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You be the Judge: Need harassment ‘proof’?.....2
10 dangerous errors in employee handbooks.....2
3 steps to lawsuit-proof hiring.......................3 
Ask the Attorney: When pay for drive time? ......4
The HR Law Quiz for February...............................4
February 4, 2015
Trusted insights and advice from The HR Specialist
See you in court: Top 5 legal risks for 2015
W
hen U.S. employers get dragged
into court by their employees,
the employer loses about two-thirds
of the time. You can reduce your
liability risk by anticipating upcoming
employment law hot-spots. Expect
these five issues to dominate the
employment law landscape in 2015:
for overtime pay. The Obama administration is raising that bar, causing
millions more low-paid managers to
be eligible for overtime.
Online resource: Learn about the
plan and current OT law at www.
theHRSpecialist.com/overtime2015.
1. More managers eligible for OT.
A handful of states, including
California and Connecticut, require
employers to offer paid leave. Similar
legislation is percolating in other
states, as are proposals to expand
employees’ rights guaranteed by the
FMLA. On the federal level, change
has come to the FMLA itself with
New federal rules are on the way that
will require paying overtime to management employees who were previously considered exempt under the
Fair Labor Standards Act (FLSA).
Current rules say employees
earning less than $23,600 annually
($455 a week) automatically qualify
2. Expanded paid & family leave.
Continued on page 2
Court: Don’t send FMLA notices via snail mail
T
ypically, courts have recognized
the “mailbox rule,” in which documents sent by regular postal mail are
assumed to have reached the addressee. But a new federal appeals court
ruling is making employers question
whether sending FMLA notices (and
other benefits-related documents) via
regular mail is still acceptable.
The case: A college employee
sued after she was fired for not
returning to work after her 12 weeks
of FMLA leave. She said she never
received FMLA notices. The college
said it sent them via USPS mail.
Result: The court sent the case to
a jury trial, saying certified mail gives
a “strong presumption” of receipt
while regular mail gives a “weaker
presumption.” Surprisingly, the court
said a letter sent via regular mail
is not considered delivered if the
www.theHRSpecialist.com/LawWeekly
www.theHRSpecialist.com/LawWeekly addressee says she didn’t receive it.
The court’s reasoning: “It is
certainly not expecting too much to
require businesses that wish to avoid a
material dispute about the receipt of
a letter to use some form of mailing
that includes verifiable receipt when
mailing something as important as a
legally mandated notice.” (Lupyan v.
Corinthian Colleges, Inc., 3d Cir.)
Advice: Employers would be wise
to send benefit notices by certified
mail or other method with a tracking
service, especially in states covered
by this court (Delaware, New Jersey
and Pennsylvania). Best option: hand
delivery with signed acknowledgment.
What about email? Workers can
also claim they didn’t see an email. If
sending via email, first get employees’
written permission. Then electronically verify the notice was opened.
In the News ...
New record-keeping rules
begin this month. Starting Jan. 1,
employers are required to notify OSHA
of work-related fatalities within eight
hours and work-related hospitalizations within 24 hours. Plus, the agency
has updated the list of industries that
are exempt from injury-and-illness
record-keeping. Learn more at www.
osha.gov/recordkeeping2014.
FMLA forms expire in February.
If your organization is using the U.S.
Department of Labor’s model forms for
FMLA certifications and notifications,
those forms carry a Feb. 28, 2015, expiration date in the upper right corner.
For more details on how to respond and
links to new DOL forms, go to www.
theHRSpecialist.com/FMLAnew.
Pay-related lawsuits again hit
record high. U.S. employees filed an
all-time high of 8,126 federal Fair Labor
Standards Act (FLSA) lawsuits in fiscal year 2014, continuing the dramatic
spike in pay-related lawsuits against
employers over the past decade. For 10
tips to avoid such trouble, go to www.
theHRSpecialist.com/wagelawsuits.
FLSA cases in
federal court
9,000
8,126
7,000
5,000
3,000
1,545
1,000
1994
1999
2004
2009
2014
February 4, 2015 • The HR Law Weekly 1
(800) 543-2055
Employment law risks
You be the Judge
(Cont. from page 1)
new forms from the DOL (see
News box on page 1). Plus, same-sex
spouses have new FMLA rights.
