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Spring is in the air, and we hope your business continues to blossom throughout the year.

HR Alerts

Proposed EEOC Rule to Redefine Age Discrimination Defense. On February 18, 2010, the U.S. Equal Employment Opportunity Commission (EEOC) released a Notice of Proposed Rulemaking with new criteria for establishing the “reasonable factors other than age” defense for employers facing employee age discrimination claims.

Additional COBRA Premium Subsidy Extension Proposal.  The Obama Administration has proposed in the federal budget for fiscal year 2010 that employees laid off from March 1, 2010 through December 31, 2010 would be eligible for the 65% premium subsidy for up to 12 months.

Texting Ban for Commercial Truck Drivers.  Effective January 26, 2010, the federal Department of Transportation (DOT) announced a ban on texting by drivers of commercial vehicles. The prohibition applies to interstate truck drivers and commercial bus and van drivers who carry more than eight passengers.

Making Employees Pay for Damaged Company Property

Many employers have a policy requiring employees to reimburse for damage to company property, usually through payroll deductions or a deduction from the employee's final paycheck. These policies generally reflect employers' legitimate concerns about lost revenue resulting from employees' negligent or willful misconduct. From an employer's viewpoint, such policies are a matter of security and fairness, particularly when reimbursement is required only for intentional misconduct or damage resulting from unauthorized use of company property.

In general, an employer may not deduct for cash shortage, breakage, or equipment loss unless caused by the employee's gross negligence, or dishonest or willful act. However, an employer may deduct from a final paycheck the cost of a uniform, tools, or equipment not returned by a terminated employee within a reasonable time, if the employee gave the employer prior, written authorization to do so and if the employer can show that the employee committed theft or was negligently responsible for the loss.

Under the federal Fair Labor Standards Act (FLSA), a deduction for loss or damage may be made if two conditions are met:

• The employee signed a written agreement prior to the shortage (at the start of employment or when the policy related to deductions is adopted) by which he or she agrees to such a deduction; and

• The deduction does not bring the employee's hourly rate below the minimum wage.

While employers may be limited or prohibited from deducting from employees' paychecks for loss or damage to company property, they can take other affirmative steps to limit their losses from employee negligence or willful misconduct.

• Discipline. If an employee causes damage or loss because of poor performance, the employee should be subject to discipline in the same manner as employees with other performance issues.

• Termination. In the absence of a collective bargaining agreement or other employment contract, employees can generally be terminated at the will of the employer. Employers should include a provision in their discipline policies reserving the right to impose discipline, up to and including termination, in any situation they deem appropriate. Willful or intentional misuse of company property resulting in significant loss could be grounds for immediate termination.

• Civil Suit. Employers can file a civil suit or make a claim in small claims court to recoup the money owed for the loss or damage.

Thus, before implementing such a policy or executing an agreement with an employee to authorize payroll deductions for damage or loss to company property, employers should be aware that many states and the federal government have laws restricting or even prohibiting an employer's ability to make such payroll deductions.

Question & Answer

Employee Display of Religious Items

Q. Do employers need to accommodate employees who display religious items in their work area?

A. Generally no, as long as the company has consistently applied a workplace policy which does not allow religious items to be displayed. Some employers may permit employees to display religious items in their own “private” work areas but prohibit such display in common workspace areas (i.e. front desk / main lobby, break rooms, copy machine area, etc.). If the employer has no policy in place or in practice, then an employee may be generally free to display religious items in the workplace.

The Significance of Continuous Service

Employers in periods of economic instability may find themselves with a higher frequency of employees leaving and even returning back to work within a short time period. One item that some employers may not be familiar with is the concept of “continuous service.”

Continuous service involves a period of employment service with an employer, starting with the employee’s very first date of hire with the employer) and ending with the latest termination date. When an employee terminates (i.e. resigns or is discharged), the employer may designate the individual as “rehirable” and eligible to return to work. The time between a termination date and being rehired is often referred to as a “break in service.” Bridging the time before and after the employee’s break in service may offer a nice benefit to the rehired employee.

To determine how continuous service may be considered, review the following points:

• Know if the employee is rehireable and left previously on good terms.

• Know what will be the employee’s rehire date (original date hired versus new date rejoined)

• Know if employment forms (I-9, W-2, etc.) need to be revised or completed if there is a significant gap in employment period.

• Know how compensation and benefits (i.e. PTO, sick leave, vacation leave, etc.) may or may not reset based on previous years of service.

• The Employee Retirement Income Security Act (ERISA) impacts pension plans to require that a participant’s service be more or less continuous in order to qualify for a retirement benefit.

Advantages of initiating continuous service exist. There are cost savings in time and money without having to train rehired individuals. Rehired employees also are already familiar with the workplace culture, practices and procedures. If deciding to adopt such a practice, be sure to treat all employees consistently.

Tool of the Month: 

Social Media Policy

The enormous popularity of social media continues to climb as well as become a much greater issue in the workplace. What has been your company’s response? How have you as the employer addressed its effect on employee performance and general productivity? Having a current policy in place can help you provide guidance for employees on important aspects, such as:

• Conduct and behavior at work

• Usage of company-issued equipment and devices

• Privacy issues

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Legal Disclaimer: This message does not and is not intended to contain legal advice, and its contents do not constitute the practice of law or provision of legal counsel. The sender cannot be held legally accountable for actions related to its receipt.