Manchester Area Human Resources Association
Download
1 / 164

Mythbusters Legal Updates - PowerPoint PPT Presentation


  • 297 Views
  • Uploaded on

Manchester Area Human Resources Association. January 6, 2009. Annual Legal (Employment Law) Update. with Attorney Jim Reidy Sheehan Phinney Bass + Green. P.A. This is an annual update. This is where we review new laws and regulations, and interesting court cases from the last year.

loader
I am the owner, or an agent authorized to act on behalf of the owner, of the copyrighted work described.
capcha
Download Presentation

PowerPoint Slideshow about 'Mythbusters Legal Updates' - Angelica


An Image/Link below is provided (as is) to download presentation

Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author.While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server.


- - - - - - - - - - - - - - - - - - - - - - - - - - E N D - - - - - - - - - - - - - - - - - - - - - - - - - -
Presentation Transcript


Slide3 l.jpg

with

Attorney Jim Reidy

Sheehan Phinney Bass + Green. P.A.



Slide5 l.jpg

This is where we review new laws and regulations, and interesting court cases from the last year.







Slide11 l.jpg

Wow! Lots out there. Ever get a little foggy about what workplace laws require and that the courts have said?


Slide12 l.jpg

There is a great deal of mis-information out there. workplace laws require and that the courts have said?


Slide13 l.jpg

Said another way, there are HR truths and HR myths. You know, the stuff we’ve heard for years about workplace laws or rights, but we’re not sure it’s true or accurate.


Slide14 l.jpg

And we have all dealt with those employees who say things like….

“Hey, you can’t do that! It’s against the law.”





Slide18 l.jpg

  • “Who wants to avoid a million dollar lawsuit.” programs like…

  • “HR Hollywood Snares.”

  • “HR in Jeopardy.”

  • “HR Family Feud.”

  • “Let’s take an Appeal.”

  • “HR Trivial Dispute”

  • “Law in Order”

  • “Employment Dispute: Deal or No Deal”

  • and last year’s program…

  • …“Are you Smarter than the Investigator?”


Slide19 l.jpg

See a common theme? programs like…


Slide20 l.jpg

Right, we parody game shows and reality series to help educate our audience about trends and requirements in workplace laws.


Slide21 l.jpg

This year is no different. educate our audience about trends and requirements in workplace laws.

To dispel common HR myths and provide you with clarity and information to bring back to your workplace…


Slide22 l.jpg

We took on the popular TV show educate our audience about trends and requirements in workplace laws.(from the Discovery Channel)

Mythbusters


Slide23 l.jpg

You know the T.V. show where two scientists test urban myths (while blowing up toilets, cell phones and small cars?) Pretty cool huh?


Slide24 l.jpg

Well, in our presentation we take on sex harassment, wage and hour issues, workplace safety, the FMLA, the ADA, pregnancy leave, benefit policies, terminations and other workplace issues.


Slide25 l.jpg

Don’t worry, no small animals, household appliances, or polar ice caps have been harmed in the creation of this presentation.


Slide26 l.jpg

We all of do this in a format we call…. polar ice caps have been harmed in the creation of this presentation.


Slide28 l.jpg

Here’s how it works. polar ice caps have been harmed in the creation of this presentation.


Slide29 l.jpg

We need a contestant. polar ice caps have been harmed in the creation of this presentation.


Slide30 l.jpg

We present that person with a common HR myth or notion. polar ice caps have been harmed in the creation of this presentation.


Slide31 l.jpg

We then give him/her three possible answers. polar ice caps have been harmed in the creation of this presentation.

Two are incorrect or myths.

One is the right answer.



Slide33 l.jpg

Each contestant will only bust 3 HR myths. intended to be informative.



Slide35 l.jpg

Ready? participate.

Let’s play HR Myth Busters!




Slide38 l.jpg

HR Myth #1 participate.

An employee must agree with information contained in a document before it can be placed in his/her personnel file.


Slide39 l.jpg

  • Possible answers…. participate.

  • Absolutely!

  • Not so, you can put whatever you want in a personnel file and the employee doesn’t get to see it.

  • No, but it is a good practice to allow employees to see what is going in their file and state law allows then to offer rebuttals when appropriate.



