10 Thoughts on Working through an ADA Accommodation

The Americans with Disabilities Act (ADA) was originally published in 1991, with revisions and updates in the mid-2000’s.  The legislation prohibits discrimination against people with disabilities in the workplace.  This article will focus on disability and accommodation during the application and employment relationship.  How does this impact our organizations?  What should we consider if an applicant or employee requires reasonable accommodation?  The steps below will assist our organizations in working through the complexity of accommodations.

Below are the 10 thoughts on ADA accommodations:

  1. Are you covered by the ADA? All employers with 15 or more employees are covered under the ADA at the federal level.  Review state regulations and legislation, to verify if there are stricter requirements at the state or local level. 
  1. Policies and Procedures in Place: Ensure your organization has handbook language, a policy, process and/or procedures in place to work through disability accommodations. This includes reviewing job descriptions; physical, standing, sitting or lifting requirements.  The more accuracy in the job descriptions, the better we can assess accommodations and determine the reasonableness of the accommodation request.
  1. Is the applicant qualified? The individual needs to satisfy the definitions under the ADA.  Applicants must meet the skill, experience, education and other job-related requirements.  They must be able to perform the essential functions of the position.
  1. The Interactive Process: Employers should engage in the interactive process in which the employee, health care provider and employer share relevant and important information on the position, the disability, accommodations and limitations of the applicant. This should be a good faith communication process between the parties.
  1. Employee Disability Under the ADA:
  • The ADA defines a disability as one of the following: a) a physical or mental impairment that substantially limits a major life activity; b) a record of a physical or mental impairment that substantially limited a major life activity; or c) being regarded as having such an impairment.
  • According to the Equal Employment Opportunity Commission (EEOC), the ADA Amendments Act (ADAAA) includes impairments that would automatically be considered disabilities. They include deafness, blindness, intellectual disability, completely or partially missing limbs, mobility impairments that require the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV or AIDS, multiple sclerosis and muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia.
  • The definition of major life activities includes caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working. Major bodily functions include functions of the immune system; normal cell growth; and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.
  • The definition of a disability also includes situations in which an employer takes an action prohibited by the ADA based on an actual or perceived impairment—for example, removing from customer contact a bank teller who has severe facial scars because customers may feel uncomfortable working with this employee or may perceive the employee as having an impairment when, in fact, he or she does not.
  • The ADAAA directs that if a “mitigating measure,” such as medication, medical equipment, devices, prosthetic limbs or low vision devices eliminates or reduces the symptoms or impact of the impairment, that fact cannot be used in determining if a person meets the definition of having a disability. Instead, the determination of disability should focus on whether the individual would be substantially limited in performing a major life activity without the mitigating measure. This rule, however, does not apply to people who wear ordinary eye glasses or contact lenses.
  • The following are not disabilities under the ADA: transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, other sexual behavior disorders, compulsive gambling, kleptomania, pyromania, and psychoactive substance use disorders resulting from current illegal use of drugs.”[i]
  1. Reasonableness of the Accommodation: The accommodation can be a modification in the workplace. The price of reasonable accommodation will vary, case by case.  Determination of the accommodation should be an open process between the three parties and should be consistent throughout the organization with employees and applicants.
  1. Reasonable Accommodation versus Undue Hardship:
  • “The EEOC, when determining if the employee request creates an undue hardship to the employer, looks not only at the cost of the particular accommodation but also at the financial stability of a company. If the company is making significant profits or has a sizable net worth, the employer may not be able to prove that the requested accommodation would have a significant financial impact, therefore creating an undue hardship. For example, it may be an undue hardship for a nonprofit organization with limited funds to provide a special chair that costs $1,000 as an accommodation to an employee. However, the same request by an employee working in a for-profit organization that made sizable profits may not be seen as an undue hardship for that employer.
  • Accommodations that could result in an undue hardship include modifications that are “unduly extensive or disruptive, or those that would fundamentally alter the nature or operation of the job or business,” according to the EEOC. For example, small employers that require their employees to be able to perform a number of different jobs and tasks may not find it feasible or cost-effective to provide job restructuring as a “reasonable accommodation,” whereas in larger organizations, this may be a free or low-cost option.
  • The EEOC does not see impact on employee morale as a reasonable undue hardship defense.”[ii]
  1. Communication is Critical: The organization should notify the employee in writing if the accommodation has been approved or denied.  Details of the anticipated accommodation start date or reason for the denial should be included.  Copies of all material should be included in the employee files.  Make copies of all information.
  1. Review, Modify and Evolve: Just as we manage PFL and FMLA claims, we need to continue to review open accommodation cases, in the event accommodation requirements change, we need to be aware of these changes. Work with the employee and health care provider to ensure the communication channels remain open.
  1. Job Accommodation Network (JAN): “The Job Accommodation Network (JAN) is the leading source of free, expert, and confidential guidance on workplace accommodations and disability employment issues. Working toward practical solutions that benefit both employer and employee, JAN helps people with disabilities enhance their employability, and shows employers how to capitalize on the value and talent that people with disabilities add to the workplace.”[iii] This is a great resource with helpful information.  The forms, templates and accommodation recommendations are useful for all organizations.  Be proactive and strategic in your approach to accommodations.

