The ADA: Understanding Your Obligations

As HR professionals, we take a lead role in making sure our workplace policies and practices are both compliant and ethical. We need to make sure our managers are operating under the same guidelines. One area where a high level of risk may be lurking is in responding to employee performance issues, concerns and requests for accommodations in situations where the word “disability” is not used. Even if an employee does not say the word “disability,” the employer may still be on notice that the Americans with Disabilities Act (“ADA”) and its related legal obligations are implicated.

Here’s a scenario:
John works for a small manufacturing company and has struggled in his role. John’s manager, Dan, documents all of John’s performance related issues. John is worried about losing his job and anxious about what is going to happen next. John has a disability but does not explicitly use that word when talking to Dan. John asks to change his shift “to help his nerves” and to help address his performance related issues. Because John did not use the word “disability,” Dan does not consider this a formal accommodation request, nor does he bring this up to HR. After one final performance issue, Dan terminates John. John then files a claim against the employer for failing to accommodate his disability.

HR should train managers to be on the lookout for language that may trigger an accommodation under the ADA. This should include educating managers about physical and mental impairments that can constitute disabilities under ADA and the interplay of ADA, FMLA and Worker’s Compensation. Rather than have managers assess such requests, they should be coached to raise potential disability-related issues with HR. HR can then meet with the affected employee to determine if the ADA interactive dialog process needs to commence, or if this is simply a performance or behavior issue.

The experienced HR professionals and attorneys at Lake Effect HR & Law are ready to assist and advise if you have questions regarding ADA related issues in your organization. We are here to help you navigate this complex area. Contact us at info@le-hrlaw.com or 1-844-333-5253.

Upcoming Changes to Illinois Employment Laws

Over the summer, Illinois enacted several amendments to the state’s employment laws that will take effect January 1, 2020.

Sexual Harassment Training

All employers with Illinois employees must provide sexual harassment prevention training to their employees at least annually. The Illinois Department of Human Rights has advised that it will create a model training program for employers, but at the time of this article, it is not yet available. Alternatively, employers can use their own sexual harassment training program as long as it meets the state’s legal requirements. We can also create a training program for you that complies with Illinois’ legal requirements and is tailored to fit your industry, workplace culture, and mission.

Legalization of Recreational Marijuana

Organizations with employees in Illinois will confront a new legal landscape under the Cannabis Regulation and Tax Act, which declares marijuana a “lawful product” under Illinois state law. Under the new law, the use, possession, and cultivation of marijuana for medical or recreational purposes will be legal for adults age 21 and older. There are now 11 states that allow recreational use of marijuana and 33 states that allow marijuana use for medical purposes.

The expansion of marijuana legalization in Illinois dramatically affects employer drug-free workplace and testing policies. Under the new law, employers can still prohibit the use, storage, buying, and selling of marijuana at work; they can likewise prohibit employees from being impaired or under the influence of marijuana at work. If an employer has a good faith belief that an employee is impaired at work or while on call, the employee can be disciplined only if that belief is based on specific, objective symptoms. An employee must also be given an opportunity to contest the basis of the determination of impairment. Employers cannot take an adverse action against an employee for merely testing positive for marijuana while at work. Employers should be wary of pre-employment drug testing, employment testing without reasonable suspicion and zero tolerance policies. It is not yet clear if Illinois employers can terminate employees who refuse to submit to a drug test that is based on a good faith belief of impairment.

Please contact your partners at Lake Effect Human Resources & Law if you would like to discuss a customized sexual harassment training program for your organization, or if you would like us to review your workplace and drug testing policies to ensure they comply with Illinois’ new laws.

Be Careful What You Ask For!

Over the years, most employers have become accustomed to asking for salary history during the interview or pre-screening process to determine if an applicant should move forward in the hiring process. Most employment applications also inquire about an applicant’s prior convictions. However, more and more state and local governments are adopting bans on employer inquiries into a job applicant’s pay and criminal history. Employers need to ensure their hiring practices are compliant, especially as recruiting crosses state lines.

