Trying to comply with the myriad of HR-related laws is tricky enough, but recent developments have opened the door to new legal hazards, says attorney Kevin Troutman. And there’s no grace period—be in compliance now or face time-consuming and costly investigations and litigation.
Troutman, who is a partner in the Houston office of law firm Fisher &Phillips LLP, blogged his threats and traps on Mondaq.com. Originally he posted 10 threats; we’ve chosen the eight most relevant for our readers.
Trap #1. Rigidly following policies that limit leaves of absence
Many employers have policies that allow employees some additional time off after exhausting leave entitlements under the Family and Medical Leave Act (FMLA), Troutman notes. Typically, such policies limit leaves to a specified number of weeks. After FMLA leave ran out, policies state that reinstatement to the same or equivalent position was possible, but not guaranteed.
As the Americans with Disabilities Act (ADA) has evolved, these policies have been successfully challenged. Although counter to the general HR practice of consistent policy enforcement, rigid adherence to a policy limiting leave of absence to a fixed number of weeks almost certainly violates the ADA, says Troutman.
As a result, revise policies to ensure that leave involving an employee who is “disabled” includes some flexibility; specifically an interactive process and individualized analysis of the employee’s circumstances. And be aware that a policy allowing up to six weeks leave after exhaustion of FMLA likely supports a presumption that the additional time is “reasonable,” Troutman says.
In addition, note that to be considered a “reasonable accommodation” under the ADA, additional leave must also provide for reinstatement to the same or equivalent position.
Trap #2. Automatic time deductions for employee meal periods
One fertile area for unpaid wage claims has been missed meal periods, particularly where employers use a timekeeping system that automatically assumes and deducts 30 minutes for a scheduled meal period, Troutman says. (For sure, some employees are going to lose some of that 30 minutes to answering phones, doing critical or rush jobs, etc.)
Trap #3. Overbroad restrictions on employees’ social media activity
The explosive popularity of social media presents questions that did not even exist a few years ago. And the waters are muddy. For example, Troutman says, last year the National Labor Relations Board (NLRB) challenged an employer policy, contending that it illegally restricted workers’ rights to engage in concerted, protected activity.
This complaint was settled, so there remains little firm guidance regarding the social networking aspect of the issue. But it’s clear that employees have the right to comment and confer with each other for the purpose of mutual aid or protection. These rights apply whether or not the workplace is unionized.
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Trap #4. Running afoul of a growing list of “whistleblower” laws
Both federal and state laws provide many whistleblower protections. In many cases, the scope of protected activity is extremely broad, making this a particularly thorny area.
One of the best ways to safeguard against these claims is to, as always, thoroughly and precisely document the reason(s) for disciplinary actions and terminations.
It is also especially helpful to ensure that policies and training materials provide and explain alternative ways for employees to make complaints or report suspected violations of policy, regulations or law. It may be a good idea to provide a hotline for this purpose. Additionally, policies and practices must make clear that the employer will not tolerate retaliation for making such reports, Troutman says.
Trap #5. Overlooking potential Title VII claims by third parties
Following the U.S. Supreme Court’s decision in Thompson v. North American Stainless LP, employers face potential retaliation claims by not only employees who actually engage in “protected activity” (such as making a complaint of unlawful discrimination), but also by employees who have a close relationship with whoever engages in protected activity. In North American, the Court said the fiancé of an employee who filed a discrimination charge could bring her own distinct retaliation claim. Even before this decision, retaliation was the leading category among all EEOC charges filed. That trend now seems certain to continue.
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The decision sounds a warning for employers because, among other things, it does not define precisely what relationship is necessary to assert a retaliation claim. Thus, relatives or even friends of employees who engage in protected activity could bring their own claims if they experience actions such as demotion, discipline or termination. Keep this in mind when you contemplate taking any such actions.
In tomorrow’s Advisor, more traps and threats, plus an introduction to BLR’s award-winning all-HR-in-one website, HR.BLR.com.