The U.S. Centers for Disease Control and Prevention (CDC) reports that nearly 2 million people in the United States are addicted to prescription pain killers. One of those people might be your employee.
Opioid painkillers such as Vicodin and Oxycontin that are hydrocodone and oxycodone based are commonly prescribed to treat work-place injuries and other types of chronic pain. But these drugs are often over-prescribed and abused by patients and addiction is very common. In fact, in the last ten years, painkiller addiction rates have risen to epidemic proportions in the United States, the CDC said.
Injured or chronically ill workers who develop an addiction to painkillers represent a health and safety concern to themselves and to fellow workers. They can also create potential liability risks for you, the employer, and can lead to a less efficient and less productive workforce.
An obvious first-step in dealing with any kind of drug problem in the workplace is to be proactive and have a drug-testing policy in place that allows pre-employment testing, random drug testing, testing after workplace accidents and testing based on reasonable suspicion.
Then train your managers to look for the signs of substance abuse, particularly in employees who slack off at work, take unusual and frequent breaks, are no longer punctual, and who occasionally slur their speech or make unwarranted mistakes in their work. While many employees may be able to manage their chronic pain responsibly and without abuse, you should be aware of the warning signs of abuse and educate your managers on them as well. These signs can include bloodshot eyes, sudden weight loss, a lack of grooming, poor attendance or other uncharacteristic behavior.
Before you take action against an impaired employee, you need to consider and weigh both the safety of your employees versus the risk of a lawsuit by the employee who is abusing drugs. The Family and Medical Leave Act or the Americans with Disabilities Act may apply to this situation, so don’t make any hasty decisions without legal advice.
Texas employers traditionally have not had to worry about being accused of discrimination on the basis of sexual orientation, because there is no federal or Texas law that makes sexual orientation discrimination illegal. Additionally, Texas employers previously have not had to provide spousal benefits, such as family coverage under a group health care policy, to same sex spouses.
The laws of Texas have not changed, but the tide is turning for all American employers, and Texas businesses are not immune to that trend. Last month, the U.S. Supreme Court effectively legalized gay marriage in 11 more states when the court declined to hear appeals of lower court decisions finding state laws banning same sex marriage unconstitutional. So recently, gay couples received marriage licenses and were married in several conservative states including Oklahoma, Colorado, North Carolina, Virginia, and even Utah.
At the same time, the EEOC and several courts have been wrestling with Title VII gender discrimination claims by lesbian, gay, bisexual and transgendered (LGBT) employees who say their employers have discriminated against them. Eighteen states and the District of Columbia have laws explicitly protecting LGBT employees. 91 percent of Fortune 500 companies already prohibit this kind of discrimination. But in the states where sexual orientation laws are not in place, employers can expect the EEOC and disgruntled workers to file cases to try to change the law through the court system if not the legislature.
Finally, President Obama has issued an executive order requiring that businesses that do at least $10,000 in federal work annually have to protect LGBT employees from discrimination. This affects an estimated 22 percent of the civilian workforce nationwide and many employers in Texas.
All of this means that Texas employers are engaging in very risky behavior if the employer doesn’t protect its employees from discrimination on the basis of sexual orientation. In addition, many Texas employers have retail locations or offices in the 30 states that recognize same sex marriage. Therefore, consistency in employment policies means that most of these employers should go ahead and change the definition of “spouse” in their policies and insurance plans to include same sex spouses regardless in which state the employee resides.
You may not agree politically with these changes sweeping the country, but as a prudent employer, you should consider whether the wise business decision for your company is to protect LGBT employees and treat them equally when it comes to benefits.
As an employer with at least 15 names on your payroll, you should take any claim of sexual, racial or other illegal harassment seriously and work quickly to determine the validity of the claim, to put a stop to the offending behavior, and to deal with the offender.
The necessity of quick action was confirmed in Williams-Boldware v. Denton County. In that case, the Fifth Circuit Court of Appeals decided that an employer’s “prompt remedial action” stopped the offending behavior, so that the claims of racial harassment and hostile work environment were defeated.
The key word here is “prompt”. In this case, within 24 hours of a racial harassment complaint being made, the supervisor had reported the claim to Human Resources, which began investigating. The co-worker who had made racially inappropriate comments immediately issued a written apology and the employer met with the complainant to discuss the claim, letting her know they took the matter very seriously, and they even asked for her input in deciding the best course of action to take. This included reprimanding the co-worker, requiring him to attend diversity training, and transferring the complainant to another department so there would be no more contact between them.
