What does cannabis legalization mean for the workplace?

An employee holds marijuana in front of a modified Canadian flag at a dispensary in Ottawa, on June 20.REUTERS/Chris Wattie

On Oct. 17, the legislation decriminalizing cannabis in Canada will come into force.

The reality is that cannabis use, whether it is medicinal or recreational, is already far more prevalent than it used to be.

So what does this mean for the workplace?

Can employees now smoke cannabis at work or on their breaks? What should employers be doing to get ready?

Educate yourself

Educate yourself on what cannabis is, and what it is not, as well as what the new laws allow. Particularly when it comes to medicinal use, “cannabis” does not necessarily mean smoking a joint. It can be used topically, through edibles, or through a vaporizer.

In many instances, the ingredients that cause impairment in recreational cannabis can be removed. So your employee that is prescribed cannabis may well not be smoking nor impaired after consumption.

The legalization of recreational cannabis makes it very similar to alcohol. Contrary to what many people are concerned about, it does not mean that employees will have the right to be impaired or consume cannabis in the workplace.

In fact, the Ontario government passed a provincial act, expected to come into force at the same time as decriminalization, explicitly prohibiting the consumption of recreational cannabis in the workplace and any public place, with exceptions for medicinal cannabis.

Duty to accommodate

Depending on the circumstances, employers may have a legal obligation to accommodate employees with respect to the use of cannabis, such as employees who have a prescription for medical cannabis or have a cannabis addiction.

Addiction is recognized as a disability under human rights legislation, and thus, an employee who has a marijuana addiction may trigger the employer’s duty to accommodate up to the point of undue hardship, unless the employer can show that there is a bona fide occupational requirement (e.g. safety-sensitive position).

Accommodation is a two-way street: the obligation is on the employee to come forward with their request for accommodation and provide sufficient information to allow the employer to assess the need and options for accommodation, including an analysis of whether accommodation is possible without undue hardship.

Employers are entitled to understand the limitations on the employee’s ability to carry out their job functions. An employee’s request for accommodation of marijuana use should be treated just like any other request for accommodation.

Employers have a competing duty to take every reasonable precaution to protect workers under the Occupational Health and Safety Act. Even if the duty to accommodate is triggered, no law will permit employees to work while impaired if doing so poses a safety risk to themselves or others.

Use policies

Employers should have clear workplace policies and procedures in place with respect to cannabis use. While an absolute ban on drugs and alcohol may not be feasible (for example, sales employees may be expected to wine and dine clients), entitlements, limitations, duties and disciplinary consequences of breach of policy should be clearly set out.

You may already have employees in your workplace who are using prescription medication that can cause impairment; cannabis should be treated in the same manner — it is only a concern if it will interfere with the employee carrying out their duties.

Employers should have a clear policy in place which includes the duty to report any such prescription medication, to allow you to assess the need for accommodation in compliance with the Human Rights Code.

Your workplace policy should encourage employees to report any addiction issues related to the use of recreational cannabis so that you are able to accommodate the employee’s disability pursuant to human rights legislation.

Employers should be mindful that testing for drug use, including cannabis, is only permissible in limited circumstances, and any drug and alcohol testing policies should be drafted, reviewed and updated in consultation with an employment lawyer. Employers would be well-advised to consider less intrusive measures than testing.

Responding to requests for accommodation

It is crucial to have an accommodation policy and process. In responding to requests for accommodation, employers would be well-advised to adopt the following practices:

• Do not dismiss any requests out of hand.
• Have one process for responding to all requests for accommodation - to learn more about how to respond to requests for accommodation, read our blog post here.
• Maintain communication with the employee throughout the process.
• Require appropriate information, including medical documentation if applicable, speaking directly to the employee’s ability to do the job. To learn more about the role of medical documentation in disability-related accommodation requests, read our blog post here.
• Research and educate yourself. Work with the employee to understand the needs and limitations, and how the ground intersects with job duties.
• Do not stereotype.
• Assess whether there is a legitimate need for accommodation.
• Consider options for accommodation. Employees are not entitled to their preferred form of accommodation; employers are entitled to ascertain what options are available, and choose a reasonable option. In considering whether accommodation would cause undue hardship, and in comparing available options, employers can consider the cost, outside sources of funding, and health and safety requirements of the job (if any). Remember, some hardship is acceptable.
• Document all considerations and assessments. This will help prove that you have  taken every step up to the point of undue hardship, and as a result, you will be in a much stronger position to defend a discrimination claim.
• If you cannot accommodate without undue hardship, clearly explain this to the employee and be prepared to show why this is the case.
• Maintain confidentiality.
• Monitor and adjust the steps taken, as the employee’s needs or the employer’s circumstances might change over time.

