Jim McNall – ICRMP Risk Management Specialist

Not just fire or retain Can this relationship be saved? Need to know when to try and when to

consider termination Don’t leap to conclusions Listen to explanations See if subordinate has a legitimate point

What we forgot to tell you!◦Don’t document what the employee did as much as…◦Document what YOU did to correct the employee’s behavior.

How often?◦ (Actually every day!)

Who does them? What about use of notes/documentation? Who reviews them? What happens then? What does your policy say?

They are not honest!!! Employees hate them. Supervisors hate them. When someone needs to be terminated they

“walked on water” two weeks earlier. Tend to bring all employees to the middle. We often use forms that guarantee failure.

If properly done they:◦ Help employees improve.◦ Provide a reference point.◦ Identify weaknesses and plan for improvement.◦ Allow employees to have input.◦ Are usually the only time that employees feel. that

they are communicating with supervisors.

Should always include what has happened with employee since last review◦ Good ◦ Bad ◦ Ugly

Need to compare tasks with job description, if they do not match then change one or the other

“FMLA”FAMILY MEDICAL LEAVE ACT of 1993

& 2008 AMENDMENTS

(effective 2009)

Employees granted 12 weeks of unpaid leave for:◦ Birth, adoption, or placement in foster care of a child;◦ Care of a seriously ill child, spouse or parent;◦ The employee’s own serious illness.

2008 Amendments allow for up to 26 weeks to care for injured soldiers, or 12 weeks to family members of soldiers called to active duty.

Allows for up to 12 weeks of unpaid leave for QUALIFIED employees:

1. Worksite must employ 50+ employees (not counting elected officials);

2. Employee must have worked for employer for at least 12 months (out of last 7 yrs);

3. Employee must have worked at least 1,250 hours during the 12 months preceding. must credit an employee returning from military service with

hours of work that would have been performed but for the military service.

(d) All public agencies are covered by the FMLA regardless of the number of employees; they are not subject to the coverage threshold of 50 employees carried on the payroll each day for 20 or more weeks in a year. However, employees of public agencies must meet all of the requirements of eligibility, including the requirement that the employer (e.g., State) employ 50 employees at the worksite or within 75 miles.

What if I don’t have 50 employees?◦ Be certain that you do not –weekly count?◦ “Volunteers” may be included in this count.

You are still “covered” under the law◦ Need to post the notice◦ Include short section in your policy◦ Employees are not eligible unless your policy states

that they are!

Never happens automatically! By request from the employee. ◦ Need for documentation. ◦ Should be talking to HR!

By the employer.◦ Supervisors need to pay attention and if employee

misses several days of work then should be looked into.◦ Always include HR.◦ May be retro?

All forms of paid leave are treated the same for purposes of the rules relating to substitution of paid leave for FMLA leave. (– includes comp time)

Employees may substitute paid leave for FMLA leave (or, an employer may require substitution) but the substitution must conform to the employer’s normal leave policies (e.g., minimum increments, giving advance notice, etc.).

Placing employees on FMLA leave if they do not qualify.

Ignoring frequent absences without following up.

Dealing with FMLA issues on your own. Denying or ignoring requests for FMLA

without adequate information and help. Ignoring interaction of FMLA, ADA, WC.

BASIC RULE: Everyone is HOURLY except for exceptions.

What Does That Mean?1. If not exempt and the employee works

more than 40 hours a week, OT pay is required.

2. If exempt, the employee is SALARIED (paid fixed compensation) and OT pay is NOT required. (Or allowed?)

Overview of FLSA

An employee may be exempt IF:1. They are specifically exempt – Elected? or2. Paid more than $455 per week; and

Fits into 1 of 6 categories:◦ Executive;◦ Administrative;◦ Professional;◦ Computer Personnel;◦ Highly Compensated; or◦ Outside Salesman.

Primary duty is management of the enterprise or of a customarily recognized department or subdivision;

Customarily and regularly directs the work of two or more other employees; and

Authority to hire or fire other employees or whose suggestions and recommendations as to hiring, firing, advancement, promotion or other change of status of other employees are given particular weight.

Interviewing, selecting, and training employees

Setting and adjusting pay and work hours Maintaining production or sales records Appraising employee productivity and

efficiency Handling employee complaints and

grievances Disciplining employees Planning and apportioning work among

employees

Determining the techniques to be used; the type of materials, supplies, machinery, equipment or tools to be used; or the merchandise to be bought, stocked and sold

Providing for the safety and security of employees or property

Planning and controlling the budget Monitoring or implementing legal compliance

measures

A “customarily recognized department or subdivision” must have a permanent status and continuing function◦ Need not be physically within the employer’s

establishment, and may move from place to place◦ Continuity of the same subordinate personnel is not

essential to the existence of a recognized unit.◦ The employee in charge of each branch

establishment is in charge of a recognized subdivision

Does not include a mere collection of employees assigned from time to time to a specific job

A frequency that must be greater than occasional but which, of course, may be less than constant

Includes work normally and recurrently performed every workweek

Does not include isolated or one-time tasks

The phrase “two or more other employees” means two full-time employees or the equivalent

Full-time generally means 40 hours per week The supervision of the same employees can

be distributed among two or more exempt executives, but the hours worked by an employee cannot be credited more than once

