Ask the Experts: Answers to HR Legal Questions

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The ever-changing legal landscape at the city, state, and federal levels keeps life interesting for lawyers and politicians, but can sometimes be overwhelming for employers. Between knowing what is legal to ask during the hiring process, keeping track of wage and hour regulations, administering various types of paid time off, and keeping proper documentation in case of any challenges, companies often find themselves with questions about murky aspects of the law, or delicate situations with employees.

Partner Andrew Singer and Associate Attorney Jason Klimpl from employment law firm Tannenbaum Halpern Syracuse & Hirschtritt visited TemPositions’ HR Roundtable Series on Thursday, June 25 to answer questions brought by attendees.

Singer and Klimpl briefed attendees on the implications of New York City Fair Chance Act, which is set to prohibit employers from asking potential hires about past felony convictions. They also discussed an upcoming initiative by the New York City Human Rights Commission to screen for discrimination in hiring using candidate “testers.” They advised attendees on best practices to comply with anti-discrimination laws in recruitment and hiring practices.

Singer and Klimpl also answered many questions from attendees about wage and hour regulations, and how to avoid class-action lawsuits related to these regulations. They discussed the logistics of using arbitration as a means of problem-solving, which is often advantageous for employers in this area. Attendees asked about how to manage and penalize chronically late employees, and how to make company policies fair, consistent, and legal across locations in different states.

Another area of discussion was paid time off. Attendees had questions about complying with New York City’s sick leave law at companies with blanket paid time off policies, and under circumstances involving probationary periods for new hires.

Unclear situations relevant to the Americans with Disabilities Act and Family and Medical Leave Act were also addressed. This included questions about the specifics of “reasonable accommodations,” and best practices for handling situations in which poor work performance and health issues may intersect.

Fair Chance Act

This new piece of legislation passed by the New York City Council was the first thing Singer and Klimpl introduced to the group. None of the attendees had heard of it.

“It’s basically New York’s City version of ‘ban the box’ legislation,” explained Singer, triggering instant recognition among attendees.

It was signed into law by Mayor Bill De Blasio several days after the Roundtable.

The Fair Chance Act prohibits companies from asking job applicants whether they have been convicted of a crime until after a conditional offer of employment has been made. After that point, companies must provide documentation of the inquiry, analysis, and relevant supporting documents to the candidate. The candidate may then use this report to challenge a hiring decision within three days.

Section 23-A specifies the factors an employer is allowed to consider when deciding whether or not to hire a candidate with a criminal record.

Klimpl said that the legislation is more onerous for companies than many ban-the-box measures in other states.

“If that person discloses that they have been convicted of a crime, you then have to go through the Article 23-A analysis, actually put pen to paper, and write up a whole analysis about which factors apply,” he said. “You have to hand the applicant the written analysis, and give that person three days in which you hold the job open so that they can challenge it and have a dialogue. This is unprecedented.”

An attendee asked about the appropriate course of action if a criminal conviction pops up during a background check.

Singer responded that in most cases, a background check must not be done until after an offer has been made since it usually reveals criminal records.

He said that while it was easy in the past to simply not disclose to a candidate with a criminal record why he/she did not get a job, the new law mandates much more transparency.

“From a practical landscape, it’s going to be very, very hard for a company to get out of hiring somebody who has convicted any crime,” Singer said.

The law does not apply to jobs that require fingerprinting.

New York City Human Rights Commission and use of “testers”

Beginning on October 1, 2015, the New York City Human Rights Commission will commence a new initiative to identify employment discrimination in hiring practices. The agency will send two “tester” candidates with similar credentials to apply for the same job. The tester candidates will differ in that one will be of a protected class (based on race, gender, etc.) while the other will not.

“If the employer does not treat them the same – let’s say the one who is not in a protected class gets a second interview or a job offer – that company is going to get audited, and there’s going to be lots of problems,” said Singer.

Testers will not reveal themselves as such at any point in the process.

Klimpl said that is good practice to diffuse hiring responsibilities among many people so a single person cannot be accused of bias.

“We always think it’s helpful to have more than one decision maker with respect to applicants,” he said. “A committee or a group of people who can discuss someone’s qualifications, that’s a better process. It’s a better process even without this new initiative.”