Further, in order to help avoid unnecessary and significant liability, employers should seek advice from an employment lawyer before imposing discipline relating to the use of cannabis. Even smoking marijuana while at work does not necessarily mean that the employer would have just cause for dismissal.

At the end of the day, there has been a lot of concern expressed by employers, but the sky is not falling. There is no reason to panic, but now is a good time to review your drug and alcohol policies to make sure they accord with legal and societal realities.

Click here to read the full article.....

Article published by: HR Reporter, Canada/ July 30,2018

Article written by: Stuart Rudner 

Article spotted by: Louise Burden

When can HR legally demote an employee?

Offering an employee a promotion is usually a celebratory occasion. Rewarding hard work, striving for enhanced productivity and showing your support for their abilities.

However, if this happy event turns sour – and HR comes to the decision that a recently promoted employee needs to be demoted – there are certain legal pitfalls to beware of and cautionary steps to keep in mind.

We spoke to Matthew Certosimo, partner at ‎Borden Ladner Gervais LLP, who gave us his take on the issue.

“The analysis begins with the terms and conditions of the employment contract” he told HRD Canada.

“The employment relationship in Canada is contractual in nature, so whether with respect to the original position of hire or a subsequent promotion, a court would likely seek to determine whether the employer had the right to act as it did under the contract.”

Certosimo went on to say that, if an employer has made the offer conditional in some way, either the offer of the position or the offer of employment, then the employee’s failure to satisfy that condition may justify the employer’s decision to demote the employee back to their former role or to end the relationship all together, depending upon the circumstances.

“For example,” he continued, “an employee might be promoted to a position subject to that employee getting certain regulatory approval or licensing or training, by a certain date. An employer would be within their rights to demote that employee back to their prior position if the employee doesn’t meet the condition by the date in question.”
Similarly, an employer might want the initial period of promotion to be probationary. such a term allows the employer to test drive the employee in the new role, to see if the employee has the ability to do the job.

“In Canada, if employers want to have a probationary term of employment, it has to be an express term; it will not be implied. if an employer expressly sets out a probationary term and condition, a discretion to return the employee to the pre-promotion role could be retained; assuming the employee is given a fair shot at the role in question, the employer would be within its rights to, in a sense, demote the employee, if he or she is not suitable for the promotion.”

“On the other hand, if employers fail to put conditions clearly in place, in what technically amounts to an amendment to the contract offering the promotion on specific terms and conditions, they may run into trouble. If the demotion amounts to a fundamental and unilateral change in the employment agreement, then the employee may have a constructive dismissal claim.”

From a best practices perspective, employers are well-advised to get agreement on the conditions placed on the employee at the time of promotion (or hire, as the case may be). Employers should be upfront and clear about any conditions to be met to remain in the promoted role in an amendment to the contract, so that the parties know what is required from the outset and the employer can rely fully upon them.

“On a human level, being upfront with each other helps to avoid misunderstandings,” concluded Certosimo. “The law governing the employment relationship essentially reflects that policy perspective. If employers are not upfront with employees, or the conditions imposed are illegal, then, to state the obvious, legal challenges are much more likely.”

Click here to read the full article.....

Article Written by: Emily Douglas 

Article Posted by: HRD Canada, April 24,2018

Article Spotted by: Louise Burden

Former Walmart executive awarded $750,000 in extraordinary damages

Retail giant’s bad faith in removing executive and keeping her in limbo before terminating her warrants large award on top of salary and bonus damages. 

                        Photo credit: Sarah Dobson/ HR Reporter Canadain

In a recent decision that opens the range of extraordinary damages available to dismissed employees, an Ontario executive was awarded $750,000 in moral and punitive damages arising from her employer’s decision to unnecessarily prolong her dismissal, and form her employer’s post-termination conduct — one of the largest such damage awards ever given in Canadian employment law. Employment lawyer Rich Appiah discusses how this decision continues a trend for courts to compensate for the power imbalance between employers and emlpoyees when an employee is treated poorly both before and in the course of termination.

