HR SPECIALIST
NEW YORK Employment Law
Trusted compliance advice for New York employers
In the News … Tanking finance sector puts NYC at top of job loss list According to a forecast by the U.S. Conference of Mayors, New York City will lead the nation in job losses in 2009. The Big Apple is expected to lose about 181,000 jobs this year—most of which can be attributed to the collapse of the city’s financial sector. However, there’s better news upstate. Ithaca made the mayors’ list of 363 metropolitan areas that can expect to see employment remain at 2008 levels, and maybe even rise modestly. With the ranks of out-of-work New Yorkers rising to almost unprecedented levels, the state is having trouble keeping up with demand for unemployment services. Unemployed people must log onto the state’s web-enabled computer system to file and update claims. Traffic was so high recently that the servers that power the unemployment system temporarily crashed. North Carolina and Ohio experienced similar service outages.
Gristede’s finds you can’t have it both ways on FLSA A class of more than 400 current and former managers at Gristede’s grocery stores won summary judgment in federal court on claims that the New York City chain violated the Fair Labor Standards Continued on page 5
New York Employment Law is published by HR Specialist and is edited by Louis P. DiLorenzo, co-chair of the Labor and Employment Law Department at Bond, Schoeneck & King, PLLC. He is a managing partner of the firm’s New York City and Garden City offices. Contact him at ldilorenzo@bsk.com or (646) 253-2300.
(800) 543-2055
•
June 2009 Special Issue
Editor: Louis P. DiLorenzo, Esq., Bond, Schoeneck & King, PLLC
Workers who harass can be held personally liable H aving trouble finding a compelling way to explain to employees that it’s in their best interest to maintain a harassment-free environment? Try this persuasive sentence: Employees who participate in discriminatory conduct can be held personally liable for damages. Or explain it this way: If employees name-call, harass or otherwise discriminate against a co-worker, their assets— house, car and personal possessions —are on the line. Now see if they don’t start paying closer attention during harassment and discrimination training. Recent case: Matten George, an
Indian national, is a bus operator for the New York City Transit Authority. For years, he has complained to supervisors that he had been harassed and even roughed up. Two co-workers, in particular, have given him endless grief, especially since the Sept. 11, 2001, attacks. George claims he has been the victim of a persistent barrage of ethnically offensive comments, including being referred to as bin Laden, Saddam Hussein, camel jockey and caveman. He finally sued his employer under both Title VII and the New York State Human Rights Law (NYSHRL), and added the co-workers to his complaint. Continued on page 2
Track all discipline to show unbiased process The key to a sound discipline policy is equal treatment for all who commit similar offenses. You can’t decide to treat some employees more leniently than others without very good reason. And you’d better nail down that reason at the time you make the decision— not months or years later, after another employee has sued. To make sure decisions are equitable, always be ready to compare prior discipline with the proposed punishment this time. That means someone in HR should track all discipline and make the information readily available when needed. Recent case: Mahendradat Debidat
is from Guyana and describes himself as white. He worked for Marriott as a loss-prevention supervisor until he was fired for sleeping on the job. Debidat sued, alleging that Marriott had not fired black loss-prevention employees for sleeping during their shifts. But in court, he could point to just one example. Marriott acknowledged it did not fire that particular black employee, but showed it had, in fact, fired another black employee for sleeping on the job. That was enough for the court to conclude that race wasn’t a factor in Debidat’s firing. It ruled in Marriott’s favor. Continued on page 2
IN THIS ISSUE
N.Y. employment law cases . . . . . . . . . . . . . . . . . 1-3 How to discipline employees the legal way . . . . . . . 6 Documenting employee performance . . . . . . . . . . . . 4 Collect medical-leave proof the right way . . . . . . . . 7 N.Y. rife with wage-and-hour claims . . . . . . . . . . . . . 5 The Mailbag: Your questions answered . . . . . . . . . . 8
www.theHRSpecialist.com/NY
National Institute of Business Management
Train managers to adopt ‘poker face’ when hearing complaint
Personally liable (Cont. from page 1)
The federal court hearing his case refused to dismiss the personal liability claim against George’s coworkers. The judge concluded that a co-worker who “actually participates in the conduct … may be held liable under NYSHRL even though that co-worker lacked the authority to hire or fire the plaintiff.” (George v. New York City Transit Authority, et al., No. 04-CV-3263, ED NY) Final note: This is just the most recent case to deal with slurs against those perceived to be of Arabic or Middle Eastern origins. Such prejudice has increased since Sept. 11. Don’t let it infect your workplace. Include national-origin slurs among examples in your training.
