Author Archives | Michelle Perris

About Michelle Perris

Michelle joined the Human Resources Consulting team with J.W. Terrill in 2012 and has over 8 years’ of experience in the in the Human Resources industry as a generalist including a strong focus on key HR practices including full cycle talent acquisition, employee relations, onboarding, compensation planning, performance management and the development of training programs. Michelle earned her Bachelor of Arts degree from the University of Missouri – St. Louis and is a member of the Society for Human Resources (SHRM).

Employee Handbook Misconceptions

January 27, 2017

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Does an Employee Handbook Really Matter? Yes it really does.

This is just one example of the many misconceptions employers may have about their company handbook. For so many reasons, handbooks do matter.

It’s no surprise that handbooks and employment laws create a level of confusion. As we say in the HR world, we are living in a state of grey until a determination is made in the courts. We want to stay several steps ahead of that and avoid the courts altogether.

In light of that, we thought it would be helpful to point out some of the common misconceptions we have come across when it comes to employee handbooks. The following is a list of our top three.

Misconception #1 – We Can Get By For Now

As long as we have something pulled together that resembles a handbook, we’ll be fine for now.

– When we have time, we’ll take a look and make sure the book corresponds to what we actually do in practice.

– We used this handbook at my last employer and it worked fine.

– I’ve heard having a handbook just opens the door to more lawsuits.

Issues to Consider

  • How difficult would it be to discipline an employee for something if your handbook contradicts your practice?
  • Would you be prepared if you had to turn over the company handbook in a lawsuit?
  • Could it appear discriminatory if supervisors are applying policies differently throughout the company?

Takeaway

  • If faced with a lawsuit, a thorough and compliant employee handbook will help show the company exercised “reasonable care” towards its employees. This goes a long way as a defensive posture.
  • Supervisors should be trained on the policies within the handbook and how to apply them. A handbook is only as strong as your weakest supervisor.

Misconception #2 –Were A Small Organization, This Doesn’t Really Affect Us

– We have 40 regular employees and use 10 employees from a temporary agency, so we don’t technically have 50 employees.

– We don’t really need to worry until we reach 50 or more employees.

– We only have 15 employees, I don’t think many laws and regulations apply to us.

Issues to consider

  • Do you have a joint employer relationship? For example, if you are using temporary employees from a staffing firm, the answer might be yes, depending on which regulation you are looking at and arrangements with the staffing firm.
  • The joint employer relationship can affect employee headcount under protections afforded by the Fair Labor Standards Act (FLSA), the Family Medical Leave Act (FMLA) and the Affordable Care Act (ACA) to name a few
  • Many state and federal laws come into play, even for employers with just a small number of employees. For example, Title VII is a federal law that prohibits gender discrimination by employers with 15 or more employees. However, the Missouri Human Rights Act (MHRA) and the Illinois Human Rights Act (IHRA) also prohibit gender discrimination. The MHRA applies to employers with 6 or more employees and the IHRA forbids gender discrimination by all employers, even if they only have one employee.
  • These regulations will affect what employers will want to espouse in their handbooks.

Takeaway

The chart below indicates a just a few of the federal employment laws that are enacted by a small number of employees:

Federal Employment Laws

Number of EEs

FLSA

Fair Labor Standards Act

1

EPA

Equal Pay Act

1

OSHA

Occupational Safety and Health Act

1

HIPAA

Health Insurance Portability Act

1

FCRA

Fair Credit Reporting Act

1

USERRA

Uniformed Services Employment & Re-employment Rights Act

1

ADA

Americans with Disabilities Act

15

PDA

Pregnancy Discrimination Act

15

Title VII Title VII of the Civil Rights Act

15

Many states will also have very specific laws that apply to small employers. These include things like jury duty leave, voting leave, pay requirements upon termination and many more.

Misconception #3 – We are an Employment At-Will Organization, We Don’t Need a Bunch of Policies

We are an at-will employer, we can hire and fire at will.

– As long as we state we are an at-will employer in our handbook we are covered.

