Are You SURE You Understand “At Will Employment”?

by Nancy Owen, PHR

Employment relationships are presumed to be “at-will” in most states throughout the USA. However, the United States is one of just a handful of countries worldwide where employment is primarily at-will.

What is at-will employment?

According to the National Conference of State Legislatures (NCSL), at-will means that an employer can terminate an employee at any time for any reason, except an illegal one, or for no reason without incurring legal liability. Likewise, an employee is free to leave a job at any time for any or no reason with no adverse legal consequences.

Of course, at-will may be preempted by some employment agreements (often negotiated with high-level employees) or collective bargaining agreements.

Doesn’t that mean we can fire at will?

Many employers who do not use employment agreements and do not have unionized employees believe that “at-will” is a free pass to terminate an employee anytime for any reason with no consequences. But it is not that simple. Before you lean solely on at-will as your reasoning for terminating an employee, be sure you understand a few significant exceptions that apply to this misunderstood term.

First and foremost is the prohibition against discrimination clearly set forth in the federal Civil Rights Act and just about every state’s own anti-discrimination laws. Under federal law, employers generally cannot discriminate against employees based on sex, race, color, national origin, religion, disability, age (for workers over 40 years), military service or affiliation, genetic information and citizenship status. That doesn’t leave out many people.

If you terminate an employee using at-will for the reason, be sure you can prove beyond a shadow of a doubt that you have neither intentionally or unintentionally discriminated against a protected class. If you cannot prove that you have not, the law with assume you did.

Another exception to employment at-will involves contracts, or what is referred to as the implied-contract exception. The provisions of an actual employment contract are usually very clear, but contracts can also be implied. An implied contract is formed between an employer and an employee even though there may be no specific written document. It may be an oral or written “promise” to an employee regarding their job security or an employee handbook that does not contain a clear disclaimer stating that it is just a guideline and not a contract.

Another exception is the good faith and fair dealing exception which essentially incorporates the “good faith” principle into every employment relationship. When an employee has an employment contract, whether express or implied, that contract contains an unspoken covenant of good faith and fair dealing. This means that an employer owes an employee a duty to act in good faith and to deal fairly with him/her.

In this case, an employer must have what amounts to good cause for terminating a worker.  In order to have good cause, an employer must have a legitimate reason for firing the employee. This usually means that the reason must be job or business related in some way, such as the following examples:

  • Poor work performance (low productivity, tardiness, missing meetings. etc.);
  • Harassing other employees;
  • Threats of violence;
  • Theft or dishonesty;
  • Insubordination; or
  • Revealing trade secrets.

It’s also acceptable to fire an employee because of downsizing, or due to financial difficulty.

And finally, the public-policy exception. In most states, an employer cannot terminate an employee for taking an action that is considered protected under some public policy. This may include filing a workers’ compensation claim, refusing to break the law at the request of the employer, or requesting a leave of absence in accordance with the FMLA or ADA.

Before you move forward with that “at will” termination, be sure you have not missed any of these exceptions and are not at risk of a wrongful termination. If you are an employer with questions about at-will employment or terminations, contact our HR team by sending an email to HRhelpline@eastcoastrm.com or by calling us at (724) 864-8745.

Disclaimer: The information provided on this web site is for informational purposes only and not for the purpose of providing legal advice. Use of and access to this web site does not create an attorney-client relationship between East Coast Risk Management or our employment attorney and the user or browser.

Posted in Uncategorized |

Prevent Harassment and Costly Claims with Proactive Measures

by Nancy Owen, PHR, and Laura Pokrzywa

Sexual harassment is a hot topic these days. Did you know that over the past year alone, more than 200 powerful people, including popular celebrities and high-level corporate executives, have been accused of sexual harassment or assault? More and more alleged victims come forward daily.

The most recent allegations were leveled against Leslie Moonves, who for years had been one of the most powerful media executives in America, serving as the chairman and C.E.O. of CBS Corporation.

Sexual harassment isn’t just a famous person’s issue, even though celebrity cases have to come to dominate the headlines. It can occur anywhere in an organization. It is unlawful to harass any person in the workplace (applicant or employee) because of that person’s status in a protected class, including sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.

Employers need to be able to address sexual harassment and address it properly. The potential financial cost to an employer who does not take this seriously is hard to calculate and goes beyond the multi-million dollar settlements or court-ordered payouts. Before the case even goes to court, unaddressed harassment can cost thousands in absenteeism, low productivity, turn over and, ultimately, damaged reputations.

State Laws

Federal anti-discrimination and anti-harassment laws cover employers with 15 or more employees. But don’t assume you are off the hook just because you are a small employer. Some states and municipalities have sexual harassment laws covering employers with as few as two employees. States’ common law may also protect employees. The bad news for smaller employers is that potential claims actually could be more damaging when the sexual harassment laws do not cover you. For instance, if an employee experienced unwanted touching and the company ignored his complaints, that employee could experience emotional stress and you could be dealing with a criminal charge of assault and battery or even invasion of privacy.

Following the example of California, Connecticut and Maine, New York State and New York City recently enacted laws that require employers to provide sexual harassment training. State training requirements took effect October 9, 2018. The New York City requirements will take effect April 1, 2019. The truth of the matter is that these few states will not be the only ones. It looks like these training laws will be the wave of the future for the other states as well.

