Ask the HR Expert
Q. I am a non-HR employee from a small company. An HR issue came up recently over a potential sexual harassment complaint. We allowed HR to deal with this the way they would normally would, but when the issue was brought up to us afterward, we did not feel that the discipline was warranted. This is a 2-PART question, but let me first explain the situation. A group of employees from the same department informed HR that their manager and a co-worker were having a sexual relationship that may have influenced the manager's recent wage adjustment for that employee. HR interviewed each of the three group members and one other employee from that department, then the co-worker, and finally the manager. The group of three included the co-worker's Ex, a good friend of the Ex, and a "chatty Cathy" who likes rumors. The additional employee is a good friend of the co-worker. The group of three have mostly the same story that the manager has been seen hanging out with the co-worker a lot, been quoted as saying sexual things about the co-worker as they walk away, but nothing physical, just a rumor of "favors". The additional employee says that at one point he saw the manager grab the co-worker, but did not say if he felt this was unwanted contact. When interviewing the co-worker, she mentions that the manager has made verbal advances at her, but not at work, and that she was not offended and not uncomfortable. She also states that there had been no physical contact at all. She then says that earlier in that day, she and the manager had a talk about him stopping these advances and he agreed to stop. I’m told that the manager has not denied making advances, but did say that he did not have any physical contact with his employee. HR felt that a short suspension was in order for the manager for inappropriate behavior that could have led to sexual harassment, and went ahead with the action. After this all took place, additional information was brought up that the group of three employees were simply starting rumors about the co-worker, since she was the Ex of one of the employees involved. And no one could confirm the additional employee's claim to physical contact. My boss and I are now worried that HR did not do enough investigation to take proper action, and that the action should be overturned and the suspension revoked. If we overturn an HR action, however, we are afraid that we are taking authority away from HR and causing the department to have no respect among the employees. A) What action should have been taken based on the information gathered? B) Should we even consider overturning an action where less than adequate information was used?
A. As a non-HR employee of your company, this issue seems to lie outside the realm of your responsibility. While you may be disappointed and even “angry” at the outcome of the sexual harassment investigation, the details and the ultimate decision are not within your power to pursue. You obviously have ethical concerns and believe that there may have been an inappropriate set of interviews pertaining to the alleged harassment. Clearly you believe the data is flawed and biased. Unless you are a member of the senior management team, it is my opinion that you should adjust to HR’s decision, however inadequate or unfair it may appear to you at this moment. If this feels too difficult, and you believe that the well-being of the entire company would be better served if a new investigation were begun, then I suggest you request that your boss take this action with the CEO. He or she may not agree, so be prepared for an end to this event.
You state that if “you overturn an HR action” you are concerned with the future reputation of the HR department. By what authority or “right”, or via what corporate handbook specific “rule”, do you believe you possess the power to overturn an HR action? The answer is simple: none. All you can do is bring your opinion to the attention of the CEO, your manager and/or the HR department. They cannot retaliate because you question a decision. You do have the right to voice your concern, and they have the obligation not to disclose any details of their confidential investigation.
Q. My present employer does not wish to renew my HB-1 visa. At age 61, am I able to apply to immigration courts or the immigration office for immigration status – in order to become an American citizen at this point? I have been here for 11 years. There is no work available in Canada for me, and it would be extremely hard to find work. Any advice would be appreciated.
A. There is no way to go from a temporary work visa status directly to U.S. citizenship. You may be eligible to “self-petition” for lawful permanent residence (“green card”) status if you can demonstrate to USCIS that you are someone who has “extraordinary ability” in your field; or that your work is in the national interest of the United States. These categories for green card status allow an individual to petition for him or herself, however the standards are high and difficult to meet. If your employer is unwilling to renew your H-1B temporary work visa, then you should arrange a consultation with a reputable immigration lawyer to determine if you have any options to self-petition for permanent residence status or to obtain another type of visa status in the U.S.
Q. One of our employees has given his two-week notice resignation letter. His first year with the company will be completed just before his last day of work. Is the company legally responsible for paying his accrued vacation time, instead of him actually using it in the form of days off?
A. In general, there is nothing that prohibits a company from fairly enforcing a policy that requires that employees use their vacation time to cover all or part of the period after they give notice of resignation. But it may not be very smart to have such a policy. Any employee who wanted to circumvent the policy could do so simply by not giving advance notice of his departure. The practice involving two weeks of notice generally is mere custom. An at will employee can quit any time, with or without notice.