The best way to prevent racial, sexual, or other illegal harassment from ever becoming an issue is to make sure that your employees are aware of company policies regarding harassment in the workplace. You should have a written policy in place that clearly states what behavior is expected of your employees, what is not tolerated, and what the consequences will be for violating company policy. In addition, you should take serious and immediate steps to investigate and stop the harassment when a complaint is made.
Many employers require their employees to sign and abide by the terms of some type of confidentiality agreement, confidentiality clause, or non-disclosure agreement as a condition of employment. Usually, the intent of such an agreement is to protect sensitive information and prevent such information from being discussed outside of the company. But employers should carefully consider the language and wording of confidentiality agreements to make sure they are in compliance with the standards set forth by the National Labor Relations Act (NLRA).
While you might think you are well within your rights to require a confidentiality agreement that prohibits an employee from discussing such things as company “financial information” or “personnel information”, the Fifth Circuit of Appeals (which decides federal appeals for cases originating in Texas) ruled in Flex Frac Logistics v. NLRB that such an agreement is unlawful. The ruling applies even to non-unionized companies like yours.
The Fifth Circuit decided that by prohibiting the employee from discussing company financial information and/or personnel information, the employer was infringing upon the employee’s right to discuss and negotiate the terms of their employment, including salary and hours. The NRLA protects activities by employees that would aid in the formation of unions, including free discussion of the employer’s pay practices.
Therefore, if you are contemplating incorporating some type of required confidentiality agreement or non-disclosure agreement into your company policies and procedures, or if you already have an existing confidentiality policy, the terms and conditions should be carefully reviewed to insure compliance with the NLRA. And keep in mind that the NLRA applies to ALL employers, regardless of whether or not the employer has union employees. Also, make sure you don’t have any other policies (written or generally understood) or employment agreements that prohibit employees from discussing wages.
In the last three or four years, there have been several cases filed against employers by nonexempt (hourly) employees who claimed they worked more hours than they were paid for because they checked their work email accounts at home in the evening or they remotely accessed their work files and sent a document to a client or answered a supervisor’s questions after hours. Technology has made this type of work easy and acceptable, but it also has made us as employers sloppy about our pay practices.
Applying the Fair Labor Standards Act, which regulates overtime and minimum wages, has never been easy, but when an employee showed up at the office, punched a time clock at the beginning of the work day and again at the end, paying that employee correctly was simpler. Nowadays, smartphones, flash drives, remote log-ins, texts, etc., have added a new layer of compliance issues to the FLSA. And attorneys who represent employees in wage and hour lawsuits are taking advantage of the complexity by bringing collective (class) actions against employers for failing to capture and compensate for the time employees spend using all of that technology outside of the office. These cases are very expensive because they court will always award the employee(s) two times their damages plus attorneys’ fees that often greatly exceed the damages.
Don’t stick your head in the sand on this issue and just hope you never get sued. At a minimum, you need a policy in writing addressing these issues. Tell your nonexempt employees that you never want them working “off the clock” and that you will pay them for any after hours work they perform. Let your employees know whether this kind of out of the office work is acceptable, or if not, be prepared to discipline your employees for performing it (but still pay them for it).
One of the things I admire most about many of my clients in the Texas Panhandle is their entrepreneurial spirit. Many of them have created and nurtured several businesses to success. But there is a downside to owning many businesses: your employment headaches increase.
For example, if you have one employee who works for two of your businesses, such as a receptionist at your main office, you might be paying that employee out of two business accounts and not realizing that you have overtime obligations to that employee. Your two businesses may be “joint employers” of this receptionist if there are common officers or directors of the companies and/or there are common insurance, pension or payroll systems. If so, you must take the hours that receptionist works at all of your businesses into account when determining whether that employee should be paid overtime for working more than 40 hours in any one workweek.
Another consequence of owning more than one business is that the number of employees working at all of your businesses may need to be combined when deciding whether you have to comply with various federal employment laws, such as Title VII (which goes into effect when you employ 15 employees), the Americans with Disabilities Act (which requires 15 employees), the Age Discrimination in Employment Act (which requires 20 employees), the Family and Medical Leave Act, which requires that you provide up to 12 weeks of unpaid leave to your employees if you have 50 names on the payroll, or the Affordable Care Act, which mandates that employers with 50 or more full-time equivalent employees provide health insurance to their employees beginning in 2015 or face substantial penalties.
The Department of Labor and the EEOC will apply an “integrated employer” test to determine whether separate but related businesses are deemed to be a single entity for counting the number of employees (names on the payroll) to determine whether you are liable for discrimination under Title VII, the ADA, the ADEA or the FMLA. This test looks at four factors: common management of the two companies, interrelation between the operations of the companies, central operation of labor relations and some degree of common ownership or financial control. If your companies are integrated, you need to count names on all of your payrolls to determine if you need to be complying with these federal laws.
