ADA

Thursday, June 19, 2008 9:18 PM

Name: Cynthia
 
Question: A supervisor informs HR that a hearing impaired employee has reached the maximum level of attendance points allowed. The supervisor is recommending termination. How do you handle it? Thank you.

Response:

Cynthia,

You do not state that the employee has received any type of corrective action at this point.  To summarily terminate any employee – whether the employee is disabled or not is not fair to the individual as they were never given an opportunity to correct their behavior. If you are using a point system, there should still be some type of progressive discipline in which an employee is notified of that they are reaching what would be considered an unsatisfactory attendance record.  Additionally, depending upon the State you are in, you will have a better chance of winning an unemployment hearing if you have a record of progressive discipline for the attendance problems. 

I am assuming you are asking this because of the fact that the employee has a disability. The Americans with Disability Act requires that an employer make reasonable accommodations for a person with a disability so they can meet the expectations of the job.  It does not require an employer to lessen the performance and attendance standards for a person with a disability. 

With that being said, however, there are a few questions I have.  Is this individual required to go to a doctor for his/her condition on a regular basis?  If so, do these doctor’s visits affect his/her attendance and add to the number of points the individual receives under your attendance recordkeeping system?  If your answer to each of these questions is yes, then you may want to reconsider termination as allowing the employee to have an additional couple of days to attend to medical responsibilities could be considered a reasonable accommodation? 

When making these types of decisions, try to put yourself in the position of a member of a jury in a discrimination lawsuit.  If the employee never received a disciplinary notice and is held to the same standards as non-disabled employees, would you as a member of a jury decide in favor of the disabled employee or the employer? 

You did not give me a lot of facts to go on here so I am doing a lot of speculating.  So if you could supply me with a few more facts, I am sure we can help you. Do not hesitate to contact me with additional information or if we can be of additional help to you.

Kind regards,

Bob McKenzie

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COMPENSATION

QUESTION FROM:  SHARON
INDUSTRY:  HEALTHCARE

Hi, Bob.  We've spoken a couple of times.   Your newsletter came while I was doing research...for suggestions for a competitive way to offer incentives for managers who fill in at another location until an opening is filled.  Basically, doing 2 jobs at one time...their own and the one of the vacant position.  Currently we think we'd pay (in addition to salary) a daily rate at the 2nd location, based on the annual salary of the open position divided by 2080 x 8 hours.  Thoughts?  Please and thank you.

RESPONSE:

Sharon,

I am making an assumption that these are professional or management positions and admire your desire to offer an incentive for this situation.  However, I think your plan is a bit too rich as I do not believe it is necessary to pay the entire amount of the salary of the vacant position.  It is always more difficult to do two jobs, but if there is a need for both positions in your organization, then it would be impossible for one person to perform all that is required of both jobs.  In the case you describe, the best you can expect is for someone to oversee the most vital tasks of both positions and leaving the less important, yet necessary items, undone. 

My recommendation is to look at both positions and jointly set short term goals for both.  Give an up-front incentive such as a temporary 15% or 20% salary increase and then offer a cash bonus upon meeting or exceeding the goals or standards being met while working both jobs. When the replacement is found, then pay a bonus based upon meeting the performance criteria.  This could be a lump sum and the target amount should be agreed to up front.

If these are professional and management positions, it could take in excess of 3 months to find the right person.  This makes for a good opportunity to take your time to ensure that the best person for the position is found. 

Contact me directly if you have any questions or if I can be of additional assistance.

Thanks for asking Bob.

Kind regards

Bob McKenzie, President

From: sharon
To: bobm@mckenziehr.com
Subject: RE: Ask Bob

Thanks so much, Bob.  I always appreciate your insights.  Take care, Sharon

QUESTION FROM:  MARLA
INDUSTRY:  HEALTHCARE

What are the pros and cons with Merit Pay.  and what are the alternatives?  Do most companies in Jacksonville use merit pay or another form of reward?

RESPONSE:

Marla,

I hope all is well.

I love these kinds of questions because there is no easy answer. 

I am a firm believer in merit pay systems.  However, to be effective, they must be implemented properly with a large enough deference in either percentage or dollar volume raises between the higher achievers in your organization and the mediocre performers.  With smaller merit increase budgets, there is a smaller pie to split among all of the employees.

There are a couple of ways to implement a merit pay plan. 