Proactive Measures You Can Take

  1. Make it clear that this is a workplace where harassment will not be tolerated by making sure your policies are in order. Create a workplace policy that defines unlawful harassment and sexual harassment, and review it regularly. The workplace policy should provide clear guidance for reporting any harassment that may be experienced or witnessed. It should state that investigations of all claims will be done in a timely manner and will be confidential to the extent possible. It should also assure employees that retaliation against those who report harassment or those who participate in the investigation will not be tolerated. Having a policy that establishes zero tolerance for sexual harassment in the workplace can change the workplace culture to one that promotes respect, equity, and civility. It must start at the top of the company. Leaders must set the example.
  2. Do not allow sexual jokes, innuendo, sexually inappropriate comments, or touching. The workplace culture should reflect civility and respect and promote support for its employees.
  3. Close gaps in gender equity. Sexual harassment isn’t really about sex; it’s about power. Research suggests that when women are underrepresented in the workplace, they are more vulnerable to sexual harassment.
  4. Provide training on sexual harassment that is more than a one-time session. Training should be part of a proactive program that is about the prevention of harassing and abusive conduct, not the prevention of a sexual harassment claim.
  5. Remember, employers have the responsibility to take each complaint of sexual harassment seriously and investigate without retaliating against the victim or the accused.

Ideally, you want to PREVENT the harassment. But, if it happens, you want to END it as soon as possible.

Don’t Forget EPLI

Proper training and consistent application of a clear, thorough policy will go a long way toward preventing harassment in your workplace. But you don’t have to stop there. Unfortunately, even the best policy cannot guarantee that you will never experience a claim. Since even one claim can be devastating, many companies are taking another step to protect their bottom line by purchasing insurance, including employment practices liability insurance (EPLI). EPLI can cover most costs associated with employment lawsuits, including harassment, discrimination, wrongful termination and other suits that allege a possible violation of an employee’s rights. If you would like more information about EPLI coverage, let us know.

For additional questions or specific guidance on harassment policies, harassment training, EPLI or any other HR-related issues, please feel free to contact us at HRHelpline@eastcoastrm.com. If you have any questions about East Coast Risk Management and the services we offer, please visit our website (www.eastcoastriskmanagement.com) or call (724) 864-8745.

Disclaimer: The information provided on this web site is for informational purposes only and not for the purpose of providing legal advice. Use of and access to this web site does not create an attorney-client relationship between East Coast Risk Management or our employment attorney and the user or browser.

Posted in Uncategorized |

Don’t Risk It. Get the New FCRA-Compliant Form for Background Checks

by Derek Ross

Did you hear about the employer in California that just had a federal judge approve a $1.3 million class action lawsuit settlement against them? The company was accused of violating the Fair Credit Reporting Act (FCRA) by requiring employees to fill out and sign a background check authorization form and a liability waiver that violated FCRA requirements. The issue? The form they were using “was embedded with extraneous information” instead of being a stand-alone document, as required by the FCRA.

So why is a credit reporting law costing an employer so much money? The FCRA is a federal law that regulates credit reporting agencies, such as the companies that provide criminal and other background checks, and compels them to ensure the information they gather and distribute is a fair and accurate summary of a consumer’s history.

Under employment law, the FCRA has a number of requirements employers must abide by when using background information concerning an applicant or employee if the information is run by a third party consumer reporting agency. Failure to comply with these requirements can result in liability for the employer, possibly resulting in legal action against the employer. If your handling of a background check results in a violation of a candidate’s or employee’s rights under the FCRA, you could be on the hook for actual damages (no limit), statutory damages (up to $1,000), punitive damages (decided by the court) and attorney’s fees and costs.

What about employee authorization for the background check?

This is probably the step that tripped up that employer in California. They seemed to understand that running a background check means you need to obtain prior written consent from the applicant and/or employee. However, the FCRA requires that, If you use the services of a credit reporting agency, that authorization must be on a document separate from all other documents (i.e., this cannot be part of your job application, employee handbook, or any other form) and should NOT contain a release from liability statement. Ideally, the background check provider should have FCRA-compliant authorization forms for your use.

What if the report reveals an unacceptable history?

One requirement under FCRA is that an employer CANNOT disqualify or take action against a candidate or employee based on the results of a background check without providing the individual with a “pre-adverse action disclosure” which would include the following information:

  1. A summary of the consumer’s rights under the FCRA (available from the Consumer Financial Protection Bureau)
  2. A copy of the individual’s consumer report
  3. A copy of applicable state or local notices

In order to avoid liability, employers need to utilize the new Summary of Rights form which went into effect on September 21, 2018. In addition to the rights already summarized on the previous form, this new form notifies consumers of their right to place a “security freeze” on their credit report.

Once the adverse action is taken, the individual must be given an “adverse action notice.” This document provides the applicant/employee with the name, address, and phone number of the employment screening company that supplied the report, a statement that this company did not make the adverse decision, rather that the employer did, and a notice that the individual has the right to dispute any of the information contained in the report. Again, your background report provider should be able to supply these forms.

Given the potential cost of a violation, it is highly advisable for employers to have background and credit check forms and procedures reviewed by legal counsel to ensure compliance with FCRA requirements.

For additional questions or specific guidance on this or any other HR-related issues, please feel free to contact us at HRHelpline@eastcoastrm.com. If you have any questions about East Coast Risk Management and the services we offer, please visit our website (www.eastcoastriskmanagement.com) or call (724) 864-8745.

Disclaimer: The information provided on this web site is for informational purposes only and not for the purpose of providing legal advice. Use of and access to this web site does not create an attorney-client relationship between East Coast Risk Management or our employment attorney and the user or browser.

