April 2012
Welcome
Spring is in the air! We encourage you to continue exploring your HR Support Center to stay on top of your HR responsibilities and management needs.
HR Alerts
OSHA Summary Posting. The Occupational Safety and Health Administration (OSHA) requires certain employers to post the OSHA Form 300A in a conspicuous workplace location from February 1, 2012 through April 30, 2012. This form is a summary of the total number of job-related injuries and illnesses that occurred in 2011. Employers with ten or fewer employees during all of the last calendar year (2011) or businesses that are classified in a specific low-hazard industry are generally not required to post OSHA Form 300A. However, an employer subjected to this requirement must post OSHA Form 300A even if the employer had no reportable injuries/illnesses in the prior year. In addition to the posting requirement, the employer must provide a copy of the report to any employee with no fixed work site or no access to the posting location.
Record-Keeping Requirement Extensions to GINA. In a final rule published by the Equal Employment Opportunity Commission (EEOC) on February 3, 2012, the agency extended the record-keeping requirements imposed under Title VII and the Americans with Disabilities Act (ADA) to entities covered by Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA). This rule takes effect April 3, 2012 and while it does not mandate that employers create employment records, it simply requires employers to retain the records they do create. First, any personnel or employment record made or kept by an employer must be preserved by the employer for a period of one year from the date created or the personnel action involved, whichever occurs later. Second, any records pertaining to a filed charge of discrimination or an action brought by the EEOC or the US Attorney General under GINA must be retained by the employer until the final disposition of the charge or action.
FMLA Leave Calculation and Employee Reinstatement. The U.S. Department of Labor (DOL) has proposed a rule change that affects how employers calculate leave time under the Family and Medical Leave Act (FMLA) and how employees are to be reinstated after FMLA leave. If the proposed rule is finalized, employers will be required to calculate FMLA leave using the shortest increments they use to track work time. The public comment period for the rule change is set to close on or before April 16, 2012.
FMLA Proposed Rule for Military Leave. The Department of Labor (DOL), Wage and Hour Division has proposed to revise certain regulations of the Family and Medical Leave Act (FMLA), primarily to implement recent statutory amendments to the Act. The Notice of Proposed Rulemaking (NPRM) set forth regulations to implement amendments to the military leave provisions of the FMLA made by the National Defense Authorization Act for Fiscal Year 2010. This extends the availability of FMLA leave to family of service members of the Regular Armed Forces for qualifying exigencies. Public comments must be received on or before April 16, 2012.
IRS Tax Filing Deadline. The Internal Revenue Service (IRS) tax return filing deadline is April 17, 2012 for 2011 tax forms.
NLRA Posting Requirement. As a reminder, the National Labor Relations Board (NLRB) has issued a Final Rule that requires employers to notify employees of their rights under the National Labor Relations Act (NLRA). Private-sector employers, including labor organizations, are required to post the NLRA employee rights notice where other workplace notices are typically posted on or before April 30, 2012.
Proactive Prevention Against Workplace Harassment
For years, the U.S. Equal Employment Opportunity Commission (EEOC) and the US Supreme Court have strongly encouraged employers to establish harassment prevention training and have punished certain employers who fail to educate their employees. Several states (e.g. California, Connecticut, and Maine) require harassment education and make it unlawful for failure to train. All companies – big and small – must understand the definition of harassment, recognize the applicable mandatory training provisions, and ensure effective delivery of programs to protect their businesses.
A few employers generally understand the basics of what is considered workplace harassment, but many often neglect or tend to forget that discrimination plays a significant role. According to the EEOC, unlawful harassment is a form of discrimination that can violate one or more federal statutes, such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (ADEA) and the Americans with Disabilities Act of 1990 (ADA). Workplace harassment and discrimination can relate to each other because both may involve unwelcome verbal or physical conduct and behaviors often associated with protected classes including race, color, religion, sex, sexual orientation, national origin, ethnicity, age, and disability. Harassment may result from internal sources (e.g. employees and managers) or external sources (e.g. customers, vendors, and visitors to the workplace).
Examples of workplace harassment include:
Use of derogatory or mockery words encompassing skin color, religion, gender, age, and stereotypes.
Body language (e.g. profane gestures) and materials (e.g. explicit photos) considered offensive.
Insulting inferences or sexual references about an individual’s appearance (e.g. body parts or clothing attire).
An employer can be held liable for harassment by a supervisor that results in negative employment actions such as termination, failure to promote or hire, and loss of wages. In 2011, the EEOC stated 16.3% of charges were filed by males regarding sexual harassment. Employers having any knowledge about harassment (even alleged) and failing to take prompt and appropriate corrective action, can be held liable for harassment by non-supervisory employees or non-employees of whom it has oversight responsibilities (e.g. independent contractors or customers on the premises). If a complaint is filed with the EEOC, a determination as to whether the harassment is severe or pervasive enough to be deemed illegal is made on a case-by-case basis.
Prevention is the best tool to decrease or eliminate harassment in the workplace. Take proactive (and documented) steps to prevent and correct prohibited harassment prior to it becoming pervasive or unlawful. Clearly communicate to employees that unwelcome harassing conduct will not be tolerated. In particular, provide anti-harassment training to all managers and employees on a regular basis. Determine if the state you do business in, requires sexual harassment training. Three states (California, Connecticut, and Maine) currently require sexual harassment training to be provided for supervisory employees according to company size and other factors.