Job Accommodation Network

Below are the links for upcoming training’s both in person and online webinars:

Upcoming Compliance Key Trainings

Elmira College: SHRM Certification Exam Prep Course- Fall 2018 & Spring 2019

Upcoming Compliance Online Training

Compliance IQ Webinar

– Matthew Burr, HR Consultant

[i] https://www.shrm.org/resourcesandtools/tools-and-samples/how-to-guides/pages/requestreasonableaccommodation.aspx

[ii] https://www.shrm.org/resourcesandtools/tools-and-samples/how-to-guides/pages/requestreasonableaccommodation.aspx

[iii] https://askjan.org/about-us/index.cfm

6 Final Guidance Updates to the New York State Sexual Harassment Prevention Laws

As we are all aware, in August 2018, the state published drafts of guidance materials concerning the new legislation, including a model sexual harassment prevention policy, a model complaint form, and model training materials. The state accepted public comments on these materials and, in the October 1, 2018 final guidance, made several changes as a result. On October 1, 2018, New York State released final guidance on the state’s new sexual harassment prevention laws. The new legislation requires all employers in New York State to publish policies concerning sexual harassment, adopt a sexual harassment complaint form, and conduct sexual harassment training.

 Below are final guidance updates:

  1. Employers have additional time to ensure all employees receive the required sexual harassment training. Training must now be completed by October 9, 2019, rather than the original January 1, 2019 deadline.
  1. New hires must be trained “as soon as possible.” Previously, the draft guidance specified new hires should be trained within 30 days of their start date.
  1. The model sexual harassment prevention policy was modified in several respects, including:
    1. The definition of harassment was amended to include harassment based on “self-identified or perceived sex” and “gender expression.”
    2. “Sex stereotyping” was added as an example of sexual harassment.
    3. The language concerning investigations was softened, with the policy now noting the investigation process “may vary from case to case.”
  1. The model complaint form was shortened to omit questions concerning whether the employee filed an external complaint or retained an attorney
  1. The training, which may be presented to employees individually or in groups; in person, via phone or online; via webinar or recorded presentation, should include as many of the following elements as possible:
  • Ask questions of employees as part of the program;
  • Accommodate questions asked by employees, with answers provided in a timely manner;
  • Require feedback from employees about the training and the materials presented.
  1. The training must:
  • Be interactive;
  • Include an explanation of sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights;
  • Include examples of unlawful sexual harassment;
  • Include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to targets of sexual harassment;
  • Include information concerning employees’ rights of redress and all available forums for adjudicating complaints; and
  • Include information addressing conduct by supervisors and additional responsibilities for supervisors.

The tools and resources that were released on October 1 include:

  • Updated website with resources for employers, employees, state contractors and targets of sexual harassment
  • Updated model sexual harassment prevention policy
  • Updated model sexual harassment complaint form
  • Updated model training (script book and PowerPoint presentation)
  • Updated minimum standards for sexual harassment prevention policies and trainings
  • Updated FAQs
  • Toolkits for employers and employees and a sexual harassment prevention policy poster are also being made available.