Q. We have an employee who has recently left and will be applying for short-term disability and we have two issues. We have nothing in our policy manual about paying out sick time accrued when an employee goes out on disability. We DO have a policy which states that employees are not paid accrued sick time when they are terminated or quit. What suggestions do you have regarding the advantages or disadvantages or paying out accrued sick time during the disability elimination period. Second, our disability policy states that the employee must be an active employee. But how can the employee be considered active when they need to be out on disability?
A. It is unclear from your question if the employee terminated employment (no longer an active employee) and then became disabled or is disabled and no longer actively-at-work as a result of his disability. If the employee terminated employment (no longer an active employee) and became disabled then he has no rights to any benefits, including accrued sick time as stated in your policy or applying for disability benefits. If an employee is not actively-at-work as a result of his disability (employment has not terminated), then if he fulfills the definition of disability under your disability contract he will receive benefits once the elimination period is satisfied. How you apply accrued sick time during the elimination period is based on your policy. Not having an income flow while satisfying the disability plan elimination period can cause financial strain – bills continue to come in. To prevent financial strain, many employers choose to let their employees use accrued sick time during the time between being actively-at-work and collecting disability. In addition, we see many employers allowing employees to use accrued sick-time on top of a typical 60%, disability benefit so the employee is able to earn what they would have if they were actively-at-work. The policy manual’s silence on use of accrued sick time does not mean the employee does not have a right to use his/her accrued sick time in this way. The silence puts the employer at risk in defending employer-based decisions related to sick time use.
Q. My firm is reluctant to use social media because of legal risks, and because they fear that employees will waste time on Facebook, YouTube, etc. Any advice?
A. Many companies are afraid of the realistic downside of social media (employees saying the wrong thing, badmouthing the employer, inadvertently sharing information publicly that should only be shared privately, etc.). I speak to many leadership teams, and I remind them that once upon a time, we would lock our rotary telephones so employees wouldn't 'steal' company resources by calling their relatives or friends with the 800 telephone line. And I also recall the head of legal storming into my office exclaiming: "You're not really going to allow our employees to have access to email, are you? They'll steal our intellectual property." As we reflect back today, it is rather ridiculous to think about these former 'concerns'. That is where we are with social media today – social media is not going away. In fact, this is the world where Gen Y lives, and if companies want to engage and communicate with this generation, they MUST embrace social media. How? By creating their own You Tube channel where your Gen Y employees articulate your firm's values. Or, have your employees join LinkedIn groups to share job opportunities. Identify your most 'connected' employees and ask if they would be interested in being your brand ambassadors. If you're not embracing and leveraging social media, your departing employees might be. Sites such as Glassdoor.com are increasingly becoming popular with departing employees who feel their companies did not treat them fairly. One of the fastest growing sites Klout.com, for example, provides individuals with their social media 'ranking.' In the future, instead of asking employees what their credit ranking is, they might ask what their Klout ranking is.
Q. We are hiring for several senior sales positions. These positions report to the President, who is a very decisive, strong-willed individual. The problem is that she seems to have fallen in love with a candidate that I am unsure about. This individual works for one of our competitors and has been successful there. However, our competitor is known for being an aggressive, cut throat environment, which is a much different culture than we have. Am I right to be concerned?
A. Hiring a sales person that can perform and hit their numbers is important, but are you trying to hire a “hunter” or “farmer”? Is it a relationship sales position or more of a technical sales role? How consultative is the person? These are different sales positions reflecting a person’s natural behavioral tendencies, strengths, drives and motivations.
Cultural fit also plays a critical role in how successful a candidate will be. This is especially true in sales roles, where 2 very successful sales individuals can have 2 very different recipes for success. But equally important is finding someone that fits your organization, your culture, your values and mission, whichever they may be.
Have you defined the behaviors and competencies that are critical to success in this position? If not, that would be a good place to start. Looking beyond the job tasks and activities will identify what is important to the role and give you a framework to evaluate candidates.
These behaviors will also help guide your conversation with the President, by focusing in on where a candidate does not seem to match what you are looking for. For example, “Sue, we’ve agreed that our account manager positions really need to leverage relationships continuously. However, I’ve noticed that Steve’s (candidate’s) style is much more assertive, and I’m worried this could alienate our customers. What do you think?”
This type of targeted question can help clarify why the President is sold on this candidate, and get you to reevaluate what you are looking for, or maybe encourage her to rethink the criteria and take a fresh look at the candidate’s qualifications. Either way, you will make a more informed hiring decision.