Over 20 state and local governments have adopted pay history bans. Pay history bans are frequently rolled into a state or local government’s overarching equal pay laws. Such bans are aimed at addressing existing pay disparities – especially those adversely affecting women and people of color – by ensuring that employers base compensation decisions on employees’ qualifications, duties and responsibilities.

Pay history bans prohibit employers from inquiring about an applicant’s prior pay during the pre-employment process or considering that information when making interview, hiring, or compensation decisions. Other facets of the laws are designed to eliminate secrecy and promote transparency by prohibiting employers from restricting their own employees from disclosing their current pay to applicants or to one another in the workplace. Some of the new pay history bans also require employers to provide the applicable pay range upon request by an applicant or include the pay range with any job posting.

There has also been an expansion of criminal history bans, often called “ban the box” or “fair chance” laws. These bans, adopted by over 30 state and local governments to date, are meant to even the playing field and provide a second chance for individuals with an arrest or conviction record. Criminal history bans prohibit employers from requiring applicants to disclose if they have been convicted of a crime. The laws generally permit employers to inquire into a prospective employee’s criminal history after subsequent steps in the hiring process: after an initial screening but before an interview, after an interview, or after a conditional job offer.

These bans have not yet been adopted in Wisconsin, but they impact employers recruiting with national searches or for locations outside of Wisconsin, and they aren’t going away. It’s a good time to review your hiring policies and procedures to make sure that they comply with these legal requirements and reflect your organization’s culture, mission, and values.

The attorneys and HR professionals at Lake Effect HR & Law are ready to assist and advise if you have questions related to your recruiting and hiring policies and procedures in Wisconsin or other states. Contact us at info@LE-hrlaw.com or 1-844-333-5253.

The Complex Web of Paid Family and Medical Leave Laws

Several states have now enacted laws mandating that employers provide paid family and medical leave (FML). These laws generally apply to employers in or out-of-state with 1 or more employees working in that state. It is important for Wisconsin employers to carefully manage their leave policies when they have employees in other states.

States that have adopted mandatory paid family and medical leave laws are: Massachusetts, Washington D.C., California, Washington, New Jersey, New York, Connecticut, and Rhode Island. The leave benefits available under these laws vary from state to state, so employers need to do their research – or rely on experienced employment law advisors.

For example, in Massachusetts, employers must pay into an FML fund with a .75% tax on the wages of any employee working in Massachusetts. Some employers, depending on the number of workers they employ, may deduct a portion or all of this amount from the employee’s wages. Starting in 2021, employees will be entitled to up to a total 26 weeks of paid family and medical leave per year for life events such as the birth or adoption of a child (12 weeks), a serious medical condition (20 weeks), a family member’s serious medical condition (12 weeks), or to care for a family member injured while in military service (26 weeks). While the employer must allow the employee to take the leave, the financial benefits are administered by the state’s Department of Family and Medical Leave. Employees apply for a claim and, if approved, receive their weekly benefit from the state. The maximum benefit an employee can receive is $850/week.

In Washington D.C., employers must pay a .62% payroll tax into the state’s FML fund, and employees apply for and receive their benefits from DC’s Department of Employment Services. Starting July 1, 2020, DC employees will be entitled to up to 8 weeks of parental leave, 6 weeks leave to care for a sick family member, and 2 weeks leave for personal medical leave. The maximum benefit is $1000/week.

In addition to paid FML laws, over 20 states, cities, and counties have enacted paid sick leave laws. These laws also vary as to how much leave must be given to employees, how that leave must be tracked and carried over, and how the paid sick leave intersects with other leaves, like FML.

Wisconsin employers who employ workers in other states must take these various leave laws into account. It is a complex task. Carefully crafted policies and procedures can help you navigate these unchartered waters without creating an administrative nightmare for your HR team.