The Ontario Superior Court of Justice has awarded a former Walmart executive $750,000 in moral and punitive damages plus more than $400,000 in wrongful dismissal damages despite narrow contractual severance terms to which she agreed after the retailer marginalized and then fired her.

Gail Galea started working for Walmart Canada in September 2002 as a management trainee. In 2005, she was appointed General Merchandise Manager (GMM), reporting to a senior vice-president. In 2008, she was promoted to Vice-President, General Merchandising. She was repeatedly selected for exclusive executive development programs and expected eventually to be appointed Chief Merchandising Officer. Walmart leadership suggested that she might one day run a country division.

Matters changed dramatically in January 2010 when, due to a “cultural shift,” the president of Walmart Canada, David Cheesewright, relieved Galea of her executive role. At a meeting of hundreds of associates — including Galea’s former direct and indirect reports — he made an announcement confirming that she had been removed from the senior executive team and assigned a supporting role.

Although Cheesewright told Galea that he wanted her to remain with the company, he also indicated that he did not know what to do with her. In the ensuing months, with the company’s ostensible support, Galea actively sought a meaningful position. She travelled frequently, explored roles in overseas divisions, and even began Spanish lessons. However, during a meeting with a Walmart executive, she learned that in a recent performance review Cheesewright ranked her as “not currently promotable” without her knowledge. This was a downgrade from a prior rating. A second related metric of her performance had also been downgraded.

In November 2010, upon her return from an eight-week executive training program, Galea discovered that her belongings had been relocated from her office and her telephone had been disconnected. From her new office, she no longer had access to Cheesewright. Shortly thereafter, Cheesewright gave her the choice of running an e-commerce division on a probationary basis or accepting a severance package. Galea later heard that in the new position, she would report to an executive who did not want her in the organization, and her low performance rating would hinder her advancement.

Though these events seemed to demonstrate that Walmart did not have confidence in her, Cheesewright and others frequently expressed their support. Galea attempted to discuss the matter further with him and the company’s human resources manager. However, on Nov. 19, 2010, Walmart terminated her employment.

Galea’s extensive efforts to find other work at Walmart proved unfruitful. She never received a job description for the e-commerce role, and Walmart provided her with no viable options to remain employed. She concluded that Walmart prolonged her dismissal for nine months to her personal detriment. She commenced an action claiming damages for wrongful dismissal, and moral and punitive damages.

Non-competition agreement

Galea’s wrongful dismissal damages turned on a two-year non-competition agreement (NCA) that she signed when she was promoted to GMM in 2005. In exchange for her acceptance of the NCA, Galea was promised, for a two-year “transition period,” “transition payments” including her base salary, any incentive payable “in accordance with the annual incentive plan (AIP) in effect on the date of termination,” and Walmart’s portion of health and dental premiums.

When Galea signed the NCA, she was participating in one AIP. Walmart management also recommended that she receive stock options under a stock incentive plan. By January 2010, she was participating in four different incentive programs — a discretionary Management Incentive Program (MIP), paid as a percentage of her base salary; a Deferred Profit Sharing Program (DPSP), entitling Galea to four per cent of her annual salary, bonus and vacation pay; an Executive Retirement Plan (ERP), into which Wal-Mart made contributions on her behalf annually; and a Long-Term Incentive Plan/Performance Share Plan (PSP), under which Galea received a one-time award of shares vesting equally in January 2009, 2010 and 2011. One issue at trial concerned Galea’s entitlement to compensation associated with such programs during her transition period. At the time she signed the NCA, they did not exist. Walmart additionally argued that program terms disqualified her entitlement post-termination.

Citing the Ontario Court of Appeal’s decision in Paquette v. TeraGo Networks Inc., the court held that “damages in a wrongful dismissal case ‘should place the employee in the same financial position he or she would have been in had reasonable notice of that employee’s (dismissal) had been given.’” The court found this principle applied to an agreement, such as the NCA, providing for compensation over a prescribed term. Relying upon the appellate court’s decision in Wood v. Fred Deeley Imports Ltd., the court also preferred an interpretation of the NCA favouring Galea where it could reasonably be interpreted in more than one way.

