Category Archives: Attendence

Employers Refuse to Recognize Rocky Mountain High

Many of my Texas clients also have offices in Colorado. Since that state legalized the recreational use of marijuana in November, I’ve begun receiving questions from my clients with locations in Colorado about their workplace drug use and testing policies. They want to understand their rights in light of the legality of marijuana in that state.

Legalized marijuana should be no more difficult for employers to handle than alcohol. If an employee is drunk on the job, you as an employer have a right to test him and to fire him for reporting to work under the influence of alcohol. An employee who is high on marijuana at work presents the same issue. However, marijuana shows up on drug tests long after the body has processed and gotten rid of alcohol. In other words, an employer testing on Monday won’t know that the employee was drunk on Friday night.  But if the employee got stoned on Friday night, testing on Monday will reveal that fact. Employers are therefore concerned that they won’t be able to fire an employee who tests positive for marijuana use but can’t be proven to be high at work. This generates anxiety for safety-conscious businesses.

At this point in time in the Fall of 2012, marijuana is still illegal in the United States, and therefore in every state. Just because an employee isn’t in violation of Colorado state law by smoking weed, he is still in violation of federal law and can be in violation of the employer’s substance abuse policy if it is well-written. Therefore, as an employer, make sure your policy states that, along with being under the influence at work, the use, possession or sale of illegal drugs is prohibited, and illegal drugs should be defined as any drug that is illegal under municipal, state and/or federal laws.

The federal Department of Transportation announced in December 2012 that state legalization of recreational pot would not change the rules prohibiting marijuana use by employees in safety-sensitive positions such as truck drivers, pilots and school bus drivers. Therefore, explaining away a positive test for marijuana by saying it was used legally in Colorado will not be an acceptable excuse and will still subject truck drivers, for example, to suspension of driving duties. Employers can take the same approach by letting employees know that the employer’s safety requirements will not be affected by state laws legalizing marijuana and that employees will still be subject to discipline up to and including termination for any drug test that shows marijuana use.

DOL Encourages Employees To Track Their Hours

The United States Department of Labor, long an agency that advocates for employees to the chagrin of employers, continued that trend by just releasing its first free application for smart phones to help employees in claims against their employers.

The app, for iPhone, allows employees to track work hours, overtime and breaks, all in an effort to discredit the records kept by the employer in any kind of wage and hour dispute. In times past, the employer kept the time clock or time sheets and paid accordingly. Employees can now easily record what they believe their working hours were and sue for more compensation, including overtime.

The app allows employees to send a copy of their time sheets via email to their own private email accounts, so that they can easily keep a paper trail with which to confront their employers. The app also includes summaries of the wage and hour laws and contact information for the DOL for employees to report violations. Continue reading DOL Encourages Employees To Track Their Hours

Employer’s Liability for New Employees

Bob Smith started working for you four weeks ago. He has already missed two days of work, been tardy, left early one day and when he is at work, his production is mediocre. You have a 90-day probationary period in your employment policies and it is becoming clear to you that Bob is not going to make it through that probation. Can you fire this four-week employee without any unemployment or discrimination liability?

Unfortunately, the answer in Texas is “no”. As soon as Bob became your employee, he became your problem. This is one reason that the hiring process ought to be very demanding, including checks of all of his past employers, criminal records, drug screening, etc. to discover at least the most obvious problems before you put him on the payroll. But many past employers won’t tell you anything about Bob’s dependability, so it is not surprising that he got through the hiring hurdles.

So if you decide to fire him today, what kind of liability can you face as an employer? In Texas, you will probably be charged back for his unemployment benefits by seeing an increase in your unemployment tax rate on all of your employees for the next three years. That is a stiff price to pay. There is a chance you will get lucky and not get the charge back if Bob falls into a narrow category based on how much he worked before you hired him. The explanation for that can be found on the Texas Workforce Commission website (click here).

Assuming that you don’t get that lucky or you don’t want to count on luck, you can document Bob’s problems, give him a written warning and then fire him for misconduct as you would any longer-term employee so that you have a way to fight the unemployment claim. This will go better for you if your policy manual makes it clear that absenteeism during the probationary period is not allowed. There is nothing wrong with requiring your new employees to show up every day for the first three months. You would think that most new employees would want to do that just to prove themselves, but I am constantly amazed by the slackness that many new employees bring to the workplace.

What about discrimination? Surely you can’t be held liable for something that happens to a new employee in the first few weeks? Think again. The United States Sixth Circuit Court last year upheld a $1.2 million sexual harassment claim for an employee who had only worked for five weeks at the company. In her third week of employment, she complained to her trainer and supervisor about the comments, touching, whistles and lewd gestures she was receiving. The supervisor moved her, but unwisely said, “That’s just how they treat their women over there,” and requested that she not tell the human resources department.

