Ask Rita in HR

Zero Cell Phone Use While Driving Policy

Pamela Fyfe — Tue, 19 Aug 2008 17:01:00 -0700

Your employer should enact a "Zero Cell Phone Use While Driving" policy. Such a policy should consider the following elements:

1. Require that employees pull over at the next available safe stop to return a work call.

2. Never initiate a call while the car is moving.

3. Never look up a number or dial information while driving.

4. Ban text messaging while driving.

Such a policy should state that any employee who, on work time, talks on a cell phone while driving will be subject to discipline, regardless of whether the employee has an accident.

If you employer feels that it must maintain instant connectivity with its employees, it could provide all employees with a "hands-free" cell phone device to facilitate safe driving. But the hands-free solution may only slightly diminish the risk of an accident while driving, since focusing on the conversation, especially a stressful one, diverts attention away from driving onto the subject at hand. So if hands-free phones are furnished, in addition to items 2, 3, and 4, the policy should consider:

5. Never use the cell phone in bad weather or heavy traffic.

6. Always keep your eyes on the road, and drop the call if you need to focus on your driving.

A Family and Medical Leave Act Checklist

Pamela Fyfe — Fri, 15 Aug 2008 11:51:30 -0700

Use this quick Checklist as a way of making sure you've remembered all the key points:

1. The employer is responsible for designating an employee's leave as qualifying under the Family Medical Leave Act (FMLA).

2. An employee giving notice of the need for FMLA leave must explain the reasons for the leave to allow the employer to determine that the leave qualifies under the Act.

3. Where the employer is not able to confirm that the leave qualifies under FMLA, or has requested medical certification of a serious medical condition, the employer may make a preliminary designation, and so notify the employee. The employer's request for medical certification must be in writing and state the consequences if it is not received within 15 days from the request.

4. For intermittent leave, the doctor’s certification must specify that there is medical necessity for intermittent leave.

5. The employer must give only one notice of the designation to the employee, unless the circumstances regarding the leave have changed.

6. The notice may be oral or in writing. If the notice is oral, it must be confirmed in writing no later than the following payday which is more than one week after the oral notice.

7. The written notice may be in any form, including a notation on the employee's pay stub.

Can an Employee Come and Go Using Family or Medical Leave?

Pamela Fyfe — Fri, 15 Aug 2008 11:47:42 -0700

Dear Rita,
One of our exempt employees -- a children’s therapist -- is keeping me up nights by taking unscheduled and intermittent leave under the Family Medical Leave Act (FMLA). We've been able to plan schedules when other employees have requested either a 3-month leave or regularly scheduled intermittent leave, but this employee has rheumatoid arthritis and she never knows until she wakes up if she will be able to come to work on any particular day. We can’t count on her to keep appointments with our clients. We know that leave under the FMLA is protected, but there must be something we can do without these continuous disruptions to our services. Help!
-- Sleepless

Dear Sleepless,

The administration of intermittent leave can create a headache for the employer. You do have some options and some tools that can help you manage this situation in a way that works better for you and for your ailing employee.

Would a Transfer Help?

First, it's possible that you can transfer her to different duties until she is well enough to work regularly. Employees who need intermittent FMLA leave must attempt to schedule their leave so as not to disrupt the employer's operations. Thus, you may temporarily transfer her to a position in which her unscheduled absences are less troublesome for your nonprofit. The alternate position must have equivalent pay and benefits, but not necessarily equivalent duties.

You must be careful, though, because you may not transfer the employee to an alternate position in order to discourage the employee from taking additional leave. For example, she could not be assigned to perform laborer's work; work a graveyard shift, or to travel to a remote site.

If you do find another position for this employee, she has the right to be placed back in the same or equivalent job as the original job (after she has exhausted her FMLA leave).

You could also reduce her hours, which would allow her to recover in the mornings. You would have to pay her the same equivalent hourly rate as her full-time job and she would enjoy the same benefits, even if you do not offer those benefits to other part-time employees. Of course, group health plan benefits must be maintained on the same basis as if she had been continuously employed during the FMLA leave period. However, you may proportionately reduce benefits such as vacation leave which are based on number of hours worked.