Go to www.theHRSpecialist.com
/FMLA-same-sex.
3. Your I-9 audit risks explode.
The number of employers hit
with audits of I-9 forms has
spiked from nearly 300 in 2008
to more than 3,000 last year. It’s
part of the U.S. Immigration
and Customs Enforcement (ICE)
“bold new audit initiative.”
Online resource: Find do’s and
don’ts for I-9 compliance at www.
theHRSpecialist.com/I-9audit.
4. Activist, aggressive NLRB.
The National Labor Relations
Board (NLRB) is pushing a proworker agenda—even in nonunion
workplaces. Examples: allowing for
“quickie” union elections and letting employees use company email
to air their work grievances.
Online resource: Read about
the NLRB’s efforts at www.
theHRSpecialist.com/nlrb15.
5. Obamacare compliance.
The Affordable Care Act’s (ACA)
employer mandate kicks in this year
for most large employers—along
with big fines for failing to provide health benefits. Plus, small
employers finally have a way to buy
coverage through the law’s Small
Business Health Options Program.
Online resource: For background and compliance details,
see our ACA portal page at www.
theHRSpecialist.com/healthlaw.
Free training handout:
The 12 manager mistakes
that spark lawsuits
Most employment lawsuits are triggered by basic errors, not great
injustices. Download our handout,
The Dirty Dozen: Manager Mistakes
That Spark Lawsuits, at www.
theHRSpecialist.com/dozen.
2
The HR Law Weekly • February 4, 2015
To fire, must you have ‘proof’ of harassment?
The lesson:
T
he case: A female employee at
a Florida jail complained to HR
that a male co-worker, David, told
her stories of his sexual exploits. HR
investigated and decided she was
telling the truth. David was fired.
David sued, saying he was actually
fired because he is black. Plus, he
claimed, the employer needs to have
some sort of proof of harassment.
If it comes down to a “he said/she
said” argument, David claimed, he
can’t be fired. What’s the truth?
The verdict: The court said
that what mattered wasn’t so much
what actually happened, but what
the employer believed happened
based on the investigation. As long
as an investigation is thorough and
fair, employers are free to believe
either side. As a result, David’s case
was dismissed. (Finley v. Florida
Parish, 5th Cir.)
You don’t need to
worry about establishing an airtight
legal case when you get word of possible harassment. HR investigations
aren’t held to the same “beyond a
reasonable doubt” standard used in
court. And judges don’t expect investigations to resemble a full-blown trial.
As long as you conduct a proper
investigation, a court likely won’t
second-guess your judgment. You
don’t have to be absolutely right …
just fair and honest.
Online resource Workplace CSI
What counts as “harassment” and
what’s the best way to sort out the truth
in co-workers’ contradictory stories?
Read our free white paper, Investigating
Harassment: How to Determine Crediblity,
at www.theHRSpecialist.com/credibility.
Employee handbooks: 10 common mistakes
Y
4
our employee handbook can be
the foundation of employee performance and a shield against lawsuits
... or it can be a ticking time bomb
that confuses employees and strips
away your legal defenses. It depends
on how well it’s written and put to use.
Here are the 10 most common
handbook mistakes to avoid:
Adopting a “form”
handbook, which
includes promises you’ll
never keep.
Including lots of
detail on procedures, which
confuses employees and provides fodder for lawyers. Stick to company
policies. Keep a separate procedures
manual for managers.
Mentioning an employee probationary period. That can erase
at-will status by implying that, once
the period is over, employees can stay
indefinitely.
1
2
3
Being too specific in your discipline policy. That gives the idea
that the list covers every infraction.
Workers can easily claim inconsistency.
Not being consistent with other
company documents. Make sure all
policies speak in one voice.
Overlooking an at-will disclaimer. Have employees sign a disclaimer acknowledging that the
company can terminate their
employment at any time and
bypass discipline policies.
Sabotaging disclaimers by
what you say, especially by
reassuring employees their jobs are safe.