One is to equate certain scores on a performance appraisal to a corresponding salary increase.  For example, if the performance appraisal is on a 1 through 5 scale with 1 being unacceptable performance, 2 being needs improvement, 3 is meets standard, 4 exceeds standards and 5 being walks on water, your distribution of increases may look something like this (assuming a 4% merit increase budget):

• Overall score of 1 or 2 - no increase.
• Overall score of 3 - 2% increase.
• Overall score of 4 - 4.5% increase.
• Overall score of 5 - 6.5% increase. 

A second way is to be a little more sophisticated with the distribution of increases depending on the employee's performance AND position in the salary range. Assuming that the midpoint of the range is the rate at which an employee performing the job is fully functional, any payment beyond the midpoint should be slowed down a bit.  Using the above performance appraisal distribution, two employees scoring a 4 with one paid below the midpoint and the other above the midpoint would get different percentage increases.  The one above the midpoint may get a 3% increase whereas the person below the midpoint may get a 5% increase.  Another way to look at this is the dollar amount of the increase.  Even though the percentages are different, both may get a $1,000 per year increase.
 
Another way is to tell the department manager that she/he has “x” dollars to split among her/his employees - but must justify each with a corresponding performance appraisal. 

Merit pay systems reward higher performers and, therefore, are good for the organization.

The downside of merit pay systems include the difficulty many managers have in quantifying performance standards, giving realistic reviews, differences in managers’ definitions of performance factors, and one manager being a tough reviewer and another being a softie. 

To be effective, the standards of performance for each position and each performance factor should be defined prior to the review period. 

Other pay plans include across the board or cost of living increases (a big YUCK as far as I am concerned).

You can also have step systems in which an employee gets a specified raise either over a specific period of time or by accomplishing certain objectives.

There are skilled-based pay systems and knowledge-based systems that pay people differently depending on what skills or knowledge the employee brings to the organization. 

As for what employers in Jacksonville do, I would venture to guess that most say they have a merit system, but as to how well they are implemented and delivered to the employees is another story.

Thanks for the questions and I apologize for such a long-winded answer.

You know where to find me if you need help with this.

Kind regards,

Bob McKenzie SPHR, President

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DRUG TESTING

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QUESTION FROM:  MARILEE
INDUSTRY:  ENVIRONMENTAL ENGINEERING

Is there any law that requires us to offer Employee Assistance/Treatment for a positive drug result?  I am working on a update to our handbook, and we would like to state "No Tolerance" period.

RESPONSE:

Marilee,

The only law that you may have to be concerned about has to do with anyone who drives a large truck – over 25,000 lbs.  If this is the case, then you have to give them some information on an EAP or substance abuse program.  However, you are still able to terminate – but still must give them info on a program.   This can be as simple as ripping out the page in the yellow pages on substance abuse facilities. 

So the answer to your question is that you can implement a drug free workplace program with a zero tolerance for any positive testing.  If you want to be in compliance with the Florida Drug Free Workplace Act, you must give your employees 60 days advanced notice of your intention on changing the policy.

Let me know if this answers your question or if we can be of further assistance.

Kind regards,
 
Bob McKenzie, President

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EMPLOYMENT AT WILL

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QUESTION FROM:  BRIAN, CSO (CHIEF SACKING OFFICER)
INDUSTRY:  PRINTING

Can I can somebody whenever and for whatever I want?

RESPONSE:

Dear CSO:

Your question cannot be answered by saying “yes” or “no” because the answer is “yes” AND “no.” The employment at will doctrine states that the employment relationship is for no specific period of time and can be ended by either party at any time, for any reason or for no reason. HOWEVER (AND IT IS A BIG HOWEVER), the concept of "employment at will" has been watered down to the point that it has little meaning anymore.  For example, an employer violates public policy when terminating an employee who is serving on jury duty or serves as a witness in court.

Discrimination laws, whistleblowing laws, retaliation for filing a workers’ compensation claim, the Family and Medical Leave Act and other employment related legislation have made the concept virtually useless. There have been a few occasions in which we have utilized the concept to "can" people, but only after reviewing all of the potential risks. 

All of this legislation has also increased employee awareness of their so-called rights.  Our experience indicates that when employees are terminated for no cause or feel that the employer's treatment of them is unfair, they will want to retaliate.  We are working on three EEOC charges of discrimination now that have no merit - but were filed by the terminated employee as a way to get back at the company for firing them. Therefore, we recommend that employers stop thinking about employment at will in their dealings with employees and treat them with fairness, consistency, respect and dignity.  Keep the employment at will statements on your applications, offer letters and handbook, because you may have to revert to it from time to time.  But use it very rarely.

