HR News You Can Use: July 2017

Legal/Regulatory Updates

 

• OSHA proposed extending the date by which certain employers are required to electronically submit information from their 2016 Form 300A, from July 1, 2017 to December 1, 2017
• DOL Secretary Alexander Acosta submitted a Request for Information to the OMB, to initiate public comment on the overtime rules proposed by the Obama administration. Secretary Acosta mentioned in his confirmation hearings that a salary basis increase is appropriate, but perhaps more appropriate in the low to mid-$30,000 range (as opposed to $47,000+ currently on the table)

 

Confidentiality in Internal Investigations

It is difficult and unpleasant to have to conduct an internal investigation on discrimination, harassment, or most any other employee relations situation. Unfortunately, it is made more difficult when employees – victims or witnesses — are talking about it among themselves. What’s an employer to do, to try to keep the investigation objective and productive? One approach many employers have historically taken is to advise the employee, orally or in writing, usually at the start of an investigatory interview, to not discuss the situation with their co-workers while there’s an ongoing investigation. However, in 2012 the EEOC reversed an administrative law judge decision in the Banner Health System case, determining that advising an employee in that manner limits their rights under Section 7 of the National Labor Relations Act (NLRA), to engage in concerted activity for mutual aid and protection. The NLRB felt that since investigators with Banner Health System routinely asked employees who raised a concern not to discuss the issue with their co-workers, Banner had a ‘generalized concern’ about protecting the integrity of the investigation; not a concern based on the particular situation. Geez…

In today’s world, here are some tips on how to address the NLRB’s concerns when you are conducting an internal investigation and have good reason to think it will be compromised if there is workplace chatter about it:

• Consider documenting the reasons for confidentiality in the particular case, in a memo to the investigation file;
• Continue advising witnesses who are supervisors and executives and are not covered by the NLRA that they should treat everything about the investigation as confidential;
• Consider modifying the direction you give to witnesses that advises them about confidentiality and the reasons for it, but also indicates that the witness is not precluded from discussing the terms and conditions of employment with their co-workers. Saying something along these lines might be appropriate: We want to be able to do a thorough and objective investigation into your concern. Sometimes that gets difficult if the issue has been discussed among coworkers who may not have all the facts. You are certainly free to talk with anyone you’d like about this, but please be aware that it may impact the quality of the investigation; and
• Document the points you discuss with the interviewee including what you said about confidentiality, and also about non-retaliation for participating in an internal investigation.

 

Quizzler Discussed: How did you do??

Below find the answers to the True/False FMLA Quizzler questions posed in the last newsletter…

 

1. You can you ask an employee who has requested FMLA leave to postpone it until your office is less busy.

• TRUE: For example, if the employee is taking FMLA for a non-urgent situation, such as elective surgery.

 

2. An employee must have worked at least 12 consecutive months for the employer, to be eligible for FMLA leave.

• FALSE: The employee must have worked for the employer for 12 months, but they do not have to be consecutive, so long as all 12 months were worked in the past 7 years.

 

3. Which of the following are true statements regarding the 12 month period in which an eligible employee may take 12 weeks of FMLA leave?
   1. The calendar year
   2. Any fixed 12 month period such as the company’s fiscal year, or a year starting on the employee’s anniversary date.
   3. A 12 month period starting the first day that FMLA leave begins

• ALL TRUE: However, make sure that your Employee Handbook, HR Policy Guide or FMLA policy clearly documents how the timeframe will be calculated.

 

4. FMLA leave may run concurrently with workers compensation time off, or with any other approved leave of absence.

• TRUE: If with other approved family or medical leaves of absence.

 

5. If you have questions about whether your employee on an approved FMLA leave really needs to be out of work so long, you may contact the employee’s health care provider for an updated medical statement.

• FALSE: You may not contact the health care provider directly. You may ask the employee to have the health care provider provide periodic updates, and you may provide the employee with their job description to pass on to assure that the health care provider understands the nature of the job’s physical and mental requirements.

 

Caution: Social Media — TMI?

It is tempting to want to peek via social media and see what your employees are up to when they aren’t at work, but beware of TMI! Too Much Information (TMI) is something you probably don’t want to have.

There was a court case in Charlotte in May of this year, in which a former fire department employee, Crystal Eschert, was awarded $1.5 million in a retaliatory discharge lawsuit. Crystal was a good employee, who raised concerns about the safe construction of a new fire building to her supervisors, and then went around her chain of command to raise the issue. At the same time, Crystal posted some comments on Facebook regarding her perception of disparities in how the shooting of a white guy versus the shooting of a black guy are treated. Someone shared the post with Crystal’s supervisors who terminated her saying it was because of the posts, and not because of her recent complaints. The jury disagreed and awarded her the money. It was noted that other employees had made offensive comments on Facebook and were not fired.

Consider this scenario:

Susie is a mediocre employee, very capable but doing as little work as she can get away with, and occasionally ‘stirring the pot’ with co-workers. She is currently on FMLA and receiving short-term disability. She posted on her Facebook page photos of her and her husband at a baseball game in a large city 500 miles from home. She posted what a fun weekend getaway they were having. The following day, an image of the post was left anonymously on the desk of Susie’s manager. Susie did look healthy and like she was having fun….

The manager was not a Facebook ‘friend’, but many of her co-workers were…and they were NOT pleased. The manager was steamed. And, a morale issue was quickly developing among the co-workers who were carrying the load while Susie was out. The manager would probably like to….

• Call Susie and ask her what the heck she’s doing out of town while she’s out on disability, letting her know he will expect to see her at work the following Monday;
• Fire Susie for not resting and recuperating at home, while collecting STD payments; or at least
• Discipline Susie for being inconsiderate of her co-workers, by flaunting her fun time while they were doing her work back at the office.

However, in this day and age, a more appropriate response probably would be to step back and thoughtfully think this through before doing anything. Review the medical documentation Susie’s doctor submitted that led to your approval of FMLA, to see if any noted restrictions were disobeyed by her weekend getaway. If not, make it a point anyway to meet with Susie when she returns to work, and have a cordial and professional discussion about the posting. Let her know that a copy of the post was anonymously left for you, and you were surprised she chose to post what she did under the circumstances. Remind Susie that in the future she may want to think about how her postings could be perceived by those who are her ‘friends’. Do not administer any disciplinary action. If it does look like restrictions were not adhered to, question Susie as to why. Review your STD plan and your leave policies, to see if either one address an employee’s responsibilities while out of work for medical reasons. If not, discuss the situation with your employment attorney to consider disciplinary action, and any recourse for reimbursement of STD payments. In any case, make sure you address this situation consistently with how you have addressed similar situations with others. Be sure you have all the facts, before taking an employment action based solely on a social media post.

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This newsletter is not intended to provide legal guidance to you. We welcome your input on topics you would like to learn more about. We encourage you to contact the author of this newsletter, Caryl Kuchman, SHPR, SHRM-SCP at 803.729.8398 or at [email protected] if you have questions on any information presented.