Southwest Florida HR Law & Solutions : Southwest Florida Employment and Labor Lawyers & Attorneys for Discrimination Lawsuits and Civil Rights Cases in Fort Myers, Bonita Springs & Sanibel FL

With the mountains of paperwork in the workplace these days, HR professionals often question what should -- and what should not -- be kept in an employee's personnel file.  Should it be every single document that refers to the employee?  Should it only be the "important" documents like applications and disciplinary records?  Or should it be something in between? 

As we all know, personnel files are very important, particularly in a time where employment litigation is booming.  A well-kept personnel file just might hold the employer's so-called "smoking gun," and perhaps the key to the case. 

A recent HR Hero email cited to a 2007 Montana Employment Law Letter article addressing this topic.  Briefly, employers should include documents like applications, offer letters, and employment agreements.  Performance documentation and handbook/policy acknowledgments should always be included (remember that "smoking gun" I mentioned?).  Among those documents that should not be included?  Anything related to employee health information, including information regarding health insurance.  This information should be kept in a separate, confidential medical file.

Though not comprehensive, the article is a good guide for what employers should keep in a personnel file.  Legal counsel can help address concerns regarding specific documents.  When in doubt, the best practice is to include a document about which you are unsure.  Better safe than sorry!

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In an Administrative Interpretation issued yesterday, the Department of Labor clarified the definition of "son and daughter" as it applies to an employee standing "in loco parentis" to a child under the Family and Medical Act for purposes of non-military leave.  The Interpretation was intended to ensure an employee who assumes the role of caring for a child receives parental rights to family leave regardless of the legal or biological relationship.  With the Interpretation, the DOL made clear the FMLA, which allows employees to take leave for the birth or adoption of a child, extends to the various parenting relationships that exist in today's world. 

The definition of "son or daughter" includes a "biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis."  In loco parentis includes those with day-to-day responsibilities to care for and financially support a child.  Employees who have no legal or biological relationship with a child may nonetheless stand in loco parentis, and thus be entitled to FMLA leave. 

The Interpretation clarifies that the regulations do not require an employee who intends to assume the responsibilities of a parent to establish that he or she provides both day-to-day care and financial support.  The Interpretation lists several examples, including an employee who provides day-to-day care but does not financially support his or her unmarried partner's child with whom there is no legal or biological relationship.  It also lists, as an example, an employee who will share equally in the raising of an adopted child with a same-sex partner, but who does not have a legal relationship with the child.

Continue Reading...

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The final rules implementing Executive Order 13496, which was signed by President Obama on January 30, 2009, were recently issued.  Under the new rules, federal contractors and subcontractors are required to inform employees of their rights under the National Labor Relations Act ("NLRA"), the primary federal law that governs relations between unions and private employers.  Importantly, the new posting requirements do not apply to contracts under the Simplified Aquisition Threshold (currently $100,000) or to subcontracts under $10,000.

The notice informs employees of their NLRA rights with regard to organizing and collective bargaining, conduct that is deemed an unfair interference with employee rights, and information on contacting the National Labor Relations Board if an employee believes his or her rights have been violated.  The notice must be posted conspicuously in plants and offices where notices to employees are customarily posted.  If the employer customarily posts notices electronically, the employer must post this notice electronically as well.

The Department of Labor ("DOL") issued a "Fact Sheet" with helpful information, which you can download here.  The DOL also provides the model notices on its website.  The notice must be at least 11x17 inches in size.  Employers who can print on large paper can use this form.  Employers without the capability of printing on large paper must use this form, and tape it together so that it is at least 11x17 inches in size.

Please note that the notice must be posted no later than June 21, 2010.

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 MEMO

From:  Miss Blu* in HR

To:  All Employees

Re:  Birthday Decorations Policy

 

HR has recently learned that some employees are discussing and even <gasp> displaying other employees' ages on birthday decorations in the workplace.  In this day and age of getting sued for everything, the Company simply cannot tolerate the added risk of an age discrimination lawsuit based on such shenanigans.  Therefore, HR has written the following Birthday Decorations Policy:

                                                              Birthday Decorations Policy

Effectively immediately, no one is allowed to discuss their ages with their co-workers -- not even on your birthday.

If you are hosting a little cubical party for one of your co-workers and are tempted to get an "Over the Hill" banner, do not, or you will be found to be in violation of this policy.  And don't even think about buying brightly colored Mylar balloons that say something like "Happy 30th Birthday."

Additionally, numbered birthday candles for the top of a cake for a co-worker's birthday cake will not be tolerated. If numbered candles are found, the perpetrator will be forced to eat the wax candles in front of the HR Director and then send a company-wide email admitting violation of this policy and apologizing to the birthday person.

In fact, come to think of it, wishing someone a happy birthday is too risky as well, as it indicates that person has turned another year older and, by acknowledging the birthday, the company could be blamed for age discrimination. So you are forbidden from wishing any co-worker a happy birthday effective immediately.

HR is committed to keeping this company protected from getting sued for birthday-related age discrimination, so we will be patrolling the halls looking intently for someone who is in violation of this policy, especially on days we know (and, after all,  we are HR and we know everything!) to be someone's birthday.