— CHERYL JACOBS, Vice President at MCG Partners (on behalf of HR Expert CHUCK MOLLOR)FULL ENTRY
Q. A female employee has spoken to me twice "off the record" and advised me that she thinks our Executive Officer is romantically interested in her. She said that he asked her on a date, but when I questioned further she indicated instead that he included her in a group invitation. Furthermore, it appears that whenever she doesn't like a decision being made or doesn't get her way on an issue, threatens to go to our board of directors and "out" our Executive Officer for asking her on a date. My question is, how do I properly handle this – so that it doesn’t become a legal matter? Do I report this and have a meeting with her and the Executive Officer, or do I just let the Executive Officer know - so that he is aware of the situation?
A. This is an intriguing dilemma but unfortunately not an unusual occurrence. It raises many potential legal and ethical challenges for all parties concerned. As an HR professional you have an obligation to take more action than you have, especially if you have not consulted any other colleagues on the matter. At this moment we have no evidence of unethical behavior or any illegal or inappropriate behavior, other than the employee’s repetitive “threats” pertaining to “outing” the Executive. It is my opinion that you must notify the Executive in question about the consistent threats. This will provide you with additional data. Keep in mind that you must strongly warn the Executive NOT to discuss this matter with the employee or approach her with any response that could be viewed as retaliatory in nature. I also would sit with the employee, point out that her threats have continued over time, and let her know that she is pushing you towards having to engage in a formal investigation. Ask her what she would like. If she says that this is not necessary, then let her know you consider the matter closed, but that the next allegation from any party will initiative a formal and confidential sexual harassment investigation. Document all of your conversations.
Q. Can an employee on B-1 VISA legally be laid off in U.S.? What are the governing rules in this regard?
A. It is not proper for any U.S. employer to employ anyone in B-1 visa status; accordingly since employment in B-1 status is not allowed, it should never be necessary for a U.S. employer to “lay off” anyone on a B-1 visa. Under limited circumstances a FOREIGN company may have an employee working in the U.S. in “B-1 in lieu of H-1B” status. If the foreign employer wishes to terminate the employment of an employee who is presently in the U.S. in B-1 in lieu of H-1B status, then the foreign company should follow the employment law requirements applicable in the company’s home country. A person in “B-1 in lieu of H-1B” status whose employment abroad is terminated, is no longer entitled to remain in the U.S. as their status is tied to their employment by the foreign employer.FULL ENTRY
Q. I have question about posting a job online. For legal purposes a position has to be posted even if the position has been filled, correct. Also - how long does this posting have to stay up online, and how long after can the job take effect?
A. Perhaps it is a policy requirement within your company that on-line job posting occur, but this is not a general requirement that exists for all private sector employers. Nor is it a requirement that all on-line posting policies have the same requirements. You need to look at your company’s particular policy. You may want to start by taking your questions to your Human Resources representative.
Q. Do you have survey information regarding MA employers and the number of holidays they provide each calendar year?
A. The number of holidays can vary widely by industry, type of workforce (salaried, hourly), and may be influenced by other time off benefits offered (e.g., Paid Time Off (PTO) bank vs. separate Holiday, Vacation and Sick time; use of “floating” Holidays). In general, we see MA employers offering anywhere between 6 – 13 Holidays, with an average of 8 – 9.
Q. We have a supervisor that has not been performing well. She has been spoken with on numerous occasions about her lack of performance and her attitude. We want to demote her from supervisor, but now she is pregnant and we are worried about this demotion appearing as though it is a result of the news of her pregnancy. Are we able to demote this person without any ramifications?
A. I will qualify my answer by acknowledging there is much I don’t know. That said, I’m going to assume that the performance issues have been well documented in writing, and are now part of her personnel file. I’m also going to assume that the documentation occurred before she notified you of her becoming pregnant. If these assumptions are correct, I see no reason why you should accept poor performance simply because she is pregnant. However, given there is much I don’t know, and given your are threading in potentially rough waters, I suggest you seek out the opinion of either in house legal counsel (if you have someone on staff), or place a call to a local employment attorney. It will be time and money well spent.
Q. As the job market begins to pick up, what creative things are companies doing to retain their top talent?
A. Good companies recognize that retention in a lagging job market is equally as important as in a booming market. If companies have taken their eye off the ball during the last couple of years, they will most likely experience attrition as the job market begins to turn upward. Smart employers keep their employees engaged even when budgets have been cut. Even if there are not funds available to pay bonuses or give big pay increases, there are many ways to engage and reward employees. A January 2010 article in Quantumleadersblog.com “Retaining Top Talent with Non-Monetary Rewards”, states the following 7 things companies can do to retain their top talent when spending a lot of money is not an option:
- Verbal Praise
- Achievement Awards
- Learning and Development
- Fun and Recreation Events
- Company Wide Attention
- Impactful and Meaningful work
These ideas might seem obvious, but as the article notes, often it’s the small things that have the biggest and lasting impact on people.