The attorneys and HR professionals at Lake Effect HR & Law are ready to assist and advise if you have questions related to family and medical leave matters in Wisconsin or other states. Contact us at info@LE-hrlaw.com or 1-844-333-5253.

You’ve Got Mail… Gulp!

This March, employers around the country began receiving letters, the likes of which they have not seen in 7 years. These letters are not so affectionately known as “Social Security No Match Letters,” but are officially referred to as “Employer Correction Request Notices (EDCOR)” by the Social Security Administration. A sample can be found here.

In a significant departure from past practice, the letters do not include the names or social security numbers of employees with a mismatched SSN. To obtain this information, employers must register with the SSA’s Business Services Online (BSO).

Employers should be proactive if they receive a no match letter and promptly contact a trusted legal or HR advisor about the appropriate next steps. Those next steps should include:

  • Registering with the SSA’s BSO;
  • Checking the employer’s records for a clerical mistake;
  • Notifying the employee of the mismatch (a sample letter can be found here) and working with the employee to resolve the mismatch

Employees should be given a reasonable amount of time to resolve the mismatch. There is no law or regulation that defines what constitutes a “reasonable” amount of time. However, the U.S. Department of Justice has acknowledged that resolving a mismatched SSN may take some time.

Employers should also be cautious about jumping to conclusions and taking any adverse action against an employee subject to a no match letter. Keep in mind that the mismatch may not always be an indicator that the employee has provided fraudulent social security information. The mismatch may be innocuous, and the result of a data entry error, a change of name due to marriage or divorce, or even the employee’s identity being stolen. Employers may be subject to liability based on employment discrimination for adverse action taken against an employee if that is action is solely based on a no match letter. Employers should wait for the final results of its investigation into the mismatch and hope for the best resolution: correction of the error. If there is a legitimate mismatch, then the employer should consult with HR and employment law advisors to develop a plan of action.

The attorneys and HR professionals at Lake Effect HR & Law are ready and willing to assist and advise if you receive a no match letter, or have questions related to compliance with Social Security Administration laws and regulations. Contact us at www.LE-hrlaw.com or 1-844-333-5253.

How Do I Appreciate Thee? Let Me Count the Ways. . .

It is the first Friday in March, and that means it is National Employee Appreciation Day. Today presents a good opportunity for employers to stop and review the steps they are taking to make their employees feel valued in the workplace. Employees who feel valued are more likely to be positive, engaged and productive at work.

A 2015 survey conducted by Glassdoor Economic Research revealed that for almost 57% of people, benefits and perks were among their top considerations in accepting a job. In fact, 4 out of 5 people reported that they would prefer new perks over a pay raise at work. The survey confirmed that the three core benefits that matter most to today’s workers are health insurance, vacation/paid time off, and 401(k) retirement plans. 

In this time of low unemployment when many employers are struggling to attract and retain high-performing employees, surveys like this one provide valuable food for thought. Employers who want to attract the best and the brightest should offer more than a competitive salary. Based on the Glassdoor Survey Results, they would be wise to offer quality health insurance and 401(k) plans, as well as generous vacation and paid time off policies. Employers should also consider non-traditional employee benefits such as educational assistance/tuition reimbursement, gym memberships/employee wellness programs, paid sabbaticals, flexible work arrangements, workspace choices/improvements, regular employee outings, and formal programs for employee coaching and mentoring. Think, too, about furthering your unique organizational mission, vison and values with your benefits: Provide time off to clean the lakefront, tutor local kids, or work at a food pantry? Pay for audible accounts to encourage learning about the latest management trend? organize teams for local walks, runs, swims and paddles? Offer a weekly in-house massage therapist or yoga instructor? Have an office share for tickets to local arts, sports, and community events? Finally, Employers should ask themselves whether and how often they stop to recognize their employees’ hard work. Providing consistent feedback, routinely celebrating employee successes, and embracing rewards and peer recognition programs can go a long way towards making employees feel like valued members of a team.

