Working Families Flexibility Act (H.R.1406)

(Not to be confused with the Flexibility For Working Families Act)

Over heavy opposition by the Democrats, a hotly debated bill was passed May 8th by House Republicans that will potentially loosen federal overtime laws.  The bill would amend long-standing labor laws (the 75 year old FLSA) by allowing private-sector employers to offer compensatory time off in lieu of time-and-a-half pay for overtime.  (The protections under FLSA were put in place to prevent employers from abusing the system and avoiding paying overtime to workers who put in more than 40 hours per week.)

The supporters of the bill have pitched it as an update to federal law, with the obligatory fluff that "it's about helping working moms and dads, providing the ability to commit time at home," per Rep. Martha Roby (R-Ala). 

Under the bill, employees may use their comp time only at the employer's convenience.     If a business is necessarily inflexible when it comes to scheduling time off as the business may relay on a small number of employees for an entire function, then comp time may not be a viable alternative.  For the small employer, the concern may be the potential lost productivity and the additional paperwork for tracking comp time accrued and used.

Yes, the bill has put in provisions to protect against abuse, and only offers the workers a chance to opt for the extra time off if that's what they want.  But I side with the Democrats that such an option is ripe for abuse by unscrupulous employers.  The bill is a potential way for extra work to be imposed on workers with no additional cost to the employer. 

Vicki Shabo is the Director of Work and Family Programs of the non-partisan National Partnership for Women and Families.  Her organization is staunchly opposed to H.R. 1406 and sees it as a wolf dressed in sheep's clothing.  "This is a dangerous proposal that pretends to be something that will help working families.  It will take money out of worker's pockets for overtime pay that they otherwise would have received in wages and instead replace it with possibly an empty promise or a mirage of time that's out in front of them that they may never be able to take."

"For the record, there are many ways for Congress to improve both worker pay and work life balance, including raising the minimum wage, instituting paid sick leave, ending discriminatory pay practices, easing the formation of unions and promoting advance notice for worker scheduling,  The House bill ignores what is helpful and embraces what is harmful."  The New York Times, May 10, 2013.

I highly doubt that this bill will go much further. The White House stated in early May that the president would be advised to veto such legislation on the grounds that it would weaken protections in the Fair Labor Standards Act.

Texas to Begin Drug Testing Applicants for Unemployment Benefits

In June, Gov. Rick Perry signed Senate Bill 21 which will require mandatory drug screening as a condition for the receipt of unemployment compensation benefits by certain individuals. 

SB 21 authorizes drug screenings for those receiving unemployment benefits in Texas who work "in an occupation designated by the United States Department of Labor regulations as an occupation that regularly conducts pre-employment drug testing."  A written drug screen assessment will determine the likelihood that an individual is using a substance regulated by the Texas Controlled Substances Act.  If the TWC determines a positive finding, the claimant will have to submit to and pass a state-administered drug test to receive benefits.  The Texas Workforce Commission will develop the program, in line with federal guidelines. 

The law becomes effective September 1.

The Flexibility for Working Families Act (H.R. 2559, S. 1248)

Rep. Carolyn Maloney (D-NY) and Sen. Bob Casey (D-PA) have reintroduced legislation that would provide employees with a statutory right to request flexible work terms and conditions.  "To permit employees to request, and to ensure employers consider requests for, flexible work terms and conditions and for other purposes."  (Govtrack.us)  If passed, the act would authorize an employee to request a change in the terms or conditions of employment relating to: (1) the number of hours the employee is required to work; (2) the times when the employee is required to work or be on call for work; (3) where the employee is required to work; or (4) the amount of notification the employee receives of work schedule assignments.

To be eligible under this bill, an employee would have to work an average of at least 20 hours per week, or at least 1,000 hours per year.  Employers with fewer than 15 employees would be exempt.  The measure additionally contains anti-retaliation provisions.

The act would require:

1. Notification/request from employee to employer.
2. Employer would be required to hold a meeting with the employee to discuss the application.
3. Employer must provide a written decision to the employee regarding the application "within a reasonable period" after the meeting.
4. If the application is rejected, the employer would be required to provide a reason for the denial.  The employer would be permitted to propose an alternative change to the employee's hours, times, place and amount of notification of schedule assignments.
5. If the employee is dissatisfied with the proposal and has a second supervisor, the employee has the right to have the second supervisor reconsider the alternative schedule.