Posted in Human Resources | Tagged , , , ,

When Employer Leave Policies Lead to ADA Violations

by Dominick Carnicella

In the past two years, the Equal Employment Opportunity Commission (EEOC) received the highest amount of disability discrimination claims in its history. Understanding the basic requirements of the Americans with Disabilities Act (ADA) could have saved many of those errant employers thousands of dollars and untold man hours.

Most employers know that the ADA prohibits discrimination in employment on the basis of disability and that it requires covered employers (those with 15 or more employees) to provide reasonable accommodation to applicants and employees with disabilities. But many are unsure of how that applies to time off work in the event of an injury or illness. EEOC guidance says that time off work can be a reasonable accommodation for an employee with a medical condition that qualifies as a disability under the ADA.

What is reasonable?

A reasonable accommodation is defined by the law as a modification or adjustment to a job application process or the work environment that “enables an individual with a disability who is qualified to perform the essential functions of that position”. This can include changes in the work environment, job restructuring, modifications to work policies, and/or time off for individuals when needed for a disability.

Employer-Provided Leave and the Americans with Disabilities Act is guidance published by the EEOC in May 2016. It states that “some employers may not know that they may have to modify policies that limit the amount of leave employees can take when an employee needs additional leave as a reasonable accommodation.” In speaking with clients, the reaction is often shock, disbelief and occasional anger that an employer may be required to provide time off as a reasonable accommodation. Listed below are occasions when time off may be requested as an accommodation:

  • If an employer is not a covered employer under the Family and Medical Leave Act (FMLA)
  • If the employee is not eligible for FMLA
  • If the reason for leave is not covered by FMLA, but does qualify as a disability under the ADA
  • If the employee has exhausted their FMLA leave entitlement

If an employee is not able to perform the essential functions of the job, and a medical leave is needed, you must determine what kind of leave may be required by law, including FMLA for covered employers. If no other leave is required, you must begin the interactive process with the employee. This will allow you to obtain the information needed to determine if providing a leave of absence would be a reasonable accommodation without causing an undue hardship for the company.

The interactive process

For privacy purposes and consistency, this process should be handled by the individual who regularly handles your human resource functions. In order to verify and gather further information on this matter, the employer should provide a return-to-work form or a simple letter for the employee’s healthcare provider, along with the employee’s job description. The form/letter should ask if the employee’s medical condition qualifies as a disability under the ADA, what accommodations could be provided so the employee can perform the essential functions of their position, and how long the condition is expected to last. The healthcare provider should fill out the form or provide a letter certifying the employee’s need for leave, including the estimated time needed and/or any accommodations that will be needed. That information must be returned to the employer.

Employers are required to examine requests on a case-by-case basis to determine if leave would be a reasonable accommodation or an undue hardship. Proving that a request for time off is an undue hardship is difficult for employers, especially if the employer has been able to cover the position while the employee was out on an FMLA leave. In order to do so, you must show that you’ve exhausted all options including temporarily filling the position or assigning duties to other staff. If you deny a request because you have determined it to be an undue hardship, you will need to document the business reasons and the impact on the company. Of course, if the decision is cost-based, you should be prepared to provide financial information as to the cost of this accommodation and why it would be too much for the company to bear.

A few important reminders:

  • Existing policies and procedures cannot get your company “off the hook” when it comes to complying with an ADA accommodation. For example, if your policy allows for 3 weeks of additional leave once FMLA has been exhausted and the employee requests an additional 6 weeks, you must consider this accommodation request. EEOC guidance indicates that employers are required to go over and beyond their policies when it’s reasonable to do so. Enforcing blanket policies will likely be found to have violated the employees’ rights under the ADA.
  • Indefinite leaves of absence are not considered reasonable. There must be an anticipated timeframe that the employee will be able to return to performing the essentials functions of the position. An example of an indefinite leave is if the employee’s physician states they are unsure if the employee will ever be able to return to performing the essential functions of the position with or without accommodation.
  • Accommodation requests could include a request for time off of work or a reduced or modified work schedule. You may want to consider creating a temporary position with modified functions for the employee to work temporarily until they can return to their original position. However, the ADA does not require an employer to create a new position.

If you are an employer with questions about these issues, or any other HR concerns, please send an email to HRhelpline@eastcoastrm.com. If you have any questions about East Coast Risk Management and the services we offer, please visit our website (www.eastcoastriskmanagement.com) or call (724) 864-8745.

Disclaimer: The information provided on this web site is for informational purposes only and not for the purpose of providing legal advice. Use of and access to this web site does not create an attorney-client relationship between East Coast Risk Management or our employment attorney and the user or browser.

Posted in Human Resources | Tagged , , , ,

Mandatory Subjects of Bargaining: What You Need To Know

by Dominick Carnicella

Employers with unionized employees must be aware of what can be unilaterally changed and what’s required to be negotiated prior to changing unionized employees’ terms and conditions of employment.