Slide41 l.jpg

C. participate.Fairness and good performance management practices suggest that employees at least know what is in their file. State law permits employee to submit corrections or rebuttals but not approvals over content or a veto power.


Slide42 l.jpg

HR Myth #2 participate.

Job descriptions really only need to be updated if there is a dispute, misunderstanding, or job responsibility change. Creating one now reduces management flexibility.


Slide43 l.jpg

  • Possible answers…. participate.

  • “Amen, I am so tired of being told we need to do these things.” The statement: “Because I said so”, should be enough.

  • “If we are doing job descriptions, can we start with mine? I’m really not sure from day to day what I am supposed to do around here.”

  • Nope, you need written job descriptions now to avoid misunderstandings and soon, under the amended ADA, they will be more important than ever when documenting essential job functions.



Slide45 l.jpg

C. participate.You need simple/concise descriptions of what the job requires and how it is to be performed. These should be updated as the job/requirements change in meaningful ways.


Slide46 l.jpg

HR Myth #3 participate.

An employer can decide whether or not to report a workplace illness or injury.


Slide47 l.jpg

  • Possible answers…. participate.

  • Nope, state law requires employers to report all workplace accidents or injuries.

  • Right, this is a privacy issue. It also involves individual rights. You can’t force an employee to report an injury or go through the workers’ compensation system.

  • Employers must report all workplace injuries where first aid is required or medical treatments exceed $750, regardless of employee cooperation, but you can still seek/insist upon the employee’s cooperation.



Slide49 l.jpg

C. participate.There is a reporting threshold for workers’ compensation claims, but that is surpassed in most cases.


Slide50 l.jpg

HR Myth #4 participate.

Supervisors can search an employee’s work computer even without his/her consent.


Slide51 l.jpg

  • Possible answers…. participate.

  • “Yes! I’ve been doing this for months. I knew I was right. Yes! Consent? No, we don’t need no stinking consent.”

  • Workplace computer use may be monitored and while notice is required, a signed receipt of the handbook, which contains the computer monitoring policy, may be sufficient. Supervisors, however, should not do this on their own.

  • Supervisors may monitor computer use but consent in advance is required, each time.



Slide53 l.jpg

B. N participate.otice can be deemed from receipt of the policy. Monitoring should be done. IT and management should also be involved.


Slide54 l.jpg

HR Myth #5 participate.

If you don’t do a background check when you hire an employee, you can’t do one later and then terminate his/her employment if you are not happy with the results.


Slide55 l.jpg

  • Possible answers…. participate.

  • While the best practice is to do a thorough background check as a condition of the initial employment, if you discover inaccuracies or disturbing information later, that can be a reason for dismissal.

  • Right, time is of the essence. If you don’t do a reference or background check when the person is hired you can’t do one later.

  • “What? I can fire anyone, anytime I want. This is still the Live Free or Die ‘at-will’ state, right?”



Slide57 l.jpg

A. participate.It is better to do the checks up front, but resume/application fraud can be a reason to later terminate employment.


Slide58 l.jpg

HR Myth #6 participate.

Sexual harassment requires that the victim speak up, at the time of the alleged offense, and alert others that he/she objects to the conduct or behavior.


Slide59 l.jpg

  • Possible answers…. participate.

  • Yes, otherwise, how could we possibly know?

  • Yes, while an individual may be liable for bad conduct, the employer isn’t liable until the employee complains to management.

  • Nope, if the employer knows (hears, sees, suspects) the conducts is going on and it is offensive to a reasonable person, they MUST act.



Slide61 l.jpg

C. participate.Employers could be liable once they know or should have known about objectionable behavior at work.


Slide62 l.jpg

HR Myth #7 participate.

If an employee is out of work because of a personal illness, he/she has to request Family and Medical Leave (FMLA) in order to get those benefits.


Slide63 l.jpg

  • Possible answers…. participate.

  • No, if you have reason to believe they might qualify for FMLA, the employer can check information and designate the leave even if the employee doesn’t request FMLA leave.

  • “Hey, it’s in the friggin’ handbook! Do I have to do everything around here?”

  • No, each employee gets to elect whatever leave policy they (their doctor and perhaps their spiritual advisor) deem appropriate.



Slide65 l.jpg

A. participate.Employer get to designate FMLA leave, if they think an employee qualifies and it can be concurrent with other forms of leave.


