Are You Now Required To Conduct Sexual Harassment Training?

by Renee Mielnicki, Esquire

As we all know, sexual harassment has taken the stage this past year in the HR world.  I remember saying not long before it became such a hot topic that I wasn’t seeing as many claims relating to the subject.  My thought was maybe employers had finally mastered how to deal with it and employees had maybe fallen in line with the law.  Turns out I was wrong and the reason it wasn’t coming up so much was because either employers were hiding it or employees were afraid to say anything.  It took only one or two brave souls to step out into the limelight and then the flood gates opened to the point of the #MeToo movement.

The government has clearly taken notice of the problem and some state legislators are doing something preventative about it. Following suit with several other states, last week Connecticut’s General Assembly voted on a law that would require employers to provide sexual harassment training. Though the law did not pass the House vote due to some controversial provisions, this will likely be back on their agenda in a new form in the future.  New York has already passed such a law which will go into effect soon. California and Maine already have such a law which requires certain employers to provide sexual harassment training to either supervisors, employees or both.  Some states such as Florida, Michigan and Tennessee have laws that encourage, rather than require, employers to provide the training.

Even if you are not in a state where it is or will become a legal requirement that you conduct sexual harassment training, you still should and here is why.  If you don’t provide such training, some cases on the subject suggest that you will not have a defense in the event of a lawsuit. The reason would be that you have failed to take steps as an employer to prevent harassment from occurring.  It is the legal duty of the employer to provide a workplace free of harassment.  One of the ways you do that as an employer is to try to prevent it from occurring in the first place by providing training.  It really is a small task that can result in a big reward and therefore worth it in my opinion.

If you are an employer in a state where sexual harassment training is now required by law and you want to learn more, please reach out to us at hrhelpline@eastcoastrm.com.  Whether you are in one of those states or not, if you want to take steps as an employer to prevent sexual harassment, please give us a call at 724-864-8745.

Subscribe to our blog for more tips on how to keep your organization up-to-date with workplace laws and best industry practices.

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.

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Did you hear? The EEO-1 filing deadline has been extended.

by Laura Pokrzywa

Good news for procrastinators! The deadline for filing this year’s EEO-1 Survey has been extended by the U.S. Equal Employment Opportunity Commission (EEOC). The new, improved deadline is Friday, June 1, 2018, pushed back from the March 31st deadline originally required for 2017 surveys. But don’t feel like you have to wait. The survey is open now and you can file at any time.

If you find yourself asking, “What is an EEO-1 and should I be doing something about it?” we can help.

What is an EEO-1 Survey?

Since 1966, employers with federal contracts or with 100 or more employees have been required to report the number of workers they have in specific job categories, breaking the numbers down by ethnicity, race and sex. These statistics have been reported to the EEOC as part of the annual Employer Information Reports (EEO-1) filed by covered employers. The EEOC provides data collected via the EEO-1 reports to the Office of Federal Contract Compliance Programs (OFCCP) at the Department of Labor.

Who has to file?

Generally, a private employer will have to file if they have 100 or more employees. (Please note: this does NOT include state and local governments, primary and secondary school systems, institutions of higher education, Indian tribes and tax-exempt private membership clubs other than labor organizations). However, an employer with less than 100 employees may be required to file if the company is owned or affiliated with another company, or there is centralized ownership, control or management (such as central control of personnel policies and labor relations) so that the group legally constitutes a single enterprise, and the entire enterprise employs a total of 100 or more employees.

In addition, filing is required for all federal contractors (private employers), who have 50 or more employees and meet one of the following requirements:

  • are prime contractors or first-tier subcontractors, and have a contract, subcontract, or purchase order amounting to $50,000 or more; or
  • serve as a depository of Government funds in any amount, or
  • is a financial institution which is an issuing and paying agent for U.S. Savings Bonds and Notes.

The only exception for such federal contractors is if they are exempt as provided for by 41 CFR 60-1.5.

Yikes! I need help!

If you’ve been putting off filling out the report because you aren’t sure where to begin, the EEOC has provided detailed guidance and instructions for completing your survey in their guidebook called “How to File an EEO-1 Report”. If you still need help, you can send your questions about EEO-1 filing directly to the EEOC via their technical support email e1.techassistance@eeoc.gov.

Subscribe to our blog for more tips on how to keep your organization up-to-date with workplace laws and best industry practices. If you are an employer with questions on any HR-related issues, please feel free to contact us at HRHelpline@eastcoastrm.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.

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Struggling to find good candidates in a tough job market?

by ECRM’s HR team

If you are feeling the pain of trying to find qualified candidates in a tight labor market, you are not alone. Our team has heard from countless clients across multiple industries and regions that are struggling to find the employees they need. The unemployment rate is holding at a record low of 4.1% according to the latest data from the Department of Labor’s Bureau of Labor Statistics. With a limited number of qualified applicants, we recommend employers take a creative approach to recruiting. It would also be wise to take another look at retention efforts.