Mandatory Subjects of Bargaining. Employers should know that the employee handbook, or other work rules or policies, may not alter certain terms that an employer must bargain over with the union. These terms are called “mandatory subjects of bargaining”, and generally include provisions relating to “wages, hours, and other conditions of employment”. For example, the following list includes just some of the provisions that have been found to have been mandatory subjects of bargaining:

1.  application forms;
2.  attendance and absence policies;
3.  bonuses as wages;
4.  disciplinary system;
5.  discrimination;
6.  drug testing of employees;
7.  ethics codes;
8.  grievance procedures;
9.  holidays;
10.  job security;
11.  jury duty;
12.  layoffs;
13.  meals;
14.  medical insurance;
15.  off-duty conduct;
16.  outside employment;
17.  pension and retirement plans;
18.  promotions;
19.  reinstatement;
20.  savings plan;
21.  seniority;
22.  severance pay;
23.  sick leave;
24.  smoking;
25.  social events;
26.  stock plans;
27.  transfers;
28.  union activity on company property;
29.  vacation;
30.  wages and other pay;
31.  work assignments;
32.  work-related injuries;
33.  work rules.
34.  AND MORE . . .

Essentially, if a rule or policy can reasonably be expected to affect a benefit or impose a burden on an employee, it is a matter that must be raised in collective bargaining, and cannot be unilaterally altered by the employer.

Mid-term Bargaining. If either the employer or the union wishes to alter a mandatory subject of bargaining during the effective term of the collective bargaining agreement (“CBA”), neither may do so unilaterally. If both parties agree, they may enter into a memorandum of understanding (“MOU”) containing the new negotiated term, which would be effective until the adoption of a new CBA. However, if it’s agreed to reopen portions of the contract for negotiations, the parties must bargain as you would when there is no contract in place. This means that you may implement your proposals if the parties have reached impasse or impose a lockout, and the union can strike. For issues that may be expected to change significantly during the term of a CBA, such as health insurance contributions, the parties may wish to negotiate a “reopener” clause with respect to those specific issues, which would automatically impose a bargaining obligation upon the occurrence of certain pre-defined events, such as the passage of two years, or the employer’s health care premium increase in excess of a predetermined percentage from one year to the next.

Effects Bargaining. If a particular business decision is being considered, and it’s either not a mandatory subject of bargaining or it is within the scope of permissible unilateral action (as defined within a CBA’s “management rights clause”), you may still have an obligation to bargain over the effect of that decision on the bargaining unit employees. Such decisions will typically include:

a.   total plant closings, liquidations, and relocations;
b.   sales of businesses and mergers;
c.   plant modernization;
d.   plant openings;
e.   changes to work schedules; and
f.   loss of work / layoffs

The “effects” over which you must bargain would be items such as:

a.   severance pay;
b.   payments into the pension fund;
c.   preferential hiring if the employer continues operating at other plants;
d.   reference letters with respect to other jobs; and
e.   health insurance, pension benefits and retraining funds.

Effects bargaining must be conducted in a meaningful manner and at a meaningful time. The National Labor Relations Board (NLRB), hearing an unfair labor practice charge arising out of an employer’s refusal to bargain, will consider factors such as the risk of significant financial loss to the employer, concealment, misrepresentations, the length of time between the decision and the notice, the sufficiency of effects bargaining that had occurred, and anti-union animus.

Management Rights. Most CBAs contain a “management rights clause”, the purpose of which is to leave matters not specified in the contract to be determined by the employer. Thus, if you’re contemplating a change to your business operations that is not susceptible to effects bargaining and not counter to any specific language in the CBA, you’ll want to check to see if it is a right that has been allotted to management in your CBA’s management rights clause. For example, even though implementation of a drug testing program would ordinarily be viewed as a mandatory subject of bargaining, if a management rights clause specifies circumstances under which the employer may insist on drug testing, the employer is free to act unilaterally within the scope defined by that management rights provision.

If you have any questions or need assistance or guidance on mandatory subjects of bargaining, contract negotiations, responding to union grievances, representation for arbitration, PLRB, PERB, NLRB hearings and in Pennsylvania or Federal Courts at trial and appellate levels, please reach out to us at (724) 864-8745 or at HRhelpline@eastcoastrm.com.

Disclaimer: The information provided on this web site is for informational purposes only and not for the purpose of providing legal advice. Use of and access to this web site does not create an attorney-client relationship between East Coast Risk Management or our employment attorney and the user or browser.

Posted in Uncategorized |

Why Listening to Your Safety Professional is So Important

by Renee Mielnicki, Esq.

Warning: I know you are used to us blogging on HR topics, but this one is more about safety than HR. I realize I am a HR professional and attorney, but a lot of HR professionals also have safety knowledge. The two disciplines often come together since both are responsible for assessing and minimizing risk to an organization. So today we are going to step out of the HR world and into the world of safety. Let’s talk about why it’s so important for a company to follow the advice of their safety professional.

Most of you know what OSHA is. It stands for the Occupational Safety and Health Administration. It’s a federal agency of the United States Department of Labor that enforces the OSH Act, a federal law which regulates safety and health in the workplace. OSHA oversees and enforces the OSH Act by issuing regulations and holding employers responsible for violations through inspections and corrective action. Not all employers are covered by the OSH Act. Government employers, for example, are not covered. However, the law does cover most employers, so this blog may be very beneficial to you to read.

Most of our clients have safety professionals, whether it is their own, one of ours, or a combination of both. Safety professionals are certified professionals trained in OSHA law and workplace safety. Their main goal is to keep your workplace free of workplace injuries. Safety professionals often inspect workplaces, including equipment, to determine if there are any conditions that present a risk of injury to employees. If any are identified, they will call them to the attention of the employer to fix immediately. This is not all that safety professionals do, but inspecting workplaces to ensure safety is a huge part of their job.