After another two weeks without improvement, the new employee told the human resources manager about the problem. He promised to investigate, but didn’t, so she filed a charge with the EEOC and later, a lawsuit. The trial court and the appellate court found that the employer’s response to the employee’s sexual harassment complaints showed reckless indifference to the new employee’s federally protected rights, supporting not only a judgment against the employer, but also an award of punitive damages.

There are all kinds of problems with the supervisor and the human resources manager’s responses to the sexual harassment complaint that have been discussed in other entries on this blog, but suffice it to say here, the fact that the employee only worked five weeks did not insulate the employer from any liability in this case. Your responsibility as an employer to protect your employees from discrimination kicks in on their first day of work and continue throughout their employment.

What is the Maximum Leave an Employee Can Take?

Sears Roebuck & Co. recently settled with the Equal Employment Opportunity Commission a class-action lawsuit for $6.2 million, the largest monetary award for a single Americans With Disabilities Act (“ADA”) suit in EEOC history.

The accusation against Sears was that the company discriminated against the disabled because it had an inflexible policy that allowed injured employees to take off of work for one year before they were automatically terminated for exhausting all leave. The EEOC said that this apparently neutral policy did not provide injured employees with reasonable accommodations in violation of their ADA rights.

With this suit, the EEOC is signaling an end to maximum leave policies. So if an employee has a serious health condition and uses all of his Family and Medical Leave but still cannot return to work, the employer now has to determine whether it would be a reasonable accommodation to allow the employee to miss more work. This is the EEOC position even though the courts have held that regular attendance is an essential function of most jobs and that indefinite, open-ended leave requests are not reasonable.

Texas courts have long held that maximum leave policies, neutrally applied regardless of whether the employee suffered an on-the-job injury, had a heart attack or wants to extend her maternity leave, are valid in Texas. The EEOC is undercutting those holdings in an attempt to impose a different standard (or no standard at all). From the settlement with Sears, the EEOC apparently wants all employers to follow these steps when an employee has been on leave and is unable to return at the prearranged time:

  • The employer must notify the employee 45 days in advance of the date her leave expires.
  • The employer must engage in the interactive process with the absent employee to determine whether part-time work, modified duties or a move to another position  would reasonably accommodate the employee and allow him to return to work.
  • If none of the previous options work, then the employer should consider offering additional leave beyond what the policy calls for.

What this means to even a small employer (15 or more names on the payroll) is that there will be no bright-line cutoff to an employee’s leave. If the EEOC’s position prevails, employers will have to hold all jobs open indefinitely for an employee who must take time off for an injury or illness.

At this point, my only advice is to wait and see how the courts react to the EEOC’s position. The Sears suit was a pretrial settlement, so we don’t know how this unreasonable position of the EEOC will hold up in court.

In Texas, it is still the law that an employer can enforce a neutral leave of absence policy by automatically terminating an employee who has exceeded the maximum leave offered. Just be aware that that law could change at any time if courts begin to side with the EEOC.

Controlling Absenteeism

I often get questions from employers about firing employees for absenteeism. Like any good employment attorney, I ask the employer about the scope of the problem. How many absences has the employee taken? What were the reasons for the absenteeism? What sort of verbal and written warnings has the employee received for absenteeism?

Astonishingly, I usually discover that the employer hasn’t tracked the number of absences, issued any warnings to the employee to correct their behavior and doesn’t even know if the employee has used up all of his paid time off. Often, I am simply getting a call because the employee is absent that day and the boss is upset over it because the employee has missed “a lot”.

You can reduce absenteeism in your company, but it requires some consistent effort on your part. Here are some steps to consider:

  1. Give your employees a reasonable amount of paid time off (“PTO”) each year that can be taken for whatever emergency or need arises. Generally, for full-time employees that have been with the company more than one year,  a total of 15-20 days per year is sufficient to cover vacations, sick days, kids’ school activities, funerals, and all the other ways in which real life intrudes.
  2. Prepare a written policy that explains your PTO procedures. Include a statement along the lines of, “Employees are provided sufficient PTO for all foreseeable and unforeseeable reasons to be absent. Therefore, any absences that are not covered by the company’s PTO policy, other than Family and Medical Leave (“FMLA”) and civic duties like voting or jury duty, will be considered to constitute excessive absenteeism and will result in disciplinary action up to and including termination of employment.”
  3. Keep track of absences every single day. This seems so simple, yet is violated so often. If I can’t prove in court with clear documentation exactly how many days your employee missed, I can’t prove that the reason for her termination was absenteeism rather than discrimination based on age, sex, race, etc.
  4. Be prepared to enforce your policy, beginning with the first absence after all of an employee’s PTO is exhausted. I don’t care if the employee needs to go to the doctor (unless employee is on FMLA), has a flat tire or just can’t recover from last night’s binge, if he has exhausted his PTO, you need to start progressive discipline. Give him a verbal warning (which you document for your files). The next time he misses, give him a written warning that lets him know he is in danger of losing his job. With the third absence, suspension or termination should be imposed, after you call your employment lawyer to review the reasons for the absences and get the legal green light to fire.

