April 2011

Welcome

Now that spring seasonal changes have blossomed, please familiarize yourself with the changes in your HR Support Center! 

HR Alerts

FLSA Right to Know Proposal. In April 2011, the Right to Know proposed rulemaking of the federal Fair Labor Standard Act (FLSA) is expected to be released. The proposal covers aspects including updated recordkeeping regulations, as well as disclosure to workers about their status as employees or independent contractors.

OSHA Summary Posting. From February 1 to April 30, 2011, OSHA requires that employers post a summary (OSHA Form 300A) of the total number of job-related injuries and illnesses that occurred in 2010.

IRS Tax Filing Deadline. The traditional tax return filing deadline is April 15 of each year, but the IRS has approved April 18, 2011 as the tax filing deadline for 2010 tax forms.

H-1B Filing Season. On April 1, 2011, the filing period begins for new H-1B petitions to be counted toward the annual cap of 85,000 new H-1Bs for fiscal year 2012.

Six HR Tips for Non-Compete Agreements

Is Cat’s Paw Liability Scratching at Your Door?

A few employers may be familiar with a recent U.S. Supreme Court ruling on March 1, 2011, regarding the case of Staub v. Proctor Hospital and how “cat’s paw” liability played a part. Cat’s paw liability involves an employer being held liable for unlawful discrimination, even though the “motivating factor” in the employment decision-making process stems from an unlawful bias of a supervisor with no employment decision-making authority.

“Cat’s paw” relates to a fable about how a monkey convinces a cat to steal chestnuts from a fire, steals the same nuts from the cat, and then leaves the cat with empty but burnt paws. In the context of the workplace environment, the supervisor is the monkey as the employer is the cat.

At times, it may be difficult to determine what is considered to be an unfair discriminatory situation. Staub had sued the hospital under the Uniformed Service Employment and Reemployment Rights Act (USERRA), which prohibits discrimination against employees serving in the military based on their military status. However, courts may apply similar “motivating factor” tests and decisions in cases under other federal employment laws. Therefore, employers need to be aware of members of all “protected classes” (based on sex, religion, race, etc.) in the workplace in order to make sure that equal opportunities and fair practices are consistently administered.

To help minimize the company’s risks of cat’s paw liability, an employer may apply various preventative measures, such as the following:

• Revisit your company’s mission statement and values.
• Consistently employ fair hiring practices regarding job candidates and employees seeking new job opportunities within the company.
• Review and update the company’s discrimination and harassment policies to ensure they cover clear steps for reporting complaints.
• Assess the company’s process of weighing recommendations and making decisions resulting in adverse employment actions.
• Train managers and non-managerial workers (especially those with recruitment duties) on how to conduct fair hiring practices and procedures toward maintaining equal opportunity compliance.
• Train all members of management on how to effectively investigate for facts, substantiate the findings, and objectively decide on any employment action.
• Conduct independent investigations when appropriate.

Question & Answer

Q. What types of HR compliance audit reviews exist?

A. In general, four types of HR compliance audit reviews exist:

• Compliance: Emphasizes how well the business has complied with state and federal employment laws and related workplace regulations.
• Function-Specific: Focuses specifically on a certain HR function (i.e. records retention, hiring practices, performance management, leaves of absence, etc.).
• Best Practices: Explores ways to enable a business to build its competitive advantage by benchmarking companies recognized with industry-leading HR practices.

The Arrival of Final ADAAA Regulations

On March 24, 2011, the federal Equal Employment Opportunity Commission (EEOC) published its final regulations concerning the Americans with Disabilities Act Amendments Act (ADAAA) that established a broad definition of “disability.” The EEOC also provided new interpretive guidance to address concerns posed when the Act which was passed in 2008. Does the ADAAA expand the pool of qualified individuals who can file disability discrimination claims? Yes. Do the final regulations offer some relief for employers from the initially proposed regulations? Thankfully, yes.

Some highlights of the final regulations include the following:

• ADAAA’s Primary Goal. The focus remains whether or not an employer complies with its employment law obligations.
• Major Life Activity Limitation. With the reinstatement of the “condition, manner and duration” factors in determining whether or not an employee is substantially limited in a major life activity (including “working”), an employer may compare such an employee to “most people in the general population.”
• Duration. The EEOC suggests that substantial limitations cannot be set in a rigid timeframe. A disability may be considered as one covering a long period (i.e. a few months) or one with “sufficiently severe” impairments covering only a short period (i.e. several days) of time.
• Employer Coverage. The “regarded as” clause of what is considered a disability points to the employer’s treatment of the employee versus the employer’s perception of the employee’s impairment. Minor and transitory claims would not be accepted under this provision.
• Individualized Assessments. Any impairment requires an individualized assessment to determine whether or not it meets the definition of "disability."

Tool of the Month: 

Employee Training Log

The Employee Training Log is a simple way to stay organized when it comes to tracking employee (including management) trainings. The training log can provide employers with the following advantages:

• Written documentation of employer’s workplace compliance efforts;
• Monitoring of employee performance development in terms of knowledge, skills, and abilities; and
• Assessment of employee fulfillment of required or recommended attendance due to corrective / disciplinary action expectations.

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