Certification and Re-certification for Intermittent Leave

But before proposing these options, you can require medical certification that the employee has a serious medical condition which requires intermittent leave; create a comprehensive certification form and require recertification every 30 days. Attach a letter to the certification request, including the employee's attendance record, and ask the doctor whether her arthritis is incapacitating enough to warrant the hours she has been absent. If there is reasonable doubt about the validity of the certification, you can, on your dime, require a second opinion. If the two medical opinions conflict, you and the employee can agree on a third doctor to provide the definitive opinion.

FMLA certification for intermittent leave should include:

Whether the employee has a serious medical condition
Date the condition started
Anticipated duration of the condition/treatment
Medical necessity/reason for intermittent leave
Type and duration of intermittent leave required

An employee is entitled to 12 weeks of unpaid medical leave. Did you know that, for purposes of determining the amount of consecutive leave taken, when a holiday occurs during the week, the entire week is counted as a week of FMLA leave, unless you close down for the entire week?

Intermittent leave can be taken in the smallest increment that your nonprofit uses to track time. For example, if your payroll system tracks time off in 10-minute increments, you can designate FMLA time in 10-minute increments. You cannot, however, use a time increment greater than one hour. The FMLA time is time “off the work clock.” An employee may not be required to take more FMLA leave than necessary. However, you may require the employee to use accrued sick/vacation/personal time off (PTO) benefits unless and until the employee is eligible for some type of disability benefit. For example, in California an employee who is on FMLA leave and who is absent more than eight consecutive days may be eligible for paid family leave or short-term state disability benefits.

Once the employee becomes eligible for a disability benefit, the employee may elect to use sick/vacation/PTO, but may not be required to do so. Herein lies another tool. You can require your employee to use accrued leave for the intermittent FMLA leave, unless and until she is eligible for wage replacement through any disability benefit.

You may also make deductions from this exempt employee's wages for the intermittent FMLA leave that is not covered by her taking paid leave without compromising her exempt status, even if her salary falls below the threshold exempt-salary requirement.

To help you administer FMLA correctly, be sure to follow the steps on our checklist for designation of FMLA leave.

Ask Rita: Facing an Immigration Quandary

Ellen Aldridge — Tue, 15 Jul 2008 15:00:00 -0700

Dear Rita: Our organization recently got letters from the Social Security Administration (SSA) informing us that two of our employees’ social security numbers do not match with the social security database. We want to keep these employees; what should we do and what are the risks? - Baffled Boss

Dear Baffled:

Immigration law enforcement is not only a hot political issue; employers of all kinds are also feeling the heat. An employer that does not comply with the Immigration Reform and Control Act (IRCA) by verifying that an individual is eligible to work in the U.S. can be subject to fines of $110 to $1,100 per employee and criminal sanctions in egregious situations. Just because you've received this letter doesn't mean you need to terminate these employees to comply with the law. But it's a little complicated.

The U.S. Immigration and Customs Enforcement (ICE), the investigative arm of the Department of Homeland Security (DHS), s responsible for enforcing these laws. ICE carries out workplace raids and records audits to ensure compliance with IRCA. But look at the latest case to hit the news: in June, Aramark, a Los Angeles employer, terminated 33 janitors when their social security numbers did not match the government’s database. So you would think the employer was following the law. Not so. A federal appeals court ordered Aramark to reinstate the 33 janitors with back pay, finding that the “no-match” letters were not proof of ineligibility to work in the U.S., and that the three days the employer gave the employees to correct the problem before firing them was unreasonable.

So what is an employer to do when you have multiple objectives: complying with the law to safeguard your organization, keeping valued employees, and being fair?

DHS issued regulations in August 2007 to provide what it calls “safe harbor” procedures for employers who receive “no-match” letters, meaning that if you follow these procedures, your organization is protected. However, a federal court blocked the enforcement of these safe harbor procedures in October of 2007. While this issue is still unresolved by the courts (writing in June of 2008), the regulations provide some guidance and it would be good practice to follow them until this area of the law is resolved.

The “safe harbor” regulations direct employers to respond to a no-match letter as follows:

Within 30 days after receipt of a letter, the employer must check its records to ensure that the mismatch was not the result of an employer error.

If this does not resolve the problem, the employer must request the employee to confirm the accuracy of the information the employee provided to the employer.

The employer should then ask the employee to resolve the issue with the SSA within 90 days and provide new documentation.

If these steps lead to resolution of the problem, the employer should contact the SSA and should retain a record of the time and date of verification. The SSA Verification Service can be contacted at www.socialsecurity.gov/employer/ssnv.htm.