Track all discipline (Cont. from page 1)
(Debidat v. Marriott International, No. 06-Civ-3561, SD NY, 2008) Final note: Follow these tips to ensure your disciplinary process is fair. First, make sure managers and employees understand the rules. Then, impress upon supervisors how important it is to check with HR before imposing any discipline. Finally, do a contemporaneous miniaudit of discipline by sex, race, age, etc., to make sure there is no hidden pattern of discriminatory discipline. Once you are satisfied that the proposed punishment is in line with past practices, you can approve carrying out the discipline.
Free sample policy Progressive discipline Your subscription includes access to a bank of sample policies you can customize to suit your organization. Our sample progressive discipline policy spells out the disciplinary process, starting with oral reprimands and ending with termination. Download it free at www.theHRSpecialist. com/sample.
2
New York Employment Law • June 2009
t’s getting easier and easier for employees to charge that their employers retaliated against them after they complained about alleged discrimination. First, the U.S. Supreme Court lowered the threshold standard for an adverse action to any employer action that might dissuade a reasonable employee from reporting discrimination. Then came a rapid flood of cases that found seemingly minor job duty or schedule changes to be deemed “retaliation.” Advice: To avoid triggering retaliation lawsuits, train managers on how to react to a complaint. Explain that all complaints should be received and without any apparent display of disappointment or emotion. Remind them— no comments allowed. Recent case: Steve Khan worked for HIP Centralized Laboratory Services since 1970. Because of his seniority, Khan was eligible for five weeks of vacation per year. When Khan requested one week of bereavement leave to attend a funeral, he claims a supervisor said the company
I
didn’t want people with too much vacation because “if your work can be performed during an absence of three weeks or more, you are not needed.” Khan took this as age discrimination and complained informally about it. Then the supervisor got angry and said he would get rid of Khan “one way or another.” That comment, since it occurred almost contemporaneously with Khan’s complaint, was enough to send the case to trial. The court said a jury should decide “whether Khan was threatened with termination for his informal complaint of age discrimination.” (Khan v. HIP Centralized Laboratory Services, No. CV-03-2411, ED NY)
Free report The Right Way to Fire Employees For advice on disciplining and terminating employees in the most legally safe manner, access two free white papers, The Right Way to Fire and Designing a Progressive Discipline Policy, at www. theHRSpecialist.com/whitepaper.
Contract will still stick, even if employee fails to read it hen faced with a multipage employment contract, some job candidates and employees may be tempted to skip a careful reading before they sign on the dotted line. The good news for New York employers: State courts won’t excuse employees who claim they didn’t understand the employment terms because they never read them. You can rest assured that a signed contract will be enforced, whether it’s read or not. Recent case: Star-struck Bianca Nardi was a 21-year-old college grad who’d never held a job before earning a position with the Maury Povich television show. She was asked to sign an employment contract but later said that she was so “dazed” by the “heady prospect” of working for a national TV
W
network that she never read the agreement and didn’t realize it included an arbitration agreement. Apparently the glamour of the TV world quickly lost its luster, because Nardi filed a sexual-harassment lawsuit within two years. The employer argued that the case should go to arbitration, and the court agreed. Neither Nardi’s youth nor her starstruck excitement excused her from reading and understanding what she signed. (Nardi v. Povich, et al., No. 10554/06, Supreme Court of New York, New York County) Final tip: It’s still vital to make employment contracts as reader-friendly as possible. Employees can file lawsuits if the wording is so complicated or confusing that the average person could be baffled by the interpretation. (800) 543-2055
When can you require employees to speak English? mployers that want to limit the use of languages other than English in the workplace take note: Your language restrictions must be reasonable and based on genuine business needs. A simple company preference for English isn’t good enough. For example, even if you insist employees speak English around customers, don’t try to limit what language employees speak in the break room. Recent case: Lydia Garcia, who is Hispanic, lost her job due to budget cutbacks. But she sued, alleging she had been subjected to a hostile work environment. Her proof? She had received a written warning to speak English around clients who were not bilingual and felt uncomfortable when she spoke Spanish. The court concluded there was no hostile environment. The employer merely restricted the use of Spanish in a mixed-language setting—because some clients couldn’t follow what Garcia was
E
saying in Spanish. The employer never restricted Garcia from speaking Spanish to Spanish-speaking co-workers, at break or in her own office. Plus, although she received a warning, she was never punished for speaking Spanish. (Garcia v. Henry Street Settlement, No. 05-Civ10188, SD NY)
English-only rules The EEOC cites examples of business necessities that justify an English-only rule: • For communications with customers or co-workers who speak only English. • In situations when workers must speak a common language to promote safety. • For cooperative work in which speaking only English promotes efficiency. • To help a supervisor who speaks only English monitor employee interaction. Otherwise, allow employees to communicate in any language, especially during breaks, lunch or behind closed doors.