Q. My job requires that I travel to and from customer sites frequently. My employer has a policy that if I finish a job during the day but I do not have time to go to another job site or back to the corporate office and head to my home office instead - I get docked an hour of pay for that day. Is this unethical? More importantly, is this a legally allowed practice?
A. Sometimes ethics and legalities run very close to one another. On the surface, the issue presented is not necessarily unethical or illegal. Everything is dependent on how the job was originally structured. For example, were you hired as an hourly contract employee or a salaried individual? Were you told, in advance, what the company policy was for extra hours remaining in a day? Additionally, do you have an employment contract or letter that stipulates how many hours you will be paid per week? All of these factors are important. From a very broad perspective, it is our opinion that your employer should honor your integrity, provide you with the flexibility to work from home, and not “dock” pay because you have efficiently completed a specific task. If there is a written policy that speaks to losing hours of pay if and when one goes home, as opposed to returning to the corporate office (and you were told this fact ahead of time), then your employer is probably on firm ethical and legal grounds. It is, however, not necessarily a “smart” policy that will reinforce employee engagement, commitment and morale over the long term.
Q. A large corporation in MA has an employee from another country with a work visa. The employee is requesting an FMLA leave which complies with one of the FMLA standards. The FMLA usually allows either full leave of 12 weeks or partial leave from work. Does this same standard apply to working legal immigrants for partial leave (or full leave), or will that impact their working visa status?
A. The H-1B visa regulations issued by the DOL address the impact of an FMLA leave on the employee with an H-1B visa. An employee on an authorized leave will maintain status. The employer should document the leave in the employee’s H-1B Public Inspection File. This same principle applies to E-3 visas which are also governed by the same DOL regulations. While leaves of absence are not addressed in the regulations for other types of work visas, common sense dictates that if the employee is on an authorized leave of absence from the company, with an expectation of returning to work after the leave ends, then the person is maintaining his or her status. Again, it is incumbent on the employer to document this to USCIS should the need arise.
Q. If a job is created that is not in current flow chart of an organization, can a job be created and filled internally without being posted for applicants? Or are there legal ramifications to not posting it?
A. In general, there is no legal requirement that jobs be shown in an organizational chart. There also is no law that requires private employers to post positions before filling them. Some companies, however, may require posting as a matter of internal policy. And if a company fails to follow its own internal policy, an adversely affected person may seize on that noncompliance and argue that it presents evidence of an improper or sham selection procedure that really is animated by unlawful bias.
Q. Several times I have seen mention of "PTO banks", a combination of sick, personal and vacation days. Our current policy is for employees to accrue personal/sick time as well as vacation time, however only unused, accrued vacation time has to be paid out at separation and we do not allow for rollover of days and/or hours from year to year. What is the law regarding payout of any unused time when a separation occurs?
A. The company must pay out the for the vacation time that has been earned, but not yet used upon termination of employment based on the time off policy as outlined in your Summary Plan Description (SPD). If your company operates in Massachusetts, General Law Chapter 149: Section 148 governs what must be paid to an employee upon termination:
As always, we encourage you to seek the opinion of your legal counsel when determining the applicability of these policies for your organization.
Q. We are a retail business. Most of our help is seasonal, with exception of 3 full time employees that are kept on all year. My spouse is the "BOSS" and is easy to work for. The full time employees have full health benefits, transportation with car insurance, gas and paid vacation time during our off season. All full-time employees are very hard workers, however one of the 3 is now NOT a team player. His negativity and bad mouthing is affecting the other co-workers. It is difficult for the boss to address this problem. We have been in business for nearly 25 years, and this is the first time we have had this problem. Could you give me some suggestions in how to handle this appropriately?
A. The old saying “one bad apple can spoil the bunch” holds true with employee teams, especially a team so small. You risk disengaging the other 2 FT employees, and potentially losing them if this situation is left unchecked. You should also assume this individual is negatively impacting the seasonal staff as well. The “boss” (e.g. your spouse) needs to address this situation ASAP. Studies show that allowing poor performance to continue without consequences is a key disengagement driver.