The Affordable Care Act counts employees a little differently and combines related companies differently also. The ACA requires that related entities count employees as if they were employed by one business to determine if you employ at least 50 full-time equivalent employees (and remember that the definition of “full-time” under the ACA is 30 hours per week). If your related companies all together employ 50 FTEs or more, you will have to provide your employees with health insurance beginning in 2015 or be ready to pay the penalties imposed on employers who do not comply. The ACA combines into one employer related entities such as parents and their subsidiaries, brother/sister companies where the same five people or entities own the equity in two or more companies, and affiliated service groups such as law firms, accounting firms, civic organizations and temporary staffing companies that are linked by at least some ownership (the statute refers to a 10% threshold) and closely collaborate in the services they provide.
Accurately counting the number of employees you employ when you own more than one business can be much more complicated than it initially appears. But getting that accurate count is essential to operating your businesses legally.
If your business employs at least 50 full-time equivalent employees, you know that the Affordable Care Act will penalize you in 2015 if your business does not provide your full-time employees with affordable health insurance. But did you know that the determination of who is a full-time employee may need to start as early as November 1, 2013?
When deciding if an employee works full-time (30 hours per week), the ACA allows employers to set measurement periods during which you keep careful track of an employee’s hours of service (hours actually worked and hours of pay for vacation, sick leave, etc.) and then decide if that particular employee has actually averaged 30 hours per week over that measurement period.
For current employees whose hours fluctuate over and under the 30 per week criterion or whose hours fluctuate over the course of the measurement period (such as construction employees who may work 60 hours per week during the height of a building project and 10 or 20 hours per week when the project slows down), this standard measurement period can be between 3 and 12 months.
The standard measurement period is followed by an administrative period of no more than 3 months, during which the employer can make the calculation and offer the employee insurance if he/she is averaging 30 hours or more per week.
That administrative period is followed by a stability period of at least as long as the standard measurement period, during which the employee must be allowed to stay on health insurance even if he/she drops below the 30-hour per week standard.
Many employers are choosing a standard measurement period that lasts the maximum of 12 months. Then they will need at least a couple of months for their administrative period to make their calculation and get their employees enrolled. For employers who are on an insurance plan that renews with the calendar year, or for those who want to make sure they are completely in compliance with the Affordable Care Act before the employer penalties start in 2015, they would be well-advised to start their standard measurement period on November 1, 2013 and conclude it on October 31, 2014. The administrative period would then take all of November and December 2014. The result would be that all employees who are full-time would be measured and offered health insurance in time for a January 1, 2015 enrollment. The stability period would then run from November 1, 2014 to October 31, 2015, concurrently with the next standard measurement period.
The employer who faces this issue will need a written policy setting out the dates that the employer has chosen for its measurement periods with an explanation of how it works for the employees.
In 25 years of practicing employment law, I have unfortunately had to advise many clients who have been robbed by their own employees. They have lost thousands of dollars to theft of cash and inventory. In most instances, when my client has called me with questions about employee theft, the business has already been ripped off by its employee and is now just trying to figure out whether to prosecute and if there is any way to put in an insurance claim. I would rather see my clients take some preventative measures to stop employee theft before it happens.
Prevention starts by screening applicants with thorough reference and criminal background checks. Any employee with access to the financial records, bank accounts, credit cards, cash or inventory should have a clean record both with past employers and with law enforcement.
You should also assign overlapping job duties. Many of my employers who suffered losses to employee theft trusted just one person to handle the finances, the checkbook, cash receipts, reimbursement of business expenses or the bank deposits and didn’t require a second set of eyes on these records. Even if you don’t constantly have two people double-checking these records, learn a lesson from banks. Most banks require employees in sensitive financial jobs to take their vacation time in at least one week segments so that another employee can get a good long look at the vacationing employee’s records.
Every employer should also identify those areas of the business that are at high risk for theft and conduct audits every quarter or every six months on expense reporting, cash reconciliation, firm credit cards, etc. If you stock inventory, then performing a regular count of your inventory is also important. You should protect your inventory by watching for cars parked close to loading zones, unlocked exits that should remain locked, and bulging bags.
Finally, you should know your employees. The U. S. Chamber of Commerce recommends that you watch your employee’s behavior for unusual working hours, poor work performance, defensiveness when reporting on work, an unexplained close relationship or favoritism with a supplier or customer and/or a personal lifestyle that doesn’t match the employee’s salary.