As an employer, there are many good reasons to use a safety professional. Not only do employers want to comply with the OSH Act, since violating it means penalties, but injuries can affect things like workers’ compensation premiums, employee turnover and administrative costs – all important business-related reasons. However, once you hire that safety professional to help reduce these types of risks, it’s really important to take their advice, including fixing any hazards they uncover during inspections. Here is why …

Violations of OSHA standards can result in serious penalties to an employer. Citations are usually classified in five ways: (1) other than serious, (2) serious, (3) repeat, (4) willful and (5) failure to abate. The current maximum penalty that OSHA can assess for an other than serious or serious classification is $12,934 per violation. The current maximum penalty that OSHA can assess for a violation of a repeat or willful classification is $129,336 per violation. The minimum penalty amount for a willful violation is currently $8,908. But that’s not all — willful violations that involve an employee death can trigger additional criminal penalties and six months in prison.

I think we can all agree that having a safety professional who can help us keep the workplace safe is a good thing since failure to do so might result in some pretty significant fines from OSHA. But what happens if your safety professional identifies a hazard, tells the employer to fix it and the employer doesn’t listen? Well, the penalties from OSHA can be greater and here is why. If you look at the fines as listed above, you can see the biggest come from the repeat and willful classes. Once you, as the employer, know about a workplace hazard (i.e., whether through your own discovery, an employee report, or from your safety professional), if you fail to immediately abate the danger, you are now willfully violating an OSHA standard thereby increasing the risks of a much larger penalty if an employee gets hurt. The same is true if you are cited by OSHA for the same violation on more than one occasion (i.e., a repeat classification violation). Not only can your fines be larger, but you also create the risks of being sued directly by your employee as opposed to enjoying the protections of state workers’ compensation immunity statutes. You can also risk damage to your reputation if the public finds out you don’t take workplace safety seriously.

Lastly, I read a recent case occurring in the state of Missouri that reminded me how serious it can get for employers that ignore safety violations that they know about. The facts of the case went like this: An iron worker for a steel erection company died after he fell nearly 40 feet while working at the construction site. Following the accident, OSHA’s investigation determined that while the worker was wearing the required harness and connectors, he was not connected to an anchorage point as required under OSHA regulations. During the trial, members of the company were convicted of a Class B misdemeanor crime for willfully violating OSHA safety regulations, causing the worker’s death, and fined $500,000. Here is the evidence that was used against them, leading to this result …

The worker’s supervisor knew of the safety standards and knew that the worker was not using his safety equipment. The employer’s failure to ensure the worker used his equipment properly was knowing rather than accidental. The supervisor intentionally ignored safety requirements. Lastly, evidence was admitted of other violations the employer committed from previous years that occurred at other sites, showing the company’s knowledge and intent. It was found that the company committed a willful violation.

This case is unusual, but obviously possible.

As you can see, the incentive to always follow the advice of your safety professional is huge. It may seem to you that they are suggesting remedies that are not necessary or too expensive to fix. In reality, they are on your side, trying to keep your workers safe and reduce your risks of some of the penalties I talk about above. I hope after reading this, you agree.

Have a safe day!

If you are an employer with questions about safety and workplace compliance, you can call our offices at (724) 864-8745 to speak with one of our safety or HR professionals.  Questions about any HR issue can also be emailed to our HR professionals at HRhelpline@eastcoastrm.com.

Disclaimer: The information provided on this web site is for informational purposes only and not for the purpose of providing legal advice. Use of and access to this web site does not create an attorney-client relationship between East Coast Risk Management or our employment attorney and the user or browser.

Posted in Human Resources | Tagged , , , ,

Investigating and Disciplining Employees in the Public Sector

MEET THE AUTHOR: East Coast Risk Management is happy to welcome Ben Orsatti, Associate General Counsel and Senior Consultant, to our HR team.

A graduate of the University of Pennsylvania as well as the Duquesne University School of Law and admitted to the Bar in 2004; Ben has practiced in state and federal court and has represented both labor and management in interest and grievance arbitration and proceedings before the NLRB, PLRB, EEOC, and OSHA.  Ben’s expertise extends to all areas of labor and employment law, including contract negotiation, compliance review (including OFCCP), employee benefits (including ERISA), and human resources.

by Ben Orsatti, Esquire

It’s your first day on the job as Human Resources Director of Brackenridge County, Pennsylvania. You’ve never worked for a public employer before, and you’ve also never dealt with a unionized workforce before, but in your former life as Controller of a Fortune 500 company, you had disciplined countless employees. So, when you stroll confidently into your office on Day One, only to find the Brackenridge County Prothonotary standing over your desk, arms akimbo, you smile, and think to yourself: “I got this”.

PROTHONOTARY: “Today, one of my Docket Clerks was found with hundreds of dollars’ worth of stolen filing fees in her tote bag. She told her supervisor she wanted to exercise her Weingarten rights, and wouldn’t set foot in my office to get her termination letter until she’d been Loudermilled, but I’m invoking 1620 here, and that gal is history, no matter what you or the Commissioners say about it.”

Your smile is short-lived as you wonder, What are “Weingarten and Loudermill”? What is “1620”? And what on earth does a “Prothonotary” do, anyway?

Before you fill out an action form terminating your own employment, take a breath, politely excuse yourself, and call your friendly neighborhood labor and employment consultant. You’ve just traded in your checkers board for a chess set, and you need to learn the rules of the game.