Sorry for the long answer.  Here's a link to a great article about employment at will.

http://www.mckenziehr.com/enews/august2004.htm

Let me know if you need additional information.

Regards,

Bob McKenzie, President

From: Brian
To: bobm@mckenziehr.com
Subject: RE: Ask Bob

Man, "Ask Bob" really works!

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EMPLOYEE RELATIONS

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QUESTION FROM:  DIANE
INDUSTRY:  NON-PROFIT

A new employee has just joined our company this week. The two other people in the three- person department where he is working are taking offense to the "cigarette odor".  They are non-smokers and, evidently, he does smoke. The supervisor wants to give him the option of not having a cigarette odor or being let go.  What kind of trouble could we be in if he is let go under these circumstances? Thank you.

RESPONSE:

Diane,

You should not have any issue if the employee smells of cigarettes and he is terminated for this.  Here's another option, though.  Instruct the smoker to wash his hands after he smokes.  Most of the smoke odor collects on the fingers and hands of the smoker.  This will not totally eliminate the smell, but should reduce it considerably. 

See how this goes.  If he has a problem with this alternative, he is obviously one of those rude smokers that we all hate. 

Approach him with this option and see how it works.  If there are still complaints after he does this, let's cross that bridge when we get to it.

Good luck

Bob McKenzie, President

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FMLA

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QUESTION FROM:  DIANE
INDUSTRY:   COMMUNITY BASED NON-PROFIT

We have a person on FMLA who has almost enough time to cover the complete 12 weeks.  While he has been out the payroll department has him accruing sick/vacation time.  In the FMLA policy as I read it, it states, "Although benefits will not accrue during any leave, benefits accrued before leave will not be affected except that the Company may require that any accrued paid vacation, paid sick leave, etc.... “  From what I read is it correct to say that a person on FMLA (even though they have a large sick/vacation balance) and using sick/vacation time should not accrue sick/vacation while on FMLA?  Thanks for your answer.

RESPONSE:

Diane,

This is sometimes a very confusing thing to understand because FMLA is an unpaid period of time.  I always like to say there are three buckets:

            1) FMLA;
            2) Vacation; and
            3) Sick or other paid time off benefits.

The FMLA is always unpaid.  However, you, as the company, can require employees to use sick and vacation time while on FMLA and your policy should state this.  The paid time used by the employee on FMLA still falls under your regular sick and vacation policy.

If you normally allow employees to accrue time off benefits while on vacation, then they should accrue the same amount of time off while on FMLA.  If the employee you are questioning had 12 weeks of leave available and you continue to accrue time for an employee on two weeks of vacation to go skiing in the Alps, then you must also accrue time when an employee is on FMLA.  (I am making the assumption that you do not stop the time off accrual when someone is out sick for a week or on vacation.)

If this is the case, then the only time that vacation or sick time accrual should not be given to the employee is after the vacation and sick time is exhausted while on FMLA.

Have a great rest of your week.

Kind regards,

Bob McKenzie, President

QUESTION FROM:  BONNIE
INDUSTRY:  RESIDENTIAL BUILDERS

I have an employee who has been out on worker's compensation since 6/16/05 due to an OJT accident.  She was released to part-time duty 9/23/05 and is still only working 1/2 days.  She has exhausted her FMLA leave.  How long must we keep her on w/c status as a pt worker when her position requires full-time capability.  Her position is that of sales trainer and we are now reaching critical mass in our training requirements as well as needing to hire additional staff to handle our training requirements.  Please advise.  Thank you.

RESPONSE:

Bonnie,

You are under no obligation to return this person to the same job if she was released to return to work on a part-time basis.  Even with FMLA, if the individual is on a reduced schedule leave, you have the option of transferring her to another position during the period of time she is on the reduced schedule.

Look within your workplace to see if there is another job she can do that is not as critical as the one she holds now and transfer her to that job.  Since she is a sales trainer, can you have her put together the material and schedule the training sessions while having another employee do the training?  Look at re-arranging some of the functions others do to see if there is an opportunity to have her add value while giving the actual training duties to another individual.

If nothing is available in the sales training department, look at another department within your organization where she can do part-time work. 

Under workers’ comp rules, you are also under no obligation to hire her for light or part-time duty if you do not have that type of work available.  The problem with this is if you tell her you only have full-time work available and she cannot work a full-time schedule, she will receive more in the form of workers comp payments, which you will pay for in higher premiums later. 

Now that her FMLA has expired, you do not have to offer her the same position if she is not able to perform the essential functions of the job - being available for a full-time schedule sounds like it is essential to your business. 