Current status:  The bill has been assigned to a congressional committee as of June 27, 2013. 

FMLA Abuse and Employee Surveillance

An increasingly prevalent area of surveillance that the courts seem to be upholding is the hiring of private investigators to conduct surveillance on employees that are suspected of taking leave dishonestly under the Family Medical Leave Act.  While still a relatively new development, this is one in which the courts are, so far, siding with employers.  With that said, however, this is a very delicate topic as it deals with surveilling employees when they are not at work.  In most cases, there are heavy suspicions of the employee abusing their FMLA leave before any surveillance is conducted, and it is highly encouraged that employers seek legal counsel before considering this option.  (Virginia Business Law Blog)

The FMLA prohibits an employer from interfering with, restraining, or denying the exercise of or the attempt to exercise any right given under FMLA.   And, it is one of the largest employee abuse areas for employers.   One of the bases upon which an employer can defeat an FMLA "interference" claim is obtaining supporting documentation/evidence by the employer that an employee did not, in fact, take leave for a purpose authorized under the FMLA. 

I personally had a case 4 years ago in which an employee was placed on FMLA.  A week later we found out that the employee was moonlighting for another company.  After careful investigation, I found that the employee was performing the same tasks for the second company that the employee was restricted (medical requirements) from performing for us, his primary employer.

Employer surveillance of employees outside the workplace is an extremely touchy subject.  And, there are confusing legal issues to tackle.

In the Seventh Circuit Court decision, Vail v. Raybestos, "employers are allowed to spy on their employees not only when they are suspicious the employee is taking fraudulent leave under the FMLA, but also in any situation where the information gained by surveillance may be used as evidence to support the employer's honest belief the employee is taking fraudulent leave."    Diana Vail received more than 33 days of approved leave for chronic migraines.  The company noticed a pattern in regards to her leave and engaged the services of an off-duty police sergeant to monitor her activities.  The employee was found working for her husbands business during peak times.  The court dismissed her claim for interference stating that the plaintiff must show she took leave "for the intended purpose of the leave."

In Colburn v. Parker Hannifin (1st Cir., 2005), the employee claimed to be too dizzy to drive to work, but was caught working out at the gym while on leave.  The court found that the employer's surveillance did not violate the employees FMLA leave.

Tillman v. Ohio Bell Telephone, (6th Cir., 2011).  This case is note-worthy in that the employer sent the surveillance footage to an outside medical consultant for analysis before it made its employment decision. The consultant issued a report of her findings in which she concluded that, in her professional opinion, Tillman's activities on his days off were inconsistent with the medical restrictions.

When presented with evidence of suspected FMLA abuse, you must first independently investigate the issue before taking any action.  Avoid any conduct that interferes with FMLA.  Validate the accuracy of your suspicion before taking an adverse action against the employee.  Secondly be sure that any surveillance does not go too far and invades the privacy of the employee or the employee family members.

Legal Mistakes by HR (Part 4)

Here's my last, and no less important, potential area of litigation for you.  The performance appraisal conversation.  Managers dread it, employees fear it.  Sometimes the talk is effective, sometimes it isn't.  Unfortunately during the performance evaluation process supervisors may tell little white lies to protect an employees feelings or to avoid a confrontation.   Like our mother's taught us, honesty is always the best policy. 
 
4.  Misleading performance evaluations. Ensure you always document employee performance / behavior problems.   If under-performing employees are not properly rated, you won't have a legal leg to stand on if termination becomes a necessity. You'll be in a courtroom explaining why you gave a positive evaluation to an employee that you later terminated.

If you want to shape behavior, you have to give honest feedback.   If an employee doesn't know that something is wrong, the behavior becomes acceptable.

Legal Mistakes by HR (Part 3)

Employers often mandate pay secrecy restricting employees from discussing wages with their coworkers.  The school of thought being that salary discussions would affect morale and company productivity.   Here's the potential legal mistake:

3.  Mandating confidentiality of wage information.  Remember the National Labor Relations Act?  Under Section 7 of the NLRA, employees may now legally discuss wages in the workplace with limited exceptions.     By maintaining a policy or practice that restricts employee freedom in this regard, an employer violates Section 8(a)(1) of the Act.