If none of the above resolves the matter within 90 days after receipt of the no-match letter the employer should consider termination of the employee. Before terminating an employee, however, due to the fluctuating law, consultation with legal counsel is recommended.

That said, according to the ICE website (www.ice.gov/pi/news/factsheets/worksite.htm) in 2007 there were 4,077 administrative arrests and 863 criminal arrests nationwide for employment immigration violations. Given the vast number of employers nationwide, and the scope of this problem, the odds that a nonprofit will get audited for IRCA compliance absent a direct complaint are slim. Follow the Three-Step Immigration Compliance Checklist for Employers to avoid problems in the future.

Three-Step Immigration (I.R.C.A.) Compliance Checklist for Employers

The best protection for employers seeking to comply with the law is to
keep accurate paperwork demonstrating your good faith efforts to comply
with these complex and confusing immigration laws.

Three steps that will help:

1. Keep complete Form I-9s for all employees hired after November 6, 1986, in one main file, with copies of the documents that the employees provided to verify their
eligibility to work. Starting December 26, 2007, employers were required use a newly revised Form I-9. The latest version of Form I-9 and a listing of the documentation required as proof of eligibility to work in the U.S. may be obtained at www.uscis.gov. You can find the revision date of the Form I-9 you have on the lower right corner of the form; the latest version has a revision date of 06/16/08.

2. Consider using the E-Verify system to check the validity of the information provided by your employees. E-Verify is an online social security number/visa confirmation system
that is offered by the Social Security Administration (SSA) and the Department of Homeland Security. Be advised, though, that E-Verify has both risks and benefits. Use of E-Verify provides a defense against an Immigration and Customs Enforcement accusation that the employer had "constructive knowledge" of an employee's false documentation. However, it could also be used to prove that an employer notified by E-Verify that the employee's documention is questionable knowingly violated the law unless the employer takes action to get accurate documentation or terminate the employee. While E-Verify is mandatory for government
contractors and for employers in some states, it still is voluntary for all other employers. Sign up at www.dhs.gov/xprevprot/programs/gc_1185221678150.shtm.

3. In the event that your organization receives a no-match letter or a notice of suspect documents from the SSA, follow the safe harbor procedures outlined in this article.

Three-Step Immigration (IRCA) Compliance for Employers

Ellen Aldridge — Mon, 14 Jul 2008 18:00:00 -0700

The best protection for employers seeking to comply with the law is to keep accurate paperwork demonstrating your good faith efforts to comply with these complex and confusing immigration laws.

Three steps that will help:

1. Keep complete Form I-9s for all employees hired after November 6, 1986, in one main file, with copies of the documents that the employees provided to verify their eligibility to work. Starting December 26, 2007, employers were required use a newly revised Form I-9. The latest version of Form I-9 and a listing of the documentation required as proof of eligibility to work in the U.S. may be obtained at www.uscis.gov. You can find the revision date of the Form I-9 you have on the lower right corner of the form; the latest version has a revision date of 06/16/08.

2. Consider using the E-Verify system to check the validity of the information provided by your employees. E-Verify is an online social security number/visa confirmation system that is offered by the Social Security Administration (SSA) and the Department of Homeland Security. Be advised, though, that E-Verify has both risks and benefits. Use of E-Verify provides a defense against an Immigration and Customs Enforcement accusation that the employer had "constructive knowledge" of an employee's false documentation. However, it could also be used to prove that an employer notified by E-Verify that the employee's documention is questionable knowingly violated the law unless the employer takes action to get accurate documentation or terminate the employee. While E-Verify is mandatory for government contractors and for employers in some states, it still is voluntary for all other employers. Sign up at www.dhs.gov/xprevprot/programs/gc_1185221678150.shtm.

3. In the event that your organization receives a no-match letter or a notice of suspect documents from the SSA, follow the safe harbor procedures outlined in this article.

Overtime Pay for Nonprofit Preschool Teacher?

Pamela Fyfe — Sun, 15 Jun 2008 05:00:19 -0700

Dear Rita:

I’m a daycare worker for a nonprofit agency. My employer pays me a salary and refuses to pay overtime when I work more than 40 hours a week. The executive director says I’m not entitled to overtime pay because I am a "salaried teacher." I think the real issue is whether I am an exempt employee. I don’t supervise other employees and I don’t have a college degree or a license. What advice can you give me? -- Underpaid and Overworked

Dear Underpaid,

Your instincts are right on this one. From the facts you have given me you do not qualify as an exempt employee.