Set a retention policy to limit attacks on purging records f you develop a reasonable retention policy and follow through by regularly deleting information you don’t need, chances are an employee later won’t be able to say you intentionally interfered with the ability to present a legal case. Employees who sue and ask for documents that have been destroyed can ask the court to conclude that the missing evidence would have been detrimental to the employer. In other words, the court could say destroying the evidence is proof of guilt. But that won’t happen if you can show that the records were destroyed as part of routine policies on record retention and destruction—and that it happened before you had any idea the records might be needed in a lawsuit. The key is that you must be prepared to show the destruction was routine. Avoid making exceptions to the policy unless it’s to place a “litigation hold.” Recent case: Paul Matya, who
I
www.theHRSpecialist.com/NY
suffers from depression, sued his former employer for disability discrimination. During discovery, he learned his employer had destroyed the records of his meetings with an industrial psychologist arranged by the employer. The company explained that those records were destroyed as part of a routine record retention program and before it had any idea Matya was going to sue. The court rejected Matya’s request that the record destruction be considered evidence the company regarded him as disabled. (Matya v. Dexter Corporation, No. 06-2327, 2nd Cir.)
Free report Company Records: What to Keep, What to Dump For a free white paper that explains how long to keep more than 200 different kinds of company records, go to www. theHRSpecialist.com/whitepaper.
Legal Briefs Stop client poaching with restrictive covenant In tough economic times, companies need to hold onto the customers and clients they have. If your business depends on solid client relationships, now is the time to safeguard those relationships with a restrictive covenant that prevents employees from jumping ship and taking customers with them. Ask your attorney to draft a solid restrictive covenant that will block client theft.
Recent case: Chad Karasaki signed a restrictive covenant agreeing not to solicit his company’s clients and customers for one year after leaving the company. But when he left, he started poaching clients. The company sued, asking the court to order Karasaki to stop. Because the agreement he signed was well drafted and not overly broad, the court issued an injunction stopping the client exodus. (Marsh USA, et al., v. Karasaki, No. 08-Civ-4195, SD NY, 2008)
No sovereign immunity for public school bodies Generally, state agencies can’t be sued in federal court for federal employment law violations unless they have explicitly agreed to give up their right to sovereign immunity. Even so, federal courts are reluctant to leave employees out in the cold.
Recent case: Carrie Gorton worked for the Sullivan County Board of Cooperative Educational Services, claiming she had suffered sexual harassment at the hands of a co-worker. The school agency claimed it was an arm of the state and therefore immune. It had been created under New York state law in order to let school districts share the costs of some educational expenses. The 2nd Circuit said the agency was no different than public school districts, which have long been subject to employee lawsuits and not immune under sovereign immunity. The appeals court let the lawsuit proceed. (Gorton v. Gettel, et al., No. 07-3190, 2nd Cir., 2009)
June 2009 • New York Employment Law
3
Compliance Corner
Insight from TheHRSpecialist.com
Use this simple log system to document employee performance EEOC explains when it’s legal I to fire disabled workers
t happens to every manager: You sit down to prepare a staff member’s review and realize you can only remember what the person has done for the past few weeks. Or you let a single incident (good or bad) color your assessment. Never rely on memory to evaluate an employee’s performance. Instead, create a simple recording system. Such performance logs don’t need to be complicated or sophisticated—a sheet of paper in a folder or a file on your computer will do. (Be sure you keep it secure to maintain confidentiality.) Note: Courts will quickly dismiss many wrongful termination lawsuits if performance logs clearly demonstrate a history of performance problems.
Recording employee performance: 8 tips Create a file for each employee you supervise, including a copy of the employee’s job description, job application and résumé. Follow these steps for recording performance: 1. Include positive and negative behaviors. Recording only negative incidents will unfairly bias your evaluation. Make a point to note instances of satisfactory or outstanding performances, too. One way to ensure balanced
reporting: Regularly update employee performance logs, instead of waiting for a specific incident to occur. 2. Date each entry. Noting times, dates and days of the week may help to identify performance patterns—and problems that may cause them. 3. Write observations, not assumptions. Be careful about the language you use—your log could become evidence in court. Comments should only focus on behavior you directly observe. Don’t make assumptions about why the behavior occurred or judgments about an employee’s character. 4. Be specific. Example of poor documentation: “Employee was late three times last month.” Better: “30 minutes late on Feb. 5; cited traffic. 45 minutes late on Feb. 9; cited oversleeping. Hour late on Feb. 23; cited car problems.” 5. Don’t use biased language. A good rule of thumb: Any statement that would be inappropriate in conversation is also inappropriate in an employee log. That includes references to an employee’s age, sex, race, disability, marital status, religion or sexual orientation. 6. Be brief, but complete. Use specific examples, not general comments. Instead of saying, “Megan’s work was April 20094 No. Vol. 4,
STAFF
YORK
EW HR NEmployment Law Editor:
rs SPECIALIST employe New York
Publisher: Phillip Ash Associate Publisher: Adam Goldstein Production Editor: Nancy Asman Customer Service: (800) 543-2055, customer@NIBM.net
HR Specialist: New York Employment Law (ISSN 1934-1601) is published monthly by the National Institute of Business Management LLC, 7600A Leesburg Pike, West Building, Suite 300, Falls Church, VA 22043-2004, (800) 543-2055, www.theHRSpecialist.com. Annual subscription price: $299. © 2009, National Institute of Business Management. All rights reserved. Duplication in any form, including photocopying or electronic reproduction, without permission is strictly prohibited and is subject to legal action. For permission to photocopy or use material electronically from HR Specialist: New York Employment Law, please visit www.copyright.com or contact the Copyright Clearance Center Inc., 222 Rosewood Dr., Danvers, MA. 01923, (978) 750-8400. Fax: (978) 646-8600. This publication is designed to provide accurate and authoritative information regarding the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal service. If you require legal advice, please seek the services of an attorney.
