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

7 Reasons to Implement Stay Interviews in Your Organization

What is a stay interview?  “A stay interview is a structured discussion a leader conducts with an individual employee to learn specific actions the leader can take strengthen the employee’s engagement and retention with the organization.”[i]  What is the value of the stay interview?  The organization hears directly from the employee in a one-on-one discussion (not related to performance), with any issues, concerns and opportunities leadership improvement.  This provides us as leaders the opportunity to engage, communicate and retain the workforce.  The stay interviews should be conducted by the leader of the organization, with HR’s support.  I have used effectively used stay interviews.

Below are the thoughts on implementing stay interviews:

  1. Start at the Top: The leader at the top of the organization should set the tone for the organization and conduct stay interviews with their direct reports.  The process should cascade down throughout the rest of the organization to front-line supervisors and employees.  Employees at every level should take part in a stay interview, to ensure an effective and successful process.
  1. In Person: Stay interviews should not be conducted over the phone or via a video conferencing system, if possible. Remote workers should have the opportunity to sit one-on-one with their supervisor and have a discussion.
  1. Expectations of the Stay Interview: Ensure the employee understands the reason for the stay interview and how these interviews will focus on area’s that the manager can influence.  Not all of us can change company policy, mission statements and strategic goals.  However, if a trend in these interviews is consistent, we might have more say in strategic objectives.
  1. Schedule Time: “Most stay interviews take 20 minutes or less to conduct, but some will carry on longer. Leaders should consider telling employees to allow 20 minutes for their meeting, but even then, leaders should allow thirty minutes on their calendars.”[ii] Treat the employee as you want to be treated during the stay interview.
  1. Leave Performance Out of It: There is a time and place to discuss performance expectations. Stay interviews should remain focused on engagement, retention feedback, communication and concerns.  Scripted open ended questions are necessary.
  1. No Advanced Questions: This can limit the conversation to a list of memorized demands and responses. Open ended discussion with note taking, listening and probing for additional information will add tremendous value to the stay interview.
  1. Opening Script: The pre-drafted script is a great way to open the meeting. This will provide additional information to the employee on what the process will look like and the direction of the interview.  The messages will be consistent throughout the organization.

The Why of Stay Interviews:

  • “Employees hear directly from their supervisor that they care and want them to stay and grow with the company.
  • Supervisors further accept retention and engagement within their sphere of responsibility.
  • Employees are more likely to accept responsibility for staying.
  • Stay interviews build trust.”[iii]

Stay Interview Draft Template:

To open the stay interview, a manager may use the following (or similar) statements:

  • I would like to talk with you about the reasons you stay with ____, so I understand what I might be able to do to make this a great place to work.
  • I’d like to have an informal talk with you to find out how the job is going, how the job will change, so I can do my best to support you as your manager, particularly with issues within my control.
  • I will be taking notes throughout our discussion and might ask you to repeat yourself if I do not capture everything.
  • Do you have any questions before we get started?

Review Job Description and Changing Expectations

  • These are the current changes to the job description
  • These will be the changes to the position and current expectations/accountabilities
  • Discuss the reporting structure
  • Communication expectations
  • System reporting expectations
  • Do you have any questions or concerns?

Questions

The following are questions you may ask during a stay interview. You should have several open-ended questions on hand. It’s important to listen and gather ideas from the employee about how you and your organization can retain him or her.

  • Tell me specifically, what factors cause you to enjoy your current job and work situation (including people, job, rewards, job content, coworkers, management etc.), and as a result, they contribute to your staying at our firm as long as you have?
  • What gets your excited to come to work here every day?
  • What do you look forward to when you come to work each day?
  • What do you like most or least about working here?
  • What keeps you working here?
  • If you could change something about your job, what would that be?
  • What would make your job more satisfying?
  • How do you like to be recognized?
  • What talents are not being used in your current role?
  • What would you like to learn here?
  • What motivates (or demotivates) you?
  • What can I do to best support you?
  • What can I do more of or less of as your manager?
  • What can we be doing differently as a management team?  Communication, meetings, etc.
  •  If you “managed yourself,” what would you do differently (in relation to managing “you”), that I, as your current manager, don’t currently do?
  • What might tempt you to leave?