Employers should strive to create an environment in which employees feel free to raise concerns and are confident that those concerns will be addressed. Therefore, minimize your company’s liabilities by protecting your business against law suits and preventing harassment in the workplace by consistently communicating and educating all of your employees and supervisors.
Question & Answer
Employee files
Q. If our business has the opportunity to maintain employee files through an electronic management system, are we required to keep the original copies or can we shred them?
A. In a nutshell, employers are not required to maintain the hard copies of the employee files. However, it is recommended holding on to the hardcopy of these files during some overlapping period of time (i.e. 6 months or so) when (a) you are transitioning to a new electronic management system and you want to be confident that everything saved correctly and (b) you are not actively tied into any employment lawsuits or other litigation that would involve these items. If you do choose to dispose of the hard copies, be confident that they are being appropriately shredded since the documents may contain confidential information about employees.
Professional Image & Appearance
Every employer wants its company portrayed with a positive image. How a business wants to portray itself through its workers also plays a key role in rapport, business relationships, values, and customer service. If explored too nonchalantly and communicated poorly to its employees, an employer could easily find itself up against unexpected discrimination claims.
Several labor laws contain employee protections that relate to professional image. For example, Title VII of the Civil Rights Act covers protected classes (e.g. age, gender, sex, religion, ethnicity, race, religion) in the workplace. While an employer can enforce specific dress code policies, some policies may inadvertently infringe on an employee’s protected rights (e.g. attire, jewelry, or body markings having a religious relevance). In general, professional image or dress code policies should not be discriminatory in nature or intent.
Does it mean that a company may not impose different standards for different categories of employees? Not necessarily. A company may impose a different dress code standard for men and women based on generally acceptable social standards. In fact, this practice has been tested and supported in federal court. In the case of Knott v. Missouri Pac. Ry. Co., a male employee was suing for the right to wear an earring at work, as female employees were permitted to do so. The decision basically stated that as long as male and female employees are held to similar professional appearance standards, the company may impose differing gender-based guidelines in accordance with generally acceptable social appearance standards without engaging in gender-based discrimination. The court decision went on to state that “minor differences in personal appearance regulations that reflect customary modes of grooming do not constitute sex discrimination within the meaning of [federal law],” and dismissed the male employee’s lawsuit. With respect to tattoos, as long as both male and female employees are required to cover up tattoos while working, the company is in compliance with the applicable regulations.
The following are some guidelines employers may consider:
- Get familiar with relevant labor laws that also pertain to workplace safety requirements (e.g. hard-hat and steel-toe shoe requirements at a building construction site).
- Give employees an opportunity to change their appearance to be more in-line with the company’s workplace culture policies (e.g. allowing the employee to go home and return to work in a company’s prescribed uniform attire).
- Provide options to cover up or remove visible appearance factors as a temporary solution during working hours (e.g. requirement not to wear any visible body piercings during working hours).
- Survey customers about their perceptions of the company’s image represented by the workers.
- Adopt policies that specify which department of employees may or may not be impacted.
An employer’s objective is to ensure their business is portrayed appropriately by their staff to specific customers and audiences. However, the employer is responsible for making sure that the right professional image and dress code policies are in place and that the policies respect the employees’ protected rights in the workplace.
Tool of the Month:
Form I-9 Compliance Checklist
The Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) have set forth efforts to increase immigration compliance audits in the workplace. One of the top priorities is the Form I-9.
Use the Form I-9 Compliance Checklist to ensure regular compliance to:
- Determine if Form I-9s are truly complete
- Understand retention recordkeeping requirements
- And much more!
To download the Form I-9 Compliance Checklist, go to the HR Support Center, Essentials tab, Checklist link.
HRCast of the Month
What the New NLRA Posting Requirements Really Means for Employers
What implications exist beyond the new National Labor Relations Act posting requirements? This month’s HRCast explores this question and provides listeners with insightful answers and helpful tips.
On April 15th, be sure to visit the HR Support Center and listen to this month’s HRCast to learn more.
HR Tip of the Month
Create a Job (not an Applicant) Posting
Describe the job, not the applicant. Focus on the essential functions, duties, and responsibilities needed for an individual to perform the work…and not individual personality characteristics.
Did you Know?
84%
A new survey released by Right Management found 84% of employees intend to look for a new position in 2012.
Quote of the Month
“Always bear in mind that your own resolution to succeed is more important than any other.”
– Abraham Lincoln
A Look Ahead
April 1:
April Fools’ Day
April 6:
Good Friday
April 7:
World Health Day
April 8:
Easter
April 17:
Income Tax Day
April 22:
Earth Day
April 25:
Administrative Professionals Day
April 27:
National Arbor Day
April:
Sexual Assault Awareness and Prevention Month (observed)
Contact Us
Paragon Business Services, Inc.
7610 N Stemmons Frwy Suite 600
Dallas, TX 75247
Additional Contacts
Phone: 866-444-4615 Fax: 214-951-1920
Paragon Business Services, Inc 