4
New York Employment Law • June 2009
complia
nce advice
for
s… In the New law
Agree if E
returning
zo, Esq.,
worker prop
you It’s up to
T
Copy Editor: Cal Butera
DiLoren
Bond, Schoene
ck & King,
oses new
PLLC
exam
cher was Ramba nator Diane coordi e t case: Recen a computer she becam al se ng as t when becau a worki l distric to take a medic s d to take leave a schoo month had seven ees who may be entitle they for she sed and mploy depres absence. Afteriatrist said lity ion when of of a disabiaccommodat an employer, lus leave and her psych as nt to . able emmic stimuprovisions off, she reason work. But, decline an to return t was relucta t to to New econo ely bewas ready l distric ng she wasn’ al return HR-related stimulus the right genuin her claimi o a medic The schoo includes ic recovery and Feb. 17 you have return if you to perform t’s ’s her back, signed g l distric t allow offered to underg The economnt Obama ons affectin ployee won’t be able schoo She es underl provisi agencies to bill Preside with the school distric lieve she propos l exam fit. s severa it’s nation The a liyee s. her feature require federal rules, so job. the emplo psychologica rate. exami of doctor d offered she But if HR. Most administrativeexactly how al or choice and instea , coope 2 half what d a medic fit to return consider write new predict now ay basis. paying ued on page refuse going everyd t to she is refusal to aide job Contin to endifficul work on an Reinbrary to prove ry and as failure ise, your they will Otherw may be seen accommodaan Recove g The Americ her offerthe interactive by the ADA. es coverin nt Act: ed of subsidi vestme gage in s requir s COBRA continuation s. tions proces worker • Provide the cost of laid-off absorb 65% of ce for ic jobs. es is to have to for a insuran specif health ers will to your biggest mistak daily Employ and then apply offset apply Note: any to the cost of taxes makes e exkeepOne insurer payroll the added e who istrativ e and for health against overtim employees credit lump anyoninto the admin designed . Ask your Also, the law paying tion yers re- decisions classification ry duties “retion. o avoid of every minute the subsidy emplo t informa informa ss . n, a prima l busine for more you to include notices ing trackthe job, many yees as exemp emptio whose s yees of genera se of on require subsidy in COBRA $400 y emplo yees. But emplo exerci ement spend ers manag include the judgment ly classif emplo about the single taxpay —and ($800 late to flexive ” me pay ions and independent than hourlyget it wrong most cance. operat rather yers • Gives annual take-ho g the federal tion and matter of signifi said the emplo . make more in s) by reducin cks. Note: discre many t to a court be costlyyour job to emldt, but for couple ld from payche with respecrecent case, because the that can is it new withho . is correc In one tax withhe soon issue the change Not only ication to narrowly it wrong may have inwill ng classif ed yer got The IRS emplo daily duties the decisions les reflecti loyment benrules in sure the also requir s’ sigare ication hourly ing schedu unemp temporary tion, but of major ployee courts classif yees sa discre e. es weekly ue the nvolved constr making emploe for overtim • Increas $25 and extend t compe were hardly of loymen page 2 ber efits by they made favor ued on Decem age ore, eligibl l for whoncy unemp ce. Contin through emerge nifican and, therefwhy it’s criticaclassifying program incentives encour ar 5 sation That’s al sible for tely famili ..6 d on page respon ....... 2009. Financi Continue be absolu how they E ever is ill . . . . . .7 ISSU yees to tions and S seriously I ....... is . H . e . emplo is pubexemp IN T an employe get sloppy . . . . . . . . . . 8 ment Law edited with the . 2 When applicants? Don’t d Employ list and is the ....... s answere glut of leave? . New York HR Specia co-chair of ent ent ..3 A Your question by Managem zo, from FMLA ....... lished The Mailbag: of Business Law Departm P. DiLoren can’t return anyway . . . . . ....4 Institute by Louis Employment& King, PLLC. Employee sued ....... National and firm’s deed; get eck ting . . . Labor of the Schoen Do a good e moonligh at Bond,managing partner City offices. g employe or Regulatin
Trusted
Editor: Louis P. DiLorenzo, Esq., Bond, Schoeneck & King, PLLC, (646) 253-2300 Contributing Editor: Anniken Davenport, Esq., HRNYeditor@NIBM.net Editorial Director: Patrick DiDomenico Senior Editor: John Wilcox, (703) 905-4506
Louis P.