Sexual Harassment in the Workplace 

Employer Resource Link

Frequently Asked Questions Link

Below are the links for upcoming training’s both in person and online webinars:

Upcoming Compliance Key Trainings

Elmira College: SHRM Certification Exam Prep Course- Fall 2018 & Spring 2019

Upcoming Compliance Online Training

Compliance IQ Webinar

-Matthew W. Burr

11 Changes to New York State Sexual Harassment Laws

Yes, that does read correctly, 11 upcoming changes.  New York State legislators have passed multiple regulations related to sexual harassment in the workplace; training, policies, reporting, etc.  Many of these new regulations and rules are in the wake of the #MeToo movement and the many issues we have seen with sexual harassment in the workplace in a variety of industries, organizations and professions.  As leader’s we cannot tolerate harassment of any kind.  The new law(s) require employers to provide sexual-harassment training to all workers and much more.

The 11 changes to sexual harassment legislation (for now):

  1. October 9, 2018: As of now, and by October 9, 2018, employers in New York State must implement annual sexual-harassment training. The state is developing a model program, which can be used by employers.  Any training implemented must meet or exceed the minimal state requirements.  More to come on this area of change.

Training Requirements:

  1. “An explanation of sexual harassment and specific examples of inappropriate conduct.
  2. Detailed information concerning federal, state and local laws and the remedies available to victims of harassment.
  3. An explanation of employees’ external rights of redress and the available administrative and judicial forums for bringing complaints.”[i]

Sexual-Harassment Prevention Policy

The state is requiring organizations to adopt a sexual-harassment prevention policy and distribute to employees (yes now you must have a handbook of sorts), the expectations of the new requirements could vary from what your organization is currently using.  The state has strict requirements for organizations policies and procedures.  Be aware of expectations and implement accordingly.  The policy is required to include (for now):

  1. “A statement prohibiting sexual harassment and providing examples of what constitutes sexual harassment.
  2. Information about federal and state sexual-harassment laws and the remedies that are available to victims—and a statement that there may be additional local laws on the matter.
  3. A standard complaint form.
  4. Procedures for a timely and confidential investigation of complaints that ensures due process for all parties.
  5. An explanation of employees’ external rights of redress and the available administrative and judicial forums for bringing complaints.
  6. A statement that sexual harassment is a form of employee misconduct and that sanctions will be enforced against those who engage in sexual harassment and against supervisors who knowingly allow such behavior to continue.
  7. A statement that it is unlawful to retaliate against employees who report sexual harassment or who testify or assist in related proceedings.”[ii]

Senate Passes Comprehensive Strengthening of New York’s Sexual Harassment Laws

The Senate Bill

Guidance on Sexual Harassment for All Employers in New York State

These changes are significant across the state.  As leaders, we need to begin planning for training needs throughout the organization and updating policies and procedures.  The training should have a sign in and sign out sheet to ensure employees did attend and stayed to complete the training.  Recording the training to verify all were in attendance was a suggestion I recently heard at a training, but to also show new employees during the new hire orientation process.  Remember this is an annual training.  However, new hires need training as well.  Policies that are modified need to have signatures and witness signatures to verify receipt and understanding.  We are all learning about these changes together.  We need to be proactive and seek guidance, as these laws continue to change and evolve.  New York City has laws above and beyond state requirements (more to be written on this).  Continue to monitor for new updates coming out of Albany.  There are many legal seminars throughout the state on this topic, which will be helpful to organizations of all sizes.  More to be written on these new requirements in upcoming articles!

 

 

– Matthew Burr, HR Consultant

[i] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/new-york-sexual-harassment-training.aspx

[ii] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/new-york-sexual-harassment-training.aspx

5 Definitions for Alternative Dispute Resolution

Alternative dispute resolution (ADR), is an umbrella term used for methods to resolve disputes internal to the organization and outside the court system.  Many organizations use one or all of the ADR techniques, with the techniques continuing to grow in popularity.  Union and nonunion organizations use ADR techniques to resolve disputes, large and small.  Dispute resolution is a necessity for any organization, resolution can impact organizational culture, engagement and turnover rates.  The techniques defined below can be used to resolve disputes outside of the workforce as well, we have mediation services in our communities that assist families, neighbors, etc. resolve disputes through proactive channels of communication.