An attendee asked if committee members should all interview a candidate at the same time, or if it was okay to do separate interviews. Klimpl said that separate interviews are fine, but recommended having a discussion or multi-person process in place for making decisions.

“It is much easier to prove circumstantial evidence of discrimination if only one person is making the decision,” Singer added. “If it’s three people, you really have to show that all three people are discriminating, and that’s a lot more difficult to prove, and for a jury to believe.”

Another attendee chimed in that it is helpful to create a standard interview template so every candidate is asked the same questions. She also recommended documenting committee feedback as to why each candidate either did or did not make the cut. Singer praised these ideas.

Singer also advised training employees on interview techniques so they only ask legal questions, and can handle tough situations effectively, such as when candidates volunteer information about which they are forbidden to inquire. Tannenbaum Halpern Syracuse & Hirschtritt offers training sessions.

Klimpl pointed out that iffy situations come up frequently as a result of natural human interaction. For example, asking a candidate what he/she likes to do in his/her spare time may yield information that the interviewer should not have, e.g. “I volunteer at my synagogue.” He suggested a better way of phrasing the question: “What do you do outside work that you think may affect your qualifications or skills to perform in this position?”

Singer said that training is also important to teach employees how to interview in a legal but also natural way in order to suss out “fit.”

“If you have properly trained people doing the interviews, you have a much greater chance of hiring the right person for the job, and that’s more important than not getting sued,” he said, mentioning that this is especially important for higher-level managers and executives.

Singer noted that many HR departments have difficulty getting upper management to take their requests seriously and do training, because HR is not viewed as a business generator. He said he is generally happy to talk to executives on on the phone or give educational presentations, which can help bring attention to the importance of the issues.

Wages and Hours

Klimpl noted an increase in the number of wage and hour legal actions during the last 10 years. He mentioned that such cases have overtaken discrimination claims in his practice.
“It’s the most commonly-filed federal lawsuit,” he said, referring to overtime lawsuits.

Klimpl said that such lawsuits are notoriously difficult to defend because they are typically brought by way of class or collective action.

However, he suggested a strategy to minimize the risk of dealing with such actions based on the Federal Arbitration Act. While the Fair Labor Standards Act (FSLA) allows collective actions, The Federal Arbitration Act recognizes the purpose of arbitration and deems resolutions reached this way enforceable.

Klimpl discussed a recent Supreme Court case in which the Court held up a provision from an arbitration agreement in which the plaintiff waived the right to participate in class and collective actions, despite the FSLA. The Court ruled that waiving the right to participate in a class or collective action in an arbitration agreement is legal and enforceable. This is the only circumstance under which the right to participate in a class or collective action can be waived.

“I cannot begin to tell you how disarming that is,” said Klimpl, noting the lack of incentive for lawyers to spend years pursuing overtime for one individual. “I’ve seen nothing but great case law coming out on this recently.”

Klimpl acknowledged that arbitration is not without its caveats, but recommended it to mitigate the risk of collective actions. With this practice, employees sign arbitration agreements consisting of specific, enforceable language.

Singer recommends arbitration agreements for companies with a lot of employees, high turnover, and/or many seasonal or hourly workers.

Overtime Exemptions
It can be difficult for even seasoned HR professionals to get everything right 100 percent of the time when it comes to interpreting overtime exemptions. For example, Singer noted that unless an employee is a lawyer or a doctor, the overtime exemption for professionals is probably not applicable.

Despite this, it is crucial to scrutinize this area and demand the CEO’s attention to make sure the company is in compliance to avoid lawsuits.

“That’s something that’s going to cost a lot of money, and if that happens on your watch, that’s something you’re going to get blamed for,” Singer cautioned.

He said they often advise clients to settle such suits because it usually ends up costing significantly less than fighting them.

An attendee said that her company was switching to a computerized system for employees to clock in and out to solve the problem of employees inaccurately filling out manual time sheets. The plan is for all employees – exempt, non-exempt, executives – to use this system (in order to be fair). She wanted to know if there were any possible legal problems with this plan.

Singer said the plan itself did not present any red flags.