In the court’s view, the term “any incentive,” in the NCA, suggested that more than one incentive might be made available to her upon her dismissal. The court thus read the word “Plans” into the term “Annual Incentive Plan.” On this basis, the court awarded damages of $437,434 for payments owing to Galea during the transition period under the MIP (although MIP terms excluded payments post-termination), DPSP and ESP, among other damages. Despite the award of MIP payments, Galea was not awarded payment in lieu of stock vesting under the PSP because plan terms prohibited vesting subsequent to Galea’s dismissal.....

Click here to read more on the final decision......

Article Written by : Rich Appiah in Canadian Employment Law Today

Article Published: Feb 20, 2018

Article Spotted by: Louise Burden

Ontario Seeks to Address Wage Gap with Pay Transparency Act

Ontario’s proposed Bill 203, the Pay Transparency Act (the “Bill”) was introduced in the Ontario Legislature on Tuesday, March 6, 2018. The Bill takes aim at the wage gap between men and women in the province by implementing a number of measures to increase transparency in hiring and payment practices. If passed, the proposed Bill comes in to force on January 1, 2019.

Recruitment Rules

The Bill would prohibit all employers from seeking compensation history about a job applicant. However, employees would still be permitted to voluntarily and without prompting disclose their compensation history, and where they have done so employers would be permitted to rely on such information in determining the applicant’s compensation.

The Bill would also require public job postings to include the expected compensation or the range of expected compensation for the position. These changes will impact salary negotiations with new employees, as employers will be legally required to “show their hand” at the outset of the job application process.

Reporting Requirements

The Bill also proposes a reporting requirement for certain prescribed employers. These employers will be obligated to prepare a “pay transparency report” that contains information relating to the employer, the employer’s workforce composition, and differences in compensation between genders and other prescribed characteristics. Prescribed employers will be required to submit the pay transparency report to the Ministry of Labour (the “Ministry”) and to post the report in a conspicuous location at all of their work locations. The reporting requirements will be implemented progressively: initially applying only to the Ontario public service, then to employers who employ 500 or more workers, and later to those who employer 250 or more.

The reporting requirements will force these larger employers to closely track and report compensation trends in their workforce. These requirements will certainly bring wage inconsistencies to the forefront of workplace discussions. As a result, Ontario may see an uptick in pay equity litigation following the Bill coming into effect.

Protection From Reprisal

The Bill purports to protect employees from reprisal for engaging in activities prescribed under the proposed Pay Transparency Act. Employers will not be able to take any punitive action against an employee for making inquiries about compensation, disclosing their compensation to another employee, making inquiries about a pay transparency report, or seeking compliance with the legislation. Interestingly, the Bill expressly provides for the adjudication of alleged reprisals by labour arbitration where the employment relationship is governed by a collective agreement.

Further, Ministry-appointed compliance officers will have the authority to enter and inspect an employer’s workplace, without a warrant, to ensure compliance with the legislation. A compliance officer will have broad powers including the production of records, and questioning any person on a relevant matter.

If passed, employers will need to adjust their hiring practices to comply with the Bill’s requirements. The Bill is still in its early stages and will need to undergo second and third reading in the Legislature, as well as consideration by a standing committee. There is no formal timetable on when the Bill may pass. However if the Wynne government’s recent passing of Bill 148 is any indication (which took just under six months), the Bill could possibly become law prior to the June 7, 2018 election.

Click here to read the full article....

Article Published : March 8, 2018 , Shields O'Donnell MaKallop LLP- Labour and Employment Law for Business - Blog

Article Written by:  Hendrik Nieuwland and Seth Holland 

Article Spotted by: Stacy Glass

What are you legally allowed to do to offset the minimum wage hike?

The recent changes in employment law brought about by the Fair Workplaces, Better Jobs Act have left some employers scratching their heads – most noticeably over the minimum wage hike.

We spoke to Thomas Gorsky, lawyer at Sherrard Kuzz, who talked us through what employers are legally allowed to do to offset the recent increase. 