The 5 Definitions of Alternative Dispute Resolution:

  1. “Arbitration: an ad judicatory process in which a neutral third party imposes a final, binding decision to resolve a dispute.
  2. Mediation: an informal process in which a neutral third party assists opposing parties to reach a voluntary, negotiated, non-binding resolution of a dispute; may be conducted internally or externally.
  3. Ombudsman: a neutral third party who is designated to confidentially investigate and propose settlement of complaints brought by employees; may be an insider or outsider.
  4. Open-door policy: a process in which employees are encouraged to discuss problems with their immediate supervisors or others in the chain of command.
  5. Peer review an internal process in which a panel of employees works together to resolve employment complaints.”[i]

Arbitrators, mediators and ombudsman are trained in dispute resolution techniques.  They know how to fact-find, draft agreements and issues decisions.  An open-door policy is an easy way to resolve disputes.  We listen to the issue (not listen to respond) and address any concerns.  Peer review is another process that can be implemented, this also needs to be managed proactively to ensure it’s legal.   All of the ADR techniques work, the effectiveness will vary by organization.  Select a process that works for your organization and be consistent with dispute resolution.

New York State Paid Family Leave Update:

Recent changes to NYS PFL confirmed that employers do not need to cap the weekly employee payroll deduction for PFL at .126% of the NYS Average Weekly Wage ($1.65 per week in 2018).  Employers can deduct .126% of an employee’s weekly wage until the employee hits the annual cap of $85.56, which is .126% of the annualized weekly wage.  This is a significant change, which better positions employers to collect the full PFL premium from each employee.

Work with your payroll companies and NYS PFL providers to ensure the calculations are accurate and deducted under current legislation.  If you are confused, seek guidance.  Like many laws, we continue to see changes to NYS Paid Family Leave. 

 

– Matthew Burr, HR Consultant

[i] American Arbitration Association, U.S. EEOC & SHRM Magazine

2018 W-4 Form, W-4 Requirements Annually, and changes to NYC Legislation

In late February, the IRS released the updated 2018 Form W-4 and an updated tax withholding calculator.  The calculator provides an opportunity for employees to check their 2018 tax withholding after the passage of the Tax Cuts and Jobs Act, prior to filling out a new Form W-4.

2018 Form W-4

IRS Withholding Calculator

Do employee’s need to complete a new Form W-4 annually:

“Not necessarily. A W-4 form remains in effect until an employee submits a new one except when an employee claims to be exempt from income tax withholding.”

Employers should ensure they have new W-4s for:

  1. New employees. Employers should keep copies of the most current W-4s on hand.
  2. Employees who had a change in withholding events during the year.
  3. Employees claiming exemption from withholding. To continue to be exempt from withholding in the next year, employees must give employers a new W-4 claiming exempt status by Feb. 15 of that year. If an employee doesn’t give you a new Form W-4, employers must withhold tax based on the last valid Form W-4 for the employee that doesn’t claim exemption from withholding or, if one doesn’t exist, as if he or she is single with zero withholding allowances.”[i]

 

IRS Publication 15 provides guidelines for employers to remind employees before December 1 of each year to submit a new W-4 form if the withholding allowances changed or will be changing in the next year; due to added dependents, new tax legislation, etc.  As employers, we need to ensure all of our new hire paperwork is up-to-date.  This recent change should be noted as part of your organizations onboarding/new hire process.

 

NYC Evolving Legislative Changes:

NYC Mandates Temporary Schedule Changes 7/18/18

The new law provides employees with additional rights to demand changes to their schedule.  The law permits employees to demand two temporary schedule changes per calendar year for personal events.  The definition of personal events is broad, which leaves room for interpretation.  There are guidelines and certain exemptions to the new rule.  However, it is broad and will cover many organizations.