– Just because a supervisor promises an employee a job, that doesn’t imply a real contract.  

Issues to Consider

  • If handbooks are not drafted properly, they can actually become enforceable contracts between employees and the company.
  • While it is true that an at-will organization can hire and fire at will, it should not fire in violation of workplace rights laws, such as those prohibiting discrimination and retaliation.
  • Supervisors should be trained on the dangers of an implied oral contract.

Takeaway

  • Organizations will want to include a carefully drafted at-will statement in their handbook as part of their legal protections against employment claims.
  • Avoid any language that could be interpreted to promise job security in the handbook’s disciplinary policy, performance and raise policies, layoff policy, probationary policies, and so on.

Conclusion

Employment laws are a tightly woven web of complex concepts that can not only overlap but can sometimes appear to be in conflict with each other. Truthfully, handbooks can be your best defense when it comes to employment related issues. Or your worst enemy if done incorrectly.

If you would like to rewrite your employee handbook and avoid these misconceptions and risks, please contact J.W. Terrill’s HR Consultants at hrconsulting@jwterrill.com. We offer a comprehensive process that will help you with the strategic development and implementation of your final handbook. To learn more about our process, check out our overview here.

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Are you prepared for Election Day?

October 19, 2016

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Hand-with-voting-ballot-and-box400November 8th is just around the corner. Are you prepared? What about your voting leave policy? Do you have one?

Although the majority of workers should be able to vote before or after their normal work hours, companies should prepare for employees who will need to take time off to get to the polls. State rules vary when it comes to the amount of time that employers must allow, and whether or not that time is paid or unpaid. Employers should make sure they comply with applicable voter leave laws in the state(s) in which they have employees.

Missouri law allows employees (with prior notice to the employer) to take three consecutive hours off work to vote. If there are not three consecutive hours when the polls are open, that the employee is not required to be at work, employers must provide paid time off to vote.

Missouri Election day polls will be open from 6:00am-7:00pm. The following examples will show how differences in employee schedules will dictate employer practice:

  • If an employee is scheduled from 9:00am until 5:00pm, the employee would have at least three consecutive hours available to vote; from 6:00am to 9:00am. Therefore the employee would not be eligible for additional paid time off to vote.
  • If the employee is scheduled from 6:00am until 5:00 pm, the employer can allow the employee leave work at 4:00pm and pay for an additional hour. This would give the employee a three hour window to vote from 4:00pm until 7:00pm. The employer would only need to pay one hour, however, because only one hour overlaps the employee’s work-day.

Similarly, Illinois law allows employees (with prior notice to the employer) to take two hours of time off work to vote. To qualify for the two hours, the employee’s working hours must begin less than two hours after the opening of the polls and end less than two hours before the closing of the polls. Time off to vote under this policy must be paid as well.

Illinois Election day polls will be open from 6:00am-7:00pm. The following examples will show how differences in employee schedules will dictate employer practice in this state:

  • If an employee is scheduled from 9:00am until 5:00pm, the employee would have at least two hours available to vote; from 7:00am to 9:00am. Therefore the employee would not be eligible for additional paid time off to vote.
  • If the employee is scheduled from 6:00am until 6:00 pm, the employer can allow the employee leave work at 5:00pm and pay for an additional hour. This would give the employee a two hour window to vote from 5:00pm until 7:00pm. The employer would only need to pay one hour, however, because only one hour overlaps the employees work-day.

Employers should keep the following information in mind when it comes to their voting policy:

  1. Multi-state employers can implement a voting policy for all employees that comply with the most generous state law among those in which the company operates, or they can establish specific time-off-to-vote policies for each state.
  2.  Employers should determine ahead of time whether or not they need to stagger shifts or account for individuals using their voting leave so that appropriate staffing levels are maintained while still adhering to state laws. In most states, like Missouri and Illinois, employers can designate the time of day when employees can be absent to vote during the workday, as well as requiring employees to give advance notice and proof of voting.
  3. All employers should be neutral and consistent when granting time off to vote to avoid claims of discrimination or voter disenfranchisement. For example, employers should not enforce different rules on voting leave for different classes of employees for any reason.
  4. Some states require businesses to post a notice of employee voting rights before every election. For example, California requires employers to post state rules conspicuously at least 10 working days prior to an election. Even if not required, as in Missouri and Illinois, it’s a good idea to communicate state and company voting policies to all employees prior to Election Day.