So, by all means, take time out on this National Employee Appreciation Day to thank your employees. But, more importantly, consider the unique benefits that you can offer every day to reward employees for their contributions to your organization.

Contact the attorneys or HR professionals at Lake Effect HR & Law to if you have questions about how to make your employees feel appreciated.

When Cupid Strikes in the Workplace

Whether HR knows about it or not, romantic relationships happen in the workplace. According to a Vault.com annual office romance survey, more than half of American professionals say they have participated in an office romance. Of those who have dated a coworker, 16% married.

In my days in the hospitality industry, I saw couples live happily ever after and others … well, let’s say, not so happily ever after. Let’s face it, if 62% of the workers in the hospitality and tourism industry say they’ve had a romantic relationship with a coworker, 46% didn’t live happily ever after according to my math.

If two employees tell you that they are dating, first express your appreciation they came forward to let you know of their workplace romance and of course, be happy for them! Follow your handbook policies. If you allow dating in the workplace, review your organizations’ workplace harassment policy and remind them that as long as the relationship is consensual, it aligns with your policy. Remind them there is no need for public displays of their affection while at work. Most importantly, remind them that if one party decides they no longer want to be in the relationship, the courting must stop, otherwise it may by perceived as workplace sexual harassment. You may also want to have individual conversations with each person to make sure it is consensual and there is not a more serious situation occurring.

When the couple doesn’t notify HR, but HR hears of the romance through-the-grapevine, does HR have the same responsibility as if the couple came forward? Yes, talk to the individuals using the same framework as above.

If there happens to be an internal conflict of interest – supervisor and direct report – you may need to ask one of the individuals to transfer to another department or position, that is, if you are a big enough organization. Otherwise, one of the individuals may need to leave the organization to eliminate the conflict. It is best to have a written policy addressing this.

Executives and others in sales or key relationship building roles may also want to consider how professional partnerships may create a conflict of interest, actual or perceived. Most recently, the CEO of REI was asked to step down because he did not disclose his romantic relationship with a leader of another organization in the outdoor industry.

Bottom line…if you are going to date in the workplace, tell HR or your supervisor, avoid PDA in the workplace, and, if one person wants to end the relationship, you must end it. If the relationship ends well, it’s easy to continue the relationship as coworkers. If it doesn’t, the tension will spill into the workplace and coworkers will feel the tension, and so may your former sweetheart.

Remember, we are handling matters of the heart. Be kind. Be respectful. It takes courage to show love. If you need help navigating a workplace romance or drafting a policy, reach out to the Lake Effect HR & Law team.

It’s Not Exactly a Snow Day

Here in Wisconsin, the USPS is not delivering mail, schools, government offices, malls and restaurants are closed, and UW has cancelled classes…Nobody is going outside to work or play in -50° F wind chills, except for those who are keeping us warm and safe! If we aren’t going to work or playing outside, how many of us are working remotely today?

If many of your employees are taking advantage of remote work today, this may be a great time to create or update your Inclement Weather Policy. Over the years, we have been very fortunate in Wisconsin to have not had many reasons to close our offices other than snow, until last year when we saw state-wide flooding. Consider expanding your inclement weather policy to involve other emergency closings, an explanation of how employees will be paid and factors to consider when working remotely.

The Lake Effect team is here to help you draft a compliant inclement weather policy and other employment-related policies aligned with your organization’s culture, concern for employees’ safety, and your operational productivity goals. When reviewing your policy consider the following:

  • Parameters to determine when the office will be closed
  • Mechanisms to communicate office closures, keeping in mind possible power outages at home
  • Determination of which employees will have the ability to work remotely
  • Consideration of Wage and Hour laws and regulations
  • Compensation of employees for working remotely -- or not working
  • Employee use of paid time off
  • Impact of weather-related absences on attendance records

Contact the attorneys or HR professionals at Lake Effect HR & Law to help guide you through the storm.