I’m going to make an assumption that the ‘boss’ tolerates this behavior because of the value of the employee?? If so, I’d argue that the long term damage this employee will bring to the team will be greater than the perceived value the employee brings to his/her job. The ‘boss’ needs to immediately sit with the employee and outline specific examples where the employee’s behavior is negatively impacting the team’s performance and engagement. I would make sure to document this conversation, citing the specific examples, and include specific language stating that the behavior won’t be tolerated going forward. This document should be given to the employee, and should also include language such as “failure to improve in these areas will result in further disciplinary action, up to and including dismissal”. It would be ideal if you could also include an HR consultant or legal representative in the discussion (it is always best to have a third person present if possible-though given the size of the business, this might be difficult). Good luck!
Q. Is it illegal - or just bad business practice - for an organization to hire a person outside of the organization, and not post the job opening to the public?
A. With the exception of government agencies (and contractors), there is no law dictating specifically whether or not a company must to post a job opportunity to the public, if indeed they intend to hire from the public. However, employers do need to have consistent and defensible hiring practices in order to avoid discrimination lawsuits. The best way to do that is to have a well documented process for how all job searches will be handled, including those that will be posted internally, externally and/or handled on a confidential basis by a search firm. From a practical matter, it is simply good business practice to hire the person that is the best fit and the most qualified candidate from a pool of possibilities.FULL ENTRY
Q. My company’s manufacturing plant closed, and about 150 people lost their jobs. A new manufacturing company bought the facility, and the new HR manager is hiring employees from his previous place of employment – rather than hiring back former employees that were previously laid off. Is this ethical?
A. By any formal definition of workplace "ethics", one would be hard pressed to label this recruiting behavior as "unethical." The new owners, and the new HR manager, want to establish their own team, and like many professionals, will gravitate towards those whom they know and have observed. This is a common and typical practice. Is it good employment practice? Not entirely in our opinion. Is it in the best interests of the company to re-hire some former employees who performed well, and supported the company’s objectives? Definitely, yes. The new managers are building a new culture and a new team. It is reasonable to expect that they want to hand pick a new staff to match their emerging vision. In addition, they may be concerned that employees from the prior company will have more difficulty accepting the new culture and changing business directions. With that said, it is to their benefit - and to the company’s reputation in the community - to review the applications of all skilled people, regardless of prior employment. There could be a number of highly talented people who lost their jobs, and are flexible enough to change perspectives, join a new team, and align with the new owners.
Q. My husband is currently on a G4 visa. I have received my green card recently on EB2, and my husband received his green card as my dependent. Is it possible for him to continue on his G4 visa to maintain his international benefits?
A. It is not possible to be a lawful permanent resident and hold G-4 status at the same time. If your husband received his green card, then even though he may have a G-4 visa stamp in his passport, he no longer holds G-4 status; effectively his G-4 status has been terminated.
Q. A married couple is employed by the same employer. The wife is expecting a baby. The question is, are both employees entitled to 12 weeks of FMLA/MMLA?
A. The Family Medical Leave Act (“FMLA”) regulations address this issue in 29 CFR 825.120(3). Parents who are employed by the same employer are entitled to a combined twelve weeks of leave. This allotment may be shared between the parents at their discretion. This limitation applies even where the husband and wife work at different locations or in different departments of the same employer.
It is also notable that if one of the parents is ineligible for FMLA leave, the other is entitled to the entire twelve week period. Furthermore, if the parents split the twelve week period, then each parent is still entitled to the difference between the amount taken and twelve weeks, which may be used for other FMLA purposes. For example, if a mother uses only eight weeks of leave and the father uses the remaining four weeks, the mother is entitled to four weeks of FMLA leave for other FMLA purposes (for example, for her own serious health condition or to care for a family member who has a serious health condition). Likewise, in this scenario, the father would be entitled to eight weeks of leave for other FMLA purposes.
The Massachusetts Maternity Leave Act (“MMLA”) provides maternity leave only for women. Women who take time off under the MMLA are entitled to eight weeks of leave. A woman’s leave for birthing or caring for a newborn may count simultaneously against her twelve week FMLA leave and her eight week MMLA leave. Since they are not covered by MMLA, men are not entitled any leave under the Act. However, the Massachusetts Commission Against Discrimination (“MCAD”) has opined that implementing the MMLA in a manner that fails to provide equal benefits for male and female employees could result in sex discrimination under federal law. To avoid potential discrimination claims by male employees, some employers offer men the same parental leave benefits as women. In that event, the married couple in your example would each be entitled to 8 weeks of parental leave each (leaving 4 weeks of FMLA eligibility to be used for other purposes).