“Regarding the restaurant industry, you are permitted to reallocate tips to managers,” he explained.  “Introducing tip pooling arrangements could be a way of offsetting the minimum wage hike. For example, if managers are being paid minimum wage now there will be a lot of pressure for them to see an incremental bump – to separate them from more junior members of staff.”

However, whilst this works for a sector which deals in gratuity, the same can’t be said for employers in less customer-facing roles.

“In jobs which don’t allow for tips, there are limited options,” explained Gorsky. “The only real option is to increase prices or cut costs elsewhere. The reality is, if you have to pay someone a certain amount per hour and you don’t currently have benefits, there’s no real saving you can offset it with.

“However, if you are providing perks, you could lawfully remove them. But, bear in mind, you have to give advance notice in order to avoid any legal claims.

“If you give someone six months advance notice that their benefits plan will be removed then, at least for employees who have employment contracts with protective termination clauses, there’s very little they can do to object. But if you don’t have those types of clauses, then you can still obtain protection by giving advance notice.  How long will depend on what an employee’s notice entitlement is.”

With the increase in minimum wage, many smaller businesses may find themselves facing difficult times ahead. But are you legally allowed to fire an employee because of the increased costs of the wage hike?

“Any employer is always entitled to terminate an employee’s employment, so long as they comply with that employee’s termination entitlement,” explained Gorsky.

“For example, you could terminate an employee simply because you don’t agree with their job philosophy. You don’t need to prove you have cause for termination, however if you are laying somebody off because you cannot afford to pay their wage, that doesn’t relieve you of the obligation to give notice - or pay in lieu of that notice.”

Click here to view the full article.....

Article written by : Emily Douglas 

Article published by: Human Resource Director Canada -March 5, 2018 

Article spotted by: Louise  Burden

Ready or Not, Here It Comes! 2018 Brings New Labor & Employment Laws for the U.S.

As we prepare to turn the calendar to 2018, U.S. employers look ahead to the next wave of labor and employment regulations. On January 1, 2018, and throughout the coming year, employers across the nation will confront a host of new or amended federal, state, and/or local laws. This article summarizes impending obligations that may flow from these law changes in the chart below and also highlights some anticipated activity.

Ongoing Federal Activity

At this time last year, employers faced uncertainty about how the Trump administration and Congress might alter federal labor, employment and benefits obligations. Although change to federal workplace policy has not come as quickly as many expected, the pace of change is likely to accelerate as nominations and appointments to critical positions are filled. Indeed, action on the nominations to the National Labor Relations Board (NLRB), Equal Employment Opportunity Commission (EEOC), and Department of Labor (DOL) signals that expected changes in workplace policy will be forthcoming in the year ahead.1

With that in mind, employers should pay particular attention in 2018 to several potential developments at the federal level, including possible additional changes in immigration law and enforcement.2 Health care policy, including the viability of the Affordable Care Act (ACA), also remains in flux. After Republicans failed to “repeal and replace” the ACA through the legislative process, the White House issued an executive order to try to reform the nation’s healthcare system through regulatory channels.3 Meanwhile, efforts to revamp the tax code are well underway in Congress, some aspects of which would have a significant impact on benefits and executive compensation, but are far from settled.

Employers saw some changes in 2017 on several key labor and employment issues, and 2018 is likely to bring further federal legislative and/or administrative developments in these areas. For example, in 2018 the DOL is expected to revisit the now-scuttled update to FLSA overtime regulations. The agency's Wage and Hour Division will likely engage in further rulemaking to decide what the new salary level should be for overtime purposes. In June, Labor Secretary Alexander Acosta announced the withdrawal of two controversial Wage and Hour Administrator's Interpretations on independent contractors and joint employment.

Relatedly, in Congress, House Republicans passed a bill in 2017, entitled the Save Local Business Act (H.R. 3441), that would amend two labor and employment statutes to clarify when an entity can be deemed a “joint employer.”4 The bill moves now to the Senate, where its fate is less certain. In the face of an increasingly complex maze of state and local paid leave laws, lawmakers in Congress are proposing a novel approach to paid leave and workplace flexibility. In an effort to promote workplace flexibility and streamline employer paid leave obligations nationwide, Representative Mimi Walters (R-CA) House introduced the Workflex in the 21st Century Act (HR 4219). This bill would create a voluntary program whereby employers that choose to offer their employees a minimum number of compensable leave days per year and institute a flexible work arrangement would be exempt from the current patchwork of local and state paid leave laws.5 This legislation could clarify and simplify compliance burdens on employers across the nation.