Garden k.com He is a City and zo@bs New Yorkhim at ldiloren t Contac .com 00. ecialist (646) 253-23 heHRSp 55 • www.t (800) 543-20
to establis
h exempt
status
If you employ people with physical or mental disabilities, a new EEOC guidance document makes it clear that you can hold them to the same performance and behavior standards the rest of your employees are held to. You must, however, make “reasonable” accommodations so disabled employees can meet your standards. The new EEOC Q&A document, The ADA: Applying Performance and Conduct Standards to Employees with Disabilities, helps employers draw the line on how far they must go to accommodate disabled workers. Access the new guidance at www.eeoc.gov/facts/ performance-conduct.html.
excellent,” say “Megan has reduced the number of data entry errors to less than one per 450 records.” 7. Track trends. Note patterns and flag prior incidents of repeated behavior. Bring your observations to the employee’s attention only after you’ve defined a specific problem. 8. Be consistent. Don’t comment about one person’s behavior if you ignore the same behavior in other employees.
✓Yes, I want to begin my subscription to ❒ New York Employment Law for only $179 per year (nearly 40% off the normal price). Name_______________________________________ Company____________________________________ Address_____________________________________
City, State, ZIP_______________________________________________ Phone___________________E-mail_________________________
Payment Method: ❒ Credit card ❒ VISA/MC ❒ AMEX ❒ Discover
Fax this form to (703) 905-8040
Card #_____________________________________Exp. date______________ Signature_________________________________________________________
❒ Check/money order Mail to: New York Employment Law, P.O. Box 9070, McLean, VA 22102-0070 ❒ Bill me Contact our Customer Service Center at (800) 543-2055 NY6769 or customer@NIBM.net.
(800) 543-2055
In the News ... New York partners with IRS on employment tax enforcement New York is one of 29 states that have signed memoranda of understanding with the IRS to share enforcement information on employment tax collection matters. The move is part of the IRS’ Questionable Employment Tax Practices (QETP) initiative, which attempts to identify and prosecute employment tax schemes and illegal practices. Employers can reasonably expect that tax records provided to state agencies also will now make their way to the IRS. Any discrepancies between state and federal filings may trigger audits by one or both entities.
Shared Work Program helps you avoid staff layoffs The state Labor Department wants you to know there is an alternative to cutting staff during the downturn. Employers that reduce work hours for full-time employees instead of laying them off may qualify for the Shared Work Program. The program pays up to 20 weeks of partial unemployment benefits to help employees cover their reduced wages. To qualify, employees must work for a New York employer that has at least five full-time employees. Employers that reduce workers’ wages and hours by at least 20% but not more than 60% can apply.
Gristede’s and the FLSA (Cont. from page 1)
Act (FLSA) by treating them as both salaried and hourly employees. The court found that Gristede’s habitually docked managers’ pay when their hours fell short of a full workweek. But it also routinely denied them overtime for any hours worked beyond the full-time week. That violates the FLSA. The plaintiffs’ attorney, Linda Neilan, said, “What Gristede’s forced upon employees was a ‘heads I win, tails you lose’ arrangement. We are pleased that the court saw through this scheme.” Damages have not yet been awarded, but the plaintiffs seek $25 million.
www.theHRSpecialist.com/NY
Study cites New York as a hotbed of wage-and-hour claims A recent report offers some ominous news for New York employers. New York is one of eight states that saw an increase in class-action wage-and-hour cases filed in state court last year, according to the Seyfarth Shaw law firm’s new Workplace Class Action Litigation Report. Advice: Brace yourself for even more wage-and-hour litigation. Such cases typically increase during economic downturns—as the economic pie shrinks, workers step up efforts to get their share. These cases can get complicated. Have your attorney evaluate your overtime practices—and then make it a priority to implement any recommended changes. The Seyfarth Shaw report also noted a marked increase in class-action suits filed by retirees—in particular, those who once worked for manufacturing companies that have had to cut retiree health benefits that were promised during good times. The report also noted a strong correlation between mass layoffs and Age Discrimination in Employment Act charges. As layoffs increase, employers will likely face more litigation.
Participating employers must allow employees to keep fringe benefits such as health insurance. Employers can’t hire additional employees while enrolled in the program. For more information, go to www. labor.state.ny.us/ui/dande/shared work1.shtm.