Not adapting the handbook to
accommodate each state’s laws.
Have a lawyer look for state slip-ups.
Failing to update the manual frequently for changing laws.
Setting unrealistic policies. If
managers won’t enforce it, don’t
put it in the handbook.
5
6
7
8
9
10
www.theHRSpecialist.com/LawWeekly
Legal Briefs
From the Courts
3 steps to a lawsuit-proof hiring process
S
Final business: 5 steps to
take when employee dies
Beyond its obvious emotional impact,
the death of an employee leaves
unfinished business for HR and payroll—from COBRA notifications to final
paychecks to insurance payouts. Plus,
HR has a duty to communicate the
news to co-workers and help navigate
them through the grieving process.
Read Final Business: 5 Steps to Take
When an Employee Dies at www.
theHRSpecialist.com/death.
upervisors and HR professionbias—not everyone who applies.
als can only discriminate against
Case in point: Judy applied
applicants if they know the applicant
online for an HR generalist job at
belongs to a protected class (age,
Dow Chemical but never made it to
sex, race, disability, etc.). So the best
the interview. She sued, claiming she
way to prevent lawsuits is to ensure a was rejected due to her age and race.
blind hiring process. How?
But when the court looked at
1. Accept applications almost
Dow’s hiring process, it quickly disexclusively online. Instruct applimissed the case. Reason: The applicants to
cation never
remove birthasked about age
dates and grador race. Nothing
uation dates
on her résumé
Are
your
interviews
from résumés
alluded to either
getting stale? Here’s
and exclude
characteristic.
some free inspirapersonal inforDow uses an
tion: Our Library of
mation from
HR
person to
Skill-Based Interview
cover letters.
review
applicaQuestions offer more
2. Have
tions
and
make
than 200 sample intersomeone who
calls
to
confirm
view qustions to help
you identify key “soft
won’t be
interview availskills”
in
candidates.
involved in
ability. That perAccess it at www.
the interview
son then passes
theHRSpecialist.com/skills.
process review
on the candidate
the applicalist to a hiring
tions and make
manager for posinitial availability calls.
sible interviews.
3. Screen applications with
The process was successful
computer software that looks for
because it was designed specifically
pertinent experience, education and
so hiring managers wouldn’t know
training. Nothing is as blind to proapplicants’ protected characteristics
tected characteristics as computer code. and, thus, can’t discriminate. (Harris
With these safeguards, only interv. Dow Chemical, ED PA)
viewed applicants can possibly claim
200 sample interview questions
SNAPSHOT
Inside
‘proof’? ....2
Need harassment
You be the Judge:
....2
in employee handbooks

10 dangerous errors
hiring ......................3
3 steps to lawsuit-proof
time? .....4
When pay for drive
Ask the Attorney:
...4
for February ...........................
The HR Law Quiz
Specialist
from The HR
and advice
Trusted insights
February 4,
2015
The top 5 employ
W
ment
law risks of 2015
In the News ...
ping rules 1,
New record-kee
Starting Jan.
notify OSHA
begin this month.
required to
T
via snail mail
No federal law says employers must
compensate workers for their storedup vacation time after the employee
departs. But several states do set
such laws. You can find a state-bystate chart that describes vacationpay-upon-termination laws at www.
theHRSpecialist.com/vacationpay.
And the $25,000 question is ...
“Do you have any health problems?”
That’s what a Connecticut grocery
store asked on its job applications.
The store also asked during interviews whether applicants had health
problems. Such disability-related
inquiries violate the ADA. The EEOC
won a $25,000 settlement against the
store. Read our list of the top 25 offlimits interview questions at www.
theHRSpecialist.com/25questions.