In order to help get you started, our HR team huddled to discuss techniques that we have seen work for other employers.  We put together the following list of ideas that may help you meet the challenges of hiring in the current job market:

  1. Offer (or increase) referral bonuses for employees who refer a successful hire. Add a subsequent bonus if that new hire remains with the company for a year (or however long you set).
  2. Form a committee of workers from across all levels to discuss how your organization can attract new employees.
  3. Carefully review your compensation plan. Make sure the wages you offer are competitive, meeting or exceeding the market rate.
  4. Consider hiring less qualified candidates with potential and then training them in the skills they are lacking.
  5. Look at adding benefits such as short-term disability, life insurance or retirement planning. If you can’t afford more group benefits, call in vendors to offer supplemental benefits.
  6. Offer flexible scheduling, if possible. This is especially important to younger applicants and employees.
  7. Keep a close eye on industry news feeds. Watch for regional layoffs for similar employers in your area. You can target those newly unemployed, skilled workers.
  8. Visit the chamber of commerce and include a small gift in the welcome baskets given to new residents.  Be sure it includes your hiring information.
  9. Have an open house for the community. Put up the “now hiring” signs in the lobby and give tours of areas that can be seen by the public. Offer interviews on the spot.
  10. Put a sign in the most popular places around town that says something like “HERE WE GROW AGAIN!” This way you do not come across as desperate for help, but as a growing company.
  11. Don’t forget about social media. Post openings on your own pages and ask employees to spread the word by sharing it on their pages. Ask trade schools to post your opening on their pages, too.
  12. Consider using temporary help to fill an opening. This will take the time pressure off of your recruiter and may even lead to a long-term employee.
  13. Rent a kiosk in the mall to educate the community about your company.
  14. Ask current employees to consider posting an employer review on sites like Glass Door.
  15. Think about rehiring people who have left.
  16. Reach out to vocational schools. Talk to the students who will be graduating this year and not moving onto college.
  17. Organize or participate in a job fair.

Reducing turnover:  Attracting and hiring the right candidate is just the first step. If you can’t keep that new employee, you will be right back to the hiring starting line. Retention of your best employees is essential to keep your operations running at optimal speed.  It will also save you thousands of dollars since turnover can cost up to 200% of an employee’s annual pay, depending on the role.

Consider these ideas to further boost your retention rates:

  • Develop compensation pamphlets to show people what they really make after all the tax and benefits are paid. This will allow employees to compare apples to apples if they are considering employment at a company offering a few more cents per hour.
  • Instead of conducting exit interviews, meet with current employees and ask them why they stay.  (Watch our blog for more details about “Stay Interviews” coming soon.)
  • Along the same lines, you can conduct an employee engagement survey to find out what your employees like and what they don’t like about working for your organization.
  • Coach supervisors and managers to become more effective and approachable leaders. Train them on communications and management skills to help them engage with their teams.
  • Offer clear career paths, if possible, by promoting from within. Professional development could include reimbursement for outside training and educational opportunities that will help them develop skills in their field. They gain skills and you gain a more skilled workforce.
  • Consider offering bonuses including gain sharing or profit sharing.
  • Strengthen your onboarding process.

For even more ideas to help you attract and keep good employees, see our previous articles:

Subscribe to our blog for more tips on how to keep your organization up-to-date with workplace laws and best industry practices. If you are an employer with questions on this topic or any other HR-related issues, please feel free to contact us at HRHelpline@eastcoastrm.com or call 724-864-8745.

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Dating in the Workplace: Fiancé or Fired?

by Derek Ross

It’s no secret that dating in the workplace has been a topic of much controversy and debate for years leaving employees and their respective employers unsure of how to define this gray area in the workplace. According to CareerBuilder’s 2018 Valentine’s Day survey, 36% of employees have dated a coworker with a staggering 30% of those relationships involving employees who were at different levels within the organization. Furthermore, the national survey conducted by Harris Poll on behalf of CareerBuilder showed that 31% of these office romances lead to marriage.

If you consider that employees spend an average of 8-10 hours together in the workplace, the percentage of office romances is not surprising. Though these relationships are common and often inevitable, organizations are not left helpless. Measures can be taken to address the risks that come from office romances, no matter how the story ends. Whether small or large, organizations should consider all options when creating a policy about dating in the workplace.

Some employers choose to ban romantic relationships all together because of past experiences including:

  • Employees not hitting production numbers because they are concentrating on the relationship rather than the duties of their job.
  • Low morale because team members fear favoritism when it comes to leaders dating their employees.
  • Sexual harassment claims that have resulted from relationships gone bad, especially when one of the two has authority over the other.

Though it is legal to fully prohibit employees from dating, it is important to check state and local laws before adopting a policy. For example, California courts have ruled that the state constitution provides broader privacy protection in employment matters.