Ongoing State and Local Activity

Of course, they say that “all politics is local,” and 2017 did not disprove that theory. Given the lingering gridlock in Congress, the most significant labor and employment developments taking effect in 2018 arose at the state and municipal levels. As the chart below demonstrates, municipalities have paved the way for new regulation on a variety of topics, including protected or paid time off, pregnancy accommodations, background checks, and equal pay.

Many new state and local laws enacted in 2017 have already taken effect. The chart below focuses only on those laws that are set to take effect in the new year and beyond. Readers interested in keeping abreast of legislative activity at the state and local levels should follow State of the States, our monthly report featuring notable bills and trends percolating in the statehouses and city halls nationwide.6

Laws Taking Effect in 2018

As the year winds down, employers should prepare for changes scheduled to take effect in 2018. The chart below briefly recaps laws and regulations that will become operative sometime in 2018. (We’ve included a few late bloomers from 2017 as well, and a sneak peek at 2019.) Although local and industry-specific laws may be listed, these samples are included primarily to highlight compliance challenges employers face. In addition, not all state and local minimum wage laws are included in this article. A complete discussion of minimum wage rate changes for 2018 can be found in a separate Littler Insight, The Minimum Wage in 2018: A Rates-Only Update. Because the below list does not cover every possibly applicable federal, state, and local law, employers may find it helpful to discuss with knowledgeable counsel which local, state, and/or federal laws will apply in 2018.

Click here to read more and to see the chart which briefly recaps laws and regulations that will become operative sometime in 2018.

Article Spotted By: Alison Peters

Article Written By: Ilyse Schuman, Michael J. Lotito and Betsy Cammarata  

Article Originally Published November 13, 2017 on Littler Insight

Hiring in the Age of Salary History Bans

Across the country, state and local governments are enacting new laws that prohibit employers from requesting salary information from job applicants.

The laws are an effort to reduce pay inequity, particularly for women and minorities. 

Photo by Eddy Lackmann on Unsplash

In theory, workers who have experienced pay discrimination will continue to do so in potential jobs if the salary offered is based on previous earnings, thus continuing the cycle of discrimination.

Some of the law merely forbid employers from asking about salary history, but some prohibit employers from using that information to set pay even if they discover it inadvertently.

The upside

The upside to the legislation is fairness for candidates. Proponents of these laws say that businesses should focus on the value of work on the work itself, employees' experience and performance, as well as market factors that drive salaries.

For some in HR, the logic behind the legislation is understandable. “The intent is that previous employers might have used discriminatory practices in establishing that pay rate or salary so future employers will stop that cycle,” says Derek Jones, deputy VP of business development at Deputy, a workforce management company.

And recruiters are already adapting. “What we're seeing are more recruiters posting salary ranges on external job posting or covering this in the first phone screen," Jones said. "This level of transparency can benefit recruiters from wasting time with candidates who make it to a phone screen only to be disqualified for being out of that range."

The downside

While recruiters may be able to shift gears easily in the wake of these laws, the brunt of the compliance challenges may fall on employers, because they have to set those salaries.

This is especially true for businesses in California, which will have to provide job pay scales upon request. "That disclosure requirement, coupled with the restriction on using salary history to justify an increase in compensation, is likely to lead to more structured compensation practices," says Margaret Keane, partner with DLA Piper

Many employers don’t have formal pay scales and job grades or even particularly well-defined compensation parameters for a position, even when they solicit applications, Keane told HR Dive.

Negotiations will have to change, too, says Veronica Valenzuela, HR manager at CPS Security.

“Before we post an opening, we conduct a salary analysis to see where the market is for a specific position. We’re pretty transparent when we post our openings, including the salary range in ads," she said. "But asking about salary history saves time, helps determine the candidate’s salary expectations, and helps with negotiations. Applicants already know how much the position is paying, but that doesn’t mean we won’t be flexible if they’re seeking higher compensation."

In addition, complicated situations are sure to arise when an applicant volunteers information or when a highly sought-after candidate won't accept the employer's pay range. Mergers and acquisitions are sure to present unique challenges, too. 