✔Yes, I want to receive my subscription to
❑
The HR Law Weekly for (check one):
adminpay. The Obama
are
for overtime
eight
that bar, causingto
employers
get dragged istration is raising
fatalities within
of work-related
low-paid managers
hospitalizahen U.S. employers
millions more overtime.
by their employees,
hours and work-relatedPlus, the agency
for
into court
the
two-thirds
24 hours.
be eligible
that
Learn about
loses about
tions within
your
the list of industries
www.
the employer
Online resource:
ess
has updated
You can reduce upcoming
OT law at
15.
from injury-and-illn
of the time.
overtime20
plan and current
at www.
are exempt
by anticipating Expect
ialist.com/
ng. Learn more
leave.
liability risk
theHRSpec
14.
record-keepi
t law hot-spots. the
paid & family
ordkeeping20
employmen
2. Expandedstates, including
osha.gov/rec
issues to dominatein 2015:
of
these five
t, require
t law landscape
expire in February.
OT. A handful
Connecticu
U.S.
employmen
FMLA forms
eligible for that California and
leave. Similar
is using the
to offer paid
the way
If your organization model forms for
1. More managers
employers percolating in other
rules are on
of Labor’s
to manis
Department
New federal
and notifications,
legislation proposals to expand
paying overtime
previare
by the
FMLA certificationsa Feb. 28, 2015, expiwill require
who were
states, as
guaranteed
carry
employees
the
forms
rights
under
those
change
right corner.
agement
level,
exempt
employees’
in the upper
and
the federal
ration date
ously considered
Act (FLSA).
itself with
on how to respond
FMLA. On
Standards
to the FMLAContinued on page 2
For more details forms, go to www.
Fair Labor
say employees
has come
DOL
links to new
Anew.
Current rules $23,600 annually
list.com/FML
than
less
qualify
theHRSpecia
lly
earning
hit
automatica
($455 a week)
lawsuits again
Pay-related U.S. employees filed an
Labor
record high.
federal Fair
high of 8,126
fisreceive it.
all-time
didn’t
lawsuits in
says she
Act (FLSA)
“It is
addressee
Standards
the dramatic
reasoning:
continuing
to
The court’s
have recognized
too much
cal year 2014,
lawsuits against 10
ypically, courtsrule,” in which doc- certainly not expecting wish to avoid a
spike in pay-related
decade. For
that
are
of
over the past go to www.
the “mailbox
postal mail
employers
require businesses about the receipt
by regular
such trouble,
the addressuments sent
of mailing
elawsuits.
tips to avoid
material dispute
have reached
list.com/wag
use some formreceipt when
assumed to
appeals court
theHRSpecia
a letter to
verifiable
new federal
as a
question
ee. But a
that includes
employers
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v.
(and
in
making
is
something
8,126
cases
notices
(Lupyan
ruling
9,000
mailing
FLSA
FMLA
notice.”
) via
3d Cir.)
whether sending ated documents
legally mandated
federal court
Colleges, Inc.,
wise
other benefits-rel
Corinthian
would be
is still acceptable.
7,000
Advice: Employers by certified
regular mail A college employee
notices
case:
benefit
not
a tracking
The
for
to send
method with
she was fired her 12 weeks
sued after
mail or other
in states covered
5,000
to work after she never
New Jersey
returning
said
service, especially
(Delaware,
leave. She
college
of FMLA
by this court ia). Best option: hand
notices. The
ment.
received FMLA via USPS mail.
and Pennsylvan
3,000
acknowledg
them
can
the case to delivery with signed
said it sent
court sent
email? Workers
If
1,545
mail gives
Result: The
What about
2014
see an email.
2009
saying certified
2004
they didn’t
1,000
1999
a jury trial,
n” of receipt
get employees’
also claim
1994
first
presumptio a “weaker
email,
a “strong
sending via
Then electroni1
mail gives
court
Law Weekly
while regular Surprisingly, the
written permission.
was opened.
2015 • The HR
(800) 543-2055
n.”
the notice
mail
February 4,
presumptio
cally verify
sent via regular if the
said a letter
delivered
is not considered
/LawWeekly
pecialist.com
www.theHRSpecialist.com/LawWeekly
www.theHRS
FMLA notices
Court: Don’t send
After terminations, must
vacation time be paid?
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www.theHRSpecialist.com/LawWeekly
February 4, 2015 • The HR Law Weekly
3
by Nancy Delogu, Esq., Littler, Washington, D.C.