Slide66 l.jpg

HR Myth #8 participate.

Performance evaluations are required by law and must be conducted annually.


Slide67 l.jpg

  • Possible answers…. participate.

  • Yes, it’s in the Bill of Rights or somewhere in state law.

  • No, but it is a sound practice to do regular performance evaluations.

  • No, again, this is still New Hampshire, if we wanted more restrictions and silly regulations we would move all operations to Massachusetts.



Slide69 l.jpg

B. participate.Regular performance evaluations can keep employees on track and provide an accurate record of the employee’s work history.


Slide70 l.jpg

HR Myth #9 participate.

Compensatory time off for private sector employees is an acceptable alternative to OT pay.


Slide71 l.jpg

  • Possible answers… participate.

  • Not under the FLSA and it violates state law, too.

  • “Oh crap, can I borrow your cell phone?! I have to call someone in Payroll. I hope they aren’t taking their Comp day today”

  • Sure, if done right and taken within a reasonable period of time.




Slide74 l.jpg

HR Myth # 10 participate.

You have up to 3 days after you hire an employee to collect I-9 support documents from that person.


Slide75 l.jpg

  • Possible answers… participate.

  • Yes, and weekends or holidays extend that deadline.

  • Only if the person provides proof of application for the documents.

  • I don’t care, the I-9 laws don’t apply to workplaces like ours.




Slide78 l.jpg

HR Myth #11 documents.

Independent contractors in New Hampshire need to satisfy at least one of the following tests to be properly classified. The unemployment ABC test, the wage and hour 12 point test or the Human Rights Commission “Right to Control” test.


Slide79 l.jpg

  • Possible answers… documents.

  • Yes and have them sign an agreement to that effect.

  • Yes, I too am an independent contractor and that sounds right to me.

  • Actually, to be safe, they should satisfy all of these tests and, even then, the IRS may still have questions.



Slide81 l.jpg

C. Actually, to be safe, they should satisfy all of these tests and, even then, the IRS may still have questions.


Slide82 l.jpg

HR Myth #12 tests and, even then, the IRS may still have questions.

When you hire a new employee, you must provide him/her with information about his/her pay rate, pay day, pay period and nothing else.


Slide83 l.jpg

  • Possible answers… tests and, even then, the IRS may still have questions.

  • “But that’s a contract and we don’t do no stinkin’ contracts.”

  • Nope, you also need to notify him/her in writing of any changes in advance.

  • “Yes, and we will get on that this afternoon.”


Slide84 l.jpg

And the correct answer is… tests and, even then, the IRS may still have questions.



Slide86 l.jpg

HR Myth #13 changes in advance.

An employee in a private sector company is free to criticize his/her boss (as long as the information is true) because that is protected as free speech.


Slide87 l.jpg

  • Possible answers… changes in advance.

  • “Excellent! Can I borrow that cell phone again?”

  • Only if that company is unionized.

  • Nope, not yet. The boss is still the master of his/her domain.


Slide88 l.jpg

And the correct answer is… changes in advance.



Slide90 l.jpg

HR Myth #14 domain.

If a disabled employee can take medication to reduce the limitations caused by an impairment, the employer doesn’t have to engage in reasonable accommodation discussions because the employee isn’t disabled within the meaning of the ADA.


Slide91 l.jpg

  • Possible answers… domain.

  • Nope, the law has changed.

  • The ADA? How are dentists involved?

  • Yes, if the medication works the person may not be protected by the ADA.




Slide94 l.jpg

HR Myth #15 domain.

If your company has fewer than 100 employees before a layoff, you have no WARN or other notice obligations to the affected employees or others.


Slide95 l.jpg

  • Possible answers… domain.

  • Yes, unless a union is involved.

  • Right, except the notices regarding COBRA and other conversion rights.

  • No, if the layoff involves 25 or more employees you have to notify Employment Security, too.




Slide98 l.jpg

HR Myth #16 notify Employment Security too.

Employees get 26 weeks of FMLA time, if they are caring for an injured family service member.


Slide99 l.jpg

  • Possible answers… notify Employment Security too.

  • If they are otherwise eligible for FMLA leave and only once in a 12-month period.