Lewd boss induces $2.5 million panic attacks A woman from Queens is suing her boss and their employer for $2.5 million, claiming she began suffering panic attacks after the boss handed her 15 photos of himself stark naked. The woman, a customer-service representative at a real estate firm in Valley Stream, Long Island, claims an assistant general manager made sexual advances toward her, which she rebuffed. Shortly thereafter, he came to her office and handed her an envelope filled with nude, graphic photos of himself in sexually explicit poses. The woman said she “no longer felt comfortable working” in the office and experienced panic attacks as a result of his “outrageous conduct.” The manager was fired, but the lawsuit endures.
During lawsuit, don’t inquire about worker’s immigration status If you’re facing an employment lawsuit, don’t bother probing into the employee’s immigration status during the suit’s discovery phase. The EEOC has long held that immigration status is irrelevant to any underlying discrimination claims,
and a recent federal court ruling supports this stance. The case: A female restaurant employee claimed sexual harassment and the EEOC sued on her behalf. During discovery, the restaurant’s attorneys asked about the woman’s immigration status. EEOC attorneys objected, and the judge agreed to bar any questions designed to elicit whether the woman is in the country legally. (EEOC v. The Restaurant Company)
Brokerage house overtime case serves as cautionary FLSA tale One disgruntled worker’s lawsuit has turned into a class-action headache for brokerage firm Barclay’s Capital. Employee Chris DiFilippo believed the firm incorrectly classified him as being exempt from the Fair Labor Standards Act (FLSA), which deprived him of overtime pay. He sued when the matter couldn’t be resolved internally. During the discovery phase, DiFilippo’s attorneys found 20 to 30 other Barclay’s employees in a similar position. They returned to court seeking class-action certification for their lawsuit. The court granted it. Advice: FLSA exemption rules are tricky. When in doubt, don’t go it alone. Obtain your attorney’s opinion on every position you wish to make exempt. Free report To see how your employees fit under the FLSA overtime rules, access Complying With the FLSA Overtime Rules, at www. theHRSpecialist.com/whitepaper. June 2009 • New York Employment Law
5
In the Spotlight
by Louis P. DiLorenzo, Esq., Bond, Schoeneck & King, PLLC
How to discipline employees under the modern employment laws A 6. Equal treatment:
sk employers what their toughest challenge is, and they probably will mention discipline. It seems no one likes to play parent in the workplace. On the other hand, there’s no way to avoid it. Consider, for example, one of the classic labor-law cases—In re Grief Brothers Cooperage Corporation and United Mine Workers of America—in which the parties had specified that the company had “just cause” for discipline, but didn’t define the term. The arbitrator did, coming up with a famous list of “Seven Steps” to define the discipline process in the union environment. Those seven steps have become an informal test employers use to see whether the discipline they are imposing is, in fact, appropriate—even outside the union environment. The arbitrator in the 1964 decision asked seven questions and told the parties if the answer to any was no, then the employer probably hadn’t acted fairly and could be challenged. Those seven steps are outlined below. And because the world has changed in the 43 years since the original decision, two more questions have been added to the mix (see box at right). 1. Notice: Did the employer forewarn the employee in a handbook, posting or memo? To prove employees had notice, get a receipt showing delivery of handbooks or policies, take attendance at orientation or training sessions and note prior warnings. Some offenses are so serious, or some expected conduct is so routine that no notice is needed. The best example is Tom Cruise’s cross-examination of a soldier in the movie A Few Good Men. A Marine testified there was no such thing as a Code Red since it was not in the training manual. Cruise asked the Marine if they eat any meals at Guantanamo and if so, where? “Yes,” replied the Marine, “three squares a day, in the mess hall.” Cruise pointed out that there’s nothing in the manual about 6
New York Employment Law • June 2009
meal times, so how did the soldier know? He knew because it was obvious—no notice was needed.
2. Reasonableness: Was the rule or order reasonably related to the orderly, efficient and safe operation of the business? What’s reasonable depends on the nature of the business and the transgression. Smoking in a dynamite plant or stealing 75 cents in a bank setting may warrant discharge; smoking or petty thievery might not be so serious in other workplace settings. A first offense of failing to work mandatory overtime in a plant may not be critical. It might in an emergency room. 3. Investigation: Before administering discipline, did the employer make an effort to discover whether the employee did, in fact, violate or disobey a rule or order? You must prove an investigation was conducted. It must be fair, it must be complete and it must be done before imposing a final decision. (The hallmarks of a good investigation will be covered in a future article.) Keep in mind that the average juror’s frame of reference is often the investigations portrayed in a favorite Law & Order episode. That’s not an easy bar to hurdle, and it’s tough to prove an investigation was fair, complete and preceded any judgment.
4. Fair and objective: Was the employer’s investigation conducted fairly and objectively? Can you prove you considered all the facts? 5. Proof: Did the employer obtain sufficient evidence that the employee was guilty as charged? Obviously, direct and irrefutable evidence is the best proof. However, circumstantial evidence also works. Remember, the average juror is used to some pretty high standards of proof— based on TV and movie portrayals of investigations. Employers should push their investigations as much as possible
to produce those kinds of results.