The HR Consultants at J.W. Terrill are experts at tackling these issues and offer an employee handbook development service to keep you up to date and compliant. Take a look at our Handbook Development Video for a detailed overview of our process and service.

If you would like information regarding our handbook development service, please contact J.W. Terrill’s Human Resources consulting group at hrconsulting@jwterrill.com.

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Employer Social Media and Technology Policies

September 11, 2016

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It all started with a little extra guacamole…and ended up violating the National Labor Relations Act (NLRA).

Does this leave you scratching your head wondering how in the world these two things would even be connected? Well Chipotle was too. In January 2015, a Chipotle employee tweeted complaints about how much the company charged for extra guacamole and that Chipotle underpays its employees. His manager was not pleased. Citing the Chipotle social media policy, the manager ordered the employee to delete the tweets. After deleting the tweets, the employee began circulating a petition among Chipotle employees about meal and rest breaks.  Management asked him to stop distributing the petition. The employee refused and was subsequently fired.

While this still might sound fairly clear cut, there are two huge problems with this scenario, as Chipotle later found out. The first problem is that the manager was using an outdated social media policy. And the second is that the old policy prevented workers from posting “disparaging” comments about Chipotle on social media. Unfortunately this policy violates employees’ rights to concerted activity, which is protected by the NLRA.

The National Labor Relations Board (NLRB) ordered Chipotle to rehire the employee and give back pay for the eleven months he was unemployed. Ouch! Chipotle happened to get into trouble with their social media policy, but in reality there are all sorts of problem areas that employers need to watch out for when it comes to today’s tech heavy world.

While the Chipotle case was centered on the Twitter post, Twitter is just the tip of the iceberg. Technology and media platforms have substantially evolved in recent years. In light of this, it’s a good idea to revisit your handbook policies.

Make sure the parameters of internet and smart phone use are addressed. For example, maybe your handbook has a robust policy on internet use, but nothing about:

  • Smart Phones – Does your company provide devices? Who owns that device and how should the employee use it? Do employees sign an acknowledgement allowing the company to remote swipe their lost phone if need be?
  • Gaming – Think Pokémon Go. Are you losing productivity and focus on the job?
  • Streaming Media – How much YouTube can one employee watch? Do you have the bandwidth to keep up with it?
  • Apps – Can employees access Facebook and Snapchat during working hours?

These are just a few issues to consider. But one thing’s certain: technology will continue to advance and employers should make sure their workplace policies keep up. The HR Consultants at J.W. Terrill are experts at tackling these issues and offer an employee handbook development service to keep you up to date and compliant.

If you would like information regarding our handbook development service, please contact J.W. Terrill’s Human Resources consulting group at hrconsulting@jwterrill.com.

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FLSA Webinar

June 28, 2016

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If you were unable to attend the Fair Labor Standards Act (FLSA) webinar we presented on June 23, 2016, you can access the slides here and a recording of the webinar here.

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Are you violating the NLRA with your employee handbook?

April 19, 2016

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As we always say in HR Consulting, litigation shapes the way we manage our risk. Having a solid handbook is an excellent way to help mitigate risk. However, a poorly written one can not only be a mecca for employee lawsuits, but can also land employers in hot water particularly with the National Labor Relations Act (NLRA).

You may recall, we wrote an article in 2014 about the National Labor Relations Board (NLRB) and the strong stance it took against any handbook policy that appeared to hinder an employee’s right to unionize. At the time, the concern was related to the employer’s inclusion of a confidentiality agreement in the employee handbook. The point is that the NLRA allows employees to discuss things that are traditionally considered confidential like salary and working conditions and took issue with the use of the term confidential.