  • Yes, and this continues for each year the person needs care.

  • Not if we reinstated the person after he/she was released to return to work.


Slide100 l.jpg

And the correct answer is… notify Employment Security too.


Slide101 l.jpg

A. Yes, if they are otherwise eligible for FMLA leave but this is only once in a 12-month period.


Slide102 l.jpg

HR Myth #17 this is only once in a 12-month period.

USSERA rights only apply to troops called into service and even then, the reinstatement rights lapse after five years.


Slide103 l.jpg

  • Possible answers… this is only once in a 12-month period.

  • Right, and this includes National Guard troops too.

  • There is no limit on reinstatement rights in some situations.

  • That’s only in time of declared war.


Slide104 l.jpg

And the correct answer is… this is only once in a 12-month period.


Slide105 l.jpg

B. There is no limit on reinstatement rights in situations, e.g., as long as the person remains on active duty.


Slide106 l.jpg

HR Myth #18 e.g., as long as the person remains on active duty.

Maternity leave rights end when the doctor says the employee can return to work.


Slide107 l.jpg

  • Possible answers are… e.g., as long as the person remains on active duty.

  • Right, and the company allows the person to return to her job.

  • No, the woman can stay out of work until she is ready to return as long as that is a reasonable period.

  • Right, a doctor’s note or 12 weeks, which ever is greater.


Slide108 l.jpg

And the correct answer is… e.g., as long as the person remains on active duty.



Slide110 l.jpg

HR Myth #19 job.

During a job fair interview, it is illegal to ask and applicant:

“What year did you graduate from high school?”


Slide111 l.jpg

  • Possible answers are… job.

  • Yes, that would be age discrimination.

  • That would be age and educational discrimination.

  • No, you can ask that if you have a business reason for asking.




Slide114 l.jpg

HR Myth #20 asking.

If you do pre-employment medical exams, they have to be after a bonafide offer is extended and they must be specific to the job.


Slide115 l.jpg

  • Possible answers are… asking.

  • Yes, post-offer but they can be general fitness exams.

  • Right, post-offer and job specific.

  • Why would we do any of that? (We size ‘em up long before we get to that point).



Slide117 l.jpg


Slide118 l.jpg

HR Myth #21 (But it is still better to focus on what the job requires.)

It is legal to use GPS devices to track the whereabouts of your employees?


Slide119 l.jpg

  • Possible answers are… (But it is still better to focus on what the job requires.)

  • Not in California, Nevada or Massachusetts and elsewhere not without consent.

  • Yes, and you can use it to correct time cards.

  • Sure, during work hours, but you should have a good reason for that surveillance.


Slide120 l.jpg

And the correct answer is… (But it is still better to focus on what the job requires.)



Slide122 l.jpg

HR Myth #22 reason for that surveillance.

If you make a mistake in your employee handbook and include a policy (e.g. FMLA) that doesn’t apply to your company, employees can still claim it as a benefit.


Slide123 l.jpg

  • Possible answers are… reason for that surveillance.

  • Nope, the disclaimer in the handbook defeats their claims.

  • Right, some courts say you’d be stuck with the policy.

  • “This is why you should get rid of your handbook.”


Slide124 l.jpg

And the correct answer is… reason for that surveillance.



Slide126 l.jpg

HR Myth #23 reason for that surveillance.

Men can claim maternity leave rights now, too!


Slide127 l.jpg

  • Possible answers are… reason for that surveillance.

  • Only in Massachusetts.

  • Only under FMLA.

  • Only in the National Enquirer.


Slide128 l.jpg

And the correct answer is… reason for that surveillance.


Slide129 l.jpg

A. Only in Massachusetts. reason for that surveillance.


Slide130 l.jpg

HR Myth #24 reason for that surveillance.

It is illegal to discriminate on employment or in healthcare based on a person’s genetic information (including genetic information of a family member).


Slide131 l.jpg

  • Possible answers are… reason for that surveillance.

  • Yes, but only in employment and not yet in health care plans.

  • “Yes, and did you know baldness actually comes from the mother’s side of the family?”

  • Yes, and this law includes youth employment protections, too.


Slide132 l.jpg

And the correct answer is… reason for that surveillance.



Slide134 l.jpg

HR Myth #25 plans.