“It’s what you do with the information,” he said. “Are you docking someone’s pay?”

“There are plenty of business-related reasons to track your exempt and non-exempt employees’ hours,” Klimpl concurred. “You want to study the metrics, see how resources are allocated, those are all fine.”

The only caution Klimpl issued was accounting for “boot time,” i.e. time during which computers are booting up. Employees must be paid for this time.

“You can’t put up barriers to someone clocking in. They can’t have to wait 15, 20 minutes for technology to get up and running and say ‘okay, now I’m here,’” he added.

Lateness

Another attendee asked about how to deal with chronic employee lateness, saying that her organization docks 15 minutes’ worth of pay after eight minutes of the late employee’s scheduled start time. She wanted to ensure this practice was legal, and also wanted to know how to punish chronic offenders.

Singer said if there is a policy in place that employees violate, the organization is free to discipline offenders, and fire at-will employees for infractions. However, it is at the discretion of the organization where to draw the line. He suggested sitting down and having a discussion to formulate a policy that makes sense for the organization, and a clear outline of the consequences for violating the policy.

Klimpl advised the attendee to exercise caution with docking 15 minutes of pay for being eight minutes late, saying that it is important to be even-handed in the application of such a rule.
“If they ever work an extra eight minutes, do you pay them for 15 minutes more?,” he asked. “You have to be consistent.”

An attendee asked if the organization had any type of system where certain latenesses can be excused, such as information from the MTA if the tardiness results from the train. The original attendee said that no formal system was currently in place, though they sometimes make allowances. Singer again emphasized that each organization is unique and needs to formulate policies that will work with its specific needs.

A different attendee said that within her organization, there is inconsistency when it comes to determining how late is late among different supervisors; one supervisor may write up an employee for being three minutes late, while another may only do so if an employee is 10 minutes late. She said there are 1,000 people in the organization.

Singer advised coming up with a policy, and gathering all managers in the same room to talk about and communicate the policy. He reminded attendees that employee handbooks are “living, breathing documents” that are there to be enforced, and can be altered to fit changing circumstances or goals.

The attendee clarified that the company did have uniform policies, but different managers, at different levels, in different departments, at different sites, were not enforcing the rules evenly. She asked what could be done to change this.

Singer responded that the issue is one of workplace culture, and recommended gathering managers for an open discussion of the organization’s goals and values, and what it wants from its employees. In his experience, coming up with a core set of values tends to bring the interpretation of policies more in sync, because everyone is more conscious of and acting in accordance with the same set of values. He noted that this process also involves prioritizing what is most important in terms of values.

“The organizations you never hear about in the newspaper with lawsuits or anything like that are the ones that have great corporate culture, great core values that everyone shares,” he said. “That’s the key to running a great organization.”

Klimpl added that the keys to having such a culture are communication and training. He said that many types of lawsuits he has dealt with have resulted from inadequately trained supervisors who acted in ways contrary to what the company wanted.

Someone else asked if it is problematic to have different policies at different locations.

Singer said it both important and challenging to have policies that comply with each state’s respective regulations, which can vary. Also important is the type of location and work done there. For instance, it makes sense to have different policies for a location comprised mostly of office workers and one that primarily does manufacturing.

Paid Time Off

The discussion about lateness segued into a discussion about paid time off, including vacation and sick days. Singer observed that he sees more and more companies instituting policies of unlimited vacation and sick days.

An attendee said that her company has such a policy, and that it has presented problems.

“It’s great for the majority, but there are a few employees who continue to abuse it,” she said. Because of this, she said the company had begun asking for a doctor’s note after two days of sick time. She said that has helped somewhat, but that there are still issues.

Another attendee raised the question of how companies can ensure compliance with the New York City sick leave regulations with this type of policy.

A different attendee mentioned that all employees at her company are subject to a 90-day probationary period when they start at the company. She wanted to confirm that the company is not obligated to pay out sick leave time under New York City law if an employee leaves during that period.

Klimpl confirmed that the law does not require any sick leave to be paid out, unless the employee is rehired within six months for some reason. However, the city advises companies to state this policy explicitly in information distributed to employees. He speculated that it is possible for a case to arise if this was not explicitly stated in a company’s handbook or policies, though such a thing has not happened at this point.