Some employers think that paying an employee a salary or designating an employee a "teacher" exempts that employee from the overtime rules. This is simply not the case.

Keep track of all overtime hours worked. If your employer refuses to pay overtime, you can contact your state Department of Labor for help. It is in your employer's best interest to properly classify you as nonexempt.

There are two tests that an employee must pass in order to achieve exempt status. The first is the threshold salary test. The Fair Standards Labor Act (FSLA) requires an exempt
employee to make at least $455 per week ($1971 per month). Your state may have a higher threshold. For example, in California, the threshold salary is twice the state minimum wage of $8 per hour, or $2773 per month. An employee who does not make the higher of the federal or state threshold wage is automatically paid overtime for all hours worked.

You must also pass one of the duties tests. The law exempts people who meet
certain qualifications in their duties as a professional, executive or administrator. Since you are a nursery school teacher and do not supervise other employees, I will focus on the professional duties test. In most states, licensed teachers who teach in a qualified educational institution are considered exempt employees, not subject to overtime pay. The key word here is licensed. Under the professional test, an employee must:

1. perform work requiring advanced knowledge

2. in a field of science or learning and

3. acquired by a prolonged course of specialized intellectual instruction.

A licensed teacher who teaches kindergarten or nursery school, disabled children or skilled and semi-skilled trades, meets the duties test of the professional exemption. You do not qualify for the professional exemption because you do not have a teaching credential
and are not licensed.

Show the head of your school this article and let her know that you should be paid overtime wages.

Don't Drive, Chew Gum and Use the Phone at the Same Time

Pamela Fyfe and Ellen Aldridge — Wed, 14 May 2008 17:01:00 -0700

Dear Rita:

As a social worker for a nonprofit, I am required to carry a cell phone with me. Sometimes my supervisor calls me when I am driving. If I don't answer the call, she might think I'm shopping instead of working. However, I am concerned about whether I can be a safe driver while talking on the cellphone. Can I refuse to answer calls while driving without being reprimanded? -- Not Chatty Cathy

Dear Not Chatty Cathy:

You should let your supervisor know that you cannot safely drive while talking on your handheld cell phone. If she gives you some push back, you should tell her that if you have an accident while talking on your cell phone, the employer can be held liable for any injuries that occur. You can tell her about a tragic accident in Virginia in which an employee attorney who was driving while discussing work issues on her cell phone accidentally ran over a young woman in a crosswalk. The woman died and her parents sued the employee personally for $2 million and her employer for $30 million. Since the case settled, no on knows how much was paid out, but it certainly could be enough to bankrupt a nonprofit. The Virginia case is not an isolated incident. In New York, an injured pedestrian sued an employee who ran a red light while making a work call. This case was settled for about $500,000, still a chunk of change for a nonprofit. Tell your employer about the risk your group takes when employees make work calls while driving and ask if your employer has a cell phone policy (we recommend a Zero Cell Phone Use While Driving policy).

Federal law does not prohibit talking on a cell phone while driving. However, some states have enacted laws that prohibit driving while using a handheld phone and require the use of a hands-free phone set if talking while driving. These states include California, Connecticut, the District of Columbia, New Jersey, New York and Washington. Other states have restricted the use of handheld cell phones by bus, van and other types of drivers.

Even cities and counties have passed local restrictions on the use of handheld sets while driving. The jury is still out in many states that are collecting data on the correlation between handheld cell phones and accidents in preparation for legislative action. Check your state law and local ordinances. Even if your state does not regulate "talking while driving", let your employer know that this is a workplace safety issue which puts the employer at risk.