One word of caution. If you suspect an employee of theft, don’t make the mistake of falsely imprisoning that employee or defaming that employee. If you detain an employee in the workplace by restricting his movement in some way, you could be guilty of false imprisonment. Let him leave if he wants to, and then let the police track him down and arrest him later if you have proof of theft. Defamation involves publicizing to others (such as your other employees) that an employee stole from you before that fact has been clearly established. In most instances, there is no reason for anyone else to be notified that you are accusing your employee of a crime. Only when the employee has been convicted of theft can you safely report to others, such as prospective employers who call for a reference, that your former employee stole from you.
As an employer, you have a deadline quickly approaching. You are required to send a notice to all of your employees about the marketplace exchanges created under the Affordable Care Act. You can find the model notices at http://dol.gov/ebsa/healthreform. There is a model notice for those employers who provide group health insurance and a separate model notice for those employers who do not provide group health insurance. There are Spanish versions of both of those notices available on that same DOL website page.
This notice is required of all employers who are subject to the Fair Labor Standards Act (overtime and minimum wage law), regardless of how many employees you have and regardless of whether you offer health insurance or not.
You must provide this notice to all of your employees, even those who are not eligible for your group health insurance and those who are not enrolled in your plan.
The deadline for providing this notice to your current employees is October 1, 2013. Anyone you hire after that time must receive the notice within 14 days of employment. You may provide the notices by mail, or you can use e-mail to notify those employees who regularly have access to a work e-mail address.
For those employers who offer health insurance, the Model Notice has a page three that asks about the specifics of your health insurance plan. It is optional as to whether you as an employer answer the questions asked on page three. Because of the uncertainties of the health insurance market right now and the probability that many of you will be offered a renewal in December 2013 that will change this information, I suggest that those of you who offer a group health plan do not answer any of the questions on page three of this notice at this time.
In June, the AMA recognized obesity as a disease, instead of just an issue of poor judgment. As an employer, you now have to think about obesity in terms of the Americans with Disabilities Act (“ADA”). To be protected under the ADA, an employer must have a physical or mental impairment that affects a major life activity, such as walking or bending, or affects a major bodily function, such as the cardiovascular system. In addition, the ADA protects people who are “regarded as” having a disability, even if they don’t.
With the AMA’s decision as ammunition, you as an employer are now in the crosshairs of many more disability claims because the Centers for Disease Control says 35.9% of American adults over 20 are obese. We don’t know all the ramifications yet, but it is reasonable to assume that the AMA’s label will eventually change your legal obligations.
As an employer, you are going to need address the obesity of your employees in three ways:
- You must not discriminate against obese applicants or employees by treating them adversely in hiring, promotions, discharge, compensation, job training, or other terms and conditions of employment. Appearance discrimination hasn’t found much support in the courts before the AMA’s decision, but this could give that kind of claim new life. This means that the overweight applicant who you fear will have absenteeism problems because of health issues cannot be excluded on that basis from hiring consideration. Also, that obese employee who you have consistently passed over for a promotion because you think he is lazy, or the fat assistant who wants to go into sales but you don’t believe she presents a professional image, may have a discrimination claim against you either because he/she is disabled by obesity or is regarded as such. Finally, when you are firing an employee, you’ll need to have well-documented reasons if obesity could be a claim.
- You will have to accommodate an obese employee’s reasonable requests for bigger, more comfortable furniture, more doctor’s visits or additional time to perform certain physical functions at work. As with any disability, you will have to handle these requests with discretion and sensitivity. I imagine that public theaters, airplanes and stadiums will also have to address this issue of whether they will have to provide larger seats.
- You must prevent harassment based on a person’s disability. That means that fat jokes will have to be tamped down just as you would racial or religious slurs to prevent a hostile work environment.
At a time when some parts of the federal government (HHS, DOL and IRS) are promoting wellness programs under Obamacare and encouraging employers to adopt programs that reward employees who stop smoking, lower their cholesterol or their BMI, the federal discrimination enforcement agency, the EEOC, is going to be scrutinizing wellness programs that may stigmatize obese employees. As an employer, you are going to need to walk a fine line with your wellness incentives. Heck, just having a motivation poster glorifying skinny people climbing to the top of a mountain may imply a negative stereotype of disabled obese employees.
There are no easy answers to this new issue. The AMA’s decision, by itself, doesn’t carry any legal weight. But it could influence the courts and accelerate the EEOC’s efforts to make appearance a protected class. My advice is to avoid becoming the test case on this issue and just use some care and common sense when dealing with obese employees.