New Year’s Resolutions

As we turn the calendar page to January 2019, it's the perfect time to review your company's HR policies and practices to make sure this year is an even better one for your employees and your organization as a whole. Lake Effect HR Advisors and Employment Lawyers are here to support and advise your team and you throughout the year!

Here are our recommended HR Resolutions for 2019:

  1. Annual Employee Handbook Update – Make those changes you have been mulling over for the past few years. While you are at it, have an HR and legal review to:
    1. ensure compliance with all states in which you now have employees;
    2. incorporate current trends that fit your organization;
    3. bring new life to your handbook so that it reflects your organizational culture, voice, mission and strategic vision.
  2. Anti-Harassment & Respectful Workplace Training - Review your anti-harassment policy and procedures and educate your team on the updated policy, including reporting procedures, possible outcomes, the pitfalls of retaliation, acceptable workplace conduct, appreciation, and respect.
  3. Personal Professional Development - Develop a coaching & development process that supports your culture, mission, vision and organizational goals. This investment benefits the employee, the team and the entire organization in the short and long term.
  4. Group Professional Development - Develop a training curriculum that strengthens your team’s people skills; develops their management skills; and reflects your policies, procedures and expectations.
  5. Employee Engagement – Strengthen communication in your workplace using myEverything DiSC to create a common language your team members can use to understand one-another's motivators, priorities and reactions to conflict in the workplace.

For more information or to set up an appointment, contact us today.

Tick This Off Your To Do List: Anti-Harassment Training

Since Harvey Weinstein had his great fall, nearly every one of our Client Employers have said to us, “I know we really need to schedule some anti-harassment for our staff.” Then, work gets busy, and then the quarter is wrapping up, and then a big project takes over, and on and on. This is not an issue you can avoid. You can’t bury your head in the sand and think it is going away. The single best thing you can do as an employer to provide your employees with a workplace free of harassment and discrimination is to train your staff. Now is the time to schedule the training!

At Lake Effect HR & Law, our attorneys and HR professionals are all experienced and engaging trainers on Anti-Harassment Practices. Our approach is not a secret, but our delivery is. We really are that good. We get your team talking, laughing, feeling comfortable about the uncomfortable. People tell us they dreaded the training, but ended up, actually, having fun. Hard to believe, right? Schedule a session and you will believe us.

So what is our approach? Here is what we do every time:

  1. Provide a legal review and suggested updates to workplace policies and practices. We look at not only your actual Anti-Harassment policy, but also the policies that connect to it: social media, behavior and conduct, use of electronic systems and networks, confidential information and more. We also reflect off your industry and culture, and reflect on how this supports your mission and vision. How we provide this training at a bank differs from an arts non-profit.
  2. Provide an in-person training to your team. A webinar means people are checking emails. A video means people space out and don’t participate.
  3. Engage everyone in attendance in the dialog. No one is allowed to slouch in the corner or avert their eyes.
  4. Deep dive into your organization’s anti-harassment policy and the related policies. Teach your team where all of the answers are within your policy. What is harassment? Who is protected? From whom? How do you report? What is retaliation? What happens in an investigation? What are the possible outcomes?
  5. Review real life situations, pertinent to your industry and culture. Some offices are huggy, while others are not. Some offices are serious and quiet, some are not. Some have board members and volunteers regularly in the mix, others don’t. All of those factors and many more affect your office culture and employee workplace interactions.
  6. Answer questions that your employees have about what is OK and what is not – and what is dependent on the situation and presentation.
  7. Spend extra time with your managers to review their enhanced responsibilities as supervisors. Clearly, being a manager is not as glamorous as it appears. We give them some more tools to help address these difficult situations as and when they arise.

If you are ready to schedule your Anti-Harassment Training, contact any of the attorneys or HR professionals at Lake Effect HR & Law. We are ready to help you tick this item off your to-do list.

Lake Effect HR & Law, LLC
(844) 333-5253 (LAKE)
info@le-hrlaw.com

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