A Blogging Policy for the Nonprofit Workplace

Pamela Fyfe & Ellen Aldridge — Tue, 15 Apr 2008 15:12:21 -0700

Employee blogging, like the use of the internet itself, is only likely to grow. Many employers are taking proactive steps to protect themselves from harmful or embarrassing blogs by adopting an agency blogging policy. The blogging policies of many large technology policies can be found on the internet and you could modify those policies based on the culture and needs of your agency. Such a policy, at a minimum, should contain the following provisions:

Clarification of whether blogging may be done on agency time or with the use of agency computers.
Bloggers must comply with all of the agency’s policies and agreements, including any on ethics, code of conduct, confidentiality and discrimination/harassment.
Bloggers are personally and legally responsible for the contents of their blogs. Blogs are individual, not agency communications, and employees must not represent or imply that they are expressing the opinion of the agency.
Never disclose any confidential or proprietary information concerning the agency or its customers or clients.
Act professional towards yourself, your coworkers and your agency. Do not put anything on your blog that will embarrass, insult, demean or damage the reputation of the agency, its services, customers or clients, or any of its employees.

What Should We Do About an Employee's Outrageous Blog?

Pamela Fyfe & Ellen Aldridge — Tue, 15 Apr 2008 14:55:13 -0700

Dear Rita,

An employee googled our nonprofit's name and came across a coworker's blog. The blog contains some outrageous material, including some unflattering comments about working at our organization. What can our nonprofit do?
-- Blog-Burned

Dear Blog-Burned:

It seems like just 10 years ago most workplace gossip was confined to clandestine meetings in the break room. Once uttered, it vanished like the last donut. Not so today. Now the blogosphere captures those rants and raves for all to read in perpetuity.

The best way to deal with a problem like this is to prevent or discourage it by establishing a blogging policy for all employees.The second best course of action may be to ignore the blog. But if there is some detriment to your agency, ask the employee to remove the offending material -- after confirming the blog is not legally protected speech. If the content is discriminatory or harassing, treat the blog as workplace conduct and initiate appropriate remedial action. A New Jersey court held that Continental Airlines had a duty to stop the harassment of a female pilot contained on a coworker's personal blog. Lastly, determine if any discipline is appropriate given the content of the speech and the employee's response to your request to take the content off the blog.

To evaluate what can be done to stop the unflattering blogging you must consider the content of the speech and the law of your state.

Employee blogging could be deemed protected speech under the National Labor Relations Act (NLRA) or whistleblower laws. The NLRA allows employees to discuss the terms and conditions of employment with the purpose of engaging in collective action to change them. Whistleblower laws in some states protect employees from retaliation if they report illegal or unethical behavior to government officials or agency management.

Additionally, some states have laws prohibiting an employer from disciplining an employee for participating in "legal recreational activities outside of work hours" unless that activity creates "a material conflict of interest related to the employer's business interest." While many of these state laws have yet to be used to protect the right to blog, they could be applied here. To determine what law is applicable in your state look to your local chamber of commerce or nonprofit association for state employment laws concerning "privacy" or "off duty conduct."

Can We Require An Employee To Take Her Meds?

Mon, 14 Apr 2008 21:45:02 -0700

Dear Rita,

Our nonprofit provides services to people with mental disabilities. As part of our mission, we employ former clients. Can we require an employee/former client to take her psychiatric medications as a condition of continued employment? --Worried and Wondering

Dear Worried and Wondering,

No, you can't require that. Once a client becomes an employee, your agency must take off its social service provider hat and wear only its employer hat. Your focus must be on employee performance rather than client health and well being. The tool you can use to ensure satisfactory performance is effective supervision.

Whether or not your agency is covered by the Americans with Disabilities Act (ADA, which covers places with 15 or more employees) or similar state laws, I recommend using the "interactive process" as a supervisory tool to address any concerns you have with this employee's ability to perform. The ADA requires covered employers to engage in this interactive process - in-person meetings and ongoing dialogue - with disabled employees to determine if any reasonable accommodations are necessary for the employee to do the essential functions of the job.

If you observed performance or behavior problems, you could use the interactive process to ask the employee for medical certification of any disability, including identification of any limitations she has that may need accommodation in the workplace.

Remember, it is inappropriate to use any of the medical information you had about the employee from her client records because privacy rules mandate confidentiality of clients' mental health treatment records!

If the employee was not forthcoming with medical certification of her disability, the agency could send her for a fitness-for-duty exam to obtain a current opinion about the employee's disability status and work limitations.

Once the interactive process is done, if performance is still deficient or there is a potential health and safety issue, counseling, disciplining or discharging her can be considered if she can't perform the essential functions of her position after implementation of any reasonable accommodations.

(More information on the interactive process and reasonable accommodations can be obtained from the EEOC at http://www.eeoc.gov/policy/docs/accommodation_procedures_eeoc.html)