NYC Mandates “Cooperative Dialogue” 10/15/2018

This law codifies the organizations obligation to engage in a cooperative dialogue with any employee who may be entitled to reasonable accommodation.  “Specifically, you will need to engage in a good faith written or oral “cooperative dialogue” with the employee addressing:

  1. The employee’s accommodation needs.
  2. Potential accommodations that may address the needs, including alternatives to an employee’s requested accommodation.
  3. The difficulties that such potential accommodations may pose for your business.

After a final determination is made at the conclusion of the “cooperative dialogue,” you must provide the employee requesting the accommodation with a final written determination as to whether or not the accommodation is granted.”[v]

The  legislative changes in New York City will not impact employers in the Southern Tier, unless you have employees in the city.  However, as we have seen in the past, changes in NYC make their way to Albany, which result in statewide sweeping legislative changes, which can and do impact organizations in the Southern Tier.  Continue to watch for legal updates at the federal, state and local level.  If you are confused, seek guidance.  Legislative change is a continuous process and it can be complex.  As society evolves, so do our laws and regulations.  Asking questions, attending trainings, working with consultants and attorneys will provide you with a clearer picture of the evolving legislation.

Interested in learning more from me? Check out the options shared here: 

Upcoming Compliance Key Trainings

Elmira College: SHRM Certification Exam Prep Course- Coming in Spring 2019

Upcoming Corning Community College Training’s

[i] https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/cms_015244.aspx

[ii] https://www.shrm.org/resourcesandtools/hr-topics/compensation/pages/daylight-saving-time-wage-hour-problems.aspx

[iii] https://www.shrm.org/resourcesandtools/hr-topics/compensation/pages/daylight-saving-time-wage-hour-problems.aspx

[iv] Burr Consulting, LLC, “3 Daylight Savings Time Wage & Hour Considerations”, Burrconsultingllc.com, November 6, 2017

[v] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/new-york-city-employers-reasonable-accommodations.aspx

-Matthew W. Burr

5 Considerations on Bereavement and Funeral Leave

Recently we recorded an Upstate HR Podcast episode discussing bereavement and funeral leave policies within organizations and concerns with not enough time or inconsistencies.  In the unfortunate event an employee needs to use leave for bereavement or funeral leave, organizations need to have policies and processes in place that ensure consistency throughout the workforce.  As family relationships have evolved, so to should our policies and procedures.

The 5 considerations on bereavement and funeral leave:

  1. Notification Process: If an employee needs to take time off for leave, who should they notify and what is the process for approving the time? Should the employee contact their supervisor or the human resources department?  Does the supervisor contact a manager or the human resources department?  Email, phone, text message, etc.? More than likely the employee will notify their supervisor, but we need to outline the processes in the policy.
  2. Extended Leave: Will we grant extended leave for an employee who needs additional time to cope with the loss or coordinate family affairs? Can the employee use PTO and/or vacation time?  Remember, there might be legal issues, funeral planning, estate meetings, etc. that an employee must deal with in relation to the loss.  Situations will vary.  If the death happens in the winter, will we allow time off in the spring for the burial? These are areas we don’t usually consider but need to recognize.  Most organizations are lenient with granting additional time off, but we should outline it in the policy.
  3. Paid Bereavement Leave: This will vary by organization. Organizations might grant unlimited leave to cope with a loss.  Other organizations have a set number of days based on the relationship in the family.  Below is a simple draft outline to consider as part of your leave policy:
    1. “Employees are allowed up to four consecutive days off from regularly scheduled duty with regular pay in the event of the death of the employee’s spouse, domestic partner, child, stepchild, parent, stepparent, father-in-law, mother, mother-in-law, son-in-law, daughter-in-law, brother, sister, stepbrother, stepsister, or an adult who stood in loco parentis to the employee during childhood.
    2. Employees are allowed one day off from regular scheduled duty with regular pay in the event of death of the employee’s brother-in-law, sister-in-law, aunt, uncle, grandparent, grandchild or spouse’s grandparent.
    3. Employees are allowed up to four hours of bereavement leave to attend the funeral of a fellow regular employee or retiree of the company, provided such absence from duty will not interfere with normal operations of the company.”[i]

Relationships in families vary, the policy needs to be flexible, but consistent.  Ensure you are providing the needed time off for the workforce.