On the flip side:

Some companies allow dating in the workplace since banning any romantic involvement can come with its own consequences. After all, it’s not uncommon for individuals to meet their significant other at work. Prohibiting employees from becoming romantically involved could create issues, including:

  • Decreased morale;
  • Loss of a good employee who wishes to date a coworker but cannot due to the company policy; and
  • Awkward moments for management as well as great difficulty actually enforcing the policy.

Short of banning all workplace dating, there are other options for employers:

  • Consider limiting the prohibition to only those relationships in which one romantic partner has a role of authority over the other.
  • Consider prohibiting couples from working together directly.
  • Consider policies that do not ban dating, but instead merely discourage it.
  • Consider requiring disclosure of relationships so that you can take steps to minimize problems. Those steps might include special counsel and a signed acknowledgment from both employees, to verify they understand the company’s expectations for professional conduct.

What should the policy include?

One thing is clear. Without a solid policy, a company can open itself up to potential sexual harassment claims as well as legal consequences. The policy should address the following:

  • Whether or not romantic relationships will be allowed
  • Whether or not a supervisor/manager may engage in a relationship with a subordinate
  • Reporting requirements for any employee engaging in a workplace romance
  • Confidentiality responsibilities between the two employees
  • Written guidelines that apply to all employees in the organization, regardless of sexual orientation
  • Expectations of professionalism in the workplace, such as the appropriate behaviors of interaction while on the clock or while at any work function.

When creating the policy, it is important to keep in mind the general mindset of the entire workforce. Although a study shows that most workers do not mind when their unmarried coworkers engage in a relationship, they tend to object when the relationship is between a supervisor and subordinate, assuming it will lead to favoritism. In addition, public displays of affection in the workplace, regardless of who is involved, may cause discomfort for those who witness it.

This same study revealed that permissive policies may lead to an increase of extramarital affairs. When inter-office dating is allowed, some married employees may feel less taboo when pursing a coworker. This can have an adverse effect on morale and cause personal distress if coworkers feel the need to cover for those engaged in the adulterous relationship.

Ultimately, it is essential to determine which guidelines best fit your organization and the culture you would like to establish.

Subscribe to our blog for more tips on how to keep your organization up-to-date with workplace laws and best industry practices. If you are an employer with questions on this topic or any other HR-related issues, please feel free to contact us at HRHelpline@eastcoastrm.com or call 724-864-8745.

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Are Unemployment Claims Affecting Your Bottom Line?

by Nancy Owen, PHR

Every unemployment claim that gets paid out to your former employees has the potential to raise your unemployment insurance tax rate over the course of several years following that claim. The better you understand the process, the better your chances of minimizing the inevitable costs that follow any separation from employment, whether voluntary or involuntary.

What is UI? Unemployment insurance was created to provide limited compensation for employees who have lost their jobs through no fault of their own. It is funded almost exclusively by employers.

The Federal Unemployment Tax Act (FUTA) together with state unemployment laws imposes taxes on employers to fund unemployment compensation. Most employers pay both a federal and a state unemployment tax. The employer is responsible for paying this federal unemployment tax; however, a few states do assess unemployment taxes on employees, as well.

The amount any employer is taxed depends on the taxable earnings of your employees and the history of unemployment claims against the company. Each claim assessed to your account can result in future tax rate hikes for your company that can impact the company for years to come.

What qualifies as “good cause” to leave a job? Many people are under the impression that when an employee quits their job they are no longer entitled to unemployment benefits, but that is not always the case. Even employees who quit their jobs may be eligible to collect unemployment if they left with “good cause”. Each state varies as to how they define “good cause”. Generally, an employee has good cause for quitting their job if the employee is experiencing problems within the workplace which leaves him/her with no other option than to leave their job. This is known as “constructive discharge”. Here are a few examples of situations that may amount to constructive discharge:

    • Harassment or Discrimination
    • Lack of pay for work completed
    • An unsafe workplace or conditions of work that the employer refuses to correct
    • A significant change in the job and its duties

There are other good cause reasons that may have nothing to do with hazards in the workplace. Even though the employee may have violated your attendance policy, for example, if the situation for leaving the job is beyond an employee’s control, the employee may be eligible for unemployment benefits. Here are some examples:

  • Relocation due to a spouse’s employment.
  • Leaving the job due to a medical condition that the job may aggravate.
  • Leaving the job to care for a seriously ill family member.
  • Leaving the job to relocate for reasons relating to domestic violence.

Sometimes a current employee may be eligible for unemployment compensation while working. Some states will award partial unemployment benefits for a worker whose hours have been cut from full-time to part-time. However, if the employee voluntarily chooses to cut back on hours or work part-time, they would not be eligible for partial unemployment benefits.