Can we ban workers from leaving
for appointments during work?
Do we have to pay for time
spent driving between offices?
Q.
Q.
A.
A.
One of our employees is constantly scheduling appointments
during work and having to leave.
Can we restrict appointments or
at least require documentation?
— Kate, New York
Yes, you can require employees
to work scheduled hours and tell
them to avoid making plans to do
other things during scheduled time.
But if those are medical appointments
to address a serious health condition
or disability—or to take time off to
care for a family member with a serious condition—those absences may be
protected by the ADA or the FMLA
(or, in some states, a similar state law).
Employees eligible for FMLA are
entitled to take leave (even intermittent leave) without much advance
notice. And if the employee suffers
a disability, leaving for a medical
appointment also may be considered
an ADA “reasonable accommodation.”
Even if those appointments are
covered by the FMLA or ADA, you
can still ask your employees to schedule appointments at a more convenient time, or to provide you more
notice of the need to be absent.
Some of our hourly employees
leave the office at night with
supplies. Then, the next day, they
drive to another office (40 minutes
away) with those supplies. What
is the correct way to pay them for
this? — Joey, California
Time spent commuting from the
office to home and back again is,
as you know, generally unpaid commuting time. If employees are assigned
to one office, but periodically spend
time traveling to another office from
home for a one-day assignment, then
the time incurred traveling from their
home to that other office is work time.
You can deduct the time it ordinarily
takes them to commute to work.
Example: If it typically takes an
employee half an hour to commute
to work, and you ask him to travel
from home to an office that takes 40
minutes to reach, then 10 minutes of
his travel time will be compensable.
Nancy Delogu, Esq., is a shareholder
in Littler’s Washington, D.C.,
office. She also answers the “Ask the
Attorney” employment law questions
at www.theHRSpecialist.com.
Tales from the Front Lines
Firefighter afraid of fire: Is that a ‘disability’?
O
n two occasions, Shayn, a
Houston firefighter, had nervous
reactions and was unable to don his
gear at the scene of house fires. He was
diagnosed with transient amnesia, a
sudden temporary loss of memory, and
transferred to the training academy.
Shayn sued under the ADA, saying
the fire department regarded him as
disabled and wrongly demoted him.
A lower court agreed and awarded
him $362,000. But the Texas
Supreme Court tossed out his case.
Why? It said Shayn failed to show
he was “disabled,” noting that an
employee who lacks the “mental,
physical or experiential skill set”
4
The HR Law Weekly • February 4, 2015
required to perform a job isn’t necessarily disabled.
The court said, “The capacity to
play professional basketball is an ability. The rest of us do not suffer from
a disability because we cannot play at
that level.” (City of Houston v. Proler)
The lesson: Not everything is
considered a disability under the
ADA. As this court noted, a “job
skill required for a specific job is not
a disability if most people lack that
skill.” Being reluctant “to charge
into a burning building is not a
mental impairment; it is the normal
human response,” which firefighters
are required to overcome.
HR Law Quiz
1. What are the size requirements
for federal workplace posters?
a. At least 8½” by 11” for all posters
b. OSHA poster must be 8½” by 14”;
others must be “easily readable”
c. All wage-related posters must be
at least 8½” by 11”; others must be
“readable”
2. The three most common types
of job discrimination complaints
filed by employees (in order) are:
a. Age, sex and race
b. Retaliation, race and sex
c. Race, age and retaliation
3. What does federal law say
about extra pay for people working weekends, nights or holidays?
a. It’s required at time-and-a-half
b. It’s required at double time
c. It’s not required, but some state
laws may apply
4. How many members of the current U.S. Congress have a background in human resources?
a. 1
b. 6
c. 14
5. To be eligible for FMLA coverage, employees must have logged
at least how many hours with
that employer in the previous 12
months:
a. 1,520 hours
b. 1,025 hours
c. 1,250 hours
6. In general, people need to file
a charge with the EEOC within
____ days from the day that the
discrimination took place.
a. 30
b. 90
c. 180
_____________________
Answers:
1. b 2. b 3. c 4. a 5. c 6. c
Ask the Attorney
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