  1. Providing Documentation: Organizations I have worked for in the past have required notice if an employee does ask for bereavement and funeral leave. We have requested obituary notices; newspaper or website and employees have returned with copies of the funeral documentation.  Unfortunately, I have seen employees abuse leave and lie about their need for bereavement leave.  If you do require documentation, ensure you are doing so consistently.
  2. Pay Policy: “Bereavement pay is calculated based on the base pay rate at the time of absence, and it will not include any special forms of compensation, such as incentives, commissions, bonuses, overtime or shift differentials.”[ii] Policies will vary; this sentence is short and covers the details.

The loss of a loved one is challenging for anyone.  The organizational policies are necessary, but showing compassion and understanding is the most important thing we can do for our workforce.  Remember to offer Employee Assistance (EAP) to any employee that is struggling with the loss, as these services provide additional support for our employees and their families.  Be consistent and flexible with the policies.  Ensure that the policy is reviewed and updated.  As always, remember to seek guidance if you need assistance reviewing and updating all policies.

[i] https://www.shrm.org/resourcesandtools/tools-and-samples/policies/pages/cms_006397.aspx

[ii] https://www.shrm.org/resourcesandtools/tools-and-samples/policies/pages/cms_006397.aspx

-Matthew W. Burr

3 Thoughts on What Should and Should Not Be Included in the Personnel Files

In a March 2015 article written by the Society of Human Resource Management, the article provided guidance on separating employee files for relevancy and confidentiality.  Employee records can be separated into three types of files.  “A general personnel file, a confidential employee file and a common file.”[i]  Organizations should always consider and be aware of sensitive information (date of birth, marital status, Social Security numbers, HIPAA protected information, criminal history, court orders, financial history, etc.), that can be included in any of the three separated files.  Other considerations should include relevancy to the supervisor or management of the workforce.  “Is it related to the employee’s performance, knowledge skills, abilities or behavior?”[ii]  This should also be a determining factor, when separating information and organizing new files.  Does the supervisor or manager need access to all the information?

The Basic Personnel File (supervisor and manager relevant):

  • Recruiting information, resumes, job application and academic transcripts
  • Job descriptions (signed)
  • Job offer, promotion, rates of pay, compensation information, training records
  • Handbook and policy acknowledgements (including revised policies)
  • Recognition
  • Disciplinary information, warnings, coaching and counseling
  • Performance evaluations
  • Termination records, exit interview, closure of the file (goes without writing)

The Confidential Personnel File:

  • EEO records
  • Reference and background checks
  • Drug test results
  • Medical and insurance records
  • Child support and garnishments
  • Legal documents
  • Workers compensation and short-term disability claims
  • Investigation notes
  • Form I-9*

The Common File:

  • Form I-9 Audits
  • Form I-9’s* (my recommendation is to put active employee’s I-9’s in a binder that is accessible, confidential and locked in a cabinet, for auditing and reviews).

Regardless of the filing process(s) your organization has implemented, the information contained in any of the employee files needs to be kept confidential and locked in secure filing cabinets.  During trainings with supervisors and managers, my statement is simple, treat your employee’s information as it is your own confidential information.  The last thing we want is open personnel files on desks, doctor’s notes attached to calendars and unlocked filing cabinets.  When an employee exits the organization, I consolidate all files and information into one folder and store in a terminated employee file section, with the exit interview (if applicable).  “Maintaining records in separate files as discussed above allows managers, employees and outside auditors to see the information they need to make decisions, yet does not allow inappropriate access.”[iii]  Filing and organizing paperwork is not always fun, but it is necessary to ensure legality and confidentiality.  If you are confused on employee files and appropriate storage, seek guidance.  Electronic files and legal requirements related to electronic filing can vary by state, a thorough understanding of these laws is necessary prior to implementing an electronic filing system.  We should be proactive and take all precautions, related to employee records and record retention.