Q. I have an employee who has/ is having a relationship with another employee in another department. Outside of the moral issue (as one of them is married) what can be done to address this without being overly aggressive? Due to their relationship one tends to give special attention to the issues of the other but hasn't ignored other work to the point that you could say they are not doing their job. What advice can you share?
A. First of all, I would get your HR organization involved. If you’re too small to have an HR organization, I would obtain the advice of outside council. Also, I’m assuming there is no direct or indirect reporting relationship? If so, then immediate intervention would be required (and hopefully, your business has a policy prohibiting dating direct and or indirect line reporting relationships). If there is no direct line reporting relationship, we’re dealing in very delicate territory. For starters, I would sit with your employee and mention that you’ve become aware of this situation, and remind the individual that no special attention, favors, priorities, etc. can go to the other individual or other individual’s department. Reinforce the ground rules that disciplinary action could occur if this became the case. I would also have the HR organization sit with the individual who is married and increase his/her awareness that this has come to their attention, and the Company is concerned about the potential ramifications. He / She might deny the allegation. Or he/she might say, “it’s none of your business – I’m doing my job.” Again, a very delicate situation that would require additional information to pass along additional guidance. I strongly advice obtaining the input of HR and legal before proceeding much further.
Q. We generally interview 2-6 prospective hires for a vacancy. After the interview process is over, how long should we keep notes from interviews of persons not hired?
A. The timeframe for retaining solicited candidate resumes may vary by state. In general, 2 years is the minimum you are required to keep them on file. I suggest you keep interview notes for the same duration. It is important to note that technically, you should keep interview notes separate from the resume and that you should not make notes on the resume. It is also a good idea to adopt a record retention policy to ensure that you adopt a consistent approach and mitigate organizational risk.
Q. I am the HR manager for our department. We have a female minority employee who has abused her PTO time. She also does little or no work, but always seems to reap the company incentive rewards. The onsite manager has NO documentation of the times she has abused her position and PTO time, or the times she has been approached by the onsite manager. What, if anything can be done to start the termination process without a lawsuit?
A. Your dilemma has both legal and ethical implications; however, the fact that the employee is a female minority individual should not impact decision-making. A minority employee does not have different performance or attendance requirements, or rights. The fact that she is a female minority employee is irrelevant. The performance management “clock” should start now since the employee’s manager has failed to document prior incidences. In other words, it is our opinion that this employee cannot be terminated at this point in time. Future incidences need to be documented carefully, followed by a clear discussion between the employee and her manager. She has the right to discuss the feedback and respond. If the problem continues and is not corrected over time, then HR should notify the employee that a performance plan has been initiated that could lead to the loss of her job. Instead of worrying about potential lawsuits, do what is right and what corresponds to best and fair practices for HR.
Q. We have a few computer programmers who are on H-1B visas. They have all indicated that they will be returning to India within the next 12 months to visit family, for 21 - 60 days. We have a sister company in India. If they were asked to go to our sister company's office to work on U.S.-based projects while in India and they agree to do so, would the parent company be obligated to pay them at their U.S. rate of pay or at the prevailing rate of pay for computer programmers in India?
A. The Department of Labor (DOL) regulates the payment of wages to H-1B workers in connection with the Labor Condition Application (LCA) which your company filed to support the workers' H-1B visa petitions. The DOL regulations require that the H-1B employer pay the H-1B workers the wage that was promised in the LCA on a regular and uninterrupted basis, unless the employee voluntarily takes a leave of absence at his or her own request. If the employee is on a leave of absence, but chooses to work for your sister company in India during that time, and the work being performed benefits the U.S. company, the DOL would dispute that this was a true leave of absence and would likely require the payment of wages throughout that period, at the rate promised in the underlying LCA. The safest and most conservative course of action is to continue to pay the wages promised on the LCA.
Q. What are the legal obstacles for having a drug and alcohol policy for testing all prospective hire and random testing of current employees? We are a home health care agency and want to make sure that our direct care personnel are free of drugs.
A. As you know, drug and alcohol abuse increases the risk of workplace injury, reduces productivity, leads to increased absenteeism, and creates numerous other costs and risks for employers. You are smart to be concerned about employees’ drug and alcohol abuse, especially where employees are providing health care to clients or patients in their homes. While drug testing can be a useful tool, employers must be careful to ensure compliance with laws such as the Massachusetts privacy statute, M.G.L. ch. 214, § 1B, to avoid invasion of privacy claims. Although Massachusetts does not regulate drug testing by statute, other states – including Connecticut, Maine, Vermont, and Rhode Island – have adopted statutory restrictions on the use of drug testing in the workplace. Before undertaking any drug testing program, you should review the specific state laws governing testing and conform your practices to the legal requirements.