“Employers adding to the workforce through mergers and acquisitions will need to be cognizant of compensation differences between existing and new employees performing substantially similar work under similar working conditions," Keane said. "Addressing disparities rooted in different cultures will be a new challenge for HR professionals in the integration phase and will require a clear evaluation of how experience, performance, and productivity factor into compensation in a given role."

Photo by rawpixel.com on Unsplash

To do today

If you're subject to any of these laws, the first and simplest thing to do is remove questions on print and online applications that request compensation history. But the more difficult shift — and the biggest area of risk — will be training for managers. HR needs to train these individuals quickly, Jones said.

They'll no longer be able to ask any questions about previous pay, including commissions and, in some cases, benefits. Instead, hiring managers will need to ask more generic questions, about employees' earning expectations, for example. Employers will have to ensure that outside recruiters do the same; in Delaware, for example, employers can be held responsible for recruiters' violations unless they've provided such instructions.

Finally, as Keane noted, employers will likely have to create a salary range for each position and ensure that the variations within those ranges are based on things like merit, education and experience.

Whether or not your jurisdiction is covered by the new laws, the trend seems to be taking hold. Similar measures are under consideration in a number of jurisdictions, and it may only be a matter of time before more join this growing list.

Where are the bans? Nine jurisdictions have adopted bans that apply to private employers.

Click here to read more detail about state and city specific bans. 

Article Spotted By: Alison Peters

Article Written By: Riia O’Donnell

Article Originally Published November 2, 2017 on HR Dive

Small Employer Baby Bonding Leave Becomes Effective in California on January 1, 2018

Effective January 1, 2018, employers with 20 or more employees must offer FMLA-like baby bonding leave under the newly enacted New Parent Leave Act.

Now, employers with at least 20 employees within a 75-mile radius must permit eligible employees up to 12 weeks of parental leave to bond with a new child within one year of the child’s birth, adoption, or foster care placement. Employees are eligible if they have more than 12 months of service with the employer, have worked at least 1,250 hours in the previous 12-month period, and work at a worksite with 20 or more employees within a 75-mile radius. Employees who take such baby bonding leave must be guaranteed the same or a comparable position upon returning from the leave.

Although the leave is unpaid, employees are entitled to use accrued vacation, sick leave, or paid time off.
 
Employers must maintain and pay for group health insurance for an employee taking parental leave to the same extent and under the same conditions that coverage would have been provided had the employee not taken leave. However, in some circumstances, if the employee fails to return from leave, the employer may recover the premium that it paid for maintaining group health insurance.
 
If both parents work for the same employer, the employer need not grant more than 12 combined weeks of leave; the employer may, but is not required to, grant simultaneous leave to both employees.
 
Employers may not discriminate against an individual for exercising the right to parental leave or giving information or testimony as to parental leave, and may not interfere with, restrain, or deny the exercise of rights under the New Parent Leave Act.

Article Written By: Jenn Protas

Article Published In: Hoge Fenton Employment Update

Article Spotted By: Alison Peters

6 Benefit Issues for Employers to Address in the Wake of Natural Disaster

As Florida and the East Coast assess damage from Hurricane Irma, employers should be prepared to address storm-related issues. Those who are required to close their businesses need to determine whether they need to pay workers who stay home — which puts those employers on the hook for unemployment compensation — and whether workers’ compensation applies to weather-related injuries.

Here are six questions employers may have — and answers — about how the hurricane will continue to affect their operations.

1) Does the Fair Labor Standards Act require me to pay employees who miss work because of the weather?

The answer to this question depends on whether the employee is exempt or non-exempt.

Exempt employees: If the business closes because of the weather, the FLSA requires employers to pay an exempt employee his or her regular salary for any shutdown that lasts less than a week. Under the FLSA, an employer cannot deduct an exempt employee’s pay based on the quantity or quality of the employee's work or when he or she is ready, willing and able to work but no work is available. Thus, deducting an exempt employee’s pay for absences due to a business closing that lasts for less than a week would jeopardize the employee's exempt status. A private employer may, however, deduct the period of absence from the employee's paid vacation or paid time off, as long as the employee receives his or her full salary for the week.