What can you do to reduce the impact of unemployment claims on your business’ bottom line? Here are some best practices that reduce the likelihood of a successful unemployment claim against your company:

    1. Hire carefully! Train your hiring managers how to select the best candidate.  That starts with careful screening, including proper interview techniques.  If you have hired the right people, you are less likely to lose them.
    2. Train your employees. The better they know their jobs, the more likely they are to succeed.
    3. Clearly communicate expectations. Every employer should have a good employee handbook with a clear attendance policy, code of conduct, safety rules, etc.  Every employee should be given a copy of the employee handbook (or have access to it) and sign an acknowledgement of receipt.  Be sure to give them opportunity to ask questions about any policy they don’t understand.
    4. Listen to your employees. You should have a clear policy for reporting of harassment, discrimination, unsafe work conditions, the need for an accommodation, and any other serious issues an employee may have in the workplace. Your supervisors should be trained on how to properly assess and address all employee complaints and concerns.
    5. Discipline when needed. If your employee is not following your policies, talk to them about it! Never let unacceptable conduct go unaddressed. And DOCUMENT, DOCUMENT, DOCUMENT. If you have evidence to show that your employee knew of a policy (handbook acknowledgement), but still chose not to follow it (note to their file of counsel or warnings), that documentation will give you a better chance of winning an unemployment claim.
    6. Request a signed letter of voluntary separation from the employee who chooses to leave the organization. If one is not given, document the details of the resignation and file it in the ex-employee’s personnel file.

Contesting or appealing an unemployment claim: It is important to always respond to unemployment claims and to be sure you provide all the facts that surround the termination of employment when you receive a Claimant’s Separation Statement from the Employment Security Commission. It is also very valuable for you to contest or appeal unemployment claims when the employee left your company through a fault of their own, because every unemployment benefit claim paid out to former employees affects your tax rate. As previously mentioned, your rate is based in part on the number of claims made against you by former employees.

Another benefit of contesting or appealing a claim is that, if you win the unemployment hearing, the employee is less likely to try to sue you for wrongful termination, and, if they do sue, is less likely to win.

Remember: Take unemployment claims seriously. You don’t want it to come down to your word versus the employee’s word. That well-written employee handbook, which includes a signed acknowledgement form, will be a great advantage for you. You can increase your chances of successfully contesting and winning unemployment claims by keeping good records of all disciplinary actions so that you can prove the validity of your defense. You can help control your unemployment insurance rates by taking these steps now.

If you are an employer that would like help creating an employee handbook, improving your disciplinary procedures, implementing better record keeping, or any other employment issue, please contact our HR professionals 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.

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What Constitutes Gross Misconduct When it Comes to COBRA?

by Nancy Owen, PHR

First, let’s first look at what COBRA is and which employers must provide it.

The Consolidated Omnibus Budget Reconciliation Act, also known as COBRA is a law that was passed in 1985 by the United States Congress and signed by President Ronald Reagan. This law makes it mandatory for covered employers to give eligible employees the ability to continue health insurance coverage for a limited time when coverage under the plan would otherwise end due to certain qualifying events, including termination of employment.

COBRA administration is shared by three federal agencies. The U.S. Department of Labor (DOL) handles questions about notification rights under COBRA for private-sector employees. The Department of Health and Human Services handles questions relating to state and local government workers. And finally, the Internal Revenue Service, Department of the Treasury, has issued regulations on COBRA provisions and shares jurisdiction for enforcement of these provisions with the DOL.

COBRA compliance applies to almost every business that has 20 or more employees and offers a group health care plan. However, COBRA does not apply to group health plans maintained by small employers (fewer than 20 employees) or churches. There are also special coverage rules for governmental employers, although, most governmental group health plans are required to offer continuation coverage.

There may be an exception to this rule for many small employers. Many states have their own laws that are similar to COBRA that apply to fully insured group health plans; however, unlike the federal law, these state laws may include plans maintained by churches and by employers with fewer than 20 employees. These are usually referred to as “mini-COBRA” laws. That means even though an employer may not be subject to federal COBRA, it may nevertheless be required to provide continuation coverage under their state insurance law. Self-insured health plans maintained by private-sector employers are typically not subject to state continuation coverage requirements. A group health plan is not subject to COBRA for a calendar year if the employer maintaining the plan normally employed fewer than 20 employees on typical business days during the preceding calendar year.

Now that we know what COBRA is, do you also know that you don’t ALWAYS have to extend COBRA to a terminating employee? One exception would be when the employee is terminated for gross misconduct. When that happens, the termination is not considered a COBRA-qualifying event and the employer does not have to offer COBRA continuation coverage to the ex-employee, or the ex-employee’s covered spouse or  dependent child(ren).

The COBRA statute does not specifically define the term gross misconduct, so the courts have taken the lead on deciding whether to apply it on a case by case basis. That means it’s up to employers to determine whether their gross misconduct definition meets the standards that were previously ruled on from past court cases as well as regulatory and legal developments.