Having a well-designed, thoughtful drug-testing program is key. Employer drug screening programs may take many forms, and occur at different stages of the employment relationship, such as pre-hire, post-accident, random, reasonable suspicion or return-to-work (post-rehabilitation) testing. Again, state law varies regarding when testing is permitted. In Massachusetts, for example, the courts typically balance the employees’ privacy interests against the employer’s business reasons for testing. Applying this balancing test, employers may require pre-hire drug tests for certain positions such as the home health care workers you mentioned. Massachusetts courts have also upheld post-accident testing; for example, you may consider testing any direct care personnel who are involved in a car accident traveling to or from a clients’ home. Random drug testing, on the other hand, is more complicated, and such testing may violate an employee’s right to privacy, unless the employee works in a safety-sensitive or dangerous job, or the employer can show a compelling business reason. You should discuss with your legal counsel whether random drug testing would be permissible for the direct care workers, since this will require an analysis of the specific facts and circumstances. You should also carefully consider what types of tests will be conducted (urinalysis vs. blood test, for example), which lab or testing facility will conduct the tests, where the samples will be drawn, and what the consequences of a positive test result will be. Confidentiality of test results and whether to offer rehabilitation services are also important considerations. A well-drafted drug testing policy should address all of these issues, as well as identify the positions subject to testing.
Q. My company always closes early (2:00 pm) on the day before a holiday. It is such a standard/expected “perk” that most people rely on, and our Chief People Officer even sent an email at the beginning of the season to remind people. Our employees often ask the question, "If I was planning on taking PTO that day, would I charge 4 hours or 8 hours?" We always used to tell them they should only charge 4 hours of PTO time, since everyone is being let off early and enjoying a half day. Now, however, we have a few new HR people who think that this wrong and changing the policy. They are telling people they must charge all 8 hours. This just doesn't sound right to me that we are not consistently applying a perk to all employees. What is the correct way to handle this situation?
A. The answer to your question depends on whether your office is officially closed for business at 2 pm the day before a holiday, or whether the office is still open and only non-essential employees can leave early. In most cases, the “perk” you are describing, applies to most, but not all employees, and the office remains open for business, requiring critical workers (e.g., receptionists, those in operations, those working on time-sensitive projects) to remain at the office to contend with customers, vendors, and the like. In this case, where the office is still officially open, you are required to charge for 8 hours of PTO time. If, on the other hand, the office closes formally, as if it is a holiday, and all workers leave and no business is being conducted, then you would be correct in only charging for 4 hours of PTO time.
— JULIE WEBBER, Policy Specialist at the Sloan Work and Family Research Network (on behalf of HR Expert JUDI CASEY)
Q. I inherited a very small department, which includes two managers. They were given their titles by my predecessor, do not supervise anyone, are now overpaid, and could easily be replaced. What are the pitfalls of restructuring their positions and returning their roles to appropriate line staff?
A. This is a complicated dilemma you face, and somewhat difficult to answer without additional information. I’ll assume the following based on what is not said – this is not a companywide initiative driven by cost cutting, and the two individuals in question are at least “steady Eddies” (no less than average performers). I’ve never been a fan of downgrading titles unless there are internal equity issues, or something of significance driving the need. (e.g. overall Company restructuring). Remember, titles are free, and downgrading someone’s title will result in a level of disengagement, and most likely, resentment towards you. You don’t mention if you’re also thinking of restructuring their pay. If so, I would offer similar advice – if it is part of a Companywide initiative, (common during these times), employees are increasingly accepting of the need for Companies to stay competitive, especially if this is an initiative to avoid layoffs. However, if these two individuals feel they’re being “signaled out” by you, then you risk a level of disengagement leading to a loss of their “discretionary effort”. Often this loss will not equal the potential salary savings. Alternatively, an approach I’ve used very successfully is to “red tag” their total compensation (no salary increases, bonuses, etc.) until the market catches up to their salaries. Of course, Company financial conditions will dictate whether you can afford this approach.
Your “could easily be replaced” comment does concerns me somewhat. In these troubling economic times, many employees can easily be replaced by lower cost employees (those currently unemployed for starters). However, keep in mind – your employees are watching you, and will remember how they were treated during these times. When the economy improves (and it will), and employees have options again, they will remember how they were treated during these times.