If the business remains open but an employee cannot get to work because of the weather, an employer can deduct an exempt employee’s salary for a full day’s absence. Under the FLSA, an employer can deduct an exempt employee’s pay for a full-day absence taken for personal reasons without jeopardizing the employee’s exempt status. Employers cannot, however, deduct an exempt employee’s salary for less than a full-day absence without jeopardizing the employee’s exempt status.

Nonexempt employees: Under the FLSA, employers generally are not required to pay nonexempt employees for any days that the employee does not perform any actual work. Thus, employers are not required to pay employees for days they did not come to work or for days when the business was closed because of a weather event. This does not apply to nonexempt employees who are paid on a fluctuating workweek basis. These employees must be paid their full weekly salary for any week during which any work is performed, even if they miss some work due to the storm.

State reporting pay requirements: Be aware that some states have reporting pay or “show-up” pay requirements that require employers to pay a minimum amount to employees who show up for work even if they do not perform any work. Employers should familiarize themselves with the requirements of these state laws. Additionally, collective bargaining agreements may require employers to pay employees for a guaranteed minimum number of work hours regardless of the number of hours actually worked.

2) May I count absences due to the storm against an employee’s Family and Medical Leave Act allotment?

Although the FMLA regulations do not specifically address natural disasters, the regulations state that if, for some reason, the employer’s business activity has temporarily ceased and employees generally are not expected to report for work for one or more weeks (e.g., a school closing two weeks for the Christmas/New Year holiday or the summer vacation or an employer closing the plant for retooling or repairs), the days the employer’s activities have ceased do not count against the employee’s FMLA leave entitlement. Thus, it appears that if an employer’s business is closed for a week or more because of the storm, the days the business is closed would not count against an employee’s FMLA leave allotment.

If the business is closed for less than a week, the FMLA’s regulation pertaining to holidays likely would apply. The FMLA regulation provides, “the fact that a holiday may occur within the week taken as FMLA leave has no effect; the week is counted as a week of FMLA leave.” Similarly, if a business is closed for a day or more during a week in which an employee is on FMLA leave, the entire week would count against the employee's FMLA leave allotment. If, however, the employee is taking FMLA leave in increments of less than a week, only the days that the business is closed and on which the employee would be expected to work can be counted against the employee’s FMLA allotment.

3) Am I required to pay an employee for on-call time?

Under the FLSA, if the employer requires an employee to be on-call while the office is closed due to a weather emergency and the employee cannot effectively use the time for his or her own purposes, the employer must pay the employee for the on-call time. Employers are not required to pay employees who are at home and available to the employer but able to use the time for their own purposes. State laws may impose different or more stringent requirements for on-call time.

4) Are employees who are discharged as a result of the storm entitled to unemployment compensation?

Employees who are out of work for reasons other than their own misconduct generally are entitled to unemployment compensation as long as they have met the requirements of the state’s unemployment compensation laws. In some states, an employer’s unemployment compensation account is not charged when an employee is discharged because of a natural disaster. Employers should check the laws of the states in which they do business.

5) Are workers’ compensation claims the exclusive remedy for employees who are injured at work due to conditions that resulted from a tropical storm or hurricane?

Generally, employees who are injured during the course and scope of employment are limited to workers' compensation claims and cannot sue the employer in court over the injuries. If, however, the injuries are the result of an employer’s deliberate or intentional conduct rather than an accident, the employee may have the ability to sue the employer in state court. Employers should check the laws of the states in which they do business.

6) What steps can I take to ensure my employees’ safety upon their return to work?

The Occupational Safety and Health Administration (OSHA) states that employers are responsible for providing a safe and healthful workplace for their employees. Employers are required to protect workers from the anticipated hazards associated with the response and recovery operations that workers are likely to conduct. OSHA’s response/recovery page features a link to OSHA’s Hurricane eMatrix, which outlines the activities most commonly performed during hurricane response and recovery work and provides detailed information about the hazards associated with those activities. The eMatrix is designed to help employers make decisions to protect workers and offers recommendations for personal protective equipment, safe work practices and precautions for each activity.

Article Written by: Salvador P. Simao
Article Originally Posted in: Employee Benefits Adviser, September 12, 2017
Article Spotted by: Alison Peters