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/hr-topics/employee-relations/pages/stay-interview-how-to-core-features-and-advantages.aspx

[ii] https://www.shrm.org/resourcesandtools/hr-topics/employee-relations/pages/stay-interview-how-to-core-features-and-advantages.aspx

[iii] https://www.shrm.org/resourcesandtools/hr-topics/employee-relations/pages/stay-interview-how-to-core-features-and-advantages.aspx

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

5 Considerations When Giving a Reference

As we all know, when an employee leaves an organization, it isn’t always on a positive note.  Through a resignation or termination, the employment relationship ends, positive or negative, good or bad.  As previous employer’s we are conflicted on what information to provide about the current or former employee during the reference or background checking processes.  Should we tell the new organization the employee was terminated or a poor performer?  Should we tell the new organization that the employee caused conflict and drama or didn’t show up for work on time, missed days, quality issues, etc.?  What if there was a workplace violence issue?  The standard answer for most organizations is; date hired, last position held and last day worked.  What if the new organization questions you, the old employer if the person is eligible for rehire or if you would hire them again?  What do we do then?  In many situations, these are not easy questions to answer.

The five considerations when giving an employment reference:

  1. Applicable state legislation: Many states now have legislation that gives employers “qualified immunity” when we as former employers are providing reference information. “That means you’re protected from civil liability if you’re responding in good faith-in other words, without knowingly providing false or misleading information or acting with malicious intent.”[i]  What does that mean for us in New York State?  “Currently (2005 article), New York employers have a qualified privilege defense available to them when they provide information regarding an employee or former employee’s character…New York has not adopted a reference check immunity law…reference check immunity laws do not protect employers against claims that negative job references were given in retaliation for protected activity under discrimination laws.”[ii]  As of 2005, there were thirty states that had adopted reference check immunity laws, which vary widely throughout the country.  If you have former employees moving to another state, know the state laws prior to providing reference checks or additional information about the employment relationship.

 

  1. Control the Information: The Society of Human Resource Management recommends that we as employer’s limit who can and cannot give references and what information can be provided. It should be the responsibility of the HR professional, manager, general manager, office manager, business owner, etc.  Someone designated with authority that can speak to the employment relationship.  This will ensure consistency in the process throughout the organization.

 

  1. Consistency in the Process: Reference requests should follow the same process for all current or previous employee’s.  “All disclosures should be made only in writing and only upon written request from the prospective employer and with written permission from the employee.”[iii]  Companies are now outsourcing the reference check processes, which ensures consistency.  However, this provides limited information for the future employer.

 

  1. Relevant Facts: Do not give opinions about the employee’s suitability for a prospective job or new position. Even if the employee was an underperformer at your organization, they could be a great fit for the new position.  Use only documented evidence on job performance, when sharing with the prospective employer.  Less said, better defended!

 

  1. Employee Permission: It is recommended that all job candidates complete an application form that includes a release for employers from which they have added as a reference. This form should be consistent across the organization, to ensure equity and avoid discrimination charges.  I recommend obtaining this prior to releasing any information about the current or former employee.

 

As leaders, we need to ensure we are consistent when providing references for all our employee’s; past, current and future workforce.  Updating policies, procedures and processes will provide the foundation on which we can build a consistent process for reference checking and verification.  Documenting work performance and accurate performance reviews will help in providing accurate and relevant work-related information.  Remember that state laws will vary on qualified immunity legislation and these laws like most other’s will continue to evolve through court decisions and the legislative process.  Seek guidance if you are confused or need assistance developing or revising a process.  Be consistent, equitable, stick to the facts and control the information your organization provides during a reference check.

-Matthew W. Burr

[i] https://www.shrm.org/hr-today/news/hr-magazine/0418/Pages/when-giving-references-how-truthful-can-you-be.aspx

[ii] https://nys.shrm.org/sites/nys.shrm.org/files/ReferenceChecking.pdf

[iii] https://www.shrm.org/hr-today/news/hr-magazine/0418/Pages/when-giving-references-how-truthful-can-you-be.aspx

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

Are You Due for a Sabbatical?

Introduction Contributed by Kara Whittaker, Ghergich & Co. https://ghergich.com/   Kara@Ghergich.com

There’s a crisis in the American workplace, but it’s probably not what you think it is. We’re not taking our vacation time, and it’s leading to all sorts of unproductive, cranky, stressed-out employees. And that, we all know, isn’t good for business.
Employees not taking vacation time is not a small problem, either. In fact, the trend keeps going up—we keep taking less and less of what we’re owed—to the tune of over 660 million days left on the table, every year. If you’re one of those employees that keeps ignoring your vacation (or even if you’re not), then you might want to consider a radical approach to hitting that reset button: a sabbatical.
Many people are familiar with a sabbatical in the academic world; it’s a chance for academics to pursue a rigorous research idea and do so without having to teach class. But the same notion can be used in the workplace, even if it’s just for a few weeks or months. Here’s what to know about it – https://www.discover.com/personal-loans/resources/major-expenses/sabbatical/

you_may_be_due_for_a_sabbatical_and_not_even_know_it

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/