Now, here's where the "limited exceptions" comes into play.  Employees are legally allowed to have such discussions, but the law does not require that employers allow employees to do so during assigned work hours.  Caution:  If you prohibit employees from discussing pay during assigned work hours, ensure that you are placing the same prohibition on other conversations that are unrelated to work.  Other limits pertain to the content of discussions (protected information) as well as how the employee came into possession of the information (unauthorized access to employee information), etc.

Review your policies and practices to ensure you're not in violation. 
 

Legal Mistakes by HR (Part 2)

Many employees are unaware that their computers can be monitored without their knowledge. If they have a computer, it's the employer's window into their workspace. Employers should take steps to notify employees that monitoring is taking place. 

2.  Permitting an expectation of electronic privacy.   Remember to advise your employees that there is no expectation of privacy on their company computers.   "With businesses losing billions to computer crime and employees wasting considerable time on their computers looking at sports updates, the latest fashion trends, and even less appropriate websites, business are cracking down by monitoring their employees.  The efforts are to ultimately reduce scams, identity theft, computer crimes, fraud, sexual abuse, piracy, and threats.  As a result, many businesses have resorted to online monitoring of their workplace computers"  (Texas Business Today, Fourth Quarter 2012). 

While the Electronic Communication Privacy Act (1986) comes close to creating a starting point for a legal foundation of what can and cannot be done, legal and ethical debates on electronic monitoring and surveillance in the workplace continue. 

*There may be additional rights for employees in California given specific statutes of that state.

Legal Mistakes by HR (Part 1)

Yes, it happens.  We have a host of responsibilities and every once in awhile, HR can make a mistake.  Oftentimes multi-tasking results in our missing a step in a sequence or forgetting something.  We simply allow something to fall through the cracks.  Over the next couple of days I am going to focus on a handful of mistakes that I see as real landmines.   

1.  Failure to train supervisors.  Unintentional or not, supervisors say or do things that put the entire company on the hook.    A seemingly harmless question during the interview process such as "what church do you attend" or "how old are you" can spark a discrimination lawsuit.   Ignorance may be bliss, but it's not an excuse (or defensible in a court of law).

Ensure supervisors learn how to listen for leave requests that may fall under the FMLA umbrella and trigger FMLA protections. Remember, employees don't have to specifically ask for FMLA.  It is extremely important to train your management staff and front line supervisors on what constitutes notice of FMLA.  Further, the supervisors have an obligation to take action if they suspect an employee has provided notice. 

Why is training so important?  Let's take a look at the discount chain Target for just a moment.   Multi-cultural tips (via a controversial document) recently distributed at one Target location has sparked claims of discrimination by three employees.  The document which Target claims is not part of it's company-wide training program, called “Organization Effectiveness, Employee and Labor Relations Multi-Cultural Tips," was distributed to managers.  The document included subtitled sections like "intercultural differences."  What were the intentions of the managers?  You can only guess.  Here's an excerpt from the document:

1. Food: not everyone eats tacos and burritos
2. Music: not everyone dances to salsa
3. Dress: not everyone wears a sombrero
4. Mexicans (lower education levels, some may be undocumented)
5. Cubans (Political refugees, legal status, higher education level)
6. They may say “OK, OK” and pretend to understand, when they do not, just to save face.

Recognize the potential areas for training within your organization.  One size doesn't fit all so tailor your training needs to your organization. 

New York Surveillance Of "Texting" Drivers

We all know that if an employee uses either your cell phone or theirs and causes an accident while doing business on the cell phone, your company could be held liable for damages.  That's why we have policies prohibiting employees from using cell phones while driving.  You have a policy?  Right?  We also know that different states have different laws regarding cell phone use, extending to texting while driving? Right?   Well New York is now taking some rather unique steps to catch drivers in the act of texting.

Officers are going stealth mode by using undercover state police cars that are designed to sit higher than a normal SUV.  This fleet of slightly elevated SUVs joined the statewide $1 million anti-distracted driving effort designed to crackdown on texting drivers.  Called "Concealed Identity Traffic Enforcement" (CITE) vehicles, they come in a variety of colors and look like any other SUV.

The penalty for texting while driving?  Under the law, new drivers with probationary or junior licenses can have their licenses suspended for 60 days if caught texting while driving.  Those same drivers could have their licenses revoked for up to six months if caught a second time.