Q. I want to give potential job candidates a computer skills test. Must I notify him/her ahead of time or can I just ask them to submit to a test after an interview?
A. You are not required to notify a candidate in advance of a computer test. The key to being compliant when administering job related tests, as you may know, is consistency. If you notify one candidate prior to the interview, then you should notify every candidate in the same manner.
Q. We have a supervisor that has not been performing well. She has been spoken with on numerous occasions about her lack of performance and her attitude. We want to demote her from supervisor but now she is pregnant and we are worried about this seeming to be because she is pregnant. Is it okay to demote this person?
A. Speaking with someone on numerous occasions is not managing performance. It is best to set up specific measurements for improved performance, along with timelines for these objectives to be met. I would suggest that you meet with this supervisor and review what is expected from someone in this position. Establish goals and a time to meet weekly, so that she has an opportunity to turn this situation around.
Given this current situation, I would recommend you speak with counsel before considering demoting this employee.
Q. Recently we have had a number of folks from Canada and Europe requesting us to put them in volunteer positions. Somewhere I have heard that it is not permissible and that the person wishing to volunteer is in jeopardy of losing their right to work in the USA simply by performing volunteer services while on a work visa. I've been trying to research this on the internet but cannot find any helpful sites. Can you offer any advice and also any websites I can refer to for future reference?
A. Employers in Massachusetts, and especially for profit business entities, should be careful not to violate state and/or federal payment of wage, minimum wage, employment tax, workers compensation, benefits and other statutes. Independent of the exposure a foreign national may have for improperly "working" in the U.S. without a proper work visa, the employer may face significant exposure for nonpayment of wages and failure to meet related requirements by having volunteers performing work for them. Both Massachusetts and federal law are strict regarding volunteers. Only employers that have established training programs meeting detailed criteria may take advantage of having unpaid personnel legitimately receiving such training in their workforce. If the criteria are not met, the employer and certain responsible executives could be sued or prosecuted and possibly held liable for fines, back wages, liquidated damages, attorneys fees and perhaps other damages. The federal Fair Labor Standards Act, 20 USC Section 203(g) is the principal federal statute in the area, though not the only source of potential liability.
Q: We have a supervisor that has not been performing well. She has been spoken with on numerous occasions about her lack of performance and her attitude. We want to demote her from supervisor but now she is pregnant and we are worried about this seeming to be because she is pregnant. Is it okay to demote this person?
A: I am assuming the employee has no contractual entitlement to a supervisory position. Under such circumstances, whether the demotion would be okay depends on your motivation for it and how well you can prove that motivation.FULL ENTRY
Q. I work as an office manager and part of my duties is to handle payroll/HR functions. My company does not offer any sick days to their employees and we all are told this at the time we are hired. Recently, an employee approached me about a problem with this policy. Upon return from a recent vacation, he discovered we took away vacation days when he had been out sick. We do not dock pay when employees are sick or late, but I am directed to use vacation time toward sick days. Can my company do this? I am just following direction from my boss but want to know if this is OK?
A. There are no state or federal laws mandating that employers grant sick leave to their employees. In fact, more than 59 million American workers do not have access to paid sick days, and nearly 86 million workers do not have paid sick days to care for sick children, according to the Institute for Women's Policy Research.
Maintaining effective training and development programs during tough economic times
Q. I'm worried that next year's training and development budget will be cut drastically. Any ideas for maintaining a commitment to learning with reduced resources?
A. During challenging economic times organizations need not only the skills of employees but also their discretionary effort more than ever. So it's a mistake to back off from training altogether. It's also a mistake to keep only the choices (like sales training for revenue producers) that have the most obvious impact on the bottom line.FULL ENTRY
Changing established rites of passage
Q: We are trying to improve our ability to retain new talent. It seems an old “rite of passage” is in place that company old timers put new recruits through and it is impacting our retaining efforts. Many of our new recruits do not appreciate this “rite of passage." Often, when a new employee comes to the organization, they go through a test by the old entrenched employees until they integrate and prove themselves. It can be difficult and sometimes employees leave from the discomfort. What is the best way to keep these new employees engaged? And, how can we break down this rite of passage that the old timers give new employees?
A: You need to determine if leadership at all levels supports and agrees with this “rite of passage." If there is not a consistent, aligned, and fully agreed position, it will not be addressed or resolved. It may be possible some leaders believe that part or all of this “rite of passage” is ok — they went through it themselves and it is reasonable for others to follow.