Things can get a bit murkier for companies with general paid time off (PTO) policies that don’t differentiate between vacation time, sick time, etc. New York state mandates that employees be paid out for remaining vacation times unless explicitly written otherwise. Because of this, Klimpl advised companies with general PTO policies to include a written policy that unused PTO days are not paid out upon termination of employment.

In Illinois and California, unused vacation days must be paid out. Because of this, Klimpl advises companies to differentiate between vacation days and sick days in these states.

Roger Oliver, host of the Roundtable Series and director of strategic accounts at TemPositions, raised the point that many people do work activities off the clock, such as answering emails on their smartphones on weekends and evenings, and asked how this fit in with policies on lateness and paid time off.

Singer said that there have been lawsuits related to after hours work, and therefore it is very important for companies to have relevant policies in place and communicate them clearly to employees.

Probationary Periods

Singer then addressed the concept of probationary periods as a whole. Because most states are at-will states, companies may fire employees at any time for nearly any reason.

“There are cases where if you have a probationary period, that gives that new employee a right to meet your standards of employment during that period of time,” he said. “If you decide after three weeks that he’s not going to cut it, there’s at least an argument that ‘wait a minute, I have 90 days to get this right.’”

“What you’re doing is you’re eating away at the greatest right under the law that employers have, which is the at-will doctrine,” he added.

Based on this logic, Singer strongly advised against probationary periods, saying that companies only hurt themselves by having them.

“You can have a period of time before someone can get benefits, you can have certain days before you can start taking vacation, that’s all fine,” he continued. “But to just have ‘you’re a probationary employee until you complete 90 days of employment,’ there’s absolutely zero benefit to the employer, and it can only hurt you.”

Klimpl raised the point that the potential for problems does not vanish after the probationary period ends.

“What happens when an employee crosses the 90-day period?,” he asked. “What do they think? ‘You can’t fire me! I survived my 90 days! You have to fire me for cause now!’ What’s the point of that?”

Singer emphasized the importance of including “at-will language” everywhere possible in written communication.

“You’d be surprised at how often courts really examine the language in handbooks,” he said. “If you miss one word, they’ll drive a truck through there.”

ADA and FMLA

An attendee asked Singer and Klimpl to touch on the Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA).

Singer reminded attendees than in addition to these federal laws, they must also be aware of any state or city laws that apply to these topic areas.

In New York, companies are generally required to provide reasonable accommodations to employees with medical conditions to enable them to perform the essential functions of their jobs.

Singer highlighted that FMLA can be utilized in the form of intermittent leave. For example, if an employee needs to leave twice a week for three hours at a time to get treatment, it may be covered under FMLA.

“If you forget to put that employee on FMLA leave, you could end up giving that person a lot more time with job protection that you may otherwise want,” Singer said.

He also reminded attendees that under ADA, it is not required for an employee to tell the company unprompted that he/she has a medical condition that requires an accommodation. If an employee’s behavior has changed or something seems off, the employer may have to approach the employee and ask what is happening. Singer advised focusing the conversation on the behavior’s effect on the employee’s performance of his/her job functions.

Klimpl also brought up the issue of what to do if an employee who has exhausted his/her FMLA leave requests a reasonable accommodation, such additional unpaid leave or permission to work from home. At that point, Singer said the company must do an analysis of what the employee does for the company, what he/she is asking, and how it would impact the company.

“You are permitted to not provide a reasonable accommodation if it would be an undue hardship,” Singer said.

However, he and Klimpl warned that undue hardship is very difficult to prove, and advised against it.

Instead, Klimpl advised that the company consider whether the requested accommodation really enables the employee to do the essential functions of his/her job. For example, if an an employee requests to work from home, would this accommodation truly allow him/her to perform all essential job functions?

Klimpl pointed out that the ADA and other disability laws don’t require companies to shift employees from their current jobs, or to create a new jobs to accommodate disabled employees. However, if there is an open position within the organization, the employee must be considered.

An attendee asked if the essential functions of an employee’s may be modified to facilitate his/her return to work. Singer responded that doing so is allowed, but is not required of the company.