Flash forward to December 2015 and the NLRB is again taking issue with a handbook policy. This time the NLRB examined Whole Foods’ policy restricting the recording of meetings and conversations. With the popularity of electronic devices like iPhones and iPads in the workplace, Whole Foods felt they needed a policy prohibiting an employee from recording a meeting without prior approval.

The NLRB found Whole Foods’ policy unlawful. According to the Board, photography and audio or video recording in the workplace, as well as posting of photographs or recordings on social media, are protected by Section 7 rights to concerted activity as long as “employees are acting in concert for their mutual aid and protection and no overriding employer interest is present”.  Examples of such activity were given by the NLRB to include recording images of protected picketing, documenting unsafe workplace equipment or hazardous working conditions.  Even though the policy did not specifically pertain to these types of activities the NLRB felt the “no recording” policy was too broad and therefore unlawful.

It is difficult for employers to know just where the line is between lawful and an unlawful policy. The bottom line is that employers should be familiar with the NLRB’s many rulings on employer policies and ensure that their handbooks reflect the appropriate language.

The HR Consultants at J.W. Terrill are well versed in the NLRB’s decisions and offer an employee handbook rewriting service to give you the necessary protections while keeping you compliant. If you would like information regarding our handbook rewriting service, please contact J.W. Terrill’s Human Resources consulting group at hrconsulting@jwterrill.com.

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75 Mile Telecommute

December 21, 2015

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I thought it would be fun to start this blog article off with a few riddles; it is the holiday season after all…

Question: How many holiday cookies do you think you could eat on an empty stomach?

Answer: Just one, after that it’s not empty anymore!

Now that I have you all warmed up…I am going to give you a Family Medical Leave Act (FMLA) riddle. However, to be fair, I want to give you a copy of the FMLA employee eligibility language as it appears on the FMLA Fact Sheet #28:

ELIGIBLE EMPLOYEES

Only eligible employees are entitled to take FMLA leave. An eligible employee is one who:

  • Works for a covered employer;
  • Has worked for the employer for at least 12 months;
  • Has at least 1,250 hours of service for the employer during the 12 month period immediately preceding the leave; and
  • Works at a location where the employer has at least 50 employees within 75 miles.

Now that you are armed with the specifics, here is the riddle:

Question: Company XYZ has 55 employees that work at the St. Louis headquarters office. One employee, a salesperson, works out of her home in Chicago, Illinois. Would the salesperson in Chicago be eligible for an FMLA leave, even though she is clearly not within 75 miles of the St. Louis headquarters?

Answer: Yes!

If you answered no, and said she would not be eligible, you would be incorrect.

According to the very well hidden FMLA regulation 825.111(a)(2), for employees with no fixed worksite, e.g., construction workers, transportation workers (e.g., truck drivers, seamen, pilots), salespersons, etc., the ‘‘worksite’’ is the site to which they are assigned as their home base, from which their work is assigned, or to which they report.

In other words (or in English), this means that an employee’s personal residence is not considered a worksite for purposes of determining eligibility within 75 miles. Instead, the location from which their work is assigned (or to which they report) is the location that should be used for that determination.

Using the above riddle, the salesperson would technically meet the requirement of “working at a location where the employer has at least 50 employees within 75 miles” since the headquarters has over 50 employees, and is the location from which the salesperson work is assigned.

For further information on the Family Medical Leave Act, please see the Department of Labor’s Wage and Hour Division overview of FMLA.

J.W. Terrill understands how tricky it is to understand and administer the Family Medical Leave Act (FMLA). For additional information, please contact HR Consulting at: HRConsulting@jwterrill.com or 314-594-2700.

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Family and Medical Leave Act Webinar

November 24, 2015

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If you were unable to attend the webinar covering the Family and Medical Leave Act (FMLA) we held on November 18, 2015, you can view it at your convenience via the following link: FMLA Webinar. You can also access a pdf version of the slides here.

