You don’t have those rules of the road that are negotiated, you know, every, you know, so many years, so many years, whenever you negotiate your new contracts. Instead, the employer has to comply with employment laws, right? Many of the things we’re talking about on this podcast. But they also need to make sure that they don’t violate anything in the company, that you’ve set up any employee processes or procedures, so you’d go to your handbook to look for that. But when we talked about Protected Concerted Activity, it’s very important to understand that it doesn’t matter if you’re in a unionized environment or non-unionized environment, your employees are allowed to talk to each other about things like pay. So you can never tell an employee, “You’re not allowed to discuss your pay with someone else. That’s grounds for termination.” They’re allowed to. Employees are allowed to talk about their benefits. They’re allowed to talk about their management, people they like, they don’t like, practices they like, they don’t like, working conditions, all of that is absolutely protected in the United States based on the National Labor Relations Act, whether you’re unionized or not. And so you, as a manager now in this company, I would encourage you to talk to your HR department and just say, hey, you know, I’ve got a lot of experience in a union environment. I know we’re not unionized, but I do think it’s important, my peers and all of us in management need to understand the rules of the road as it relates to the National Labor Relations Act. Because I have seen businesses, primarily small ones, get into trouble when they try to discipline employees for talking about pay or talking about a management practice or something they don’t like. You really can’t take action against them. It’s a Protected Concerted Activity. And I think you need to keep that refreshed as you get new supervisors, new managers.

JoDee  57:25 

Susan, we have one more act, the WARN Act, the Worker Adjustment and Retraining Notification Act. This act requires employers with 100 or more employees to provide a 60 day advance notice of plant closings and mass layoffs. I’ll tell you, Susan, this act made me very, very nervous about 10 years ago, and I thought I had made a major mistake by not not being a…well, it’s not that I wasn’t aware. I didn’t realize that I might in fact be in this situation. I think I had always thought of this act as relating to the plant closing and, you know, had heard about it as it related to manufacturing companies who might be shutting down operations or moving operations to a different country. And come to find out during the recession of 2009 and 2010, I worked for an organization where we did let many people go, and so the definition of “mass layoff” became very important. Now, it turned out that we didn’t fall under the requirement of a mass layoff, but I think it’s my message to…to our listeners, is to think about what that term might be for you, and in the act itself, there’s a calculation for how you can determine what “mass” means to your organization based on the size. Now, it’s still…it’s only applicable if you have 100 or more employees total, but that definition of “mass” becomes important. And we did have a question about this one. Someone wrote in and said, “I’m a regional manager in a pretty large company that is facing some difficult financial decisions. I am working with an HR person at headquarters who keeps mentioning that in some of the possible layoff locations, we need to announce the job eliminations at least 60 days before the employee termination dates, but others we don’t. I don’t want to tell anyone in advance, as I’ve seen some bad behavior by people who know they’re being let go. Wouldn’t it be better to just tell everyone on the day we need for them to leave?”

Susan  1:00:03 

You know, I want to…I think we should step back and think about, like, why did the WARN Act come into effect back in the late 80s? I think it was 1988. The fact is, is that there were a lot of layoffs in the late 80s and a lot of the local communities could not absorb all the people becoming unemployed all at once. And so I do believe that that was some of the thought process that went into why do we warn employees a couple months before, it’s not only warning the employees, but part of the act is you have to notify local authorities, like the local unemployment office, the local mayor, all of the areas in a community that hopefully can help prepare for the assimilation of people being…being unemployed, and helping them find new jobs. So it’s really getting the wheels in motion to help people who are unemployed, which I think is a really noble thought. So I can understand this manager not wanting to tip people off that they’re going to be losing their job because he’s afraid they’re going to do something bad, but the great news is when you have time, you can sometimes make better decisions. So that gives the employer time to talk to other employers in their community to see who might be hiring. I’ve seen companies put on, like, in-house job fairs and they invite other businesses to come in, try to help their employees find other work. Now, just because you give people 60 days notice that your job’s going away, if there’s a security issue, or maybe that position is highly sensitive, you can go ahead and let people go home. They can be on call. Don’t have them report to work if you’re very concerned about that, but you should keep them on your payroll so that, first of all, you can comply with the WARN Act, but secondly, you’re hoping that this advanced warning can help that community absorb all of these workers, hopefully, into productive and, you know, positive new roles.