Health issues, performance problems, and firing

Sometimes, an employee is having performance issues at the same time a health issues arises. This can put companies in precarious situations, as terminating the employee for performance-related reasons may be construed as related to health issues.

Singer offered what he described as unpopular but good advice for dealing with subpar employees who also happen to have unrelated health problems.

“Fire them. Fire them immediately,” he said.

His rationale was that underperforming employees seldom improve dramatically, and that the longer a company keeps such an employee, the greater the likelihood that any future firing for underperformance will be conflated with firing for health problems.

“It sounds harsh, but it will save a lawsuit,” he said.

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An attendee raised a relevant issue she is dealing with at her organization. An employee who is not performing well and has taken a lot of unspecified time off at her company murmured to a manager that he has a chronic health issue. Thus far, the manager has used progressive discipline. The attendee said she is planning to put the employee on a performance improvement plan (PIP), but the manager mentioned the health issue just yesterday, and now she is unsure of the best way to proceed in light of that.

“Once the manager is told about a health issue, the company is charged with that knowledge,” said Singer. “You certainly are at risk if you fire that person when you go back to the office now.”

Singer recommended reiterating the job performance issues to the employee, saying she heard he has a chronic health issue, and ask what is going on as it relates to his job performance.

The attendee said that they have an outside administrator that deals with leave, but the illness has been affecting the employee’s performance, and even his ability to call in when he can’t make it to work.

Though a health issue does not negate poor performance, if the poor performance is due to the health issue, the dynamics are much different.

Klimpl stressed that if poor performance is unrelated to the health issue, it is better to fire the employee as soon as possible. However, if there is a possibility that the poor performance is because of the health issue, it is better to try to deal with the health issue first.

Another attendee asked about a trainee who, according to the trainee’s supervisor, is spending large amounts of time in the bathroom because she is pregnant. The supervisor is concerned because the training is very hands-on and requires being in the space. Because the trainee has not officially started the job, the supervisor is unsure how she will perform, but is not optimistic because the job requires being in the space, and because she has missed out on a considerable amount of training due to the bathroom issue. The attendee wanted to know whether the trainee should be let go since she missed out on the training.

“I’m very hesitant to terminate anyone who is pregnant, because there’s someone who’s going to take the case,” Singer said. “That’s just a practical place that I’m at in advising clients.”

He advised delaying placement, and having the trainee complete her training in an extended timeframe.

Another attendee asked about an employee at her organization who frequently complains of illness, and insists on being allowed to work at his own pace on time-sensitive issues. The organization thought he may be eligible for disability because of this and broached the issue with him, but he adamantly denied having any disability-related issues. The attendee said that the employee otherwise does good work, but the pace is an issue.

Singer said that if the organization does not wish to fire the employee, it should be meticulous in documenting discipline and performance issues to avoid problems down the road. He noted that once HR has done all it can to educate the CEO about a potential issue, the onus is on the CEO to assess risk.

A different attendee asked if she should be documenting instances when she inquires of employees about possibly needing help in the form of disability-related accommodations. She often talks to employees face-to-face, but asked if she should use email instead for the sake of documentation.

Singer said that if there are no major performance issues and the employee denies having any health issues, documentation may not be necessary. However, if there are performance problems, and/or a health problem at play, documentation becomes necessary.

Another attendee asked about how much information is necessary and proper to request of employees (and their doctors) who are eligible for disability accommodations, as the company handles the process in house.

Klimpl said that contrary to popular belief, the more information the company can get, the better. He encouraged asking detailed questions of an employee’s doctors and other relevant sources.

“You need to understand the exact contours of what a person can or can’t physically and mentally achieve,” he said.

He added that though plentiful and detailed information is best, normal confidentiality practices are important.

In addition, it is the employee’s responsibility to ensure cooperation from doctors, not the company’s.

Andrea Burzynski is a freelance writer based in New York. Reach her at andrea.burzynski@yahoo.com.

The HR Roundtable is a breakfast forum for human resources professionals in New York City sponsored by The TemPositions Group of Companies. TemPositions, one of the largest staffing companies in the New York tri-state area with operations in California, has been helping businesses with their short- and long-term staffing needs since 1962.

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