Factors include, but are not limited to:◦ Whether it is part of the employee’s job

duties to make suggestions and recommendations◦ The frequency with which suggestions and

recommendations are made or requested◦ The frequency with which the employee’s

suggestions and recommendations are relied upon

Suggestions and recommendations may be reviewed by a higher level manager

The exempt executive need not have authority to make the ultimate decision

Making an occasional suggestion regarding a change in status of a co-worker does not meet the “particular weight” standard

Concurrent performance of exempt and nonexempt work does not automatically disqualify an employee from exemption

Exempt executives generally decide when to perform nonexempt duties and remain responsible for the success or failure of business operations

Nonexempt employees generally are directed by a supervisor to perform the exempt work or perform the exempt work for defined time periods

Duties requirements for executive exemption:◦ Primary duty of management;◦ Customarily and regularly directs the work of two or

more other employees; and◦ Authority to hire or fire or having suggestions and

recommendations as to hiring, firing, advancement promotion or any other change of status to other employees be given particular weight.

The executive exemption also applies to 20% owners who are actively engaged in management.

Whose primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and

Whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.

The comparison and evaluation of possible courses of conduct, and acting or making a decision after the various possibilities have been considered

Must be exercised with respect to “matters of significance,” which refers to the level of importance or consequence of the work performed

Decisions and recommendations may be reviewed at a higher level and, upon occasion, revised or reversed

Factors include, but are not limited to:◦ Whether the employee has authority to formulate,

affect, interpret, or implement management policies or operating practices◦ Whether the employee carries out major

assignments in conducting the operations of the business◦ Whether the employee performs work that affects

business operations to a substantial degree, even if the employee’s assignments are related to operation of a particular segment of the business

Factors include, but are not limited to:◦ Whether the employee is involved in planning long-

or short-term business objectives◦ Whether the employee investigates and resolves

matters of significance on behalf of management◦ Whether the employee represents the company in

handling complaints, arbitrating disputes or resolving grievances

Discretion and independent judgment does not include:◦ Applying well-established techniques, procedures

or specific standards described in manuals or other sources◦ Clerical or secretarial work◦ Recording or tabulating data◦ Performing mechanical, repetitive, recurrent or

routine work

Exempt employees may use manuals, guidelines or other established procedures if they:◦ contain or relate to highly technical, scientific, legal,

financial or other similarly complex matters◦ that can be understood or interpreted only by those

with advanced or specialized knowledge or skills Employees are not exempt if they use

manuals to apply well-established techniques or procedures within closely prescribed limits

Primary duty of the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and

Primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.

Doctors and Lawyers and such.

Need to be honest. Policy should state time to round to.(I/4 hr.?) Signed be employee and supervisor. Documentation for payroll. Corrections acknowledged by employee. Comply with FLSA records requirements. Have a clear comp. time policy and provide

regular balances.

1. Employee's full name and social security number.

2. Address, including zip code.

3. Birth date, if younger than 19.

4. Sex and occupation.

5. Time and day of week when employee's workweek begins.

6. Hours worked each day.

7. Total hours worked each workweek.

8. Basis on which employee's wages are paid (e.g., "$9 per hour", "$440 a week", "piecework")

9. Regular hourly pay rate.

10. Total daily or weekly straight-time earnings.

11. Total overtime earnings for the workweek.

12. All additions to or deductions from the employee's wages.

13. Total wages paid each pay period.

14. Date of payment and the pay period covered by the payment.

18-3204. False certificates or other instruments from officers.

Every public officer authorized by law to make or give any certificate or other writing, who makes and delivers as true any such certificate or writing, containing statements which he knows to be false, is guilty of a misdemeanor.

Periodically review those considered exempt to make sure they still qualify – document

Make sure that “contractors” are not really employees

Have honest time sheets◦ Have all time sheets reviewed and initialed by a

supervisor◦ Make sure that no one is keeping time “off the

books” – (answering e-mails?)

Examples of Reasonable Accommodations:◦ Job restructuring◦ Modifying work schedules◦ Reassigning to a vacant position◦ Acquiring or modifying equipment◦ Placing on light duty (if available)

◦ Hardest part – no whining!

“Regarded As” –cannot discriminate against individuals if they are perceived to have an impairment (even if they don’t have one).

Individuals covered only under the "regarded as" prong are not entitled to reasonable accommodation.

Clarifies that no claim of “reverse disability discrimination” may be made.

DEFENSE: Whether a requested accommodation is reasonable.

Assuming that an employee is disabled. Immediate denial of accommodation request.◦ Need to work with others (HR).◦ Take time to respond if determined “unreasonable”

Providing unwanted accommodation. Allowing other employees to complain. Not engaging in “interactive process” or doing so

within a department.

Appoint a compliance officer Limit access to medical information to those

who need to know to:◦ Pay bills◦ Provide treatment ◦ Defend claims

Hiring the wrong person◦ Conduct background checks◦ Contact at least the listed references◦ Beware of those you know or think you know

Failing to properly train employees◦ Train on policies (incl. harassment), expectations,

and details of the job◦ Document training received

Failing to properly supervise employees◦ Help employees succeed ◦ Recognize and document deficiencies ◦ Recognize misconduct and discipline appropriately

Failing to terminate those clearly unfit◦ When an employee proves they are unfit they are

right◦ Supervisors especially need to recognize employees

dangerous to themselves or others