Courts that have faced the gross misconduct case generally refer to the two questions below when deciding if the conduct is truly gross misconduct.

  1. Was the conduct intentional, willful, deliberate or reckless, and was that conduct performed with a conscious or reckless disregard of the consequences of one’s acts for the very purpose of causing harm or with knowledge that harm would result in the employer’s best interest?
  2. Did the conduct have a connection or series of connections or physical presence linking the gross misconduct or performance directly to the employer, a co-worker or a current or former client or customer?

To minimize their risk, many employers have decided not to apply the gross misconduct exception at all, but, instead, to extend COBRA to all terminated employees regardless of the reason for the termination. Another way employers can limit their risk is to clearly communicate to employees the type of behavior the company considers to be gross misconduct. This can be done by adding your policy to your your employee handbook or to the employee’s contract of employment. When you identify gross misconduct in advance, you are informing your employees what you consider to be significant and this will assist you later should you find you have a claim against you for not providing COBRA to an employee who was terminated for this cause.

Here is a list of conduct that most employers would consider to be gross misconduct:

  • Fighting, physical assault, abuse, or threatening behavior
  • Blatant disregard for the safety of others or serious breaches of health and safety rules
  • Deliberate acts of vandalism or sabotage
  • Any attempts to financially defraud the company or theft
  • Significant levels of insubordination
  • Dishonesty, falsification of documents, or other forms of misrepresentation
  • Offensive or unlawful behavior (such as discrimination, harassment, or bullying)
  • Working under the influence of illegal drugs or alcohol

Should you decide to deny COBRA to an ex-employee on the basis of gross misconduct, be sure you keep detailed records of the process used to determine the gross misconduct along with any notices or correspondence to the ex-employee.

Just remember, COBRA mistakes can be costly whether they were intentional or not. Employers may be liable for a penalty of up to $110 per employee or family member for each day of noncompliance. The Employee Retirement Income Security Act (ERISA) provides for additional penalties and gives affected persons—as well as the Department of Labor—the right to file a lawsuit. Be sure you are sending timely notifications to your plan administrator when a qualifying event occurs, including terminations or a reduction in hours, such as a leave of absence or a layoff. For more information about COBRA compliance, see Derek Ross’ recent article, Should We Continue Health Insurance When an Employee is on Leave?

Employers with questions about COBRA compliance, or any other HR concern, can contact our HR professionals 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.

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Best Practices When Terminating an Employee

by Renee Mielnicki, Esquire

We are frequently called upon to help our clients with the process of terminating an employee. Believe it or not, how you handle this process may determine if you will hear from your former employee again through some type of lawsuit. Severing ties with an employee is never easy, but unfortunately, it happens a lot in the working world. It’s a very emotional process for both the employer and the employee. Terminations have a lot of legal implications so they require proper handling.

Let’s pretend we have made a decision to terminate an employee because of their poor performance. We have had this employee on a written performance improvement plan for months. This employee clearly knows why he is failing at his job and what he has needed to do to improve, but he just hasn’t done it. Once you have decided to terminate this employee, what does the rest of the process look like?

Well, to me, it almost always looks about the same. Step one is to review your documentation and decision to terminate this employee with your attorney or a qualified HR professional. Before you let anyone go, you should first make sure your decision to do so is legally sound. Once you have the approval of a professional, the next step should be to review a prepopulated checklist regarding items such as gathering company equipment, revoking privileges to company databases, company emails and reviewing what is owed in their last paycheck. Once we have gone over that list, we need to think about how we will accomplish each task on the list. For instance, I often alert the IT professional shortly before I am about to terminate an employee. As soon as the news is delivered, I inform the IT professional that it has been done, who then locks the employee out of all company systems right away. All of these steps should be planned well in advance.

We next need to pick the date, the place and the people involved in delivering the bad news. There should be no real delay between the behavior that has led to your decision to terminate the employee and the delivering of the news. Why? Because lawyers can poke holes in the reasons for your delays, and you don’t want that.

Once you have your date, you want to be strategic with “the where” and “the who” which are involved in the termination meeting. Think about how your workplace is set up and who may be around at the time this takes place. You do not want to draw any attention to a termination discussion for several reasons. One, it creates drama and gossip, which are not productive. Two, it can embarrass the departing employee and make them even angrier and therefore more likely to run to a lawyer. Another good tip is that all termination discussions and reasons therefore should be kept confidential, both before and after a termination occurs. Sharing this information, or even spreading rumors and gossip about these matters, do nothing to help the company’s mission. In fact, it does quite the opposite…it slows down production and can effect morale. Sharing this information is also like the old “telephone game.” By the time the message gets from the person who started it to the last person who heard it, it is not even close to the truth. The only people who should know about these matters are those involved, including the employee’s supervisor. Remaining employees should simply be told “he is no longer with the company.”