 *Miss Blu is the nom de plume for a Human Resources professional who lives and works in Southwest Florida.  You can find her complete biography here.

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The Department of Labor recently debuted its Disability Nondiscrimination Law Advisor, an online tool intended to help employers determine which federal disability nondiscrimination laws apply to their organization, and their responsibilities under each law.  Employers answer a series of questions about their business, then the Advisor generates a list of applicable disability nondiscrimination laws.  The Advisor also includes a "Guide to Employing People with Disabilities," which outlines resources available to help employers comply with disability nondiscrimination laws.

While it is important to note that the Advisor does not address all federal disability nondiscrimination laws, it does address many of the major federal laws, including:

• Title I of the Americans with Disabilities Act of 1990 (ADA)
• Title II, Subtitle A, of the Americans with Disabilities Act of 1990 (ADA)
• Section 188 of the Workforce Investment Act of 1998
• Section 504 of the Rehabilitation Act of 1973, as amended (only as it pertains to federal financial assistance)
• Section 503 of the Rehabilitation Act of 1973, as amended
• The Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended

We encourage our clients to use the Advisor as a helpful guide and good starting point for understanding these laws.  The Advisor is not, however, a substitute for legal advice on all federal, state, and/or local disability nondiscrimination laws.  Employers should consult counsel with any specific questions.

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Henderson Franklin's Employment Law Practice Group welcomed a record 280 attendees to its annual HR Law & Solutions Seminar on April 27, 2010.  Attendees learned about the latest case law and legislative updates, the risks and rewards of social media plus tips on crafting a social media policy, and the top 10 ways to protect the bottom line when dealing with workers' compensation claims.  After lunch, Sean Carter had everyone laughing out loud with his hilarious "Cleaning Up the Stress Mess" presentation.

We also recognized our first HR Law & Solutions "Hall of Fame" class.  This very special class includes those attendees who were acknowledged for their tenure and contribution to our seminar.  Congratulations, and thank you to each member.  Pictured from left to right:  Jane Rawson, Peggy Taylor, Susan Merris, Richard Intartaglio, Karen Anderson, Teresa Dudek, Steve Csotty, Charlotte King, and Becky Hayes-Foriest.  Also included but not pictured:  Sabra Smith.

We would like thank everyone who attended this year's HR Law & Solutions Seminar.  Plans for next year are already in the works.  Check back here for an announcement of the date soon.

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As part of the recently enacted Patient Protection and Affordable Care Act ("PPACA"), the Fair Labor Standards Act has been amended to require breaks for nursing mothers.  Effective immediately, employers must now provide "reasonable" breaks for nursing mothers to breastfeed or express breast milk.  The amendment does not define "reasonable," nor does it specify the length or frequency of the required breaks.  The reasonable breaks, which must be provided for up to one year after the child's birth, can be unpaid breaks.

Additionally, employers must also provide a private place, other than a restroom, that is "shielded from view an free from intrusion from coworkers and the public." 

Many states already have laws related to nursing in the workplace.  Florida, however, is not one of them.  While Florida Statute 383.015 allows women to breastfeed in any public or private location, no law in Florida specifically required an employer to offer breaks for nursing mothers.

Expect the Department of Labor to issue guidance on this issue shortly.  Until then, employers must take care to design appropriate break policies to ensure compliance with this new FLSA requirement.

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MEMO

To:   All Employees  

From:   Miss Blu* in HR

Re:  Workplace Policy #101:  Drinking at Company Party

 

As you are aware, the company party is coming up this weekend. HR is concerned that some employees will get snockered at this event. Since some of those in HR plan on getting wasted as well, HR has put into place some guidelines for all employees who choose to consume alcoholic beverages. 

 

You should have someone who is sober drive you home or you should have someone call you a cab if:

• You are taking off articles of clothing (you have had too much to drink)
• You are vomiting at any point in the evening (you have had too much to drink) 
• You are starting to bad mouth the boss and/or company (you definitely have had too much to drink) 
• You are falling down, "tripping" or running into walls or other objects (you are drunk)
• You start hitting on the busboy in front of your date/escort (you are probably intoxicated and should seek alternate ways home, unless the busboy offers to take you home, then your problem is solved)
• You think you sound good when you sing the karaoke version of My Achy Breaky Heart (enough said -- you are wasted)

HR requests that the above guidelines be followed on Saturday. If anyone has any questions, please see HR. Failure to follow these guidelines could result in disciplinary action, up to and including immediate termination.

 

*Miss Blu is the nom de plume for a Human Resources professional who lives and works in Southwest Florida.  You can find her complete biography here.

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The Department of Labor recently issued updated COBRA model notices to assist employers in complying with the recently enacted Temporary Extension Act of 2010 ("TEA").  The DOL website has the following model notices available:

• Model Updated General Notice
• Model Notice of New Election Period
• Model Supplemental Information Notice
• Model Notice of Extended Election Period
• Model Updated Alternative Notice

The website contains helpful information on each model notice so employers can determine which notices to send and each notice must be sent.  Employers should take care to ensure they are sending out the appropriate updated notices as required by the TEA. 

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