Employers who are open for business on Friday nights, Saturdays and Sundays must permit time off for all employees who ask for at least a few hours off for religious observances.


Slide135 l.jpg

  • Possible answers are… plans.

  • Yes, because Hell is no place for an HR professional.

  • No, not if they knew we required weekend work when we hired them.

  • Only if the employer can do so without a hardship.




Slide138 l.jpg

HR Myth #26 plans.

If an employer’s bank charges payroll check cashing fees to employees who don’t have accounts at that bank, as a matter of law, the employer must move its business elsewhere.


Slide139 l.jpg

  • Possible answers are… plans.

  • “Yes, Cindy Flynn told us so.”

  • “Yes, this is a violation of state and federal banking laws too.”

  • No, but if they stay with that bank, the employer could be liable for wage adjustments and civil penalties.



Slide141 l.jpg

C. No, but if they stay with that bank the employer could be liable for wage adjustments and civil penalties.


Slide142 l.jpg

HR Myth #27 be liable for wage adjustments and civil penalties.

Non-competition clauses are not enforceable in California, but they are still enforceable in New Hampshire.


Slide143 l.jpg

  • Possible answers are… be liable for wage adjustments and civil penalties.

  • Right, but they are increasingly disfavored by the courts.

  • “Amen. This is still the Live Free of Die state and we get to keep people from working for our competitors.”

  • Nope, they have gone the way of the Spotted Owl and the Snail Darter.


Slide144 l.jpg

And the correct answer is… be liable for wage adjustments and civil penalties.



Slide146 l.jpg

HR Myth #28 courts.

Under the FMLA, medical certifications need to be returned to the company before the leave begins.


Slide147 l.jpg

Possible answers are… courts.

A. Not always, especially when the need for the leave is unforeseen.

B. Yes or how will you know if the employee is eligible for the leave?

C. What certification?




Slide150 l.jpg

HR Myth #29 unforeseen.

We can have a policy prohibiting employees from handing out union authorization cards in work areas at all times.


Slide151 l.jpg

Possible answers are… unforeseen.

A. Yes, policy can prohibit distribution of literature in all work areas at all times.

B. Who cares? We’ll never be unionized.

C. No, these cards are considered the same as conversation and can be prohibited from work areas only on work time.



Slide153 l.jpg

C. No, these cards are considered the same as conversation and can be prohibited from work areas only on work time.


Slide154 l.jpg

And the last HR myth… and can be prohibited from work areas only on work time.


Slide155 l.jpg

A holiday favorite and a treat any time of year… and can be prohibited from work areas only on work time.


Slide156 l.jpg

HR Myth #30 and can be prohibited from work areas only on work time.

If we suspect an employee is under the influence of drugs or alcohol, we have to test them and provide copies of the results before terminating their employment.


Slide157 l.jpg

  • Possible answers are… and can be prohibited from work areas only on work time.

  • Yes, and HIPAA says the results are otherwise confidential.

  • “What are you friggin’ crazy? We can fire him/her for that with no test faster than you can say “TAXI!”

  • If this is a DOT covered employee you may have to test. Otherwise you have no obligation to test. You can fire the employee based upon your suspicion (hopefully based on something you can substantiate--e.g. slurred speech, smell of alcohol, parking a car in the lobby, lampshade on head etc) and keep the Doritos.


Slide158 l.jpg

And the correct answer is… and can be prohibited from work areas only on work time.


Slide159 l.jpg

C. If this is a DOT covered employee you may have to test. Otherwise you have no obligation to test. You can fire the employee based upon your suspicion (hopefully based on something you can substantiate--e.g. slurred speech, smell of alcohol, parking a car in the lobby, lampshade on head etc) and keep the Doritos.


Slide160 l.jpg

Thanks to all of our contestants. test. Otherwise you have no obligation to test. You can fire the employee based upon your suspicion (hopefully based on something you can substantiate--e.g. slurred speech, smell of alcohol, parking a car in the lobby, lampshade on head etc) and keep the Doritos.



Slide162 l.jpg

Thundering Applause!!!! those HR myths!


Slide163 l.jpg

The holidays may be over but the fun is just beginning! those HR myths!

Let’s be careful out there!


Slide164 l.jpg

Thank you! those HR myths!


ad