Has the employer applied its rules, orders and penalties evenhandedly and without discrimination? This is the nondiscrimination test. In other words, if the employer was blindfolded and could not identify the alleged violator or any protected characteristics that he or she may possess, would the result have been the same?
7. Appropriate penalty: Was degree of discipline reasonably related to the seriousness of offense and the employee’s record? In other words, does the penalty fit the crime? We are all offended by the prison sentence Jean Valjean received in Les Miserables for stealing a loaf of bread to feed his family. Jurors react the same way.
DiLorenzo’s corollaries Corollary 1: Is the employee entitled to reasonable accommodation for any reason, such as for a disability or religion? Today, the nondiscrimination rule (No. 6) does not go far enough. If the employee is entitled to reasonable accommodation, then the employer must lift the blindfold and make a careful, proactive examination of the job requirements and the employee’s needs.
Corollary 2: Has the employee engaged in any protected activity? If so, retaliation rules contained in the various anti-discrimination laws, whistle-blower protections, the National Labor Relations Act and other laws kick in. Ask yourself whether you would have disciplined the employee even if he or she hadn’t engaged in protected activity. Remember, employees don’t get a free pass—but they shouldn’t get extra scrutiny, either. (800) 543-2055
Nuts & Bolts
FMLA certification: Collect medical-leave proof the right way THE LAW The federal Family and Medical Leave Act (FMLA) allows eligible employees to take up to 12 weeks of unpaid, job-protected leave each year for their own “serious health condition,” or to care for a parent, spouse or child with a serious condition. To help determine whether an ailment rises to the level of a “serious condition,” you can require employees to provide an FMLA medical certification. Essentially, that’s a doctor’s note that lays out the facts of the ailment, how long it’s likely to last and more. (To obtain a sample form, see box below.) In certain cases, you can ask for recertification to verify that the person continues to need FMLA leave. The law doesn’t require employers to obtain medical certification from employees who take FMLA leave. In fact, you can choose to ask for it in certain situations but not others. Still, it’s best to set a consistent practice regarding when you require FMLA medical certifications and to treat all employees seeking such leave in the same way.
WHAT’S NEW In recent years, employers have faced a growing problem of FMLA fraud. While employees are legally allowed to take FMLA leave in small bites (a day or even an hour or two), employees increasingly are using intermittent FMLA leave in
Online resources FMLA certification • Download a sample medical certification form (Form WH-0380) from the U.S. Labor Department at www.dol. gov/esa/regs/compliance/whd/ fmla/wh380.pdf. (Using the form is optional, but it’s a good idea to ensure compliance.) • Access free white papers from New York Employment Law, including How to Wipe Out Fraud and Abuse Under FMLA, at www.theHRSpecialist. com/whitepaper.
www.theHRSpecialist.com/NY
a noticeable pattern of Friday and Monday absences. Can you ask for FMLA recertification when you notice such patterns? Thankfully, yes, according to a U.S. Department of Labor opinion letter. The FMLA lets you request recertification “on a reasonable basis.” If no minimum time is specified on the medical certification form, you can typically request recertification no more than once every 30 days, and only in connection with an employee’s absence. But if you receive information that makes you suspect FMLA-leave abuse, you can ask for recertification more frequently than every 30 days. Fortunately, the Labor Department letter said that a pattern of Friday/Monday absences counts as information that “casts doubt upon the employee’s stated reason for the absence.” That means you can seek recertification more frequently than every 30 days, as long as the request is made in connection with an absence.
HOW TO COMPLY Your medical certification request must relate only to the serious health condition that’s causing the current need for leave. In other words, you can’t ask for information about the employee’s general health or any other medical conditions. You should ask when the serious health condition began, its likely duration, appropriate medical facts regarding the condition, whether there’s a need for intermittent leave and a statement that the employee is unable to work (see list, above right). After you request certification, you must give employees at least 15 calendar days to submit the paperwork to you. While it’s not your responsibility to hound employees to submit the certification on time, courts will frown on companies that deny FMLA leave simply because the employee submits his certification form on the 16th day. So, if an employee’s certification is missing or lacking information, notify him or her of the problem, and give the
FMLA medical certification: What can you request? ✓ Employee’s name ✓ Patient’s name (if other than employee) ✓ Type of serious health condition ✓ Medical facts supporting certification ✓ Date the serious health condition began ✓ Likely duration ✓ Facts concerning need for reduced/intermittent leave ✓ Regimen of treatment ✓ Whether the employee can perform work of any kind or is unable to perform any one or more of the job’s essential functions ✓ Whether the employee will provide direct care or psychological comfort if the FMLA leave is for a relative with a serious condition ✓ Signature of health care provider and date ✓ Signature by employee and date
person a reasonable amount of time to correct it. If the employee never provides the certification, you can deny the request. If you doubt the need for leave, you have the right to investigate the medical certification. For example, a health care provider representing your company can call the employee’s physician to clarify and confirm the medical certification (if the employee gives you permission). But you can’t request additional information from the health care provider. If you’re still not convinced, you also can require and pay for a second opinion. You can use an independent doctor that you select, but the person can’t regularly work for your company. If the two opinions conflict, you can pay for a third and final binding medical opinion.
