Documenting Employee Performance

As we reach the end of Q1 2012, many companies are beginning to address those hated performance appraisals. To ensure you are able to provide the employee with an effective performance appraisal, remember to never rely on your memory to evaluate employee performance! Develop a system that will allow you to track the employees performance over the course of the entire performance period. It can be computer based or simply a file in your desk.

1. Track both the positive and negative behaviors of the employee so that you have a "balanced" review of the employees performance. Don't let the file become a little black book of mistakes and errors.
2. Provide detail, detail, detail. Be very specific with your information. Not that the employee was late three times over the last 2 weeks. But the days, the amount of time s/he was late. What was the excuse? Details. Not your opinion! Are projects late? Are deadlines missed? What have been the employees positive contributions to the workforce? Did the employee come in under budget? Ahead of deadline? Did the employee act as a team leader for a successful project?
3. Summarize every discussion. Include the problem, the action taken to correct or eliminate the problem, the dates, comments, etc.
4. Write OBSERVATIONS, not assumptions. Avoid unsubstantiated claims.
5. Keep a file for all employees.

Performance reviews are difficult for both the employer and the employee. Keep those lines of communication open during the year. Don't bombard the employee with feedback only during the appraisal.

Rule of thumb: Nothing mentioned during a performance appraisal should be a surprise to the employee!

Updated FMLA Forms Available

In case you missed it, the FMLA forms on the DOL website expired on 12/31/211. Finally, the DOL has issued new forms. There isn’t much of a change other than the new forms are good through February 28, 2015. The new forms don’t make reference to the proposed amendments to military family leave nor for GINA safe harbor language. The proposed changes:

1. Calculation: Companies would be required to track FMLA leave in the smallest increments the payroll systems use to track work time.
2. Physical impossibility provision: A delay in a worker’s reinstatement will only be permitted in the most limited circumstances. The DOL may change the rule that allows employer’s to delay a workers’ reinstatement from FMLA when it is physically impossible for the employee to return to work in the middle of his/her shift.
3. Military Leave: Major changes to provisions including; (a) Expanding caregiver leave to care for veterans discharged within the past 5 years; (b) Extending exigency leave to family members of regular armed forces; and, (c) Extending amount of time employee can take during a military family members “rest and recuperation” period.

Following up on GINA, The Equal Employment Opportunity Commission (EEOC) has suggested employers add the below language in forms when requesting health-related information from an employee. This will ensure that employers don't inadvertently obtain genetic information when requesting that healthcare provides complete certification forms.

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic Information’ as defined by GINA includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

To have your voice heard regarding the proposed changes to FMLA, the link is provided:

http://www.regulations.gov/#!home

Candidate Referral Programs

It's a clear indicator that the economy is recovering. Recruiting is up.

When expanding a candidate pool, in addition to traditional recruiting methods companies may use a candidate referral program. While there are associated risks, if properly implemented a referral program can provide a pool of passive candidates that are of higher quality. Let's face it, an employee isn't going to refer a candidate that's a poor fit. Any candidate the employee brings in is a reflection on that employee.

If you are developing a referral program, here's a few basic questions:

1. Are all positions to be eligible for the referral?
2. Are all employees, including managers and supervisors, able to participate in the program?
3. Do you wish for your referral program to include individuals that are non-employees? Non-employees would encompass vendors, consultants, customers and even former employees.
4. What size is the referral bonus? Is it the same for all positions? Should it be a higher amount for a professional position versus hourly position?
5. How long must the new employee be retained prior to the payment of the bonus? Pay 100% up front? 50% up front with balance at conclusion of an identified time frame? 100% at the conclusion of the identified time frame? Personally, hey, it's a REFERRAL bonus. Not a retention bonus. Pay the referral out up front!
6. Should priority be given to the referrals over other candidates?
7. Should the referring employee pre-assess the candidate for the open position? This will allow the organization to ensure that the employee has the skills and abilities for the position prior to interviewing.

As with any referral program, communication is key. Employees must be aware of what positions are being recruited for and what the requirements are of each position. Remember, employee referrals should add to the quality of the candidate pool.

FMLA: "Eligibility" Ruling

Under the FMLA, an employee does not become eligible to take FMLA leave until such time that s/he has worked at least 1,250 hours and 12 months. However, according to the 11th Circuit (FL), being eligible to take leave is not the same as being eligible to request leave.