Section 1620 Rights

The word “Prothonotary” first described the recorder of the court of the Byzantine Empire, but that’s not what’s going to help you right now. What you need to know is that a Prothonotary is not only a department head, but an elected official, and that, as such, per Section 1620 of the Commonwealth of Pennsylvania County Code, she is the one in charge of “hiring, discharging and supervising” all employees serving in the Brackenridge County Prothonotary.

Long story short, if you’re going to do anything relating to employee discipline of Prothonotary employees in your capacity as Human Resources Director for your bosses, the Commissioners, you’re not going to do it without the “buy-in” of the Prothonotary herself – so says the law of the land.

That will take some getting used to. In the private sector, your “boss” was the CEO, whose “bosses” were the Board of Directors, and that’s where your “org chart” stopped. But in the public sector, for the HR decisions you make, you have to constantly keep in mind your responsibilities not only to the Commissioners, but also to department heads, other elected officials, salary boards, prison boards, the County Solicitor, the unions, the employees themselves, and the taxpayers of fair Brackenridge County.

Weingarten Country

In 1975, the United States Supreme Court decided, in a case known as the Weingarten case, that every union-represented employee who reasonably believes he is being subjected to an investigatory interview that may lead to discipline has the right to demand representation by a union agent or fellow employee before giving any information to the employer.

Unlike, say, Miranda rights, an employer doesn’t have to notify employees of their right to invoke their Weingarten rights (that is really the job of the union leadership), so, if an employee chooses not to invoke Weingarten, the investigatory interview may proceed. If present, the union representative cannot assume the role of “adversary”, or otherwise interfere with the course of the investigation. The role of the union representative is merely to provide “advice and active assistance” to the affected employee. Also important to remember is that Weingarten only comes into play during an employee investigation; at the conclusion of an investigation, where a meeting is called merely to inform the employee of discipline already decided-upon, no Weingarten rights attach.

Finally, although Weingarten was decided under the National Labor Relations Act, its principles apply with equal force to public employers under the several state labor or public employment relations acts.

Having been made aware of this information, you advise the Prothonotary to track down the employee’s union rep pronto, only then may she question the employee. While she is doing that, you now have bought yourself some time to learn about going…

From Steel Mill to Loudermill

Unlike your previous gig in the private sector, your job in County government now requires you to be aware of your Constitutional responsibilities as a government actor. Loudermill rights owe their existence to the very basic fact that employees in the private sector do not have a Fourteenth-Amendment Constitutionally-protected liberty and property interests in their reputation and their continued employment, whereas public employees do. Because the government cannot deprive any individual of any of these interests without “due process of law”, an employee facing discipline from a government employer is similarly entitled to those very same due process protections.

So, while a public employee has no right to demand Weingarten protections after the conclusion of a disciplinary investigation, Loudermill makes sure that no such investigation can be concluded (and discipline imposed) until that employee is given: (1) Notice of the charges against the employee; (2) An explanation of the employer’s evidence, and (3) An opportunity to respond, including the chance to present reasons the discipline should not be imposed, either in person or in writing. The Loudermill hearing must occur prior to any deprivation of the employee’s protected employment interest, unless it is clearly impractical, in which case it must occur as soon as possible thereafter. It is important to remember that an actual deprivation must occur before Loudermill is implicated. Thus, placing an employee on paid administrative suspension pending, say, the results of a drug test, is permissible as long as the employee is given a Loudermill opportunity before imposing an unpaid suspension, or termination.

You Are an HR Superstar

While the Prothonotary was interrogating her allegedly-embezzling employee in the presence of the employee’s union business agent, you were hanging on every word of your ever-helpful consultant. Then, after conferring with the Commissioners’ Chiefs of Staff via conference call and making a note in the file of the substance of that conversation, you meet again with the Prothonotary:

PROTHONOTARY: “Well, she says she didn’t do it, but I don’t believe a word – I just don’t like the look of her face”. Where do you keep your COBRA notices around here?”

YOU: “I’m not sure we can just hand her a termination letter without completing the investigation. Have you spoken with all relevant witnesses?”

PROTHONOTOARY: “You betcha.”

YOU: “Well, I’d like to review the notes of those interviews before setting up a Loudermill hearing with the employee.”

You review the notes, and find it odd that only one employee, Lyra McPantzonfyre, recalled seeing the alleged thief anywhere near the cash drawers that morning, and you set up the Loudermill hearing. At the hearing, where the evidence against the employee is put before her, the employee again protests her innocence, except that now, having had the benefit of further talks with her business agent, the employee suggests that the purloined County funds in question be fingerprinted. Lo and behold, the bills are dusted, and the prints of Employee McPantzonfire are all over them!

Due Process wins the day.

If you are an employer with questions about these issues, or any other HR concerns, please send an email to HRhelpline@eastcoastrm.com. If you have any questions about East Coast Risk Management and the services we offer, please visit our website (www.eastcoastriskmanagement.com) or call (724) 864-8745.

Disclaimer: The information provided on this web site is for informational purposes only and not for the purpose of providing legal advice. Use of and access to this web site does not create an attorney-client relationship between East Coast Risk Management or our employment attorney and the user or browser.

Posted in Uncategorized |

Reference Checks: A Key Component of Your Hiring Process

by Nancy Owen, PHR 

There is no doubt that the interview is the most valuable piece in a hiring process, but reference check can be a close second for many reasons. Isn’t the main goal of an interview process to confirm the person’s skills, knowledge and abilities? And what about internal reference checks? Do you perform them when an employee applies for a different position within your organization?