JoDee  1:01:48 

Susan, today, we had lots of questions from our listeners, so I want to notify all of you listening today that in addition to being able to call us on the JoyPowered® podcast hotline, you can also send us questions and topics via JoyPowered® on Facebook or Twitter. Susan, I don’t think I told you that back in November, I actually did a tiny bit of lobbying.

Susan  1:02:13 

Ooh.

JoDee  1:02:14 

So, SHRM, our national Society of Human Resource Management, is supporting a work flex bill, and I was on Capitol Hill to help promote it to my Indiana senators and Congresswoman. If you are a local company, you might not even realize it, but there are actually 40 different federal state and local laws surrounding paid time off.

Susan  1:02:36 

Yikes. And we wonder why it’s so hard to understand what we’re supposed to do.

JoDee  1:02:39 

Right. So if you’re a multi-state or a national company, this could be a nightmare to keep up with. As an example, San Francisco has its own local sick leave requirement, and the state of California has a different one. This is complicated, not only for payroll providers, but payroll systems themselves to even be able to keep up with. Accrual and rollover rules are a whole separate issue that create payroll difficulties, as well. So this work flex bill, called the Work Flex in the 21st Century Act, would provide just one set of new requirements and preempt other laws.

Susan  1:03:23 

That would simplify things, wouldn’t it?

JoDee  1:03:24 

Right. The bill would amend ERISA, the Employee Retirement Income Security Act, to create a qualified flexible work arrangement plan as an employee welfare benefit plan under the statute. Now, what I liked most about this proposed legislation is that employers could voluntarily adopt this plan and offer a plan that provides a federal standard for all of their employees, regardless of what state or city they’re located on, and then it would preempt all state and local paid leave requirements. Note that this act is voluntary and not required, that this act was just being introduced in the House in December, so it was just a conversation at the time I was on the Hill in November. So stay tuned to see what happens with that.

Susan  1:04:22 

Is there any guidances that might be like a minimum of five days or 10 days or…or any company could just really design one, doesn’t have to be at least as good as the state they’re in?

JoDee  1:04:33 

Good question. You know, we didn’t actually talk about that. I suspect it would, because the intent was to simplify, not to reduce the benefits.

Susan  1:04:44 

Oh, that’s great.

JoDee  1:04:45 

Right? It was…it was to make it simpler so it could be adopted across the whole country, not with the intent to take things away.

Susan  1:04:54 

Excellent.

JoDee  1:04:55 

So. So please tune in next time and thank you for listening today. If you have missed any of our podcasts, you can search all episodes for free at iTunes, Google Play, or Podbean by searching on the word “JoyPowered.” If you have questions on any HR topic, again, you can call us at 317-688-1613 or give feedback on our podcast via our JoyPowered® Facebook account or on Twitter @JoyPowered. We always welcome listener questions and comments.

Susan  1:05:31 

Thank you.

JoDee  1:05:32 

Thanks, make it a great day.

Susan  1:05:37 

If you would like SHRM recertification credit for listening to this podcast, please visit getjoypowered.com/shrm. You’ll find an evaluation of the podcast, and once you complete the evaluation, you will see the SHRM recertification credit code and a link to a proof of participation certificate. Again, that’s getjoypowered.com/shrm. Thank you for listening and thanks for your dedication to the HR profession.

Emily Miller
Emily Miller
Emily works behind the scenes at JoyPowered, helping to edit and publish the books, producing the podcast, and running the website and social media.

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