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EEO-1 Report Deadline Extension and Notification Letter

September 22, 2015

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The following are a few important announcements regarding the 2015 EEO-1 report filing.

  • The EEO-1 Joint Reporting Committee has extended the deadline for all EEO-1 Report Filers from September 30, 2015 to October 30, 2015.
  • All companies that filed the EEO-1 Report for the 2014 reporting period should have received a 2015 EEO-1 notification letter, by mail, no later than the end of August 2015. This letter contained a Login ID and information on the features of the new portal:
    • Password information and Company ID’s can now be obtained from the EEO-1 Login
    • First-time filers can register and receive a Login ID and password here
  •  On August 21, 2015, the EEOC updated the EE0-1 Survey website and revised the FAQ and Filing Fact Sheet. A new “Sample EEO-1 Notification Letter” from the EEO-1 Joint Reporting Committee was also posted.
  • If your company has acquired or merged with another company during the 2015 reporting period, the EEO-1 Joint Reporting Committee now requires you to contact the EEO-1 Joint Reporting Committee BEFORE filing the EEO-1 Report at e1.acquistionsmergers@eeoc.gov
  • If your company experienced a “spin-off” company during the 2015 reporting period, the EEO-1 Joint Reporting Committee now requires you to contact the EEO-1 Joint Reporting Committee BEFORE filing the EEO-1 Report at e1.spinoffs@eeoc.gov

Please see the following link to the previous TerrillConnect Blog “Deadline for Filing the EEO-1 Report and VETS is Quickly Approaching” for information on filing the EEO-1 and VETS report. (Please note: the VETS 100/100A report has been replaced with the VETS-4212 form)

For further assistance on the EEO-1 or VETS-4212 reports, please contact J.W.Terrill’s Human Resources Consulting Group at hrconsulting@jwterrill.com

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EEOC Goes Digital

July 21, 2015

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Hmm…I wonder if there are any circumstances in which advanced technology and ease of use might not be what exactly employers are looking for?

Well, currently the Equal Employment Opportunity Commission (EEOC) receives about 90,000 charges per year, making its charge system the agency’s most common interaction with the public. These 90,000 charges are all currently submitted the old fashioned way, via paper. That is about to change. The EEOC would like to make it easier for employees to submit charges against their employers. So, one has to wonder what effect might that have on the number of charges submitted per year?

The EEOC created the Action Council for Transformation to a Digital Charge System (ACT Digital) to develop a set of online applications for use by the public, hoping to improve customer service and ease of administration. Under the new process, an employer will no longer receive paper forms for EEOC charges. Instead, employers will receive an email notification when a charge is filed against them. The electronic notice will contain a web link to a secure online portal that contains information about the specific charge. If the EEOC does not have an email address of a designated contact at the respondent employer, the agency will send the employer paper notice informing it of the charge and instructions for logging into the online portal.

As of May 2015, the digital program is already operating in several EEOC offices (Charlotte, San Francisco, Denver, Detroit, Indianapolis and Phoenix) and aims to roll-out this system to all of its offices by October 1, 2015, which of course includes Missouri and Illinois.

So, what does this mean for employers?

In the near future, employers should be on the lookout for an email from the EEOC that may contain an electronic notice of a charge. Or, if an employer doesn’t have an email address on file with the EEOC, a paper notice will be mailed, containing instructions on how to access the online portal. Both methods will instruct the employer to log into the secure portal with a specific charge number and a system generated password. These items are required to access the system. Employers will not be able to create and maintain individual user accounts.

For further information on the Act Digital program, please see the following websites from the U.S. Equal Employment Opportunity Commission: Phases of Digital Charge Implementation, Questions and Answers on Digital Charge Implementation and the EEOC Office List and Jurisdictional Map to determine which EEOC field office has jurisdiction over your area.