Sometimes, you have to be a little more creative in coming up with ways to make these situations work for you.

I hope this helps.  Let me know if I can be of additional help.

Bob McKenzie, President

From: Bonnie
To: bobm@mckenziehr.com
Subject: RE: Ask Bob

Thank you so much for your quick response, it is very much appreciated. You've given me some excellent information to enable us to move forward with our planning for the New Year with our training department.

Have a great holiday season and best regards,

QUESTION FROM:  JOHN
INDUSTRY:  MORTGAGE LENDING

In determining exemption from FMLA based upon having under 50 employees,  would we need to include employees that are registered as being licensed employees of our Corporate branch address, but physically work from other locations? 

RESPONSE:

John,

For FMLA purposes, it is the location in which the employee actually works. 

So, in your case, if one of your salespeople is licensed in Palm Coast and works out of an office in Fort Lauderdale, the Fort Lauderdale location is used for determining the 50 employees within a 75 miles. 

Hope this answers the question.

Thanks,
 
Bob McKenzie, President

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I-9 FORMS

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QUESTION FROM:  CHRISTINE
INDUSTRY:  VEGETATION CONTROL

I was told that I should not keep a copy of an employee’s picture ID in his employment folder. Is this true? Also we have a lot of immigrants that work for our second company and I was told to keep their I-9's in a separate file. Should I keep their ID's in that file or their employment file? Thank you!

RESPONSE:

Christine,

Keeping a picture of an employee in a file could be a problem because it clearly shows the race of the individual.  The thought is if a manager is looking through a file to consider a person for a promotion, the decision must be based on criteria other than race. Personally, I think this is ridiculous (because upon interviewing someone, you should be able to determine the race of the individual), but the government agencies and the courts have ruled that such practice could be seen as discriminatory. 

With regard to your I-9 forms, they should be filed in a separate 3-ring binder and filed alphabetically.  Since the Immigration Reform and Control Act does not require you to keep copies of the documents, we recommend that copies of the documents used to determine identity and work authorization NOT be made and NOT be included with the I-9 forms. 

However - and this is a big HOWEVER - BE SURE THE I-9'S ARE FILLED OUT CORRECTLY AND IN THEIR ENTIRETY.  Also if you hire employees with temporary work authorizations, be sure to have a follow-up system to be sure that all work authorizations are current.

I hope this helps.  Let me know if you need additional information or an audit of your I-9 forms.

Thanks for asking Bob. 

Kind regards,

Bob McKenzie, President

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RECORDKEEPING

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QUESTION FROM:   MAGGIE
INDUSTRY:  NON-PROFIT

How long should applications of people you did not interview be retained?  What about for candidates you did interview but not hire?  What about EEO Self Identification forms?

RESPONSE:

Maggie,

If you have any funding coming from the Federal government, you should keep applications and the self identification forms for a year.

If not, you can keep them for as little as three months.  However, with the statute of limitations on the filing of discrimination charges being up to one year, depending upon whether a charge is filed with a state or Federal agency, it is prudent to keep the applications and the self identification forms for a year. 

Thanks for using "Ask Bob".  Let me know if you have any additional questions.

Kind regards,

Bob McKenzie, President

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VACATION PAY UPON TERMINATION

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Wednesday, June 18, 2008 10:30 AM
To: bobm@mckenziehr.com
Subject: Ask Bob
Telephone:  305-555-5555

From: Lou

Question: If an exempt employee is terminated (voluntary or involuntary), is the Employer required to pay out any unused PTO accrual on his/her last check?

RESPONSE:

Lou,

I see that your telephone number area code is 305 which means that you are in South Florida.  If the employee in question is also in Florida, then the answer is no- you do not have to pay out unused PTO.  However, it is also a good idea to have this policy in writing in a handbook or similar document to avoid any confusion on this.

If the employee is in another state, I would have to know which state the employee was employed to determine if it is required to pay out unused PTO.  Some states require that unused Paid Time Off and/or vacation be paid to the employee upon termination.  Other states require such payments unless the company has a specific policy stating that unused PTO/vacation will not be paid upon termination.

I hope this helps.  Let me know if you have additional questions.

Kind regards,

QUESTION FROM:  DIANE
INDUSTRY: NON-PROFIT

If our employee handbook states the employee is to give two weeks notice prior to resignation but instead gives less than the stated notice, do we have to pay them vacation pay in their final paycheck?  Thank you.

RESPONSE:

Diane,

In the state of Florida, you are not required to pay out vacation when someone leaves your company.  However, if your