Next Nuts & Bolts: Immigration paperwork Coming soon: Absence policies June 2009 • New York Employment Law
7
The Mailbag
by Louis P. DiLorenzo, Esq., Bond, Schoeneck & King, PLLC
Do employees have the right to access their personnel files? One of our employees is having disagreements with his supervisor over performance issues. The employee has asked to see his personnel file. Does he have a legal right to see his file? Private-sector employees have no right to see their files or make copies of any documents. If you have a unionized work force, the union may have access to the file in order to fulfill its duty to administer the labor contract (e.g., to see if a grievance should be filed or aid in the presentation of a grievance) or to assist in collective bargaining. However, in the interest of good employee relations, most employers have a policy allowing employees an opportunity to review their personnel files at a reasonable time and place. You can and should prohibit removing and copying files. In addition, do not allow former employees to browse their files.
Q A
Can we dock paycheck for damaged equipment? We recently terminated an employee and subsequently learned that he damaged company equipment through his own negligence. My boss wants to deduct the cost to repair the damage from his final paycheck. Is this legal? No, this practice would violate the New York Labor Law, which states, among other things, that deductions from wages are only permissible when required by law or authorized in writing by the employee and for the employee’s benefit. Most states have similar provisions regarding deductions from wages. Check those, too, if you do business in other states.
Q A
Downsizing and FMLA leave
Q
Our company is in the process of going through a reduction in force. One of the positions that has been
selected for elimination belongs to an employee on FMLA leave. Can we still eliminate the position? Generally, yes. Most courts hold that an employer may deny reinstatement to an employee on FMLA leave if the employer can show that it would have discharged the employee even if he or she had not been on FMLA leave. Of course, as with any reduction in force, the company should be able to clearly describe and document the nondiscriminatory factors used in selecting the targeted positions. It’s up to the company to show that it would have eliminated the position even if the employee were not on FMLA leave.
A
Shorter vacation for part-time employee? Under New York law, must an employee who works part of the year be paid a prorated vacation? New York law requires employers to put their vacation policies in writing. Employers are free, however, to define the vacation benefit as they wish. There is no legal right to receive a vacation; it is strictly a matter of employer policy. For example, if a vacation policy provides two weeks of vacation after one year of service, it is advisable to provide that the employee must work at least one day in the second year in order to be eligible for any vacation. Failure to set forth this eligibility (or forfeiture) requirement will require prorating the employee’s vacation.
Q A
Louis P. DiLorenzo is co-chair of the Labor and Employment Law Department at Bond, Schoeneck & King, PLLC, and a managing partner of the firm’s New York City and Garden City offices. In addition to representing employers and management in all aspects of labor and employment law, Lou is a frequent author and speaker on employment law. You may contact him at ldilorenzo@bsk.com, (646) 253-2300. To submit your question to The Mailbag, e-mail it to HRNYeditor@NIBM.net or fax to (703) 905-8042.
FYI ‘Pizza snub’ doesn’t count as religious bias
When do hearing impairments rise to a ‘disability’?
When a boss bought pepperoni pizza for his staff one day, a Muslim employee felt slighted because, she said, the boss knew of her religious beliefs about eating pork. She quit and sued for religious bias. The court tossed out the case, saying the pepperoni offense didn’t stack up to discrimination.
If you have employees with hearing impairments, check out an EEOC fact sheet that explains (in a Q&A format) when a hearing loss is a “disability” under the ADA, when you can ask employees or applicants about hearing impairments and what type of reasonable accommodations you may need to provide. Access it at www.eeoc.gov/facts/deafness.html.
More businesses are using GPS systems to track their employees for productivity, safety and customer-service reasons, such as on company-owned vehicles to catch speeding. Some employees have complained that GPS systems violate their privacy. Bottom line: You’re legally allowed to use the technology to track employees while they’re on the job, but it’s wise to first let them know you’re doing it. 8
New York Employment Law • June 2009
Are bloggers hurting your recruiting potential? Find out what people (possibly your former employees) are saying about your organization on their personal blogs, some of which have heavy readership. To do this, plug your organization’s name into a blog search engine, such as Blog Pulse (www.Blogpulse.com) or Google Blog Search (http:// blogsearch.google.com). (800) 543-2055
HRNY-SIS-005
Notify employees if you’re tracking them by GPS