Who delivers the message to the employee you are letting go is also very important. First, there should always be two employees from the company present when the message is given. One reason is for safety (remember this is very emotional) and the other is to act as a witness to what is said (or not said) during this meeting. You do not want to choose anyone with whom your departing employee has bad blood because that will just increase your chances of drama and even violence. Pick people he or she will see as neutral and make sure they are management since these processes are for management only.

Once we are at the meeting with the employee, the next question is, “what do we say?” The answer to that question once again is….not much. At the meeting, you should have your termination letter in hand and this is the time you are going to give it to him or her. (For more information about termination letters, see my previous blog). One rule of thumb is that a termination should never be a surprise to an employee. In my example, this employee should already know his performance is below our expectations and he is in danger of losing his job. Therefore, it should come as no shock to him when he is called into a meeting with his supervisor and the HR Manager, but is not told the subject of the meeting until he gets there. He should already have an idea what this unidentified meeting is about when asked to attend.

The two management employees in the room should know well in advance who will be speaking and who will be the witness. The speaker should be very brief, simply telling this employee, “As you know, your performance has been very poor over the past few months. For that reason, the company has decided to terminate your employment effective today.” At that time, the employee is then provided his termination letter and the meeting should end. Sometimes there will be questions, accusations or even crying when the news is given. But I always say, try to not respond, unless it’s to repeat what they already know like, “You have been on a performance improvement plan for quite some time and have not improved.” In my opinion, these meetings should take no more than 60-90 seconds or the employer has said way too much. The more we say as employers in these meetings, the more likely we are to be faced with a lawsuit. Examples of why are:

  1. We say something that isn’t true or contradicts what we have already said or documented; or
  2. We say something illegal. For instance, “You are getting older and can’t seem to keep the same pace as those younger than you.” Another example might be, “Being a mom and trying to work is too hard.” Or, “I’m really sorry about this,” which suggests the employer did something wrong, when it was all the employee’s fault.

So for that reason, what we say should be very brief. Just like the termination letter, the verbal message is simply to give our general reason and the date our decision is effective. After you have told the employee the why and the when, you simply get up and lead the employee either out of the building or to their desk to collect their belongings. Again, these type of details should be thought out and planned well in advance because each circumstance is unique.

Keep in mind these situations can be a bit more complex, such as with multiple layoffs. Those types of processes require a bit more planning, but can generally work the same as far as messaging and delivery. The same is true if you are using severance packages. Additional preparation and planning go into terminations involving such and can make it look a bit different than I describe above. If there is a one-size-fits-all-rule about terminations, it is the less you say the better it will be, for all parties involved.

If you are an employer with questions about terminations, please contact our HR professionals by calling 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.

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How (and Why) to Write a Termination Letter

by Renee Mielnicki, Esquire

We counsel a lot of our employers on how to conduct a termination involving an employee. One source of confusion that occurs during this process is what to say in a letter to an employee that you have decided to let go from your business. In fact, in some cases, we are asked, “do I even need to write a letter telling them they are fired?” The answer to that question is, yes. The reason is it’s always best to put in writing how the employment relationship ended. Did the person quit? Did they resign? Were they laid off or did we terminate them for violating a company rule? Getting in writing how the employment relationship ended can be useful for several reasons, including unemployment compensation claims and for employment-related lawsuits, like discrimination.

So what should we put in this letter? The answer to that is, not much. Remember there is a good chance that this type of letter is going to be taken to an attorney, so we don’t want to put anything in there that provides ammunition for a lawsuit, including setting forth something that is untrue or that will be contradicted by someone or something else. Once it’s in writing, it can become an exhibit in a legal proceeding, so less is always better.

It should always be very clear to an employee why they are being fired. Your reason should be clear when you inform them verbally as well as in the letter you provide to them documenting what you said verbally. Allowing an employee to walk away wondering what they did to lose their job is almost always a trigger for a lawsuit. They often speculate it’s for an illegal reason and then it’s hard for the employer to show it was for a legitimate, business-related reason if they were not clear in their words and the letter.

Here is what I include in any termination letter that I provide to an employee:

  1. The effective date of the termination. This should be the same day you give them the news and the date of the letter.
  2. A formal reason why. This should be because they have violated a policy, an expected standard of conduct or have repeated poor performance. For instance, if an employee fails a drug test and the employer wants to terminate the employee for this reason, the reason outlined in the letter would be, “you have violated our drug and alcohol testing policy by testing positive for drugs” and then list the specific date.
  3. Tell them the date of their last paycheck, which should either be the next pay period after their termination date or sooner if your state law so requires.
  4. If they are on the company’s group health plan, tell them a separate letter regarding their rights under COBRA will follow.