It is very important to qualify a person before putting them into a job. Especially in today job market, you want to be sure you are choosing the person who is best qualified to be successful. One of the best tools to accomplish that task is the reference check.

By confirming things like experience, job titles, education, as well as confirming the dates of employment, you may have a better chance of making a good hiring decision. Most professionals will agree that a predictor of past performance is an indicator of future performance. So, it only makes sense to check on past performance in as many ways as you can.

A few things to keep in mind before you pick up the phone:

  • The same discrimination laws that apply to the rest of the interview process also apply to checking references. Refrain from asking questions that relate to a candidate’s status in a protected class such as his/her race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age, and any disability or genetic information, among other things. Everything you are asking needs to be directly related to the candidate’s ability to be successful in the position.
  • When you decide if you want to conduct a reference check, be consistent. Perform them on everyone or do not perform them on anyone. If you choose to perform them then make sure you are conducting them all consistently. Use the same format when documenting information or if you are verbally passing on information to the hiring managers. In other words, give the information in the same way.
  • Ask the candidate for at least 2 to 3 references. Most organizations want professional references; however, you may prefer some personal references, as well.
  • Prepare behavioral-based, open-ended questions. Avoiding ‘yes and no’ questions will give you more information about the candidate. An example would be to ask how the candidate would describe his/her performance rather than just asking if the candidate performed well (yes or no).

Making the calls:

You will want to introduce yourself to the reference, stating the reason for your call. Then ask if the person can spare a few minutes of their time to talk with you. (You want to let them know their time is valuable to you and you are not going to waste it). Give the reference a quick understanding of the job you are filling, so that they will have a context for their responses. It also might be best to say something positive about the candidate and why they are being considered for this role. That way, if the reference has any sense of loyalty to this candidate, they will be more comfortable sharing the needed information.

Have 6-10 questions ready. If the conversation flows freely, continue through your questions. But if the reference acts bothered, then ask only the most important ones. (You don’t want to waste their time sorting through your questions).

What to ask about an external candidate:

  1. “What was your relationship with the candidate?” (You want to confirm if this is a personal reference or a professional one.)
  2. “Tell me a few things about the candidate.” (This will start the conversation flowing and break the ice.)
  3. “How long did the candidate work with you?” or “How long have you known the candidate?” (If they have not had a long enough experience with the candidate, the information they provide may not be as useful.)
  4. “What were the candidate’s responsibilities and did they successfully performed them?” (If the reference isn’t sure what the candidate did, their assessment of that candidate’s performance will be less significant.)
  5. “What were his or her strengths?” and “Were there areas that required improvement?” (This will give you a good idea of what challenges the candidate may have in your position.)
  6. “If you had the opportunity, would you re-hire this candidate? Why?” (This question is valuable because, if they would not re-hire the candidate, there is usually a good reason. You may be able to discover that as you talk.)
  7. “Was the candidate a valuable member of your organization? Why?” (Of course, if the reference feels they were valuable, you will get some information as to why.)
  8. “Why did the candidate leave your company?” (This is always very helpful information as past behavior often predicts future behavior.)

After you have gathered the information, be sure to thank them for their time.

Regarding internal reference checks:

You process here will be very similar to the process for an outside candidate. But in this case, you should start by having a policy that clearly informs your employees that it is part of your company’s application process for internal movement. Let them know that they will be expected to give two or three in-house references are part of the process. It makes sense considering the goal is to hire the most qualified candidates, whether they are found within the organization or not.

If you are an employer with any HR concerns, please send an email to HRhelpline@eastcoastrm.com. If you have any questions about East Coast Risk Management and the services we offer, please visit our website (www.eastcoastriskmanagement.com) or call (724) 864-8745.

Disclaimer: The information provided on this web site is for informational purposes only and not for the purpose of providing legal advice. Use of and access to this web site does not create an attorney-client relationship between East Coast Risk Management or our employment attorney and the user or browser.

Posted in Human Resources | Tagged , , ,

Are Annual Performance Reviews Becoming a Thing of the Past?

by Nancy Owen, PHR

Somewhere around the middle of 2015, many large companies decided they would stop conducting annual performance reviews. These companies included Adobe, Google, Deloitte, Accenture, GE, and Red Hat; just to name a few. This change in the mindset of large employers had many other companies following suit and doing away with their annual reviews. The companies believed the reviews did not work, that they were an insult to employees, and that employees felt they were not productive. Employers who did away with the reviews believed their employees felt they were never given real, achievable goals. Instead of giving feedback throughout the year, their leaders waited until the end of the year when it was too late to do anything about it.

These companies quickly realized that simply taking away the annual review process was not enough. Without a process in place, they found that employees seemed less engaged and less productive. If they wanted to successfully eliminate the old way of managing performance, they would need to replace the old with a better system for evaluating their employees.

Performance management is not one and done. More than ever, employees are asking for real-time feedback. It is a yearlong cycle that works only when feedback comes in many forms throughout the year and only after very specific goals are put in place. Goals must be measurable, action-oriented, realistic and time-bound. Managers need to manage the performance of their employees each step of the way, not just at the year’s end.

In order to develop a performance management process that would work for their company, executives needed to spend more time collecting information related to their unique environment and culture.

First, they looked at the advantages of the old way of reviewing employees. Pros included:

  • Provided strong motivation for employees who wanted to challenge themselves by exceeding expectations.
  • Provided a document that the employees can read and refer to over a period of time and gave the company a record of employee performance and conduct.
  • Provided leaders with a structured set of goals to discuss with the employee, allowing them to point out what the employee is doing well and not so well.