[iv]

[i] https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/includedinpersonnelfile.aspx

[ii] https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/includedinpersonnelfile.aspx

[iii] https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/includedinpersonnelfile.aspx

[iv] http://cyquesthr.com/access-personnel-files-laws-50-states/

9 Statistics on 2017 EEOC Claims

On January 25, 2018 the U.S. Equal Employment Opportunity Commission (EEOC) announced that a decreased number (from 2016) of 84,254 workplace discrimination charges were filed with the federal agency during the fiscal year of 2017.  These charges, lawsuits and settlements, secured $398 million for victims in private sector, state and local government workplaces, costing organizations and tax payers a significant amount of money.  “Retaliation, which topped the list, occurs when employers treat some people less favorably than others…that includes job applicants, employees, and former employees…the 41,097 retaliation charges the EEOC received made up nearly 49 percent of the complaints.”[i]

9 statistics on 2017 EEOC claims:

  1. “Race: 28,528 charges (33.9 percent).
  2. Disability: 26,838 charges (31.9 percent).
  3. Sex: 25,605 charges (30.4 percent).
  4. Age: 18,376 charges (21.8 percent).
  5. National origin: 8,299 charges (9.8 percent).
  6. Religion: 3,436 charges (4.1 percent).
  7. Color: 3,240 charges (3.8 percent).
  8. Equal Pay Act: 996 charges (1.2 percent).
  9. Genetic information: 206 charges (.2 percent).

*The percentages add up to more than 100 because some charges allege multiple bases.”[ii]

The EEOC also received 6,696 sexual harassment charges and obtained $46.3 million in monetary relief for the victims of these claims.  There are two types of sexual harassment claims included; quid pro quo (this for that) and creating a hostile work environment (a variety of issues in the workplace).

Overall, the number of EEOC filings decreased, as compared to 2016 data.  However, retaliation claims are on the rise and have been on the rise for many years.  As leaders, we need to understand that an employee filing a charge with the EEOC or the Department of Human Rights (NYS legislation), is as easy as going to a website and working through the steps, as outlined on the respected site.  The EEOC, in the past, has tweeted steps to submit a claim, through Twitter.  These claims are real, do not assume “this can never happen to our organization.”  It can, and it does happen to organizations of any size, in any location.  A culture of respect and zero-tolerance for discrimination and retaliation, while following up on allegations, will set the tone for reducing the likelihood of claims against our organizations.

The Department of Human Rights has not released statistics for 2017 claims.  Employees can file claims with the EEOC and/or Department of Human Rights, if there are issues in the workplace. Use the link below to learn more about what to do in the case of receiving an EEOC charge of discrimination, and as always, if you are uncertain about your compliance or HR practices, seek the assistance of a consultant and/or legal team for guidance.

What should I do if I receive an EEOC charge of discrimination?

[i] https://www.shrm.org/ResourcesAndTools/hr-topics/behavioral-competencies/global-and-cultural-effectiveness/Pages/EEOC-Retaliation-Makes-Up-Almost-Half-of-Discrimination-Charges.aspx

[ii] https://www.eeoc.gov/eeoc/newsroom/release/1-25-18.cfm

 

4 New Hire Forms Needed in New York State

As we have now entered the second month in 2018, some of our organizations will be hiring new employees for continued operation and some for the upcoming seasonal summer months.  Hiring new employees into the workforce is great, we have a tremendous opportunity to set the new hire up for success with a great onboarding process and introduction to the organization.  With new hires, comes legal paperwork.  State and federal forms get updated and posted on government websites for all of us to use.  As leaders and business owners, we need to ensure our forms are updated and legal.