And that’s it. It’s that easy? Your termination letter should not say any more than this. I have seen too many people write termination letters with lots of details to the point its two pages long. Drafting a termination letter that includes more than what I describe above is pretty risky because now you are stuck with it if a dispute occurs which means what you said in there better be right. I always counsel my clients that the details of the termination should be in the personnel file, rather that the letter. For instance, the reasons we asked for a drug test are set forth in a memo from the supervisor in the employee’s file along with the positive drug test report. Or, the performance improvement plan given to the employee months ago telling him how he must improve as well as the documentation showing he didn’t meet the goals for improvement go into his file. These details belong only to the employer unless and until a lawsuit happens. In that case, they then have to be provided to the other side during litigation. Remember, you don’t want to fuel a lawsuit unnecessarily by giving too many details in the letter. It’s better to be simple and clear because less is really more with these letters.

If you are an employer with questions about terminations, please contact our HR professionals by calling 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.

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ICE Audits are on the Rise – Are You Ready?

by Laura Pokrzywa

The Trump administration has made immigration reform a top priority, and that includes a careful look at who employers are hiring. If you do not know what a Form I-9 is, or if you are unsure how to complete one properly (or not sure if your organization has someone who knows), take heed. Federal law requires every employer to verify that each of their employees has authorization to work in the United States. That means your organization should have a completed Form I-9 for every employee.

The penalties for employers who fail to comply range from $375 to $16,000 per violation. Neglecting your responsibility to collect and properly store completed form I-9s can be an expensive mistake, especially given the increasing likelihood of an audit by U.S. Immigration and Customs Enforcement (ICE).

One of the most recent ICE raids exemplifies this administration’s renewed efforts to ensure that U.S. businesses only hire workers with the legal right to work in the United States. On Wednesday, January 10, ICE agents raided 98 7-Eleven stores in 17 states and arrested 21 undocumented employees. The investigations started years earlier at franchise locations in New York and Virginia where managers had used stolen identities to employ at least 100 people who did not have proper authorization to work in the United States. 7-Eleven has since terminated the franchise agreements of franchisees convicted of violating these laws. ICE officials warn employers of all sizes to expect more compliance inspections.

The best thing you can do is simply be ready. The best way to get ready is to conduct your own audit before ICE calls:

  1. Do you have a properly completed I-9 for every employee?
  2. Do you have a separate secured file to store those I-9s and the supporting documentation you gathered?
  3. Have you designated and trained someone in the company to be the contact should you receive a Notice of Inspection?

Completing I-9s: To access the latest form I-9 from the U.S. Citizenship and Immigration Services (USCIS) website, click here. You will also find helpful instructions and information, including a detailed downloadable guidebook for properly completing I-9s.

Correcting I-9s: Part of your internal audit should be to check the I-9s you have on file to ensure they have been completed in accordance with the instructions given at the end of the form. If you find errors, these may be corrected, but the corrections must be noted carefully. For example, a misspelling can be corrected by drawing a line through the incorrectly spelled word and writing the correct spelling above it using a different color ink. Be careful that you never render the original mistake illegible (no erasing or using white out). Date and initial all such changes using the current date. If more extensive corrections are needed, fill out a new form (using the current date) and attach the old form to it with a brief note of explanation. Keep that in the I-9 file so that an ICE agent would be able to “follow the trail” of corrections.

Storing I-9s: Employers must retain and store Form I-9 either for three years after the date of hire or for one year after employment is terminated, whichever is later. The form must be available for inspection by authorized U.S. Government officials from the Department of Homeland Security, Department of Labor, or Department of Justice. Since you will have just three business days to produce the forms for inspection, it is best to keep all I-9s and the supporting documentation in a secured, separate file that is easily accessible should you receive a Notice of Inspection from ICE.

What about E-Verify: E-Verify is an internet-based system that has been used voluntarily by thousands of employers since it was introduced in 1996. This system, administered by USCIS, verifies the Social Security numbers provided by newly hired employees by checking them against Social Security Administration and Department of Homeland Security records. This allows participating employers to ensure, in a matter of minutes, that their new hire has the necessary authorization to legally work in the U.S.

A 2009 presidential Executive order required federal contractors to use E-Verify for employees working under covered federal contracts. According to a statement on the USCIS website, this action “reinforces Federal government policy that the Federal government does business only with organizations that have a legal workforce.” In addition to this federal requirement, at least 21 states have laws that require the use of E-Verify by certain public and/or private employers. Seven of those states require the use for most employers. If you are one of those employers either voluntarily using E-Verify, or required to use the system, be sure you have the required poster hanging in a conspicuous place where job applicants will see it. That poster is available for free download through the E-Verify system.

In keeping with campaign promises, last October President Trump submitted to Congress a list of 70 action points designed to reform and enforce immigration laws in the U.S. Included on that list is the requirement that all employers use the E-Verify system for all new hires. Though this change is not likely to pass through Congress any time soon, it is an issue we are watching.