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California Mandatory Sick Pay

June 19, 2015

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In less than one month, California employers will become subject to mandatory sick pay for employees. Beginning July, 1 2015, the Healthy Workplaces, Healthy Families Act of 2014 (HWHFA) will obligate employers in California to offer sick pay to almost every category of employee.

The following is a list of frequently asked questions and a to-do list to assist employers in further understanding their responsibilities under the law.

  • What is the required minimum obligation of time off?

The minimum obligation is to provide sick pay at the rate of 1 hour for every 30 hours worked or a lump sum allocation of 3 days or 24 hours per year.

  • Does a PTO plan (paid time off) or sick plan satisfy this obligation?

Not necessarily. It depends on if the policy provides the minimum level of benefits mandated by the law.

  • Do small employers with only temporary and seasonal workers have to comply with the law?

Yes, the HWHFA covers large and small employers and does not have a size exemption. The law mandates benefits to all full-time, part-time, temporary, and seasonal employees who work for the company in California for 30 or more days within a year (with limited exceptions). However, if the minimum benefit is provided, the company may provide more generous benefits to employees in certain job classifications.

  • Do employers have to notify employees of their rights under HWHFA?

Yes, employers are required to provide employees with the Individualized Notice to Employee form which includes paid sick leave information.  See the California Department of Industrial Relations Website for this form.

  • Can employers offer a lump sum amount of sick days rather than follow the accrual method?

Companies may choose between policies in which leave accrues at the minimum rate of 1 hour for every 30 hours worked or offering a lump sum amount of no less than 3 days or 24 hours at the start of each 12-month period. The 12-month period may be based on the employee’s anniversary date, a calendar year, or any other defined 12-month period. Under this approach, no accrued hours need be rolled over into the following year.

  • Can employers confine the use of this sick time to employee illnesses only?

No, under the HWHFA, employees may use accrued sick pay benefits for the diagnosis, care, or treatment of an existing health condition or preventative care for an employee or an employee’s family member. Sick pay may no longer be limited to circumstances in which an employee is medically incapacitated from working. The new law permits employees to use sick pay to care for a child, parent, spouse, registered domestic partner, grandparent, grandchild, and sibling. The law also permits employees to take sick pay for the purpose of dealing with domestic violence, sexual assault, or stalking.

  • What are some of the next steps employers should take?
    1. Provide the required Individualized Notice to new employees upon hire and to existing employees by July 8.
    2. Take a look at your organizations current sick pay benefits and determine if any changes need to be made to incorporate this legislation. Distribute an updated PTO or sick pay policy.
    3. Confirm that all classes of your company’s California employees receive sick pay.
    4. Weigh the pros and cons of the accrual versus the lump sum method for offering sick time.

While the accrual method gives employers the most accurate count, it can be a cumbersome process. On the other hand, while offering a lump sum of 24 hours per year is easier on paper, it gives employees a large amount of benefits without prior to working for it.  

There are many additional nuances to the Healthy Workplaces, Healthy Families Act of 2014, and it is important for employers to be knowledgeable of the law’s intricacies and to stay abreast of new changes.

For further information on the Act please see the California Department of Industrial Relations Website.

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Final FMLA Spousal Definition

April 6, 2015

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Did you know that something as simple as a change of a definition could affect the way employers handle their leave practices?  

The new definition of a “spouse” has done just that for purposes of FMLA leave.

As you may know, last year in United States v. Windsor, the Supreme Court determined that section 3 of the Defense of Marriage Act (DOMA) was unconstitutional.  In short, this means that valid same-sex marriages will now be recognized as “spouses” for the purposes of federal laws.

In response to that decision, on February 25, 2015, the Department of Labor issued a Final Rule revising the FMLA definition of “spouse” to include an employee in a legal same-sex marriage.  The premise is to ensure that FMLA will now be applied to all families equally.  This will now allow spouses in a same-sex marriage the same ability as all spouses to exercise their rights and responsibilities to their family.

This actually sounds quite simple; however (no surprise here), there are a few details to consider. 