Below are the new hire forms needed in New York State:

  1. Form I-9, Eligibility to work in the United States: This form is required in every state for new hires and needs to be reviewed for expired ID’s; driver’s license, passport, etc. Organizations must verify that each new employee is legally eligible to work in the United States.  Ensure the form is filled out correctly and signed by the right person in the organization.  This form changed in late 2017.
  2. Form W-4, wage Withholding Allowance Certificate: This form is necessary for federal withholdings. All employees should complete and sign a Form W-4 prior to starting work.  Currently, the 2017 form is still being used.  Watch for any updates or changes in 2018, related to the new tax legislation.
  3. Form IT-2104, Employer Allowance Certificate (NYS): This is the New York State withholding form required to be completed in full prior to an employee starts working for the organization. Ensure you are using the 2018 version of the form.
  4. Wage Forms Required by New York Labor Laws: Organizations are required to provide wage notification forms to all employees. The forms vary by hourly, salary, salaried nonexempt, etc.  The link above provides a definition on which form to use based on the classification of the employee.  Reminder, these forms were updated in 2017 as well.

These are the legally required forms that employees are required to complete prior to starting work (I-9 the first three working days).  Other forms will vary by organization; direct deposit, safety rules and regulations, handbooks and policies, IT and login information, safety and security, vehicle registration, cellphone policy, tour of the facility, labor and employment posters, payroll deductions, payroll processing, etc.  Remember, state forms will vary.  Pennsylvania uses a different withholding form from that used in New York.  Consultants should be providing a signed an updated (revised 11.2017) federal Form W-9.

Develop a checklist for your organization to ensure we consistently cover information for all new hires.  The onboarding process is an important part of the employment relationship and many people will decide during this process how long they will potentially stay with an organization.  As leaders, we need to ensure all employees feel welcome and engaged on day 1, while covering the legalities of the employment relationship.  If you need assistance developing a new hire orientation checklist, seek guidance, the last thing we want is to place a new hire in a conference room and have the individual read policies and sign paperwork alone all day.  I have been part of process like this and it does not work!

2018 OSHA 300-A Posting Timeline

As many of us know; all employers are required to keep OSHA Form 300 (Injury and Illness Log) records throughout the year and must post Form 300A.  This annual summary of job-related illness and injuries, must be posted in the workplace by February 1, 2018.  The OSHA 300-A from should be posted in common areas, comparable to locations of labor and employment posters, workers compensation certification and paid family leave certification (break rooms, meeting rooms, kitchens, etc.).  The summary must include the total number of job-related injuries and illnesses that occurred in 2017.

Areas to remember:

  1. Posting Period: The posting period starts on February 1, 2018 and ends on April 30, 2018.
  2. What is a Form 300A: The form reports a business’s total number of fatalities, missed workdays, job transfers or restrictions, and injuries and illnesses as recorded on the OSHA Form 300.  The information posted should also include the number of employees and the hours they worked for the year.  No recordable illnesses or injuries?    However, an organization must still post the form, with zeroes on the appropriate lines.
  3. Helpful Links:

OSHA Injury and Illness Recordkeeping and Reporting Requirements

Injury & Illness Recordkeeping Forms

OSHA Recordkeeping Advisor

Partially Exempt Industries List

“The Trump administration continues to look for ways to lessen the regulatory burden on employers. As a result, the Occupational Safety and Health Administration’s (OSHA) electronic recordkeeping regulation continues to be whittled down. OSHA’s latest Regulatory Agenda sets out new changes to the already beleaguered rule. Specifically, OSHA intends to propose to amend the Electronic Recordkeeping rule to eliminate the requirement that establishments with 250 or more employees submit OSHA 300 Logs and 301 forms. Instead, two types of establishments would continue to submit 300A summary forms: (1) establishments of 250 or more employees; and (2) establishments with between 20 and 249 employees in the high-hazard industries listed in Appendix A to the regulation. Employers with establishments meeting these criteria electronically submitted OSHA 300A summaries with 2016 data on or before December 31, 2017 and will submit their calendar year 2017 summaries by July 1, 2018. Beginning in 2019, and every year thereafter, covered establishments must submit the information by March 2.”[i]

As we see with many of the HR laws and regulations, OSHA is continuing to evolve and change under the new administration.  Ensure that you are monitoring for recent or upcoming changes and posting as required under the federal and state law.  Public sector rules will vary as well.  If you have questions, seek guidance.  Safety rules and regulations can be complex, just as HR laws and regulations are.

[i] https://ogletree.com/shared-content/content/blog/2018/january/osha-anticipates-more-changes-to-the-electronic-recordkeeping-rule