If you are an employer with questions about Form I-9 compliance, please contact our HR professionals by calling 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.

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Why Every Employer Should Have an Employee Handbook

by Laura Pokrzywa

As most employers know all too well, the number and cost of employment-related law suits continue to rise each year. In 2016, more than 10 percent of small to mid-size businesses faced an employment charge of discrimination of some kind, most of which involved more than one claim (i.e., discrimination based on race, sex, disability, and/or retaliation). The average time to settle one of those claims was 318 days! Worse yet, nearly one fourth of those charges resulted in defense and settlement costs averaging $160,000 per claim.1

If you are an employer, you live with the risk of facing expensive, time-consuming lawsuits for any number of reasons. You can reduce that risk with preventative measures such as training managers in risk-related areas including hiring and disciplinary procedures; training for employees regarding harassment; and finally – and this one is huge – an up-to-date employee handbook.

Though no federal or state law requires an employer to have an employee handbook, it is actually one of your best legal defenses in the event of an employee, or former employee, filing a claim against you. Here’s why:

  • Your employee handbook can help create a defense related to claims of harassment, discrimination, wage and hour issues, the Family and Medical Leave Act (FMLA) and/or the Americans with Disabilities (ADA). A handbook confirms your policies on these matters and your commitment to follow all applicable laws. Of course, you will need to follow these policies consistently in order for them to benefit you as part of a defense.
  • A good employee handbook can also prove invaluable during a hearing for an unemployment compensation claim where the employee is terminated for violating a workplace rule. Without a handbook (and a signed acknowledgement of receipt from the former employee), you have very little hope of proving that the employee knew of the policy or procedure they were accused of violating.

In addition to the legal help, a well-written employee handbook offers these great benefits:

  1. It is a powerful welcome to a new employee. It tells your new hire that you are ready for them. By equipping them with this good information, you show them that you care about your employees and that you want them to succeed in their new role.
  2. It is an excellent means of consistent communication with all employees because it allows employers to: (a) express the corporate culture (by tone and content); (b) set mutual expectations between employees and management; (c) let employees know important details about their employment, like what they should do if they are too sick to work, how they manage their vacation time, how often they will be paid, who is eligible for holiday pay, what happens in the event of severe weather, what to do if they need an accommodation of some kind, etc. A well-written handbook should mean fewer questions to your supervisors and your human resources team.
  3. It empowers front line supervisors and middle managers. Just as it answers questions for your hourly employee, it’s a great reference for you supervisors! In fact, the employee handbook should be included as an essential part of supervisor training. If your supervisors aren’t familiar and comfortable with the employee handbook, they will not be consistent in applying your policies which will create a breeding ground for legal claims.
  4. It offers protection for the company by establishing certain rights for the employer, such as the right to conduct a workplace investigation and inspect property at any time, the right to search electronic records, including any emails or internet searches conducted on company equipment, the right to conduct drug and alcohol testing under specified circumstances, the right to modify or interpret company policies, etc.
  5. Lastly, it serves as one central location for notifying employees of reporting procedures should they experience or witness harassment or discrimination, for notifying employees of FMLA rights (if appropriate), and for clearly stating whether or not you will pay out unused vacation at the end of employment.

Some employers argue that their organization has more discretion when policies are not written down, since there is nothing to which management can be held accountable.  By failing to clearly communicate your policies, you expose the company to a host of serious issues such as discriminatory treatment claims, disorganization, confusion among employees and morale issues.

With effective written policies presented to all employees in the employee handbook, your organization is much more likely to manage all employees consistently.  By consistently applying your policies, you are greatly reducing your risk of facing a charge of discrimination.

Unfortunately, even for companies that understand the value, this is one project that frequently gets relegated to “back burner” status, leaving it to be addressed “when things slow down a bit.”  But lawsuits never take vacations, so this is a project you will want to get done.

If your organization is operating without an employee handbook, or with an outdated handbook, now is the best time to make that right.  Just a quick word of warning:  the answer will not be found in a “fill-in-the-blanks” template handbook, nor in a handbook you borrowed from another business or found on the internet. Handbooks need to be customized to your company, your state and local laws, your industry, your company’s unique challenges and your company culture. Your handbook should also be reviewed by an attorney that specializes in employment law. Laws and your policies change so handbooks should be updated at least every other year.

If you need help with the creation of a new handbook or updating an existing handbook, give us a call.  Our human resources team has drafted hundreds of employee handbooks for employers of all sizes, in just about every state and industry.  Every one of those handbooks has been reviewed by our licensed attorney.

Employers can contact our HR team by calling 724-864-8745. We will be happy to help you in 2018!

1From the 2017 Hiscox Guide to Employee Lawsuits and its representative study of 1,214 closed claims reported by small- to medium- sized employers (fewer than 500 employees).

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.

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