A key detail is that the term “spouse” used to mean a husband or a wife as recognized under state law where the employee resides. The Final Rule changes that definition, now recognizing the state law of the place of celebration (where the marriage was entered into) for determining the definition of spouse.

For example, if an employee enters into a same-sex marriage in New York but now resides in Missouri, the employee will have FMLA rights to care for his or her spouse since New York recognizes same-sex marriage. (Missouri does not.)

Please note, there are four states currently under a preliminary injunction and are therefore on hold with the new definition: Texas, Arkansas, Louisiana and Nebraska .  Employers in those states may continue to follow the old FMLA rule and determine a “spouse” based on the state law of residence.

Employers should be mindful that FMLA does not protect civil unions or domestic partners; only married “spouses” are included.  However, some states offer more generous coverage and broader definitions of family members under state family leave laws that often run concurrently with FMLA leave. Therefore employers should determine whether any state law may protect civil unions or domestic partners.

What does this mean for you as an FMLA covered employer (50 or more employees within a 75 mile radius)?

We would suggest employers change their policies and practices to reflect this change.  In addition, provide training to managers and supervisors to alert them to the broader scope of the FMLA’s coverage. This will ensure managers and supervisors will not inadvertently discourage an employee from applying for FMLA or make a statement suggesting an employee is not eligible for FMLA leave related to a spouse.

For further information, please see the U.S. Department of Labors’ website, Fact Sheet: Final Rule to Amend the Definition of a Spouse in the Family and Medical Leave Act Regulations.

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Employers Beware! “Ban the Box”

November 20, 2014

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Caution, Illinois and Kansas City, Missouri are just a few of the states and cities that will be affected by new “Ban the Box” laws.

Ban the box refers to the check box on employment applications asking whether the candidate has ever been convicted of a crime. Ban-the-box laws require hiring managers to put off asking about a candidate’s criminal history until after an interview has been conducted or a provisional job offer has been extended.

Illinois has joined the growing number of states and jurisdictions banning the box on job applications that require job applicants to disclose criminal history information. On July 19, 2014, Illinois Governor Pat Quinn signed the Job Opportunities for Qualified Applicants Act . This law expands to private employers the “ban the box” rules that have applied to public sector jobs in Illinois since October, 2013.

Currently, 13 states have passed ban-the-box laws: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nebraska, New Jersey, New Mexico and Rhode Island.

Additional states with cities and counties that have banned the box include: Florida, Georgia, Indiana, Kentucky, Louisiana, Michigan, Missouri, New York, North Carolina, Ohio, Oregon, Pennsylvania, Tennessee, Texas, Virginia, Washington and Wisconsin.

Effective January 1, 2015, employment agencies and private employers with 15 or more employees will no longer be able to inquire about or consider an applicant’s criminal background until after the applicant has been notified that he or she will be interviewed, or, if there will be no interviews, after a conditional offer of employment is made.

Three limited exceptions to the new rules apply to certain applicants and employers: (1) applicants licensed under the Emergency Medical Services (EMS) Systems Act may be asked about their criminal histories; (2) employers subject to state or federal laws that require applicants with certain criminal convictions be excluded may inquire; and (3) employers that require a standard fidelity bond may seek this information when an applicant’s criminal conviction would disqualify the individual for a bond.

So what does this mean for you? 

Before the new law becomes effective, employers should ensure that their hiring processes are up-to-date and in full compliance with the law. Job applications should no longer request any criminal history information and background checks should not be run until after applicants have been selected for interviews or made conditional offers of employment (if the employer is not planning on conducting interviews). It is also important to carefully consider the defensibility of decisions not to hire applicants based on criminal record information.

In addition, please note that the U.S. Equal Employment Opportunity Commission (EEOC) continues to be responsible for enforcing its Guidance on Consideration of Arrest and Conviction Records in Employment Decisions, which requires a multi-factor individualized assessment of employers’ decisions not to hire applicants based on the applicants’ criminal convictions. The ban the box initiative will add another layer to this practice. Please see the attached link for further information from the EEOC website here.

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