In Pereda v. Brookdale Senior Living Communities, Inc., the plaintiff, Kathryn Pereda, submitted a request for FMLA leave. Prior to her one-year anniversary the employee was terminated. Pereda filed a two-count complaint alleging interference (count 1) and retaliation (count 2) under the FMLA. The district court held that because Pereda was not an eligible employee at the time she was terminated (she had not yet reached her one-year anniversary), she could not bring either claim under the FMLA.

The 11th Circuit Court had two issues to address: (1) Can the employee pursue a claim under FMLA and (2) was the employee protected by the statute?

Pereda argued that if the district court decision was allowed to stand, employees "will fear mentioning leave in anticipation of the birth of a child. Moreover, employees would cease to provide their employers with adequate notice of the impending absence in fear of retaliation."

To reach a decision the 11th Circuit had to determine whether the employee could be considered an "eligible employee" for the purposes of FMLA. The employer argued that the employee was not an "eligible employee" at the time she was terminated and therefore was not protected by the statute.

The 11th Circuit appeal: Whether the FMLA protects a pre-eligibility request for post-eligibility leave. The 11th Circuit answered that question in the affirmative.

The findings: The 11th Circuit determined that the eligibility "is determined" at the time the employee would have taken the leave. The employee would have been eligible for leave because she would have been employed for the full 12 months. "After examining the various elements of the FMLA regulatory scheme, such as the 30-day notice requirement and the DOL implementing regulations, we conclude that allowing the district court's ruling to stand would violate the purposes for which the FMLA was enacted. Without protecting against pre-eligibility interference, a loophole is created whereby an employer has total freedom to terminate an employee before she can ever become eligible. Such a situation is contrary to the basic concept of the FMLA."

As an employer I would want an employee to provide as much advance notice of FMLA leave as possible. This will allow me to make the necessary arrangements, to back-fill the position, etc., to ensure that the organization is not unduly impacted by the employees absence. What message do we send employees when we terminate an employee who gives advance notice of the need for FMLA?

DOL: Right to Know Rule Delayed

For the past two years the DOL has discussed revising its record keeping regulations under the FLSA. The revision? Requiring employers who classify an employee as exempt to prepare a written justification for the basis for the exemption. (The justification would further provide why an individual is classified as an employee or as an independent contractor and how their pay is computed.) This justification would then have to be provided to the employee and be subject to inspection by the Department of Labor. Many employers strongly disfavor this proposal.

Acting Wage and Hour Administrator Nancy Leppink called the Right to Know rule one of the Wage and Hour Division's priorities, stating "We're continuing to work on that regulation," and that "We're learning about what the issues are" from the Department's ongoing misclassification enforcement initiative. (Recent article in BNA's Daily Labor Report.)

The DOL continues to expand the number of jurisdictions and agencies with which it is collaborating to end employee misclassification. Recently the Colorado Department of Labor and Employment and the Louisiana Workforce Commission has joined the fray.

Employers don't have to worry about this particular issue just yet. It appears the DOL does not plan to take action on its Right To Know rules at least until January 20,2013.

DOL Update: Child Labor Regulations

The DOL has issued new regulations concerning child labor under the FLSA. The regulations are focused on the limitations as to both duties and work hours applicable to 14-15 and 16-17 year olds. The limitations are directed to those in the "non-agricultural" occupations. The regulations address in detail the types of machinery that minors are permitted to operate, as well as barred from operating, as part of their employment.

For additional department please view the DOL website.

EEOC: No Diploma Necessary (New Guidance)

The informal discussion letter that the EEOC issued in November 2011 raised a lot of questions and concerns. The EEOC (finally) released some additional guidance on when an employer may POTENTIALLY violate the ADA by requiring employee candidates to have a high school diploma.

According to the EEOC, "[t]here have been significant commentary and conjecture about the meaning and scope of the letter." To clarify the legality of requiring a high school diploma under the ADA, the EEOC has posted a series of questions and answers on its website. The EEOC explains that employers may continue to have the high school diploma requirements. However, the employer may have to allow candidates claiming to have a learning disability to "demonstrate qualification for the job in some other way." The EEOC further states that the employer is still permitted to hire the most qualified person for the job and does not have to give preference to an individual with the disability over someone who can perform the job better.