Executives also considered the disadvantages. Cons included:

  • The inevitable “rater biases” that leaders can fall into when evaluating employees.
  • Employees thinking leaders are not fairly evaluating them.
  • Leaders becoming overwhelmed by the time-consuming preparation and meetings.
  • Employees becoming de-motivated when given poor feedback in a nonconstructive way.
  • Employees feeling shock or surprise because it is the first they are hearing about poor performance or conduct.

Some of the things that companies want to consider now are:

  • “First thing” stand-up meetings, conducted at the beginning of a shift to communicate daily updates and company or departmental news to employees, so that employees never feel “in the dark”.
  • Monthly one-on-one meetings between supervisor and employee, pointing out what is going well and what is not according the goals and competencies set forth at the beginning of the year.
  • Quarterly and/or mid-year reviews, when any adjustments or changes should take place.
    –  Are the employee’s goals still realistic?
    –  Has the employee moved to a different department or taken on new tasks?
  • Year-end discussions, carried out in a non-formal meeting, to review the last year and what could have been done better or needs to change for the upcoming year.

Many companies are now restructuring and defining their performance management in a way they never have before, but most likely are moving toward getting rid of annual evaluations. They are realizing that they need to increase their communication to their employees about performance and conduct, which in turn should increase the success of employee performance overall. Companies are introducing measures that include one-to-one check-ins, all in real-time.

Yearly evaluations or performance appraisals of any type are only as good as the process followed, the leaders that perform them and the ability of the organization to develop and communicate effective, realistic goals to employees. When these processes are done well, the company will have a greater chance of increasing engagement, accomplishing goals and meeting their yearly plan. It’s no surprise that new generations of employees are changing the way organizations do business. Personal development has become just as important to the new workforce as the company performance goals.

Performance management will most likely continue to see changes in the years to come. The companies that embrace the change and work to have a process that matches their employee culture will be the most successful.

Whichever way you go with performance management, be sure you know your employees and what motivates them. Do your homework and collect data to determine which initiatives work best for your culture, industry and environment.

If you are an employer with any HR concerns, please send an email to HRhelpline@eastcoastrm.com. If you have any questions about East Coast Risk Management and the services we offer, please visit our website (www.eastcoastriskmanagement.com) or call (724) 864-8745.

Disclaimer: The information provided on this web site is for informational purposes only and not for the purpose of providing legal advice. Use of and access to this web site does not create an attorney-client relationship between East Coast Risk Management or our employment attorney and the user or browser.

Posted in Human Resources | Tagged , ,

Stay Tuned PA… Your Wage and Hour Laws May be Changing.

by Laura Pokrzywa

Pennsylvania employers take note . . .

We are watching a proposed change to the Pennsylvania Minimum Wage Act (PMWA) that would, among other things, significantly increase the minimum salary requirements for the white-collar overtime exemptions in Pennsylvania.

Experiencing a bit of déjà vu? You may remember similar changes to the federal Fair Labor Standards Act (FLSA) that almost became a reality for employers at the end of 2016. If not for an eleventh-hour intervention of a federal judge in Texas, employers in every state would have been scrambling to reclassify many of their employees.

How do federal and state wage and hours laws intersect?

The FLSA establishes minimum wage and overtime pay obligations for most employers across the country, while similar provisions in the PMWA only affect employers in Pennsylvania. As in any state, Pennsylvania employers must comply with the requirements of both state and federal law. So, though Pennsylvania’s current minimum salary requirement is just $250/week, Pennsylvania employers must comply with the higher federal standard currently set at $455/week ($23,660 annually).

So what exactly has been proposed in PA?

The state’s Department of Labor and Industry (DLI) has proposed the following changes:

  1. Minimum salary increases: Stepped increases in the minimum salary requirements that would make Pennsylvania one of a small group of states to establish a minimum salary requirement that exceeds the requirements of the FLSA. The first step would be implemented in 2020 and would increase the minimum salary required to meet the “white collar” exemption to $31,720 per year. Annual increases would follow, raising the minimum threshold to $47,892 by 2022, more than doubling the current federal requirement.
  2. Changes to the language regarding requirements to meet the “duties” tests: The proposal requires exempt executive employees to “customarily and regularly exercise discretionary powers” and exempt administrative employees to “customarily and regularly” exercise discretion and independent judgment with respect to matters of significance. Though the language in the Pennsylvania proposal is supposed to be similar in intent to the FLSA’s current requirements, subtle differences have legal experts concerned that PA employers will be facing confusion and frustration when trying to comply with both laws.

No need to panic just yet.

Before any changes can be made to the current law, the DLI has to officially publish the proposed rules and allow the public a 30-day comment period. We don’t expect issuance of any new rule in Pennsylvania until sometime next year and there is no predicting what the new rule may look like when all is said and done.  We will be watching this one closely and keeping you informed.

If you are an employer with any HR concerns, please send an email to HRhelpline@eastcoastrm.com. If you have any questions about East Coast Risk Management and the services we offer, please visit our website (www.eastcoastriskmanagement.com) or call (724) 864-8745.

Disclaimer: The information provided on this web site is for informational purposes only and not for the purpose of providing legal advice. Use of and access to this web site does not create an attorney-client relationship between East Coast Risk Management or our employment attorney and the user or browser.

Posted in Human Resources | Tagged , , , , , , ,