Brief Updates

The Department of Labor has released new notification forms to be used with Family and Medical Leave. If you have more than 50 employees (names on the payroll, whether full or part time), you should have an FMLA policy in your handbook and the FMLA poster on your employee bulletin board. Once an employee has requested any absence from work that might qualify as family or medical leave, then it is up to the employer to notify the employee of the employee’s eligibility for federally mandated family and medical leave, to ask for medical certification of the condition necessitating the leave and to make a final determination of eligibility. Also the employer must provide leave to military families under certain circumstances. The necessary forms to use for all of these determinations are available on the Department of Labor’s website, which you can access by clicking here.

* * *

The wage discrimination laws that I discussed in my January 6 blog post were unsurprisingly passed by the U. S. House of Representatives last week. If they clear the Senate, you can be assured that President Obama will promptly sign them. As I stated in that post, you can get ready for this law by deleting any policy still in your employee manual that prohibits employees from discussing their salaries. You can also review the salaries of any employees performing the same jobs and make sure that you have a rock-solid (meaning something in writing from the time the salary was determined) explanation relating to tenure or extra educational or licensing qualifications to explain why a male employee is making more than a female employee.

* * *

The Texas Legislature started its biennial circus last week in Austin. Once the drama of the Texas Speaker’s race subsided, it was time to look at the proposed legislation that could affect employers. Some of the ones I will be watching include a bill to require all employers to pay an employee her regular wages while she serves on jury duty, lots of bills penalizing employers who don’t carry worker’s compensation insurance, and family leave bills to allow parents time off to attend school activities involving their children. If any of these or other employment-related bills pass during this legislative session, I’ll keep you posted.

* * *

Somehow, the last tidbit on giving time off to parents for school activities reminded me of this joke about an employer’s reply to an employee’s request for time off:

“So you want a day off? Let’s take a look at what you are asking for!

There are 365 days this year.

There are 52 weeks per year in which you already have 2 days off per week, leaving 261 days available for work.

Since you spend 16 hours each day away from work, you have used up 170 days, leaving only 91 days available.

You spend 30 minutes each day on coffee break. That accounts for 23 days each year, leaving only 68 days available.

With a one hour lunch period each day, you have used up another 46 days, leaving only 22 days available for work.

You normally spend 2 days per year on sick leave. This leaves you only 20 days available for work.

We are off for 5 holidays per year, so your available working time is down to 15 days.

We generously give you 14 days vacation per year which leaves only one day available for work and I’ll be damned if you’re going to take that day off!”

FMLA Revisions

In one of the Bush administration’s final regulatory acts, the U.S. Department of Labor has issued 762 pages of revisions to the Family and Medical Leave Act. The changes have been two years in the making and not unexpectedly are more favorable to employers than employees. Family advocacy groups are pretty unhappy with the new regulations. But that doesn’t mean that the FMLA will ever be easy to apply in your workplace.

If you don’t know the basics of FMLA, it entitles employees to take 12 weeks unpaid leave to deal with the birth or adoption of a child, the employee’s serious health condition, a family member’s serious health condition, or a parent, child or spouse’s military deployments, including 26 weeks if a military family member is wounded. FMLA protects the employee’s health care benefits while on leave. Once the employee has used up his twelve weeks, you must return him to his old position or an equivalent position with the same benefits, compensation and status.

By the way, if you have less than 50 employees (full- or part-time), you can stop reading right now. FMLA only applies to companies that are larger than yours.

For those of you who have more than 50 names on your payroll, here are a few of the numerous changes you must understand by the time the new FMLA regulations go into effect on January 16, 2009: Continue reading FMLA Revisions

Military Reemployment Rules

            Since 2001, the United States has deployed more than 1 million troops for the wars in Afghanistan and Iraq. This means many employers are faced with reemployment issues concerning employees that left their jobs to undertake military service.

            The Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994 regulates the rights of individuals who voluntarily or involuntarily leave a job to serve in the military.

            USERRA requires every employer to post a notice in the workplace informing employees of their veteran rights, whether or not you actually have any employees leave their jobs to serve.

Continue reading Military Reemployment Rules